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PETITIONER: K.C. MATHEW AND OTHERS

       Vs.

RESPONDENT: THE STATE OF TRAVANCORE-COCHIN.

DATE OF JUDGMENT: 15/12/1955

BENCH: BOSE, VIVIAN BENCH: BOSE, VIVIAN AIYYAR, T.L. VENKATARAMA AIYAR, N. CHANDRASEKHARA

CITATION:  1956 AIR  241            1955 SCR  (2)1057

ACT: Sessions  Trial-Charge-Different offences against  different accused lumped together-Legality-Examination of the  accused neither full nor clear-Failure to raise objection at earlier stages-Withholding  by  the accused of  facts  within  their special knowledge-Inference-Code of Criminal Procedure  (Act V  of  1898), ss. 225, 342, 537-Indian Penal  Code  (XLV  of 1860), ss. 302, 149.

HEADNOTE: The  appellants  were  put up for trial  along  with  others before  the Court of Sessions.  The charge against them  set out  the fact that they formed an unlawful assembly,  stated the common object specifying in detail the part each accused had  played  and then gave a list of ten  sections  of  the. Travancore Penal Code including sections which correspond to s.  302  of  the Indian Penal Code read with  s.  149.   The Sessions Judge acquitted them under s. 302 read with s.  149 but convicted them on the lesser charges.  They appealed  to the  High  Court  against their convictions  and  the  State appealed against their acquittals under s. 302 read with  s. 149.  The High Court dismissed their appeals and allowed the appeals against their acquittals and sentenced each of  them to  transportation  for  life.  It was  contended  on  their behalf  that the charge was not in accordance with  law  and their  examinations  under s. 342 of the  Code  of  Criminal Procedure were defective and prejudiced them. Held,  that  the  charge  framed was a  legal  one  and  was expressly  covered  by  s.  225  of  the  Code  of  Criminal Procedure.   Each of the accused was apprised of  the  facts alleged  against  him  and  he could  easily  pick  out  the relevant sections under which he was charged.  There  could, therefore, be no prejudice to any one of them. Held  further,  that  as  no  objection  was  taken  to  the defective  examination under s. 342 of the Code of  Criminal Procedure  at  an earlier stage although  the  accused  were represented  by counsel, and as the petition of  appeal  did not set out the questions the court should have put to  them and  the answers they would have given and as  they  thereby withheld  from  the  court facts  which  were  within  their special knowledge, the court was entitled to draw an adverse

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conclusion against them and hold that no prejudice had  been caused to them. That when an accused person is not properly questioned under s.  342  so as to enable him to  explain  the  circumstances appearing in the evidence against him he is entitled to  ask the appellate Court, which is the ultimate court of fact, to place him in the same position 1058 he would have been in if he had been properly questioned and to take the explanation he would have given, if he had  been asked, into consideration when weighing the evidence in just the same way as the court would have done if the explanation had been there all along.  But he cannot ask to be placed in a  better position than he would have been in if  the  court had   done  its  duty  from  the  start.   Therefore,   when complaining  of prejudice he must set out the  questions  he should  have  been asked and indicate the answers  he  would have given.

JUDGMENT: CRIMINAL  APPELLATE JURISDICTION: Criminal Appeal No. 97  of 1953. Appeal under Article 134(1)(c) of the Constitution from  the judgment  and  order  dated  the  15th  June  1953  of   the Travancore-Cochin  High Court in Criminal Appeals  Nos.  54, 55, 56, 58 and 79 of 1952. S.   Mohan  Kumaramangalam  and  S.  Subramaniam,  for   the appellants. Sardar Bahadur, for the respondent. 1955.  December 15.  The Judgment of the Court was delivered by BOSE  J.-This  is  a case of rioting  in  which  two  police constables were killed.  Thirty one persons were put up  for trial.   The learned Sessions Judge acquitted twenty one  of them  on all the charges and acquitted the remaining ten  of the  most serious charge of all, namely the offence  falling under  the  sections  of the  Travancore  Penal  Code  which correspond to section 302 of the Indian Penal Code read with section  149.   But  she convicted them on  several  of  the lesser  charges  and imposed sentences ranging from  two  to five  years  on each count and directed that  the  sentences should run consecutively except in the cases of accused 5 to 8 and 18.  She sentenced each of them on only one count  and so there was only one sentence. The  convicts  appealed to the High Court and the  State  of Travancore-Cochin  also appealed against the  acquittals  on the murder-cum-rioting count. The High Court dismissed the appeals made by the ten accused and allowed the appeals ,against the acquittals and  imposed the lesser sentence 1059 of  transportation  in  each case.  These  ten  accused  now appeal here. The accused are said to be communists.  Two of them,  namely numbers  30  and 31, were arrested on 27-2-1950 at  about  I P.m. and were confined in the Edappilly police lock up.  The prosecution case is that the other 29 accused entered into a conspiracy  to  release their comrades and in  pursuance  of that conspiracy attacked the police station at about 2  A.M. on  the  28th armed with deadly weapons  such  as  choppers, knives,  bamboo and other sticks and a dagger.   Two  police constables, Mathew and Velayudhan, were killed in the course of the raid.

