Sarwan Singh vs The State

Passey, J.—This appeal by Sarwan Singii alias Dhola s/o Harnam Singh of village Dhurkot is directed against the order of the Additional Sessions Judge Bhatinda, at Faridkot dated 18-6-1951 convicting him u/s 302 Penal Code for the murder of Munshi Singh of his village and sentencing him to transportation for life. He was tried with the aid of four Assessors three of whom were of the opinion that the charge against him was fully proved but the fourth expressed some doubt about his being guilty.

The facts are set out in the judgment of the learned trial Judge and also in the F.I.R. which was lodged at Police Station Saddar Faridkot at 12-30 A.M. on 2-1-1951 by Partap Singh, brother of the deceased. At 5-30 P.M. on 1-1-51 Partap Singh was informed by Sucha Singh P W. 12 and Gajjan Singh P.W. 13 that his brother Munshi Singh had been assassinated with a Barcha by Sarwan Singh accused in Budhewala field and that the incident had been witnessed by them and Arjan Singh P.W. 14. They had further told him that they had left Arjan Singh in the Budhewala field to guard the dead body and that they had come to the village to inform'' him of the incident and added that after the commission of the crime the accused had gone towards village Kot Sukhia. Partap Singh P.W. 2 collected Kundha Singh, Bhola Singh, Balwant Singh and Bara Singh Lambardars and Kehar Singh Chaukidar and took them to the place of murder where they found Arjan Singh sitting near the corpse of Munshi Singh. On enquiry he told them that the accused had killed Munshi Singh with a barchha in his presence and that of Sucha Singh and Gajjan Singh, and that he had thereafter proceeded towards Kot Sukhia along with the weapon of offence. A motive for the murder was also alleged. It was stated that about 21/2 months prior to the incident, one Sarwan Singh, who was the wife''s brother of Sarwan Singh accused, had eloped with Mst Gebo, maternal aunt of Sarwan Singh accused and in that affair the accused had suspected the hand of Munshi Singh On receiving the above information M. Surjit Singh S.I. left for village Dhrukot and was there by 4. A.M. on 2-1-1951. He recorded the statements of the eye-witnesses and of all those persons who had accompanied Partap Singh to the place of occurrence before 8 A.M and despatched the dead body to Faridkot Hospital where it was examined by Dr. H.G. Chowla, civil Surgeon. The accused was arrested on 8-1-1951 and on the same day at his instance a Barchha alleged to be the weapon of offence was recovered from a heap of manure belonging to Kundhan Singh chamar outside the village. The post mortem examination revealed the presence two injuries with a sharp-pointed weapon in the neck, two on the chest and two on the back as follows:

Punctured wound 1" x 1/4" x 21/2" on the right side of the neck to the upper part behind the ear. The wound was directed downwards.

Punctured wound 1/2" x 3/10" x 11/2" on the left side of the neck in its upper part below the ear. The wound was directed forward.

Punctured wound 1/2" 1/4" x 1" on the left side and middle part of the chest.

Punctured wound 1/4" x 2/10" x 1" on the right side and lower part of the chest.

Punctured wound 2" x 1/2"x 3" on the left side and the lower part of the back.

Punctured wound 1/2"x 2/10"x 1" on the middle line near the buttock.

One of the injuries in the back had cut the spinal cord completely. The repetition of Barchha blows with violent force on vulnerable and vital parts of the body can easily give rise to the presumption that the intention of the assailant was to take away the life of his victim. The prosecution in support of their version has examined Sucha Singh, Gajjan Singh and Arjan Singh as eye-witnesses of the occurrence while the evidence of the other 13 witnesses is of a circumstantial nature. The accused denied the charge and produced Lt. Col. Ram Singh and Chanan Singh in defence whose evidence is to the effect that the accused had surrendered himself to M. Surjit Singh on or about the 5-1-1951. This evidence was probably led with a view to rebut the allegation of the accused having absconded after the commission of the offence and to show that on coming to know that he was being implicated, he presented himself at the police station.

