Ajmer Singh vs The State Of Punjab

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: supreme-court

Case Number: Criminal Appeal No. 67 of 1952

Decision Date: 10 December 1952

Coram: Mehr Chand Mahajan, Natwarlal H. Bhagwati

In the matter styled Ajmer Singh versus The State of Punjab, a judgment was delivered on 10 December 1952 by the Supreme Court of India. The opinion of the Court was authored by Justice Mehr Chand Mahajan and the bench was composed of Justice Mehr Chand Mahajan together with Justice Natwarlal H. Bhagwati. The petitioner in the appeal was Ajmer Singh and the respondent was the State of Punjab. The date of judgment is recorded as 10 December 1952. The composition of the bench is reiterated as Justice Mehr Chand Mahajan, Justice Das Sudhi Ranjan, and Justice Natwarlal H. Bhagwati. The case is reported in the official law reporters as 1953 AIR 76 and 1953 SCR 418. Citator references to this decision appear in subsequent reports, namely F 1956 SC 217 (1), R 1956 SC 425 (5), R 1957 SC 216 (12), R 1957 SC 589 (16), RF 1961 SC 715 (7), RF 1962 SC 439 (8), E 1962 SC 1239 (14), RF 1963 SC 200 (17), RF 1973 SC 2622 (7), and R 1974 SC 606 (6). The statutory provisions relevant to the appeal are sections 342 and 417 of the Criminal Procedure Code of 1898, dealing with the examination of an accused in a criminal trial and the permissible grounds for interference with an acquittal, respectively.

The headnote of the decision explains that once an acquittal order has been entered, the presumption of innocence is reinforced, and the trial court’s judgment cannot be reversed merely because the accused failed to explain adverse circumstances unless there are very substantial and compelling reasons. In an appeal filed under section 487 of the Criminal Procedure Code, the High Court is vested with full authority to review the evidence that formed the basis of the acquittal. The duty imposed on a Sessions Judge by section 342 requires that the accused be examined beyond a mere recitation of the questions asked to him in the Magistrate’s Court and the answers he gave; it also requires that the judge not simply ask whether the accused wishes to say anything after having heard the prosecution’s case. Rather, the accused must be questioned separately about each material circumstance that the prosecution intends to rely upon. The purpose of section 342 is to provide the accused with a fair and proper opportunity to explain the circumstances that appear against him, and the questions must be framed in a manner that an ignorant or illiterate person can understand. Although it is well settled that any error or omission in complying with section 342 does not automatically invalidate the trial, such errors are regarded as curable irregularities. Whether the trial is vitiated depends on the extent of the error and on whether prejudice has been caused or is likely to be caused to the accused. The judgment also refers to the earlier case of Tara Singh v. The State ([1951] S.C.R. 729). Under the heading “Judgment,” the case is identified as a criminal appellate jurisdiction matter, Criminal Appeal No. 67 of 1952. The appeal was instituted by special leave from the judgment and order dated 14 September 1951 of the High Court of Judicature for the State of Punjab at Simla, rendered by Justices Bhandari and Soni, in Criminal Appeal No. 361 of 1950, which arose from the earlier proceedings.

