RAM SHANKAR SINGH AND OTHERS versus STATE OF WEST BENGAL

(1) s.c.R. SUPREME COURT REPORTS

RAM SHANKAR SINGH AND OTHERS v.

STATE OF WEST BENGAL

(K. N. \VANcnoo. JC C. DAS GUPTA and J. c. SHAH, JJ.)

Jur!f trial-Refe•enc~ and Appeal-Powtr of High Gourt-1/ can appraise evidence-Gomple.~ qllestions put to accu&<d--1/ and when prejudice the accused-Gode of Criminal Pmcedure, 1898 (V of 1898), as . .142, 374, 428, 423.

The appellants and two others were tried by the Court of ses~ion sitting ¥:ith jury for rioting and causing fatal injuries to c.ertain persons. The jury brought unanimous verdict of guilty against the appellants. The Sessions Judge accepted the verdict and sentenced them subject to confirmation by the High Court to suffer the penalty of death. The reference for confirmation of death sentence and the appeal filed by the appellants against the order of conviction and sentence were heard by the Hi~h Court which held that the verdict of the Jury was vitiated on account of misdirection on material questions by the Sessions Judge, and thus disregarded the v.rdict and proceeded to consider the evidence independently of the V<"rdict and after an elaborate examination of the evidence found the appellants guilty of the offences punishable under s. 302 read with s. 34 of the Indian Penal Code and confirmed t!)e sentence of death.

It was contended that (I) the High Court was not competent to appraise the evidence after discarding the verdict of the jury and to confirm the sentence of death after modifying the order of conviction, (2) where the High C'ourt had held that the verdict was vitiated, on account of misdirection or mis-understanding of Jaw and had set the verdict aside", thr.n _with the disappearance of the verdict the order of sentence also issppeared and it was not open to the High Court to confirm the sentence and the High Court was bound to order re-trial and (3) that the accused were prejudiced when under s. 342 of the Code of Criminal Procedure, they were asked complex questions which could not be understood by them.

Held, that s. 423 of the Code of Criminal Procedure applies to all appeals before the High Court whether from trial by jury or otherwise and when the High Court finds that the verdict of the jury is vitiated on account of some error of law or misdirection it has full power to deal with the appeal in the manner specified in s. 423 of the Code and for that purpose it may appraise the evidence to decide what course it

October JQ.

Ram Shr.nkar Sin~h •• S1alt of Wtrt Br.1(al

will follow, ancl was not hound in exrrcising powers undrr s. 423 to order retrial; it conld rxerrise any of the po\\·ers under s. 423(l)(h) .

l!dd, further, that the powers under ss. 374( 1) and 376 of the Code are manifestly of wide amplitude and exercise thereof is not restricted by the provisions of s. 418( 1) and s. 423 of the Code. Irrespective of whether the accu<rd who is sentenced to death prefers an appeal, tho High Court is bound to consider the evidence an<l arrive at an indrpendent conclusion as to the guilt or innC">cence of the accused and thi~ the High Court must do even if the trial of the arcuscd was held by jury.

In caar~ \\'here the death 5.enrence is in1posed no sanctity attachrs to the verdict of the jury. The verdict is not binding if the High Court holds on the evidence that the order of cr,nviction i!'i not warranted. On reference under ~. 374 duty Ls imposed upon the High Court to satisfv itself that the conviction of the accused i~ justified on the evidencei an<l t!:at the sentence of death in the circumstances of the case is tlie only appropriate sentence. When dealing with reference under s. 3i4 of the Code the High Court was competent to otder retrial but is not bound to do so in every case tried with jury when the vrrdict of the jury is found to be vitiated hr.cause of error of law or misdirection.The right of trial by jury is an important right conferred upon accused persons in the trial of certain serious offences. The quostion whether the ar.cuoed having had the benefit of trial by jury should because of misdirection he ordered to be retried, or his case be con!lidered on the evidence by the appellate cou1 t, is one of discretion and not of right.

lleUl, also, that the failure to CC1mply with the provi~ions of s. 342 of the Code is an irrc'!;ularity and unleS! injustice is sho,vn to have resulted therefrom mere irregu)arity is by itself not sulfirient to justify an order of retrial. The appellate court must alway~ consider whether by reason of failure to comply with procedural provision, which docs not affect the jurisdiction of the court, the accu~ed have been materia11y prejudiced.

Alxlul Rahim v. King Emperor (1946) L. R. 73 I. A. 77 ancl Aj""'r Singh v. Stale of Punjnb (1953] S. C.R. 418, referred to.

CRIMINAL APPELLATE J1rn1~DICTION: Criminal Appeal No. 71 of 1961.

Appeal from the judgment and order dated January 18, 1961 of the Calcutta High Court in

(1) S.C.R. SUPREME COURT REPORTS 51

Criminal Appeals Nos. 314. 318 and 319 of 1960 and Reference No. 3 of 1960.

Nur-ud-din Ahmed and Pritam Singh Safeer, for the appellants.

