Judgement

BOSE, J. : This is another of those cases in which Courts are compelled to acquit because Magistrates & Sessions Judges fail to appreciate the importance of S. 342, Criminal P. C., 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.

2. The facts are simple the appellant Machander was charged with the murder of one Manmath. Machander s brother Gona was also challaned but as he absconded he could not be tried.

3. 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.

4. In or about the year 1947 the appellant appears to have stolen a pair of bullocks & a cart belonging to the deceased. The deceased prosecuted him for the theft & 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.

5. We now come to the events immediately preceding the murder. The appellant and his family took forcible possession of some land belonging to the 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 in 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 Parendam 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 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.

6. It is proved that the deceased went to Parenda on the 15th for the last hearing of the case and 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 dote 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.

7. 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 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 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. o