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PETITIONER: AJMER SINGH

       Vs.

RESPONDENT: THE STATE OF PUNJAB.

DATE OF JUDGMENT: 10/12/1952

BENCH: MAHAJAN, MEHR CHAND BENCH: MAHAJAN, MEHR CHAND DAS, SUDHI RANJAN BHAGWATI, NATWARLAL H.

CITATION:  1953 AIR   76            1953 SCR  418  CITATOR INFO :  F          1956 SC 217  (1)  R          1956 SC 425  (5)  R          1957 SC 216  (12)  R          1957 SC 589  (16)  RF         1961 SC 715  (7)  RF         1962 SC 439  (8)  E          1962 SC1239  (14)  RF         1963 SC 200  (17)  RF         1973 SC2622  (7)  R          1974 SC 606  (6)

ACT: Criminal Procedure Code, 1898, ss. 342, 417-Appeal  against acquittal-Interference-Guiding principle-Criminal  trial-Ex- amination  of accused-Duty of  Court-Irregular  examination- Validity of trial-Question of prejudice.

HEADNOTE: After an order of acquittal has been made the presumption of innocence  is  further reinforced by that  order,  and  that being  so,  the trial court’s decision  cannot  be  reversed merely on the ground that the accused had failed to  explain the  circumstances appearing against him but only  for  very substantial and compelling reasons. In an appeal under s. 487, Criminal Procedure Code, the High Court  has full power to review the evidence upon which  the order of acquittal was founded. The  duty  of a Sessions Judge under s. 342,  Criminal  Pro- cedure  Code,  to examine the accused is not  discharged  by merely reading over the questions put to the accused in  the Magistrate’s  Court  and  his answers,  and  by  asking  him whether he has to say anything about them.  It is also not a sufficient compliance with the section to generally ask  the accused t hat, 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                             419 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

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an  ignorant or illiterate person may be able to  appreciate and understand. It  is, however, well settled that every error  or  omission complying  with  s.  342 does not  necessarily  vitiate  the trial.   Errors  of this type fall within  the  category  of curable  irregularities and the question whether  the  trial has  been vitiated depends in each case upon the  degree  of error  and upon whether prejudice has been or is  likely  to have been caused to the accused. Tara Singh v. The State ([1951] S.C.,R. 729) referred to.

JUDGMENT: CRIMINAL APPELLATE.JURISDICTION: Criminal Appeal No . 67  of 1952.   Appeal by special leave from the Judgment and  Order dated  the  14th  September,  1951, of  the  High  Court  of Judicature  for the State of Punjab at Simla  (Bhandari  and Soni JJ.) in Criminal Appeal No. 361 of 1950, arising out of Judgment and Order dated the 13th May, 1960, of the Court of the Sessions Judge, Ferozepore, in Trial No. 28 of 1950  and Case No. 5 of 1950. P. S. Safeer for the appellant. Gopal Singh for the respondent. 1952.  December 10.  The Judgment of the Court was delivered by MAHAJAN J.-Ajmer Singh, a young man of about 22 years of age was tried for the murder of Bagher Singh, his first  cousin, and was acquitted by the Sessions Judge of Ferozepore by his judgment  dated  13th  May, 1950.  On appeal  by  the  State Government, the order of acquittal was set aside by the High Court  and  the appellant was convicted under  section  304, Indian  Penal  Code, and sentenced to  ten  years’  rigorous imprisonment.   This is an appeal by special  leave  against that decision. One Nikka Singh had three sons, Bhagwan Singh, Lal Singh and Sunder  Singh.  Bhagwan Singh died issueless some years  ago and disputes arose between Lal Singh and his brother  Sundar Singh  in regard to the division of the property of  Bhagwan Singh.  Sunder Singh was in possession of some of his landed 420 properties  and  Lal  Singh obtained  a  number  of  decrees against him but Sunder Singh declined to restore  possession of the properties to his brother Lal Singh.  In view of this litigation the relations between Lal Singh and Sunder  Singh were considerably strained and it is said that for some time they were not even on speaking terms.  Lal Singh is  married to  Mst.   Dhan Kaur and from her he had two sons.   One  of them  Bagher Singh was murdered and the other, Arjan  Singh, is  P. W. 5. Accused Ajmer Singh is the son of Sunder  Singh and Banta Singh is his real brother.  Ajmer Singh is married to Jagir Kaur and Banta Singh to Kartar Kaur.  It is alleged by the prosecution that on the evening of the 27th  January, 1948,  Jagir  Kaur complained to her fatherin-law  that  her husband  had  pawned her ear-rings in order to pay  off  his gambling  debts.   On the morning of the  28th  Banta  Singh inquired  from Ajmer Singh about this matter and he  replied that he had pawned the ear-rings to one Banta Singh  Mazhbi. Soon after this Ajmer Singh, Banta Singh and one Teja  Singh went to Banta Singh Mazhbi and asked him to return the  ear- rings  but  the latter replied that no  ornaments  had  been pawned with him and added that he would give a sum of Rs. 30 to  them if Ajmer Singh took an oath that the ornaments  had in  fact been left with him.  It is said that Lal Singh  was also  present when this conversation took place and took  up

