MACHANDER v. BosE J.-This

the Judgment and the 26th September, 1951, of the Hydera Order dated in Criminal Confirmation N?. 638/6 bad High Court of 1951 and Criminal Appeal No. 770 of 1951, arising out of the Judgment and Order dated the 27th June, 1951, of the Q>urt of the Sessions Judge, Osmanabad, in Criminal Case No. 12/8 of 1951. 2 S.C.R. SUPREME COURT REPORTS 525 R. Patnaik for the appellant. Porus A. Mehta and P. G. Gokha/.e for the respon- dent.

#1955. September 27. The Judgment of Court was delivered by 1955 Muliantllr, Son efP~ v. 91'* of H,U,dbad language to acquit to explain is another of those cases in which BosE J.-This Courts are compelled because Magistrates and Sessions Judges to appreciate the importance of section 342 of the Criminal Procedure Code and the duty that is cast upon them of to carry out questioning the accused properly and fairly, bringing home to his mind in clear and simple exact case he has to meet and each material point to be made against him, and of afford is sought if he can and so ing him a chance desires. Had the Sessions Judge done that case it is possible that we would not have been obliged to acquit. simple. The appellant Machandcr The facts was charged with the murder of one Manmath. Machander's brother Gona was also challaned but as he absconded he could not be tried. The appellant and the deceased and Gona reside in the same village. There was some ill-feeling between the appellant and the deceased and it can be accepted because, that Gona shared his brother's sentiments so far as the latest equally concerned; and this also applies to Pandu, father, and Bhima, another brother. the appellant's The causes for enmity are the following. In or about the year 1947 the appellant appears to have stolen a pair of bullocks and a cart belonging to the deceased. The deceased prosecuted him for the instituted a civil suit for the price of theft and also the cart and bullocks. He succeeded in both cases. and sent The appellant was convicted jail. a decree was against him for Rs. 520 and that decree was duly executed. We now come the events ing the murder. The appellant forcible possession of some immediately preced and his family took cause for enmity goes, Gona land belonging of theft passed 19~5 }J.achandtr, Son of Paniurang v. Stat~ of Hyderabad Bos~J 526 SUPREME COURT REPORTS [1955] the 16th, on behalf the Court is to say, on 15-12-1950 16-12-1950. Pandu, and Gona. The deceased's sister Parubai. She sued the whole family she im for possession of this land, appellant pleaded the appellant's father and his two brothers Bhima decision was hearing was It was in Parubai's favour. announced on The deceased conducted this litigation his sister. He was present in Court on the 15th and situate, was present :!J: Parenda, where up to 3 P.M. on the decision was the last that was seen of him. announced. the cause of the ill-feeling. These facts are said indicate, a similar cause But, (though not to the same degree) could for enmity the father be assigned the other brothers; had similar opportunities. The move equally, ments of to Parenda have been traced and back but not the movements of the rest of the that they had no similar family. opportunity to murder. It can however be ,accepted that cause for enmity on the appellant's part is estab lished. to be themselves So it is not shown the appellant )hat was the day the facts there on It is proved the deceased went to Parenda on the case and that the the 15th for the last hearing of It is also to 3 P.M. was also the 16th' up that the appellant was in Court on the 15th and proved It can that he was in Parenda on the following day. appellant be accepted that both in Court at the same time on the 15th were present the d~­ and that ceased had the two met each other or that either is no proof that of the other on the 16th. knew about to see their respective All we know is that both went pleaders at different places and times and learned the result of the case. therefore the appellant knew that the Court the deceased and the the movements that day. But attended Four the case, five· days after the appellant the deceased. The deceased's came home but not son Shanti ling (P. vV. 10), who knew that the appel to Parenda for the case, asked him lant had also gone where his father was. The appellant father had not attended court. This made the son 1955 Machander, <Son of Pandurang v. Stal1 of Hyderabatl Bose]. 2 S.C.R. SUPREME COURT REPORTS 527 police the 16th. told him to Parenda that he suspected Shantiling (P. W. 10) the police and Panchas so he. went to make enqumes. anxious, The pleaders that his father had at tended court on the 15th and that he was in Parenda till 3 P.M. on that his father was informed mediately missing and gave them a description of him and also a list of the things he was wearing and a description of the horse he was riding. This was on the 26th. the 29th, he lodged a regular Three days later, on that he was afraid his father had complaint and said been murdered and said the appel lant and his brother Gona. The appellant was arrested the same day and after to a place his arrest he where blood-stained earth and grass were found and a blood-stained stone, also some of the articles which Shantiling (P. W. 10) had des.cribed to the police on two silver the 26th, namely pieces of a silver ~adas, a silver spike and a white gilt button. All except the kadas were found to be stained with human blood. About 25 paces appellant corpse of the pointed out another place where deceased was found to be buried. Pearl ear-rings and a kardoda of yarn with iron keys were still on the body. They were all stained with human blood and are proved to have belonged On the 1st of January 1951 took the police and the Panchas to a place where two saddle straps and two iron stirrups were buried. One of the stirrups was stained with human blood. from here to the deceased. the appellant linga, On the 3rd the reins of itself were discovered but the instance of the appellant. the horse and the horse this discovery was not at Except the confession, which has been excluded, is against the appellant. The ques this is all there tion is whether that is enough to bring guilt home him. Stated briefly, the circumstances are- the appellant knew

