K.C. Mathew and Others v. State of Travancore-Cochin

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

Court: supreme-court

Case Number: Criminal Appeal No. 97 of 1953

Decision Date: 15 December 1955

Coram: Bose J.

In the matter titled K.C. Mathew and Others versus the State of Travancore-Cochin, the Supreme Court delivered its judgment on 15 December 1955. The judgment was authored by Justice Vivian Bose, who sat on a bench consisting of Justice Vivian Bose, Justice Aiyyar, Justice T. L. Venkatārama Aiyyar, and Justice N. Chandrasekhara. The case is reported in 1956 AIR 241 and 1955 SCR (2) 1057. The appellants, identified as K.C. Mathew and several others, were charged in a Sessions Trial for having participated in a rioting incident that resulted in the death of two police constables. The charge alleged that they formed an unlawful assembly, specified a common object, detailed the role played by each accused, and then listed ten provisions of the Travancore Penal Code, including sections corresponding to Section 302 of the Indian Penal Code read with Section 149. The Sessions Judge acquitted the appellants of the offence under Section 302 read with Section 149 but convicted them on lesser offences. The appellants appealed to the High Court against their convictions, while the State appealed against the acquittals under Section 302 read with Section 149. The High Court dismissed the appellants’ appeals, allowed the State’s appeals, and sentenced each appellant to transportation for life.

The appellants contended that the charge was not framed in accordance with law and that their examinations under Section 342 of the Code of Criminal Procedure were defective and prejudicial. The Supreme Court held that the charge was legally valid and fell squarely within the ambit of Section 225 of the Code of Criminal Procedure. Each accused was informed of the facts alleged against him and could readily identify the statutory provisions under which he was charged, indicating that no prejudice arose from the charge itself. The Court further observed that no objection was raised at any earlier stage to the alleged defect in the examination under Section 342, despite the accused being represented by counsel. Moreover, the appeal did not specify the questions that should have been posed to the accused nor the answers they would have given, thereby concealing from the Court facts that were within the accused’s special knowledge. Consequently, the Court was entitled to draw an adverse inference and conclude that no prejudice had been caused. The Court indicated that when an accused is not properly questioned under Section 342, he may ask the appellate court, as the ultimate fact-finder, to place him in the position he would have occupied had he been properly questioned, and to consider the explanation he would have given. However, the accused cannot claim a more favorable position than that which would have existed if the trial court had performed its duty properly from the outset.

In this matter, the Court observed that when an accused person has not been examined in accordance with section 342 of the Code of Criminal Procedure, he is entitled to request that the appellate Court consider the explanation that he would have provided if the proper questioning had taken place. The Court emphasized that such an explanation must be taken into account in the same manner as the trial Court would have treated it had it been presented at the time of the original hearing. However, the Court also made clear that the accused cannot seek a more advantageous position than the one he would have occupied had the trial Court performed its duty correctly from the outset. Consequently, when a party alleges prejudice arising from a defective examination, the party is required to specify each question that should have been asked and to set out the answer that he would have given in response to those questions.

The judgment concerned Criminal Appeal No. 97 of 1953, filed under Article 134(1)(c) of the Constitution against the order dated 15 June 1953 passed by the Travancore-Cochin High Court in Criminal Appeals Nos. 54, 55, 56, 58 and 79 of 1952. Counsel for the appellants and counsel for the respondent were instructed, and the judgment was delivered on 15 December 1955 by Justice Bose. The case involved a rioting incident in which two police constables, Mathew and Velayudhan, were killed. A total of thirty-one individuals were charged and tried. The learned Sessions Judge acquitted twenty-one of the accused of all charges and also acquitted the remaining ten of the most serious charge, namely the offence corresponding to section 302 of the Indian Penal Code read with section 149 of the Travancore Penal Code. The Judge convicted those ten on several lesser offences, imposing sentences of two to five years for each count and directing that the sentences run consecutively, except for accused numbered 5 to 8 and 18, where each received a single sentence. The convicts appealed to the High Court, and the State of Travancore-Cochin also appealed against the acquittals on the murder-cum-rioting charge. The High Court dismissed the appeals of the ten accused, upheld the State’s appeals against the acquittals, and substituted the death sentences with a lesser penalty of transportation in each case. The ten accused now sought review before this Court. The prosecution alleged that the accused were communists; two of them, identified as numbers 30 and 31, had been arrested on 27 February 1950 at about one o’clock in the afternoon and were detained in the Edappilly police lock-up. The prosecution’s case was that the remaining twenty-nine accused conspired to free their comrades and, acting on that conspiracy, attacked the police station at approximately two a.m. on 28 February, armed with weapons such as swords, knives, bamboo sticks and a dagger. During the assault, the two constables were killed. The appellants contended that the charges were not framed in accordance with law and that this defect prejudiced their defence, arguing that each accused had not been individually informed of the specific offences he faced, but rather all were grouped together under a collective description followed by a list of ten sections of the Travancore Penal Code.