It is contended by the learned Counsel of the Appellant that the prosecution has failed to establish any motive for the crime. This plea had found favour with the learned trial Judge and I am inclined to agree with him. Munshi Singh and the accused were relations the former being the husband of the sister of the wife of the latter. It is true that Sarwan Singh seducer and Mst. Gebo used to live in Dhurkot and are no longer to be found there but in the absence of clear evidence it is difficult to hold that in that elopement Munshi Singh had been helpful. There was no complaint by anybody to any responsible person in the village against that abduction or elopement nor was any made to the police. Moreover, Partap Singh P.W. 2 has himself stated that Munshi Singh deceased and Sarwan Singh accused were not on inimical terms with each other before the occurrence and that it was his own suspicion that Munshi Singh had been killed by Sarwan Singh on account of Mst. Gebo''s elopement. Mst. Gebo had disappeared from the village about 21/2 months before the occurrence and nothing untoward had happened between the accused and the deceased since then. Sucha Singh P.W.''s evidence also shows that before the assault upon Munshi Singh was actually started by Sarwan Singh, both of them (Munshi Singh and Sarwan Singh) had talked to each other for a few minutes. Some reason for the attack must have been there but I am not satisfied that it was the one now attituted. The absence or inadequacy of motive or the absence of the evidence relating the immediate cause of the attack cannot, however, adversely affect the prosecution case, as clear evidence of the Appellant being the assassin is available on the record.

4-5. It is next urged that the police was informed of the crime with inordinate delay. I am unable to find any force in that argument.

(His Lordship then considered the facts and concluded that the delay was not inordinate. Then after discussing the evidence of the three eyewitnesses the judgment proceeds as follows : Even if his (Arjan Singh''s) evidence, being of a person who has been wavering and changing sides, be eliminated the evidence of Sucha Singh and Gajjan Singh, which has impressed us as truthful is sufficient to bring home his guilt to the accused. He had been seen going to the place of occurrence from the village with a Barchha towards the field by Bachhitar Singh P.W. 9 and Gurdev Singh P.W. 10. He absconded from the village and was not available for several days. Even if the two defence witnesses be believed their evidence does not take the case of the accused any further than that he had surrendered himself on the 5th of January, 1951. That even would show that he eluded arrest upto that date.

Finally it was contended by Mr. Sethi that the trial in this case was vitiated on account of the failure of the learned trial Judge to examine the accused in conformity with the provisions of Section 342, Criminal P.C. This objection was not taken in the grounds of appeal but was raised by the learned Counsel towards the close of his arguments. No defect was pointed out by him in the form of examination of the accused by the committing Magistrate. In the Sessions Court the following questions and answers were recorded::

Q. Your statement recorded by the C.M. has been read over and explained to you Did you make this statement. Is it correct?

Ans. Yes I did make this statement. It is correct.

Q. Have you got anything else to say?

Ans. The daughter of the maternal-uncle of Sucha Singh P.W. was married to me. I turned her out of my house about 2 years ago. On account of this Sucha Singh P.W. is deposing against me.

Sd./- Kul Bhushan, Addl. Sessions judge. 6-6-1951.

Note.

This statement of the accused has-been made by him before me. It contains a true and full account of statement made by him

Sd./- Kul Bhushan. Addl. Sessions Judge. 6-6-1951.

At the same time the following question was put to the accused and his answer noted:

Q. Would you like to produce any evidence in your defence?

Ans. Yes I would produce defence evidence, Sher Singh and Chanan Singh D. Ws. may not be summoned through Court. S. Ram Singh S.P. be summoned.

Sd/- Kul Bhushan. Addl. Sessions Judge. 6-6-1951.

