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Esakki Madan Nadar and Nesamony Nadar Vs. the State - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKerala High Court
Decided On
Judge
Reported in1956CriLJ419
AppellantEsakki Madan Nadar and Nesamony Nadar
RespondentThe State
Cases ReferredNarayanan v. The State
Excerpt:
- - the appeal filed by him in the sessions court of nagercoil met with no success. but failure to comply with the provisions of section 342 is only an irregularity which will not vitiate the trial unless there is reason to believe that the accused has been prejudiced by the irregularity. it is well settled that every error or omission not in compliance with the provisions of section 342 does not necessarily vitiate a trial. i am clearly of opinion that in this case the accused has not been prejudiced by reason of the omission on the part of the learned magistrate to question him in accordance with the provisions of section 342, criminal p......out of the house through the back door while he entered the house through the front door.the learned magistrate believed p. ws. 4 and 5 convicted the accused in the manner stated above. the learned sessions judge also accepted the evidence of p. ws. 4 and 5 and confirmed the conviction and sentence.4. the main ground urged in the revision petition is that the trial was defective in so far as the learned magistrate did not comply with the provision of section 342, criminal p. c which requires the magistrate to question the accused generally on the case after the witnesses for the prosecution have been examined for the purpose of enabling the accused to explain any circumstance appearing in the evidence against him.the only question the magistrate put to the accused after the.....
Judgment:
ORDER

Vithayathil, J.

1. The accused in C. C. No. 300 of 1953 of the Sub-Divisional Magistrate's Court, Padmanabhapuram is the Revision Petitioner. He was convicted by that court of offences under Sections 448 and 354, I. P. C and sentenced to undergo rigorous imprisonment for six months. The appeal filed by him in the Sessions Court of Nagercoil met with no success. Hence this Revision Petition.

2. P. W. 5 who is a mid-wife working in the Public Health Department was at the time of the alleged occurrence living with her husband and child in a rented building belonging to the accused. The building was also used as her office. P. W. 4 is her husband.

The prosecution case is thus: On 28-7-1953 at about 8 A. M. when P. W. 4 had gone out with the child and P. W. 5 was cleaning vessels at the back-side of the house, the accused opened the front door and entered the house. When P. W. 5 came to the front room the accused asked her whether her husband was there and on being told that he was not there, the accused said that he had come to demand the rent of the building.

P. W. 5 replied that he should get the rent from the Government. The accused then left the place and P. W. 5 resumed the work of cleaning the vessels. After a while the accused came from behind, put his hands around her and held both her hands with the intention of outraging her modesty. She cried out and hit the accused with the carbon-coated jug she had in her hands.

The contents of the jug were spilt on the shirt of the accused. By this time P. W. 4 came in through the front door of the house and the accused then went away through the back door. P. W. 5 told her husband what happened. They prepared a petition Ex. B and presented it to the Sub-Inspector of Police at 12-15 P.M. The Sub-Inspector recorded the statement of P. W. 5 and after making the necessary investigation charge-sheeted the case.

3. The accused pleaded not guilty. Six witnesses were examined for the prosecution including the Sub-Inspector of Police. P. Ws. 1, 2 and 3 did not support the prosecution. P. W. 5 swore to the prosecution case in full and P. W. 4 deposed that he saw the accused stepping out of the house through the back door while he entered the house through the front door.

The learned Magistrate believed P. Ws. 4 and 5 convicted the accused in the manner stated above. The learned Sessions Judge also accepted the evidence of P. Ws. 4 and 5 and confirmed the conviction and sentence.

4. The main ground urged in the Revision Petition is that the trial was defective in so far as the learned Magistrate did not comply with the provision of Section 342, Criminal P. C which requires the Magistrate to question the accused generally on the case after the witnesses for the prosecution have been examined for the purpose of enabling the accused to explain any circumstance appearing in the evidence against him.

The only question the Magistrate put to the accused after the prosecution evidence was over was whether he had anything to say about the portion of the prosecution evidence which was against him. (Malayalam omitted) The accused only answered that he had not committed any offence. This certainly was not the proper way of questioning the accused under Section 342 as laid down by the Supreme Court in - 'Tara Singh v. The State' : [1951]2SCR729 .

The object of the section is to afford the accused a fair and proper opportunity of explaining the circumstances which appear against him in the prosecution evidence. It is therefore necessary that the accused is questioned about every material circumstance which is brought out in evidence against him. But failure to comply with the provisions of Section 342 is only an irregularity which will not vitiate the trial unless there is reason to believe that the accused has been prejudiced by the irregularity. In ' : [1951]2SCR729 ', Bose J., observed:

I do not suggest that every error or omission on this behalf would necessarily vitiate a trial, because I am of opinion that errors of this type fall within the category of curable irregularities. Therefore, the question in each case depends upon the degree of the error and upon whether prejudice has been occasioned or is likely to have been occasioned.

The same view was expressed by Fazl All J., in - 'Bejoy Chand v. State of West Bengal' : 1952CriLJ644 . The learned Judge said: 'The facts of the case being free from any complications and the points in issue being simple, we find it difficult to hold that the examination of the appellant in this particular case was not adequate. To sustain such an argument as has been put forward, it is not sufficient for the accused merely to show that he has not been fully examined as required by Section 342, Criminal P.C. but he must also show that such examination has materially prejudiced him.

To the same effect is the observation of Mahajan J.: (as he then was) in - 'Ajmer Singh v. State of Punjab' : 1953CriLJ521 . The learned Judge observed:

The facts of the case are free from any complication and the point in issue was a simple one and it cannot be said that the perfunctory examination of the appellant did any damage. The only point appearing in the evidence against the accused was that he gave a barchha blow to Bagher Singh. The witnesses had stated that fact in his face and had been cross-examined on the point by his counsel.

He was fully apprised of the part ascribed to him in the quarrel. His answer to this specific question in the Committal Court was that he was innocent and that he was being implicated owing to enmity. He stuck to that reply in the Court of Session after fully understanding what he was asked. It is well settled that every error or omission not in compliance with the provisions of Section 342 does not necessarily vitiate a trial.

Errors of this type fall within the category of curable irregularities and as held in ' : [1951]2SCR729 ', the question whether the trial is vitiated, in each case depends upon the degree of the error and upon whether prejudice has been or is likely to have been caused to the accused We are of the opinion that the disregard of the provisions of Section 342 in this case is not so gross as would justify our quashing the conviction and ordering a re-trial.

5. The facts of this case are also quite simple and the evidence against the accused is only that of P. Ws. 4 and 5 of whom P. W. 4 only swears to the fact that he saw the accused going out of the house by the back door. It would also appear from the evidence of D. W. 1 the only witness examined by the accused, that his defence is that he did not go to the residence of P. Ws. 4 and 5 on the morning of 28-7-1953.

In 'Narayanan v. The State' AIR 1952 Trav-C 459 (D), this court held that when the defence of the accused persons was a total denial of their presence at the place of the occurrence it could not be said that non-compliance with the provisions of Section 342, Criminal P. C was a sufficient ground for quashing the conviction.

I am clearly of opinion that in this case the accused has not been prejudiced by reason of the omission on the part of the learned Magistrate to question him in accordance with the provisions of Section 342, Criminal P.C.

6. As for the merits of the case both the courts below believed P. Ws. 4 and 5 and I do not think that there is sufficient ground for this court to interfere in revision with the finding of fact arrived at by the courts below upon an appreciation of the evidence in the case. The Revision Petition is therefore dismissed.


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