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The  first point taken before us is that the charge  is  not according to law and has prejudiced the appellants in  their defence.   The complaint on this score is that each  accused has not been told separately what offences he is being tried for.  They have all been lumped together as follows: "The  aforesaid offences having been proved by the  evidence adduced  by  the  prosecution, you  the  accused  1-29  have committed                offences                 punishable under  .................................." and then follow  a string of ten sections of the  Travancore Penal Code. We  are satisfied that the charge neither caused, nor  could have caused, prejudice.  The body of the charge set out  the fact  that the accused 1-29 formed an unlawful assembly  and stated  the common object; and then the charge specified  in detail  the  part  that each accused  had  played.   In  the circumstances,  each accused was in a position to know  just what  was  charged against him because once  the  facts  are enumerated  the  law  that applies to  them  can  easily  be ascertained;  and  in  this particular case it  was  just  a matter  of picking out the relevant sections from among  the ten mentioned.  There is nothing in this objection;  section 225  of  the Criminal Procedure Code expressly  covers  this kind of case. The  next argument was that the examination of each  accused under  section  342  of  the  Criminal  Procedure  Code  was defective and that that caused pre- 1060 judice.  We agree that the examination was not as full or as clear  as it should have been but we are not satisfied  that there was any prejudice. It  is  to be noted that the question of prejudice  was  not raised  in either of the Courts below nor was it  raised  in the  grounds of appeal to this Court.  The point  was  taken for the first time in the arguments before us and even there counsel was unable to say that his clients had in fact  been prejudiced-,  all  he  could  urge  was  that  there  was  a possibility of prejudice. We  agree  that the omission to take the  objection  in  the grounds of appeal is not necessarily fatal; everything  must depend  on  the  facts of the case; but the  fact  that  the objection was not taken at an earlier stage, if it could and should  have,  been taken, is a material  circumstance  that will   necessarily   weigh  heavily  against   the   accused particularly  when  he  has  been  represented  by   counsel throughout.  The Explanation to section 537 of the  Criminal Procedure Code expressly requires the Court to "have  regard  to the fact whether the objection  could  and should  have  been  raised  at  an  earlier  stage  in   the proceedings". Another strong circumstance is this: the petition for appeal does  not  set  out the questions  that,  according  to  the appellants, they should have been asked nor does it indicate the  answers  that they would have given if  they  had  been asked.    Again,  though  that  is  not  necessarily   fatal ordinarily  it will be very difficult to sustain a  plea  of prejudice  unless  the  Court is told just  where  the  shoe pinches.   It  is  true that in  certain  exceptional  cases prejudice,  or a reasonable likelihood of prejudice, may  be so  patent  on the face of the facts that  nothing  more  is needed;  but that class of case must be exceptional.   After all,  the only person who can really tell us whether he  was in  fact  prejudiced is the accused; and if  there  is  real prejudice he can at once state the facts and leave the Court to  judge their worth.  But if the attitude of the  accused,