The Court observed that the wording of the charge, which read that the evidence produced by the prosecution proved that accused numbers one through twenty-nine had committed offences punishable under a series of ten sections of the Travancore Penal Code, was not, in its view, a source of prejudice. The charge expressly stated that the accused had formed an unlawful assembly, identified the common object of that assembly, and then detailed the specific part played by each individual. Consequently, each accused could ascertain the precise nature of the allegations against him because the facts were enumerated and the applicable law could be readily identified by selecting the relevant sections from the list provided. The Court further noted that there was no substance to the objection that the charge was insufficiently specific, citing section 225 of the Criminal Procedure Code, which expressly permits such a formulation in cases of this kind.

Turning to the second contention, the accused argued that the examination required under section 342 of the Criminal Procedure Code had been defective and that this defect resulted in prejudice. While the Court agreed that the examination had not been conducted as fully or as clearly as it ought to have been, it was not satisfied that any prejudice had actually arisen. The matter of prejudice had not been raised before either of the lower Courts, nor had it been included among the grounds of appeal presented to this Court. The allegation of possible prejudice was therefore introduced for the first time in these arguments, and counsel could not point to any concrete instance where the accused had been disadvantaged. The Court noted that although a failure to raise an objection at an earlier stage is not automatically fatal, the fact that it could and should have been raised earlier is a material circumstance that weighs against the accused, especially when counsel has been present throughout. The Explanation to section 537 of the Criminal Procedure Code directs the Court to consider whether the objection could and should have been raised earlier. Moreover, the appeal petition did not specify the questions the appellants believed should have been asked, nor did it indicate the answers they might have given. While such an omission is not necessarily fatal, it makes it difficult to sustain a claim of prejudice without a clear indication of where the alleged injury occurred. The Court affirmed that only the accused can truly attest to any prejudice suffered, and that a vague assertion of potential prejudice, without factual detail, generally fails to establish a viable claim.

The Court explained that it was the accused who was in the best position to inform the Court whether any actual prejudice had occurred; if genuine prejudice existed, the accused could immediately set out the relevant facts and allow the Court to assess their significance. However, when the accused, either personally or through counsel, adopted an attitude of uncertainty—expressed as an inability to recall what might have been said and a speculation that various statements could have been made—the Court would ordinarily find little difficulty in concluding that neither actual prejudice nor the possibility of prejudice existed. In such circumstances, the Court was entitled to determine that a party who intentionally withheld facts within his exclusive knowledge and refused to assist the Court, which was entitled to that assistance, possessed no valuable information to disclose. Moreover, any disclosure that might be offered would likely reveal the weakness of his case.

