# K. C. MATHEW AND OTHERS v. THE STATE OF TRAVANCORE-COCHIN

- **Citation:** [1955] 2 S.C.R. 1057
- **Court:** Supreme Court of India
- **Decided:** 1953-06-15
- **Case number:** Criminal Appeal No. 97 of 1953
- **Bench:** V1v1AN BosE, Venkatarama -Ayyar, Chandra Sekhara Aiy Ar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/k-c-mathew-and-others-v-the-state-of-travancore-cochin-1233
- **Pages:** 10

## Headnote

1057
Sessions Trial-Charge--Diff erent offences against
different accused lumped together-Legality-Examination of the accused neither
full nor· clear-Failure to raise objection at earlier stages-Withholding by the accused of facts within their special knowledge-Inference-Code of Criminal Procedure (Act V of 1898), ss. 225, 342, 537
-Indian Penal Code (XLV of 1860), ss. 302, 149.
The appellants were put up for trial along with others before
the Court of Sessions. The charge against them set out the fact that
they formed an unlawful assembly, stated the common object specifying in detail the part each accused had played and then gave a list
of to;, sections of the Travancore Penal
Code
including
sections
which correspond to s. 302 of the Indian Penal Code read with s.
149.
The Sessions Judge acquitted them under s. 302 read with s.
149 but convicted them on the lesser charges. They appealed to the
High Court against their convictions and the State appealed against
their acquittals under s. 302 read with s. 149. The High Court dismissed their appeals and allowed the appeals against their acquittals
and sentenced each of them to transportation for life. It was contended on their behalf that the charge was not in accordance with
law c,ad their examinations under s. 342 of the Code of Criminal
Proo~dure were defective and prejudiced them.
Heid, that the charge framed was a legal one and was expressly
covered by s. 225 of the Code of Criminal Procedure. Each of the
accused was apprised of the facts alleged against him and he could
easily pick out the relevant sections under which he· was charged.
There could, therefore, be no prejudice to any one of them.
Held, further, that as no objection was taken to the defective
cxamVi.ation under s. 34 2 of the Code of Criminal Procedure at an
earlier stage although the accused w~re represented by counsel, and
as the petition of appeal did not ;et out the questions the court
should have put to them and the answers they would have given
and as they thereby withheld from the court facts which were within their special knowledge,
the court was entitled to draw an adverse conclusion against them and hold that no prejudice had been
caused to them.
That when an accused person is not properly questioned under
s. 34 2 so as to enable him to explain the circumstances appearing in
the evidence against him he is entitled to ask the appellate Court,
which is the ultimate court of fact, to place him in the same position
Deumber 15
1955
Jt.C.Afathtw
and othtrs
v.
•
·rhe State of
T ravancore-C-Ochin
1058
SUPREME COURT REPORTS
[1955J
he would have been in if he had been properly
questioned and to
take the explanation he would have given, if he had been asked, into
c0nsideration when \Veighing the evidence in just the same way as
"the court would have done if the explanation had
been there all
along.
But he cannot ask to be placed
in a better position than he
would have
been in if the court had done
its duty from the start.
Th~.:r.for.::, when complainin,g of prejudice he 1nust set out the questions he should have been asked and indicate the answers he would
have given.
CRIMINAL
APPELLATE
JURISDICTION :
Criminal
Appeal No. 97 of 1953.
Appeal under Article 134 ( 1) ( c) of the Constitution from the judgment and order dated the 15th
June 1953 of the Travancore-Cochin High Court in
Criminal Appeals Nos. 54, 55, 56, 58 and 79 of !J52.
S. Mohan Kumaramangalam and S. Subramaniam,
for the appellants.
Sardar Balzadur, for the respondent.
1955. December 15. The Judgment of the Court
was delivered by
BosE J.-This is a case of rioting in which two
police constables were killed. Thirty one persons were
put up for trial. The learned Sessions Judge acquitted
twenty one of them on all the charges and acquitted
the remaining ten of the most serious charge of all,
namely the offence falling under the sections of the
Travancore. Penal Code which correspond to section
302 of the Indian Penal Code read with section 149.
But she
c

## Text

2S.C.R.
SUPREME COURT REPORTS
K. C. MATHEW AND OTHERS
v.
THE STATE OF TRAVANCORE-COCHIN.
