iminal 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 6386 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 128 of 1951
525 R Patnaik for the appellant
Porus A Mehta and P G Gokhale for the respondent
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 Pm
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 pm
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 PW 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 till3 Pm on the 16th
Shantiling PW 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 PW 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 Pm on the 16th
But it is clear that the appellant wanted to hide something
2That 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
3That there was ill will between them but an ill will that other members of the appellants family might be expected to share
4That 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 12 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


Summary:
The appellant was put up on his trial on a charge of murder
The trial continued for 412 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 section 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 section 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 section 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