The Court noted that the purpose of section 342, as stated in its introductory words, was “for the purpose of enabling the accused to explain any circumstances appearing in the evidence against him.” Accordingly, if the accused was denied that opportunity, he could request the appellate Court, which functioned as the ultimate fact-finding body, to place him in the position he would have occupied had he been asked to explain those circumstances. In other words, the accused could ask the appellate Court to consider the explanation he would have given at the trial stage as part of its weighing of the evidence, just as if it had been presented at the time. Nevertheless, if the accused failed to make such a request at the appellate level, his position before the higher Court would be no better than if he had, for example, omitted to call a witness who claimed could have testified in his favour. Only in exceptional cases might the Court permit a witness to be called at that late stage, but without a request for such relief during the appeal, the chances of success were minimal. While the accused held a relatively stronger position when section 342 was at issue—owing to the solemn duty imposed on the trial Court and the accused’s right to complain if that duty was neglected—the ultimate conclusion was that the accused could not claim a more favourable position than he would have enjoyed had the trial Court fulfilled its duty from the outset. Consequently, the proper content of an appeal was limited to a statement that the accused had not been asked to explain a particular matter, an explanation of what he would have said, and a request that the appellate Court consider that explanation. If the accused failed to adopt this approach at the appellate stage and raised a claim of prejudice only now, the inference was that the allegation was an afterthought and that genuine prejudice was unlikely.

In this appeal the Court observed that the claim of prejudice could not be substantiated. Nevertheless, the precise meaning of “prejudice” in section 537 and related provisions of the Code has not yet been clearly defined, perhaps because this Court has not issued an authoritative decision. Consequently, the Court invited the counsel representing the appellants to explain which questions should have been put to his clients and, in any event, to describe what the appellants might reasonably have answered. The counsel’s principal objection was that none of the appellants had been questioned about the “common object” of the assembly. He asserted that it was evident that most of the appellants could have truthfully stated that they had no knowledge that the assembly intended murder and that they were unaware that any members of the assembly were carrying lethal weapons. The Court found it necessary to recount the factual findings of the lower courts. Both the Sessions Court and the High Court concluded that an unlawful assembly had taken place, that the Edappilly police station had been raided, and that the raiders had removed arms, ammunition, and certain station records. In addition, two police constables on sentry duty were killed. The sole point of disagreement between the courts concerned the nature of the common object. The charge alleged that the common object was to forcibly rescue the thirtieth and thirty-first accused, to murder the policemen on duty, and to loot the police-station records, arms and ammunition. The learned Sessions Judge, relying mainly on a concession made by the public prosecutor, held that the common object could not be characterized as more than a rescue operation, even though some members were armed with deadly weapons. Accordingly, the Sessions Judge, who was a lady, acquitted all the accused of the offense punishable under section 302 of the Indian Penal Code in conjunction with section 149, or the equivalent provisions of the Travancore Penal Code. The State appealed this acquittal, and the High Court subsequently convicted the appellants of the murder-cum-rioting charge, imposing a reduced sentence. The appellants appealed this conviction, but their appeals were dismissed. In view of the public prosecutor’s admission, the Court held that the High Court was not justified in finding that the assembly had the common object of murder; however, the Court noted that this conclusion did not affect the ultimate result. Even assuming that the common object was limited to rescuing the two incarcerated accused, the Court reasoned that the use of violence was implicit in such an object. It is unreasonable to imagine that individuals would assemble at night, armed with fire-crackers, choppers and sticks, to rescue persons guarded by armed police without intending to employ violence to overcome the guards’ resistance. A person would have to be extremely naïve not to understand that night-time sentries guarding prisoners are fully armed and are expected to employ their weapons if necessary.

In the Court’s view, any person who joins a night-time assembly armed with fire-crackers, choppers and sticks cannot be presumed to be unaware that armed guards might need to be confronted. The Court explained that the guards posted to watch prisoners were fully armed and, if required, would use their weapons. Consequently, any reasonable person would recognise that the killing of such armed guards was a probable result of a raid of this kind, and the same principle applied to looting generally. The Court noted that Section 149 of the Penal Code applied not only to offences actually carried out in pursuance of the common object but also to offences that members of the assembly knew were likely to occur. Given the size of the assembly and the nature of its purpose, the Court held it impossible to say that the participants were unaware that murder might be committed. Even if the common object were not described as murder, the conviction under the charge of murder-cum-rioting was fully justified. This reasoning answered the principal ground of appeal raised by the petitioners.

