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SUPREME COURT OF INDIA
10th December 1952.
MAHAJAN, S.R. DAS AND BHAGWATI, JJ.
Ajmer Singh, Appellant
Versus
The State of Punjab.
Criminal Appeal No. 67 of 1952.
Advocates appeared
Shri P. S. Safeer, Advocate instructed by Shri R. S. Gheba, Agent, for Appellant; Shri Gopal Singh, Advocate, instructed by Shri G. H. Rajadhyaksha, Agent, for the State.
A was tried for the murder of B and was acquitted by the Sessions Judge. On appeal by the State Government, the order of acquittal was set aside by the High Court and A was convicted under section 304, Indian Penal Code, and sentenced to ten years rigorous imprisonment. A filed an appeal to the Supreme Court by special leave against that decision.
It was argued on behalf of the appellant (i) 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; (ii) and that the trial held by the Sessions Judge was vitiated as the examination of the appellant was not in accordance with the provisions of S. 342, Criminal Procedure Code.
Held, (dismissing the appeal); (1) The criticism on behalf of the appellant of the view of the High Court referred to above is well founded. After an order of acquittal has been made the presumption of innocence is further reinforced by that order, and that being so, the trial courts 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.
(2) In an appeal under S.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 it did not in any way exercise it wrongly.
(3) When the Sessions Judge is required by section 342, Criminal Procedure Code, 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. The whole object of the section 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 an ignorant or illiterate person will be able to appreciate and understand.
It is, however, 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 the question whether the trial is vitiated, in each case depends upon the
the applicant is free to contest all the findings of facts, and raise every point which could be raised in the High Court or the trial Court is entirely unwarranted, and that only those points can be urged at the final hearing of the appeal before the Supreme Court which are fit to be urged at the preliminary stage when leave to appeal is asked for, and it would be illogical to adopt different standards at two different stages of the same case.
degree of the error and upon whether prejudice has been or is likely. to have been caused to the accused. In this particular case the only point appearing in the evidence against the accused was that he gave a barchha blow to B. 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 a quarrel. His answer to this specific question in the committal court was that he was innocent and that he was being implicated owing to enmity. He stuck to that reply in the Court of Sessions after fully understanding what he was asked. The disregard of the provisions of S. 342 of Cr. P .C. in this case was therefore not so gross as would justify quashing the conviction and ordering a retria1.1 - Section 342-Meaning of "question him generally on the case."-Non-compliance with the section-Effect.
Held: (1) It is not sufficient compliance with the section to generally ask the accused that having heard the prosecution evidence what he had to say about it. The accused must be questioned separately about each material circumstance which is intended to be used against him. The whole object ofthe section 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 an ignorant or illiterate person will be able to appreciate and understand.
(2) It is well settled that every error or commission not in compliance with the provisions of S. 342 does not necessarily vitiate a trial. Errors of this type will fall within the category of curable irregularities, and 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. - Section 423-Appeal against acquittal.
Held; After an order of acquittal has been made the presumption of innocence is further reinforced by that order, and that being so, the trial courts 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. - Irregular examination of accused-Validity of trial. -
Judgement
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 S. 304, I.P.C. and sentenced to ten years rigorous imprisonment. This is an appeal by special leave against that decision.
2. 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 Sunder Singh in regard to the division of the property of Bhagwan Singh. Sunder Singh was in possession of some of his landed 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 27th January 1948 Jagir Kaur complained to her father-in-law that her husband had pawned her ear-rings in order to pay off his gambling debts. On the morning of 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 Hazhbi 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 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.
3. At about sunset the same date Lal Burgh 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 hearing the noise came to the house of Lal Singh. 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.
4. Sunder Singh, Teja Singh and Banta Singh were prosecuted under S. 302/34 but were convicted under S. 324, I. P. C. Banta Si
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