PETITIONER: AJMER SINGH Vs. RESPONDENT: THE STATE OF PUNJAB. DATE OF JUDGMENT: 10/12/1952 BENCH: MAHAJAN, MEHR CHAND BENCH: MAHAJAN, MEHR CHAND DAS, SUDHI RANJAN BHAGWATI, NATWARLAL H. CITATION: 1953 AIR 76 1953 SCR 418 CITATOR INFO : F 1956 SC 217 (1) R 1956 SC 425 (5) R 1957 SC 216 (12) R 1957 SC 589 (16) RF 1961 SC 715 (7) RF 1962 SC 439 (8) E 1962 SC1239 (14) RF 1963 SC 200 (17) RF 1973 SC2622 (7) R 1974 SC 606 (6) ACT: Criminal Procedure Code, 1898, ss. 342, 417-Appeal against acquittal-Interference-Guiding principle-Criminal trial-Ex- amination of accused-Duty of Court-Irregular examination- Validity of trial-Question of prejudice. HEADNOTE: After an order of acquittal has been made the presumption of innocence is further reinforced by that order, and that being so, the trial court's decision cannot be reversed merely on the ground that the accused had failed to explain the circumstances appearing against him but only for very substantial and compelling reasons. In an appeal under s. 487, Criminal Procedure Code, the High Court has full power to review the evidence upon which the order of acquittal was founded. The duty of a Sessions Judge under s. 342, Criminal Pro- cedure Code, to examine the accused is not discharged by merely reading over the questions put to the accused in the Magistrate's Court and his answers, and by asking him whether he has to say anything about them. It is also not a sufficient compliance with the section to generally ask the accused t hat, having heard the prosecution evidence what he has to say about it. He must be questioned separately about each material circumstance which is intended to be used against him. The, whole object of the section 419 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 may be able to appreciate and understand. It is, however, well settled that every error or omission complying with s. 342 does not necessarily vitiate the trial. Errors of this type fall within the category of curable irregularities and the question whether the trial has been vitiated depends in each case upon the degree of error and upon whether prejudice has been or is likely to have been caused to the accused. Tara Singh v. The State ([1951] S.C.,R. 729) referred to. JUDGMENT:
CRIMINAL APPELLATE.JURISDICTION: Criminal Appeal No . 67 of
1952. Appeal by special leave from the Judgment and Order
dated the 14th September, 1951, of the High Court of
Judicature for the State of Punjab at Simla (Bhandari and
Soni JJ.) in Criminal Appeal No. 361 of 1950, arising out of
Judgment and Order dated the 13th May, 1960, of the Court of
the Sessions Judge, Ferozepore, in Trial No. 28 of 1950 and
Case No. 5 of 1950.
P. S. Safeer for the appellant.
Gopal Singh for the respondent.
1952. December 10. The Judgment of the Court was delivered
by
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 section 304,
Indian Penal Code, and sentenced to ten years’ rigorous
imprisonment. This is an appeal by special leave against
that decision.
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 Sundar
Singh in regard to the division of the property of Bhagwan
Singh. Sunder Singh was in possession of some of his landed
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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 the 27th January,
1948, Jagir Kaur complained to her fatherin-law that her
husband had pawned her ear-rings in order to pay off his
gambling debts. On the morning of the 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 Mazhbi 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.
At about sunset the same day Lal Singh 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 bearing the noise came to the house of Lal
Singh.
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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.
Sunder Singh, Teja Singh and Banta Singh were prosecuted
under section 302/34 but were convicted under section 324,
Indian Penal Code, Banta Singh and Teja Singh were sentenced
to two years’ rigorous imprisonment each and Sunder Singh to
six months’ rigorous imprisonment. On appeal, Sunder Singh
was acquitted and the sentences imposed on Banta Singh and
Teja Singh were reduced. A lenient view’ of the affair
seems to have been taken because the fight between these
near collaterals took place suddenly and ended promptly.
Bagher Singh died as a result of one blow and injuries on
the person of Lal Singh and Dhan Kaur were not very serious
Ajmer Singh was apprehended on 4th December, 1948, and as
above stated, was tried by the learned Sessions Judge of
Ferozepore and acquitted, but was convicted by the High
Court on appeal by the State Government.
