# Porus A. Mehta and P. G. Gokha/.e dent. for the responMuliantllr, Son efP~ v. September 27. The Court was delivered by Judgment of the

- **Citation:** [1955] 2 S.C.R. 524
- **Court:** Supreme Court of India
- **Decided:** 1955
- **Case number:** CRIMINAL APPELLATE JuR1smcnoN : Criminal Appeal No. 9 of 1955
- **Bench:** VIVIAN BosE, Jagannadhadas, B. P. Sinha
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/porus-a-mehta-and-p-g-gokha-e-dent-for-the-responmuliantllr-son-efp-v-september-1508
- **Pages:** 7

## Headnote

Examination
of the accused-Duty of trial court-Failure to
examine accused on material
points-Effect-Acquittal-Code of
Criminal Procedure (Act V of 1898), 1. 342.
The appellant was put up on his trial on a charge of murder.
The trial continued for 4! years. His brother who was a co-accused
absconded. The evidence against the appellant was circumstantial.
His confession, made 8 days after his arrest, led to certain discoveries but he was never questioned about it by the trial court under s.
342 of the Code of Criminal Procedure. The High Court excluded
the confession fro!ll the evidence, upheld the conviction but altered
the death sentence to one of rigorous imprisonment for life. The
Supreme Court took the view that the High Court was right in excluding the confession from the evidence and the conviction was un-
~ustainablc on the evidence on record. Held, that in the particular
facts of the case the omission to examine the accused under s. 342
of the Code was no mere technicality and it would. be unjust to the
accused to remand the case for a retrial and the order of conviction
and sentence passed on him must be set aside.
That while it is no doubt incumbent on the court to sec that
no guilty person escapes, it is still more its duty to sec that justice
is not delayed and accused persons indefinitely harassed. The scales
must be held even between the prosecution and t~ e accused.
That it is imperative that
Magistrates and
Sessions Judges
should remember the duty that s. 342 of the Code of Criminal Procedure imposes on them of questioning the accused person fairly and
properly telling him in clear and simple language the case he has to
meet and the material points made against him so that he can, if he
so desires, explain and meet them.
CRIMINAL
APPELLATE
JuR1smcnoN :
Criminal
Appeal No. 9 of 1955.
Appeal by
special leave
from the Judgment and
Order dated the 26th September, 1951, of the Hyderabad High Court in Criminal Confirmation N?. 638/6
of 1951 and Criminal Appeal
No. 770 of 1951, arising
out of the Judgment and Order dated the 27th June,
1951, of the Q>urt of the Sessions Judge, Osmanabad,
in Criminal Case No. 12/8 of 1951.
2 S.C.R.
SUPREME COURT REPORTS
525
R. Patnaik for the appellant.
1955
Porus A. Mehta and P. G. Gokha/.e
dent.
for the responMuliantllr, Son
efP~
v.
1955.
September
27.
The
Court was delivered by
Judgment of
the
91'* of H,U,dbad
BosE J.-This is another of those cases in
which
Courts are compelled to acquit
because Magistrates
and Sessions Judges
fail to appreciate the importance
of section 342 of the Criminal Procedure Code 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.
The facts
are
simple.
The appellant
Machandcr
was charged
with
the murder of one Manmath.
Machander's brother Gona
was also challaned but as
he absconded he could not be tried.
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.
In or about the year 1947 the appellant appears to
have stolen a pair of bullocks and a cart belonging to
the deceased. The deceased prosecuted him for the
theft and also
instituted
a civil suit for the price of
the cart and bullocks. He succeeded
in both cases.
The appellant
was convicted
of theft
and sent to
jail. a decree
was
also
passed
against him for
Rs. 520 and that decree was duly e

