Rameshar Singh And Others Accused v. King-Emperor Opposite Party.

Jwala Prasad, J.:— The petitioners nine in number, were convicted by an Honorary Magistrate of Gaya of offenses under Ss. 448, 380 and 143, Indian Penal Code. Separate sentences were passed under S). 448 and 380 but no separate sentence was passed under S. 148, Indian Penal Code. On appeal the conviction under S. 380 was set aside, and the sentence passed under S. 448 was reduced to a fine of Rs. 25 each. No separate sentence was passed under S. 143, Indian Penal Code, by the lower Appellate Court also.

2. The facts, briefly stated, are that one Rambalak Singh executed a trust deed dedicating his properties to Sri Thakurji and appointed himself manager thereof. After him, he appointed his mother, after her, his daughter Musammat Bidyamati, and in the event of her dying without a male issue, the management was to go to his sister's so is Raghunandan and Harnandan. Rameshar Singh, accused, is a distant gotia of Rambalak Singh. In due course the management of the trust properties devolved upon Rambalak's daughter Musammat Bidyamati Koer. She was married to the complainant Noonoo Singh, the resident of Sabdulpore, eight miles from Alipore. Raghunandan and Ilarnandan are residents' of Gharnai, also eight miles from Alipoie, the residence of Rambalak Singh. The prosecution case is that on or about the second week of March 1924, Bidyamati, who was pregant, left Alipore for Sabdulpore. At Subdalpore she was delivered of a male child on the 25th March, 1924 and died on the 26th March, 1924. The child is said to be still alive and was shown to the Sub-Inspector of Makhdnmpore' (P.W No. 8). When Bidyamati left Ali-pore she is said to have looked the house occupied by her, containing grain and certain utensils. On the 4th of April 1924, her husband Noonoo Singh got an information that the accused persons had forcibly broken open the lock of the house occupied by Bidyamati at Al'pore, entered the same and removed the grain and utensils.

3. That Was the day fixed for performing the sradh of Bidyamati. Noonoo Singh came to Alipore and found that the information given to him was true. He also found the Tikari police on the spot and suspected them to be in collusion with the accused. Accuse No. 9, Musammat Kauleshwar Koer, mother of Ramesh war Sirgb, was actually found inside the house and occupying it. On the 7th April, 1921, Noonoo Singh lodged a complaint in the Magistrate's Court at Gaya. The accused were then summoned and pul; on their trial.

4. The case of the accused was that Bidyamati died on the 18th March, 1924, and not on the 26th March, as urged by the prosecution, and that they obtained peaceful possession of the house inasmuch as at the time of her departure from Alipore, Bidyamati handed over the key of the house to Raghunandan and Harnandan, and that the accused thus became the managers of the trust property after the death of Musnmmat Bidyamati Koer on 18th March, 1924 and transferred the property in dispute to Rameshwar Singh firstly, by an unregistered vasika and afterwards by a registered sale deed, dated the 22nd March, 1924.

5. The Court below has indicated the evidence given by the parties as to the date of the death of Mussammat Bidyamati Koer and the birth of a male child to her. The Court has referred to the hath chitha of the village chaukidar and the birth register of Makhdumpore Thana filed by the prosecution to prove the aforesaid facts. It has also referred to a certified copy of a petition, dated the 25th March, 1924, filed by the defence in which it was stated by one Bhajan Singh that Bidyamati died 8 or 7 days before the date of the petition. The Court has discredited this petition and the allegations made therein. From the criticisms offered by the lower appellate Court it would seem that the Court was inclined more to accept the version of the ??? as to the date of the death of Bidyamati and the birth of a male child to her but the District Magistrate, as well as the trying Magistrate, refrained from expressly deciding this question; for in their opinion it was not necessary to decide it in this case. Be that as it may, both the 5 Courts below have concurrently accepted the version of the ??? as to the forcible entry of the accused into the house which was occupied by Bidyamati up to the time of her death. They have disbelieve I the story that the key was handed over by Bidyamati to Righunaudan at the time of her departure from Alipore. Upon the findings of the Courts below it is Dot possible to hold that the accused were not guilty of the offence of criminal trespass into the house which was occupied by Bidyamati Koer.

