REPORTABLE IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.                OF 2008 (Arising out of S.L.P. (Crl.) No. 881 of 2007)

Lattu Mahto & Anr. … Appellants

Vs.

The State of Bihar               …Respondent (now Jharkhand)

JUDGMENT

Dr. ARIJIT PASAYAT, J.

1. Leave granted.

2. Challenge in this appeal is to the judgment of a Division

Bench of  the  Jharkhand  High  Court  dismissing  the  appeal

filed by the appellant.  Three appeals were filed by ten accused

persons.  In  all  there  were  11  accused  persons  who  were

convicted.   Appellants  Latu Mahto and Nanu Chand Mahto

along with one Khiru Mahto had filed Criminal Appeal No.384

of 2000 (R).  Five others had filed Criminal Appeal No. 362 of

2000 (R).  They were convicted for offences punishable under

Section 302 read with Section 149 of the Indian Penal Code,

1860 (in short the ‘IPC’).  Two others had filed Criminal Appeal

No.  411  of  2000(R)  and  they  were  found  guilty  of  offence

punishable under Section 302/34 and 302/149 IPC.

3. Prosecution version as unfolded during trial is as follows:

Informant Phulchand Mahto was planting sweet potato

alongwith  Buddhu  Mahto  (hereinafter  referred  to  as

‘deceased’)  in the morning of 17.7.1987 in the field situated

near their  house in village Taranari, Tola-Beharatand, when

appellants Kartik Mahto, Sukar Mahto and Bhim Mahto came

there  with  bullock  to  plough  and  tried  to  plough  the  field

belonging to them.  This was protested to and they were forced

to retreat by the informant side.  However, within a short time,

all  the above named accused persons along with appellants

Beni Mahto, Manjhi Mahto, Nunuchandra Mahto, Latu Mahto,

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Koyla  Mahto,  Khiru  Mahto,  Mahru  Thakur  returned  armed

variously with Bhakuwa, farsa, sword, lathi, bows and arrows.

According  to  the  informant,  appellant  Beni  Mahto  was

carrying  Bhakuwa,  appellant  Kartik  was  carrying  sword,

appellant  Koyal  Mahto  was  carrying Farsa,  appellant  Khiru

Mahto  was  carrying  Ballam,  appellant  Sukar  Mahto  was

carrying bow and arrows, appellant Nunuchand was carrying

Tangri, and appellant Bhim Mahto was carrying Bhakuwa and

others were carrying lathi.

According  to  informant  Phulchand  Mahto  (PW4),

deceased was given Bhakuwa blow by appellant Beni Mahto

on his neck after which he fell down.  Thereafter, Kartik Mahto

started  giving  sword  blows  on  his  father  causing  various

injuries  on his  body.   It  is  further  asserted  that  when  the

informant and his uncle Bhola Mahto tried to intervene, they

were  also  assaulted.   Appellants  further  assaulted  Sanjhwa

Devi  and one  Lakhan Mahto,  who were  ploughing  the  field

nearby.   During  this  incident,  appellant  Sukar  Mahto  was

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shooting arrows. The informant and other injured witnesses

raised alarms on which the villagers arrived there and saw the

occurrence.  The appellants thereafter fled away.  The reason

behind  this  incident  was  said  to  be  dispute  regarding

Gairmajarua land which was possessed by the informant since

long. The father of the informant, Budhu Mahto died on the

spot.

The  matter  was  reported  to  Nawadih  Police,  which

arrived  at  the  spot  in  presence  of  witnesses  and  started

investigation.  The police prepared inquest report of the dead

body of Budhu Mahto and seized bloodstained Bhakuwa, soil

and seven arrows from the spot in presence of witnesses. On

the basis of the fardbeyan, Nawadih P.S. Case No.38 of 1987

was registered under Sections 147,148,149,323,324,307,302

and 447 IPC.  The police completed investigation and finally

submitted charge sheet against eleven accused persons who

were  charged  under  Sections  326,147,148,447and  302/149

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IPC  to  which  they  pleaded  not  guilty.   They  were  further

charged under Section 302/34 IPC.

