Wanchoo, C. J. - (1.) THIS appeal is by Lakhpat Singh against his conviction under sec. 302 of the Indian Penal Code, and sentence of death passed by the Sessions Judge of Bharatpur. There is also a reference by the Sessions Judge for confirmation of the sentence of death.
(2.) THE case relates to an incident which took place in village Kaman on the morning of the 28th of August, 1949. One Mst. Ram rati, a Bedni, had been engaged in a mandli run by Deepa for the purpose of showing plays. She had joined this mandli only about 5 or 6 days before she was murdered. THE mandli played first at Deeg, and then came on to Kaman. THEre was a play on the night of the 27th August, 1949, which began at 9 P. M. and finished at about 3 A. M. on the 28th of August. It appears that Lakhpat Singh accused had illicit intimacy with Mst. Ramrati, when the was living in the District of Agra. He followed her from the District of Agra a few days after her departure from there. Her sisters, Mst. Sona and Mst. Bedani, her mother, Mst. Sukhia, and one Kehri Singh, who had helped in the engagement of Mst. Ramrati in this mandli, came with the appellant. After the play was over at 3 A. M. , these persons went to sleep in an open space. At about 4 or 4-30 A. M. , a shriek was heard, which woke up these persons. Kehri Singh and Mst. Bedani appear to have woken up first. THEir statement is that they saw the accused striking the deceased once with a knife. THEy immediately got up, and caught hold of the accused. Mst. Sukhia and Mst. Sona also got up; but they only saw the deceased lying dead, and the accused being held by Kehri Singh and Mst. Bedani. Other persons belonging to the mandli were sleeping on the roof up-stairs. THEse persons also heard a shriek, and came down. THEy are Tika Ram and Mangal Singh. Tika Ram saw Ramrati lying dead, and the accused collecting his clothes. He also saw the accused throwing away a knife outride the dharamshala. Mangal Singh saw Mst. Ramrati lying dead, and the accused surrounded by Mst. Bedani, Mst. Sukhia, Kehri Singh, & Mst. Sona. THEy all saw that the clothes of the accused were blood-stained, and arrested him. THEreafter Mangal Singh went to the Thana, and made a report. He was informed by Mst. Bedani and Kehri Singh that Lakhpat Singh had murdered Mst. Ramrati. In the report, however, which he made, he did not definitely state this fact, though the name of Lakhpat Singh was mentioned as the accused in the heading, and there was mention of Lakhpat Singh also in the body of the report. THE police arrived on the scene soon after, as the report was made within a very short time of the murder. Sub-Inspector Phool Singh, who investigated the case, saw that Mst. Ramrati was lying murdered. He also saw that the clothes of the accused were stained with blood. THE clothes were taken into possession, and the accused was also arrested. It is said that the blood-stained knife, which had been thrown away outside the dharamshala, was also recovered later. THE knife and the shirt of the accused were sent to the Chemical Examiner, Agra, and he has reported that both were blood-stained. THE stains on the knife were minute, while the largest stain on the shirt of the accused was 8" long. Next day, the accused was produced before a Magistrate for recording his confession. The Magistrate, Shri Bishambhar Singh, says that he satisfied himself that the accused was not under police influence, and was making his confession voluntarily. The accused was also given half an hour's time in court to consider over matters before making confession. Thereafter the Magistrate recorded the confession Ex. P. 10. This confession was, however, retracted by the accused in the committing Magistrate's Court as well as in the Sessions Court. The accused admits that he had illicit connection with the deceased. He also admits that he followed her after a few days from Agra, and came on to Kaman. He further admits that he was sleeping at the same place as the deceased, and other persons, namely, Mst. Bedani, Sukhia, Sona and Kehri Singh, who had also come with him. He, how-ever, denies that he struck Mst. Ramrati with a knife. His story is that he woke up like others, and saw that Mst. Ramrati had been injured on the neck. When questioned about the blood-stains on his clothes, he said that it was quite false that there were any blood-stains on his clothes. He also denied having helped the police in the recovery of the knife. As for the confession, he said that he had made no confession at all, and that he was in his senses when the confession is said to have been recorded. He added that it was not possible that after committing the crime he could have made a confession. He alleged enmity with Kehri Singh, and suggested that Kehri Singh might have murdered Mst. Ramrati. Before we consider the evidence in this case, we may dispose of a preliminary point, that has been raised on behalf of the accused, based on sec, 285 of the Code of Criminal Procedure. It appears that the evidence in this Case started in the Sessions Court on the 15th of April, 1952, and three assessors were empanelled to assist the Judge in the trial. These assessors were present on the 30th of April, 1952, which was the next date of hearing. On the 21st of May, 1952, only