Prem Nath vs State Of Delhi

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

Court: supreme-court

Case Number: Not extracted

Decision Date: 17 December, 1953

Coram: B.K. Mukherjea, Jagannadhadas, J.

In this appeal, the Supreme Court considered a certificate that the High Court of Punjab had issued under Article 134 (1)(c) of the Constitution. The certificate pertained to the High Court’s earlier judgment which had confirmed the conviction of the appellant for the offence punishable under Section 302 of the Penal Code and had upheld the death sentence imposed on him. The facts giving rise to the charge involved a violent incident in which four individuals received gun-shot injuries. The persons wounded were Bishan Chand, his wife Mst Kanta Devi, his son Bishan Bhagwan, and his sister Mst Kamala Devi. The first two victims, Bishan Chand and Mst Kanta Devi, died shortly after the shooting, while Bishan Bhagwan and Mst Kamala Devi survived after receiving medical treatment.

The prosecution narrative described the events of 12 August 1952. On that day a ceremony was being held at the residence of the deceased Bishan Chand, and several of his relatives were invited. Among the invitees was Mst Satya Devi, the appellant’s wife, who was related to Bishan Chand through his former wife who had already died. It was alleged that the relationship between the appellant and his wife had become strained for roughly six months before the incident, and that Mst Satya Devi had left her husband’s house to stay with her parents. Upon learning that his wife was present at Bishan Chand’s house, the appellant went to the house at about three p.m. and asked Bishan Chand whether his wife had arrived and was staying there. Bishan Chand replied that she had indeed come but had already left and returned to her own residence. The appellant left appearing dissatisfied. He returned again at approximately five to six p.m. and repeated the same enquiry. Bishan Chand again affirmed that the wife was not present and invited the appellant to look for her himself. At that moment, the appellant allegedly drew a revolver and fired at Bishan Chand. When Mst Kanta Devi, Bishan Chand’s wife, saw her husband being shot, she rushed toward him, and the appellant is said to have discharged another shot at her with the same firearm. The appellant then purportedly fired two additional shots that struck Bishan Bhagwan (identified as PW 3) and Mst Kamala Devi (identified as PW 5), who were in a nearby room. All four persons fell after receiving gun-shot wounds; Bishan Chand and Mst Kanta Devi later died, while Bishan Bhagwan and Mst Kamala Devi survived following hospital care. In addition to these four shots, the appellant is alleged to have fired a further shot aimed at PW 15, which missed. At the time of the shooting, PW 1, the mother of the deceased Bishan Chand, and several other attendees were present at the venue. The narration continues with details of the subsequent pursuit, apprehension, and trial, which are set out in the following sections of the judgment.

At the function there were several invited guests, among them witnesses identified as numbers 6, 8, 10, 11 and 12. When a hue and cry was raised, some neighbours hurried to the scene. One of those neighbours, witness 13, observed the accused emerging from the entrance of the deceased’s house while holding a revolver. Witness 13 seized the accused. Shortly afterwards, information about the incident reached the nearby police station. The Head Constable, identified as witness 24, arrived at the location and took the accused into police custody, still holding the revolver. The matter was then tried before the learned Second Additional Sessions Judge, who was assisted by four assessors. The charges framed were under Sections 302 and 307 of the Penal Code and Section 19(f) of the Arms Act. The prosecution’s case relied principally on the testimony of several eye-witnesses—specifically witnesses 1, 3, 5, 6, 8, 11 and 12—who were either relatives of the deceased Bishan Chand or the tenant on the second floor of the building where the deceased lived. Additional evidence comprised the fact that the accused was found in possession of the revolver and five empty cartridges, as well as a confessional statement recorded by a magistrate within two hours of the shooting.