D. N. Jfnl.:herjee, P. K. Mukherjee and P. K. Bose, for the 1·0spondcnt . 1961. October 10. The Judgment of the

1961. October 10. The Judgment of the Court was delivered by

SHAH, .J.-At 9-:lO P. ~r. on March 21, 1959, four pcrsons-Rampiari, Himlal, Shyama Prosad Missir and Surajn:tth DuJ,cy-all residing within Police Station Golabari in the town of Howrah suffered incised and p1m('f·ured injuries and died in consequence thereof. The appellants and two others were tried b..foro the Extr1t Additional Sessions Judge, Howmh with jury for rioting and causing fatal injuries to these four victims and thereby committing offences punishable under ss. 148, 302 and .302 read wit.h 149 of the Indian Penal Code. The jury brought unanimous verdict of guilty against appellants Ram Shankar Singh, Bimala and Sudama Singh for offences punishable under ss. 148, 30:! and 302 read with 149 of the Indian Penal Code and against R:imnarayan Missir for offences punishable under ss. 148 and 326 read with 149 of the Indian Penal Code and verdict of not-guilty against Depa.Ii wife of Ramnarayan Missir. The 8essions Judge accepted the verdict and sentenced the appellants, subject to confirmation by the High Court, to suffer the penalty of death and Ramnarayan Missir to suffer rigorous imprison-ment for 10 years, and acquHted Depn.li. The reference for confirmation of death sentence and the appeal filed by the appellants and Ramnarayan Misefr against the order of conviction and sentence were heard by the High Court of Judicature at Caloutta. The High Court held that the verdict of the jury was vitiated on aceount of misdirection by the Sessions Judge, and after an elaborate examination of the evidence found the appellants Ram Shankar and Bimala guilty of offences nnder 8 [, ][302 ][re~d ][with ][34 ][of ][the Indian ][Penal ][Code for ]causing the death of Hampiari and Hiralal. The

Ram Shankar Singh v. Stale of West Beniol

Shah J.

Ram 811'l.1~1r SitJth v. Statt of Wirt Htlt_!Of Shafi .T.

High Court l\l~o fo11nr! ppe.llant Ram Shankar guilty of murder for causing the death of Surajnath Dubey by stabbing him with knifo, n.nd appellant Sudiima Singh for cn.•1sing t.he death of Shyama Pro!lad Missir by stabbing him with knife, and confirme<l tho sentence of death pa,Red by the Session9 Ju.igc. The High Court., acquitted J:tamnarnyan Singh oft he offoncc of gri,~vous hurt of which he was C'mvieted by the trinl court. With certificate grankd by the ·High Court this appeal is preferred by th<' thr~e appdlants.Two hustcl'A in the town of Howr8h-No. 7 l\Iadhab Ghosh Road and Xo. 7 Tikiapara Road-are snparnted by common courtyard. Ram Shankar, Bimitla, Ramnary.~n Singh and Dcpali lived i11 No. 7 Madhah Ghosh Road. Ramrlco Ahir, his wife Rampiari and son Hiralal lived in room in i Tikiapara Road and Shyama Prosad :\Iissir lived in another room in that bustee. Surajnath Dubey lived in room in No. 9 l\Iadhab Ghosh Hoar!. At ahout I.I A. )f. on March 21, 1959 thoro was an altercation in tho common courtyard between Ramnarayan MiFsir, his wifo Dllpali and Ram Shank~r'H wife Bimaln on the one hand and Ramdeo, hiH wife Rampiari and his son Hirn.Jal on the other. Thiil attracted the attention of several residrmts of the locality, ancl the parties were pacified by Jadunundau l~oy urn.I .Joy Lal Choudhmy and wNe pursuaded to retire to their respective room~. At about i P. M. on the samo <lay, after Rim Sh1nkar returned home there was another altnrcatiun and Jadunandan and ot.hl'rH ngain inter· wmerl and pacifio,d the parties, who were quarclling. Hiralal and his mother Hampiari return<·d to their room and apprehending an as:iault they chained the dO'•r from within. It was the case for the State t.hat at about 9 P. M., 5 to 7 "Hindusthani" came armed with iron rods and knives to 7 llfadhab Ghosh Ro:irl and joined Ram Shankar, Sudama Singh, Rimal", Ramnarayan Missir and Dcpali who were also armed with lethal weapons, such as knivns,

(l) S.C.R. SUPREME COURT REPORTS

swords and iron-rods.

The whole party then

proceeded to No. 7 Tikiapara Hoad and Sudama Singh broke open the ·door of the room of Ramdeo Ahir. Ram Shanlmr and his wife Bimala then entered the room, Sudama Singh sta;1ding outside-. Ram Shankar and Bimala attacked Rnmpiari and Hiralal and stabbed them to (kath. On hearing the sh1·ieks of Rampiari and Hiralal, Shyama Prosad Missir proceeded towards the courtyard, but was st'1:>bod by Sudama Singh in the chest with knifo and collapsed on the spot. Sudama Singh was held by J adunandan Roy, but was rescued by his supporters who beat Jadunandan Roy with iron rods. At this juncture Ram Shankar and Bimala came out of Ramdeo's room with their knives and clothes stained with blood. Surajnath Dubey who reached the room of Ramdeo was stabbed by Ram Shankar in his abdomen. Surnjnath Dubey ran short distance pressing his abdomen with his hands and fell down near tho dispensary of one Dr. Dhruba Dns Pandey where from he was removed to the Howrah General Hospititl. He succumbed to his injuries on March 2il, UJ59. l{amnarayan Missir was present in the courtyard at the time of this assault aud carried sword in his hand and his wife Depali can ied au iron-rod. After killing R<1mpiari, Hiralal, Shyama Prosad M.issir and causing injuries to Surajn<tth Dubey, Ham Shankar and his supporters fled alq_ng the Madhab Ghosh Road. Tho sword carried Ly lfamuarnyan was snatched away by Jiban Prasad Sett and in doing so the latter received sligl1t injury. Harnnarayan au<l his wife Bimala and others were chased by large crowd, but many of the miscreants made good their escape. Ramnarayan and his wife Depali took shelter in the house of one Lakshman Mahato. Ram Shankar, Bimala and Sudama Singh entered the godown of Bhola Singh at Sailcn Booe Road.

In the meantime, the officer incharge of the

police station having received information on the telephone proceeded to Bhola Singh's godown and

l~am Shankar Singh v. Stale of rt 'est Bengal Shah J.

