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TMI Blog1957 (7) TMI 41X X X X Extracts X X X X X X X X Extracts X X X X ..... lose friend of the other accused, were also tried under s. 302, read with Sections 34 and 109 of the Indian Penal Code, and convicted and sentenced to imprisonment for life. Their appeals also were heard along with the appeal preferred by the appellant and by a common judgment, the High Court dismissed all the appeals and confirmed the convictions and sentences passed against all the four accused persons. This appeal concerns only Narayan Rao who has been sentenced to death by the courts below. 2. The facts of the case are short and simple. The murdered man Baga Rao, who was an excise contractor, had separated from his other brothers aforesaid, and had partitioned the family lands. There were differences amongst the brothers which had led to arbitration proceedings a few months earlier, which did not satisfy Baga Rao. On the Saturday previous to the Monday, December 26, 1955, which was the day of the occurrence, there was a quarrel between Baga Rao on one side and Lingarao and Narsingrao on the other in the field said to belong to Baga Rao. The parties reside in village Kollamaddi taluk Sircilla, district Karimnagar. At about 7 a.m., on the morning of December 26, 1955, Ba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court, rested mainly on the evidence of Dharmiah P.W. 1 and Ramchander Rao, P.W. 2, who figure as the eye-witnesses. Besides their testimony, there is the evidence of the recovery of the blood-stained garments from the houses of the accused persons and the blood-stained knife found near the dead body, and identified in court as belonging to the appellant, which were all found by the chemical examiner, to have stains of human blood. The courts below have relied upon the evidence of the eyewitnesses, corroborated by the incriminating circumstances aforesaid, and have agreed in convicting and sentencing the accused as stated above. 4. We have been taken through the evidence in this case and after having heard counsel for the appellant, we do not see any reasons to differ from the courts below in their estimate of the evidence adduced by the prosecution in support of the case against the appellant. Hence, in our opinion, there is no ground for interference with the conclusions of the courts below on the merits of the case. 5. It now remains to consider the question of law which has been seriously pressed upon us. It has been argued, as was admitted by the learned Government Advoc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , but certainly the provisions of the Evidence Act and of the Code of Criminal Procedure have not been observed. On January 10 and 11, 1956, the learned Munsiff-Magistrate recorded the full length statements of Ramchander Rao as P.W. 1, and of Dharmiah Rao, P.W. 2, under s. 164 of the Code of Criminal Procedure. Apparently, the police, apprehending that those two persons were related to three out of the four accused, took the precaution of having their statement so recorded. The police report under s. 173 of Criminal Procedure Code was made by the investigating police officer on January 11, 1956, and was placed before the Munsiff-Magistrate on January 12. It gives a very complete statement of the prosecution case and the names and full description of the witnesses to be examined in support of the prosecution case. The learned Munsiff-Magistrate appears to have examined the investigating police officer as P.W. 1, and the two eye-witnesses, Dharmiah and Ramchander Rao, as P.Ws. 2 and 3, and the medical officer as P.W. 4, on or about February 15, 1956. The record of the statement of the medical officer appears in the paper book, but the evidence of the other three witnesses does ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eded in showing that they had been prejudiced in their defence. They further observed that when the accused got the copies in the Sessions Court before the recording of the statement of the witnesses, it could not be said that the accused had been so prejudiced. The High Court finds, as a fact, that the accused got the necessary copies of the depositions of the witnesses in the Sessions Court before the statements of the prosecution witnesses were recorded by that court. The High Court also remarked that it was not denied that the copies were supplied a day earlier, but the there was nothing to show that the accused made any grievance that the time at their disposal was too short to enable them to cross-examine the prosecution witnesses, or that they prayed for an adjournment of the case in order to enable them to effectively cross-examine those witnesses. In view of these considerations, the High Court held that accused had failed to show any prejudice. 8. Before us, no attempt was made to show that the non-compliance with the provisions of Sections 173(4) and 207A(3) had caused any prejudice to the accused. The learned counsel for the appellant sought to argue that the o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ommencement of the inquiry, the Magistrate shall, when the accused appears or is brought before him, satisfy himself that the documents referred to in section 173 have been furnished to the accused and if he finds that the accused has not been furnished with such documents or any of them, he shall cause the same to be so furnished. (4) The Magistrate shall then proceed to take the evidence of such persons, if any, as may be produced by the prosecution as witnesses to the actual commission of the offence alleged; and if the Magistrate is of opinion that it is necessary in the interests of justice to take the evidence of any one or more of the other witnesses for the prosecution, he may take such evidence also. 10. It will thus appear that in cases exclusively triable by a court of Session, it is the duty of the magistrate, while holding a preliminary inquiry, to satisfy himself that the documents referred in s. 173 have been furnished to the accused and if he found that the police officer concerned had not carried out his duty in that behalf, the magistrate should see to it that that is done. After the accused have been furnished with the necessary documents, it is now req ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3) of s. 207A is not mandatory but only directory, because an omission by a police officer, to fully comply with the provisions of s. 173, should not be allowed to have such a far-reaching effect as to render the proceedings including the trial before the court of Session wholly ineffective. Instead of simplifying the procedure, as was intended by the amending Act, as indicated above, the result contended for on behalf of the appellant, will, necessarily, result in re-opening the proceedings and trials which may have been concluded long ago. Such a result will be neither conducive to expeditious justice nor in the interest of accused person themselves. Certainly, if it is shown, in a particular case, on behalf of the accused persons that the omission on the part of police officers concerned or of the magistrate before whom the committal proceedings had pended, has caused prejudice to the accused, in the interest of justice, the court may re-open the proceedings by insisting upon full compliance with the provisions of the Code. In our opinion, the omission complained of in the instant case should not have a more far-reaching effect than the omission to carry out the provisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rrence. Their statements were recorded by the police in some detail in the inquest report itself on the very day of the occurrence. There was not much scope for variations in their statements during police investigation and those before the court. It was a simple case of either believing or disbelieving those two eye-witnesses. As already indicated, all the four accused persons including the appellant were named at the earliest opportunity in the first information report which was lodged without any avoidable delay within a few hours after the occurrence. Both the courts below have preferred to rely upon the testimony of the two eyewitnesses, corroborated by the circumstantial evidence referred to above. They have rejected the defence suggestions supported as they are by the two defence witnesses, one of whom is a common ancestor of three of the four accused persons. It has not been argued, and there is no scope for the argument, that the accused persons have been prejudiced in any way in their defence. They had to meet a straightforward case which they failed to do. 12. After carefully considering the arguments advanced on behalf of the appellant, we have come to the conc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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