422
Lal Singh, P. W. 3, father of the deceased, Dhan Kuar, his
mother, and Arjan Singh,his real brother, have given direct
evidence about the occurrence. Ujagar Singh Mazhbi whose
name is mentioned in the first information report was
tendered for cross-examination but no question was put to
him about the actual fight, and the manner in which it took
place or the part that was taken in it by the accused. One
Bishandas, whose shop adjoins the shop of Banta Singh
Mazhbi, was tendered for cross-examination as P.W.7. He
deposed that Banta Singh Mazhbi and Lal Singh were the only
persons when the quarrel about ear-rings took place near his
shop. In reexamination he stated that Banta Singh, brother
of the accused, and Teja Singh had come on one side and Lal
Singh on the other when the quarrel about the ear-rings took
place. No direct question was put to the witness about the
presence of, Ajmer Singh on that occasion. The learned
Sessions Judge considered him a wholly independent witness
and accepted his evidence about the incident that took place
at Banta Singh Mazhbi’s shop on the morning of the 28th. He
held that Ajmer Singh was not present at Banta Singh
Mazhbi’s shop and that Lal Singh and Arjan Singh had falsely
implicated him in the quarrel over the ear-rings, and that
if the witnesses could falsely involve him in regard to one
part of the occurrence, the possibility of his being
implicated for the murder of Bagher Singh merely as a matter
of vindictiveness could not be outruled. After examining
the evidence of the three eye-witnesses in detail, the
learned Sessions Judge reached the conclusion that they had
suppressed the facts in order to absolve themselves of all
liability for the happenings of the 28th, and had uttered
untruths and that no confidence could be reposed in their
statements about the part that they had assigned to Ajmer
Singh. In the concluding part of the judgment he observed
that ” the parties were at logger-heads on several issues
and in the absence of independent evidence it is difficult
to place reliance on the prosecution story
423
in regard to Ajmer Singh.” The High -Court on appeal
minutely reviewed the evidence of these three eye-witnesses
and considered that the variations in the statements of
witnesses made at-, the two trials and which had weighed on-
the mind of the Sessions Judge were of a minor and trifling
character and were quite natural as the Statements at this
trial had been made 27 months after the occurrence and that
the narration of events by Arjan Singh was substantially the
same as had been given by him at the earlier trial and in
the first information report. As regards Lal Singh, who had
resiled from his earlier statement and bad denied that he
was armed with a phaura or that Arjan Singh wag armed with a
lathi, it was said that this omission on his part was due to
mere lapse of memory and forgetfulness rather than to a
deliberate design to improve- upon the prosecution story.
It was argued by Mr. Pritam Singh Safeer that in this case
there were no compelling reasons for setting aside the order
of acquittal and that due proper weight had not been given
by the High Court to the opinion of the trial judge as
regards the credibility of witnesses seen and examined by
him. The learned counsel submitted 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.” We think this criticism is well founded. After an
order of acquittal has been made the presumption of inno-
cence is further reinforced by that order, and that being
so, the trial court’s 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.
As the courts below expressed divergent opinions on the
credibility of the prosecution witnesses, we
35
424
had to read the evidence adduced in the case with great care
and after doing so, we are on the whole inclined to agree
with the view expressed by the High Court. It is difficult
to believe that without there being any truth in the fact
that the appellant struck Bagher Singh with a barchha, Arjan
Singh selected the appellant and ascribed to him that part
soon after the occurrence. There are no material
discrepancies in the statements made by Arjan Singh on
different occasions and in our view the reasons given by the
learned Sessions Judge for rejecting his testimony are not
convincing. We agree with the High Court that there are no
sufficient reasons for distrusting his evidence. The number
of persons who took part in the quarrel was not more than
seven or eight and the blows inflicted were few, and in
these circumstances Arjan Singh could have made no mistake
as to the identity of the person who struck Bagher Singh
fatally. This part of -his statement is corroborated by the
evidence of Lal Singh and Dhan Kaur. No cross-examination
was directed, against this part of their statements. It
seems that the learned Sessions Judge took too exaggerated a
view of the minor discrepancies in these statements and read
them with a rather hypercritical mind. Bishandas, whose
statement considerably impressed him, was only tendered for
cross-examination and never made a full statement about the
happenings of the 28th morning. The statement made by him
is somewhat cryptic and from this it cannot be definitely
concluded that Ajmer Singh was not present on the morning of
the 28th at the shop of Banta Singh Mazhbi. The learned
Sessions Judge was not right in rejecting the whole of the
prosecution evidence as unreliable merely on the basis of
this cryptic statement. Ujagar Singh, the other so-called
independent witness, was tendered for cross-examination but
the defence did not ask him a single question about the
happenings of the 28th. The argument therefore that the
prosecution withheld from court independent witnesses who
had witnessed the occurrence is without any substance. The
learned Sessions Judge
425
was apparently labouring under some misapprehension when he
said that the prosecution had withheld from the court
independent witnesses of the occurrence. Apart from Ujagar
Singh Mazhbi, no one else appears to have been present when
the attack was made on Bagher Singh, Lal Singh and Mst.