Rain Shanl..nr Singh v. Stnte of Jl'e.st Bengal

54 SUPRE1111D COU!l.T ltEPOHTS [Hl62.\ SlJPP.

arrested :::ludt1ma S,ingh and Bimo,la., ltam ShankaF having i·11u away fro•n the godown. Sudama Singh and Bimal:' -~ve,re :brought ·to the scene of offence al'!d injur,ie& on the de;\d-bodies ofRJLmpio,ri, Hiralal Shyama Prasad Missjr, were examined. Inforrn1ition of th,c qffence was then re.corded. At tho ti'ia} of, ~he . appellants and oth~r •weus<1<1, ·evidt'nce· was led ·in' support ·of the case fo1,.tho :)tato that quarrels took place at JI .'ill. ahd 7 p. 111. on the' ''day in que~tioil between Ra:mP,iari and Hiralal dn the one. hail'c\ and Bim<ila, Ramnarayan Singh· am;! Depali on "the other and that at the quarre,l at 7 P. M. Ram Shankar was also :present. EviP,~nco was also led to ah ow that shortly after 9 P: t.r. Ram .Shan~ar, his .'\'ife Bimala a'ceoinpanicd 'by ·Suclama Singh- Ram Shankai"s cbusin-Ran,marayan Missir and his wife Depali. and five or s.even Hindusthani men approaolictl the court;irard 'in front of No. 7 Tikiapara R<lad .and SuBama Singh brdk~open the door of·the room"of Ra:thdeoAhir and Ram Shankar 'and his ·Wife Bimala entered the'room armed with knivcs·and emerged frdm the ro'em sometime late.r with kniV'eB stained witlr b1odd. Evid@ce was also led tha~ Sb~yama P1·osad Missir w'aa stabbed by .Sudama Singh arid Surajnath Dubey by Ram Shankar in the presence of witnesses. The State a!So led evidence ,that the fleeing miscreants were chased by· the residents of thli locality and that Bimala and Sudama Singh . were arrested in the go'down of Bhola Singh.·

At tho ti'ia} of, ~he . appellants and oth~r

'Before the High 'Court the. v'.cr<lict of tl\c jury was suu<;essfully a~sailed by counsel for the appellants. Tho learned. Judges of tho High Court held ,that tlie . verdict }Vas vitiated on account of misdire9ti_on on material questions, and they·accord-ingly dieregarded the verdict and proceeded to consider the evidence indr.pendcntly of the verdict. They held that appellants· Nos. I. and 2-Ram Shankar and his wife Bimala-were guilty of offences punishaLle under s. 30'.? rPacl wifh 34 ('f

(l) S.C.R.

the Indian Penal Code for causing in futherancc of their common intention death of Rampiari ann and Hiralal in the room of Ramdeo Ahir. The High Court also held Ham Shankar guilty of caus-ing the death of Surajnath Dubey, and Sudama Singh of causing ihe death of Shyama Prosad. J\llissir by st1tbbing him in the chest.

The first question that falls to be determined is whether the High Court was, in the circumstances of the case, competent to appraise the evidence after discarding the verdict of the jury and to confirm the sentence of death after modifying the order of conviction. Section 423 of the Code of Criminal Procedure invests the High Court hear-ing on appeal against an order of conviction or acquittal passed by Subordinate court of criminal jurisdiction with certain powers. These powers are exerciseable in appeals against orders passed in proceedings which are tried with or without the aid of jury. Bys. 418 (1), an appeal, in case. tried by jury, lies only on matter of law. But if the High Court on consideration of the materials on the record reaches the conclusion that the verdict in case tried with jury is erroneous owing to some misdirection by the Judge or misunderstand-ing of the law by. the jury, the High Court has the power to reverse the finding and to acquite or discharge the accused or to order retrial or to alter the finding maintaining the sentence, or, with or without altering the finding, to reduce the sentence, or with or without such reduction and with or without altering the finding to alter the nature of the sentence. The High Court may in an appeal against an order of acquittal even in case tried with jury reverse the order .and direct that further inquiry be made or that the accused be retried or committed for trial, or the High Court may find the accused guilty and pass sentence on him according to law. These powers can be effectively exercised only if the High Court has the power to appraise the evidence and

llom Shankar Singh

~tale of H'esl Btngal Shah J,

&v11 Sha11l:a1 Singh V. S1111t fl/ h·tat Bengal %J/1J.

that is made clear by sub-s. (2) of s. 423, which by the clearost implication cnac:ts that the Appe-llate Court mav alter or roversc the verdict., if it be of the opi~ion that it is erroneous owing to misdirection by the .Judge, or misunderstanding of the law by the jury. The power to direct re-trial or to cousider the case on tl10 merits being conferred on tho High Court iu appcala again8t orders of acquittal as well as eonvietion, it c1111 effectively be exercised only if the High Court is competent apart from the verdict to appraise the value of the evidence on which the order of t.he trial court is founded. The High Court is not bound when it arrives at the opinion that the verdict of the jury is vitiated to interfere with tho verdict. The Court is, therefore, competent in appeals against orders of conviction and sentence or against orders of acquittal even in cases tried with jury to order retrial or to · maintain the conviction and sentence on reconsideration of the evidence. Counsel for the appellants dG~B not challenge this interpretation of the powers of the High Court under ss. 418 and ,123 of the Code.

In Abdul Rahim v. Emperor (') in dealing with the powers of High Court in reference under s. 374 for confirmation of death sentence passed by the Court of Session n trial held with jury, where the verdict of the jury was found to be vitiated on the ground of admission of evidence, which, in law, was inadmis-sible, the Judicial Committee of tho Privy Council observed:

"Where inadmissible evidence has IJcen admitted in trial by jury, the High Court on appeal may, after excluding such evide-nce, maintain conviction, provided tho admissible evidence remaining is in the opinion of the Court sufficient to establish the guilt. of tho accused. The High Court is not bound to order retrial in Buch cases."

