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This argument, in our opinion, is based on a serious misconception of the correct approach to the cardinal principles of criminal justice. Ratio |
Section 540 itself incorporates a rule of natural justice. Ratio |
The accused is presumed to be innocent until he is proved guilty. Ratio |
It is, therefore, manifest that where any fresh evidence is admitted against the accused the presumption of innocence is weakened and the accused in all fairness should be given an opportunity to rebut that evidence. Ratio |
The right to adduce evidence in rebuttal is one of the inevitable steps in the defence of a case by the accused and a refusal of the same amounts not only to an infraction of the provisions of the Criminal Procedure Code but also of the principles of natural justice and offends the famous maxim Audi Alteram Partem. Rat... |
Section 540 of the Criminal Procedure Code runs thus : "Any Court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and re examine any person already examined, and the Court shall ... |
A careful perusal of this provision manifestly reveals that the statute has armed the Court with all the powers to do full justice between the parties and as full justice cannot be done until both the parties are properly heard, the condition of giving an opportunity to the accused to rebut any fresh evidence sought to... |
The words " just decision of the case" would become meaningless and without any significance if a decision is to be arrived at without a sense of justice and fair play. Ratio |
66 In the case of Channu Lal and Anr.vs Rex(1) the Division Bench of the Allahabad High Court ruled as follows : "Section 540, in our opinion, empowers a Court to take such evidence. PRE |
If the Court decides to take such evidence, it would be proper for the Court to re examine the accused with reference to the new evidence recorded and to give an opportunity to the accused to give such further evidence in defence, as he may be advised to do". PRE |
To the same effect is a decision of the Madras High Court in the case of Rangaswami Naicker vs Muruga Naicker(2) where Ramaswami, J. observed as follows "The only rules, which the Magistrate must bear in mind when examining court witnesses are (1) that the prosecution and the accused are both equally entitled to cross ... |
Same view has been taken by the Lahore High Court in the case of Shugan Chand and Anr.vs Emperor(3) and in the case of The Queen vs Assanoollah (4) where a Division Bench of the Court observed as follows : "In the present case, the prisoner has had no opportunity of making a defence or calling evidence, with reference ... |
I think, therefore, that the case has not been properly tried, and that the conviction and sentence are not legal. PRE |
It appears to me that, under section 405, we ought to quash the conviction, and order a new trial". PRE |
We find ourselves in complete agreement with the principles laid down and the observations made in the aforesaid cases which represent the correct law on the subject. Ratio |
The, High Court seems to have justified the refusal to give an opportunity to the accused to rebut the evidence on the ground that Shri Mulla who was counsel representing the accused did not choose to withdraw from the appeal and that other witnesses sought to be examined by the appellants were bye standers. Ratio |
These considerations are absolutely extraneous to the issue. Ratio |
It was not open to the High Court to have prejudged the merits of the evidence of the witnesses sought to be examined by the defence even before their evidence was recorded. Ratio |
In these circumstances, we feel that the reasons given by the High Court for not examining the witnesses suggested by the accused are wholly unsustainable in law. Ratio |
(1) A.I.R. 1949 All. PRE |
(2) A.I.R. 1954 Mad. 169. PRE |
(3) A.I.R. 1925 Lahore 531. PRE |
(4) 13 S.W.R. (Crl.) 15. 67 For these reasons, therefore,. PRE |
we are clearly of the opinion that the High Court was in error in refusing the appellants an opportunity of giving evidence to rebut the evidence, of the witnesses examined by the High Court under section 540, Cr.P.C. Ratio |
Normally, this error would have been sufficient to vitiate the judgment and would have required our remitting the case to the ' High Court for a fresh decision. Ratio |
We however find that this is a very old case when the occurrence had taken place more than 8 years ago and the appeal in this Court has itself taken more than five years. Ratio |
In these circumstances, we feel that the ends of justice do not require that the case should be sent back to the High Court which would entail further delay. Ratio |
We have therefore, decided to go into the, evidence ourselves after completely excluding the evidence of the witnesses examined by the High Court under section 540, Cr.P.C. so that we base our decision only on the evidence and the circumstances that were before the Sessions Judge. Ratio |
Before going into the merits we might mention a few facts which have been found against the appellants. Ratio |
Both the High Court and the, Sessions Judge have believed the evidence of P.Ws. 1, 2 and 3 who proved the assault on the deceased and Chhotey Lal. FAC |
The Sessions Judge has particularly discussed all the aspects of the case very exliaustively and has combated every possible argument that was or could be advanced before him by the appellants. FAC |
Regarding P.W. 1 the High Court accepted his evidence and observed as follows : "We are satisfied that Chhoteylal (P.W. 3) was also present in the company of his brother Babu Ram when he was shot dead". FAC |
Similarly, rejecting the adverse comments made against the testimony of P.W. 2 the High Court said that "his explanation for his presence in the company of the deceased when he was shot at is quite plausible. FAC |
He is in our judgment, a thoroughly reliable witness". FAC |
Similar opinion was given by the High Court in respect of Chhotey Lal, P.W. 3 where the High Court observed as follows : "Rajendra whom we have found was present during the occurrence has supported the statement of Chhoteylal. FAC |
