Tara Singh Vs. The State  INSC
39 (1 June 1951)
BOSE, VIVIAN FAZAL ALI, SAIYID SASTRI, M.
PATANJALI DAS, SUDHI RANJAN
CITATION: 1951 AIR 441 1951 SCR 729
CITATOR INFO :
D 1952 SC 214 (19,24) F 1953 SC 76 (8,9) D
1954 SC 692 (2) RF 1956 SC 536 (8) R 1957 SC 740 (14) D 1968 SC1313 (5) RF 1979
SC1791 (19) R 1980 SC 628 (10,11)
Criminal Procedure Code (V of 1898), ss. 173
(1), 190 (1)(b), 340 (1), 342, 288--Evidence Act (I of 1872), s. 145--Filing of
second challan--Whether vitiates first report--Examination of
accused--Importance of--Statements made in Committal Court--When admissible.
Where the report made by a police officer to
the Magistrate complies with the requirements of s. 173 (1) of the Criminal Procedure
Code the Magistrate can take cognisance of the case 730 under s. 190 (1) (b) of
the Code. The fact that a second challan was put in later would not necessarily
vitiate the first and invalidate the proceedings taken before the second
challan was submitted.
The right conferred by s. 340 (1) of the
Criminal Procedure Code does not extend to a right in an accused person to be
provided with a lawyer by the State or by the Police or by the Magistrate. That
is a privilege given to him and it is his duty to ask for a lawyer if he wants
to engage one, or to engage one himself, or get his relations to engage one for
him. The only duty cast on the Magistrate is to afford him the necessary
An accused should be properly examined under
s. 342 of the Code and, if a point in the evidence is considered important
against the accused and the conviction is intended to be based upon it, then it
is right and proper that the accused should be questioned about the matter and
be given an opportunity of explaining it if he so desires. This is an important
and salutary provision and should not be slurred over.
It is not a proper compliance of s. 342 to
read out a long string of questions and answers made in the Committee Court and
ask ,the accused whether the statement is correct.
A question of that kind is misleading. In the
next place, it is not sufficient compliance to string together a long series of
facts and ask the accused what he has to say about them. He must be questioned
separately about each material circumstance which is intended to be used
Dwarkanath v. Emperor (A.I.R. 1933 P.C. 124)
In view of the words "subject to the
provisions of the Indian Evidence Act" which occur in s. 288 of the
Criminal Procedure Code, the evidence given by a witness in the Committal Court
cannot be used as substantive evidence in the Sessions Court unless the witness
is confronted with those parts of his evidence which are to be used for the
purpose of contradicting him, even though, if the only object of the
prosecution is to discredit the evidence given in the Sessions Court by
cross-examining him with reference to previous statements made in the Committal
Court, it is not necessary to do so.
CRIMINAL APPELLATE JURISDICTION. Criminal
Appeal No. 14 of 1951. Appeal against the Judgment and Order dated the 6th
June, 1950, of the High Court of Judicature for the State of Punjab at Simla in
Criminal Appeal No. 75 of 1950.
Hardayal Hardy for the appellant.
S.L. Chibber for the respondent.
731 1951. June 1. The following Judgments
Bose J.--This is an appeal under article 136
(1) of, the Constitution. The appellant, Tara Singh, was convicted of murder by
the Additional Sessions Judge of Amritsar and sentenced to death. On appeal the
High Court upheld the conviction and confirmed the sentence. Tara Singh has
made a further appeal to this Court.
As we intend to order a retrial, it will not
be desirable to say anything about the merits of the case. The case for the
prosecution is that two persons, Milkha Singh and Hakam Singh, were murdered in
the early hours of the morning of Friday, the 30th of September, 1949. The
former is the appellant's uncle. He died on the spot. The latter is the
appellant's father. He was removed to the hospital and died there on Friday,
the 7th of October, 1949.
The murders are said to have been committed
about three in the morning. The appellant's brother Narindar Singh reported the
occurrence at the Police Station, about 7 miles distant, at 8.45 the same morning.