(V1v1AN BosE, VENKATARAMA -AYYAR and
CHANDRA SEKHARA AIY AR JJ.]
1057
Sessions Trial-Charge--Diff erent offences against
different accused lumped together-Legality-Examination of the accused neither
full nor· clear-Failure to raise objection at earlier stages-Withholding by the accused of facts within their special knowledge-Inference-Code of Criminal Procedure (Act V of 1898), ss. 225, 342, 537
-Indian Penal Code (XLV of 1860), ss. 302, 149.
The appellants were put up for trial along with others before
the Court of Sessions. The charge against them set out the fact that
they formed an unlawful assembly, stated the common object specifying in detail the part each accused had played and then gave a list
of to;, sections of the Travancore Penal
Code
including
sections
which correspond to s. 302 of the Indian Penal Code read with s.
149.
The Sessions Judge acquitted them under s. 302 read with s.
149 but convicted them on the lesser charges. They appealed to the
High Court against their convictions and the State appealed against
their acquittals under s. 302 read with s. 149. The High Court dismissed their appeals and allowed the appeals against their acquittals
and sentenced each of them to transportation for life. It was contended on their behalf that the charge was not in accordance with
law c,ad their examinations under s. 342 of the Code of Criminal
Proo~dure were defective and prejudiced them.
Heid, that the charge framed was a legal one and was expressly
covered by s. 225 of the Code of Criminal Procedure. Each of the
accused was apprised of the facts alleged against him and he could
easily pick out the relevant sections under which he· was charged.
There could, therefore, be no prejudice to any one of them.
Held, further, that as no objection was taken to the defective
cxamVi.ation under s. 34 2 of the Code of Criminal Procedure at an
earlier stage although the accused w~re represented by counsel, and
as the petition of appeal did not ;et out the questions the court
should have put to them and the answers they would have given
and as they thereby withheld from the court facts which were within their special knowledge,
the court was entitled to draw an adverse conclusion against them and hold that no prejudice had been
caused to them.
That when an accused person is not properly questioned under
s. 34 2 so as to enable him to explain the circumstances appearing in
the evidence against him he is entitled to ask the appellate Court,
which is the ultimate court of fact, to place him in the same position
Deumber 15
1955
Jt.C.Afathtw
and othtrs
v.
•
·rhe State of
T ravancore-C-Ochin
1058
SUPREME COURT REPORTS
[1955J
he would have been in if he had been properly
questioned and to
take the explanation he would have given, if he had been asked, into
c0nsideration when \Veighing the evidence in just the same way as
"the court would have done if the explanation had
been there all
along.
But he cannot ask to be placed
in a better position than he
would have
been in if the court had done
its duty from the start.
Th~.:r.for.::, when complainin,g of prejudice he 1nust set out the questions he should have been asked and indicate the answers he would
have given.
CRIMINAL
APPELLATE
JURISDICTION :
Criminal
Appeal No. 97 of 1953.
Appeal under Article 134 ( 1) ( c) of the Constitution from the judgment and order dated the 15th
June 1953 of the Travancore-Cochin High Court in
Criminal Appeals Nos. 54, 55, 56, 58 and 79 of !J52.
S. Mohan Kumaramangalam and S. Subramaniam,
for the appellants.
Sardar Balzadur, for the respondent.
1955. December 15. The Judgment of the Court
was delivered by
BosE J.-This is a case of rioting in which two
police constables were killed. Thirty one persons were
put up for trial. The learned Sessions Judge acquitted
twenty one of them on all the charges and acquitted
the remaining ten of the most serious charge of all,
namely the offence falling under the sections of the
Travancore. Penal Code which correspond to section
302 of the Indian Penal Code read with section 149.
But she
convicted
them
on
several
of
the lesser
charges and imposed sentences ranging from two to
five
years O:l each count and directed that the sentences should run consecutively except
in
the
cases
of accused 5 to 8 and 18. She sentenced each of them
on only one count and so there was only one sentence.
The convicts appealed to the High Court and the
State of Travancore-Cochin also appealed against the
acquittals on tlw murder-cum-rioting count.
The
High
Court dismissed
the appeals
made
by
the
ten
accused
and
allowed
the
appeals
against
the acquittals and imposed the lesser
sentence
2S.C.R·
SUPREME COURT REPORTS
1059
of transportation m each case.