It is stressed by Mr. Sethi that the accused was not asked if he had anything to say against the evidence of the prosecution witnesses & that that omission has prejudiced his defence. Precisely his argument is that the examination of the accused which has been reproduced above amounted only to getting his statement before the committing Magistrate proved and acknowledged by him which is by no means the intention of Section 342 Criminal P.C. - Tara Singh Vs. The State, decided by the Supreme Court of India on 1-6-1951 is cited in support of the contention. The provisions of Section 342 Criminal P.C. are, no doubt, mandatory but we cannot persuade ourselves, to agree with him that failure to scrupulously conform to the provisions of Section 342, Criminal P.C. would vitiate the trial. The object behind Section 342, Criminal P.C. is that the accused should be told by the Court as to what has been alleged and stated against him in the prosecution evidence and he should be asked to explain, if he can, the circumstances appearing in that evidence. In the present case this requirement was not complied with rigidly but the omission was unaccompanied by any prejudice to the accused. The answer given to the question whether the accused had anything else to say indicated that he was at that time conscious of the names of the prosecution witnesses and the substance of their evidence. He could find no fault with the testimony of any witness except that he attacked that of Sucha Singh on the ground of his being a cousin of his wife whom he had expelled from his house. The learned trial Judge had in the first instance omitted to ask the accused if, any evidence in defence was intended to be led by him but that lacuna was made up by putting another question whether he would like to produce any evidence in his defence. The statement of the accused recorded by the committing Magistrate was read out and explained to the accused and he was asked to comment upon it and the only thing that he did was to say that he had made that statement and that it was correct. He was again asked if he had anything else to say and the answer that he gave was that Sucha Singh was giving evidence because of his differences with his wife. The number of questions put to the accused was scanty but it covered practically all the necessary ground. We have carefully studied the judgment of their Lordships of the Supreme Court in - ''Tara Singh v. State'' in which it has been laid down that faithful compliance should be made with the provisions of Section 342, Criminal P.C. and that it is not enough to put to the accused his statement before the committing Magistrate. There can be no two opinions that the examination of the accused at the trial is a fresh examination and it must be made independently of whether his examination by the committing Magistrate was regular or otherwise. In the Sessions Court the accused, after the witnesses for the prosecution have been examined and before he is called upon to enter his defence, must be questioned generally on the case and asked to give his own explanation of the circumstances that have appeared in the evidence of the prosecution witnesses. The evidence to be explained is the evidence at the trial and not the evidence that might have been recorded at some prior stage. The judgment of the Supreme Court does not in our view go to the length of laying down that every omission or failure of the Sessions Judge to properly examine the accused would render the trial void. We may here refer to the following observations of Bose J. who wrote the judgment

I do not suggest that every error or omission in this behalf would necessarily vitiate a trial because I am of opinion that errors of this type fall within the category of curable irregularities. Therefore, the question in each case depends upon the degree of the error and upon whether prejudice has been occasioned or is likely to have been occasioned. In my opinion the disregard of the provisions of Section 342, Criminal P.C. is so gross in this case that I feel there is grave likelihood of prejudice.

It follows, therefore, that it would be the facts of each case that would decide whether any prejudice has been caused to the accused and whether the defect is so grave that it must constitute a gross and incurable irregularity necessitating a fresh trial. In - ''Tara Singh''s case (A)'', mentioned above, two grave defects existed which operated to vitiate the trial. The first of them was the failure to observe compliance with Section 342, Criminal P.C. and the second related to the failure to confront with their previous statements as required by Section 145, Evidence Act. Besides these two prominent defects, there were several others equally grave. The accused was not asked to explain the evidence that did not exist before but was for the first time brought on the record of the Sessions Court. No question had also been put to the accused either by the committing Magistrate or the Sessions Judge regarding the allegation that he had confessed to certain witnesses or regarding the allegation that one of the deceased had made a dying declaration. In the case before us there is nothing to suggest that the error caused by the omission to examine the accused more elaborately had resulted in miscarriage of justice or prejudice to the, accused. The evidence at the trial was the same as before the committing Magistrate and no breach of any other imperative ; rule of procedure has been brought out in his arguments by Mr. Sethi The objection raised by him has, therefore no substance. There is, as discussed above. over whelming evidence on the record to prove the.guilt of the accused to the hilt. The intention of the accused when he gave six Barchha blows to Munshi Singh, all except one on vital parts of the body, was obviously none else but to kill him. The accused left the victim only when he was dead. The offence clearly falls u/s 302, Penal Code. The absence of motive and want of proof of immediate cause have already been taken into account by the learned trial Judge in awarding the sentence. The appeal is rejected.

Chopra, J.

I agree