STATE Vs. SUCHA SINGH AND ANR.

JUDGEMENT

(1.) THIS is an appeal under Section 417 Criminal P.C. by the State against an order of the Sessions Judge, Bhatinda at Faridkot acquitting Sucha Singh and Jogindar Singh respondents of the charge under Section 302, Penal. Code for the murder of Budh Singh and of another charge under Section 326 for injuries' to Kalu, a prosecution witness. Budh Singh' deceased was the father of Sucha Singh respondent and Kalu P.W. 2 is the latter's brother. Sucha Singh was given some land to cultivate separately by his father and he was residing in a separate house since long, but Kalu used to live jointly with his father. Sucha Singh did not feel content with the 8 Ghamons of land given to him, particularly because he had been sending money during his service in Burma, which his father had utilised to purchase and take in mortgage a good deal of land in his own name. Sucha Singh, therefore, was persistent in his demands for more land for separate cultivation. This gave rise to bad blood between him on; the one hand and Budh Singh and Kalu on the other. Trespass committed by Sucha Singh on a piece of land in possession of Budh Singh, gave rise to a criminal case under Section 447, Penal. Code which was however, compromised. Nand Singh father of the other respondent Jogindar' Singh, who also belongs to this very family,'I was once given a thrashing by Budh Singh for which he was convicted and sentenced to three months' rigorous imprisonment. Security proceedings under Section 107, Criminal P.C. were also; started by Budh Singh against the two respondents, but we do not know with what result.

(2.) THE learned Sessions Judge after a complete trial and a careful consideration of all the facts of the case acquitted the accused of both the charges. The learned State counsel has criticised at great length the various grounds given by the trial Judge for discarding the prosecution evidence and we have also been taken through the entire record (After reviewing the evidence, his Lordship proceeded:) The fact that the evidence has been properly appreciated and scrutinised by the trial Judge also cannot be lost sight of. The prosecution has not been able to make out a case for interference in the order of acquittal.

(3.) LASTLY it is urged by the learned State Counsel that the trial was vitiated because of the non -compliance with the mandatory provisions of Section 342, Criminal P.C. The facts are that the accused were examined in detail and all the necessary questions were put to them by the Committing Magistrate. The learned Sessions Judge put only two stereotyped questions to the accused. The first one of them was whether the statement made by the accused before the Committing Magistrate, which was read out to him, was correct. By the second question the accused was asked if he wanted to add anything' to what he had already stated before the Committing Magistrate. A supplementary statement of each of the accused was thereafter recorded enquiring as to whether they wanted to examine any evidence in defence. The contention is that since the Sessions Judge had not asked the accused to explain the circumstances appearing against them their statements at the trial were defective.; It is no doubt correct that the statements were not strictly in accord with the provisions of Section 342, Criminal P.C. and that they were thus defective, but the question is whether the defect vitiated the trial and can be a ground to set aside the acquittal of the respondents. It is an admitted principle of Criminal law that the proof of a case against an accused person must depend, not on the absence of an explanation on his part, but upon the positive and affirmative evidence of his guilt given by the prosecution. When the prosecution evidence itself is untrustworthy no question of explanation by the accused of the circumstances appearing in evidence against him arises, and the finding as regards the untrustworthy character of the evidence cannot be set aside, merely because the accused was not called upon to explain that type of evidence. The conflict of opinion as to the effect of a non -compliance with the provisions of Section 342, Criminal P.C. that once existed has now been set at rest by the Supreme Court by holding that every error or omission in this behalf does not necessarily vitiate the trial because the errors of this type fall within the category of curable irregularities. The question, therefore, in each case depends upon the degree of the error and upon whether prejudice has been occasioned or is likely to have occasioned. If the accused in a particular case can show that he has been prejudiced by the procedure adopted he can demand a retrial, but I do not think the same rule would apply to the prosecution as well. In a case where the prosecution has failed to produce convincing evidence to establish the charge against the accused, it cannot be heard to say that the acquittal resulting from the trial should be set aside only on account of an incomplete or defective statement of the accused. The authorities cited by the learned Counsel for the Appellant, in which it was held that a noncompliance with the provisions of Section 342 must necessarily vitiate the trial should not be referred to because of the recent pronouncements of the Supreme Court expressing a contrary, and decisive view. Moreover, this was not a ground taken by the Appellant in the memorandum of appeal, and there is not the slightest suggestion that the defect had occasioned any prejudice to the prosecution.