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cudgels  on behalf of Banta Singh Mazhbi and this led to  an exchange  of  hot words between Lal Singh and the  party  of Sunder Singh’s two sons and their companion Teja Singh.  The parties,  however, dispersed after exchanging hot words  but without coming to blows.   At  about sunset the same day Lal Singh and  his  brother Sunder   Singh  started  abusing  each  other   from   their respective  houses which open out into  a  common.courtyard. This  wordy warfare between the two brothers  attracted  the attention of Arjan Singh, Bagher Singh and one Ujagar  Singh Mazhbi  who  on bearing the noise came to the house  of  Lal Singh.                            421 Lal  Singh finding himself supported by three  others  threw out a challenge to Sunder Singh and told him to come out  in the open.  It is said that Sunder Singh, his two, sons Banta Singh  and Ajmer Singh, and Teja Singh, a cousin of  theirs, accepted  the challenge and rushed out of the  house.   Teja Singh  and Banta Singh were armed with spears and they  made an attack on Lal Singh and Dhan Kaur and inflicted on  their persons a number of injuries.  Ajmer Singh, it is said,  was armed with a spear and he plunged his weapon into the  chest of   Bagher   Singh   who   collapsed   and   died    almost instantaneously.   Arjan  Singh  soon  after  reported  this incident  at the police station after travelling a  distance of  about seven miles at 11-45 p. m. He gave to  the  police substantially  the same  version as has now been deposed  to by him in the witness box.  In this report it was stated  by Arjan Singh that it was Ajmer Singh who dealt Bagher Singh a barchha blow on his chest and that Bagher Singh fell down at this blow.  The police arrested Sunder Singh, Teja Singh and Banta Singh but the appellant could not be found. Sunder  Singh,  Teja Singh and Banta Singh  were  prosecuted under  section 302/34 but were convicted under section  324, Indian Penal Code, Banta Singh and Teja Singh were sentenced to two years’ rigorous imprisonment each and Sunder Singh to six months’ rigorous imprisonment.  On appeal, Sunder  Singh was  acquitted and the sentences imposed on Banta Singh  and Teja  Singh  were reduced.  A lenient view’  of  the  affair seems  to  have been taken because the fight  between  these near  collaterals  took place suddenly and  ended  promptly. Bagher  Singh died as a result of one blow and  injuries  on the person of Lal Singh and Dhan Kaur were not very  serious Ajmer  Singh was apprehended on 4th December, 1948,  and  as above  stated,  was tried by the learned Sessions  Judge  of Ferozepore  and  acquitted, but was convicted  by  the  High Court on appeal by the State Government. 422 Lal  Singh, P. W. 3, father of the deceased, Dhan Kuar,  his mother, and Arjan Singh,his real brother, have given  direct evidence  about the occurrence.  Ujagar Singh  Mazhbi  whose name  is  mentioned  in the  first  information  report  was tendered  for cross-examination but no question was  put  to him about the actual fight, and the manner in which it  took place or the part that was taken in it by the accused.   One Bishandas,  whose  shop  adjoins the  shop  of  Banta  Singh Mazhbi,  was  tendered for cross-examination  as  P.W.7.  He deposed that Banta Singh Mazhbi and Lal Singh were the  only persons when the quarrel about ear-rings took place near his shop.  In reexamination he stated that Banta Singh,  brother of the accused, and Teja Singh had come on one side and  Lal Singh on the other when the quarrel about the ear-rings took place.  No direct question was put to the witness about  the presence  of,  Ajmer Singh on that  occasion.   The  learned Sessions  Judge considered him a wholly independent  witness