(I) (1946) L. R. 731. A. 77.

(1) S.C.R.

The ,Judicial Committee also observed,

"The primary duty of the Court on an appeal is indicated in s. 423(1). It is to con-sider with the record before it whether there is 's11fficient ground for interfering'. In trial by jury, that there has been misdirection is not of itself sufficient ground to justify inter-ference with the verdict. The Court must procee'l to consider whether the verdict is erroneous owing to the misdirection or whether the misdirection has in fact occas-ioned failure of justice. If the Court so finds then it bas plain justification for interfering and indeed duty to do so."

The Judicial Committee also observed,

"An appeal may be entertained only on question of law, but once it has been held by the Appellate Court that there has been an error in law it is open to it to 'interfere' with the jury's verdict and if it thinks that the error in law affords sufficient ground for doing so it will then proceed to consider whioh of the various forms of 'interference' it will adopt. Section 423 clearly indicates that within its meaning misdirection by the Judge falls within the category of error in law, for it contemplates in ~ub-s. (2) that an appeal is competent on the ground of misdirec-tion. But misdirection having been found to have occurred it is not necesearily ground for interference. It may have been of more or less trivial character. But if it has led to an euoneous verdict being returned or to failure of Justice the statute plainly indicates that case for interference has arisen. What form the interference shall take is left to the Court which is given wide discretion. It need not order retrial. It may for example acquit the accused. To order retrial might well operate injustice in readily conceivable circum-stances."

RGm Shankat Sinzh v: Stalt of West Beng•I Sh•h J.

Rat11 Shankar Si11gh v, Sla[1]e of !Ve.st Btnfal Shah].

58 Sl.JPRg'.\1E COURT REPOHTS [1!162] Sl"PP.

\Ve arc tllt'refore of the or.inion thats. 42:l

;\pplies to all appeals before th 1 High Court wlwthcr from trial by jury or otherwise and when t.lw High Court fiuds th<Lt the verdict of the jnry is \'itiatecl on a<"count of ~omc defect of law or mis-directio11 it has full power to cle:il with the appeal i11 the manner spe<'ifiecl in s. 423 and for that pur-pose it may appraise the evidence to decide what course it will follow.

But it is contended that where the Court of ~t·ssion in trial held by jury sentences the actuscd to suffer thP. penalty of death a11d th<> <'ase is ,ub-mittcd to the High Court uml~r ff. :li4 of the Cocfo of Criminal Proe,edure for confirmation of sentence and the accused also appeals against the order of convictirrn and sentence, the Hi)!h Court is bound to hear and decide th'l appeal in i.he first instance, and if on consi<h·ration of the appeal, the High Court holds that the verdict was vitiated on account of misdirection or misuuderotauding of the law on the part of the Jury, the verdict mus~ be set aside and with the disappearance of the verdict disappears the or<ler of sontcnce, arnl it ia not open to the High Court to confirm the s~utence of death on reappraisal of the evidence. The High Court is bound in these cases, says counsel for the appel· ·!ants to order rttrial of the accused.

An appeal under sub-s. (I) of s. 418 of the

code lies on matter of fiwt as well as on matter of law, except where the trial is by Jury, in which <·ase the appeal lies on matter of law only. But that is not the only provision which invests the High Court with jurisdiction to deal with the case of an accused person when he is tried by jury and is scn•cnccd to suffer death. The sentence of death passed hy the Court of Session in reforence under s. 3i4 of the code cannot be executed unless it be confirmed by tho High Court. Under s. 376 the High Court dealing with oase submitted to it under s. 374 ( l) may confirm the sentence, or pass

(1) S.C.R. SUPREME COURT REPOR'l'S

any other sentence warranted by law, or (b) may annul the conviction, and convict the accused of any offence of which the Sessions Court might have eonvicted him, or order new trial on the same or an amended charge, or ( c) may acquit the acc1rn-ed person. These powers are manifestly of wide amplitude, and exercise thereof is not restricted by the provisions of s. 418 (1) and 423 of the Code of Criminal Procedure. Irrespeptive of whether the accused who is sentenced to death prefers an ap-peal, the High Court is bound to consider the evi-dence and arrivo at an independent conclusion as to the guilt or innocence of the accused aud this the High Court must do even if the trial of the accused was held by jury. In case where the death sen-tence is imposed no sanctity attaches to the verdict of the jury. The verdict is not binding if the High Court holds on the evidence that the order of convic-tion is not warranted. Indeed, duty is imposed upon the High Court to satisfy itsdf that the conviction of the accuser! is justified on tho evidence, and that the sentence of death in the ein:umstances of the case, is the only appropriate sentence.

It has been the uniform practice of the High Courts in India to hear the reference for confirma-tion of senteuce of death and the appeal preferred uy the accused together rind to deal with the merits of the case against the accused in the light of all the material questions of law as well as fact and to adjudicate upon the guilt of the aceus€d and the appropriateness of the sentence of death. In this case also, the High Court did hear the reference and the appeal together. On the view that the verdict of the jury was vitiated, the High Court was oblig-ed to consider what order in the circumstances of the case was appropriate. The High Court was not bound in exercising powers under s. 423 to order retrial; it could exercise any of the powers under s. 423( 1 )(b ). The High Court had also to consid~r what order should be passed on the reference under s. 374, and to decide on an appraisal of the evidence

U11111 Sli1,1,kor Singh

S111tt nf 11·1!1 Br11t1,! Shilh ].

Ram S!wikar Si•1gh •• Staft of I~·,,, B1ncuJ SiuJh].