In the appeal before this Court, the record shows that the judgment and order dated 13 May 1960, issued by the Sessions Judge of Ferozepore in Trial No 28 of 1950 and Case No 5 of 1950, was challenged. The appellant was represented by counsel P S Safeer and the respondent by counsel Gopal Singh. The judgment for this appeal was delivered on 10 December 1952 by Justice Mahajan J. The factual background indicates that Ajmer Singh, a young man of approximately twenty-two years, had been tried for the murder of his first cousin, Bagher Singh, and had been acquitted by the Sessions Judge of Ferozepore in the judgment dated 13 May 1950. The State Government appealed that acquittal, and the High Court set aside the order of acquittal, convicted the appellant under section 304 of the Indian Penal Code and sentenced him to ten years’ rigorous imprisonment. The present proceeding is a special leave appeal against that decision. The dispute originated in a family where the late Nikka Singh left three sons: Bhagwan Singh, Lal Singh and Sunder Singh. Bhagwan Singh died without issue several years earlier, after which controversy arose between his surviving brothers, Lal Singh and Sunder Singh, concerning the division of Bhagwan Singh’s property. Sunder Singh retained possession of part of the landed estate, prompting Lal Singh to obtain several decrees for restoration of possession, which Sunder Singh ignored. Consequently, the relationship between the two brothers became highly strained, to the extent that they were reportedly not on speaking terms for a considerable period. Lal Singh was married to Mrs Dhan Kaur, and they had two sons, one of whom, Bagher Singh, was later murdered; the other son, Arjan Singh, is designated as the prosecution’s witness numbered five. Ajmer Singh, the accused, was the son of Sunder Singh, and he had a biological brother, Banta Singh. Ajmer Singh was married to Jagir Kaur, while Banta Singh was married to Kartar Kaur. The prosecution alleged that on the evening of 27 January 1948, Jagir Kaur complained to her father-in-law that her husband had pawned her earrings in order to meet his gambling liabilities. The following morning, Banta Singh questioned Ajmer Singh about the matter, and Ajmer Singh replied that he had pawned the earrings to a person named Banta Singh Mazhbi. Subsequently, Ajmer Singh, together with Banta Singh and a third individual, Teja Singh, approached Banta Singh Mazhbi and demanded the return of the earrings. Mazhbi denied having any such ornaments in his possession and offered to pay a sum of thirty rupees to them, conditional upon Ajmer Singh swearing an oath that the ornaments had indeed been left with him. It is recorded that Lal Singh was present during this dialogue and intervened in support of Banta Singh Mazhbi, which provoked a heated verbal exchange between Lal Singh on one side and the party consisting of Sunder Singh’s two sons and their associate Teja Singh on the other. Although the confrontation escalated into a war of words, the parties eventually dispersed without any physical altercation at that moment.

On the same day Lal Singh and his brother Sunder Singh began hurling abusive remarks at each other from the houses that opened onto a shared courtyard. Their noisy dispute attracted the attention of Arjan Singh, Bagher Singh and a man named Ujagar Singh Mazhbi, who, on hearing the commotion, went to Lal Singh’s house. Feeling supported by the three newcomers, Lal Singh issued a challenge to Sunder Singh, demanding that he come out into the open. Sunder Singh responded to the challenge together with his two sons, Banta Singh and Ajmer Singh, and a cousin named Teja Singh, and they all rushed out of the house. During the ensuing clash Teja Singh and Banta Singh were armed with spears and they attacked Lal Singh and a woman named Dhan Kaur, inflicting several injuries on both of them. Ajmer Singh also carried a spear; he thrust his weapon into the chest of Bagher Singh, who fell down and died almost instantly. After the fight Arjan Singh travelled about seven miles and, at approximately 11:45 p.m., reported the incident at the police station. The statement he gave to the police was substantially the same as the testimony he later gave under oath in the trial. In his report Arjan Singh identified Ajmer Singh as the person who delivered the fatal blow to Bagher Singh, stating that Bagher Singh collapsed at the moment of the strike. The police subsequently arrested Sunder Singh, Teja Singh and Banta Singh, while the appellant Ajmer Singh could not be located. Sunder Singh, Teja Singh and Banta Singh were originally charged under sections 302 and 34 of the Indian Penal Code, but the trial court convicted them under section 324, IPC. Banta Singh and Teja Singh each received two years of rigorous imprisonment, and Sunder Singh was sentenced to six months of rigorous imprisonment. On appeal, Sunder Singh’s conviction was set aside and the sentences of Banta Singh and Teja Singh were reduced, the appellate court taking a lenient view because the altercation among the close relatives had arisen suddenly and concluded quickly. The court noted that Bagher Singh died as a result of a single blow, while the injuries sustained by Lal Singh and Dhan Kaur were not serious. Ajmer Singh was finally apprehended on 4 December 1948, tried before the learned Sessions Judge of Ferozepore and acquitted at that level, but the State Government appealed and the High Court convicted him. The primary witnesses who gave direct evidence about the events were Lal Singh, identified as PW 3, his mother Dhan Kuar, and Arjan Singh, his legitimate brother. Although Ujagar Singh Mazhbi, whose name appeared in the first information report, was called for cross-examination, no questions were put to him regarding the actual fight, the manner in which it unfolded, or his participation in it. Another witness, Bishandas, who owned the shop adjoining that of Banta Singh Mazhbi, was also called as PW 7. He testified that Banta Singh …