According to this report, Narindar was present and he named the appellant as
The prosecution alleges that there were three
eyewitnesses to the assault on the father Hakam Singh, namely the appellant's
brother Narindar Singh, his mother Bibi Santi and his sister Bibi Jito, aged
14. They are said to have arrived on the scene while the appellant was still
attacking the father with a kripan. The prosecution version is that these three
persons saw the uncle Milkha Singh lying dead on the scene of the occurrence
with injuries on his person, and it is said that the appellant admitted to them
that he had killed the uncle.
The appellant is also said to have made an
extrajudicial confession to three persons, Ujagar Singh (P.W. 8), Fauja Singh
(P.W. 9) and Gurbakhsh Singh (P.W. 10). The prosecution also adduced evidence
about three dying declarations made by, the father Hakam Singh in each of which
he implicated the appellant.
732 Two of these were made to the police and
the third was recorded by a Magistrate on the 1st of October.
The appellant was arrested between 4 and 5
p.m. on Friday, 30th September, the day of the occurrence, and was produced
before a Magistrate on the 1st October. The police asked for a remand to police
custody till the 2nd as their enquiry was not complete. This was granted and
the appellant was produced before another Magistrate on the 3rd.
When the appellant was produced on the and
October, the police handed over to the Magistrate what they called an
incomplete challan dated the 2nd October, 1949, and also produced certain
prosecution witnesses. It is not clear whether these witnesses were named in
the challan of that date or not, but that is a matter which can be cleared up
in the course of the retrial which we intend to order. Among the witnesses so
produced were three who are said to have witnessed the occurrence. They were
the appellant's brother Narindar, his mother Bibi Santi and his sister Bibi
The Magistrate examined them straightaway and
recorded their evidence.
The appellant was not at the time represented
On the 5th of October, the police put in what
they called a complete challan and on the 19th they put in a supplementary
challan. The Magistrate committed the appellant for trial on the 12th of
The first objection taken to the trial is
that the Magistrate had no power to take cognizance of the case on the 3rd
October. Accordingly, the depositions of the three so-called eye-witnesses
which he recorded on the and cannot be received in evidence, and if they are
excluded, then, for reasons which I shall set out hereafter, the whole case
against the appellant collapses because, according to the learned counsel,
there is no other evidence on which the conviction can properly be based.
This part of the argument is based on section
190, Criminal Procedure Code. It is contended that cogni733 zance of an offence
can only be taken in one of ways set out in that section. We are concerned here
with the method set out in clause (b)of sub-section (1), namely "upon a
report in writing of such facts made by any police officer." It is
contended that the police are not permitted to send in an incomplete report
because of the provisions of section 173 (1) which runs as follows :-"Every
investigation under this Chapter shall be completed without unnecessary delay,
and as soon as it is completed, the officer in charge of the police station
shall-(a) forward to a Magistrate empowered to take cognizance of offence on a
police report, a report the in the form prescribed etc ...... " I need not
express any opinion about this because, in my opinion, the challan which the
police referred to as an incomplete challan, namely, the one of 2nd October,
1949, was in fact a complete report within the meaning of section 193(1) (b),
Criminal Procedure Code, read with section 173(1).
When the police drew up their challan of the
2nd October, 1949, and submitted it to the court on the 3rd, they had in fact
completed their investigation except for the report of the Imperial Serologist
and the drawing of a sketch map of the occurrence. It is always permissible for
the Magistrate to take additional evidence not set out in the challan.
Therefore, the mere fact that a second challan was put in on the 5th October
would not necessarily vitiate the first. All that section 173(1) (a) requires
is that as soon as the police investigation under Chapter XIV of the Code is
complete, there should be forwarded to the Magistrate a report in the
prescribed form "setting forth the names of the parties, the nature of the
information and the names of the persons who appear to be acquainted with the
circumstances of the case." All that appears to have been done in the
report of the 2nd October which the police called their in comeplete challan.