60 SUPREME COCltT REPORTS [l!i(i2) SUPP.

"hcth<>r the onl<:r of conviction for the off<•nces for which the acctisctl wt>rc cnnviet<'tl was justi1i<'d and whether, h:winl.! regard to the circumstances, the 8Cnl<'nce of death was the appropriat~ srnt<,nce. 'Jlw High Court is nf course comprtent wh1·n deal-i11g with rcfl.'rcn<'e under s. 3i4 to order retrial buL the High Court i8 n"t bounrl to clo rn in every case tried with jury when t.he vcrrlict of the jury is found to be vitiated because of error of law or mis-<lircction. The right of trial by jury is an impor-tant right conferred upon accused persons in the trial of certain serious offence&; but un<ler our juris-prudence the right to trial hy jury is creation of st11tute and the question whether the accused in given case having ha<! the benl.'fit of trial by jury should because of misdirection be ordered to be retried, or his case be considered on the evidence by the appellate court, is one of the discretion and uot of right. The High Court has, in the present case, exercised this discretion and we see no ade-quate ground to interforo with tho exerciao of that discretion.Learned counsel for the State invited our attention to judgment of this Court in Bhupati Bhusan Bi8Wa8 v. 1'he State of West Bengal('), in which thio Court set aside the order passed by High Court directing retrial of case which was tried with jury, in which the verdict was vitiated, and ordered that the High Court should hear the case on th•~ evidence. The Cou1t in that castJ obsen-ecl, "In the circum-stances of this case we are of the opinion that the High Court was in error in remanding the case for retrial; it should have followed the procedure laid down in the Privy Council case and should have gone into the evidenc~e and determined for itself whether the accused were guilty or not." It ia mqnifl'st that this Court vacated the direction of the High Court ordering retrial in the special circum-stances of the case: the Court did not lay down any general rule that in every ca.so where the verdict (ll Cr. A. 113of1956, decided on Febru,ry 14, 1957.

(1) S.C.R. SUPREME COURr REPORTS

of the jury in case where the accused has been convicted at trial held with jury is found to be vitiated the High Court must not rPmand the case for retrial.

Counsel for the appellants, eo11tended that in this case there had been no proper kial of the appel-lants before the Court of Session and therefore the order of the High Court should be set aside and retrial ordered. Counsel strongly relied upon the manner in which the examination of the accused under s. 342 by the Court of Session was conducted and submitted that the Sessions ,Judge asked comp· lex questions to each of the accused relating to several distinct pieces of evidence brought on the record. For instance, Ram Shankar asked "You have heard the evidence as well as the cross-examination of the prosecution witnesses. They have stated that you together with your wife Bimala Devi, brother Suda.ma Singh, Ramnarayan Missir and his wife Depa.Ii Missir and 5/7 other Hindusthani men· armed with iron rods, daggers and swords formed an unlawful assembly at No. 7 Tikiapara Road on the 21st March, 59 with the intention of murdering one Rampiari and her smi Hiralal and that you intentionally killed Rampiari and Suraj Dubey of 9 Madhab Ghosh·Road with knife. Do you want to say anyt.11ing in your defence in connection with this charge?'' Similar questions were also asked of accused Bimala and Sudam~ Singh. With regard to the events subsequent t.o the murder of Rampiari, Hiralal and Shyama Prosad l\Iissir another complex question was asked. It is urged that the examination of the accused held in this m<J,nner was not in accordance with s. 3i2 of the Code ot Criminal Procedure, the terms whereof are mandatory· and the Sessions Judge having failed to comply there-with the accused it must be presumed were prejudiced. It was submitted in support of this contention that if the several components of the questions which dealt with independent m~tters on which evidence was led by the prosecution had

Ram Slumk4r Sin.t{h v. St.Jlt of r·Ytst Bv1znl Shah]·

been split up, the accused might have given some explanation acceptable. to the jury. The Sessions Judge having failed to do so, the trial must be regarded as vitiat«';d.

Ram Shank"' Singli-. v. Stn:e of fVt"st Bmgo.l Shah J.

In our view, the learned Sessions judge in rolling up several distinct matters of evidence in single question acted irregularly. Section 342 of .. · the Code of Criminal Procedure by the first sub-sec-tion provides, in so far as it is material : "For the purpose of enabling the accused to explain any . circumstances appearing in the .evidence against him, the Court .............................. shall ........ . ... .. .......... question him generally on the case after the witnesses for the prosecution have been exami-ned and before he is called on for his defence." Duty is thereby imposed upon the Court to. question the accused ganerally in case after the witnesses for the prosecution have been examined to enable the accused to explain any circumstance appearing against him. This is necessary corollary of the presumption of innocence on which our criminal jurisprudence is founded. The object of the section is to afford to the accused an oppor-tunity of showing that the circumstance relied upon by the prosecution which may be prima fade against him, is not true or is consistent with his innocence. The opportunity must be real and ade-quate. Questions must be so framed as to give to the accused clear notice of the circumstances relied upon by the prosecution, and must give him an opportunity to render such explanation as he can of that circumstance. Each question must be so framed that the accused may be able to under· stand it and to appreciate what use the prosecution desires to make of the evidence against him. Exa-mination of the accused under s; 342 in not inten· <led to be an idle formality, it has to be carried out in the interest of justice and fairplay to ·the accused: by slipshod examination which is the result of imperfect appreciation of the evidence,

(l) S.C.R.