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whether in person or through the mouth of his counsel, is:  "I don’t know what I would have said.  I still have, 1061 to  think that up.  But I might have said this, that or  the other",  then there will ordinarily be little difficulty  in concluding  that  there neither was, nor  could  have  been, prejudice.   Here,  as elsewhere, the Court is  entitled  to conclude  that  a person who  deliberately  withholds  facts within  his special knowledge and refuses to give the  Court that  assistance which is its right and due, has nothing  of value  which  he can disclose and that if  he  did  disclose anything  that  would at once expose the hollowness  of  his cause. The purpose of section 342 is set out in its opening words- "for  the  purpose of enabling the accused  to  explain  any circumstances appearing in the evidence against him". If  the  accused  is not afforded that  opportunity,  be  is entitled to ask the appellate Court to place him in the same position  as  he would have been in had he been  asked.   In other  words,  he is entitled to ask  the  appellate  Court, which is the ultimate Court of fact, to take the explanation that   he  would  have  given  in  the  first   Court   into consideration  when weighing the evidence in just  the  same way  as it would have done if it had been there  all  along. But if he does not ask this in the last Court of fact he  is in  little better position when the case comes here than  be would be in had he, say, omitted to call, in his defence,  a witness who, he says, would have deposed in his favour.   In very  exceptional cases be might be allowed to call  such  a witness  even  at such a stage, but if he does not  ask  for that  when his case is under appeal he would  normally  have but slender hope of succeeding here.  It is true he is in  a stronger  position when section 342 is in  question  because the  section places a solemn and serious duty on the  Court, and  the accused can very rightly and properly  complain  if the  Court  fails to do its duty; but when all is  said  and done, he cannot claim to be placed in a better position than he  would have been in bad the Court discharged its duty  at the outset.  Therefore, all he is entitled to say on  appeal is,  "I  was not asked to explain this matter,  Here  is  my explanation; this is 1062 what I would have said: please consider it".  But if he does not  take  up  that position- at  the  appellate  stage  and complains  of  prejudice  for  the  first  time  here,   the inference  is  strong that the plea is an  afterthought  and that there was no real prejudice. However,  as the true meaning of "prejudice" in section  537 and  other  sections  of  the  Code  is  not  yet   properly appreciated, probably for want of an authoritative  decision by this Court, we invited counsel to tell us what  questions his  clients  should  have been asked and  at  any  rate  to indicate what, according to him, they might reasonably  have said.  His main grievance on this score is that none of  the appellants  has  been asked about the common object  and  he said  it is obvious that most of them could very  reasonably have said that they bad no idea that it was murder and  that they  did  not  even know that any of  the  members  of  the assembly carried lethal weapons. It  is necessary at this stage to explain that  both  courts find that there was an unlawful assembly and that the police station at Edappilly was raided and that arms and ammunition and  some  of the station records were carried away  by  the raiders; also that two of the police constables who were  on sentry  duty  were murdered.  The only point on  which  they

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differ is about the common object. The charge set out that the common object was to rescue  the 30th  and 31st accused by force and to murder the  policemen on duty as well as to loot the records, arms and  ammunition of  the police station.  The learned Sessions  Judge  found, mainly   because  of  a  concession  made  by   the   Public Prosecutor,  that  the  common object could  not  be  placed higher than that of rescue despite the fact that some of the members were armed with deadly weapons; accordingly she (for the  learned  Sessions Judge was a lady) acquitted  all  the accused of the charge under section 302 of the Indian  Penal Code   read   with  section  149,  or   rather   under   the corresponding provisions of the Travancore Penal Code. The State appealed against these acquittals and 1063 the High Court thereupon convicted on the  murdercum-rioting charge  and imposed the lesser sentence.  The convicts  also appealed but their appeals were dismissed.  In  view  of  the  admission made  by  the  learned  Public Prosecutor  we do not think the High Court was justified  in holding  that the assembly bad the common object  to  murder but  we do not think that that makes any difference  to  the result. Even  if  it be assumed that the common object was  only  to rescue  the  two  accused who were in-the  lock  up,  it  is obvious  that  the  use of violence  was  implicit  in  that object.  People do not gather together at the dead of  night armed  with  crackers  and choppers  and  sticks  to  rescue persons who are guarded by armed police without intending to use  violence  in order to overcome the  resistance  of  the guards; and a person would have to be very naive and simple- minded  if  he did not realise that the sentries  posted  to guard prisoners at night are fully armed and are expected to use  their arms should the need arise; and he would have  to be a moron in intelligence if be did not know that murder of the  armed  guards would be a likely consequence in  such  a raid;  and  what holds good for murder also holds  good  for looting  in  general.  Now section 149 applies not  only  to offences  actually committed in pursuance of the common  ob- ject but also to offences that members of the assembly  know are  likely to be committed.  It would be impossible on  the facts of this case to hold that the members of the  assembly did  not  know  that murder was likely to  be  committed  in pursuance of a common object of that kind by an assembly  as large  as the one we have there.  Accordingly, even  if  the common object be not placed as high as murder the conviction on  the  murder-cum-riotiNg charge was  fully  justified.,,, This answers the main ground of appeal. But  to  go back to the argument about section  342  of  the Criminal Procedure Code.  What we have to assess here is the explanation   which  counsel  says  each   appellant   could reasonably  have  given in the trial Court if  he  had  been asked for one, namely that 1064 he  did  not know that any member of  the  assembly  carried lethal  weapons and that murder was likely to  result.   The answer to that is plain.  There is nothing to indicate  that the   appellants   are   deficient   in   intelligence   and understanding, and if they are judged by the standard of men of  reasonable  intelligence,  as  they  must  be,  then  an explanation  of this kind cannot be believed.  Men who  band themselves  together to rescue persons locked behind  prison bars  and guarded by armed police do not set out  with  bare hands  and  doves of peace; of course, they  arm  themselves with  implements that are strong enough to break open  locks