These ten accused
now appeal here.
The accused are said to be communists. Two of
them,
namely
numbers
30
and 31,
were
arrested
on 27-2-1950 at about 1 P.M. and were confined in the
Edappilly police
lock up. The prosecution case
is
that the other 29
accused entered into a conspiracy
to release their comrades and in pursuance of that
conspiracy attacked
the police station at about 2 A.M.
on the 28th armed with
deadly weapons such as
choppers, knives,
bamboo and
other
sticks and a
dagger. Two police constables, Mathew and Velayudhan, were killed in the course of the raid.
The first point taken before us is that the charge is
not according to law and has prejudiced the appellants
in their defence. The complaint on this score is that
each
accused
has
not been
told
separately
what
offences he is being tried for. They have all been
lumped together as follows :
"The aforesaid
offences
having been proved by
the evidence
adduced
by
the
prosecution,
you
the
accused
1-29
have
committed
offences punishable
under .................... "
and then follow
a
string of
ten
sections
of the
Travancore Penal Code.
We are. satisfied that the charge neither caused, nor
could have caused, prejudice. The body of the charge
set out the fact that the accused 1-29 formed an unlawful assembly and stated the common object ; and
then the charge specified in detail the part that each
accused
had
played.
In the
circumstances,
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 ; section 225 of the Criminal Procedure Code
expressly covers this kind of case.
The next argument was that the examination of
each accused under section 342 of the Criminal Prcr
cedure Code was defective and that that caused pre1955
K.C.Mathew
l1Ni others
v.
The State of
T raoancore-Cochi11
Bose J.
195!>
ICC.Ma1'11w
and ollrm
v.
TllA Stott of
Traoaneon-Coehin
Bo11 ].
-1060
SUPREME COURT REPORTS
[1955)
judice. We agree that the examination was not as
full or as ·clear as it should have been but we are not
satisfied that there was any prejudice.
It i' to be noted that the question of prejudice was
not raised in either of the Courts below nor was it
raised in the grounds of appeal to this Court. The
point wa> taken for the first time in the arguments
before us and even there counsel was unable to say
that his clients had in fact been prejudiced ; all
he
could urge was that there was a possibility of prejudice.
We agree that 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
necessarily weigh
heavily
against the accused particularly when he has
been represented by counsel throughout. The Explanation to section 537 of the Criminal Procedure Code
expressly requires the Court to
"have regar<l
to the fact whether the objection
could and should have been raised at an earlier stage
in the proceedings".
Another strong circumstance is this : the petition
for appeal does not set out the questions that, according to the appellants, they should have been asked
nor does it indicate the answers that they would have
given if they had been asked. 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 case
must be exceptional.
After all, the only person who
can really tell us 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. But if the attitude of the accused, whether in person or through the mouth of his counsel,
is : "I don't know what I would have said. I still have
2 S.C.R.
SUPREME COURT REPORTS
1061
to think that up. But I might have said this, that or
the other", then there will ordinarily be little difficulty in concluding that there neither was, nor could
have been,
prejudice.
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.
The purpose of section 342 is set out in its opening
words-
" for the purpose of enabling the accused to explain any circumstances appearing in the evidence
against him".
If the accused is not afforded that opportunity, 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
ask this in the last Court of fact he is in little better
position when the case comes here than he would be
in had
he, say,
omitted to call, in
his
defence, a
witness who he says, would have deposed in his
favour. In very
exceptional cases he might be allowed
to call such a witness even at such a stage, but if he
does not ask for that when his case is under appeal
he would normally have but slender
hope of succeediug here. It is true he is in a stronger position when
section 342
is in question because the
section places
a solemn and serious duty on the Court, and the
accused can very rightly
and
properly
complain if
the Court fails to do its duty ; but when all is said
and done, he cannot claim to be placed in a better
position than he would have been in had the Court
discharged its duty at the outset. Therefore, all he is
entitled to say on appeal is, "I was not asked to
explain this matter. Here is my explanation ; this is
1955
K.C.Matht11J
and others
v.
Thi Sate of
T ravancore-Cochin
Bose].
1955
K.C.},,fathew
and others
v.
The State of
T ravancore·Cochin
Bos1 ].
1062
S_UPREME COURT REPORTS
[1955 i
what I would have said : please consider it". But if
he does not take up that position at the appellate
stage and complains of prejudice for the first time
here, the inference is strong that the plea is an afterthought and that there was no real prejudice.