idleness or negligence the position of the accused cannot be permitted to bemade m0re difficult than what "it is in trial for an offence. This Court pointed out in Ajmer Singh v. State of Punjab(') that "it is not sufficient compliance with the section (s.342 Code of Criminal Proeedure) to gen~r­ally ask the accused that, having heard the prose-cution evidence what he has to say about it. He must be questioned separately about each ma.tcrial circumstance which is intended to be used against him. The whole object of the section is to afford the accused fair and proper opportunity of explaining circumstances which appear against him and the questions must be fair imd must be couched in form which an ignorant Ol' illiterate person may be able to appreciate anrl understand." The examination by the Sessions Judge of the appel-lants was perfunctory, but as observed in Ajmer Singh's case, every error or omission in complying with s. 342 docs not vitiate the trial. "Errors of this type fall within the category of curable irregu-larities and the question whether the trial has been vitiated depends in each case upon the degree of error and upon whether prejudict1 has been or is likely to have been caused to the accused". To the questions asked by the judge, the answers given by the appellants were either "I am innocent" or "tho story is false". Failure on the part of the Ses•ions Judge to split up the questions so as to deal with each distinct feature or matcria I piece of evidence sepafately, however, does not, in the circumstances as of the present case, justify an infere-nce that prejudice was thereby caused to the appel-lants. Counsel for the appellants has not been able to suggest, having regard to the line of cross-examina-tion !ldopted and the criticism of the evidence of the prosecution witnesses offered by him, what explanation besides completo denial of the prose-cution story, the appellants could have offered in answer to the questions relating to the different circumstances and pieces or features of evidence (II [1953] S. C.R. 418.

Ram Shank11r S £nfh

v. Stal1 of fl'tsl Be11gal S/wh ] .

Ram Slrankar Sinzh v. Stal• of H'tJI Btngal Sha/,].

64 SUPREME OOURT REPORTS

[1962] SUPP.

on which the prosecutio,1 relied. It iR true that the prosecution strongly relied upon two circumst-ances against Bimala (I) that when she came out of the house of Ramdeo Ahir, she had blood-stai· ned knife in her hand and (2) that when she wni< arres!Rcl from the go<lown of Bhola Singh; the knife was in her hand. To these mattors of evidence attention of the accused Bimala does not appear to have been invited. Similarly, attention of Ram Shanker to the evidence that when he <'&me out of the ro;>m of Ramdeo Ahir, he had knife in his hand was not inviter!. But we have already obtier· vcd, beyond bare denial, the learned counficl was unable to suggest any other answer which the accused could give to these pieces of evidence evrn if they had been sp<-cifically put to them. It is also to be noticed that the plea that the appel· !ants had not b~en properly examined under s. :~42 of the Code of Criminal Procedure was not raised before the High Court : at least there is no referenr'e in the judgment of the High Court to any sw·h ar(nlment. P~ilure to comply with the provisH ns of s. :H2 is an irr<'gularity; and unless injustice is shown to have resulted therefrom mere irregul· arity is by itself not sufficient to justify an m der of retrial. The appellate court must always consider whether by reason of failure to comply with prn· cedural provision, which does not. affect the juris lir· tion of the court, the accused have heen materi-ally prejudiced. In the present case, we are of the view, having regard to the circnmsfanceB, that the appellants have not been prejudiced, because of failure to examine thorn strictly in compliance of the terms of s. 3!2 of the Code and that view is strengthened by the fact that the plea was not raised in the i~h Court by their counsel who had otherwise raisecl numerous question in support of the case of the appellants.

H.ampiari, her son Hiralal, Shyama Prosad ./11issir and 8urajnath Dubey received fatal injuries shortly after 9 P. ~I. on the night of March 21,

(1) S.C.R. SUPREME COURT REPORTS

1959. Rampiari had on her person two incised

injuries on the left side of chest cutting through the ribs. Hiralal had six injuri11s on his chest, abdo-men and arms-four incised injuries and two punctu-red. Shyama Prosad Missir had one injury on the chest piercing the thoracic cavity. Surajnath Dubey had an injur~ in the abdomen. These in-juries were in the ordinary course of nature suffici-ent to cause death. The appellahts contend that they were not responsible for the injuries to these victims.

We were taken through the entire evidence which is material to the case of the three appel-lants by the learned counsel for the appellants. In respect of the first incident which took place in the morning of the fateful day, there is the evidence of Jadunandan Rao which is corroborated by the statement contained in the First Information Report, and also corroborated by the statement of Ramdeo-husband of Rampiari. The second incident, took place at about 7 P. M. The witnesses in connection with that incident are Jadunandan Roy, B. P.Singh and Jangli Bahadnr. It appears from the evidence of these witnesses that the parties-Rampiari and Hiralal on the one hand and Ram Shankar, his wife Bimala Devi, Ramnatayan Missir and his wife Depali on the other-were quarrelling and were pacifieci and Rampiari and Hiralal were persuaded to ~o back to their room and bolt it from inside. The High Court has believed the evidence relating to these two incidents and we see no reason for not accepting it. The third incident consists of three phases (I) assault upon the room of Ramdeo Ahir, the breaking open of the door and attack on Rampiari and Hiralal resulting in their death; (2) assault on Shyama Prosad Miseir by Suda.ma Singh and (3) assault on Surajnath Dubey. The evidence discloses that the common courtyard between 'i Madhab Ghosh Road and 7 ·1 ikiapara Road was lit up by the light of an electric lamp in the houae of Joy Lal Choudhury, two of the

llam Shankar Singh

State of West Bengal

Shah].

