Sharma, J. - (1.) ABDUL Kadir resident of Mohalla Pannigaran in the city of Jaipur (hereinafter to be referred to as the accused) has been convicted by the learned City Magistrate, Jaipur under sec. 326 of the Penal Code and sentenced to 3 years' rigorous imprisonment and a fine of Rs. 200/-, in default of payment of fine, he is to undergo six months* rigorous imprisonment more. The prosecution is as follows: -
(2.) ONE Abdul Waheed s/o Sikendra Khan (hereinafter to be referred to as the injured) was engaged to one Mst. Hamidan. The accused who is also called Fodi had a desire to marry the same girl. On the 12th October, 1949, at about 9 P. M. , when the injured was sleeping in the varandah of his house on a cot, someone threw strong sulphuric acid on his face with the result that he sustained very seviour acid burns on his face and other parts of his body. According to the prosecution it was the accused, who threw this acid on account of his grudge, resulting from the engagement of the injured with Mst. Hamidan. The injured was immediately removed to the Hospital by his father Sikendra Khan and some other relations. The compounder incharge, Nasir Ahmed Khan, phoned to the Police about the condition of the injured and requested them to have his statement recorded. The Police came to the Hospital and at about 1. 30 A. M. on the 13th October, I949 the statement of the injured was recorded before Shri Bhag Chand Soni, Magistrate, Jaipur. The injured was also medically examined at about 11 P. M. on the 12th October, 1949. The next day i. e. 13th October, 1949, the accused was arrested and was medically examined at about 5 P. M. because some burns were found on his fingers. The case was eventually challaned in the court of the City Magistrate, Jaipur. The accused denied any knowledge of the alleged engagement of the injured with Mst. Hamidan. He also denied that he had any desire to marry the girl. He further denied having caused acid burns to the injured. The learned City Magistrate held the accused guilty under sec. 326 of the Penal Code and sentenced him as noted above. The accused went in appeal to the Court of Sessions Judge, Jaipur City, but his appeal has been dismissed. He comes in revision to this court. The judgment of the lower courts was assailed by the learned counsel for the accused on various grounds. I need, however, discuss only one in view of the order, which I am proposing to make. It was very strenuously argued by the learned counsel for the accused that both the lower courts have been very strongly influenced by one circumstance and it is that according to the medical evidence some burns were found on some fingers of both the hands of the accused when he was medically examined in the evening of the 13th October, 1949. According to the Medical Examiner, the burns were caused by strong acid. The injured was also found to have burns from strong sulphuric acid. Both the lower courts, therefore, believe that the accused was the person who caused the burns to the injured. The lower courts, however, did not give due importance to the fact that no question was put to the accused in his examination under sec. 342 of the Code of Criminal Procedure, to explain these burns. The provisions of sec. 342 are mandatory and if they are not fully complied with, the trial is vitiated. The conviction, therefore, could not be maintained. Reliance was placed upon the rulings reported in Dwarka-nath Varma and another vs. Emperor (A. I. R. 1933 P. C, P. 124), Chinnu vs. Emperor (A. I. R. 1936 Madras P. 628), Sangama Naicker and another vs. Emperor (R. 629 in re Kimidi Nara-simham and P. 715), Emperor vs. Piniladhoshah Imrahimshah and another (A. I. R. 1942 Sind P. 33 ). In re Duraiswami Koundan (A. I. R. 1946 Madras P. 179), Indu Bhushan Ghosh and another vs. The State (A. I. R. 1950 Allahabad P. 639) and Fakirchand Nandram and another vs. The State (A. I. R. 1950 Madhya Bharat P. 76 ). On behalf of the prosecution it has been argued by the learned Government Advocate that examination of the accused, under sec. 342 of the Code of Criminal Procedure, is simply meant to enable the accused to explain any circumstances appearing in the evidence against him and in order to give such an opportunity, it is enough for the court to question the accused generally on the case. It is not obligatory upon the court to question the accused with regard to every circumstance coming up in the prosecution evidence. If this is done, the accused would be prejudiced as more or less such a procedure would amount to a sort! of cross-examination of the accused. I have considered the arguments of the learned counsel for both the sides. On a plain reading of sec. 342, I am of opinion that the court ought to put all such questions to the accused as may enable him to explain any circumstances appearing in the evidence against him. No doubt, it is not permissible to the court to place a precis of the entire prosecution evidence before the accused and ask him what he has to say about it. The question should be so framed that the accused might have a notice as to what are the circumstances which if unexplained, might lead to his conviction. It is, therefore, of utmost necessity that any circumstances which in the opinion of the court might go against the accused if unexplained, should be clearly placed before the accused in his examination under sec. 342. If the attention of the accused is not focused on such circumstance by way of a question under sec. 342, advantage can not be taken of it against the accused in recording his conviction. Whatever may be the view before the decision of the Privy Council in Dwarkanath Varma and another vs. Emperor (A. I. R. 1933 P. C, P. 124), it has become the settled law since that decision that it is the duty of the examining judge to draw the accused's attention under sec. 342, to any important point against him and ask for an explanation. In the case before their Lordships a Doctor was prosecuted for perjury and the charge against him was that at the time of his examination at the trial, he deposed that the injuries to which his post-mortem report related, were anti-mortem, while in fact he did not hold that opinion. The learned Chief Justice of Calcutta High Court, before whom the trial was held, acted upon the opinion of certain doctors, who deposed that they would have expected much more blood in the cavity if the injuries were anti-mortem. No question was, however, put to the doctor accused under sec. 342 on this point. In his judgment, the learned Chief Justice relied upon this circumstance and said that there was no explanation from the accused as to why there was absence of blood in the Peri-cardial cavity if the injuries were anti-mortem. Their Lordships observed as follows - "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 sec. 