However, as the true meaning of "prejudice" m
section 537 and other sections of the Code is not Ytt
properly
appreciated,
probably
for
want of an
authoritative
decision
by
this
Court, we invited
counsel to tell us what questions his clients should have
been asked and at any rate to indicate what, according to him, they
might reasonably
have
said. His
main grievance on this
score
is
that none of the
appellants has been asked about the common object
and he said it is obvious that most pf them could
very reasonably have said that they had no idea that
it was murder and that they did not even know that
any of the
members of
the
assembly
carried lethal
weapons.
It is necessary at this stage to explain that both
courts find that there was an unlawful assembly and
that the police station at Edappilly was raided and
that arms and ammunition and some of the station
records were carried away by the raiders ; also that
two of the police constables who were on sentry duty
were murdered.
The only
point on which they differ
is about the common object.
The charge set out that the common object was to
rescue the 30th and 31st accused by force and to murder
the policemen on duty as well as to loot the records,
arms
and
ammunition of the police station. The
learned Sessions Judge found, mainly because of a
concession
made
by
the Public Prosecutor, that the
common object could not be placed higher than that
of rescue despite the fact that some of the members
were
armed with deadly weapons ; accordingly she
(for the learned Sessions Judge was a lady) acquitted
all the accused of the charge under
se~tion 302 of the
Indian Penal Code read with section 149, or rather
under the corresponding provisions of
the Travancore Penal Code.
The State
appealed against these
acquittals and
2 S.C.R.
SUPREME COURT REPORTS
1063
the High Court thereupon convicted on the murdercum-rioting charge and imposed the lesser sentence.
The convicts also appealed but their appeals were
dismissed.
In view of the admission made by the learned
Public Prosecutor we do not think the High Court
was justified in holding that the assembly had the
common object to murder but we do not think that
that makes any difference to the result.
Even if it be assumed that the common object was
only to res.cue
the two accused who were in the
lock
up, it is obvious that the use of violence was implicit
in that . object. People do not gather together at the
dead of
night armed
with
crackers and
choppers and sticks to rescue persons who are 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 and simpleminded 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 be need arise ; and
he would have to be a moron 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 section
14? 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. This answers the main ground of appeal.
But to go back to the argument about section 342
of the
Criminal Procedure Code. What we have to
assess
here
is the
explanation which counsel says
each appellant could reasonably have given in the
trial Court if he had been asked for one, namely that
1955
K.C.Mathew
and others
y.
The State of
Travancore-Cochin
Bose].
11955
K.C.Matll1w
muJ olhlfs
v ..
Tht Stott of
Tt avancort~Cochin
Bos1 J.
1~4
SUPREME COURT REPORTS
[1955)
he did not know that any member of the assembly
carried lethal weapons and that murder was likely to
result. The answer to that is plain. There is nothing
to indicate that the appellants are deficient in intelligence and understanding, and if they are judged by
the standard of men of reasonable intelligence, as they
must be,
then an explanation of this kind cannot be
believed. Men who band themselves together to rescue
persons locked behind prison bars and guarded by
armed police do not set out with bare hands and
doves
of peace ; of course, they arm themselves with
implements that are
strong
enough to break open
locks and break down doors and iron bars and it is
obvious that implements of this kind can be used
with deadly effect should the need and the desire to
use them in that way arise. It hardly matters whether each member knew the exact nature of the implements, namely that some
had choppers and some
sticks.
It
is
enough that they
knew
that instruments that could be used as deadly weapons would
necessarily have to be carried if the purpose underlying the common object was to be achieved. Therefore, even if the answer now suggested to us had been
given in the trial Court it would have made no difference to the -result.
Turning next to the first accused, counsel said that
he was not asked about identification in his examination under section 342.
But
that
is
not correct.
The question put was-
"P.Ws. 1 and 4 say that they had seen you, beating constables Mathew and V elayudhan, etc."
The point about identification is implicit in this question and we are satisfied that this appellant understood what the question imported because the crossexamination
of
these
witnesses
discloses
that the
question
of identity was present to the mind of the
cross-examiner; he specifically questioned
each witness
about the matter.
