State vs Harijan Kachara Sada

V.B. Raju, J.—This Judgment will dispose of Confirmation Case No. 1 of 1960 and Criminal Appeal No. 282 of 1960 arising out of the

judgment of the learned Judge at Mehsana convicting the applicant Kachara Sada Dhed-Harijan u/s 302 I.P. Code for having murdered Bai

Mangu aged 17 years wife of one Ishwar and u/s 394 and 397 I.P. Code for having robbed her of her ornaments and for having used a deadly

weapon while committing robbery.

It is contended that Keshavlal is the only eye-witness who according to the prosecution had seen the appellant at the scene of offence and that

when the prosecution case depends on the evidence of only one eye-witness his evidence requires to be corroborated and for this purpose the

Learned Counsel for the appellant relied on a ruling reported in Vemireddy Satyanarayan Reddy and Others Vs. The State of Hyderabad, .

This case is distinguishable from the present case because in that case a person who had seen the perpetrator of a crime had not given

information of it to any one else and it was held that such a person can be regarded in law as an accomplice. But in the instant case Keshavlal who

had soon the crime at about 11-30 a.m. went immediately to the house of Amichand and had given information to Bai Pashi. The remarks of Their

Lordships therefore do not apply to the facts of the present case. The principles relating to corroboration have been laid down Vadivelu Thevar

Vs. The State of Madras, as follows:

The following propositions may be safely stated as firmly established:

(1) As a general rule a Court can and may act on the testimony of a single witness though uncorroborated one credible witness out weights the

testimony of a number of other witnesses of indifferent character.

(2) Unless corroboration is insisted upon by statute Courts should not insist on corroboration except in cases where the nature of the testimony of

the single witness itself requires as a rule of prudence that corroboration should be insisted upon for example in the case of a child witness or of a

witness whose evidence is that of an accomplice or of an analogous character.

(3) Whether corroboration of the testimony of a single witness is or is not necessary must depend upon facts and circumstances of each case and

no general rule can be laid down in a matter like this and much depends upon the judicial discretion of the Judge before whom the case comes.

At this stage it would be convenient to deal with the contentions of the Learned Counsel for the appellant that the answers given by the appellant

in his examination at the Sessions trial cannot be taken into consideration for two reasons; firstly because in the certificate attached to the

examination of the appellant it has not been stated that the questions and answers had been read over to the appellant and secondly because the

learned Judge put lengthy questions sometimes covering 16 to 17 lines of the printed page and this has caused prejudice to the accused. It is also

contended that even in the case of the evidence of witnesses the Court records a certificate that the deposition had been read over to the witness.

It is therefore urged that in the case of the examination of an accused such a certificate is all the more necessary. Section 360 Cri. Pro. Code

requires that the evidence of each witness should be read over to him in the presence of the accused or of his pleader if he appears by pleader.

Similarly Section 364 Cr.P.C. requires that the whole of the examination of an accused person including every question put to him and every

answer given by him shall be recorded in full and such record shall be shown or read over to him or wherever necessary the answer shall be

interpreted to him in a language which he understands. Sub-section (2) of Section 364 Cr.P.C. provides that when the whole is made conformable

to what he declares is the truth the record shall be signed by the accused and the Magistrate or Judge of such Court and such Magistrate"" or Judge

shall certify under his own hand that the examination was taken in his presence and hearing and that the record contains a full and true account of

the statement made by the accused. Although Sub-section (1) of Section 364 Cr.P.C. requires that the record of the examination of an accused

person should be shown or read over to him the certificate referred to in Sub-section (2) does not require that this fact should be stated in the

certificate. Of course there is no harm in including this fact also in the certificate and it would perhaps be advisable to do so. It is urged that as the

certificate does not contain a statement that the record of the examination of the accused person was shown or read over to the accused the

examination is vitiated and the record cannot be looked at. The notes of proceedings at the Sessions trial are signed by the learned Sessions Judge

and the Rojnama for the date on which the accused was examined shows clearly that the examination of the accused was read and recorded. This

is a sufficient compliance with the requirements of Section 364 of the Cri. Pro. Code. As the procedure of attaching a certificate to the examination

of an accused person is to be followed under Sub-section (2) of Section 364 Criminal Procedure Code it may be advisable to include a statement

in the certificate that the record has been shown or read over to the accused person.

The next contention is that the manner of the examination of the accused is most unsatisfactory and he caused serious prejudice to the accused.