The main defence taken by the appellants was false of

implication.  They also claimed that they were ploughing the

land in question since long. However, the learned trial court

after  examining  the  witnesses  found  and  held  all  of  them

guilty of offence punishable under Section 302/149 IPC. The

learned trial  court  further  found and held  guilty  appellants

Beni Mahto and Kartik Mahto in Criminal Appeal No.411 of

2000(R)  under  Section 302/34 IPC.  All  the  appellants  were

sentenced  to  serve  rigorous  imprisonment  for  life  for  the

offences  proved  against  them.  However,  they  were  not

sentenced for any of the minor offences though found to be

proved against them.  Appellants Koyla Mahto,  Mahru Mahto

and Khiru Mahto died during pendency of the appeals.

It  is to be noted that out of accused persons who had

filed appeals before the High Court, appellants Koyla Mahto,

Manjhi Mahto and Bhim Mahto died during the pendency of 5

the appeal.   Apart from other factual aspects appellants in

the  appeal  before  the  High  Court  had  submitted  that  the

examination  under  Section  313  of  the  Code  of  Criminal

Procedure, 1973 (in short the ‘Cr.P.C.’) was not properly done.

The details of the accusations were not brought to their notice

even the charges framed were not proper.   The  High Court

noted that separate charge form was not framed by the trial

court against the appellant while framing charges.  It was held

that the accusations were explained to the appellants during

their statements while their statements were being recorded

under Section 313 Cr.P.C.

4. Learned  counsel  for  the  appellants  submitted  that  the

appellants have been convicted by application of Section 149

IPC.  Their  presence  and/or  participation  have  not  been

established. Examination under Section 313 Cr.P.C. was not

properly  done  and  in  any  event  the  charges  framed  were

totally defective.

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5. Learned counsel  for the respondent-State on the other

hand supported the judgment of the trial court and the High

Court.

6. Reason is the heartbeat of every conclusion, and without

the same it becomes lifeless.  (See Raj Kishore Jha v. State of

Bihar and Ors. (2003 (7) SCC 152).

7. Even in respect  of  administrative  orders Lord  Denning

M.R. in Breen v. Amalgamated Engineering Union (1971 (1) All

E.R.  1148)  observed  “The  giving  of  reasons  is  one  of  the

fundamentals  of  good  administration”.  In  Alexander

Machinery (Dudley) Ltd. v.  Crabtree (1974 ICR 120)(NIRC) it

was observed: “Failure to give reasons amounts to denial of

justice”.  Reasons  are  live  links  between  the  mind  of  the

decision-taker to the controversy in question and the decision

or conclusion arrived at”. Reasons substitute subjectivity by

objectivity. The emphasis on recording reasons is that if the

decision reveals the “inscrutable face of the sphinx”, it can, by

its  silence,  render  it  virtually  impossible  for  the  Courts  to 7

perform  their  appellate  function  or  exercise  the  power  of

judicial review in adjudging the validity of the decision. Right

to reason is an indispensable part of a sound judicial system;

reasons at least sufficient to indicate an application of mind to

the matter before Court. Another rationale is that the affected

party can know why the decision has gone against him. One of

the  salutary  requirements  of  natural  justice  is  spelling  out

reasons for the order made; in other words, a speaking out.

The “inscrutable  face of a sphinx”  is  ordinarily  incongruous

with a judicial or quasi-judicial performance.  

8. The above position was highlighted in State of Punjab v.

Bhag Singh (2004 (1) SCC 547).

9. In the instant case, High Court’s judgment is practically

unreasoned.

10. Coming to the evidence of PWs 4, 5 & 6, it is clear that

PW5  Bhola  does  not  name  the  appellant  No.1  to  be  an

assailant while PW3 states that he had assaulted Bhola-PW 5.

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Charges framed were common for all the accused persons and

so far as Section 149 and 302/34 are concerned, it reads as

follows:

“That you on or about the same day at same place were members of an unlawful assembly, and  in  prosecution  of  the  common  object  of which,  caused  murder  to  Budhu  Mahto  and assault  to  Bhola  Mahto,  Sanjhwa  Devi  and Phulchand Mahto and you are, thereby, under Section  149  IPC  guilty  of  causing  the  said murder and assaults.

