Rameshar Singh and Others vs Emperor

Jwala Prasad, J.—The petitioners, nine in number, were convicted by an Honorary Magistrate of Gaya of offences under Sections 448, 380 and 143, Indian Penal Code. Separate sentences were passed under Sections 448 and 380, but no separate sentence was passed u/s 143, Indian Penal Code. On appeal the conviction u/s 380 was set aside, and the sentence passed u/s 480 was reduced to a fine of Rs. 25 each. No separate sentence was passed u/s 143, Indian Penal Code by the lower Appellate Court also.

The facts briefly stated are that one Rambalak Singh executed a trust deed dedicating his properties to Sri Thakurji, and appointed himself manager thereof. After him, he appointed his mother, after her his daughter Musammat Bidyamati, and in the event of her dying without a male issue the management was to go to his sister''s sons Raghunandan and Harnandan. Rameshar Singh accused is a distant gotia of Rambalak Singh. In due course the management of his trust properties devolved upon Rambalak''s daughter Musammat Bidyamati Koer. She was married to the complainant Noonoo Singh, the resident of Sabdulpore, 8 miles from Alipore. Raghanandan and Harnandan are residents of Gharnai, also 8 miles from Alipore the residence of Rambalak Singh. The prosecution case is that on or about the 2nd week of March 1924 Bidyamati, who was pregnant, left Alipore for Sabdulpore. At Sabdulpore she was delivered of a male child on the 25th March 1924 and died on the 26th March 1924. The child is said to be still alive and was shown to the Sub-Inspector of Makhdumpore (P.W. No. 8). When Bidyamati left Alipore she is said to have locked the house occupied by her containing grains and certain utensils. On the 4th of April 1924 her husband Noonoo Singh got an information that the accused persons had forcibly broken open the lock of the house occupied by Bidyamati at Alipore, entered the same and removed the grains and utensils. That was the day fixed for performing the sradh of Bidyamati. Noonoo Singh came to Alipore and found that the information given to him was true. He also found the Tikari Police on the spot, and suspected them to be in collusion with the accused. Accused No. 9, Musammat Kauleshwar Kuer mother of Rameshwar Singh, was actually found inside the house and occupying it. On the 7th April 1924 Noonoo Singh lodged a complaint in the Magistrate''s Court at Gaya. The accused were then summoned and put on their trial.

The case of the accused was that Bidyamati died on the 18th March 1924, and not on the 26th March as urged by the prosecution, and that they obtained peaceful possession of the house inasmuch as at the time of her departure from Alipore, Bidyamati handed over the key of the house to Raghunandan and Harnandan, and that the accused thus became the managers of the trust property after the death of Musammat Bidyamati Koer on 18th March 1924 and transferred the property in dispute to Rameshwar Singh, firstly by an unregistered vasika and afterwards by a registered sale-deed, dated the 22nd March 1924.

The Court below has indicated the evidence given by the parties as to the date of the death of Musammat Bidyamati Koer and the birth of a male child to her. The Court has referred to the hath chitha of the village chaukidar and the birth register of Makhdumpore Thana filed by the prosecution to prove the aforesaid facts. It has also referred to a certified copy of a petition, dated the 25th March 1924, filed by the defence in which it was stated by one Bhajan Singh that Bidyamati died 8 or 7 days before the date of the petition. The Court has discredited this petition and the allegations made therein. From the criticisms offered by the lower Appellate Court it would seems that the Court was inclined more to accept the version of the prosecution as to the date of the death of Bidyamati and the birth of a male child to her, but the District Magistrate as well as the Trying Magistrate refrained from expressly deciding this question, for in their opinion it was not necessary to decide it in this case. Be that as it may, both the Courts below have concurrently accepted the version of the prosecution as to the forcible entry of the accused into the house which was occupied by Bidyamati up to the time of her death. They have disbelieved the story that the key was handed over by Bidyamati to Raghunandan at the time of her departure from Alipore. Upon the findings of the Courts below it is not possible to hold that the accused were not guilty of the offence of criminal trespass into the house which was occupied by Bidyamati Kuer.

