Mahto & ANR. Vs. State of
Jharkhand)  INSC 657 (16 April 2008)
IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE
JURISDICTION CRIMINAL APPEAL NO. OF 2008 (Arising out of S.L.P. (Crl.) No. 881
of 2007) Lattu Mahto & Anr. ... Appellants The State of Bihar ...Respondent
(now Jharkhand) Dr. ARIJIT PASAYAT, J.
1. Leave granted.
2. Challenge in this appeal is to the judgment of a Division Bench of the
Jharkhand High Court dismissing the appeal filed by the appellant. Three
appeals were filed by ten accused persons. In all there were 11 accused persons
who were convicted. Appellants Latu Mahto and Nanu Chand Mahto along with one
Khiru Mahto had filed Criminal Appeal No.384
of 2000 (R). Five others had filed Criminal Appeal No. 362 of 2000 (R). They
were convicted for offences punishable under Section 302 read with Section 149
of the Indian Penal Code, 1860 (in short the `IPC'). Two others had filed
Criminal Appeal No. 411 of 2000(R) and they were found guilty of offence
punishable under Section 302/34 and 302/149 IPC.
3. Prosecution version as unfolded during trial is as follows:
Informant Phulchand Mahto was planting sweet potato alongwith Buddhu Mahto
(hereinafter referred to as `deceased') in the morning of 17.7.1987 in the
field situated near their house in village Taranari, Tola-Beharatand, when
appellants Kartik Mahto, Sukar Mahto and Bhim Mahto came there with bullock to
plough and tried to plough the field belonging to them. This was protested to
and they were forced to retreat by the informant side. However, within a short
time, all the above named accused persons along with appellants Beni Mahto,
Manjhi Mahto, Nunuchandra Mahto, Latu Mahto, 2
Koyla Mahto, Khiru Mahto, Mahru Thakur returned armed variously with Bhakuwa,
farsa, sword, lathi, bows and arrows.
According to the informant, appellant Beni Mahto was carrying Bhakuwa,
appellant Kartik was carrying sword, appellant Koyal Mahto was carrying Farsa,
appellant Khiru Mahto was carrying Ballam, appellant Sukar Mahto was carrying bow
and arrows, appellant Nunuchand was carrying Tangri, and appellant Bhim Mahto
was carrying Bhakuwa and others were carrying lathi.
According to informant Phulchand Mahto (PW4), deceased was given Bhakuwa
blow by appellant Beni Mahto on his neck after which he fell down. Thereafter,
Kartik Mahto started giving sword blows on his father causing various injuries
on his body. It is further asserted that when the informant and his uncle Bhola
Mahto tried to intervene, they were also assaulted. Appellants further
assaulted Sanjhwa Devi and one Lakhan Mahto, who were ploughing the field
nearby. During this incident, appellant Sukar Mahto was 3
shooting arrows. The informant and other injured witnesses raised alarms on
which the villagers arrived there and saw the occurrence. The appellants
thereafter fled away. The reason behind this incident was said to be dispute
regarding Gairmajarua land which was possessed by the informant since long. The
father of the informant, Budhu Mahto died on the spot.
The matter was reported to Nawadih Police, which arrived at the spot in
presence of witnesses and started investigation. The police prepared inquest
report of the dead body of Budhu Mahto and seized bloodstained Bhakuwa, soil
and seven arrows from the spot in presence of witnesses. On the basis of the
fardbeyan, Nawadih P.S. Case No.38 of 1987 was registered under Sections
147,148,149,323,324,307,302 and 447 IPC. The police completed investigation and
finally submitted charge sheet against eleven accused persons who were charged
under Sections 326,147,148,447and 302/149 4
IPC to which they pleaded not guilty. They were further charged under Section
The main defence taken by the appellants was false of implication. They also
claimed that they were ploughing the land in question since long. However, the
learned trial court after examining the witnesses found and held all of them
guilty of offence punishable under Section 302/149 IPC. The learned trial court
further found and held guilty appellants Beni Mahto and Kartik Mahto in
Criminal Appeal No.411 of 2000(R) under Section 302/34 IPC. All the appellants
were sentenced to serve rigorous imprisonment for life for the offences proved
against them. However, they were not sentenced for any of the minor offences though
found to be proved against them. Appellants Koyla Mahto, Mahru Mahto and Khiru
Mahto died during pendency of the appeals.
It is to be noted that out of accused persons who had filed appeals before
the High Court, appellants Koyla Mahto, Manjhi Mahto and Bhim Mahto died during
the pendency of 5
the appeal. Apart from other factual aspects appellants in the appeal before
the High Court had submitted that the examination under Section 313 of the Code
of Criminal Procedure, 1973 (in short the `Cr.P.C.') was not properly done.