## Text

1955
~•plnoHT21
524
SUPREME COURT REPORTS
MACHANDER, SON OF PANDURANG
ti.
STATE OF HYDERABAD.
[1955]
[VIVIAN BosE, JAGANNADHADAS and B. P. SINHA JJ.]
Examination
of the accused-Duty of trial court-Failure to
examine accused on material
points-Effect-Acquittal-Code of
Criminal Procedure (Act V of 1898), 1. 342.
The appellant was put up on his trial on a charge of murder.
The trial continued for 4! years. His brother who was a co-accused
absconded. The evidence against the appellant was circumstantial.
His confession, made 8 days after his arrest, led to certain discoveries but he was never questioned about it by the trial court under s.
342 of the Code of Criminal Procedure. The High Court excluded
the confession fro!ll the evidence, upheld the conviction but altered
the death sentence to one of rigorous imprisonment for life. The
Supreme Court took the view that the High Court was right in excluding the confession from the evidence and the conviction was un-
~ustainablc on the evidence on record. Held, that in the particular
facts of the case the omission to examine the accused under s. 342
of the Code was no mere technicality and it would. be unjust to the
accused to remand the case for a retrial and the order of conviction
and sentence passed on him must be set aside.
That while it is no doubt incumbent on the court to sec that
no guilty person escapes, it is still more its duty to sec that justice
is not delayed and accused persons indefinitely harassed. The scales
must be held even between the prosecution and t~ e accused.
That it is imperative that
Magistrates and
Sessions Judges
should remember the duty that s. 342 of the Code of Criminal Procedure imposes on them of questioning the accused person fairly and
properly telling him in clear and simple language the case he has to
meet and the material points made against him so that he can, if he
so desires, explain and meet them.
CRIMINAL
APPELLATE
JuR1smcnoN :
Criminal
Appeal No. 9 of 1955.
Appeal by
special leave
from the Judgment and
Order dated the 26th September, 1951, of the Hyderabad High Court in Criminal Confirmation N?. 638/6
of 1951 and Criminal Appeal
No. 770 of 1951, arising
out of the Judgment and Order dated the 27th June,
1951, of the Q>urt of the Sessions Judge, Osmanabad,
in Criminal Case No. 12/8 of 1951.
2 S.C.R.
SUPREME COURT REPORTS
525
R. Patnaik for the appellant.
1955
Porus A. Mehta and P. G. Gokha/.e
dent.
for the responMuliantllr, Son
efP~
v.
1955.
September
27.
The
Court was delivered by
Judgment of
the
91'* of H,U,dbad
BosE J.-This is another of those cases in
which
Courts are compelled to acquit
because Magistrates
and Sessions Judges
fail to appreciate the importance
of section 342 of the Criminal Procedure Code 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.
The facts
are
simple.
The appellant
Machandcr
was charged
with
the murder of one Manmath.
Machander's brother Gona
was also challaned but as
he absconded he could not be tried.
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.
In or about the year 1947 the appellant appears to
have stolen a pair of bullocks and a cart belonging to
the deceased. The deceased prosecuted him for the
theft and also
instituted
a civil suit for the price of
the cart and bullocks. He succeeded
in both cases.
The appellant
was convicted
of theft
and sent to
jail. a decree
was
also
passed
against him for
Rs. 520 and that decree was duly executed.
We now come to the events
immediately preceding the murder. The appellant
and his family took
forcible possession
of some
land belonging to the
19~5
}J.achandtr, Son
of Paniurang
v.
Stat~ of Hyderabad
Bos~J
526
SUPREME COURT REPORTS
[1955]
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 on
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 :!J: Parenda, where
the Court is situate,
up to 3 P.M. on the 16th, the day the decision was
announced.
)hat 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 but
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.
It is proved that the deceased went to Parenda on
the 15th for the last hearing of the case and that the
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 time on the 15th
and that
therefore the appellant knew that
the
d~
ceased 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.
Four
or
five· days
after the case,
the appellant
came
home but not the deceased.
The deceased's
son Shanti ling (P. vV. 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
2 S.C.R.
SUPREME COURT REPORTS
527
anxious,
so he. went to Parenda to make enqumes.
The pleaders there
told him
that his father had attended court on the 15th and that he was in Parenda
till 3
P.M. on the 16th.
Shantiling (P. W. 10)
immediately informed the
police that
his father was
missing and gave them a description of him and also
a list of the things he was wearing and a description
of the horse he
was riding.
This was on the 26th.
Three days later, on the 29th, he lodged a regular
complaint and said that
he was afraid his father had
been murdered and said
that he suspected
the appellant and his brother Gona.
The appellant
was arrested the same day and after
his arrest he led the police and Panchas to a place
where
blood-stained earth and grass were found and
a blood-stained stone, also some of the articles which
Shantiling (P. W. 10)
had des.cribed to the police on
the 26th, namely pieces
of a silver linga,
two silver
~adas, a silver spike and a white gilt button.
All
except the kadas were found to be stained with human
blood.
About 25 paces
from
here the
appellant
pointed out another place
where the
corpse of the
deceased
was found to be buried.
Pearl ear-rings and
a kardoda of yarn
with three iron keys were still on
the body.
They were all stained
with human blood
and are proved to have belonged to the deceased.
On the 1st of January 1951 the appellant
took the
police and the Panchas to a place where two saddle
straps and two iron stirrups were buried.
One of the
stirrups was stained with human blood.
On the 3rd the reins of the horse and the horse
itself were discovered but this discovery was not at
the instance of the appellant.
Except for
the confession, which has been excluded,
this is all there
