LexK.C.MATHEW AND OTHERS versus THE STATE OF TRAVANCORE-COCHIN.
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2S.C.R. SUPREME COURT REPORTS K. C. MATHEW AND OTHERS v. THE STATE OF TRAVANCORE-COCHIN. (V1v1AN BosE, VENKATARAMA -AYYAR and CHANDRA SEKHARA AIY AR JJ.] 1057 Sessions Trial-Charge--Diff erent offences against different ac- cused lumped together-Legality-Examination of the accused neither full nor· clear-Failure to raise objection at earlier stages-With- holding by the accused of facts within their special knowledge-Inf- erence-Code of Criminal Procedure (Act V of 1898), ss. 225, 342, 537 -Indian Penal Code (XLV of 1860), ss. 302, 149. The appellants were put up for trial along with others before the Court of Sessions. The charge against them set out the fact that they formed an unlawful assembly, stated the common object speci- fying in detail the part each accused had played and then gave a list of to;, sections of the Travancore Penal Code including sections which correspond to s. 302 of the Indian Penal Code read with s. 149. The Sessions Judge acquitted them under s. 302 read with s. 149 but convicted them on the lesser charges. They appealed to the High Court against their convictions and the State appealed against their acquittals under s. 302 read with s. 149. The High Court dis- missed their appeals and allowed the appeals against their acquittals and sentenced each of them to transportation for life. It was con- tended on their behalf that the charge was not in accordance with law c,ad their examinations under s. 342 of the Code of Criminal Proo~dure were defective and prejudiced them. Heid, that the charge framed was a legal one and was expressly covered by s. 225 of the Code of Criminal Procedure. Each of the accused was apprised of the facts alleged against him and he could easily pick out the relevant sections under which he· was charged. There could, therefore, be no prejudice to any one of them. Held, further, that as no objection was taken to the defective cxamVi.ation under s. 34 2 of the Code of Criminal Procedure at an earlier stage although the accused w~re represented by counsel, and as the petition of appeal did not ;et out the questions the court should have put to them and the answers they would have given and as they thereby withheld from the court facts which were with- in their special knowledge, the court was entitled to draw an ad- verse conclusion against them and hold that no prejudice had been caused to them. That when an accused person is not properly questioned under s. 34 2 so as to enable him to explain the circumstances appearing in the evidence against him he is entitled to ask the appellate Court, which is the ultimate court of fact, to place him in the same position Deumber 15 1955 Jt.C.Afathtw and othtrs v. • ·rhe State of T ravancore-C-Ochin 1058 SUPREME COURT REPORTS [1955J he would have been in if he had been properly questioned and to take the explanation he would have given, if he had been asked, into c0nsideration when \Veighing the evidence in just the same way as "the court would have done if the explanation had been there all along. But he cannot ask to be placed in a better position than he would have been in if the court had done its duty from the start. Th~.:r.for.::, when complainin,g of prejudice he 1nust set out the ques- tions he should have been asked and indicate the answers he would have given. CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 97 of 1953. Appeal under Article 134 ( 1) ( c) of the Constitu- tion from the judgment and order dated the 15th June 1953 of the Travancore-Cochin High Court in Criminal Appeals Nos. 54, 55, 56, 58 and 79 of !J52. S. Mohan Kumaramangalam and S. Subramaniam, for the appellants. Sardar Balzadur, for the respondent. 1955. December 15. The Judgment of the Court was delivered by BosE J.-This is a case of rioting in which two police constables were killed. Thirty one persons were put up for trial. The learned Sessions Judge acquitted twenty one of them on all the charges and acquitted the remaining ten of the most serious charge of all, namely the offence falling under the sections of the Travancore. Penal Code which correspond to section 302 of the Indian Penal Code read with section 149. But she convicted them on several of the lesser charges and imposed sentences ranging from two to five years O:l each count and directed that the sen- tences should run consecutively except in the cases of accused 5 to 8 and 18. She
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