The accused, in his statement before the Additional Sessions Judge, put forward a defence that his three sisters had attended the ceremony at Bishan Chand’s house as invited guests, and that the youngest sister had lost a gold earring there. He claimed that he and his father were informed of the loss and went to the house around 5:30 p.m. to look for the earring. According to his version, while they were searching, Bishan Chand confronted him, accusing him of theft, which led to an altercation. He alleged that Bishan Chand and his wife began throwing firewood at him from inside a room and that several other persons rushed at him with the intention of assaulting him. He said his father became frightened and fled, dropping his own revolver in the process. The accused claimed he picked up the fallen revolver, attempted to flee, and was seized by the persons present. To protect himself, he says he discharged the revolver into the air, asserting that he never intended to kill anyone. The accused did not call any witnesses to corroborate his version of events. The learned Additional Sessions Judge accepted the prosecution’s evidence, convicted the accused on all counts—including murder, attempted murder, and illegal possession of a firearm—and sentenced him to death, subject to confirmation by the High Court, along with additional imprisonment terms for the other offences. On appeal, the High Court judges affirmed the trial judge’s assessment of the evidence and upheld the conviction and death sentence for the murder charge.

Before the High Court, counsel highlighted a procedural defect that was alleged to invalidate the entire trial. The High Court judges noted the defect, granted leave to appeal to this Court, and limited the arguments before us to that procedural issue alone. The appellant had been tried on five distinct charges. Two of the charges were under Section 302 of the Penal Code for the murder of Bishan Chand and the murder of his wife. Two further charges were under Section 307 of the Penal Code for attempted murder, relating to the third and fifth witnesses. A fifth charge was under Section 19(f) of the Arms Act for possession of a revolver and five empty cartridges without a licence. The assessors, who are required to give their opinion on each charge, were asked to opine only on the two murder charges and not on the attempted-murder or the arms-possession charges. It was argued that this omission contravened Section 309 of the Criminal Procedure Code and therefore vitiated the whole trial. When the objection was raised before the High Court, the judges acknowledged that the omission was a serious irregularity. However, they held that because the assessors had expressed opinions on the murder charges, the convictions and sentences for those two charges could be sustained, while the convictions under Section 307 of the Penal Code and Section 19(f) of the Arms Act had to be set aside. The High Court further observed that a retrial for the latter two charges was unnecessary. Counsel before this Court emphatically maintained that the Additional Sessions Judge was obligated to obtain the assessors’ opinion on all five charges, and that the failure to do so rendered the entire judgment void, not merely the portions concerning the Section 307 and Section 19(f) convictions. To properly consider the matter, it is necessary to list the precise charges that were framed against the appellant before the Additional Sessions Judge and to note the assessors’ opinions on each charge.

The charges framed were as follows: First, that on 12-3-1952, at approximately 5:30 p.m. or 5:45 p.m., in the house of Bishan Chand at Kucha Natwan, the appellant intentionally caused the death of Bishan Chand by firing a revolver shot, identified as Exhibit P-1, at him, thereby committing an offence punishable under Section 302 of the Penal Code, and that the appellant should be tried by this Court on that charge. Second, that on the same date and time, in the same house, the appellant intentionally caused the death of Mst. Kanta, the appellant’s wife, by firing a revolver shot, also Exhibit P-1, at her, thereby committing an offence punishable under Section 302 of the Penal Code, and that the appellant should be tried by this Court on that charge.

In the charge sheet the Court noted that on 12-3-1952 at about five-thirty or five-forty-five p.m., in the house of Bishan Chand at Kucha Natwan, the accused fired a revolver identified as Exhibit P-1 at Bishan Bhagwan. The prosecution contended that the accused acted with the intention or knowledge that the act could cause death, and that the shooting actually inflicted a wound to the right side of the chest near the shoulder. Accordingly, the charge was framed under Section 307 of the Penal Code, and the Court was directed to try the accused on that charge. A similar allegation was recorded as the fourth charge: on the same date, time and place, the accused is said to have fired the same revolver at Mst. Kamla, again with the intention or knowledge that death could result, and to have caused a wound to the right side of her chest. This act was likewise charged under Section 307 of the Penal Code, and the Court was directed to try the accused on that charge. The fifth charge stated that on the same occasion the accused was found in possession of the revolver Exhibit P-1 together with five empty cartridges, without any licence, which constituted an offence punishable under Section 19(f) of the Arms Act, 1878, and the Court was directed to try the accused on that charge. The assessors’ opinions were recorded as follows: the assessor identified as Pt. Amar Nath stated that the accused was guilty of murder but lacked the intention to kill; the assessor Shri Raghbir Singh held that the accused was guilty of murder; the assessor Shri Lakhmi Chand observed that the accused had no intention to cause murder though the murders were committed by him; and the assessor Shri Kishan Chand concluded that the accused was guilty of murder. Section 268 of the Criminal Procedure Code provides that all trials before a Court of Session shall be conducted either by jury or with the aid of assessors, with subsequent provisions governing each mode. Section 309 of the Criminal Procedure Code sets out the procedure to be followed at the conclusion of a trial conducted with assessors. Sub-section (1) provides that when the defence case and the prosecutor’s reply are completed, the Court may sum up the evidence and then require each assessor to state his opinion orally on all the charges, to be recorded, and the Court may ask any necessary questions to clarify those opinions. All questions and answers are to be recorded. Sub-section (2) states that the Judge shall then give judgment and is not bound to conform to the assessors’ opinions. Sub-section (3) provides that if the accused is convicted, the Judge shall, unless he proceeds in accordance with Section 562, pass sentence according to law.

