K.T. Thomas, J.
1. Three masked burglars sneaked into a dwelling house at midnight, committed burglary and killed the house wife, stabbed her daughter-in-law and ran away with the booty. Police charge-sheeted three persons for the above, though only two of them could be nabbed since the third one who disappeared from the locality is still absconding. After trial, Sessions Judge convicted those two persons of burglary (S. 457,1.P.C.) and robbery (Section 394, I.P.C.) but acquitted them of murder. While awarding sentence the Sessions Judge did not take into account the limitation provided in Section 397 of the Penal Code regarding the minimum term and hence each of them was sentenced to undergo rigorous imprisonment for three years and five years respectively on the two counts.
2. State of Kerala has filed one of the appeals challenging the order of acquittal of the offence of murder. The convicted persons filed the other appeal challenging the conviction and sentence. They will be referred to as the appellants in this judgment.
3. Girija (PW-1) is the daughter-in-law of the deceased Sarojiniamma. Girija and her husband (PW-2) as well as Sarojiniamma were residing in the same house. On the night of 25-10-1986 since Girija's husband was on night shift in the company (Alagappa Textiles) where he was working, both Sarojiniamma and her daughter-in-law Girija were sleeping in the same room. By about midnight three persons covering their faces with cotton masks (beneath their nose) stealthily entered into the said room after breaking the wooden bars of the window. According to the prosecution case, the burglars first tried to grab the ornaments of the old lady, but since she woke up the appellants caught hold of her by both hands and closed her mouth, while the absconding accused (Anto) inflicted a large number of stab injuries on her with a knife. When Girija woke up and made a hue and cry, Anto turned against her and inflicted a stab injury on her and snatched her gold chain. Before the neighbours could rush in the burglars escaped from the scene with the booty.
4. Sarojiniamma, who sustained a large number of injuries including deep penetrating incised injuries, died before she could be removed to a hospital. PW-1 gave first information statement on the same night at the Medical College Hospital, Trichur. Appellants were arrested on 28-10-1986. On the strength of the statements elicited from first appellant two knives were recovered from a well and a gold pendent was recovered from his house.
5. We have absolutely no doubt that burglary and murder were committed in the house of the deceased on the tragic night. The evidence against the appellants consists mainly of the testimony of Girija and two judicial confessions recorded by the Judicial Magistrate of Second Class, Trichur. Learned Sessions Judge relied on Girija's testimony and also the judicial confessions (Exts. P16 and P17).
6. Learned counsel for the appellants contended that the two confessions were recorded in gross violation of law and without complying with the safeguards provided under the Rules embodied in Chapter X of the Criminal Rules of Practice. He further contended that the testimony of PW-1, without corroboration, is insufficient to maintain conviction.
7. On the other hand, learned Public Prosecutor contended that the evidence of PW-1 alone is sufficient to establish that the two appellants have committed not only robbery, but murder and hence they are liable to be convicted under Section 302 read with Section 34 of the Penal Code. According to him, the confessions recorded by the Magistrate are, despite some technical imperfection, quite voluntary and hence they can be acted on. It was pointed out that recovery of gold ornaments is sufficient to corroborate PW-l's testimony, even if it needs any such corroboration. Learned Public Prosecutor contended that the testimony of PW-1 is so clear that stab injuries were inflicted by Anto (the absconding accused) while the appellants were holding the old victim in their grip to facilitate the murder. He therefore vehemently pleaded for the conviction of appellants of murder with the aid of Section 34 of the Penal Code as otherwise it would be a mockery of justice.
8. On account of a legal snag we are disabled from considering the merits of the contentions of both sides. Learned Sessions Judge went into the details of the evidence and evaluated it at the penultimate stage of trial when he was only concerned whether "there is no evidence that the accused committed the offence". Learned Sessions Judge questioned the accused under Section 313 of the Cri P.C. (for short 'the Code') during which he asked them, as the last question, whether they have any evidence. True, they answered it in the negative. But that is no reason to by pass the two steps envisaged in Sections 232 and 233 of the Code. Even if arguments were heard next after questioning the accused under Section 313 of the Code, such arguments would only be beneficial to consider whether there is no evidence that the accused committed the offence as provided in Section 232 of the Code.
9. We have absolutely no doubt that this is not a case where any of the appellants could have been acquitted on the ground that "there is no evidence." Learned Sessions Judge should necessarily have proceeded to the stage provided in Section 233 of the Code. We cannot treat the answer given by the appellants (that they have no evidence) as good enough for the stage envisaged in Section 233 of the Code also since appellants could legitimately contend that they did not want to adduce evidence if the Sessions Judge was disposed to acquit them at the stage of Section 232 itself. In fact learned counsel for the appellants submitted that if the case has to proceed further to the stage after Section 232, appellants may have to consider whether defence evidence is necessary.