Mazhbi and Lal Singh were the only persons present when the quarrel over the ear-rings erupted near Mazhbi’s shop. During re-examination the witness explained that Banta Singh, who was the brother of the accused, and Teja Singh had positioned themselves on one side, while Lal Singh had taken the opposite side at the time of the dispute. No direct question was put to the witness concerning whether Ajmer Singh was present on that occasion. The learned Sessions Judge treated the witness as a completely independent person and accepted his testimony regarding the incident that occurred at Banta Singh Mazhbi’s shop on the morning of the 28th. The Judge concluded that Ajmer Singh was not at the shop and that Lal Singh together with Arjan Singh had falsely implicated him in the quarrel over the ear-rings. The Judge further observed that if the witnesses could falsely involve Ajmer Singh in respect of one aspect of the occurrence, the possibility that he might also be implicated in the murder of Bagher Singh out of vindictiveness could not be ruled out. After a detailed examination of the evidence of the three eye-witnesses, the learned Sessions Judge reached the finding that the witnesses had suppressed facts in order to free themselves from any liability for the events of the 28th, that they had uttered false statements, and that no confidence could be placed in their accounts concerning the role assigned to Ajmer Singh. In the concluding part of his judgment the Judge remarked that the parties were at logger-heads on several issues and, in the absence of any independent evidence, it was difficult to rely on the prosecution’s version of events with respect to Ajmer Singh. On appeal, the High Court conducted a meticulous review of the testimonies of these three eye-witnesses and held that the variations in their statements made at the two trials were of a minor and trifling nature, and were naturally attributable to the fact that the statements at the trial were recorded twenty-seven months after the incident. The Court observed that Arjan Singh’s narration of events was substantially the same as that he had given at the earlier trial and as recorded in the first information report. Regarding Lal Singh, who had withdrawn from his earlier statement and subsequently denied that he possessed a phaura or that Arjan Singh was armed with a lathi, the High Court explained that this omission was due to a simple lapse of memory and forgetfulness rather than a deliberate attempt to alter the prosecution’s story. Counsel for the petitioner, Mr. Pritam Singh Safeer, argued that there were no compelling reasons to set aside the order of acquittal and that the High Court had not given proper weight to the trial judge’s assessment of the credibility of the witnesses he had examined. The learned counsel further submitted that the High Court erred in its view that when a strong prima facie case is…