The witnesses named in the Second 734 challan of the 5th October were not
witnesses who were -acquainted with the circumstances of the case." They
were merely formal witnesses on other matters. So also in the supplementary
challan of the 19th. The witnesses named are the 1st Class Magistrate,
Amritsar, who recorded the dying declaration, and the Assistant Civil Surgeon.
They are not witnesses who were acquainted with the circumstances of the
case." Accordingly, the challan which the police called an incomplete
challan was, in fact a completed report of the kind which section 173 (1) (a)
of the Code contemplates. There is no force in this argument. and we hold that
the Magistrate took proper cognisance of the matter.
The next point urged was that when the
Magistrate recorded the evidence of the three eye-witnesses, he did not afford
the appellant an opportunity of being represented by counsel though he is given
that right by section 340 (1) of the Criminal Procedure Code. There might have
been force in this contention because the peculiar circumstances of this case,
had it not been for the fact that the inquiry continued after the date on which
the three eye-witnesses were examined and the appellant made no complaint about
this. He did not at any of the subsequent proceedings before the Committing
Magistrate ask for permission to engage a counsel or indicate in any way that
he desired to be represented by one.
I have referred to the peculiar circumstances
of this case. I say that because this is a case in which the accused is said to
have killed his father and his uncle. As far as I can gather from the record,
his only relatives are his brother Narindar, his mother Bibi Santi and his
sister Bibi Jito. Ordinarily, when a man is arrested for murder and is
proceeded against and he wants to be represented, his relatives come to his
rescue and engage counsel for him, but in a case like this, if the prosecution
story is true, the only relatives the man has would not help him because, in their
eyes, he was a parricide and they, being filled with indignation against him,
took all steps they could to bring 735 him to justice. On the other hand, if
the present story of the appellant is correct and the witnesses were
intimidated by the police, equally they would take no steps to assist the
appellant. Either way, the appellant would, in the peculiar circumstances of
the case, be helpless from that point of view. Therefore, had it not been for
the fact that there were subsequent proceedings in which the appellant could
have raised this objection had there been any substance in it, we might have
considered the argument with more favour. But the appellant's subsequent
conduct indicates that he had no intention of engaging counsel and made no
grievance of the fact. I need hardly say that. the right conferred by section
340 (1) does not extend to a right in an accused person to be provided with a
lawyer by the State or by the police or by the Magistrate. That is a privilege
given to him and it is his duty to ask for a lawyer if he wants to engage one
and to engage one himself or get his relations to engage one for him. The only
duty cast on the Magistrate is to afford him the necessary opportunity.
There is no force in this contention either.
The next point taken regarding the committal
stage of the case is that the Committing Magistrate did not examine the
appellant properly under sections 209 and 342 of the Criminal Procedure Code.
Section 342 (1) states that "for the purpose of enabling the accused to
explain any circumstances appearing in the evidence against him, the Court may
etc..." And sub-section (3) states that "the answers given by the
accused may be taken into consideration in such inquiry or trial."
Further, section 287 requires that "the examination of the accused duly
recorded by or before the Committing Magistrate shall be tendered by the
prosecutor and read as evidence." (This refers to the sessions trial).
It is important therefore that an accused
should be properly examined under section 342 and, as their Lordships of the
Privy Council indicated in Dwarkanath v. Emperor (1) if a. point in the
evidence is (1) A.I.R. 1933 P.C. 124 at 130.
736 considered important against the accused
and the conviction is intended to be based upon it, then it is right and proper
that the accused should be questioned about the matter and be given an
opportunity of explaining it if he so desires.
