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PETITIONER: 49RAM SHANKAR SINGH AND OTHERS

       Vs.

RESPONDENT: STATE OF WEST BENGAL

DATE OF JUDGMENT: 19/10/1961

BENCH:

ACT: Jury Trial  - Reference  and Appeal-Power  of High Court-If can  appraise evidence-Complex  questions put to  accused-if and when prejudice the accused- Code of  Criminal Procedure, 1898 (V of 1898), is. 312, 374,428,423.

HEADNOTE:      The appellants  and two  others were tried by the Court  of session  sitting  with  a  jury  for rioting and  causing  fatal  injuries  to  certain persons. The  jury brought  a unanimous verdict of guilty against  the appellants. The Sessions Judge accepted the verdict and sentenced them subject to confirmation by  the  High  Court  to  suffer  the penalty of  death. The  reference for confirmation of death  sentence and  the appeal  filed  by  the appellants against  the order  of  conviction  and sentence were  heard by  the High Court which held that the  verdict of  the  Jury  was  vitiated  on account of  misdirection on  material questions by the  Sessions  Judge,  and  thus  disregarded  the verdict and  proceeded to  consider  the  evidence independently  of   the  verdict   and  after   an elaborate examination  of the  evidence found  the appellants guilty of the offences punishable under s. 302  read with  8. 34  of the Indian Penal Code and confirmed the sentence of death.      It was  contended that (I) the High Court was not  competent  to  appraise  the  evidence  after discarding the  verdict of the jury and to confirm the sentence of death after modifying the order of conviction, (2) where the High Court had held that the  verdict   was   vitiated,   on   account   of misdirection or  misunderstanding of  law and  had set the verdict aside, then with the disappearance of  the   verdict  the   order  of  sentence  also dissppeared and  it was not open to the High Court to confirm  the sentence  and the  High Court  was bound to order a re-trial and (3) that the accused were prejudiced  when under  s. 342 of the Code of Criminal  Procedure,   they  were   asked  complex questions which could not be understood by them. ^      Held, that  s. 423  of the  Code of  Criminal Procedure applies  to all  appeals before the High Court whether  from a  trial by  jury or otherwise and when  the High Court finds that the verdict of the jury  is vitiated  on account of some error of

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law or misdirection it has full power to deal with the appeal  in the  manner specified  in s. 423 of the Code  and for that purpose it may appraise the evidence to decide what course it 50      will follow,  and was not bound in exercising powers under  s. 423  to order a retrial; it could exercise any of the powers under s. 423(1)(h).      Held  further,  that  the  powers  under  ss. 374(1) and  376 of the Code are manifestly of wide amplitude and  exercise thereof  is not restricted by the  provisions of  s. 418(1) and s. 423 of the Code. Irrespective  of whether  the accused who is sentenced to  death prefers  an appeal,  the  High Court is bound to consider the evidence and arrive at an  independent conclusion  as to  the guilt or innocence of  the accused  and this the High Court must do  even if the trial of the accused was held by jury.      In a case where the death sentence is imposed no sanctity  attaches to  the verdict of the jury. The verdict is not binding if the High Court holds on the  evidence that  the order  of conviction is not warranted. On a reference under s. 374 duty is imposed upon the High Court to satisfy itself that the conviction  of the accused is justified on the evidence, and  that the  sentence of  death in the circumstances of  the case is the only appropriate sentence. When  dealing with  a reference under s. 374 of  the Code  the High  Court was competent to order a retrial but is not bound to do so in every case tried  with jury when the verdict of the jury is found to be vitiated because of error of law or misdirection.      The right  of trial  by jury  is an important right conferred  upon accused persons in the trial of certain  serious offences. The question whether the accused  having had  the benefit of a trial by jury should  because of misdirection be ordered to be retried,  or his  case  be  considered  on  the evidence  by   the  appellate  could,  is  one  of discretion and not of right.      Held, also,  that the  failure to comply with the provisions  of  s.  342  of  the  Code  is  an irregularity and unless injustice is shown to have resulted  therefrom  a  mere  irregularity  is  by itself not  sufficient  to  justify  an  order  of retrial. The  appellate court must always consider whether by  reason of  failure to  comply  with  a procedural provision,  which does  not affect  the jurisdiction of  the court,  the accused have been materially prejudiced.      Abdul Rahim  v, King  Emperor (1946) L. R. 73 I. A. 77 and Ajmer Singh v. State of Punjab [1953] S. C. R. 418, referred to.

JUDGMENT:      CRIMINAL  APPELLATE   JURISDICTION:  Criminal Appeal No. 71 of 1961 .      Appeal from  the  judgment  and  order  dated January 18, 1961 of the Calcutta High Court in 51 Criminal Appeals No. 314. 318 an(l 319 of 1960 and