10. It is apposite to point out in this context that we have come across the aforesaid procedural lapse in a large number of judgments of Sessions Courts. This might be on account of mistaken impression that the procedure is the same as in the trial conducted in a Magistrate court. Whether it is for trial of warrant cases by Magistrates or trial of summons cases by Magistrates, soon after prosecution evidence is over the accused can be asked whether he has any defence evidence. Of course under the Criminal P.C. 1898 (old Code) the procedure prescribed is consistent with what the Sessions Judge has followed in this case. Section 289 of the old Code provides that "when the examination of the witnesses for the prosecution and the examination (if any) of the accused are conducted, the accused shall be asked whether he means to adduce evidence." But the departure made regarding the Sessions Trials under the new Code is perspicuous in Sections 232 and 233 of the Code. They are extracted below:
"232. Acquittal:- If, after taking the evidence for the prosecution, examining the accused and hearing the prosecution and the defence on the point, the Judge considers that there is no evidence that the accused committed the offence, the Judge shall record an order of acquittal.
233. Entering upon defence:- (1) Where the accused is not acquitted under Section 232, he shall be called upon to enter on his defence and adduce any evidence he may have in support thereof.
(2) If the accused puts in any written statement, the Judge shall file it with the record.
(3) If the accused applies for the issue of any process for compelling the attendance of any witness or the production of any document or thing, the Judge shall issue such process unless he considers, for reasons to be recorded that such application should be refused on the ground that it is made for the purpose of vexation or delay or for defeating the ends of justice."
11. Under the first Section (Section 232) after examining the accused, the Judge has to hear both sides "on the point". The point is whether the Judge can consider that there is no evidence in the case that the accused committed the offence. The manner of examination of the accused is provided in Section 313 of the Code. The commencing words in Section 233 of the Code, i.e., "Where the accused is not acquitted under Section 232,...." would make it clear that an accused has to be directed to enter upon his defence if he cannot be acquitted under Section 232. An accused can be acquitted under Section 232 only when "there is no evidence that he committed the offence".
12. When can a Sessions Judge consider that "there is no evidence that the accused committed the offence"? Some of the instances can be pointed out when a Sessions Judge can justifiably say that there is no evidence. In cases solely depending upon the ocular account of the witnesses, it might sometime happen that all those witnesses, one by one, might turn hostile to the prosecution without giving any evidence in support of the prosecution. There may be a case where the only legal evidence on record in support of the prosecution case is the confession of a co-accused or the evidence of witnesses examined on behalf of a co-accused. In cases whether there are more than one accused, it might happen that there may not be any evidence connecting one or more of them with the commission of the offence. There may also be cases where evidence connecting the accused with the crime is only rank hearsay.
13. A Division Bench of this court in State of Kerala v. Mundan 1981 KLT 624 : (1981 Cri LJ 1795) has observed after referring to the above instances that "All these are cases where it can be said that there is no evidence that the accused committed the offence and Section 232 can be invoked. But in a case where there is some evidence connecting the accused with the commission of crime, it is the duty of the Judge to pass on to Section 233 and not to appreciate that evidence and find out whether it was reliable or not, to pass an order under Section 232 of the Code." Their Lordships also observed that the words 'no evidence' in Section 232 cannot be considered or interpreted to mean absence of sufficient evidence for conviction or absence of satisfactory or trustworthy or conclusive evidence in support of the charge. Section K. Kader, J. speaking for the bench further stated thus : "If there is any evidence to show that the accused had committed the offence, then the Judge has to pass on to the next stage. It is not open to him to evaluate or consider the reliability of the evidence at this stage. It is a salutary principle in a sessions trial that no final opinion as to the reliability or acceptability of the evidence should be arrived at by the Judge until the whole evidence is before him and has been duly considered. It is only after the accused is called upon to enter his defence under Section 233 and after the evidence, if any, adduced on behalf of the accused and hearing the counsel appearing for both sides, the Judge hearing the case after due consideration of the evidence decides whether the evidence adduced on behalf of the prosecution is reliable or trustworthy."
14. We are in respectful agreement with the aforesaid observations made by the Division Bench. In reaching the said conclusion the Bench was fortified by the decisions in Kumar v. State of Karnataka 1976 Cri LJ 925 and Arun v. State 1978 Cri LJ 1168. Similar view has been adopted by another Division Bench of this court in Criminal A. No. 246 of 1978. (The decision has been reported in State of Kerala v. Mohammedkutty 1979 KLT Sh. N. Case No. 174 at page 37).
15. We would make it clear that either the judgment or at least the proceedings paper should contain the minutes that consideration was made as envisaged under Section 232 of the Code at the appropriate stage. It is quite unnecessary to ask the accused whether they have any defence evidence before reaching that stage, though there is nothing illegal even if the accused was asked like that at such an early stage. The accused need be called upon to enter on his defence only when the trial proceeds to the next stage after Section 232.
16. For the aforesaid reasons the impugned judgment is set aside and the case is remitted to the Sessions Court. The Sessions Judge shall call upon the accused to enter on their defence and adduce any evidence which they may have in support thereof. The case shall be disposed of afresh, after collecting the defence evidence (if any, adduced) with judgment as per Section 235(1) of the Code. It is made clear that no de novo trial is necessary and while disposing of the case afresh, the Sessions Judge shall not, in any way, be influenced by any of the reasoning or observations contained in the judgment which we set aside now.
The appeals are disposed of in the above terms.