Dhan Kaur by the party of the accused. All that appears in
evidence is that after the fight was over a number of
persons arrived on the scene but as they did not witness the
attack on Bagher Singh they could give no evidence on this
point and their non-production as witnesses cannot have any
consequence on the case. It is significant that the defence
also led no evidence to prove that the fight took place in a
manner different from the one described by the prosecution
witnesses, or that Ajmer Singh was not present on the
occasion. In -an appeal under section 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 we are satisfied that it did not in any way exercise it
wrongly The injuries on the person of Kartar Kaur and under
Singh were not proved to have been inflicted at the time of
the occurrence and were of no consequence. The prosecution
was under no obligation to explain how they came about.
It was next argued that the trial held by the Sessions Judge
was vitiated as the examination of the appellant was not in
accordance with the provisions of section 342, Criminal
Procedure Code. There is considerable force in the point
that the examination of the appellant by the Sessions Judge
was detective. All that the Sessions Judge did was, that he
read out the examination of the accused in the committal
court to him and then recorded the following questions and
answers:-
” Q: Did you make before the Committing Magistrate the
statement that has-just now been read out to you ?
A: Yes.
426
Q:Now that you have heard the entire evidence against
yourself and the charge has been explained to you, do you
wish to say anything else ?
A: I am innocent.
Q: Do you wish to produce any evidence indefence ?
A: No.”
In the committal court the ‘questions put to the accused and
his answers were these :-
” Q: Did you pawn the, ear-ring of your wife with Banta
Mazhbi and squander the proceeds on or about 28th January,
1948 ?
A: No.
Q : Did Lal Singh interfere when you were demanding the ear-
rings from said Banta Singh on 28th January, 1948, at
Nathuwala and remark that the sweeper, i.e., Banta, was
speaking truth when he denied the transaction ?
A: No.
Q: Did you on 28th January , 1948, at Nathuwala along with
your father Sunder Singh, Banta Singh, and Teja Singh, you
Banta Singh and Teja Singh being armed with spears, attack
Lal Singh, his ‘son Bagher Singh and Dhan Kaur at their
house and in furtherance of the common intention of you all,
Banta and Teja caused simple injuries to Lal Singh with
spears and you caused fatal injuries with a spear to Bagher
Singh deceased?
A No. Q Why this case against you ? A Due to enmity. Q Anything else to say? A No."
The Sessions Judge did not even take care to ask the
accused the routine question whether the statement made by
him in the committal court was correct. As if bard pressed
for time, be simply asked him whether he had made that
statement read out to him in the committal court, and was
satisfied with an
427
answer, in the affirmative. The, second question asked, is
of a general character and.’ does not satisfy the
requirements of section 342, Criminal Procedure Code. We
are of the opinion that when the Sessions Judge is required
by that section 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. It was pointed out by
this Court in Tara Singh v. The State(1) that the whole
object of the section, is to afford the accused a fair and
proper opportunity of explaining circumstances which appear
against him and that 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.
In this particular case at one stage of the argument we were
inclined to order a retrial of the accused in view of the
defective examination of the accused by the Sessions Judge
but on further thought we have reached the conclusion that
the ‘High Court was right in the view that the defective
procedure followed by the Sessions Judge in this respect has
not occasioned any prejudice to the accused. The facts of
the case are free from any complication and the point in
issue was a simple one and it cannot be said that the per-
functory examination of the appellant did any damage. The
only point appearing in the evidence against the accused was
that he gave a barchha blow to Bagher Singh. 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 the quarrel. His answer to this
specific question in the committal court was that he was
innocent and that he was being implicated owing to
(1) [1951] S.C.R. 729.
428
enmity. He stuck to that reply in the Court of Session
after fully understanding what he was asked. It is 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, as held in Tara Singh’s
case(1), 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. We are of the opinion that the disregard of
the provisions of section 342 in this case is not so gross
as would justify our quashing the conviction and ordering a
retrial.
The result is that we uphold the judgment of the High Court
and dismiss the appeal.
Appeal dismissed.
Agent for the appellant: B. S. Gheba.
Agent for the respondent: G. H. Rajadhyaksha.