Machander, Son of Pandurang Vs. State of
Hyderabad  INSC 45 (27 September 1955)
BOSE, VIVIAN JAGANNADHADAS, B.
SINHA, BHUVNESHWAR P.
CITATION: 1955 AIR 792 1955 SCR (2) 524
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), s. 342.
The appellant was put up on his trial on a
charge of murder. The trial continued for 41/2 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 from 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
unsustainable 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
more technicalities 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
That while it is no doubt incumbent on the
court to see that no guilty person escapes, it is still more its duty to see
that justice is not delayed and accused persons indefinitely harassed. The
scales must be held even between the prosecution and the 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
CRIMINAL APPELLATE JURISDICTION: 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 No. 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 Court of the
Sessions Judge, Osmanabad, in Criminal Case No. 12/8 of 1951. 525 R. Patnaik
for the appellant.
Porus A. Mehta and P. G. Gokhale for the
1955. September 27. The Judgment of the.
Court was delivered by 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
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 Machander
was charged with the murder of one Manmatb. Machander's brother Gona was also challenged
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 appellants 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 belonoing 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 the 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 526 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 at
Parenda, 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 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 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 time
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.
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 bad 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 527 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. 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 bloodstained
earth and grass were found and a bloodstained stone, also some of the articles
which Shantiling (P.W. 10) had described to the police on the 26th, namely
pieces of a silver linga, two silver kadas, 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
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
1. 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.
67 528 In passing it is to be observed that
this is not the -.lass 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
appellant were both in Court at the same time, they were not there
"together" and in view of the ill 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
3. That there was ill-will between them, but
an ill-will that other members of the appellants family might be expected to
4. That he had full opportunity to commit the
crime, but the same kind of opportunity that the other members of his family also
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 said 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 bold that mere knowledge thirteen days later, coupled with a
motive which three others 529 share, and a lie about the deceased's movements
told four or 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.
We 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
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 bearing the appellant's side of the story.
We were asked to reopen the question and, if
necessary, to 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 of 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 ever since, that is
to say, for over 4 1/2 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 is even more necessary to see that
persons accused 530 of crime are not indefinitely harassed. They must be 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
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 of
justice must be kept on an even balance whether for the accused or against him,
whether in favour of the State or not; and one broad rule must apply in all
The error here is 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 conviction and
sentence are set aside and the appellant is acquitted.