The examination of the accused by the learned Sessions Judge covers 10 printed pages. Some of the questions run into 17 to 18 printed lines. The

length of questions appears to be due to the fact that several portions of the evidence of the witnesses are summarized and then the accused is

asked whether he wished to say anything in relation to the evidence referred to in the question. No doubt the examination of an accused person

must be as complete as the law requires but there appears to be some misunderstanding as to the scope of Section 342 of the Criminal Procedure

Code. The relevant portion of this section reads as follows:

(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 persecution have been examined and before he is called on for his defence.

It is therefore clear that the whole purpose of the examination of an accused person is to enable him to explain any circumstance appearing in the

evidence against him. For this purpose the Court may at any stage of an inquiry or trial put such questions to him as the Court considers necessary.

It is also provided that for the aforesaid purpose namely for enabling the accused to explain any circumstances appearing in the evidence against

him the Court shall question him generally after the evidence for the prosecution has been examined and before he is called for his defence. It is

therefore clear that the sole purpose of the examination of an accused person is to enable him to explain any circumstances appearing in the

evidence against him. If the prosecution witnesses have deposed to any incriminating circumstances from which the guilt of the accused person can

be inferred the accused person must have been given an opportunity to explain the incriminating circumstances because in case of circumstantial

evidence if the circumstances are open to a reasonable explanation consistent with the innocence of an accused person he is entitled to an acquittal.

But sometimes the prosecution witnesses give evidence which does not relate to incriminating circumstances. For instance in this case Bai Pashi has

stated that Bai Mangu had come to her house 12 days prior to the date of the offence and that she had sent Prahlad to fetch Bai Mangu home.

Again a witness might say that he had got prepared certain ornaments for the father of the deceased. No doubt these facts are relevant but they are

not incriminating Circumstances and in relation to such points it is impossible for an accused person to offer any explanation. It is not necessary that

important portions of the entire evidence given by a witness should be put to the accused person in his examination and that he should be

questioned about every important statement made by a witness in the witness box. It is only the portions of the evidence of the witness on which

the accused person can give an explanation that should be put to the accused in his examination. Of course the accused should be asked whether

he wishes to say anything about every one of the prosecution witnesses. If a prosecution witness has not given evidence of any incriminating

circumstance requiring explanation of the accused portions of the evidence of such a witness need not be put to the accused in his examination.

Moreover questions should be put in such manner as to be easily understandable and they should not be lengthy. Long questions and questions

which are omnibus or composite or complicated should not be put. Referring to 10 to 20 statements made by a witness and asking the accused

whether the evidence is true is also not proper. It may be that when the accused answered in the affirmative he was referring to only the last portion

of the question put to him. If to such a question the accused answered yes it would not be proper to interpret the answer as meaning that the entire

evidence given by the witness and put in the question is true. When such a lengthy question is put and the answer is given in the affirmative such

answer should not be considered in fairness to the accused person. We no not propose to consider such answers whenever the question is lengthy.

His Lordship then discussed the evidence.

We are therefore satisfied that the guilt of the appellant is proved beyond reasonable doubt in respect of the offence of causing the death of Bai

Mangu notwithstanding the fact that the name of the assassin was not mentioned in the first information report. The evidence proving the guilt of the

accused consists of the evidence of Keshavlal the evidence of Prahlad the corroborative evidence of Bai Pashi and Bai Rai the circumstantial

evidence relating to the possession of the ornaments of the deceased immediately after the death of Bai Mangu their disposal by the appellant by

way of pledge or sale and the finding of human blood on the sweater (Art. 15) which was worn by the appellant on the morning in question. There

are also the additional circumstances that the accused had absconded after 1 p. m. on the day in question and that the appellant stayed at various

hotels under assumed names. No doubt the last two circumstances do not have much value but even if these circumstances are excluded the other

circumstantial evidence is sufficient to justify the inference that it was the accused only and none else who bad committed the murder of Bai Mangu.

As already observed we have considered only those answers given by the accused in his examination at the Sessions trial about which there is no

ambiguity. We therefore confirm the conviction of the appellant u/s 302 Indian Penal Code for the murder of Bai Mangu. But as regards the

offence u/s 397 Indian Penal Code the prosecution has not led evidence to show that Bai Mangu was alive when the ornaments were removed

from her body. For a conviction u/s 397 I.P. Code a deadly weapon must be used of grievous hurt caused or an attempt to cause death or

grievous hurt must be made at the time of committing robbery or dacoity and not before the commission of the robbery or dacoity. Therefore we

acquit the accused u/s 397 I.P. Code.