This is an important and salutary provision
and I cannot permit it to be slurred over. I regret to find that in many cases
scant attention is paid to it, particularly in Sessions Courts. But whether the
matter arises in the Sessions Court or in that of the Committing Magistrate, it
is important that the provisions of section 342 should be fairly and faithfully
So far as the committal proceedings in this
case are concerned, the examination was on the whole fair and full for the
purposes of a Committal Court though I feel the form of the questions put could
have been a little different. As they stand, the questions read more like
cross-examination than an examination under section 208 (2). I refer, for
example, to the first question which reads as follows: issueless ''Was Milkha
Singh deceased your uncle issueless and wanted to gift away his land to the
Gurdwara Baba Bakala, which fact you resented ?" and to the second
question which reads-"Did you also resent your father mortgaging his land
?" The proper form in these two cases would have been to.
tell the accused who suggested that he
resented the fact that his uncle who was issueless wanted to gift away his
land, and, in the second question, who said that he resented his father
mortgaging his land, and then, after having told him that, to ask him after
each question whether he wanted to say anything about the matter. However, the
point is trivial in this case because the questions put are based on the
evidence of witnesses before the Committing Magistrate and the questioning was
sufficient for the Committing Magistrate's purposes. All that he. had to
consider was whether under section 209 (1) there were sufficient grounds for
committing the appellant for trial and not 737 whether, on an appreciation of
the whole evidence and other material in the case, including witnesses for the
defence, the charge against him was proved. I am of opinion that despite some
shortcomings the committal was good.
I turn next to the proceedings in the
Sessions Court, There are two grave defects there which, in my opinion, vitiate
the trial. The first is that the examination of the appellant was not in
accordance with the provisions of section 342. The second is that when the
depositions of some of the witnesses examined before the Committing Magistrate
were brought on record in the Sessions Court under section 288, the witnesses
who made the statements were not confronted with their previous statements as
required by section 145 of the Evidence Act.
Dealing first with the examination of the
appellant by the Sessions Judge, all he did was to read over the examination of
the accused in the Committal Court and then record the following statements and
answers:-"Q. Did you make the statement on 9th November, 1949, as read out
to you, and is it correct ? A. Yes.
Q. Have you anything else to say ? A. No. I
am innocent and the statement of the witnesses in the Court of the Committing
Magistrate were recorded without any notice to me. I could not, therefore,
engage any counsel.
Q. Do you wish to produce any defence ? A.
No." Section 342 requires the accused to be examined for the purpose of
enabling him "to explain any circumstances appearing in the evidene
against him." Now it is evident that when the Sessions Court is required
to make the examination under this section, the evidence referred to is the
evidence in the Sessions Court and the circumstances which appear against the
accused in that Court. It is not therefore enough to 738 read over the
questions and answers put in the Committing Magistrate's Court and ask the
accused whether he has anything to say about them. In the present case, there
was not even that. The appellant was not asked to explain the circumstances
appearing in the evidence against him but was asked whether the statements made
before the Committing Magistrate and his answers given there were correctly recorded.
That does not comply with the requirements of the section. There is also more
than that in this case. The evidence recorded in the Committal Magistrate's
Court is not as full and as complete as the evidence recorded in the trial before
the Sessions Judge. Accordingly, it often happens that evidence is given in the
Sessions Court and facts are disclosed which do not appear on the record of the
Committing Magistrate. If the Judge intends to use these against the accused,
it is clearly not enough to question him about matters which occurred in the
Committal Court, for material of this kind will not be found in the committal
record in these circumstances. That has happened here.
The Sessions Judge relied on the following
circumstances. First of all, he characterised as a "most significant piece
of evidence" the fact that the three eyewitnesses had admitted before him
that the appellant was present in the Deohri before they went to the scene of
the occurrence on hearing the victims' cries and that these witnesses did not
suggest that there was anybody else who was responsible for the injuries to the
deceased. Now, this was evidence which was recorded exclusively in the Sessions
Court. The eye witnesses before the Sessions Judge had resiled from the
previous statements which they made in the committal proceedings. Accordingly,
a questioning by the Committing Magistrate would not and could not cover the
point made here and, naturally, the Magistrate has not questioned the appellant
about that circumstance.