The details of the accusations were not brought to their notice even the
charges framed were not proper. The High Court noted that separate charge form
was not framed by the trial court against the appellant while framing charges.
It was held that the accusations were explained to the appellants during their
statements while their statements were being recorded under Section 313 Cr.P.C.
4. Learned counsel for the appellants submitted that the appellants have
been convicted by application of Section 149 IPC. Their presence and/or
participation have not been established. Examination under Section 313 Cr.P.C.
was not properly done and in any event the charges framed were totally
5. Learned counsel for the respondent-State on the other hand supported the
judgment of the trial court and the High Court.
6. Reason is the heartbeat of every conclusion, and without the same it
becomes lifeless. (See Raj Kishore Jha v. State of Bihar and Ors. (2003 (7) SCC
7. Even in respect of administrative orders Lord Denning M.R. in Breen v.
Amalgamated Engineering Union (1971 (1) All E.R. 1148) observed "The
giving of reasons is one of the fundamentals of good administration". In
Alexander Machinery (Dudley) Ltd. v. Crabtree (1974 ICR 120)(NIRC) it was
observed: "Failure to give reasons amounts to denial of justice".
Reasons are live links between the mind of the decision-taker to the
controversy in question and the decision or conclusion arrived at".
Reasons substitute subjectivity by objectivity. The emphasis on recording
reasons is that if the decision reveals the "inscrutable face of the
sphinx", it can, by its silence, render it virtually impossible for the
Courts to 7
perform their appellate function or exercise the power of judicial review in
adjudging the validity of the decision. Right to reason is an indispensable
part of a sound judicial system;
reasons at least sufficient to indicate an application of mind to the matter
before Court. Another rationale is that the affected party can know why the
decision has gone against him. One of the salutary requirements of natural
justice is spelling out reasons for the order made; in other words, a speaking
The "inscrutable face of a sphinx" is ordinarily incongruous with
a judicial or quasi-judicial performance.
8. The above position was highlighted in State of Punjab v.
Bhag Singh (2004 (1) SCC 547).
9. In the instant case, High Court's judgment is practically unreasoned.
10. Coming to the evidence of PWs 4, 5 & 6, it is clear that PW5 Bhola
does not name the appellant No.1 to be an assailant while PW3 states that he
had assaulted Bhola-PW 5.
Charges framed were common for all the accused persons and so far as Section
149 and 302/34 are concerned, it reads as follows:
"That you on or about the same day at same place were members of an
unlawful assembly, and in prosecution of the common object of which, caused
murder to Budhu Mahto and assault to Bhola Mahto, Sanjhwa Devi and Phulchand
Mahto and you are, thereby, under Section 149 IPC guilty of causing the said
murder and assaults.
And thereby committed an offence punishable under Section 149 IPC and within
Forth that you, on or about the same day of same at same place did committed
murder to Budhu Mahto with common intention committed an offence."
11. So far as Section 313 statement is concerned the only relevant question
was as follows:
"This is the case of the prosecution witnesses that on 17.7.1987 at
villageTaranari, Tola Behratand, P.S. Nawadhi, District Bokaro, you together
with other accused 9 persons armed with weapons formed an unlawful assembly
and in furtherance of the common object of the unlawful assembly, you and other
accused persons killed Budhu Mahto and in course of which injured Bhola Mahto,
Sanjhwa Devi and Phulchand Mahto.
What do you have to say?"
12. It is rightly contented by learned counsel for the appellant that no
appropriate question was posed during examination under Section 313 Cr.P.C. and
appropriate charges were also not framed. It is not the case of the prosecution
that the appellants had committed murder of Budhu Mahto. Additionally, in their
evidence PWs 4, 5 & 6 have not spoken a word about appellants having
assaulted any one of them, so far as the charge under Section 326 IPC is concerned.
13. In Bibhuti Bhusan Das Gupta & Anr. v. State of West Bengal (AIR 1969
SC 381), this Court held that the pleader cannot represent the accused for the
purpose of Section 342 10
of the Code of Criminal Procedure, 1898 (hereinafter referred to as `Old Code')
which is presently Section 313 Cr. P. C.
14. Section 313 Cr. P. C. reads as follows:
"313. Power to examine the accused.--(1) In every inquiry or trial, for
the purpose of enabling the accused personally to explain any circumstances
appearing in the evidence against him, the court-- (a) may at any stage,
without previously warning the accused, put such questions to him as the court
(b) shall, after the witnesses for the prosecution have been examined and
before he is called on for his defence, question him generally on the case:
Provided that in a summons case, where the court has dispensed with the
personal attendance of the accused, it may also dispense with his examination
under clause (b).
(2) No oath shall be administered to the accused when he is examined under
(3) The accused shall not render himself liable to punishment by refusing to
answer such questions, or by giving false answers to them.