Section 309 of the Criminal Procedure Code governs trials before a Court of Session that are conducted with the aid of assessors. After the defence case and any prosecutor’s reply, the court must summon each assessor to state his opinion orally on every charge against the accused. The judge may ask any questions he considers necessary to clarify the assessors’ opinions, and all questions and answers must be entered in the record. After hearing the assessors, the judge delivers his judgment, but he is not obligated to follow the assessors’ opinions. If the accused is found guilty, the judge, unless he follows the specific provisions of Section 562, must impose a sentence in accordance with the law. The code therefore creates two fundamental distinctions between a trial with assessors and a trial by jury. Assessors express only their individual opinions, which are not binding on the judge, whereas a jury reaches a collective verdict, either unanimously or by majority through its foreman. The judge ordinarily must accept that verdict, subject only to the limited exceptions provided in Sections 305(3), 305(4) and 307(1) of the Criminal Procedure Code. In substance, the jury forms part of the court that tries the accused, while assessors merely assist the court.

Despite this essential difference, the participation of assessors, as mandated by law, remains an indispensable feature of sessions trials for certain offences, and any trial that disregards the substantive procedural requirements is deemed illegal. Such a failure is, as a matter of procedural fairness, considered unacceptable under the law. The Supreme Court examined such an irregularity in the case of Magga v. State of Rajasthan, a decision that has been widely cited in subsequent jurisprudence. In that matter, the trial began with three assessors, but one assessor was absent during later stages, and a substitute was subsequently allowed to join the remaining two assessors. When the original absent assessor later returned, he was also permitted to sit, resulting in a total of four assessors at the final stage. The trial then continued in the courtroom, although only two had been present throughout the trial. The Court held that this method of conducting the trial was completely outside the contemplation of the Code and could not be considered a trial conducted in accordance with law as required by statutory provisions. The judgment further observed that the Code states the assessors’ opinion is not binding on the Sessions Judge, but this limitation is not intended to render the assessors irrelevant. However, this provision does not allow the judge to ignore the very existence of the assessors or to discount their procedural contribution.

In the judgment, the Court observed that a Sessions Judge could not simply disregard the existence of the assessors. Although the Judge was not bound to accept the assessors’ opinions, the Court held that the Judge was unquestionably required to give those opinions due consideration. Counsel for the appellant placed great reliance on that decision and argued that a Sessions trial in which the assessors’ opinions on every charge were not recorded could not be described as a trial that was duly and validly conducted, and that any judgment issued after such a trial should be treated as a nullity. The appellant’s counsel further cited a number of decisions of various High Courts that held a conviction on a charge for which the assessors’ opinion had not been taken was illegal, and asserted that those decisions were sound. Nevertheless, the question that the Court was asked to resolve was whether a conviction on a particular charge could still be illegal even though the assessors’ opinion on that charge had been taken, if the opinions on the other charges that were jointly tried in the same proceeding had not been taken. The Court needed to determine whether the failure to obtain assessors’ opinions on the remaining charges could vitiate the conviction on the charge for which the opinion had been recorded.