As the three eye witnesses had resiled from
their statements made in the committal proceedings, the Sessions Judge brought
their depositions on record 739 under section 288, Criminal Procedure Code. He
next relied on the evidence of these witnesses as recorded in the Court of the
Committing Magistrate. One point he used against them was the evidence of
motive which these witnesses supplied in the committal proceedings. The
appellant was not told what that evidence was nor was he asked to explain it.
He was questioned about this motive in the
committal proceedings by the Committing Magistrate, but even there he was not
told who had given the evidence, and the material on which the Committing
Magistrate relied to establish the presence of motive was not disclosed.
The Sessions Judge also relied on the fact
that the appellant had confessed to the three eye witnesses that he had killed
his uncle and injured his father. There is not a single question regarding that
either in the 'Committing Magistrate's Court or in the Sessions Court.
Another ground on which the Sessions Judge
proceeded was the extra-judicial confessions made by the appellant to Ujagar
Singh, Fauja Singh and Gurbakhsh Singh. The appellant was questioned about an
extra judicial confession by the Committing Magistrate but not about one made
to these three persons. What the Committing Magistrate asked was :__ "Did
you confess on 30th September, 1949, at Timmowal before Ujagar Singh, Mangal
Singh P. Ws. etc., that you had killed Milkha Singh and caused injuries to your
father ?" It will be seen that Fauja Singh and Gurbakhsh Singh were not
mentioned at all, and yet the Sessions Judge considered them "respectables
of the village" and said that they were independent witnesses. If the
appellant had been asked about them, he might have been able to show that they
were not disinterested and that they had some motive for implicating him
falsely, or that they were not there.
Next, the Sessions Judge considered that
"the most important piece of evidence damaging to the accused" was
the dying declaration of Hakam Singh recorded 740 by the Magistrate, P.W. 5.
Neither the Sessions Judge nor the Committing Magistrate questioned the
appellant about that. The Sessions Judge also relied on the two statements of
Hakam Singh made before the police, one of which the police recorded as his
dying declaration. Again, not one word was put to the appellant about this.
Now, section 342(2) requires that the answers
given by the accused may be taken into consideration. If the accused had been
properly questioned and had given reasonable explanations and the Sessions
Judge had omitted to take them into consideration, it is obvious that that
would have constituted a grave defect in his judgment. How much graver is the
defect when the accused is not questioned at all and is not given an
opportunity of explaining the circumstances which are intended to be used
against him. The unfairness of the Sessions Judge's conclusions can be gathered
from the fact that he (the Sessions Judge) considered the evidence of the eye
witnesses before him (as distinct from the depositions brought on record under
section 288) material and then, not having asked the appellant for any
explanation, he said :-"The accused himself has not rendered any
explanation as to at whose hands the two deceased had met their death."
This is precisely what the Privy Council commented on in Dwarkanath
v..EmPeror.(1) where the High Court having relied on a piece of evidence which it
considered vital went on to say that the accused had not explained it. Their
Lordships remarked that that "deprives of any force the suggestion that
the doctor's omission to explain what he was never asked to explain supplies
evidence on which the jury should infer etc." The High Court has fallen
into the same error and has based its decision on material which the appellant
was not asked to explain. For example, the learned Judges rely on the evidence
of the three eye (1) A.I.R. 1933 P.C. 184 at 135.
741 witnesses before the Committing
Magistrate. They also rely on the fact that Narindar's evidence in the
Committing Magistrate's Court is corroborated by the First Information which he
gave to the police. The appellant was not questioned about these matters either
in the Sessions Court or by the Committing Magistrate. The High Court also
relies on the evidence of the three witnesses who speak about the
extra-judicial confession and the learned Judges state that these witnesses
"are not suggested to be in any way unfriendly to the appellant and they
seem to be persons of respectability." Here, again, if the appellant was
not asked whether these witnesses were unfriendly or not, it is not fair to use
the absence of such a suggestion as something which tells against the
appellant. It is true the accused can cross-examine as to comity but he is not
confined to that. It may be that in a given case cross-examination would be
futile, for it would only elicit a denial, whereas a statement made by the
accused which the Code directs should be used as evidence, for or against him,
might be of great value. In any event, the Code directs that the accused shall
be afforded these opportunities and an omission to do so vitiates the trial if
prejudice occurs or is likely to occur.