Next, it was said that no question was put to the
first
accused
about any robbery, but we need not
examine this any further because the matter becomes
academic once the murder-cum-riot conviction is up-
2 S.C.R.
SUPREME COURT REPORTS
1065
held and once we make the sentences concurrent instead of consecutive as we intend to do.
The argum,nts on this point about the rest of the
appellants
except the seventh
accused, followed
the
same rattern and we need not examine them separately.
As regards the seventh accused, the only point of
substance in his case is
that he was not asked to expiain his presence at K:idiparambu where .the agreement to rescue and the planning are said to have
taken shape.
Counsel
said
that
this
accused
lives
there, so the mere fact that he was seen among a
crowd that had gathered there in the day time could .
not be regarded as a circumstance of
suspicion. That
would have had force had it not been for the fact
that he was again seen at the police station at 2 A.M.
and was identified as one of the rioters who took an
active part in the raid.
\V c have gone into the question of possible prejudice under section 342 in the way we have because,
as we have said, appellants do not appear to appreciate what is necessary when this kind of plea is
raised. We do not intend to lay down any hard and fast
rule but we do wish to emphasise that what we have
done in this case is not to be regarded as a precedent
and that in future it will be increasingly difficult to
induce this Court to look into questions of prejudice
if the requisite material is not placed before it and if
appellants
deliberately
withhold
from
the
Court
assistance which it is in their power to render ; an
inference adverse to them must be expected if that
attitude is adopted.
Counsel then tried to attack the credibility of the
witnesses and
the
correctness of the
findings
generally but, following our usual practice, we decline
to interfere with concurrent findings of fact where
there is ample evidence which, if believed, can be used
in support of the findings. That is the position here.
The only ground on which interference is called for
is where the sentences were dire<:'.ted to run consecutively.
The High Court confirmed the convictions
and sentences passed by the learned Sessions Judge
1955
K.C. Mathtta
ll1lll othtrs
v.
Tlt.4Staieof
T ravancor11-Co&hin
Bost].
1955
K.C.MaJ/itw
and oth.trs
v.
The State of
T ravancore-Cochin
Bolt J.
1955
Decembtr 16.
1066
SUPREME CO:URT REPORTS
(1955]
but when it allowed the appeal by the State and
passed
the lesser sentence it said
that "the sentences
passed on each
accused
will
run
con~rrently". We
are not sure
whether the learned Judges meant that
the sentences
imposed by
ihem should run concurrently with the others or whether they meant to
allow the appeal to that extent. In order to remove
all doubts, we allow the appeal to the extent of directing that the sentences
imposed on each accused shall
run concurrently
and not
consecutively.
Except for
that, the appeal is dismissed.
RAJAHMUNDRY ELECTRIC SUPPLY
CORPORATION LTD.
ti.
A. NAGESWARA RAO AND OTHERS.
[VIVIAN BosE and VENKATARAMA AYYAR JJ.]
Indian Companies Act, 1913 (Vil of 1913), s. 153-C sub-clause
(J)(a)(i) and s. 162(v) and (vi)-Application for an order under
s. 153-C-Validity t!tereof to be judged Oil the facts at the time of
presentation thereof-Subsequent events-Effects thereof-Order under
s. 153-C-Whether competent before facts proved make out a case for
u1inding up under s. 162-Wordsi "just and equitable" in s. 162(vi)
-Whether ejusdem generis with the matters mentionned in clauses (i)
to (v) of the section--Mere misconduct of Directors in misappropriat.
ing funds of a Company-Apart from other circumstances-Whether
warrants an order for the winding up of a Company-CircumstanceJ
under which an order for winding up can be passed by the court.
An application was filed by the first respondent under s. 162
clauses (v) and (vi) of the Indian Companies Act for the winding up
of the Company on the grounds, inter-alia, that the affairs of the
Con1pany were
being mismanaged and that the directors had misappropriated the funds of the Company.
In the alternative it was
prayed that action might be taken
under s. 153-C and appropriate
orders be passed to protect the interests
of the shareholders.
The
High Court held (i) that the charges set out in the application had
been substantially prove~ and that it was a fit case for an order for
winding up being made under s. 162 (vi) and (ii) that under the
circumstances action could be taken under s. 153-C and accordingly
it appointed two administrators
with all the powers of directors to
look after the affairs of the Company. On appeal by special leave
to the Supreme Court by the Company it was contended that the