#1. That had attended the Court at Parenda on that he had seen him it he told a lie. the deceased the 16th there but when questioned 528 SUPREME COURT REPORTS [ 19.55] ,

19.55 Mae/uJltdn, SIM q/P-.,.1 v. Stau of ~'6t1Nd BM•]· to be observed that this is not the In passing it is class of case in which an accused person is last seen with a murdered man within a few hours of the murder. Though the deceased and the appeJlant were in Court at the same time, they were not there "together" and in view of the i11-will between them and the deceased went on a horse in view of the fact it is unlikely that they travelled together either going and the appellant was not with the de or coming; last seen at 3 P.M. on the 16th. ceased when he was But to hide .something. 2. That the murder he knew that Manmath had been murdered. He also knew the murder had been committed and where the body and certain to the deceased were hidden. 3. That that the appellant wanted thirteen days after articles belonging ill-will between there was is clear them, but an the appellant's family ill-will might be expected to share. othre members of

#4. That he had fuJI opportunity kind of opportunity to commit that the crime, but other members of his family also had. The question is whether of the appellant's four circumstances, the background of this case, are sufficient regarded the appellant. to warrant a conclusion of murder by In our opinion, they are not because the same circum to point with equal suspicion at stances could be s;1id other members It has to family. the brother Gona was also sus be remembered and that he absconded and could not be traced. pected We do not say that he was the murderer and it would in his absence, but if he was, be wrong to suggest then the appellant's knowledge of the murder and of later, might have been derived from Gona, or it might even be that he the corpse saw his brother commit the crime and hide that are not unreasonable on the facts of this particular case and they have not been reasonably excluded. Consequently, we are unable thirteen days later, coupled with a motive which three others the articles. Those are hypotheses that mere knowledge concealment, thirteen to hold 1955 Machandtr, Son of Pandurang v. State of Hyderabad Bo1tJ. .2 S.C.R. SUPREME COURT REPORTS 529 share, and a lie about the deceased' s movements five days after four, is all that conviction must be set aside. the murder, are enough; and the High Court has based on, the <'>r Y.l e have assumed throughout that was discovered on the 29th and the the corpse fact of murder have been established. Those were not admitted before us but we need not discuss in our opinion, to say the point. both facts are satisfactorily proved. the identity enough that, It is prejudice We referred, earlier from evidence because to a confes in our judgment, sion which the High Court has excluded. This was the appellant was excluded not questioned about it under section 342, Criminal the High Court Procedure Code. We gather thought though that occasioned do not say so in so many words· The learned Judges the 29th and he made appellant was arrested on the 29th December 1950 and on many discoveries on the 1st, 2nd and 3rd January 1951 but did not confess in the eight till the 6th. Much might have happened so the High days between his arrest and to take that into Court was not unjustified consideration without the appellant's side of the s,tory. in refusing the 6th, hearing t<'> realise them or the consequences the case. But we decline to do remand and magistrates must the examination under section 342 of We were asked to reopen the question and, if neces sary, that. import Judges ance of Criminal Procedure Code and this Court has repeatedly warned that might ensue in certain cases. The appellant was arrested in December 1950 and has been on his trial one way and another for over 4} years. We are .:ver since, not prepared is not one-sided. judges omit to do their duty. Justice It has many facets and we have to draw a nice balance rights and duties. While it is in between conflicting the guilty do not escape it cumbent on us that persons accused .ts even .m0re necessary to keep persons who are on trial indefinite suspense because to see that is to say, 1955 A1achander, Son ofPandurang v. Stalt of Hydtrabad BoJ' J. 530 SUPREME COURT REPORTS [1955J impartial to which trial and while of crime are not indefinitely harassed. They must he given a fair and latitude must be given to those concerned reasonable with the detection of crime and entrusted with justice, limits must be placed on administration of they may go. Except in clear the lengths cases of guilt, where technical, the the accused should no forces more be permitted to repair than an accused should be effects of their bungling in his defence which he could permitted to repair gaps and ought the lower courts. The scales for justice must be kept on an even balance whether for the accused or agaii:ist him, whether favour of the State or not; and one broad rule must apply in all cases. that are arrayed against to have made good in special the error is purely appeal to have been The error here not a mere technicality. The appellant appears to disclose all on the 29th and make a clean breast of everything and yet the police waited eight days before getting a confession judicially recorded. That may be capable the difficulty of asking an accused of explanation but person favour four and a half years is obvious. Without there fore attempting to lay down any general rule, we are not prepared to order a retrial in this case because of the facts that appear here. to establish facts of this kind in his The appeal is allowed. The ~<;>nviction and sentence are set aside and the appellant is acquitted.