The High Court also bases its conclusion on
the circumstantial evidence arising from the production of the Kripan and the
recovery of the shirt from the appellant. Those articles are said to be stained
with human blood. The appellant was not asked to give any explanation about
The Serologist's report had not been received
when the appellant was questioned by the Committing Magistrate.
Therefore, he could not be asked to explain
the presence of human blood stains on the Kripan. All he was asked was whether
the blood-stained Kripan was recovered at his instance. That is not enough. He
should also have been asked whether he could explain the presence of blood
stains on it.
The two are not the same. Then, in the
Sessions Court there was the additional evidence of the Imperial Serologist
showing that the Kripan had 742 stains of human blood on it. That was an
additional and very vital piece of evidence which the appellant should have
been afforded an opportunity of explaining I cannot stress too strongly the
importance of Observing faithfully and fairly the provisions of section 342,
Criminal Procedure Code. It is not a proper compliance to read out a long
string of questions and answers made in the Committal Court and ask whether the
statement is correct. A question of that kind is misleading. It may mean either
that the questioner wants to know whether the recording is correct, or whether
the answers given are true, or whether there is some mistake or
misunderstanding despite the accurate recording. In the next place, it is not
sufficient compliance to string together a long series of facts and ask the
accused what he has to say about them. He must be questioned separately about
each material circumstance which is intended to be used against him. The whole
object of the section is to afford the accused a fair and proper opportunity of
explaining circumstances which appear against him.
The questioning must therefore be fair and
must be couched in a form which an ignorant or illiterate person will be able
to appreciate and understand. Even when an accused person is not illiterate,
his mind is apt to be perturbed when he is facing a charge of murder. He is
therefore in no fit position to understand the significance of a complex
question. Fairness therefore requires that each material circumstance should be
put simply and separately in a way that an illiterate mind, or one which is
perturbed or confused, can readily appreciate and understand. I do not suggest
that every error or omission in this behalf would necessarily vitiate a trial
because I am of opinion that errors of this type fall within the category of
Curable irregularities. Therefore, the question in each case depends upon the
degree of the error and upon whether prejudice has been occasioned or is likely
to have been occasioned. In my opinion, the disregard of the provisions of
section 342, Criminal Procedure Code, is so 743 gross in this case that I feel
there is grave likelihood of prejudice.
But this is not the only error. Two of the
three eye witnesses whose depositions before the Committing Magistrate were
brought on the sessions record under section 288 were not confronted with their
former statements in the manner required by section 145, Evidence Act. All that
happened is that they were asked something about their previous statements and
they replied that they were made under coercion.
Now, section 145 of the Evidence Act states
that :-"A witness may be cross-examined as to previous statements made by
him in writing or reduced into writing, and relevant to matters in question,
(without such writing being shown to him) or being proved ..... " This is
all that seems to have occurred in the eases of Bibi Santi (P.W. 8) and Bibi
Jito (P.W. 7). But the section goes on :-"but, if it is intended to
contradict him by the writing, his attention must, before the writing can be
proved, be called to those parts of it which are to be used for the purpose of
contradicting him." Now, it is evident that one of the main purposes of
using the previous statements was to contradict and. displace the evidence
given before the Sessions Court because until that evidence was contradicted
and displaced, there was no room in this case for permitting the previous statements
to be brought on record and used under section 288.
Therefore, as these statements were not put
to these witnesses and as their attention was not drawn to them in the manner
required by section 145, Evidence Act, they were not admissible in evidence.
The observations of the Privy Council in Bal Gangadhar Tilak v. Shriniwas
Pandit(1) are relevant here.