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Reference No. 3 of 1960.      Nur-ud-din Ahmed and Pritam Singh Safeer, for the appellants.      D. N.  Mukherjee, P.  K. Mukherjee  and P. K. Bose, for the respondent.      1961. October  10. The  Judgment of the Court was delivered by      SHAH, J.-At  9-:30 P.M  . On  March 21, 1959, four persons  -Rampiari,  Hiralal,  Shyama  Prosad Missir and  Surajnath Dubey  all  residing  within Police Station  (Golabari in  the town  of  Howrah suffered incised  and punctured  injuries and died in consequence  thereof. The  appellants  and  two others were  tried  before  the  Extra  Additional Sessions Judge, Howrah with a jury for rioting and causing fatal  injuries to  these four victims and thereby committing  offences punishable  under ss. 148, 302 and 302 read with 149 of the Indian Penal Code. The  jury brought  a  unanimous  verdict  of guilty  against   appellants  Ram  Shankar  Singh, Bimala and  Sudama Singh  for offences  punishable under ss.148,302  and 302  read with  149  of  the Indian Penal  Code and  against Ramnarayan  Missir for offences punishable under ss. 148 and 326 read with 149 of the Indian Penal code and a verdict of not-guilty  against   Depali  wife  of  Ramnarayan Missir The Sessions Judge accepted the verdict and sentenced the  appellants, subject to confirmation by the  High Court, to suffer the penalty of death and   Ramnarayan   Missir   to   suffer   rigorous imprisonment for  10 years,  and acquitted Depali. The reference  for confirmation  of death sentence and  the   appeal  filed  by  the  appellants  and Ramnarayan Missir  against the order of conviction and sentence  were heard  by  the  High  Court  of Judicature at  Calcutta. The  High Court held that the verdict of the jury was vitiated on account of misdirection by  the Sessions  Judge, and after an elaborate examination  of the  evidence found  the appellants  Ram   Shankar  and  Bimala  guilty  of offences under  302 read  with 34  of  the  Indian Penal Code  for causing  the death of Rampiari and Hiralal, The 52 High Court also found appellant Ram Shankar guilty of murder  for causing  the  death  of  ,Surajnath Dubey by stabbing, him With a knife, and appellant Sudama Singh  for  causing  the  death  of  Shyama Prosad Missir  by stabbing  him with  a knife, and confirmed the  sentence of  death  passed  by  the Sessions  Judge.   The   High   Court,   acquitted Ramnarayan Singh  of the  offence of grievous hurt of which he was convicted by the trial court. With certificate granted  by the High Court this appeal is preferred by the three appellants.      Two bustees  in  the  town  of  Howrah-No.  7 Madhab Ghosh  Road and  No. 7  Tikiapara  Road-are separated by  a  common  courtyard.  Ram  Shankar, Bimala, Ramnaryan  Singh and Depali lived in No. 7 Madhav Ghosh  Road. Ramdeo Ahir, his wife Rampiari and son  Hiralal lived  in a  room in  7 Tikiapara Road and  Shyama Prosad  Missir lived  in  another room in  that bustee.  Surajnath Dubey  lived in a room in No. 9 Madhab Ghosh Road. At about 11 A. M. On March  21, 1959 there was an altercation in the

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common courtyard  between Ramnarayan  Missir,  his wife Depali  and Ram  Shankar’s wife Bimala on the one hand and Ramdeo, his wife Rampiari and his son Hiralal on the other. This attracted the attention of several  residents of  the  locality,  and  the parties were  pacified by  Jadunandan Roy  and Joy Lal Choudhury  and were  pursuaded  to  retire  to their respective  room. At  about 7  P. M.  On the same day,  after Ram  Shankar returned  home there was another  altercation and Jadunandan and others again intervened  and pacified  the  parties,  who were quarreling.  Hiralal and  his mother Rampiari returned to their room and apprehending an assault they chained the door from within. It was the case for the  State that  at about  9 r.  M.,  5  to  7 Hindusthani" came  armed with iron rods and knives to 7  Madhab Ghosh  Road and  joined Ram  Shankar, Sudama Singh, Bimala, Ramnarayan Missir and Depali who were  also armed  with lethal weapons, such as knives, 53 swords an iron-roads. The whole party then proceed to No.  7 Tikiapara  Road and  Sudama singh  broke open the  door of  the room  of Ramdeo  Ahir.  Ram Shankar and his wife Bimala then entered the room, Sudama Singh  standing outside.  Ram  Shankar  and Bimala attacked  Rampiari and  Hiralal and stabbed them to  death. On hearing the shrieks of Rampiari and  Hiralal,   Shyama  Prosad   Missir  proceeded towards the  courtyard, but  was stabbed by Sudama Singh in  the chest  with a knife and collapsed on the spot. Sudama Singh was held by Jadunandan Roy, but  was   rescued  by  his  Supporters  who  beat Jadunandan Roy  with iron  rods. At  this juncture Ram Shankar  and Bimala  came out of Ramdeo’s room with their  knives and  cloths stained with blood. Surajnath Dubey who reached the room of Ramdeo was stabbed by  Ram Shankar  in his abdomen. Surajnath Dubey ran  a short  distance pressing  his abdomen with his  hands and  fell down near the dispensary of one  Dr. Dhruba  Das Pandey  where from  he was removed  to   the  Howrah   General  Hospital.  He succumbed to  his  injuries  on  March  23,  1959. Ramnaryan Missir  was present  in the courtyard at the time  of this  assault and  carried a sword in his hand and his wife Depali carried a sword iron- rod. After killing Rampiari Hiralal, Shyama Prosad Missir and  causing injuries  to Surajnath  Dubey, Ram Shankar  and his  supporters  fled  along  the Madhab Ghosh Road. The sword carried by Ramnarayan was snatched  away by  Jivan Prosad  Sett  and  in doing so  the  latter  received  a  slight  injury Ramnarayan and  his wife  Bimla  and  others  were chased  by   a  large   crowd,  but  many  of  the miscreants made  good their escape. Ramnarayan and his wife  Depali took  shelter in the house of one Lakshman Mahato.  Ram Shankar,  Bimala and  Sudama Singh entered  the godown of Bhola Singh at Sailen Bose Road.      In the  meantime, the officer incharge of the police station  having received information on the telephone proceeded to Bhola Singh’s godown and 54 arrested Sadaman  Singh and  Bimala,  Ram  Shankar having run  away from the godown. Sudama Singh and