6. The learned counsel and the learned vakil appearing on behalf of the accused have pointed out certain defects in the procedure adopted by the Magistrate at the trial of the case. It has been urged that the Magistrate committed grave irregularity in omitting to examine the accused at the close of the evidence for the prosecution in the manner required by Section 342 of the Cr PC, and that the Magistrate further erred in not complying with the provisions of S. 360 in omitting to read over the depositions of the witnesses in the presence of the accused. It is now settled that the examination of an accused under S. 312, in the latter part of it, is imperative. The omission to do so vitiates the trial of the accused. The leading case of this Court upon the subject is Rnghu Bhumiji v. Emperor(1). Since then the view has been followed throughout. Rankin, J. in his elaborate judgment ??? delivered in the case of Prormthi Nath Mukhopadhya v. Emperor(2) has come to the same conclusion. There has, however, been difference of opinion as to the nature of the examination of the accused and the questions put to him at such an examination. The difference of opinion is pre-eminently illustrated by the two conflicting judgment is of Kulwant ??? J. and Foster, J., in the case of Durga Ram v. Emperor(3) and Banamali Kumar v. Emperor(4) respectively. In the present case the accused were examined after the clause of the prosecution case and before they were called upon to enter into their defence. It has not been shown that the examination is in any way defective or this the Magistrate omitted to put the questions which he ought to have put. Therefore, the contention urged must be overruled.

7. I would, however, point out the distinction in the provision contained in S. 312 as to the examination of an accused at two different stages. The first portion of S. 312 is an enabling provision. It entitles the Court “at any stage of any inquiry or trial” to “put such questions to him (the accused) as the Court considers necessary.” The second portion of the section proves for questioning the accused “??? on the case after the witnesses for the prosecution have been examined and before he is called on for his defence.”

8. This is imperative; it casts a duty upon the Court to question the accused generally on the case after the witnesses for the prosecution have bsen examine, this is, when the whole case against the accused has been disclosed. The object of the examination is to enable the accused to explain any circumstances appearing in the evidence against him.

9. The next contention relates to the omission by the Mtgistrite to read over to the witness their depositions in the ??? of the accused under S. 360. The Metgistrates's note at the end of the depositions shows that he explained to the accused the depositions as recorded and the same were admitted by the witnesses to be correct. It does not appear whether or not the evidence was read over to the witnesses in the presence of the accused. We cannot saw, one way or the other, whether or not the depositions were read over to the witnesses in the presence of the accused persons. There is ??? in the section to indicate that the Magistrate shall record that the deposition was read over in the presence of the accused though it is much better that he ought to do so in order that there might be no complaint as to his not having done so. It, however, appears that in the case of witnesses Nos. 5 and 8 the depositions were not read over to them, but the witnesses lead their evidence themselves and cen tided that it was correctly recorded. This, no doubt, ensures the correctness of the record so far as the witnesses and the Court are concerned, but the law requires that it should be read over in the presence of to accused so that an opportunity be given to him to challenge the correctness of the record. Therefore, merely reading of the evidence be the witnesses is not a sufficient Compliance with cl. (1) of S. 360. The evidence must be read over in the presence of the accused. The defect might necessitate a remand of the cate. In the circumstances of this case the accused are naturally apprehensive that the renatd will be harassing to them. Certainly it will be very expensive.

10. Considering the circumstances of the case in the findings of the Court below I would reduce the sentence of petitioners Nos. 2 to 9 to Rs. 5 each under S. 448, Indian Penal Code. The sentence of Rs. 25 passed upon petitioner No. 1 Rimeshwar Singh is maintained.

11. Sentence reduced.