is against the appellant.
The question is whether that is enough to bring guilt home to
him. Stated briefly, the circumstances are1. That the appellant knew that the deceased
had attended the Court at Parenda on
the 16th
and
that he had seen him
there but when questioned
about
it he told a lie.
1955
Machander, <Son
of Pandurang
v.
Stal1 of Hyderabatl
Bose].
19.55
Mae/uJltdn, SIM
q/P-.,.1
v.
Stau of ~'6t1Nd
BM•]·
528
SUPREME COURT REPORTS
[ 19.55]
In passing it is to be observed that this is not the
class of case in which an accused person is last seen
with
a murdered man within
a few hours
of the
murder.
Though the deceased and the appeJlant were
both in Court at the same time, they were not there
"together" and in view of the i11-will between them and
in view of the fact that
the deceased went on a horse
it is unlikely that they travelled together either going
or coming;
and the appellant was not with the deceased when he was last seen at 3 P.M. on the 16th.
But
it
is clear
that the appellant
wanted
to hide
.something.
2. That thirteen days after the murder he knew
that Manmath
had been murdered.
He also
knew
where
the murder had been committed
and where the
body
and certain
articles belonging
to the deceased
were hidden.
3. That there was ill-will between them, but an
ill-will that
othre members of the appellant's family
might be expected to share.
4. That he had fuJI
opportunity to commit the
crime,
but the
same
kind of opportunity
that the
other members of his family also had.
The question is whether these four circumstances,
regarded in the background of this case, are sufficient
to warrant a conclusion of murder by the appellant.
In our opinion, they are
not because the same circumstances could be s;1id to point with equal suspicion at
other members
of the appellant's family.
It has to
be remembered
that the brother Gona
was also suspected
and that he absconded and could not be traced.
We do not say that he was
the murderer and it would
be wrong to suggest that in his absence, but if he was,
then the appellant's knowledge of the murder and
of
the
concealment,
thirteen
days
later, might have
been derived from Gona, or it might even be that he
saw his brother commit the crime and hide the corpse
and
the articles.
Those are hypotheses that are not
unreasonable on the facts of this particular case
and
they have not been reasonably excluded. Consequently,
we are unable to hold that mere knowledge thirteen
days later, coupled with a motive which three others
,
.2 S.C.R.
SUPREME COURT REPORTS
529
share, and a lie about the deceased' s movements told
four,
<'>r five days after the murder, are enough; and
as that is all that the High Court has based on, the
conviction must be set aside.
Y.l e have assumed throughout that the identity
of
the corpse that was discovered on the 29th and the
fact of murder
have been established. Those facts
were not admitted before us but we need not discuss
the point.
It is
enough to say that, in our opinion,
both facts are satisfactorily proved.
We referred, earlier in our judgment, to a confession which the High Court has excluded. This was
excluded from
evidence
because
the appellant was
not questioned about it under section 342,
Criminal
Procedure Code.
We gather that the High Court
thought
that that occasioned
prejudice though the
learned Judges
do not say so in so many words· The
appellant was
arrested on the 29th and he
made
many discoveries on the 29th December 1950 and on
the 1st, 2nd and 3rd January
1951 but did not confess
till the 6th.
Much might have happened in the eight
days between his arrest and the 6th, so the
High
Court was not unjustified in refusing to take that into
consideration without
hearing the appellant's side of
the s,tory.
We were asked to reopen the question and, if necessary,
t<'> remand the case.
But we decline to do that.
Judges
and
magistrates
must realise the importance of the examination under section 342 of the
Criminal Procedure Code and this Court has repeatedly
warned them or the consequences that might ensue in
certain cases.
The appellant was arrested in December
1950 and has been on his trial one way and another
.:ver since, that is to say, for over 4} years.
We are
not prepared to keep persons who are on trial for
their lives
under indefinite suspense because
trial
judges omit to do their duty. Justice is not one-sided.
It has many facets and we have to draw a nice balance
between conflicting rights and duties.
While it is incumbent on us to see that the guilty do not escape it
.ts even .m0re necessary
to see
that persons accused
1955
Machandtr, Son
of Pandurang
v.
State of Hyderabad
Bo1tJ.
1955
A1achander, Son
ofPandurang
v.
Stalt of Hydtrabad
BoJ' J.
530
SUPREME COURT REPORTS
[1955J
of crime are not indefinitely harassed. They
must he
given a fair and impartial trial and while
every
reasonable
latitude must be given to those concerned
with the detection of crime and entrusted with the
administration of
justice, limits
must be placed on
the lengths
to
which
they may go. Except in clear
cases of guilt, where the error is purely technical, the
forces that are arrayed against the accused should no
more be permitted in special
appeal
to repair the
effects of their bungling than an accused should be
permitted to repair gaps in his defence which he could
and ought to have made good in the lower courts.
The scales for justice must be kept on an even balance
whether for the accused or agaii:ist him, whether in
favour of the State or not; and one broad rule must
apply in all cases.
The error here ts
not a mere technicality. The
appellant appears
to have been ready
to disclose
all
on the 29th and make a clean breast of everything
and yet the police waited eight days before getting a
confession judicially recorded.
That may be capable
of explanation but the difficulty of asking an accused
person to establish facts of this kind in his favour
four and a half years later is obvious. Without therefore attempting to lay down any general rule, we are
not prepared to order a retrial in this case because of
the facts that appear here.
The appeal is allowed. The ~<;>nviction and sentence
are set aside and the appellant is acquitted.