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Bimla  were   brought  to  the  scene  of  offence injuries on  the dead-bodies  of Rampiari, Hiralal Shyama prosad Missir were examined. Information of tho offence was the recorded.      At the  trial of  the  appellants  and  other accused evidence  was led  in support  of the case for the  State that  quarrels took  place at 11 A. and 7 p.m. On the day in question between Rampiari and Hiralal on the one hand and Bimala, Ramnarayan Singh and  Depali on  the other  and that  at  the quarrel at  7 P.  M. Ram Shankar was also present. Evidence was also led to show that shortly after 9 P.M.   Ram Shankar, his wife Bimala accompanied by Sudama  Singh   Ram  Shankar’s   cousin-Ramnarayan Missir and  his wife  Depali  and  five  or  seven Hindusthani men  approached the courtyard in front of No.  7 Tikiapara  Road and  Sudama Singh  broke open the  door of  the room of Ramdeo Ahir and Ram Shankar and his wife Bimala entered the room armed with knives  and emerged  from the  room  sometime later with knives stained with blood. Evidence was also led that Shayama Prosad Missir was stabbed by Sudama Sihgh and Surajnath Dubey by Ram Shankar in tho presence  of witnesses.  The  State  also  led evidence that  the fleeing  miscreants were chased by the  residents of  the locality and that Bimala and Sudama  Singh were  arrested in  the godown of Bhola Singh.      Before the High Court the verdict of the jury was  successfully  assailed  by  counsel  for  the appellants. The  learned Judges  of the High Court held that  the verdict  was vitiated on account of misdirection  on   material  questions,  and  they accordingly disregarded  the verdict and proceeded to consider  the  evidence  independently  of  the verdict. They  held that  appellants Nos. l and 2- Ram Shankar  and his  wife Bimala-were  guilty  of offences punishable 302 read with 34 of 55 the Indian  Penal Code  for causing in furtherance of their  common intention  death of  Rampiari and Hiralal in the room of Ramdeo Ahir. The High Court also held  Ram Shankar guilty of causing the death of Surajnath  Dubey, and  Sudama Singh  of causing the death  of Shyama Prosad Missir by stabbing him in the chest.      The  first   question  that   falls   to   be determined is  whether the  High Court was, in the circumstances of  the case,  competent to appraise the evidence  after discarding  the verdict of the jury and  to confirm  the sentence  of death after modifying the  order of conviction. Section 423 of the Code  of Criminal  Procedure invests  the High Court hearing  on  appeal  against  all  order  of conviction or  acquittal passed  by a  Subordinate court  of   criminal  jurisdiction   with  certain powers. These  powers are  exerciseable in appeals against orders  passed in  proceedings  which  are tried with  or without  the aid of jury. By s. 418 (l), an appeal, in a case tried by jury, lies only on a  matter of  law. But  if the  High Could on a consideration  of  the  materials  on  the  record reaches the  conclusion that the verdict in a case tried  with   jury   erroneous   owing   to   some misdirection by  the Judge  of misunderstanding of

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the law  by the jury, the High Court has the power to reverse  the finding and to acquit or discharge the accused  or to  order retrial  or to alter the finding maintaining  the  sentence,  or,  with  or without  altering   the  finding,  to  reduce  the sentence, or  with or  without such  reduction and with or  without altering the finding to alter the nature of  the sentence.  The High Court may in an appeal against  an order  of acquittal  even in  a case tried  with jury reverse the order and direct that further  inquiry be  made or that the accused be retried  or committed  for trial,  or the  High Court  may   find  the  accused  guilty  and  pass sentence on him according to law. These powers can be effectively  exercised only  if the  High Court has the power to appraise the evidence and 56 that is  made clear by sub-s. (2) of s. 423, which by  the   clearest  implication  enacts  that  the Appellate Court  may alter or reverse the verdict, if it  be of  the opinion  that   it is  erroneous owing   to   misdirection   by   the   Judge,   or misunderstanding of the law by the jury. The power to direct  retrial or  to consider the case on the merits  being  conferred  on  the  High  Court  in appeals against  orders of  acquittal as  well  as conviction, it  can effectively  be exercised only if the  High Court  is competent  apart  from  the verdict to  appraise the  value of the evidence on which the order of the trial court is founded. The High Court  is not  bound when  it arrives  at the opinion that  the verdict  of the jury is vitiated to interfere  with  the  verdict.  The  Court  is, therefore, competent  in appeals against orders of conviction  and  sentence  or  against  orders  of acquittal even in cases tried with jury to order a retrial or to maintain the convection and sentence on a  reconsideration of the evidence. Counsel for the   appellants    does   not    challenge   this interpretation of  the powers  of the  High  Court under ss. 418 and 423 of the Code.      In Abdul Rahim v. Emperor (1) in dealing with the powers of a High Court in a reference under s. 374 for  confirmation of  death sentence passed by the Court  of Session  n a  trial held  with jury, where the  verdict of  the jury  was found  to  be vitiated on  the ground  of admission of evidence, which, in  law,  was  inadmissible,  the  Judicial Committee of the Privy Council observed:           :Where inadmissible  evidence  has  been      admitted in  trial by jury, the High Court on      appeal may,  after excluding  such  evidence,      maintain   a    conviction,   provided    the      admissible  evidence   remaining  is  in  the      opinion of  the Court sufficient to establish      the guilt  of the  accused. The High Court is      not bound to order retrial in such cases."      (l) (1946) L. R 73 L A. 77 57 The Judicial Committee also observed           "The primary  duty of  the Court  on  an      appeal is  indicated in  s. 423(1).  It is to      consider with  the record  before it  whether      there sufficient  ground for interfering’. In      a trial  by  jury,  that  there  has  been  a