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. Probably the departure from the statutory rule was due to the fact that one judge examined the accused while another summed up, but it deprives of any force the suggestion that the Doctor's omission to explain what he was never asked to explain, supplies evidence of which the jury should infer that six months before he had consciously abandoned a theory which 4 months before that, he honestly held. " This ruling has been relied upon in many cases. In Chinnu vs. Emperor (A. I. R. 1936 Madras P. 628) it was observed that the real object of questioning accused under sec. 342 is that the important circumstances which if unexplained would lead to the conviction should be specifically pointed out to him to enable him to give an explanation, if any. Failure to comply with this, vitiates the trial. In that case the circumstances relied on for conviction of the accused were that a silver ornament was discovered on information given by the accused and his cloth had marks of blood on it. Neither the Committing Magistrate, nor the Ses-sionscourt,however, drew the attention of the accused to these circumstances, when he was examined under the provisions of sec. 342. The learned Judges quashed the conviction on the ground that the two important circumstances relied on for conviction were not placed before the accused in his examination under sec. 342 and sent the case for retrial. In re Kimidi Narasimham (1936 Madras P. 629), one of the circumstances relied on for conviction was that the accused had sold a pair of ear-rings belonging to the deceased, on the very day on which the deceased was last seen alive. This point was, however, not placed before him in his examination under sec. 342 so that he might have had an opportunity to give his explanation. It was held by the Division Bench that it is the duty of the Examining Judge under sec. 342 to call upon the accused's attention to any point which the jury considered to be vital, or in another words lead to the inference of guilt and to ask for an explanation. Consequently, where the judge has not elicited from the accused any explanation, he has to give in respect of the facts appearing in the evidence against him the Judge cannot find whether or not the evidence is sufficient to justify conviction and conviction based on such evidence cannot be sustained. The conviction, was, therefore, set aside and re-trial ordered. In Sangama Naickar and another vs. Emperor (A. I. R. 1936 Madras p. 715), the prosecution evidence showed that the accused departed in the bullock-cart with the deceased on the morning of the date of murder. But no question was put to the accused under sec. 342 as to where and under what circumstances, he parted with the deceased. Reliance was also placed upon the circumstance that the accused absconded from his house at the time when the deceased's body had not yet been discovered and it was then unknown that he was dead. No question was, however, put to him to explain why he absconded. Following the Privy Council decision given above, the Division Bench, held that conviction could not be maintained and ordered a retrial. It was observed that although it is not necessary or practicable for a trial Judge to put to an accused, every piece of evidence or point, which has been given or made against him, it is the duty of the Judge under sec. 342 to call the attention of the accused to matters from which, in absence of any explanation, adverse inferences can be drawn against him and call for explanation from him. Failure on the part of the court to do so, vitiates the trial. In Emperor vs. Piniladhoshad Imbrahimshah and another, (A. I. R. 1942 Sind P. 33), certain documents were proved and they were relied upon for conviction. No opportunity, was, however, given to the accused under sec. 342, in his examination, to explain if they could, those documents. It was held that it was the duty of the court to call the attention of the accused to a vital point and ask for his explanation and failure to ask for such explanation vitiates the trial if the conviction is based on the accused's failure to explain what he was never asked to explain. In A. I. R. 1946 Madras 179, it was held that the object of questioning an accused by the court under sec. 342, is to give the accused an opportunity of explaining the circumstances that appear against him in the evidence. Where, therefore, some article is found in the accused's house, which points in an emphatic manner to accused's responsibility for the crime, he should be given an opportunity of offering an explanation of the presence of that article in his house. In Indu Bhushan Ghosh and another vs. The State (A. I. R. 1950 All. P. 639), it was held that although the mere fact that a proper examination of the accused was not made under sec. 342 would not have the effect of vitiating the trial, but would mean that the circumstances, appearing against the accused, which he had no opportunity to explain, can not be relied upon and in so far as any such circumstance had been relied upon by the lower courts, their Judgments require re-examining. In Fakir Chand Nandram and another vs. The State (A. I. R. 1950 Madhya Bharat P. 76 the prosecution relied on the extra-judicial confessional statement made by the accused to one of the prosecution witness. No specific question was, however, put to the accused, whether he had admitted before the witness that