two of these assessors were present and one was absent. The Sessions Judge continued the trial with the aid of the remaining two assessors, and concluded it on the 12th of August, 1952, when the opinion of the two assessors was taken. The judgment was delivered on the 18th August, 1952. It does not appear from the record that the learned Judge recorded any order under sec. 285 of the Code of Criminal Procedure to the effect that he was proceeding with the trial with the aid of the remaining two assessors, as it was not practicable to enforce the attendance of the third assessor. The learned counsel urges that as the Sessions Judge failed to do so, the trial is vitiated, and the conviction ought to be set aside. He relies on three cases in this connection. The first case is Sipattar Singh vs. Emperor [ A. I. R. 1942 Allahabad 140 ]. In that case the Sessions Judge, began the trial with the aid of three assessors. After one prosecution witness had been examined, one of the assessors informed the Judge that he had personal knowledge about some facts. Thereupon the learned Judge discharged this assessor, then continued the trial with the aid of the remaining two assessors. It was thereupon held by the Judges of the Allahabad High Court that it was not competent to the trial Judge to proceed with the trial without having a third assessor, and the trial was irregular in view of the provisions of sec. 284 of the Code of Criminal Procedure, and sec. 285 did not apply to the facts of that case. The next case is Baddan vs. Emperor [a. I. R. 1946 Allahabad 253]. In that case the trial began with the aid of three assessors. On one of the later dates, one of the assessors was absent, and the Judge continued the trial with the aid of remaining assessors. The question then arose whether the trial was justified under sec. 285 of the Code of Criminal Procedure, and the learned Judges held that sec. 285 did not apply in the circumstances of that case, as the court did not ascertain, before proceeding with the trial, whether the absence of the assessor was due to sufficient cause, and whether it was practicable to enforce his attendance. Therefore, the failure to comply with the procedure was a material irregularity which vitiated the trial. Whether the irregularity was curable under sec. 537 of the Code of Criminal Procedure was not considered in this case. The last case is Brindaban vs. State [a. I. R. 1951 Madhya Bharat 29]. This case took the same view as the Allahabad case cited above, and further considered wether the irregularity was curable under sec. 537 of the Code. The decision is by a learned Single Judge, and he came to the conclusion that the irregularity was not curable under sec. 537, and gave the reasons in the following words at page 32: "the intention of the Legislature clearly was that if any assessor absents himself the Court should endeavour to enforce his attendance. If it is not practicable, the Court should record it and only then can proceed further. If there is nothing to indicate that there was any endeavour to enforce the attendance there will be a presumption that the procedure adopted was one which the Code positively prohibited; at the same time, it is possible that it may work actual injustice to the accused by a reduction in the number of the assessors who might have expressed their opinion in his favour. The trial will thus be held to be conducted in a manner different from that prescribed by the Code and the trial will be bad according to Kottayha vs. Emperor [a. I. R. (34) 1947 P. C. 67] and no question or curing any irregularity under sec. 537 arises. " There is no doubt that the last two cases support the view submitted by the learned counsel on behalf of the accused. The first case may be distinguished on the ground that it was not a case where the assessor was absent from the court or was prevented from attending the trial. The assessor was present, and was quite capable of attending the trial, but the court discharged him, Learned counsel for the State, however, urges that though there was an irregularity committed by the Sessions Judge inasmuch as he did not say anywhere that it was impracticable to enforce the attendance of the assessor, who was absent and. did not give any reasons in that connection, yet the irregularity in this case was curable under sec. 537 of the Code of Criminal Procedure, as it cannot be said that this irregularity occasioned a failure of justice. Sec. 537 of the Code of Criminal Procedure provides that no finding, sentence or order passed by a Court of competent jurisdiction shall be reversed or altered on appeal or revision on account of any irregularity in any proceeding during trial, unless such irregularity has in fact occasioned a failure of justice. We have, therefore, to see, in the first place, whether the court had jurisdiction to pass the judgment which it did, after the third assessor had absented himself. Sec. 284 of the Code of Criminal Procedure provides that no trial shall be started without the aid of assessors whose number should be at least three and if practicable, four. The assessors are, however, not part of the court, since the words "as members of the court" disappeared from the Criminal Procedure Code of 1872 (Act No. X of 1872 ). These words were ' not introduced in the Code of 1882 or in the present Code of 1898. Therefore, the Sessions Judge is a court of competent jurisdiction to hold a trial like this, and so long as he complies with the provisions of sec. 284 and sec. 285, which says that at least one assessor must be there, he will remain a court of competent jurisdiction. The next point that has to be considered is whether the irregularity, which has undoubtedly been committed in this case, is curable under sec. 537 of the Code or not. The principles on which this question may be decided are deducible from three Privy Council cases to which reference may be made. The first is the well-known case of N. A. Subramania Iyer vs. King-Emperor [ L. R. XXVIII Indian Appeals 257 ]. That was a case where the provisions of sec. 234 of the Criminal Procedure Code, which provides that a person may only be tried at one trial for three offences of the same kind if committed within a period of twelve months, was contravened, inasmuch as there were 41 charges extending over two years in that case. Their Lordships of the Privy Council held that a trial so conducted was plainly prohibited and illegal, and sec. 537 could not cure it. This case, however, would have applied, if, for example, the Sessions Judge had begun the trial with the aid of only two assessors in spite of the provisions of sec. 284, or had concluded the trial without a single assessor against the provisions of sec. 285 (2 ). The case before us, however, is of a different kind. The next case is V. M. Abdul Rahman vs. King-Emperor [ A. I. R. 1927 Privy Council 44]. That case made it clear that it was not the contravention of every provision of the Code of Criminal Procedure which would vitiate the trial and that some contraventions were not so serious that the irregularity might not be cured under sec. 537. In that case the provision of sec. 360 of the Code of Criminal Procedure relating to reading over of statements by witnesses was not complied with, and it was held that a mere omission or irregularity to comply with sec. 360 unaccompanied by any probable suggestion of any failure of justice having been thereby occasioned was not enough to warrant the quashing of a conviction. Then we may refer to Pulukuri Kottaya and others vs. Emperor [a. I. R. 1947 Privy Council 67], which expounds the law very clearly on the question as to how far sec. 537 can be used tor curing irregularities in criminal trials. In that case the provisions of sec. 168 of the Code of Criminal Procedure were not complied with, and it was urged before their Lordships that a breach of a direct or important provision of the Code of Criminal Procedure could not be cured, but must lead to the quashing of the conviction. Their Lordships, however, observed at page 69 as follows - "in their Lordships' opinion this argument is based on too narrow a view of the operation of sec. 537. When a trial is conducted in a manner different from that prescribed by the Code as in L. R. X VIII 257, the trial is bad, and no question of curing an irregularity arises; but if the trial is conducted substantially in the manner prescribed by the Code, but some irregularity occurs in the course of such conduct, the irregularity can be cured under sec. 537, and none the less so because the irregularity involves, as must nearly always be the case, a breach of one or more of the very comprehensive provisions of the Code. The distinction drawn in many of the cases in India between an illegality and an irregularity is one of degree rather than of kind. This view finds support in the decision of their Lordships' Board in 5 Rang. 53 (which is the same as Abdul Rahman vs. Emperor [a. I. R. 1927 Privy Council 44], (cited above), where failure to comply with sec. 360, Criminal P. C. , was held to be cured by secs. 535 and 537.
(3.) WE particularly emphasise the words "if the trial is conducted substantially in the manner prescribed by the Code" in the above quotation. What we, have to see is whether in this case the trial was conducted substantially in the manner provided by the Code, though an irregularity did undoubtedly take place, inasmuch as sec. 235 (1) was not strictly complied with. The Code contemplates that a trial which is conducted with the aid of assessors should begin with the aid of at least three, if not four, assessors (vide sec. 284 ). It also contemplates that such a trial should end with the aid of at least one, if not more, assessors, and that if there is not a single assessor available, the proceedings should be. stayed, and a new trial should be held (vide sec. 285 (2) ). In between comes sec. 285 (1), which contemplates that, all the assessors with whom the trial began may not be able to sit throughout the trial, and, therefore, permits, under certain circumstances, that the trial should be carried on with a lesser number of assessors so long as there is at least one assessor present during the whole of the trial. Thus, a trial with the aid of two or even one assessor, after it began with the aid of the minimum number required, is permitted by the Code, and where a trial is begun with the aid of three assessors, and carried on with two or at least one assessor, and brought to a conclusion in this manner, the trial is, in