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    misdirection is  not of  itself a  sufficient      ground  to   justify  interference  with  the      verdict. The  Court must  proceed to consider      whether the verdict is erroneous owing to the      misdirection or  whether the misdirection has      in fact  occasioned a  failure of justice. If      the Court  so  finds  then  it  has  a  plain      justification for  interfering and  indeed  a      duty to do so." The Judicial Committee also observed,           "An appeal  may be entertained only on a      question of law, but once it has been held by      the Appellate  Court that  there has  been an      error in  law it  is open to it to interfere’      with the jury’s verdict and if it thinks that      the error  in law  affords sufficient  ground      for doing so it will then proceed to consider      which of  the various forms of ’interference’      it will  adopt. Section 4,3 clearly indicates      that within its meaning a misdirection by the      Judge falls  within the  category of error in      law, for it contemplates in sub-s.(2) that an      appeal  is   competent  on   the  ground   of      misdirection. But  a misdirection having been      found to  have occurred it is not necessarily      a ground  for interference.  It may have been      of a  more or  less trivial character. But if      it has  led to  an  erroneous  verdict  being      returned or  to  a  failure  of  Justice  the      statute plainly  indicates that  a  case  for      interference  has   arisen.  What   form  the      interference shall  take is left to the Court      which is given a wide discretion. It need not      order a  retrial. It  may for  example acquit      the accused.  To order  a retrial  might well      operate  injustice   in  readily  conceivable      circumstances." 58      We ale  therefore of  the opinion  that s.423 applies to  all  appeals  before  the  High  Court whether from a trial by jury or otherwise and then the High  Court finds that the verdict of the jury is vitiated on account of someone defect of law or misdirection it  has full  power to  deal with the appeal in  the manner  specified in s. 423 and for that purpose  it  may  appraise  the  evidence  to decide what course it will follow.      But it  is contended  that where the Court of Session in  a trial  held by  jury  sentences  the accused to  suffer the  penalty of  death and  the case is  submitted to  the High Court under s. 374 of the Code of Criminal Procedure for confirmation of sentence  and the  accused also appeals against the order  of conviction  and sentence,  the  High Court is bounded  to hear and decide the appeal in the first  instance, and  if on a consideration of the appeal,  the High Court holds that the verdict was  vitiated   on  account   of  misdirection  or misunderstanding of  the law  on the  part of  the Jury, the  verdict must, be set aside and with the disappearance of  the  verdict  disappearance  the order of  sentence, and it is not open to the High Court to  confirm  the  sentence  of  death  on  a reappraisal of  the evidence.  The High  Court  is bound  in   these  cases,  says  counsel  for  the

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appellants to order retrial of the accused.      An appeal  under sub-s.  (l) of 8. 418 of the code lies on a matter of fact as well as on matter of law,  except where  the trial  is by  Jury,  in which case  the appeal  lies on  a matter  of  law only. But  that is  not the  only provision  which invests the  High Court  with jurisdiction to deal with the  case of  an accused  person when  he  is tried by  jury and  is sentenced  to suffer death. The sentence  of death  passed  by  the  Court  of session in  a reference  under 8.  374 of the code cannot be  executed unless  it be confirmed by the High Court.  Under s.  376 the  High Court dealing with a  case submitted  to it under 8. 374 (l) may confirm the sentence, or pass 59 any other  sentence   warranted by law, or (b) may annul the  conviction, and  convict the accused of any offence of which the Sessions Court might have convicted him,  or order a l new trial on the same or an  amended  charge,  or  (c)  may  acquit  the accused person.  These powers  are  manifestly  of wide  amplitude,   and  exercise  thereof  is  not restricted by the provisions of s. 4l8 (l) and 423 of the Code Of Criminal Procedure. Irrespective of whether the  accused who  is  sentenced  to  death prefers an  appeal, the  High Court  is  bound  to Consider the evidence and arrive at an independent conclusion as  to the  guilt or  innocence of  the accused and  this the  High Court  must do even if the trial  of the  accused was  held by jury. In a case  where  the  death  sentence  is  imposed  no sanctity attaches  to the verdict of the jury. The verdict is  not binding if the High Court holds on the evidence  that the  order of conviction is not warranted. Indeed,  duty is  imposed upon the High Court to satisfy itself that the conviction of the accused is justified on the evidence, and that the sentence of  death in  the  circumstances  of  the case, is the only appropriate sentence.      It has  been the uniform practice of the High Court  in   India  to   hear  the   reference  for confirmation of  sentence of  death and the appeal preferred by the accused together and to deal with tho merits  of the case against the accused in the light of all the material questions of law as well as fact  and to  adjudicate upon  the guilt of the accused and the appropriateness of the sentence of death In  this case  also, the High Court did hear the reference and the appeal together. On the view that the  verdict of  the jury  was vitiated,  the High Court  was obliged  to consider what order in the circumstances of the case was appropriate. The High Court  was not  bound  in  exercising  powers under 8. 423 to order a retrial; it could exercise any of  the powers  under 8.  423(1)(b). The  High Court had  also to  consider what  order should be passed OD  the reference  under  s.  374,  and  to decide on an appraisal of the evidence 60 whether the  order of  conviction for the offences for which the accused were convicted was justified and whether,  having regard  to the circumstances, the  sentence   of  death   was  the   appropriate sentence. High  Court is  of course competent when

