1. This is an appeal by two accused who were convicted by the learned Sessions Judge of Ramnad Division at Madura on 19th February, 1936 under Sections 364 and 302, Indian Penal Code, or Sections 302 and 109, Indian Penal Code.
2. The offences are alleged to have been committed on or about 18th January, 1935. Since we are setting aside the conviction and ordering a retrial of these two accused, we are not dealing with any facts save those which are necessary for the purposes of our judgment. It is alleged by the prosecution that the two accused, together with the deceased, left the village of Nachiarpatti on the morning of 18th January, 1935, the deceased driving a bullock cart and the two accused riding as passengers. It was their intention to go to a village six miles away named Rajapalaiyam there to buy some plough shares - stopping on the way to Rajapalaiyam at the Sanjivi hills to cut some pegs for the bullock cart - and to return to Nachiarpatti. The father of the deceased (P.W. 1) saw them leave and as they had not returned by sunset he went to the first accused at his house in that village and according to the evidence of P.W. 1 the first accused told him that they had made their purchases in Rajapalaiyam and the deceased and bullock cart would be returning to Nachiarpatti the next morning. They never returned. The bullock cart and the bullocks were found outside the police station by a police constable at Srivilliputtur at about 1 a.m. on 19th January. On Sunday the 20th, the dead body of the deceased was found in the Sanjivi Hills badly mutilated; and on 21st January a number of witnesses who were called by the prosecution went to this spot. The first accused was never seen again after his interview with the P.W. 1 on the 'night of 18th January until he surrendered to the police some three months later. The second accused also disappeared and was not seen after P.W. 9 says he saw him driving in the bullock cart with the first accused and the deceased, until he was arrested on 5th February, 1935, some twenty-five miles away in the Madura District. There was no explanation given by either accused regarding (i) their departure in the bullock cart with the deceased on the morning of the 18th January or where and under what circumstances they parted from him and the finding of the empty cart by the police constable on the morning of 19th or (ii) why they absconded from their houses at the time when the deceased's body had not yet been discovered and it was then unknown that he was dead and, as admitted by the learned Counsel for the appellants, had been murdered. In the absence of any explanation by them, the strongest inferences can be drawn against them. Under Section 342(1) of the Code of Criminal Procedure it is provided that for the purpose of enabling the accused to explain any circumstances appearing in the evidence against them, the Court, may at any stage of any inquiry or trial, without previously warning the accused put such questions to them as the Court considers necessary, and shall, for the purpose aforesaid, question them generally on the case after the witnesses for the prosecution have been examined and before they are called on for their defence. The learned Sessions Judge at the close of the case by the prosecution at the trial put to each of the accused only formal questions to the effect that: - having read the statements made by them orally and given in writing in the Magistrate's Court, whether they were correct; and having heard the evidence given by the prosecution witnesses, whether they wished to say anything. He did not point out to them the two important matters which we have mentioned and which are referred to in the Judgment of the learned Sessions Judge and ask theni for any explanation of these circumstances. In Dwarkanath Varma v. The King-Emperor (1933) 64 M.L.J. 466 a case in the Privy Council, Lord Atkin at page 481 says that for the purpose of enabling the accused to explain any circumstances appearing in the evidence against him the Court shall question him generally on the case after the witnesses for the prosecution have been examined and adds:
In pursuance of this section one of the puisne Judges put questions to the doctor. The only questions put on the contents of the post-mortem report were as to the congestion of some of the organs,' the cause of anti-peristalsis, and the omission from the report of the condition of faecal matter, and clots of blood at the orifices of the ruptures deposed to at the Sessions. The other question is a general question whether there was anything else he desired to say about the charges or the evidence. The learned Chief Justice told the Jury that the absence of blood in the body cavity was a vital point. If so it is plain that under Section 342 of the Code it was the duty of the examining Judge to call the accused's attention to this point and ask for an explanation.... But it deprives of any force the suggestion that the doctor's emission to explain what he was never asked to explain supplies evidence of which the Jury should infer...
3. We are bound by this decision of the Privy Council from which it would appear that the matters which we have mentioned should have been pointed out to the two accused and explanations asked of each of them. In Panchu Choudhry v. Emperor (1921) 23 Cr.L.J. 233 a decision of the Patna High Court in 1921, Bucknill, J. dealing with this matter says that where an accused is undefended, the tribunal may point out to him the elements of the evidence adduced against him which seems in his own interest to demand an explanation but where an accused is defended by a legal practitioner, it would be altogether impossible to expect or desirable to contemplate a tribunal entering upon a lengthy examination of an accused person. This decision appeals to us as one of common sense and in the spirit of Section 342, Criminal Procedure Code, but since we are bound by the later decision of the Privy Council Dwarkanath Varma v. The King-Emperor (1933) 64 M.L.J. 466 , in our view, the two matters mentioned should have been put before the two accused and their explanations invited. It is not necessary or practicably possible for a trial Judge to put to an accused every piece of evidence or point which has been given or made against him but he should put matters from which, in the absence of an explanation by him, adverse inferences can be drawn against the accused. Since this was not done by the learned Sessions Judge, we have no other course but to set aside the conviction and to order a retrial.