In the First Information Report lodged by him without any delay whatsoever it bad been mentioned that Chhoteylal had been injured by Sukhdeo with a spear wielded by him '. FAC |
Similarly, the trial Court has also accepted the evidence of these witnesses in the same terms. FAC |
We have also gone through the evidence of these three witnesses in their entirety and we find that they have given straight forward answers and their evidence has the ring of truth in it. Ratio |
One of the most important circumstances which proves the prosecution case is the fact that although the main person against whom proceedings under section 107 had been initiated by the deceased was Munna Lal yet Munna Lal has not at all been made an accused in this 68 case nor has any act been attributed to him. Ratio |
This is an intrinsic evidence of the fact that the prosecution had no intention of falsely implicating any person even though he may have been the greatest enemy of the deceased. Ratio |
Another pertinent fact which deserves particular mention is that the F.I.R. appears to have been lodged within an hour of the occurrence and there was hardly any time for the parties to discuss or deliberate. Ratio |
The F.I.R. contains a brief but full narrative of the manner in which the deceased was killed and the names of the accused persons are also mentioned therein. Ratio |
It is true that some of the witnesses who have been mentioned in the F.I.R. as having accompanied the deceased have not been examined by the prosecution but that by itself in our opinion in the circumstances of the present case does not appear to be a fatal defect in the prosecution case. Ratio |
This Court in the case of Dalbir Kaur & Ors.V. State of Punjab (1) said that it is manifest that what is important is not as to who were not examined but as to whether the witness who had actually been examined should be believed and while enunciating the principles on the basis of which this Court would interfere in a... |
That this Court would not interfere with the concurrent findings of fact based on pure appreciation of evidence even if it were to take a different view on the evidence. PRE |
That the Court will not normally enter into a reappraisement or review of the evidence, unless the assessment of the High Court is vitiated by an error of law or pro cedure or is based on error of record, misreading of evidence or is inconsistent with the evidence, for instance, where the ocular evidence is totally inc... |
That the Court would not enter into credibility of the evidence with a view to ' substitute its own opinion for that of the High Court; 4. PRE |
That the Court would interfere where the High Court has arrived at a finding of fact in disregard of a judicial process, principles of natural justice or a fair hearing or has acted in violation of a mandatory provision of Jaw or procedure resulting in serious prejudice or injustice to the accused; 5. PRE |
This Court might also interfere where on the proved facts wrong inferences of law have been drawn or where the conclusions of the High Court are manifestly perverse and based on no evidence". PRE |
In the instant case, having regard to the concurrent findings of fact by the High Court and the Sessions Judge that the evidence of P.Ws. 1, 2 and 3 is worthy of credence, and after perusing the evidence we also do not see any reason why the evidence of these witnesses should be (1) ; 69 discarded. Ratio |
All the three witnesses have been mentioned in the F.I.R. as being present on the scene of occurrence. Ratio |
P.W. 3 has an injury which according to the doctor could not be self inflicted. Ratio |
The presence of the injury on the person of Chhotey Lal is a strong corroboration of the evidence of the eye witnesses. Ratio |
We shall now deal with some important contentions raised by the appellants on the merits of the case. Ratio |
In the first place, great reliance was placed on the evidence of P.W. 11 the Investigating Officer who had said in his statement before the Sessions Court that he had found four empty cartridges at the spot. ARG |
Mr. Garg submitted that this admis sion of the Investing Officer knocks the bottom out of the case of the prosecution. ARG |
It was argued that if the empty cartridges were recovered from the spot as deposed to by this witness the, entire complexion of the case changes and it would appear that the prosecution had not presented the true version of the case before the Court. ARG |
We have ourselves gone through the evidence of P.W. 1 1 carefully and we find that either the witness has made some confusion regarding tile finding of four empty cartridges or the word "empty" has been wrongly recorded in the statement of the witness as is clearly found by the learned Judge in his judgment the extract... |
We have already pointed out that although the trial Judie had clearly held that the word "empty" instead of "live" was wrongly written in the statement yet this statement of fact made by the Sessions Judge in his judgment was not controverted by the appellants in their memo of appeal filed in the High Court nor was any... |
Furthermore, the learned Judge has clearly mentioned in his judgment that the fact that four live cartridges belonging to the deceased were found lying at the spot was not even challenged by the defence. Ratio |
Even this fact was not controverted either before the Sessions Court or in the memo of appeal filed in the High Court. FAC |
Finally, the High Court itself has pointed out that Shri section N. Mulla and Shri R. K. Shangloo who had represented the appellants in the appeal in the High Court and had also appeared for the appellants before the trial Court on enquiry by the High Court whether the revolver cartridges exhibited at the trial were li... |
In this connection, the High Court observed as follows "Shri section N. Mulla and Shri R. K. Shangloo represent the appellants in Criminal Appeal No. 2561 of 1969. FAC |
Both these learned counsel had appeared on behalf of the defence before the trial court. FAC |
It was Shri Mulla who had cross examined the investigating Officer. FAC |