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dealing with  a reference  under s. 374 to order a retrial but  the High  Court is not bound to do so in every 3 tried with jury when the verdict of the jury is  found to  be vitiated because of error of law or  misdirection. The  right, of trial by jury is  an  important  right  conferred  upon  accused persons in  the trial of certain serious offences; but under  our jurisprudence the right to trial by jury is  a creation  of statute  and the  question whether the accused in a given case having had the benefit of  a trial  by  jury  should  because  of misdirection be ordered to be retried, or his case be considered  on the  evidence by  the  appellate court, is  one of the discretion and not of right. The High Court has, in the present case, exercised this discretion  and we  see no adequate ground to interfere with the exercise of that discretion.      Learned counsel  for the  State  invited  our attention to  judgment of  this  Court  in  Bhusan Biswas v.  The State  of West Bengal (1), in which this Court  set aside  the order  passed  by  High Court directing  retrial of a case which was tried with jury,  in which the verdict was vitiated, and ordered that  the High  Court should hear the case on the  evidence. The Court in that case observed, "In the  circumstances of  this case we are of the opinion that  the  High  Court  was  in  error  in remanding the  case for  retrial; it  should  have followed the  procedure laid  down  in  the  Privy Council  case   and  should  have  gone  into  the evidence and  determined for  itself  whether  the accused were  guilty or  not." It is manifest that this Court vacated the direction of the High Court ordering retrial  in the  special circumstances of the case:  the Court  did not lay down any general rule that in every case where the verdict (1) Cr.  A.  113  of  1956,  decided  on  February 14,1957, 61 of the  jury in  a case where the accused has been convicted at a trial held with jury is found to be h vitiated the High Court must not remand the case for retrial.      Counsel for the appellants, contended that in this case  there had  been no  proper trial of the appellants  before   the  Court   of  Session  and therefore the  order of  the High  Court should he set aside  and retrial  ordered. Counsel  strongly relied upon the manner in which the examination of the accused  under 8.  342 by the court of Session was conducted  and  submitted  that  the  Sessions Judge asked  complex  questions  to  each  of  the accused relating  to several  distinct  pieces  of evidence brought  on the record. For instance, Ram Shankar asked "You have heard the evidence as well as  the   cross-examination  of   the  prosecution witnesses. They have stated that you together with your  wife  Bimala  Devi,  brother  Sudama  Singh, Ramnarayan Missir  and his  wife Depali Missir and 5/7 other  Hindusthani men  armed with  iron rods, daggers and  swords formed an unlawful assembly at No. 7  Tikiapara Road  on the  21st March, 59 with the intention  of murdering  one Rampiari  and her son Hiralal  and  that  you  intentionally  killed Rampiari and  Suraj Dubey  of 9  Madhab Ghosh Road

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with a  knife. Do you want to say anything in your defence in  connection with  this charge?" Similar questions were  also asked  of accused  Bimala and Sudama Singh. With regard to the events subsequent to the  murder of  Rampiari,  Hiralal  and  Shyama Prosad Missir  another complex question was asked. It is  urged that  the examination  of the accused held in  this manner was not in accordance with s. 342 of  the Code  of Criminal Procedure, the terms whereof  are  mandatory  and  the  Sessions  Judge having failed  to comply  therewith the accused it must be presumed were prejudiced. It was submitted in support  of this contention that if the several components  of  the  questions  which  dealt  with independent matters  on which  evidence was led by the prosecution had 62 been split  up, the  accused might have given some explanation acceptable  to the  jury. The Sessions Judge having  failed to  do so,  the trial must be regarded as vitiated.      In our  view, the  learned Sessions  judge in rolling up several distinct matters of evidence in a single  question acted  irregularly. Section 342 of the  code of  Criminal Procedure  by the  first sub-section provides, in so far as it is material: "For  the  purpose  of  enabling  the  accused  to explain  any   circumstances  appearing   in   the evidence     against      him,      the      Court ......................................       shall ............... question him generally on the case after the  witnesses for the prosecution have been examined and  before  he  is  called  on  for  his defence." Duty  is there by imposed upon the Court to question  the accused ganerally in a ease after the  witnesses   for  the  prosecution  have  been examined to  enable the  accused  to  explain  any circumstance appealing  against  him.  This  is  a necessary  corollary   of   the   presumption   of innocence on  which our  criminal jurisprudence is fonded. The  object of the section is to afford to the accused  an opportunity  of showing  that  the circumstance relied  upon by the prosecution which may be  prima facie against him, is not true or is consistent with  his  innocence.  The  opportunity must be  real and  adequate. Questions  must be so framed as  to give  to the accused clear notice of the circumstances  relied upon by the prosecution, and must  give him  an opportunity  to render such explanation as  he can of that circumstances. Each question must  he so  frilled that the accused may be able  to under  stand it and to appreciate what use  the   prosecution  desired  to  make  of  the evidence against  him. Examination  of the accused under s.  342  in  not  intended  to  be  an  idle formality, it  has  to  be  carried  out,  in  the interest of  justice and  fairplay to the accused: by a  slipshod examination  which is the result of imperfect appreciation of the evidence, 63 idleness or negligence the position of the accused cannot be  permitted to beamed mere difficult than what "it  is in a trial for an offence. This Court pointed out in Ajmer Singh State of Punjab(1) that "it  is  not  a  sufficient  compliance  with  the