he along with one other had murdered the deceased and divided the property, half and half. It was held that because no question was put to the accused, with respect to the alleged confession, no conviction could be passed on the want of explanation of something that was never put to the accused. There is, therefore, abundance of authority on the point that if the attention of the accused is not focused under sec. 342 upon an important circumstance which might be used for his conviction, that circumstance could not be relied upon for conviction, on the ground that it remained unexplained by the accused. Of course in some cases, without a specific question, the accused might put forward explanation for a circumstance appearing again9t him and in that case, it might be said that the accused was not prejudiced because even though not asked to explain, he has furnished the explanation himself. But when no question is put to the accused to explain any such circumstance and no explanation is forthcoming on behalf of the accused, his conviction can not be based upon the fact that an important circumstance appearing against him has remained unexplained, by the accused The learned Government Advocate argued that it was only necessary to question the accused generally on the case and not to put specific questions with respect to every circumstance appearing against him. It may be that some of the circumstances are unimportant and may not be taken advantage of in conviction. There may be no prejudice to the accused if no question is put with respect to such circumstance. If, howevers there is a strong circumstance appearing against him which might be taken advantage of in the conviction of the accused, it is the duty of the court to put a specific question to the accused with respect to it so that he might have an opportunity to explain. After the decision of the Privy Council referred to above, all those decisions which held that only putting a general question to whether the accused had committed the offence and what more he has to say is sufficient, have lost force. With this back-ground, I have to see whether the question relating to the presence of burns on the fingers of the accused was a strong circumstance affecting the decision of the case. For this, I have only to say that both the lower courts have very much relied upon this circumstance for the conviction of the accused. In fact on a reading of the judgment of the learned Sessions Judge, I am of opinion that he was to a very great extent, influenced in his decision by this circumstance. In more than one place, he has referred to this circumstance as a very strong circumstance against the accused. I give the following two extracts from his judgment, in order to show that his decision would probably not have been the same if this circumstance had not affected his mind. A. "this is an important circumstance which connects the accused, directly with the commission of this crime and a heavy burden lay on the accused to show how he sustained them if not in the act of handling the acid and throwing it on Abdul Waheed. " B. "this, I hold, is a strong circumstance which directly involves the accused in the commission of this crime. " The learned Judge says in his judgment that no explanation has been forthcoming from the accused on this circumstance. He says that the accused had heard the prosecution evidence and was asked to say if he had anything more to say. He had an ample opportunity to explain the circumstance but he did not. I do not agree with the learned judge that the mere fact that evidence was recorded before the accused and he was asked in the end to say anything more that he had to say, could focus his attention on the strong circumstance made out for conviction and can be said to be giving of an opportunity to the accused to explain this circumstance. The conviction and sentence of the accused can not, under these circumstances be maintained. The offence is, however, of a very serious nature and I do not feel justified to acquit the accused on this ground. The accused has been in jail for about a year and I feel somewhat reluctant to order a retrial. But under the circumstances of the case, retrial is the only course, which I take to be just and proper. The application for revision is allowed, the conviction and sentence are set aside and the case is sent for retrial. The accused shall remain in custody during the trial of the case, unless the trial court considers it proper to release him on bail.
(3.) THE District Magistrate, Jaipur may either try the case himself or make it over to some other Magistrate subordinate to him, who is competent to try it. I can not part with the judgment without observing that the failure to comply with the mandatory provisions of law, sometimes leads to great inconvenience to the parties and a good deal of waste of public time and money. The Magistrate before whom, this case now goes, should take particular care in observing the correct procedure laid-down by law and should bear in mind the observations made above. Although I am not deciding the case on merits, yet I feel that the evidence which has been produced in this case, does not place a vivid picture of the locality before the court. The acid is alleged to have been thrown from a stair case. The injured was alleged to have been sleeping on a cot in a 'tibara' and some of his relations have been shown to be sleeping near him in the same verandah. Without a site plan it is very difficult to picture whether the place in the staircase from which the acid is alleged to have been thrown was such that it could reach the injured without affecting other persons who were sleeping nearby. It was, therefore, necessary for the prosecution to have prepared a site-plan of the locality showing the place from which the acid was alleged to have been thrown and the place where the injured and his other relations were sleeping. If the prosecution did not place such a site-plan before the court, it was necessary for the court to have inspected the locality and have a site-plan prepared. In the retrial this should also be kept in mind. .;