The Court noted that the requirement that the assessors’ opinion be taken on all charges for which the accused is tried was expressly introduced by the amendment of Section 309 of the Criminal Procedure Code in 1923. Before that amendment, the law merely required that, at the conclusion of the trial, each assessor state his opinion orally and that the opinion be entered in the record. Even that earlier rule, when interpreted sensibly, indicated that the assessors’ opinion had to be ascertained on every charge, because that was the only logical way of learning the assessors’ view of the entire case. The 1923 amendment removed any lingering doubt and made the requirement mandatory. However, the Court clarified that a breach of that requirement does not automatically nullify the whole proceeding when several charges are tried together. In the present case, the trial had proceeded regularly up to the final stage, and the only irregularity was a partial failure to follow the procedural rule at the concluding step. The effect of such a partial violation must be assessed in the light of the facts of each individual case. The legislative purpose of ascertaining the assessors’ opinion is to make it available for the Judge’s consideration when forming his own final judgment. When multiple charges are tried together, the assessors’ opinion on one charge and the Judge’s conclusion on that charge may have no reasonable connection with the assessors’ opinion on, and the Judge’s conclusion regarding, another charge. For instance, under Section 234 of the Criminal Procedure Code, a person may be tried at

The Court explained that the Code of Criminal Procedure permits a single trial for three completely unrelated offences provided that the offences are of the same type and are committed by the same person within a twelve-month period. In such a circumstance, there is no justification for setting aside a conviction on one charge merely because the assessors’ opinion was taken for that charge while it was not taken for the other charges. However, the Court observed that a different result could arise when a joint trial involves several offences that fall under Sections 235 or 239 of the Code, that is, where the acts constituting the offences form a single transaction or occur in the course of the same transaction. In those cases, the truth or falsity of one part of the prosecution case may reasonably affect the other parts. The Court warned that failing to obtain the assessors’ opinion on all charges that are integrally connected to the same transaction could prejudice the accused. It noted that consistent opinions from an individual assessor on all such interconnected charges would likely carry greater weight with the trial judge. Conversely, if the opinions expressed by an assessor appear contradictory, the judge has a duty to employ his power of questioning under Section 309 of the Code to discover the true opinions. The Court further cautioned that if a judge relied only on the assessor’s view concerning a single charge while ignoring the opinions on other charges that are part of the same transaction, the judge might not have obtained the genuine opinion concerning the material charge on which the conviction was based. Taking these considerations together, the Court outlined the applicable legal position. It held that the failure to obtain assessors’ opinions on every charge for which the accused was tried constituted a serious breach of an essential provision of the Code. A conviction on a charge for which no assessor’s opinion was taken was therefore illegal. By contrast, the legality of a conviction on a charge for which an assessor’s opinion was obtained depended on the facts of each case. The Court stated that the inquiry in each case must focus on whether the omission of the assessors’ opinion on the other charges was likely to have prejudiced the consideration of the charge for which the opinion was taken. Where the charges are so closely linked that the truth or falsity of one charge would reasonably influence the truth or falsity of another, such prejudice is presumed, and any conviction arising under those circumstances must be treated as illegal.

The acts that gave rise to the several charges involved the appellant’s possession of an unlicensed firearm, the commission of two murders, and two attempts to murder with the same weapon. All of these acts were found by the Court to form a single continuous transaction that took place in rapid succession. Because the acts were so tightly interlinked, the truth or falsity of one act inevitably affected the truth or falsity of the others. The Court therefore held that the failure to record the assessors’ opinion on the charges of attempt to murder and of possessing the unlicensed firearm could not be considered harmless. Such an omission was likely to have prejudiced the appellant’s defence with respect to the remaining charges, and thus the High Court’s view that the conviction under Section 302 could stand was rejected. Consequently, the Court set aside both the conviction and the sentence and ordered a retrial of the appellant on all of the charges that had previously been tried before the Sessions Judge. The Court emphasized that when the different offences are so closely connected, any disregard of the assessors’ views on some of them creates a reasonable presumption of prejudice. Accordingly, the appellate authorities were directed to conduct a fresh trial covering the entire set of accusations, ensuring that the assessors’ opinions were duly considered for each charge.