The learned Counsel and the learned Vakil appearing on behalf of the accused have pointed out certain defects in the procedure adopted by the Magistrate at the trial of the case. It has been urged that the Magistrate committed grave irregularity in omitting to examine the accused at the close of the evidence for the prosecution in the manner required by Section 342 of the Cr. P.C. and that the Magistrate further erred in not complying with the provisions of Section 390 in omitting to read over the depositions of the witnesses in the presence of the accused. It is now settled that the examination of an accused u/s 342 in the latter part of it is imperative. The omission to do so vitiates the trial of the accused. The leading case of this Court upon the subject is Raghu Bhumij v. Emperor 58 Ind. Cas. 49 : 5 P.L.J.430 : 1 P.L.T. 241 21 Cr. L.J. 705. Since then the view has been followed throughout. Rankin, J., in his elaborate judgment lately delivered in the case of Promotha Nath Mukhopadhya v. Emperor 71 Ind. Cas. 792 : 27 C.W.N. 389 : A.I.R.(1923) (C.) 470.; 24 Cr. L.J. 248 : 50 C. 518 has come to the same conclusion. There has, however, been difference of opinion as to the nature of the examination of the accused and the questions put to him at such an examination. The difference of opinion is pre-eminently illustrated by the two conflicting judgments of Kulwant Sahay, J., and Foster, J., in the cases of Durga Ram v. Emperor 86 Ind. Cas. 156 : 6 P.L.T. 33 : 26 Cri. L.J. 716 and Banamali Kumar v. Emperor 86 Ind. Cas. 58 : 6 P.L.T. 39 : 3 Pat. L.R. 25 Cr. 76 Cr. L.J. 682 respectively. In the present case the accused were examined after the close of the prosecution case and before they were called upon to enter into their defence. It has not been shown that the examination is in any way defective or that the Magistrate omitted to put the questions which he ought to have put. Therefore, the contention urged must be overruled.

I would, however, point out the distinction in the provision contained in Section 342 as to the examination of an accused at two different stages. The first portion of Section 342 is an enabling provision. It entitles the Court "at any stage of any inquiry or trial" to "put such questions to him (the accused) as the Court considers necessary." The second portion of the section provides for questioning the accused "generally on the case after the witnesses for the prosecution have been examined and before he is called on for his defence." This is imperative; it casts a duty upon the Court to question the accused generally on the case after the witnesses for the prosecution have been examined, that is, when the whole case against the accused has been disclosed. The object of the examination is to enable the accused to explain any circumstances appearing in the evidence against him.

The next contention relates to the omission by the Magistrate to read over to the witnesses their depositions in the presence of the accused u/s 360. The Magistrate''s note at the end of the depositions shows that he explained to the accused the depositions as recorded and that the same were admitted by the witnesses to be correct. It does not appear whether or not the evidence was read over to the witnesses in the presence of the accused. We cannot say one way or the other whether or not the depositions were read over to the witnesses in the presence of the accused persons. There is nothing in the section to indicate that the Magistrate shall record that the deposition was read over in the presence of the accused though it is much better that he ought to do so in order that there might be no complaint as to his not having done so. It, however, appears that in the case of witnesses Nos. 5 and 8 the depositions were not read over to them but the witnesses read their evidence themselves and certified that it was correctly recorded. This, no doubt, ensures the correctness of the record so far as the witnesses and the Court are concerned, but the law requires that it should be read over in the presence of the accused so that an opportunity be given to him to challenge the correctness of the record. Therefore, merely reading of the evidence by the witnesses is not a sufficient compliance with Clause (1) of Section 380. The evidence must be read over is the presence of the accused. The defect might necessitate a remand of the case. In the circumstances of this case the accused are naturally apprehensive that the remand will be harassing to them. Certainly it will be very expensive.

Considering the circumstances of the case and the findings of the Court below I would reduce the sentence of petitioners Nos. 2 to 9 to Rs. 5 each u/s 448, Indian Penal Code. The sentence of Rs. 25 passed upon petitioner No. 1 Rameshar Singh is maintained.