And  thereby  committed  an  offence punishable under Section 149 IPC and within  

Forth that you, on or about the same day of same at same place did committed murder to Budhu  Mahto  with  common  intention committed an offence.”

11. So far as Section 313 statement is concerned the only

relevant question was as follows:

“This  is  the  case  of  the  prosecution witnesses that on 17.7.1987 at villageTaranari, Tola  Behratand,  P.S.  Nawadhi,  District Bokaro,  you  together  with  other  accused

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persons  armed  with  weapons  formed  an unlawful  assembly and in furtherance of  the common object of the unlawful assembly, you and  other  accused  persons  killed  Budhu Mahto and in course of  which injured Bhola Mahto,  Sanjhwa Devi  and Phulchand Mahto. What do you have to say?”

12. It  is  rightly  contented  by  learned  counsel  for  the

appellant  that  no  appropriate  question  was  posed  during

examination  under  Section  313  Cr.P.C.  and  appropriate

charges  were  also  not  framed.   It  is  not  the  case  of  the

prosecution  that  the  appellants  had  committed  murder  of

Budhu Mahto.  Additionally, in their evidence PWs 4, 5 & 6

have  not  spoken  a  word about  appellants  having assaulted

any one of them, so far as the charge under Section 326 IPC is

concerned.

13. In  Bibhuti  Bhusan Das Gupta & Anr. v.  State of West

Bengal (AIR 1969 SC 381), this Court held that the pleader

cannot represent the accused for the purpose of Section 342

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of the Code of Criminal Procedure, 1898 (hereinafter referred

to as ‘Old Code’)  which is presently Section 313 Cr.P.C.

14. Section 313 Cr.P.C. reads as follows:

“313.  Power to  examine  the accused.—(1)  In  every inquiry  or  trial,  for  the  purpose  of  enabling  the accused  personally  to  explain  any  circumstances appearing in the evidence against him, the court—

(a)  may  at  any  stage,  without  previously  warning the accused, put such questions to him as the court considers necessary; (b)  shall,  after  the  witnesses  for  the  prosecution have been examined and before he is called on for his defence, question him generally on the case:

Provided that in a summons case, where the court has dispensed with the personal attendance of  the  accused,  it  may  also  dispense  with  his examination under clause (b).

(2)  No oath shall  be  administered  to  the  accused when he is examined under sub-section (1).

(3)  The  accused shall  not  render himself  liable  to punishment by refusing to answer such questions, or by giving false answers to them.

(4) The answers given by the accused may be taken into consideration in such inquiry or trial, and put in evidence for or against him in any other inquiry into,  or  trial  for,  any  other  offence  which  such answers may tend to show he has committed.”

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15. The forerunner of the said provision in the Old Code was

Section 342 therein. It was worded thus:

“342. (1) For the purpose of enabling the accused to explain  any  circumstances  appearing  in  the evidence against him, the court may, at any stage of any inquiry or trial, without previously warning the accused,  put  such questions  to  him as the  court considers  necessary,  and  shall,  for  the  purpose aforesaid, question him generally on the case after the  witnesses  for  the  prosecution  have  been examined and before he is called on for his defence.

(2)  The  accused shall  not  render himself  liable  to punishment by refusing to answer such questions, or by giving false answers to them; but the court and the jury (if any) may draw such inference from such refusal or answers as it thinks just.

(3) The answers given by the accused may be taken into consideration in such inquiry or trial, and put in evidence for or against him in any other inquiry into,  or  trial  for,  any  other  offence  which  such answers may tend to show he has committed.

(4)  No oath shall  be  administered  to  the  accused when he is examined under sub-section (1).”

16. Dealing with the position as the section remained in the

original form under the Old Code, a three-Judge Bench of this

Court in Hate Singh Bhagat Singh v. State of Madhya Bharat

(AIR 1953 SC 468)  held that:

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“The  statements  of  the  accused  recorded  by the  Committing  Magistrate  and  the  Sessions Judge are intended in India to take the place of what in England and in America he would be free to state in his own way in the witness- box. They have to be received in evidence and treated as evidence and be duly considered at the trial.”