The Court observed that when a strong prima facie case is made against an accused person it is his duty to explain the circumstances appearing in evidence against him and` he cannot take shelter behind' the presumption of innocence and cannot state that the law entitles him to keep his lips sealed. This criticism was held to be well founded. The Court explained that after an order of acquittal has been pronounced, the presumption of innocence is reinforced by that order; consequently, a trial-court decision may be set aside not on the ground that the accused failed to explain the circumstances against him, but only for very substantial and compelling reasons. Because the lower courts expressed divergent views on the credibility of the prosecution witnesses, the evidence had to be examined with great care. After such careful reading, the Court was, on the whole, inclined to accept the view expressed by the High Court. It was difficult to accept the proposition that, without any truth to the allegation that the appellant struck Bagher Singh with a barchha, Arjan Singh would have selected the appellant and ascribed that act to him shortly after the occurrence. The statements made by Arjan Singh on different occasions contained no material discrepancies, and the reasons given by the learned Sessions Judge for rejecting his testimony were not found convincing. The Court agreed with the High Court that there were no sufficient grounds for distrusting his evidence. Only seven or eight persons participated in the quarrel, and the blows inflicted were few; under those circumstances Arjan Singh could not have erred in identifying the person who delivered the fatal blow to Bagher Singh. This portion of his statement was corroborated by the evidence of Lal Singh and Dhan Kaur, and no cross-examination was directed against this part of their statements. The Court found that the learned Sessions Judge had taken an exaggerated view of the minor discrepancies in these statements and had read them with an overly hypercritical mind. Bishandas, whose statement had considerably impressed the Sessions Judge, was tendered only for cross-examination and never gave a full statement about the events of the morning of the 28th. His statement was somewhat cryptic, and from it one could not definitively conclude that Ajmer Singh was absent from Banta Singh Mazhbi’s shop on that morning. Therefore, the Sessions Judge was not correct in rejecting the entire body of prosecution evidence as unreliable merely on the basis of this cryptic statement. Ujagar Singh, another so-called independent witness, was also tendered for cross-examination, but the defence did not pose any question to him concerning the happenings of the 28th. Consequently, the argument that the prosecution had withheld independent witnesses who had observed the occurrence lacked any substance. The learned Sessions Judge appeared to be operating under a misapprehension when he asserted that the prosecution had withheld independent witnesses of the occurrence. Apart from Ujagar Singh Mazhbi, no other witness was found to have been present when the attack on Bagher Singh, Lal Singh and Mst. Dhan Kaur was carried out by the party of the accused.

The Court observed that no individual other than those already mentioned seemed to be present when the assault on Bagher Singh, Lal Singh and Mrs. Dhan Kaur was carried out by the accused’s party. The evidence showed that after the altercation ended, several persons arrived at the scene, but because they did not witness the attack on Bagher Singh, they could not give testimony about that specific incident, and their failure to be produced as witnesses could not affect the outcome of the case. It was also noted that the defence presented no evidence to show that the fight had occurred in any manner different from the version given by the prosecution witnesses, nor did it produce any proof that Ajmer Singh was absent at the time. The Court further explained that, under an appeal filed pursuant to section 417 of the Code of Criminal Procedure, the High Court possessed full authority to re-examine the material on which the acquittal was based, and the Court was satisfied that the High Court had exercised that power correctly. The injuries alleged on the persons of Kartar Kaur and Lal Singh were not established as having been inflicted during the incident and therefore were irrelevant; the prosecution was not required to explain how those injuries might have occurred. The appellant then argued that the trial before the Sessions Judge was flawed because the examination of the appellant did not comply with the requirements of section 342 of the Criminal Procedure Code. While the point that the Sessions Judge’s examination was merely “detective” was acknowledged, the Court found that the Judge had only read to the appellant the examination recorded in the committal court and then noted the following questions and answers: “Q: Did you make before the Committing Magistrate the statement that has just now been read out to you? A: Yes. Q: Now that you have heard the entire evidence against yourself and the charge has been explained to you, do you wish to say anything else? A: I am innocent. Q: Do you wish to produce any evidence in defence? A: No.” In the earlier committal proceedings, the questions put to the accused and his answers were: “Q: Did you pawn the earring of your wife with Banta Mazhbi and squander the proceeds on or about 28 January 1948? A: No. Q: Did Lal Singh interfere when you were demanding the earrings from Banta Singh on 28 January 1948 at Nathuwala and remark that the sweeper, i.e., Banta, was speaking the truth when he denied the transaction? A: No. Q: On 28 January 1948 at Nathuwala, did you, together with your father Sunder Singh, Banta Singh and Teja Singh—Banta Singh and Teja Singh being armed with spears—attack Lal Singh, his son Bagher Singh and Dhan Kaur at their house, and in furtherance of your common intention, did Banta and Teja cause simple injuries to Lal Singh with spears while you caused …”. The Court concluded that the Sessions Judge had not fulfilled the procedural duty required by section 342, as he merely read the prior questions and answers and asked the accused only whether he wished to add anything, which did not satisfy the statutory requirements for the examination of an accused.