In the ease of Narindar Singh, his previous
statement does seem to have been put to him in the proper (1) 42 I.A. 135 at
744 way. The particular portions on which the
prosecution desired to contradict him were read out and he was afforded an
opportunity of explaining them. So, the inadmissibility extends only to the
other two witnesses.
There is some difference of opinion regarding
this matter in the High Courts. Section 288 provides that the evidence recorded
by the Committing Magistrate in the presence of the accused may, in the
circumstances set out in the section, "be treated as evidence in the case
for all purposes subject to the provisions of the Indian Evidence Act, 1872.."
One line of reasoning is that section 145, Evidence Act, is not attracted
because that section relates to previous statements in writing which are to be
used for the purpose of contradiction alone. Statements of that kind do not
become substantive evidence and though the evidence given in the trial can be
destroyed by a contradiction of that kind, the previous statements cannot be
used as substantive evidence and no decision can be grounded on them.
But under section 288, Criminal Procedure
Code, the previous statement becomes evidence for all purposes and can form the
basis of a conviction. Therefore, according to this line of reasoning, section
145 of the Evidence Act is not attracted.
Judges who hold that view consider that the
provisions of the Evidence Act referred to are those relating to hearsay and
matters of that kind which touch substantive evidence.
The other line of reasoning is that section
288 makes no exception of any provision in the Evidence Act and therefore
section 145 cannot be excluded. As that section is one of the provisions of the
Act, the statements are subject to its provisions as well. All that section 288
does is to import into the law of evidence something which is not to be found
in the Evidence Act, namely, to make a statement of this kind substantive
evidence, but only when all the provisions of the Evidence Act have been duly
In my opinion, the second line of reasoning
is to be preferred. I see no reason why section 145 of the 745 Evidence Act
should be excluded when section 288 states that the previous statements are to
be "subject to the provisions of the Indian Evidence Act." Section
145 falls fairly and squarely within the plain meaning of these words. More
than that. This is a fair and proper provision and is in accord with the sense
of fair play to which Courts are accustomed.
Even the learned Judges who take the first
view consider for the most part that though it is not obligatory to confront a
witness with his former statement when section 288 is resorted to, it is always
desirable that that should be done if only for the reason that an omission to
do so weakens the value of the testimony. I am of opinion that the matter is
deeper than that, and, giving effect to the plain meaning of the words
"subject to the provisions of the Indian Evidence Act" as
they stand, I hold that the evidence in the Committal Court cannot be used in
the Sessions Court unless the witness is confronted with his previous statement
as required by section 145 of the Evidence Act. Of course, the witness can be
cross-examined about the previous statement and that cross-examination can be
used to destroy his testimony in the Sessions Court. If that serves the purpose
of the prosecution, then nothing more is required, but if the prosecution
wishes to go further and use the previous testimony to the contrary as
substantive evidence, then it must, in my opinion, confront the witness with
those parts of it which are to be used for the purpose of contradicting him.
Then only can the matter be brought in as
substantive evidence under section 288. As two of the eye witnesses were not
confronted in the manner required by section 145, their statements will have to
be ruled out, and if that is done, the material on which the conviction is
based is considerably weakened.
I have considered anxiously whether this is a
case in which we should direct a retrial de novo or whether the retrial should
be from the stage at which the irregularity occurred or whether we should
refuse to allow a retrial and acquit the appellant. Having given my anxious
thought to this matter, I am of opinion that 746 there should be a retrial de novo
in the Sessions Court either by the same or by some. other Sessions Judge. I
consider it inexpedient to say more than this, lest I prejudice the issue one
way or the other.
The conviction and sentence are set aside and
the case is sent back to the High Court with a direction that that Court will
order a retrial de novo in the Sessions Court, treating the committal as good.
FAZL AI.I J.--I agree and have nothing to
PATANJALI SASTRI J.--I agree and have nothing
further to add.
DAs J. --I agree to the order proposed by my
learned brother Bose.
Agent for the appellant: Ganpat Rai.
Agent for the respondent: P.A. Mehta.