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and  break down doors and iron bars and it is  obvious  that implements  of  this  kind can be used  with  deadly  effect should  the  need  and the desire to use them  in  that  way arise.  It hardly matters whether each member knew the exact nature of the implements, namely that some had choppers  and some  sticks.  It is enough that they knew that  instruments that could be used as deadly weapons would necessarily  have to  be carried if the purpose underlying the  common  object was  to  be  achieved.  Therefore, even if  the  answer  now suggested  to us bad been given in the trial Court it  would have made no difference to the result. Turning next to the first accused, counsel said that he  was not  asked  about identification in  his  examination  under section  342.   But that is not correct.  The  question  put was- "P.Ws.  1  and  4  say  that  they  had  seen  you,  beating constables Mathew and Velayudhan, etc." The point about identification is implicit in this  question and we are satisfied that this appellant understood what the question  imported  because the cross-examination  of  these witnesses  discloses  that  the  question  of  identity  was present  to the mind of the cross-examiner; he  specifically questioned each witness about the matter. Next,  it  was said that no question was put  to  the  first accused about any robbery, but we need not examine this  any further because the matter becomes academic once the murder- cum-riot conviction is up- 1065 held  and once we make the sentences concurrent  instead  of consecutive as we intend to do. The arguments on this point about the rest of the appellants except the seventh accused, followed the same pattern and we need not examine them separately., As regards the seventh accused, the only point of  substance in his case is that he was not asked to explain his presence at  Kadiparambu  where  the  agreement  to  rescue  and  the planning  are  said to have taken shape. Counsel  said  that this accused lives there, so the mere fact that he was  seen among a crowd that had gathered there in the day time  could not  be regarded as a circumstance of suspicion. That  would have  had  force had it not been for the fact  that  he  was again seen at the police station at 2A.M. and was identified as one of the rioters who took an active part in the raid. We  have gone into the question of possible prejudice  under section  342  in the way we have because, as we  have  said, appellants  do  not appear to appreciate what  is  necessary when  this kind of plea is raised.  We do not intend to  lay down any hard and fast rule but we do wish to emphasise that what  we have done in this case is not to be regarded  as  a precedent  and  that  in  future  it  will  be  increasingly difficult  to  induce this Court to look into  questions  of prejudice if the requisite material is not placed before  it and  if  appellants  deliberately withhold  from  the  Court assistance  which  it  is  in  their  power  to  render;  an inference adverse to them must be expected if that  attitude is adopted. Counsel  then  tried  to  attack  the  credibility  of   the witnesses and the correctness of the findings generally but, following  our usual practice, we decline to interfere  with concurrent  findings of fact where there is  ample  evidence which, if believed, can be used in support of the  findings. That  is  the  position  here.  The  only  ground  on  which interference  is  called  for is where  the  sentences  were directed to run consecutively.  The High Court confirmed the convictions  and  sentences passed by the  learned  Sessions

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Judge 1066 but  when it allowed the appeal by the State and passed  the lesser  sentence it said that "the sentences passed on  each accused will run concurrently".  We are not sure whether the learned  Judges  meant that the sentences  imposed  by  them should  run  concurrently with the others  or  whether  they meant  to  allow  the appeal to that extent.,  In  order  to remove  all  doubts, we allow the appeal to  the  extent  of directing  that the sentences imposed on each accused  shall run  concurrently and not consecutively.  Except  for  that, the appeal is dismissed.