The Court then turned to the argument concerning Section 342 of the Criminal Procedure Code. Counsel had suggested that each appellant could have plausibly answered, at trial, that he did not know any member of the assembly possessed lethal weapons and that murder was unlikely. The Court rejected this suggestion, stating that there was no evidence the appellants lacked ordinary intelligence or understanding. Applying the standard of a person of reasonable intelligence, the Court found such an explanation implausible. Men who gather to free prisoners guarded by armed police do not attend with “bare hands and doves of peace”; they inevitably bring implements capable of breaking locks, doors and iron bars, which can also be used as deadly weapons if the situation demands. The Court observed that it was unnecessary for each member to know the exact nature of every implement—some being choppers, others sticks—so long as they were aware that the tools could serve as lethal weapons if required to achieve their common objective. Accordingly, even if the trial court had heard the proposed explanation, it would not have altered the outcome. Regarding the first accused, counsel claimed that he had not been asked about identification under Section 342. The Court found this claim inaccurate because the question posed—“PW 1 and PW 4 say that they saw you beating constables Mathew and Velayudhan …”—implicitly required identification. The Court was satisfied that the appellant understood the implication, as reflected in the subsequent cross-examination of the witnesses.

The cross-examination record showed that the issue of identity was present in the mind of the cross-examiner, who explicitly questioned each witness about it. It was subsequently contended that no question concerning any robbery had been put to the first accused; however, that point was deemed unnecessary to pursue because it became academic once the murder-cum-riot conviction was upheld and the Court intended to make the sentences run concurrently rather than consecutively. The arguments raised on this point with respect to the remaining appellants, except for the seventh accused, followed the same pattern and therefore were not examined separately. Regarding the seventh accused, the only substantive matter raised was that he had not been asked to explain his presence at Kadiparambu, the place where the agreement to rescue and the planning were alleged to have been formulated. Counsel argued that the accused resided in that locality, and that merely seeing him among a crowd that had gathered there during daylight could not, by itself, be considered a circumstance of suspicion. That argument would have retained its force but for the additional fact that the accused was again sighted at the police station at two o’clock in the morning and was identified as one of the rioters who actively participated in the raid. The Court examined the question of possible prejudice under section 342 because, as previously noted, the appellants appeared not to understand the requirements when such a plea is raised. The Court did not intend to lay down a rigid rule, but emphasized that the approach taken in this case should not be treated as precedent. Moreover, the Court warned that in future it would become increasingly difficult to persuade the Court to entertain questions of prejudice where the necessary material is not placed before it and where appellants deliberately withhold assistance that they could provide; an adverse inference would be expected in such circumstances.

Counsel then attempted to challenge the credibility of the witnesses and the overall correctness of the findings, but, consistent with the Court’s usual practice, the Court declined to interfere with concurrent findings of fact where ample evidence existed that, if believed, could support those findings. That is the position in the present case. The only ground warranting interference arose where the sentences had been ordered to run consecutively. The High Court had affirmed the convictions and sentences imposed by the learned Sessions Judge, but when it allowed the State’s appeal and imposed a reduced sentence it stated that “the sentences passed on each accused will run concurrently”. The Court was not certain whether the learned judges meant that the sentences imposed by them should run concurrently with those imposed on the other accused, or whether they intended to permit the appeal to that extent. To eliminate any doubt, the Court allowed the appeal to the extent of directing that the sentences imposed on each accused shall run concurrently and not consecutively. The remainder of the appeal was dismissed.

The Court directed that, with respect to each accused person, the punishments that had been imposed must be served at the same time rather than one after the other; in other words, the sentences shall run concurrently and shall not run consecutively. This instruction was given to eliminate any uncertainty concerning the manner in which the sentences were to operate. Apart from this specific direction concerning the mode of execution of the sentences, the Court gave no further relief to the appellant. Consequently, the remainder of the appeal was rejected and the appeal was dismissed in its entirety, with the sole exception of the clarification that the sentences are to run concurrently.