In the committal proceedings, the accused answered a series of questions that were recorded in the trial record. He denied that he had pawned his wife’s ear-rings to Banta Mazhbi or that he had spent the proceeds around 28 January 1948. He also denied that Lal Singh had interfered when he was demanding the ear-rings from Banta Singh at Nathuwala on that date, and he denied that Banta Singh had spoken truth when he denied any transaction. When asked whether, on 28 January 1948 at Nathuwala, he, together with his father Sunder Singh, Banta Singh and Teja Singh—who were armed with spears—had attacked Lal Singh, his son Bagher Singh and Dhan Kaur at their house, and whether, in furtherance of a common intention, Banta Singh and Teja Singh had caused simple injuries to Lal Singh while he himself had inflicted fatal injuries on Bagher Singh with a spear, he responded in the negative. He was then asked why a case had been instituted against him, to which he replied that it was due to enmity, and he said he had nothing further to add.

The Sessions Judge, however, did not ask the accused the routine question required to confirm whether the statement he had made in the committal court was correct. Instead of formally asking whether the accused had made the statement that had been read to him in the committal court and obtaining a positive response, the Judge merely posed a second, general question that did not satisfy the requirements of section 342 of the Criminal Procedure Code. The Court observed that when section 342 obliges the Sessions Judge to examine the accused, the duty is not discharged by simply reading the questions and answers that were presented in the committing magistrate’s court and by asking the accused if he wished to say anything about them. It is insufficient to comply with the provision by generally asking the accused what he has to say after hearing the prosecution evidence. The accused must be questioned separately about each material circumstance that the prosecution intends to rely upon.

The Court referred to its earlier decision in Tara Singh v. The State (1) [1951] S.C.R. 729, noting that the object of section 342 is to give the accused a fair and proper opportunity to explain the circumstances that appear against him, and that the questions must be framed in a fair manner that an ignorant or illiterate person can understand. Although at one stage the Court was inclined to order a retrial because of the defective examination by the Sessions Judge, it later concluded that the High Court was correct in holding that the procedural defect did not prejudice the accused. The facts of the case were straightforward, and the sole point of contention was that the accused had struck Bagher Singh with a spear. The witnesses had testified to that fact, and their testimony had been cross-examined by the accused’s counsel. The accused was fully aware of the part ascribed to him in the dispute. He had maintained his innocence in the committal court, stating that he was being implicated because of enmity, and he repeated the same answer in the Sessions Court after fully understanding the question. The Court reiterated the settled principle that an error or omission in complying with section 342 does not automatically invalidate a trial; such errors are considered curable irregularities, and whether a trial is vitiated depends on the degree of the error and whether prejudice was caused to the accused. Consequently, the Court found that the disregard of section 342 in this case was not sufficiently serious to warrant setting aside the conviction or ordering a retrial, and it upheld the judgment of the High Court, dismissing the appeal.

The Court observed that a procedural defect does not, by itself, automatically render a trial void. Errors of this nature are placed within the category of curable irregularities, meaning that they can be remedied without necessarily overturning the whole proceeding. The Court referred to the authority in Tara Singh’s case (1), where it was held that the determination of whether a trial is vitiated must be made by examining two principal factors: first, the degree or seriousness of the error committed, and second, whether the accused has suffered, or is likely to suffer, any prejudice as a result of that error. Applying that established test, the Court considered the present case where the provisions of section 342 were disregarded. While acknowledging that such disregard constituted a breach of the procedural requirements, the Court concluded that the breach was not of such a gross or serious character that it would justify setting aside the conviction that had already been recorded. In other words, the error, though present, was not sufficient to warrant the extraordinary step of ordering a retrial. Accordingly, the Court affirmed the judgment delivered by the High Court, finding no reason to disturb that decision. The appeal filed by the appellant was therefore dismissed. The order reflects the view that the irregularity, being curable and not prejudicial to the accused, does not merit any further interference. Counsel for the appellant, identified as B. S. Gheba, had argued for relief, while counsel for the respondent, identified as G. H. Rajadhyaksha, defended the conviction. The Court’s final direction was to dismiss the appeal.