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section (s.342  Code  of  Criminal  Procedure)  to generally ask  the accused  that, having heard the prosecution evidence  what he has to say about it. He  must   be  questioned  separately  about  each material circumstance which is intended to be used against him. The whole object of the section is to afford the  accused a  fair and proper opportunity of explaining  circumstances which  appear against him and  the questions  must be  fair and  must be couched in  a form which an ignorant or illiterate person may  be able to appreciate and understand." The examination  by  the  Sessions  Judge  of  the appellants perfunctory,  but as  observed in Ajmer Singh’s case,  every error  or omission  complying with s. 342 does not vitiate the trial. "Errors of this type  fall within  the  category  of  curable irregularities and  the question whether the trial has been  vitiated depended  in each case upon the degree of  error and  upon whether  prejudice  has been or  is likely  to have  been  caused  to  the accused". To  the questions  asked by  the. judge, the answers given by the appellants were either "I am innocent"  or "the  story is false". Failure on the part  of the  Sessions Judge  to split  up the questions so as to deal with each distinct feature or material piece of evidence separately, however, does not,  in the  circumstance as  of the present case, justify  an  inference  that  prejudice  was thereby caused  to the appellants. accused for the appellants has  not been  able to  suggest, having regard to  the line  of cross-examination  adopted and  the   criticism  of   the  evidence   of  the prosecution  witnesses   offered  by   him,   what explanation  besides   completo  denial   of   the prosecution  story,   the  appellants  could  have offered in answer to the questions relating to the different circumstances  and pieces or features of evidence      (1) [1953] S, C. R. 418. 64 on which  the prosecution  relied. It is true that the   prosecution   strongly   relied   upon   two circumstances against  Bimala (1)  that  when  she came out  of the  house of  Ramdeo Ahir, she had a blood-stained knife  in her hand and (2) that when she was  arrested from  the godown of Bhola Singh; the knife  was in  her hand.  To these  matters of evidence attention  of the accused Bimala does not appear to  have been invited. Similarly. attention of Ram  Shankar to  the evidence that when he came out of  the room of Ramdeo Ahir, he had a knife in his hand  was not  invited. But  we  have  already observed,  beyond   a  bare  denial,  the  learned counsel was  unable to  suggest any  other  answer which the  accused could  give to  these pieces of evidence even if they had been specifically put to them. It  is also to be noticed that the plea that the appellants  had  not  been  properly  examined under 8. 342 of the Code of Criminal Procedure was not raised  before the  High Court: at least there is no  reference in the judgment of the High Court to any  such argument.  Failure to comply with the provisions of  s. 342  an irregularity; and unless injustice is  shown to  have resulted  therefrom a mere irregularity  is by  itself not sufficient to

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justify an  older of  retrial. The appellate court must always  consider whether by reason of failure to comply  with a procedural provision, which does not affect  the jurisdiction  of  the  court,  the accused have  been materially  prejudiced. In  the present case, we are of the view, having regard to the circumstances,  that the  appellants have  not been prejudiced,  because of  failure  to  examine them strictly  in compliance of the terms of s 342 of the  Code and  that view is strengthened by the fact that  the plea  was not  raised in  the  High Court by  their counsel  who had  otherwise raised numerous question  in support  of the  case of the appellants.      Rampiari,  her  son  Hiralal,  Shyama  Prosad Missir and Surajnath Dubey received fatal injuries shortly after 9 P.M. On the night of March 21, 65 1959. Rampiari  had  on  her  person  two  incised injuries on the left side of chest cutting through the Ra  ribs. Hiralal  had  six  injuries  on  his chest, abdomen  and arms-four incised injuries and two punctured. Shyama Prosad Missir had one injury on  the   chest  piercing   the  thoracic  cavity. Surajnath Dubey  had injury  in the abdomen. These injuries were  in the  ordinary course  of  nature sufficient to  cause death. The appellants contend that they were not responsible for the injuries to these victims.      We were  taken through  the  entire  evidence which  is  material  to  the  case  of  the  three appellants  by   the  learned   counsel  for   the appellants. In  respect of the first incident when took place  in the  morning of  the  fateful  day, there is  the evidence  of Jadunandan Rao which is corroborated by  the statement  contained  in  the First Information Report, and also corroborated by the statement  of Ramdeo -husband of Rampiari. The second incident,  took place  at about 7 P. M. The witnesses in  connection with  that  incident  are Jadunandan Roy,  B. P.Singh and Jangli Bahadur. It appears from  the evidence of these witnesses that the parties  Rampiari and  Hiralal on the one hand and Ram  Shankar, his wife Bimala Devi, Ramnarayan Missir and  his  wife  Depali  on  the  other-were quarrelling and  were pacified  and  Rampiari  and Hiralal were  persuaded to  go back  to their room and bolt  it  from  inside.  The  High  Court  has believed  the   evidence  relating  to  these  two incidents and  we see  no reason for not accepting it. The third incident consists of three phases (i ) assault  upon  the  room  of  Ramdeo  Ahir,  the breaking open  of the  door and attack on Rampiari and Hiralal  resulting in their death; (2) assault on Shyama  Prosad Missir  by Sudama  Singh and (3) assault on Surajnath Dubey. The evidence discloses that the  common courtyard  between 7 Madhab Ghosh Road and  7 Iikiapara Road was lit up by the light of an  electric lamp  in  the  house  of  Joy  Lal Choudhury, two of the 66 windows of  the first  floor being  open. There is also the  evidence that  in the  room of Ramdeo on the occasion  in question  a kerosene  lantern was burning. It is so recited in the First Information

