27 September 1955
Supreme Court


Case number: Appeal (crl.) 9 of 1955






DATE OF JUDGMENT: 27/09/1955


CITATION:  1955 AIR  792            1955 SCR  (2) 524

ACT: Examination  of the accused-Duty of trial  court-Failure  to examine accused on material points-Effect-Acquittal-Code  of Criminal Procedure (Act V of 1898), s. 342.

HEADNOTE:   The  appellant  was  put up on his trial on  a  charge  of murder.   The trial continued for 41/2 years.   His  brother who  was a co-accused absconded.  The evidence  against  the appellant  was circumstantial.  His confession, made 8  days after  his  arrest, led to certain discoveries  but  he  was never questioned about it by the trial court under s. 342 of the Code of Criminal Procedure.  The High Court excluded the confession  from  the evidence, upheld  the  conviction  but altered  the death sentence to one of rigorous  imprisonment for  life.   The Supreme Court took the view that  the  High Court  was  right  in  excluding  the  confession  from  the evidence  and  the  conviction  was  unsustainable  on   the evidence  on record.  Held, that in the particular facts  of the case the omission to examine the accused under s. 342 of the Code was no more technicality and it would be unjust  to the  accused to remand the case for a retrial and the  order of conviction and sentence passed on him must be set aside. That while it is no doubt incumbent on the court to see that no  guilty person escapes, it is still more its duty to  see that justice is not delayed and accused persons indefinitely harassed.   The  scales  must  be  held  even  between   the prosecution and the accused. That  it is imperative that Magistrates and Sessions  Judges should remember the duty that s. 342 of the Code of Criminal Procedure imposes on them of questioning the accused  person fairly and properly telling him in clear and simple language the case he has to meet and the material points made against him so that he can, if he so desires, explain and meet them.

JUDGMENT: CRIMINAL  APPELLATE JURISDICTION: Criminal Appeal No.  9  of 1955. Appeal  by special leave from the Judgment and  Order  dated



the  26th  September, 1951, of the Hyderabad High  Court  in Criminal Confirmation No. 638/6 of 1951 and Criminal  Appeal No. 770 of 1951, arising out of the Judgment and Order dated the  27th  June, 1951, of the Court of the  Sessions  Judge, Osmanabad, in Criminal Case No. 12/8 of 1951. 525 R. Patnaik for the appellant. Porus A. Mehta and P. G. Gokhale for the respondent.  1955.   September  27.   The Judgment of  the.   Court  was delivered by BOSE J.-This is another of those cases -in which Courts  are compelled to acquit because Magistrates and Sessions  Judges fail  to  appreciate the importance of section  342  of  the Criminal Procedure Code and fail to carry out the duty  that is  cast upon them of questioning the accused  properly  and fairly,  bringing  home  to his mind  in  clear  and  simple language  the  exact case he has to meet and  each  material point that is sought to be made against him, and of  afford- ing  him a chance to explain them if he can and so  desires. Had the Sessions Judge done that in this case it is possible that we would not have been obliged to acquit.  The facts are simple.  The appellant Machander was  charged with  the murder of one Manmatb.  Machander’s  brother  Gona was  also  challaned  but as he absconded he  could  not  be tried.  The appellant and the deceased and Gona reside in the  same village.   There was some ill-feeling between the  appellant and the deceased and it can be accepted that Gona shared his brother’s sentiments because, so far as the latest cause for enmity  goes,  Gona  is equally  concerned;  and  this  also applies to Pandu, the appellants father, and Bhima,  another brother.  The causes for enmity are the following.  In  or  about the year 1947 the appellant appears  to  have stolen  a  pair  of bullocks and a  cart  belonoing  to  the deceased.   The  deceased prosecuted him for the  theft  and also instituted a civil suit for the price of the cart  ’and bullocks.   He succeeded in both cases.  The  appellant  was convicted of the theft and sent to jail.  A decree was  also passed  against  him for Rs. 520 and that  decree  was  duly executed.  We now come to the events immediately preceding the murder. The  appellant  and his family took forcible  possession  of some land belonging to the 526 deceased’s  sister Parubai.  She sued the whole  family  for possession  of this land, that is to say, she impleaded  the appellant’s father Pandu, the appellant and his two brothers Bhima and Gona.  The last  hearing was on 15-12-1950 and the decision  was announced on 16-12-1950.  It was in  Parubai’s favour.  The deceased conducted this litigation on behalf of his  sister.   He was present in Court on the 15th  and  was present at Parenda, where the Court is situate, up to 3 P.m. on  the 16th, the day the decision was announced.  That  was the  last that was seen of him.  These facts are said to  be the cause of the ill-feeling.  But, as the facts  themselves indicate, a similar cause for enmity (though not to the same degree)  could  be  assigned to the  father  and  the  other brothers;  equally,  they had  similar  opportunities.   The movements  of the appellant have been traced to Parenda  and back but not the movements of the rest of the family.  So it is not shown that they had no similar opportunity to murder. It  can  however be accepted that cause for  enmity  on  the appellant’s part is established.   It is proved that the deceased went to Parenda on the 15th for the last hearing of the case and that he was also  there