our opinion, conducted substantially in the manner prescribed by the Code. Sec. 285 (1) of the Code of Criminal Procedure reads as follows: - "if in the course of a trial with the aid of assessors, at any time before the finding, any assessor is, from any sufficient cause, prevented from attending throughout the trial, or absents himself, and it is not practicable to enforce his attendance, the trial shall proceed with the aid of the other assessor or assessors," This section, therefore, contemplates that the trial can go on with the aid of less than three assessors, and will be perfectly valid, and provides what the Sessions Judge should do when any assessor is, from any sufficient cause, prevented from attending the trial or absents himself. All that the Sessions Judge has to do is to satisfy himself that it" is not practicable to enforce his attendance. In this case, one of the assessors certainly absented himself and what the Sessions Judge had to do was to satisfy himself that it was not practicable to enforce his attendance. He omitted to do so, but carried on with the trial with the aid of the other two assessors. Now, if he had satisfied himself on that point, the result would have been that he could carry on with the aid of the remaining assessors. Thus the trial would have continued in the same manner in which the Sessions Judge did continue it in this case even after he had satisfied himself that it was not practicable to enforce the attendance of the assessor who was absent. Under these circumstances, we think that the trial was conducted substantially in the manner prescribed by the Code, though there was an irregularity, inasmuch as the provisions of sec. 285 (1) were not strictly complied with. It is not said on behalf of the appellant that any failure of justice was occasioned on account of this irregularity. We are, therefore, of opinion that this case comes within the principle of Pulukuri Kottaya and others v. Emperor [a. I. R. 1947 Privy Council 67. ], namely that the trial is conducted substantially in the manner prescribed by the Code, but some irregularity has occurred in the course of such conduct. We may, in support of our view, refer to King Emperor vs. Tirumal Reddi and others [i. L. R (1901) XXIV Madras 523]. In that case one of the assessors was allowed by the Sessions Judge to be absent from the trial for a few days. He appeared again, and was allowed to sit and give his opinion at the conclusion of the trial. The question arose whether in these circumstances the trial was vitiated or not. The matter was referred to a Bench of three Judges, and it was decided by the majority that the finding and sentence appealed against had been passed by a Court of competent jurisdiction within the meaning of sec 537 of the Code of Criminal Procedure, and that the defect in the trial did not affect its validity and was cured by that section if the irregularity had "not in fact occasioned a failure of justice"; and that no such failure of justice had been shown. The view of the majority was that the trial took place in substantial compliance with the mode of trial prescribed for sessions trial with the aid of assessors, and that so long as one assessor was present throughout, the irregularity, if any, was curable under sec. 537. We, therefore, overrule this preliminary objection, and hold that the defect in this case was curable under sec. 537, as there was no failure of justice. We now turn to the consideration of the evidence in the case. There are two eye-witnesses, namely Mst. Bedani and Kehri Singh. Then there is the evidence of Mst. Sona and Mst. Sukhia, and lastly we have the statements of Mangal Singh and Tikaram. The medical evidence shows that the deceased received two blows on the neck. It seems, therefore, quite possible that she shouted out when the first blow was struck, and some of the persons, who were sleeping nearby, were able to see the second blow being delivered. There is no reason, therefore, for us to disbelieve the statement of Mst. Bedani and Kehri Singh to the effect that they saw one blow being delivered on the neck of the deceased with a knife, and thereafter the knife was thrown away outside the dharam-shala across the wall. These two eye-witnesses also tell us that they immediately caught the accused, and found that his clothes were stained with blood. The accused has alleged enmity with Kehri Singh, which Kehri Singh has denied. No evidence has, however, been produced in support of the alleged enmity with Kehri Singh, and we have no reason to believe that there was any such enmity. As a matter of fact, if there was any enmity of this kind, the accused, who is a police head constable, would never have brought Kehri Singh with him from Agra; nor would have Kehri Singh come with him. No enmity is even alleged with Mst. Bedani. Mst. Sona and Mst. Sukhia did not actually see the accused stabbing the deceased, when they woke up. The deceased was already dead, and the accused had been caught by Kehri Singh and Mst. Bedani. But they also saw that the clothes of the accused were blood-stained. Further, they prove that there was illicit connection between the accused and Ramrati from before, and the accused was dissatisfied because Mst. Ramrati had come away from Agra. ;