(4) The answers given by the accused may be taken into consideration in such
inquiry or trial, and put in evidence for or against him in any other inquiry
into, or trial for, any other offence which such answers may tend to show he
15. The forerunner of the said provision in the Old Code was Section 342
therein. It was worded thus:
"342. (1) For the purpose of enabling the accused to explain any
circumstances appearing in the evidence against him, the court may, at any
stage of any inquiry or trial, without previously warning the accused, put such
questions to him as the court considers necessary, and shall, for the purpose
aforesaid, question him generally on the case after the witnesses for the
prosecution have been examined and before he is called on for his defence. (2) The accused shall not render himself liable to punishment by refusing to
answer such questions, or by giving false answers to them; but the court and
the jury (if any) may draw such inference from such refusal or answers as it
(3) The answers given by the accused may be taken into consideration in such
inquiry or trial, and put in evidence for or against him in any other inquiry
into, or trial for, any other offence which such answers may tend to show he
(4) No oath shall be administered to the accused when he is examined under
16. Dealing with the position as the section remained in the original form
under the Old Code, a three-Judge Bench of this Court in Hate Singh Bhagat
Singh v. State of Madhya Bharat (AIR 1953 SC 468) held that:
12 "The statements of the accused recorded by the Committing
Magistrate and the Sessions Judge are intended in India to take the place of
what in England and in America he would be free to state in his own way in the
witness- box. They have to be received in evidence and treated as evidence and
be duly considered at the trial."
17. Contextually we cannot bypass the decision of a three- Judge Bench of
this Court in Shivaji Sahabrao Bobade v. State of Maharashtra (1973 (2) SCC 793) as the Bench has widened the sweep
of the provision concerning examination of the accused after closing
prosecution evidence. Learned Judges in that case were considering the fallout
of omission to put to the accused a question on a vital circumstance appearing
against him in the prosecution evidence. The three- Judge Bench made the
following observations therein: (SCC p. 806, para 16) "It is trite law, nevertheless fundamental, that the
prisoner's attention should be drawn to every inculpatory material so as to
enable him to explain it. This is the basic fairness of a criminal trial and
failures in this area may gravely imperil the validity of the trial itself, if
consequential miscarriage of justice has 13 flowed. However, where such an
omission has occurred it does not ipso facto vitiate the proceedings and
prejudice occasioned by such defect must be established by the accused. In the
event of evidentiary material not being put to the accused, the Court must
ordinarily eschew such material from consideration. It is also open to the
appellate court to call upon the counsel for the accused to show what
explanation the accused has as regards the circumstances established against
him but not put to him and if the accused is unable to offer the appellate
Court any plausible or reasonable explanation of such circumstances, the court
may assume that no acceptable answer exists and that even if the accused had
been questioned at the proper time in the trial Court he would not have been
able to furnish any good ground to get out of the circumstances on which the
trial court had relied for its conviction."
18. What is the object of examination of an accused under Section 313 of the
Code? The section itself declares the object in explicit language that it is
"for the purpose of enabling the accused personally to explain any
circumstances appearing in the evidence against him". In Jai Dev v. State
of Punjab (AIR1963 SC 612) Gajendragadkar, J. (as he then was) speaking for a
three-Judge Bench has focussed on the ultimate test in determining whether the
provision has been fairly complied with. He observed thus:
14 "The ultimate test in determining whether or not the accused has
been fairly examined under Section 342 would be to inquire whether, having
regard to all the questions put to him, he did get an opportunity to say what
he wanted to say in respect of prosecution case against him. If it appears that
the examination of the accused person was defective and thereby a prejudice has
been caused to him, that would no doubt be a serious infirmity."
19. Thus it is well settled that the provision is mainly intended to benefit
the accused and as its corollary to benefit the court in reaching the final
20. At the same time it should be borne in mind that the provision is not
intended to nail him to any position, but to comply with the most salutary
principle of natural justice enshrined in the maxim audi alteram partem. The
word "may" in clause (a) of sub-section (1) in Section 313 of the Code indicates,
without any doubt, that even if the court does not put any question under that
clause the accused cannot raise any grievance for it. But if the court fails to
put the needed question under clause (b) of the sub-section it would result in
a handicap to the accused and he can legitimately claim that no evidence,
without affording him the opportunity to explain, can be used against him. It
is now well settled that a circumstance about which the accused was not asked
to explain cannot be used against him.
21. High Court was clearly wrong in holding that the charges were properly
explained to the accused persons while recording their statement under Section
313 Cr.P.C. Therefore, their conviction as recorded by the trial court and upheld by the
High Court cannot be maintained.
22. The appellants are acquitted from the charges. They be set at liberty
forthwith unless required to be in custody in connection with any other case.
23. The appeal is allowed.
16 (Dr. ARIJIT PASAYAT) ..........................................J.
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