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and accepted his evidence about the incident that took place at Banta Singh Mazhbi’s shop on the morning of the 28th.  He held  that  Ajmer  Singh  was not  present  at  Banta  Singh Mazhbi’s shop and that Lal Singh and Arjan Singh had falsely implicated  him in the quarrel over the ear-rings, and  that if the witnesses could falsely involve him in regard to  one part  of  the  occurrence,  the  possibility  of  his  being implicated for the murder of Bagher Singh merely as a matter of  vindictiveness could not be outruled.   After  examining the  evidence  of  the three eye-witnesses  in  detail,  the learned Sessions Judge reached the conclusion that they  had suppressed  the facts in order to absolve themselves of  all liability  for the happenings of the 28th, and  had  uttered untruths  and that no confidence could be reposed  in  their statements  about the part that they had assigned  to  Ajmer Singh.   In the concluding part of the judgment he  observed that  " the parties were at logger-heads on  several  issues and  in the absence of independent evidence it is  difficult to place reliance on the prosecution story                            423 in  regard  to  Ajmer  Singh." The  High  -Court  on  appeal minutely  reviewed the evidence of these three eye-witnesses and  considered  that the variations in  the  statements  of witnesses made at-, the two trials and which had weighed on- the mind of the Sessions Judge were of a minor and  trifling character  and were quite natural as the Statements at  this trial had been made 27 months after the occurrence and  that the narration of events by Arjan Singh was substantially the same  as had been given by him at the earlier trial  and  in the first information report.  As regards Lal Singh, who had resiled  from his earlier statement and bad denied  that  he was armed with a phaura or that Arjan Singh wag armed with a lathi, it was said that this omission on his part was due to mere  lapse  of memory and forgetfulness rather  than  to  a deliberate design to improve- upon the prosecution story. It  was argued by Mr. Pritam Singh Safeer that in this  case there were no compelling reasons for setting aside the order of  acquittal and that due proper weight had not been  given by  the  High  Court to the opinion of the  trial  judge  as regards  the credibility of witnesses seen and  examined  by him.  The learned counsel submitted that the High Court  was in error in the view that "when a strong prima facie case is made out against an accused person it is his duty to explain the circumstances appearing in evidence against him and‘  he cannot take shelter behind’ the presumption of innocence and cannot  state  that the law entitles him to  keep  his  lips sealed." We think this criticism is well founded.  After  an order  of acquittal has been made the presumption  of  inno- cence  is further reinforced by that order, and  that  being so,  the trial court’s decision can be reversed not  on  the ground   that  the  accused  had  failed  to   explain   the circumstances  appearing  against  him but  only  for  ,very substantial and compelling reasons.  As  the courts below expressed divergent opinions  on  the credibility of the prosecution witnesses, we 35 424 had to read the evidence adduced in the case with great care and  after doing so, we are on the whole inclined  to  agree with the view expressed by the High Court.  It is  difficult to  believe that without there being any truth in  the  fact that the appellant struck Bagher Singh with a barchha, Arjan Singh  selected the appellant and ascribed to him that  part soon   after   the  occurrence.   There  are   no   material discrepancies  in  the  statements made by  Arjan  Singh  on

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different occasions and in our view the reasons given by the learned  Sessions Judge for rejecting his testimony are  not convincing.  We agree with the High Court that there are  no sufficient reasons for distrusting his evidence.  The number of  persons who took part in the quarrel was not  more  than seven  or  eight and the blows inflicted were  few,  and  in these  circumstances Arjan Singh could have made no  mistake as  to  the identity of the person who struck  Bagher  Singh fatally.  This part of -his statement is corroborated by the evidence  of Lal Singh and Dhan Kaur.  No  cross-examination was  directed,  against this part of their  statements.   It seems that the learned Sessions Judge took too exaggerated a view of the minor discrepancies in these statements and read them  with  a rather hypercritical mind.   Bishandas,  whose statement considerably impressed him, was only tendered  for cross-examination and never made a full statement about  the happenings  of the 28th morning.  The statement made by  him is  somewhat cryptic and from this it cannot  be  definitely concluded that Ajmer Singh was not present on the morning of the  28th  at the shop of Banta Singh Mazhbi.   The  learned Sessions  Judge was not right in rejecting the whole of  the prosecution  evidence as unreliable merely on the  basis  of this  cryptic statement.  Ujagar Singh, the other  so-called independent witness, was tendered for cross-examination  but the  defence  did not ask him a single  question  about  the happenings  of  the 28th.  The argument therefore  that  the prosecution  withheld from court independent  witnesses  who had witnessed the occurrence is without any substance.   The learned Sessions Judge                            425 was apparently labouring under some misapprehension when  he said  that  the  prosecution had  withheld  from  the  court independent witnesses of the occurrence.  Apart from  Ujagar Singh Mazhbi, no one else appears to have been present  when the  attack  was made on Bagher Singh, Lal  Singh  and  Mst. Dhan Kaur by the party of the accused.  All that appears  in evidence  is  that  after the fight was  over  a  number  of persons arrived on the scene but as they did not witness the attack  on Bagher Singh they could give no evidence on  this point and their non-production as witnesses cannot have  any consequence on the case.  It is significant that the defence also led no evidence to prove that the fight took place in a manner  different from the one described by the  prosecution witnesses,  or  that  Ajmer Singh was  not  present  on  the occasion.   In -an appeal under section 417 of the  Code  of Criminal  Procedure the High Court had full power to  review the  evidence upon which the order of acquittal was  founded and we are satisfied that it did not in any way exercise  it wrongly The injuries on the person of Kartar Kaur and  under Singh were not proved to have been inflicted at the time  of the occurrence and were of no consequence.  The  prosecution was under no obligation to explain how they came about. It was next argued that the trial held by the Sessions Judge was vitiated as the examination of the appellant was not  in accordance  with  the provisions of  section  342,  Criminal Procedure  Code.  There is considerable force in  the  point that the examination of the appellant by the Sessions  Judge was detective.  All that the Sessions Judge did was, that he read  out  the examination of the accused in  the  committal court  to him and then recorded the following questions  and answers:- "  Q:  Did  you make before the  Committing  Magistrate  the statement that has-just now been read out to you ? A: Yes. 426

