~•plnoHT21

SUPREME COURT REPORTS

MACHANDER, SON OF PANDURANG

ti.

STATE OF HYDERABAD.

[1955]

[VIVIAN BosE, JAGANNADHADAS and B. P. SINHA JJ.]

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), 1. 342.

The appellant was put up on his trial on a charge of murder.

The trial continued for 4! 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 fro!ll 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 unustainablc 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 mere 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 sec that no guilty person escapes, it is still more its duty to sec that justice is not delayed and accused persons indefinitely harassed. The scales must be held even between the prosecution and t~ e 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.

CRIMINAL

APPELLATE JuR1smcnoN : 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 N?. 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 Q>urt of the Sessions Judge, Osmanabad, in Criminal Case No. 12/8 of 1951.

R. Patnaik for the appellant. 1955

Porus A. Mehta and P. G. Gokha/.e dent. for the respon- Muliantllr, Son efP~ v. 1955.

September 27.

The Court was delivered by Judgment of the 91'* of H, U, dbad

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 affording 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 Machandcr was charged with the murder of one Manmath.

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 appellant's 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 belonging 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 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

19~5

}J.achandtr, Son of Paniurang

Stat~ of Hyderabad

Bos~J

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 :!J: Parenda, where the Court is situate, up to 3 P.M. on the 16th, the day the decision was announced. )hat 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 the 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 d~ ceased 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 Shanti ling (P. vV. 10), who knew that the appellant had 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

anxious, so he. went to Parenda to make enqumes.

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 blood-stained stone, also some of the articles which Shantiling (P. W. 10) had des.cribed to the police on the 26th, namely pieces of a silver linga, two silver

adas, 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.

Machander, <Son

of Pandurang

Stal1 of Hyderabatl

Bose].

19.55

Mae/uJltdn, SIM

q/P-.,.1 v.

Stau of ~'6t1Nd

BM•]·

In passing it is to be observed that this is not the class 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 appeJlant were both in Court at the same time, they were not there "together" and in view of the i11-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 othre members of the appellant's family might be expected to share.

4. That he had fuJI 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 s;1id 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 hold that mere knowledge thirteen days later, coupled with a motive which three others

share, and a lie about the deceased' s movements told four, <'>r 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.

Y.l e 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 hearing the appellant's side of the s, tory.

We were asked to reopen the question and, if necessary, t<'> 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 or 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 .:ver since, that is to say, for over 4} 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 .ts even .m0re necessary to see that persons accused

Machandtr, Son

of Pandurang

State of Hyderabad

Bo1tJ.

A1achander, Son

ofPandurang

Stalt of Hydtrabad

BoJ' J.

of crime are not indefinitely harassed. They must he 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 for justice must be kept on an even balance whether for the accused or agaii:ist him, whether in favour of the State or not; and one broad rule must apply in all cases.

The error here ts 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 ~<;>nviction and sentence are set aside and the appellant is acquitted.