on  the  16th  up  to 3 p.m. It  is  also  proved  that  the appellant  was  in  Court on the 15th and  that  he  was  in Parenda on the following day.  It can be accepted that  both the deceased and the appellant were present in Court at  the same time on the 15th and that therefore the appellant  knew that  the  deceased had attended the Court  that  day.   But there is no proof that the two met each other or that either knew  about the movements of the other on the 16th.  All  we know  is that both went to see their respective pleaders  at different  places  and times and learned the result  of  the case.  Four  or five days after the case, the appellant came  home but  not the deceased.  The deceased’s son Shantiling  (P.W. 10),  who knew that the appellant bad also gone  to  Parenda for the case, asked him where his father was.  The appellant said that the father had not attended court.  This made  the son 527 anxious,  ’so  he went to Parenda to  make  enquiries.   The pleaders  there told him that his father had attended  court on  the 15th and that he was in Parenda till,3 P.m.  on  the 16th.  Shantiling (P.W. 10) immediately informed the police- that  his father was missing and gave them a description  of him  and  also  a list of the things he was  wearing  and  a description  of  the horse he was riding.  This was  on  the 26th.   Three days later, on the 29th, he lodged  a  regular complaint  and said that he was afraid his father  had  been murdered  and said that he suspected the appellant  and  his brother Gona.   The  appellant  was arrested the same day  and  after  his arrest he led the police and Panchas to a place where blood- stained  earth  and  grass were found  and  a  bloo-dstained stone, also some of the articles which Shantiling (P.W.  10) had described to the police on the 26th, namely pieces of  a silver  linga, two silver kadas, a silver spike and a  white gilt button.  All except the kadas were found to be  stained with  human blood.  About 25 paces from here  the  appellant pointed  out another place where the corpse of the  deceased was  found to be buried.  Pearl ear-rings and a  kardoda  of yarn with three iron keys were still on the body.  They were all stained with human blood and are proved to have belonged to the deceased. On the 1st of January 1951 the appellant took the police and the Panchas to a place where two saddle straps and two  iron stirrups were buried.  One of the stirrups was stained  with human blood.  On the 3rd the reins of the horse and the horse itself were discovered but this discovery was not at the instance of the appellant.  Except for the confession, which has been excluded, this is all there is against the appellant.  The question is whether that is enough to bring guilt home to him.  Stated  briefly, the circumstances are- 1.   That the appellant knew that the deceased had  attended the  Court at Parenda on the 16th and that he had  seen  him there but when questioned about it he told a lie. 67 528 In passing it is to be observed that this is not the  -.lass of  case  in  which an accused person is last  seen  with  a murdered  man within a few hours of the murder.  Though  the deceased  and the appellant were both in Court at  the  same time, they were not there "together" and in view of the ill- will between them and in view of the fact that the  deceased went on a horse it is unlikely that they travelled  together



