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TMI Blog1951 (6) TMI 8X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 assailant. The prosecution alleges that there were three eye witnesses 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. Two of these were made to the police and the third was recorded by a Magistrate on the 1st of October. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d, 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 Committ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter 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 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 req ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efore 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 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 Magist ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rness 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.( A.I.R. 1933 P.C. 184) 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 at 135. witnesses before the Committing Magistrate. They also rely on the fact that Narindar's evide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... swers 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 add. PATANJALI SASTRI J.--I agree and have nothing further to add. DAs J. --I agree to the order proposed ..... X X X X Extracts X X X X X X X X Extracts X X X X
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