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Report and  the kerosene  lantern was  seen by the Sub-Inspector of  Police when  he arrived  on  the scene  of   offence.  It   cannot   be   disputed, therefore, that  the scene  of offence  was  fully lighted  at  the  time  of  the  assault  and  the witnesses could identify the assailants. About the assault upon the room of Ramdeo Ahir and the entry of appellants Ram Shankar and his wife Bimala Devi into the  house after  the door was broken open by Sudama Singh,  there is the evidence of as many as six eye  witnesses-they are  Jadunandan  Roy,  Ram Chandra Goala, Tribeni Jadab, Sukdeo Majhi, Hosila Jadab and  Sundar  Jadab.  Thc  First  Information Report  lodged  by  Jadunandan  Roy  substantially gives the  same story.  Jabunandan Roy has deposed to the  entire story  of the  breaking open of the doer by  Sudama Singh and the entry by Ram Shankar and Bimala  into the room, the shrieks of Rampiari and Hiralal  and  about  Ram  Shankar  and  Bimala coming out of the room after stabbing Rampiari and Hiralal. Ram  Chandra Goala  stated that  when  he came near the house of Ramdeo he found Ram Shankar and Bimala  coming out  of the room with knives in their hands.  Tribeni Jadab  stated  that  he  saw Sudama Singh breaking open the door of Ramdeo Ahir with an  iron rod, that thereafter Ram Shankar and Bimala entered  the room  each carrying  a  knife, that is  heard shrieks of Rampiari and Hiralal and that after  some time  Ram Shankar and Bimala came out of  the room  with knives. Sukdeo Majhi stated that he  saw Ram  Shanknr and Bimala coming out of Ramdeo’s room with knives in their hands. There is also the  evidence of Hosila Jadab who stated that he saw  Ram  Shankar  and  Bimala  coming  out  of Ramdeo’s room  with blood-stained  knives.  Sundar Jadab  has   stated  that   when  he  reached  the courtyard he found Sudama Singh 67 breaking open  the door  of Ramdeo’s room with all iron rod  and thereafter  Ram Shankar and his wife getting into  the room with knives in their hands, and he  heard Hiralal  and his mother shouting for some  time.   The  High  Court  has  accepted  the testimony of  these witnesses.  It  is  true  that Jadunandan Roy  stated that,  he saw  through  the open door  of the  room of.  Ramdeo Ahir, after it was broken open, Ram Shankar stabbing Rampiari and Bimala  stabbing   Hiralal  and   the  High  Court regarded  this   part   of   the   story   as   an embellishment which  must be  discarded. The  mere fact that  the witness Jadunandan Roy had improved his story  will not  by itself  be  sufficient  to disregard his testimony in its entirety.      About the  assault on  Shyama Prosad  Missir, when he  tried to  intervene,there is the evidence of Jadunandan  Roy, Tribeni  Jadab, Sukdeo  Majhi, Hosila Jadab  and  Sundar  Jadab.  Each  of  these witnesses has  deposed that  Shyama Prosad  Missir who intervened  was stabbed by Sudama Singh in the abdomen. About  the assault  on Suraj Dubey by Ram Shankar, there  is the evidence of Jadunandan Roy, Tribeni Jadab and Hosila Jadab.      In the  cross-examination of  these witnesses for the  production, it  was suggested  that there was a  free fight  between some "Hindusthanis" and

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"goalas", in the course of which injuries may have been suffered  by Rampiari, Hiralal, Shyama Prosad Missir and  Suraj Dubey.  But Rampiari and her son Hiralal were  found dead  in their  own room:  the dead bodies  were lying  of a  cot.  The  body  of Shyama Prosad  Missir  was  lying  with  a  single injury  at  the  gate  of  7  Tikiapara  Road  and Surajnath Dubev was stabbed a short distance away. There  is  no  evidence  of  any  serious  injuriy suffered by  any other  person. If there had bee a free fight,  some injuries to participants on both the sides  may reasonably  be expected. It is true that according  to  the  prosecution  besides  the accused there were 68 present 5  or 7  Hindusthani men,  who  were  also armed. There  is no evidence, however, that any of these Hindusthanis  took any  active part  in  the assault on  Rampiari, Hiralal,  Shyama Prosad  and Surajnath. The  Hindusthanis were  not  identified and have  never  been  traced;  but  there  is  no evidence that  they participated  in the  assault. The story  of a free fight, between the goalas and the Hindusthani men has been discarded by the High Court and, in our judgment, properly.      Certain matters  of general  criticism of the evidence were  also urged  by the  learned counsel for the  appellants. He contended that no reliance should be  placed on  the contents  of  the  First Information because  it showed  inherent  evidence that it  must have been fabricated some time after the investigating  officer commenced investigation and in  support of  that contention  reliance  was placed upon  the fact  that  even  though  it  was alleged to  have been  despatched on  the night of March 21,  1959 from the police station, a copy of the First  information reached  the Sub-Divisional Magistrate Howrah  on March  26, 1959. Section l57 of the  Code of  Criminal Procedure enjoins that a copy of  the  First  Information  Report  be  sent forthwith to  the Magistrate  having jurisdiction. It is  also  true  that  the  copy  of  the  First Information  Report   passed  through   the  Court Inspector’s office  on March  25, 1959 and reached the Sub-Divisional  Magistrate on  March 26, 1959. The  Sub-Inspector  of  Police  in-charge  of  the investigation stated in his cross-examination that he could  not explain  why the  copy did not reach the Sub-Divisional  Magistrate  before  March  26, 1961. If,  however, it  was the case that the copy was not  despatched from  his office  at the  time when it  was claimed  it was  despatched,  further cross-examination should  have been  directed, the mere endorsement  of 26th  March, 1959 as the date on which  the First  Information reached  the Sub- Divisional Magistrate is not 69 in itself sufficient to disregard a mass of direct evidence.      It was  then urged that the story that Bimala was carrying  a knife  even when  she was arrested was  on   the  ground   of   utter   improbability unreliable. It  was urged that the normal reaction of an  assailant running  away from  the scene  of offence to  escape arrest  would be  to throw away