either  going or coming; and the appellant was not with  the deceased when he was last seen at 3 P.m.. on the 16th.   But it is clear that the appellant wanted to hide something.   2.That thirteen days after the murder he knew that Manmath had  been murdered.  He also knew where the murder had  been committed and where the body and certain articles  belonging to the deceased were hidden.   3.That  there was ill-will between them, but  an  ill-will that  other  members  of  the  appellants  family  might  be expected to share.   4.That  he had full opportunity to commit the  crime,  but the  same kind of opportunity that the other members of  his family also had.  The question is whether these four circumstances,  regarded in the background of this case, are sufficient to warrant  a conclusion of murder by the appellant.  In our opinion, they are  not  because the same circumstances could  be  said  to point   with  equal  suspicion  at  other  members  of   the appellant’s  family.   It  has to  be  remembered  that  the brother  Gona was also suspected and that he  absconded  and could not be traced.  We do not say that he was the murderer and it would be wrong to suggest that in his absence, but if he was, then the appellant’s knowledge of the murder and  of the  concealment,  thirteen  days  later,  might  have  been derived  from  Gona,  or it might even be that  he  saw  his brother  commit  the  crime  and hide  the  corpse  and  the articles.  Those are hypotheses that are not unreasonable on the  facts  of this particular case and they have  not  been reasonably  excluded.  Consequently, we are unable  to  bold that  mere  knowledge thirteen days later,  coupled  with  a motive which three others 529 share, and a lie about the deceased’s movements told four or five days after the murder, are enough; and, as that is  all that the High Court has based on, the conviction must be set aside. We  have assumed throughout that the identity of the  corpse that was discovered on the 29th and the fact of murder  have been  established.  Those facts were not admitted before  us but  we  need not discuss the point.  It is  enough  to  say that, in our opinion, both facts are satisfactorily proved. We referred, earlier in our judgment, to a confession  which the  High  Court  has  excluded.   This  was  excluded  from evidence  because the appellant was not questioned about  it under section 342, Criminal Procedure Code.  We gather  that the High Court thought that that occasioned prejudice though the  learned  Judges do not say so in so  many  words.   The appellant  was  arrested  on  the  29th  and  he  made  many discoveries  on the 29th December 1950 and on the  1st,  2nd and 3rd January 1951 but did not confess till the 6th.  Much might have happened in the eight days between his arrest and the  6th, so the High Court was not unjustified in  refusing to   take  that  into  consideration  without  bearing   the appellant’s side of the story.   We were asked to reopen the question and, if necessary, to remand  the  case.  But we decline to do that.   Judges  and magistrates  must realise the importance of the  examination under  section 342 of the Criminal Procedure Code  and  this Court  has repeatedly warned them of the  consequences  that might ensue in certain cases.  The appellant was arrested in December 1950 and has been on his trial one way and  another ever  since, that is to say, for over 4 1/2 years.   We  are not  prepared  to keep persons who are on  trial  for  their lives under indefinite suspense because trial judges omit to do  their  duty.   Justice is not one-sided.   It  has  many



facets   and  we  have  to  draw  a  nice  balance   between conflicting rights and duties.While it is incumbent on us to see that the guilty do not escape it is even more  necessary to see that persons accused 530 of crime are not indefinitely harassed.  They must be  given a  fair  and  impartial trial  and  while  every  reasonable latitude must be given to those concerned with the detection of  crime and entrusted with the administration of  justice, limits  must be placed on the lengths to which they may  go. Except  in clear cases of guilt, where the error  is  purely technical,  the forces that are arrayed against the  accused should no more be permitted in special appeal to repair  the effects  of  their  bungling  than  an  accused  should   be permitted  to repair gaps in his defence which he could  and ought to have made good in the lower courts.  The scales  of justice  must  be kept on an even balance  whether  for  the accused  or against him, whether in favour of the  State  or not; and one broad rule must apply in all cases.   The error here is not a mere technicality.  The  appellant appears  to have been ready to disclose all on the 29th  and make a clean breast of everything and yet the police  waited eight days before getting a confession judicially  recorded. That  may  be capable of explanation but the  difficulty  of asking an accused person to establish facts of this kind  in his favour four and a half years later is obvious.   Without therefore  attempting to lay down any general rule,  we  are not prepared to order a retrial in this case because of  the facts that appear here.   The  appeal is allowed.  The conviction and  sentence  are set aside and the appellant is acquitted. 531