17. Contextually we cannot bypass the decision of a three-

Judge  Bench  of  this  Court  in  Shivaji  Sahabrao  Bobade v.

State of Maharashtra (1973 (2)  SCC 793) as the Bench has

widened the sweep of the provision concerning examination of

the  accused  after  closing  prosecution  evidence.  Learned

Judges in that case were considering the fallout of omission to

put  to  the  accused  a  question  on  a  vital  circumstance

appearing against him in the prosecution evidence. The three-

Judge Bench made the following observations therein: (SCC p.

806, para 16)

“It is trite law, nevertheless fundamental, that the  prisoner’s  attention  should  be  drawn  to every inculpatory material so as to enable him to  explain  it.  This  is  the  basic  fairness  of  a criminal  trial  and  failures  in  this  area  may gravely imperil the validity of the trial itself, if consequential  miscarriage  of  justice  has

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flowed. However, where such an omission has occurred  it  does  not  ipso  facto  vitiate  the proceedings and prejudice occasioned by such defect must be established by the accused. In the event of evidentiary material not being put to  the  accused,  the  Court  must  ordinarily eschew such material from consideration. It is also open to the appellate court to call upon the  counsel  for  the  accused  to  show  what explanation  the  accused  has  as  regards  the circumstances established against him but not put to him and if the accused is unable to offer the  appellate  Court  any  plausible  or reasonable explanation of such circumstances, the  court  may  assume  that  no  acceptable answer exists and that even if the accused had been questioned at the proper time in the trial Court he would not have been able to furnish any  good  ground  to  get  out  of  the circumstances  on  which  the  trial  court  had relied for its conviction.”

18. What is the object of examination of an accused under

Section 313 of the Code? The section itself declares the object

in explicit language that it is “for the purpose of enabling the

accused personally to explain any circumstances appearing in

the  evidence  against  him”.  In  Jai  Dev v.  State of  Punjab

(AIR1963  SC  612) Gajendragadkar,  J.  (as  he  then  was)

speaking  for  a  three-Judge  Bench  has  focussed  on  the

ultimate test in determining whether the provision has been

fairly complied with. He observed thus:

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“The ultimate test  in determining whether or not  the  accused  has  been  fairly  examined under  Section  342  would  be  to  inquire whether, having regard to all the questions put to him, he did get an opportunity to say what he  wanted  to  say  in  respect  of  prosecution case  against  him.  If  it  appears  that  the examination  of  the  accused  person  was defective  and  thereby  a  prejudice  has  been caused  to  him,  that  would  no  doubt  be  a serious infirmity.”

19. Thus  it  is  well  settled  that  the  provision  is  mainly

intended to benefit the accused and as its corollary to benefit

the court in reaching the final conclusion.

20. At the same time it  should be borne in mind that the

provision is not intended to nail him to any position, but to

comply  with  the  most  salutary  principle  of  natural  justice

enshrined in the maxim audi alteram partem. The word “may”

in  clause  (a)  of  sub-section  (1)  in  Section  313  of  the  Code

indicates, without any doubt, that even if the court does not

put any question under that clause the accused cannot raise

any grievance for it. But if the court fails to put the needed

question under clause (b) of the sub-section it would result in

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a handicap to the accused and he can legitimately claim that

no evidence, without affording him the opportunity to explain,

can  be  used  against  him.  It  is  now  well  settled  that  a

circumstance  about  which  the  accused  was  not  asked  to

explain cannot be used against him.

21. High Court was clearly wrong in holding that the charges

were  properly  explained  to  the  accused  persons  while

recording  their  statement  under  Section  313  Cr.P.C.

Therefore, their conviction as recorded by the trial court and

upheld by the High Court cannot be maintained.

22. The appellants are acquitted from the charges.  They be

set  at  liberty  forthwith unless  required  to be  in  custody  in

connection with any other case.

23. The appeal is allowed.

……………...........................J. 16

                                               (Dr. ARIJIT PASAYAT)     

……………..……...................J. (LOKESHWAR SINGH PANTA)

New Delhi, May 16, 2008

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