Rom 8"4r1kar s;.,~ v. St•t1 of Ii '1JI B11if<I Sh•h ].

windows of the first floor hcir.g opt-n. There is also the f>videnco that in the room of Ramdeo on the occasion in question kerosene lantern was burning. It is so rccite<l in the First Information Report and tho kerosene lantern was seen Ly the Sub-Inspector of Police when he arrived on the scene of offence. It cannot be disput,,d, therdore, that the scene of offence was full:v lighted at the time of the assault and the witneS8PS could identifv the assailants. About the assault upon the roori:i of Ramdeo Ahir and the entry of appellants Ram Shankar and his wife Bimala De\'i into the house after the door was broken open by Sudama Singh, there is the evidence of as many as Fix eye witnesses-they are Jadunandan Roy, Ram Chandra Goa.la, Tribeni Jadab, SukdeoMajhi, H<;sila Jadab and Sundar Jadab. The l•'irst Information Heport lodged by Jadunandan Roy substantially gives tho same story. Jabunandan Roy has deposed to the entire story of the breaking open of the doror by Suda.ma Singh and the rntry by Ram Shankar and Bimala into the room, the shrieks of Ram piari and Hiralal and about Ram Shankar and Rimah coming out of the room after stabbing R amp1ari and Hiralal. Ram Chandra Goa.la stated that whC'n he came near the house of Ramdeo he found Ram Shankar and Ilimala coming out of the room with knives in their hands. Tribcni Jadab stated that he saw Sudama Singh breaking open the door of Ramdeo Ahir with aa iron rod, . that thereafter Ram Shankar and Bimala entered the room each carrying knife, that he heard shrieks of Ram piari and Hiralal and that after some time Ram Shankar and Bimala came out of the room with knives. Sukdeo Majhi stated that he saw Ram Shanknr and Bimala coming out of Ramdeo's room with knives in their hands. There is a.lso the evidence of Hosila Jadab who stated that he saw Ram Shankar and Bimala. ooming out of Ramdeo'e room with blood·staine<l knives. Sundar Jadab has stated that when he reached the courtyard he found Sudama Singh

bro-tking open the door of Ramdeo's room with an iron rod and thereafter Ra,m Shankar and his wife getting into the room with knives in their hands, and he heard Hirahl and his mother shout-ing for some time. The High Court has accepted the testimony of these witnesses. It is true that ,Jadunandan Roy stated t ha.t he ~aw through the open door of the room of Ramdeo Ahir, after it was broken open, Ram Shmikar stabbing Rampiari and Bimala sta,bbing Hirnhl and the High Court n•garded this part 1 J the Rtr·ry as an embellishment whirh must be di~c1uded. The mere fact that the witness J adunandan Hoy had improved hi~ story will not by itself bP sufficient to disregard his testimony in its entirety.

About the assault on Shyama Prosad Miesir, when he tried to intervene, there is the evidence of Jadunandan Roy, Triheni Jadab, Sukdeo Majhi, Hosila ,Ja1fab and Sundar J adab. E:ich of these witnesses has deposed that Shyama Prasad Missir > -who intervened was stabbed by Sudama Singh in 'the abdomen. Ab'.mt the assault on Snraj Dubey bv Ram Shankitr, there is the evidence of Jadunan-dan Roy, Trib('ni J adab and Hosila J adah.

In the cross-examination of these witnesses for the prosecution, it was suggPsted that there was free fight between some" Hin.dnsthanis" and "go11la•", in the course of which injuries may· have been suffered by Rampiari, Hintlal, Shyama Prosad Missir and Suraj Dubey. But Rampiari an<l her son Hiralal were found dead in tlwir own room: the dead bodies were lying on cot. The bod~· of Shyama Prosad Missir was lying with single injury at the gate of 7 Tilda.para Road and S11rajnath Dubev was stabbed short distance away. There is no evidence of any serious injury su'm·red by any other person. If there harl been free fight, some injuries to participants on both the sides may reasonably be expected. It is true that according to the prosecution besides t.he accused there were

Ram Shankar Singh

v. Stale of West Bengal Shah].

present 5 or 7 llindusthrmi men, who were also armed. There is no evidence, however, that any of these Hindustliani.s took any active po.rt in the assault on Rampia.ri, Hirale.l, Sh.vu.me. Pro11ad and Surajne.th. The HindfLSthanis were not identified and have never been traced; but there is no evidt•nee that they participated in the n.ssau It. The story of free fight between the goalas anrl the Hindusthani men has been discarded by the High Court and, in our judgment, properly.

Rom Shank., Singh v. S1att of lVtsl Btngal ShahJ.

Certain matters of general criticism of the evidence were also urged b~· the learned counsel for the appellants. He contended that no reliance should be placed on the contents of the First Information because it showed inherent evidence that it must have been fabrici•ted eome time after the investigating Officer commenced investigation and in support of that contention reliance was placed upon the fact that even though it was alleged to have been despatched on the night of March 21, 1959 from the police station, copy of the First information reached the Sub.Divisional Magistrate Howrah <m ~larch 26, 1959. Section 157 of the Code of Criminal Procedure enjoins that copy of the First Information R"port be sent forthwith to the Magistrate having jurisdiction. It is also true that the copy of tho First Information Report passed through the Court Inspector'~ office on March 25, 1959 and reached the Sub·Divisional Magistrate on March 26, 1959. The Sub-Inspector of Police in.charge of the investigation stated in his cross·examination that he could not explain why the copy did not reach the Sub-Divisional Magistrate before March 26, 19'31. If, however, it was the case that the copy was not despatched from his office at the time when it was claimed it was despatched, further cross-examination should have boon directed, the mere endorsement of 26th March, 1959 as the date on which the Jo'irst Infor. ma.tion reached the Sub-Divisional Magistrate is not

r ,.,,.

(1) S.C.R. SUPR.EME OOURT REPORTS

in itself sufficient to disregard mass of direct evidence.

It was then urged that the story that Bimala was carrying knife even when she was arrested was on the ground of utter improbability unreliable. It was urged that the normal reaction of au assai-lant running away from the scene of offence to escape arrest would be to throw away the weapon of offence. But this argument based on mere improbability would not be sufficient body of dis-interested testimony about the knife being in her hand when she was arrested.