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Q:Now  that  you  have heard  the  entire  evidence  against yourself  and the charge has been explained to you,  do  you wish to say anything else ? A:   I am innocent. Q:   Do you wish to produce any evidence indefence ? A:   No." In the committal court the ’questions put to the accused and his answers were these :- "  Q:  Did you pawn the, ear-ring of your  wife  with  Banta Mazhbi  and squander the proceeds on or about 28th  January, 1948 ? A:   No. Q : Did Lal Singh interfere when you were demanding the ear- rings  from  said  Banta Singh on  28th  January,  1948,  at Nathuwala  and  remark that the sweeper,  i.e.,  Banta,  was speaking truth when he denied the transaction ? A:   No. Q:   Did you on 28th January , 1948, at Nathuwala along with your  father Sunder Singh, Banta Singh, and Teja Singh,  you Banta  Singh and Teja Singh being armed with spears,  attack Lal  Singh,  his ’son Bagher Singh and Dhan  Kaur  at  their house and in furtherance of the common intention of you all, Banta  and  Teja caused simple injuries to  Lal  Singh  with spears and you caused fatal injuries with a spear to  Bagher Singh deceased? A    No. Q    Why this case against you ? A    Due to enmity. Q    Anything else to say? A     No." The  Sessions  Judge  did  not even take  care  to  ask  the accused  the routine question whether the statement made  by him in the committal court was correct.  As if bard  pressed for  time,  be  simply asked him whether he  had  made  that statement  read out to him in the committal court,  and  was satisfied with an                            427 answer, in the affirmative.  The, second question asked,  is of   a  general  character  and.’  does  not   satisfy   the requirements  of section 342, Criminal Procedure  Code.   We are of the opinion that when the Sessions Judge is  required by that section to make the examination of the .accused, his duty is not discharged by merely reading over the  questions and answers to the accused put in the committing magistrates court and by asking him whether he has to say anything about them.  It is not, sufficient compliance with the section  to generally ask the accused that having heard the  prosecution evidence, what he has to say about it.  The accused must be, questioned separately about each material circumstance which is  intended to be used against him.  It was pointed out  by this  Court  in Tara Singh v. The State(1)  that  the  whole object  of the section, is to afford the accused a fair  and proper opportunity of explaining circumstances which  appear against him and that the questions must be fair and must  be couched  in  a form which an ignorant or  illiterate  person will be able to appreciate and understand. In this particular case at one stage of the argument we were inclined  to order a retrial of the accused in view  of  the defective examination of the accused  by the Sessions  Judge but  on further thought we have reached the conclusion  that the  ’High  Court was right in the view that  the  defective procedure followed by the Sessions Judge in this respect has not  occasioned any prejudice to the accused.  The facts  of the  case  are free from any complication and the  point  in issue  was a simple one and it cannot be said that the  per-

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functory  examination of the appellant did any damage.   The only point appearing in the evidence against the accused was that he gave a barchha blow to Bagher Singh.  The  witnesses had stated that fact in his face and had been cross-examined on the point by his counsel.  He was fully apprised of  the- part  ascribed  to him in the quarrel.  His answer  to  this specific  question  in the committal court was that  he  was innocent and that he was being implicated owing to (1)  [1951] S.C.R. 729. 428 enmity.   He  stuck to that reply in the  Court  of  Session after  fully  understanding what he was asked.  It  is  well settled that every error or omission not in compliance  with the provisions of section 342 does not necessarily vitiate a trial.   Errors  of this type fall within  the  category  of curable  irregularities,  and,  as  held  in  Tara   Singh’s case(1),  the  question, whether the trial is  vitiated,  in each  case  depends upon the degree of the  error  and  upon whether prejudice has been or is likely to have been  caused to the accused.  We are of the opinion that the disregard of the  provisions of section 342 in this case is not so  gross as would justify our quashing the conviction and ordering  a retrial. The result is that we uphold the judgment of the High  Court and dismiss the appeal.    Appeal dismissed. Agent for the appellant: B. S. Gheba. Agent for the respondent: G. H. Rajadhyaksha.