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the weapon  of offence. But this argument based on mere improbability would not be sufficient body of disinterested testimony  about the  knife being in her hand when she was arrested.      It was  also  submitted  that  the  story  of Jadunandan Roy  that he  caught Sudama Singh after the latter  had stabbed  Shyama Prosad  Missir  is untrue. It was urged that if Sudama Singh, who was armed with  a knife was over powered by Jadunandan Roy, the story that Sudama Singh ran away with the other assailants could not be true. But Jadunandan in his  evidence has  deposed that  when he caught Sudama  Singh  he  was  assaulted  by  others  who accompanied Sudama  Singh and  was struck  on  his head and  on other  parts of body with a rod. This story is  corroborated  by  the  medical  evidence about injuries on the person of Jadunandan Roy      Learned counsel  for the  appellants strongly relied upon  the fact  that even  though  a  large majority of  the prosecution  witnesses  who  came near 7  Tikiapara Road  deposed to the presence of Ramnarayan Missir  and his wife Depali and further deposed that  Ramnarayan Missir had a sword in his hand, the  Sessions Judge acquitted Depali and the High Court  acquitted Ramnarayan. It is urged that if the testimony of these witnesses who deposed to the presence  of Depali  and Ramnarayan  Missir is found to  be untrue,  the Court  should scrutinize the evidence of the other witnesses witnesses with care  and  having  regard  to  the  unsatisfactory features disclosed  in the  cross-examination, the rest of the evidence should also be discarded. But it was not the evi- 70 dence of  any of the witnesses for the prosecution that Depali  had taken  part in  the assault.  Her presence with  a rod  in her hand is deposed to by the witnesses  ut it  is not  alleged that she had taken  any   part  in  the  assault  on  any  one. Similarly,  though   there   was   evidence   that Ramnarayan Missir  was present  carrying a  sword, yet the  High Court  on  a  consideration  of  the evidence  came  to  the  conclusion  that  in  the absence of  reliable evidence that he participated in the  assault near  7 Tikiapara  Road  the  case against him  was not proved. We do not think; that because the  High  Court  held  the  case  against Ramnarayan as  not  established,  the  prosecution evidence in its entirety may be disregarded.      On a review of the evidence, we hold that the First Information  about  the  commission  of  the offence  was   given  immediately:  in  the  First Information the  names of the three appellants and the part played by them was set out in detail. The police officer  who arrived  on the  scene shortly after the incident found the door of Ramdeo Ahir’s room broken  and blood marks were found at various places in  Ramdeo Ahir’s  room as  well as  in the courtyard. Many of the witnesses who supported the case  for   tho  State   wore  disinterested   and independent. No  injuries were found on any of the party of  the accused which could be attributed to a fight  between their  party men  and the goalas. Having regard  to these  circumstances, we  are of tho view  that the High Court was right in holding

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that the prosecution story was true.      Counsel for the appellants submitted that, in any event,  against Sudama  Singh the evidence was not strong  enough to  warrant his  conviction. It was contended  that Sudama  Singh resides  not  in Madhab Ghosh  Road but  in the  godown in which he was arrested.  It is  also urged that no extensive blood marks  were found  on his  clothes  and  the knife alleged  to have  been used  by him  is  not found. In our opinion, there is a mass of reliable evidence 71 against  Sudama   Singh  which   establishes   his presence at  the scene of the offence and the part played by  him. There is the evidence of five eye- witnesses to  which we  have already referred. His presence at  the  scene  is  corroborated  by  the testimony of  Basanta Prosad  Singh who  had heard Depali  shouting   shortly  before   the   assault commenced that  Sudama  Singh  had  arrived.  Then there is  the evidence  of Jiban  Prosad Sett  who deposed that  he ad  on the night in question Then Ram Shankar,  Sudama Singh,  Bimala and Ramnarayan Missir, all  coming from Madhab Ghosh Road towards Tikiapara Road  and that  he had seen Sudama Singh with a  knife. Sewdhari  Sharma stated that he had been Sudama Singh and 3 or 4 other persons running away from the scene of offence and at that time he had a knife in his right hand. Subinspector Deepak Das stated  that he had arrested Sudama Singh near the godown.  Sub-Inspector Z.  Haque attached  the dhoti from  the person  of Sudama  Singh and  that dhoti was  sent to  the  Chemical  Analyses  an  I Serologist. According to the Chemical Analyses the dhoti, bore  blood marks.  In the seizure list the dhoti is described as having "slight" blood stains and the  Assistant Serologist  reported  that  the blood on  the dhoti, was so disinterested that its origin could  not be  determined. The testimony of Jadunandan Roy, Tribeni Jadab, Sunder Jadab, Jiban Prosad   Sett,   and   Sukdeo   Majhi   abundantly establishes the  presence of  Sudama Singh  at the scene of  the offence  and the part played by him. He is  also seen  running away  from the  scene of offence. The  knife carried  by him  is not found: blood marks found on his dhoti are also not proved to be  human in  origin, but, having regard to the evidence  of  the  eye-witnesses,  which  is  both independent and disinterested, we see no reason to disagree with  the view  of the  High  Court  that Sudama Singh  was present  at the scene of offence and he  broke open the door of Ramdeo Ahir’s house to facilitate the entry of Ram Shankar and 72 Bimala to  murder Rampiari and Hiralal and that he stabbed Shyama Prosad Missir with  a knife.      Ram Shankar  and Bimala forceably entered the house of  Ramdeo  Ahir  and  killed  Rampiari  and Hiralal. Ram Shankar also stabbed Suraj Dubey when he  attempted  to  protest  against  his  conduct. Sudama Singh,  besides breaking  open the  door of Rmdeo Ahirs  room to  facilitate the  entry by Ram Shankar and  Bimla stabbed  Shyama  Prosad  Missir when the  latter tried  to intervene.  The assault upon the  members of  the family of Rmdeo Ahir was

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conceived and  initiated  with  deliberation,  and with the  object  of  slaughtering  a  defenceless woman and  her young  son.  Innocent  persons  who intervened were  mercilessly stabbed  and  killed. There is  no ground,  therefore,  for  disagreeing with the  High Court  that this is pre-eminently a case in  which death sentence should be imposed on the three appellants.      On the view taken by us this appeal fails and is dismissed.                                  Appeal dismissed.