It was also submitted that the story of Jadu-nandan Roy that he caught Sudama Singh after the latter had stabbed Shyama Prosad Missir is untrue. It was urged that if Sudama Singh, who was armed with knife was over-powered by JadunandanRoy, the story that Sudama Singh ran away with the other assailants could not be true. But Jadunandan in his evidence has deposed thnt when he caught Sudama Singh he was assaulted by others who accompanied Sudama Singh and was struck on his head and on other parts of body with rod. This story is corroborated by the medical evidence about injuries on the person of Jadunandan Roy.

Learned counsel for the appellants strongly relied upon the fact that even though large majority of the prosecutian witnesses who came near 7 Tikiapara Road deposed to the presence of Ramnarayan Missir and his wife Depali and further deposed that Ramnaruyan Missir had sword in his hand, the Sessions Judge acquitted Depali and the High Court acquitted Ramnarayan. It is urged that if the testimony of these witnesses who deposed to the presence of Depali and Ramnarayan Missir is found to be untrue, the Court should scrutinize the evidence of the other witnesses with care and having regard to the unsatisfactory features disclosed in the cross-examination, the rest of the evidence should also be discarded. But it was not the evi-

Ram Shankar Singh

v. State of West Bengal Shah J.

. 70 SUPREME COURT REPORTS (1962) SUPP.

1961 Ram Shank11.r Sinzh . v. State of JVcsl Bengal ShahJ.

dence ·Gf any of the witnesses for the prosecution that Depali had taken part in the assault. Her presence with rod in her hand is deposed to by the witnesses, but it is not alleged that she had taken any part in the assault on any one. Similarly, though ·there was ·evidence that Ramnarayan Missir was ___ present carrying sword, yet the High Court on - c<msideration of the evidence came to the conclusion that in the absence of reliable evidence that he -participated in the assault near 7 Tikiapara Road the case against him was not proved. We do not think that because the High Court held the case against Ramnarayan as not established, the prosecu-tion evidence in its entirety may be disregarded.

------ -

On review of the evidence, we hold that the First Information about the . commission of the offence was given immediately: in the First Informa-tion the names of the three appellants and the part played by them -was set out in detail. The police officer who arrived on the scene shortly after the incident found the door of Ramdeo Ahir's room broken and blood marks were found at various places in Ramdeo Ahir's room as wf'Jl as in the courtyard. l\lany of the witnesses who supported the case for the State were disinterested and independent. No injuries were found on any of tho party of the accused which could be attributed to fight between their party men and the goalas. Having regard to these circumstances, we are of the view that the High Court was right in holding that the prosecution story w.as true.

Counsel for the appellants submitted that, in · any event, against Sudama Singh the evidence was not strong enough to warrant his conviction. It was contended that Suda.ma Singh resides not in Madhab Ghosh Road but in the godown in which he was arrested. It is also urged that no extensive blood marks were found on his clothes and the knife alleged to have been used by him is not found. In our opinion, there is mass of reliable evidence

(1) S.C.R. SUPREMJ!] COURT REPORTS

against Sudarna Singh which establishes his pre-sence at the scene of the offence and the part playe<l by him. There is the evidence of five eye-witnesses to which we have already referred. His presence at the scene is corroborated by the testimony of Basanta Prosad Singh who had heard Depali shout-ing shortly before the assault commenced that Sudama Singh had arrived. Then there is the evidence of Jiban Prosad Sett who deposed that he bad on the night in question seen Ram Shankar, Shdarna Singh, Bimala and Rarnnarayan Missir, all coming from Madhah Ghosh Road towards Tikiapara Road and that he had seen Sudama Singh with knife. Sewdhari Sharma stated that he had seen Suda.ma Singh and 3 or 4 other persons running away from the scene of offence and at that time he had knife in his right hand. Sub-Inspector Deepak Das stated that he had arrested Sudama Singh near the godown. Sub-Inspector Z. Haque attached the dhoti from the person of Suda.ma Singh and that dhoti was sent to the Chemioal Analyser and Serologist. According to the Chemical Analyser the dhoti bore blood marks. In the seiznre list the dhoti is described as having "&light" blood stains and the Assistant Serologist reported that the blood on the dhoti was so . disintegrated that its origin could not be determined. The testimony of Jadunandan Roy, Tribeni Jadab, Sundar Jadab, Jiban Prosad Sett, and Sukdeo Majhi abundantly establishes the presence ofSudama Singh at the scene of the offence and the part played by him. He is also seen running away from the scene of offence. The knife carried by him is not found: blood marks found on his dhoti are also not proved to be human in origin, but, having regard to the evidence of the eye-witnesses, which is both independent and disinterested, we see no reason to disagree with the view of the High Court that Suda.ma Singh was present at the scene of offence and he broke open the door of Ramdeo Ahir's house to facilitate the entry of Ram Shankar and

Ram Slwnkur Sinth v.

Stalt of Wul Bengal ShohJ.

Bam Sho11kar Singh Stau "· of 11 'tJt Btngal Shah J.

72 SUPRE.\IE COURT REPOR'fS (1962] SUPP·

Bimala to murder Rampiari and Hiralal and that he stabbed Shyama Prosad Missir with knife.

!{am Shankar and Bimala foreeably entered the house of Hamdeo Ahir and killed &mpiari and Hiralal. Ham Shankar also stabbed Suraj Dubey when he attempted to protest against his conduct. Sudama Singh, besides breaking open the door of Ramdeo Ahir's room to facilitate the entry by Ram Shanka.r and Bimala stabbed Shyama Prose.d Missir when the latter tried to intervene. The assault upon the members of the family of Ramdeo Ahir was conceived and initiated with deliberation, and with the object of slaughtering defenceless woman and her young son. Innocent persons who intervened were mercilessly stabbed and killed. There is no ground, therefore, for diBBgreeing with the High Court that this is pre-e!llinently case in which death sentence should be imposed on the three appellants.

On the view taken by us this appeal fails and is diamissed.

Appe.al dismi8sed.