1955 Supreme(SC) 116

SUPREME COURT OF INDIA
15th December 1955.
BOSE, VENKATARAMA AYYAR AND CHANDRASEKHARA AIYAR, JJ.
K. C. Mathew and others, Appellants
Versus
State of Travancore-Cochin, Respondent.
Criminal Appeal No. 97 of 1953.
Advocates appeared
Mr. S. Mohan Kumaramangalam and Mr. Subramaniam, Advocates, for Appellants; Mr. Sardar Bahadur, Advocate, for Respondent.

Headnote:Sections 149, 300-Common object to murder.

       Held: "Even if it be assumed that the common object was only to rescue the two accused who were in the lock up, it is obvious that the 1I8e of violence was implicit in that object.

       People do not gather together at the dead of night armed with cracks and choppers and sticks to rescue persons who were guarded by armed police without intending to use violence in order to overcome the resistance of the guards; and a person would have to be very naive apple minded if he did not realise that the sentries posted to guard prisoners at night are fully armed and are expected to use their arms should the need arise; and he would have to be a maron in intelligence if he did not know that murder of the armed guards would be a likely consequence in such .a raid; and what holds good for murder also holds good for looting in general.

       Now S. 149 applies not only to offences actually committed in pursuance of the common object but also to offences that members of the assembly, know are likely to be committed. It would be impossible .on the facts of this case to hold that the members of the assembly did not know that murder was likely to be committed in pursuance of a common .object of that kind by an assembly as large as the one we have here.

       Accordingly, even if the common object be not placed as high as murder the conviction on the murder-cum-rioting charge was fully justified." (per Bose J.) - Article 134-Concurrent findings of fact.

       Held: Following the usual practice the Supreme Court will decline to interfere with concurrent findings of fact where there is ample evidence which, if believed can be used in support of the findings. - (104A) Sections 225, 233, 342, 537-Lumping together of charges Prejudice-Omission to take objection in grounds of appeal-Effect.

       The charge against the accused was:

       "The aforesaid offences having been proved by the evidence adduced by the prosecution, you accused 1-29 have committed offences punishable under ,"

       and then followed a string of ten sections of the Travancore Penal Code.

       Held: (1) The charge neither caused, nor could have caused, prejudice. Each accused was in a position to know just what was charged against him because once the facts are enumerated the law that applies to them can easily be ascertained; and in this particular case it was just a matter of picking out the relevant sections from among the ten mentioned. There is nothing in this objection. S. 225, Cr. P.C. expressly covers this kind of case.

       (2) It has been argued that the examination of each accused under S. 342 Cr. P.C. was defective and that that caused prejudice. This objection was not take up before. The omission to take the objection in the grounds of appeal is not necessarily fatal; everything must depend on the facts of the case; but the fact that the objection was not taken at an earlier stage, if it could and should have been taken, is a material circumstance that will weigh heavily against the accused particularly when he has been represented by counsel throughout. The Explanation to S. 537 Cr. P.C. expressly requires the Court to "have regard to the fact whether the objection could and should have been raised at an earlier stage in the proceedings".

       Again, though that is not necessarily fatal ordinarily it will be very difficult to sustain a plea of prejudice unless the Court is told just where the shoe pinches. It is true that in certain exceptional cases prejudice, or a reasonable likelihood of prejudice, may be so patent on the face of the facts that nothing more is needed; but that class of cases must be exceptional. After all, the only person who can really tell the Court whether he was in fact prejudiced is the accused; and if there is real prejudice he can at once state the facts and leave the Court to judge their worth. Here, as elsewhere, the Court is entitled to conclude that a person who deliberately withholds facts within his special knowledge and refuses to give the Court that assistance which is its right and due has nothing of value which he can disclose and that if he did disclose anything that would at once expose the hollowness of his cause.

       If the accused is not afforded under S. 342 Cr. P.C. the opportunity to explain any circumstances appearing in the evidence against him he is entitled to ask the appellate Court to place him in the same position as he would have been in had he been asked. In other words, he is entitled to ask the appellate Court, which is the ultimate Court of fact to take the explanation that he would have given in the first Court into consideration when weighing the evidence in just the same way as it would have done if it had been there all along. But if he does not take up that position at the appellate stage and complains of prejudice for the first time in the Supreme Court, the inference is strong that the plea is an.: afterthought and that there was no real prejudice.

       (3) Once the murder-cum-riot conviction is upheld and once the Court makes the sentences concurrent instead of consecutive, it does not matter that no question was put to the accused about any robbery.