When we enquired from them as to whether the revolver cartridges when exhibited at the trial were live or empty neither of the two learned counsel found himself in a position to refute the statement made by Shri B. C. Saxena". FAC |
70 Shri B. C. Saxena who had appeared for the prosecution before the trial Court emphatically asserted that when the sealed packet containing Ex.2 was opened it contained four live cartridges. FAC |
Shri Saxena also asserted that during the arguments the attention of the Sessions Judge was pointedly drawn to the statement made by the Investigating Officer on which reliance has been placed by the appellants and both the parties proceeded on the footing that the cartridges were live when they were produced before th... |
All these facts have been clearly mentioned in the judgment of the High Court. Ratio |
The conduct of counsel for the appellants is fully consistent with the observations made by the Sessions Judge in his judgment that there appears to be some inadvertent mistake in recording the evidence of the Investigating Officer. Ratio |
Apart from this there is overwhelming documentary evidence to show that the statement of the Investigating Officer in Court that he found four empty cartridges is factually incorrect. Ratio |
To begin with there is exhibit Ka. 10 which is the panchayatnama or the inquest report prepared by the Investigating Officer himself which he proves in his evidence by stating as follows : "I reached the place of the occurrence at 9 a.m. Ratio |
There I found the dead body of Babu Ram near the chak road towards the north of the field of Laltu Nal lying on the ridge at a distance of about 2 3 paces. Ratio |
I had prepared the panchayatnama exhibit Ka 10". Ratio |
In this inquest report it is clearly mentioned by the Investigating Officer that he had found four live cartridges. Ratio |
The exact words used are "4 " The Investigating Officer does not say in his evidence that this finding of fact in the panchayatnama or the inquest report was incorrect. Ratio |
The statement in the inquest report was made by the Investigating Officer soon after the occurrence and was, therefore, the earliest statement regarding a fact which he found and observed. Ratio |
The earlier statement, therefore, is valuable material for testing the veracity of the witness. Ratio |
In the case of Baladin & Ors.vs State of U.P. (1) it was pointed out by this Court that statements made by the prosecution witnesses before the investigating police officer being the earliest statements made by them with reference to the facts of the occurrence are valuable material for testing the veracity of the witn... |
In this connection, this Court observed as follows "Statements made by prosecution witnesses before the investigating police officer being the earliest statements made by them with reference to the facts of the occurrence are valuable material for testing the veracity of the witnesses examined in court but the statemen... |
(1) A.I.R. 1956 S.C. 181. PRE |
71 Reliance was placed by the learned counsel for the appellants on this decision in support of his argument that the statements made in the inquest report were inadmissible in evidence being hit by section 162 Cr. ARG |
In the first place, the statement made by the Investigating Officer in exhibit Ka 10 is not a statement made by any witness before the police during investigation but it is a record of what the Investigating Officer himself observed and found. Ratio |
Such an evidence is the direct or the primary evidence in the case and is in the eye of law the best evidence. Ratio |
Unless the record is proved to be suspect and unreliable perfunctory or dishonest, there is no reason to disbelieve such a statement in the inquest report. Ratio |
Reliance was also placed by counsel for the appellants in the case of Surjan and Ors.vs State of Rajasthan(1) where ibis Court observed as follows : "But the statement in the inquest report is not evidence by itself and it certainly cannot be pitted against the evi dence of the medical witness given in Court. ARG |
" This case is clearly distinguishable from the facts and circumstances of the present case. Ratio |
What had happened in that case was that a description of an injury found on the head of the deceased as given by the Investigating Officer was inconsistent with the medical evidence. Ratio |
This Court pointed out that where a statement in the inquest report was pitted against the medical evidence it had to yield before the opinion of the expert. Ratio |
It is obvious that the description given by the Sub Inspector was merely his opinion which was not the opinion of an expert and could not, therefore, stand scrutiny before the evidence of a duly qualified expert, viz., the doctor. Ratio |
This principle cannot be applied here for it does not require an expert knowledge to find out whether a live cartridge was there or not. Ratio |
In these circumstances, therefore, the two cases cited by the appellants do not appear to be of any assistance to them. Ratio |
Reliance was further placed on a decision of this Court in the case of Ch Rizak Ram vs Ch. J. section Chouhan ( 2) & Ors. ARG |
This case has also no application to the facts of the present case because what had happened in that case was that a statement of the witness Parmeshwari was recorded by the Investigating Officer and thumb marked was being used in a election petition. Ratio |
It was held by this Court that the statement was kit by section 162, Cr. Ratio |
This proposition is well settled. Ratio |
Any statement made by any witness to a police officer during investigation is clearly hit by section 162 and can be used only for contradicting or corroborating the other witness and is not a substantive piece of evidence. Ratio |
A statement contained in exhibit Ka 10 is not a statement of a witness at all but is a memo of what the Investigating Officer had himself found and observed at the spot and to such a case section 162 would have no application at all. Ratio |
(1) A.I.R. 1956 S.C. 425. PRE |
(2) 72 Reliance was also placed on a recent decision of this Court in the case of Castano Piedade Fernandes & Anr vs Union Territory of Goa, Daman & Diu Panaji Goa(1). ARG |
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