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TMI Blog1950 (10) TMI 26X X X X Extracts X X X X X X X X Extracts X X X X ..... nominated by Achaibar Singh. Accordingly Harbans Singh nominated four Panches one of whom was Uma Shankar while Achaibar Singh nominated Nankoo Singh deceased. There is a Gram Sudhar and Panchayat in the village of which Param Sukh Lal was the Vice-President and P. W. Mohammad Akil the Secretary. Nankoo Singh had previously been a member of the Panchayat but was not a member at the time when the occurrence took place. He was, however, a very peace-loving educated man who would try to settle all differences between the villagers. He was respected for this by the whole village. The five Panchas met on 26-11-1948, to settle the disputes between Harbans Singh and Achaibar Singh but did not succeed; on the other hand, there is evidence that some hot words were exchanged between Nankoo Singh and two of the nominees of Harbans Singh. On the next day Harbans Singh and others cut away Achaibar Singh's paddy crop after beating him. Achaibar Singh lodged a complaint against them on 1-12-1948 citing Batuk Singh, Tilak Singh, Laldhari Singh and Mohammad Akil and four others as his witnesses. Out of those only Tilak Singh and three of the others were actually examined as prosecution witness ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Singh and Sheikh Nazir Hasan. Batuk Singh was at that moment returning to his house from a pond after answering the call of nature while Sheikh Nazir Hasan was returning home after collecting arus leaves from a place behind the house of Harbans Singh. Both were witnesses of the instigation by two of the appellants and the stabbing by the third. Batuk Singh shouted as soon as he saw the stabbing and there was uproar also, hearing which Ram Iqbal (younger brother of Nankoo Singh), Lal Dhari Singh (their uncle), Jhuro Singh, Tilak Singh and Mohammad Akil arrived there. Nankoo Singh said to them that he had been stabbed by Ram Bali Singh on being instigated by Harbans Singh and Param Sukh Lal. Achaibar Singh also arrived there and suggested that Nankoo Singh should be taken to the police station which is less than a mile by foot path and a report be lodged there. But Nankoo Singh who was in great pain said that he should be taken at once to the hospital in village Pindra which is about two miles from the village. So he was carried on a cot by Lal Dhari Singh and others to the hospital where they arrived at about 8-30 P. m. Dr. Paul, the Medical Officer at the hospital, cleaned and dres ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... layed by Nankoo Singh as his nominee in the Panchayat. 7. The names of Katwaroo, Batuk Singh, and Sheikh Nazir Hasan are mentioned in the report lodged by Lal Dhari Singh. There was no suspicious delay in the lodging of the report; it was quite natural for Lal Dhari Singh and Ram Iqbal Singh to carry Nankoo Singh first to the hospital where his wound could be attended to and then think of going to the police station to lodge a report. There is absolutely nothing suspicious in Lal Dhari Singh's getting the report scribed by Tulshi even if he himself was literate. In the report it was written at first that the occurrence took place at 5 P. M. but the figure '5' was altered to the figure '7' in different ink. The evidence of Lal Dhari Singh and Tulshi is that the correction was done at the hospital when the report was read over to Lal Dhari Singh but this does not appear to be a fact. Had the correction been made there and then it would have been in the same ink. On the other hand, the correction seems to have been made at the police station. I do not know what advantage the prosecution would have got by shifting the time of occurrence from 5 P. M. to 7 P. M. It i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it contradictory evidence on such points would of necessity lead to inextricable confusion, by raising an almost endless series of collateral issues." 8. A case exactly similar to the present case is Piddington v. Bennett & Wood Proprietary Ltd., 63 C. l. r. 533. A person claiming to be an eye-witness of an accident explained that he happened to be at the spot because he was carrying a message from a bank to J. The opposite party attempted to produce evidence to prove that J had not operated upon his account with the bank on that day and that consequently the witness was lying when he said that he was carrying a message to J. The High Court of Australia ruled out the evidence as inadmissible. It laid down that if a question in cross-examination affects only the credit of the witness and is not relevant to the matters actually in issue, the witness's answer cannot be contradicted by other evidence except in certain exceptional cases. 9. Uma Shankar, who was admittedly present at the spot, was not examined by the prosecution and it was argued that the effect of not examining him would be to raise the presumption that if he had been examined his evidence would have gone aga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsiderations of number and of reliability, or that a prosecution ought to discharge the functions both of prosecution and defence. It is dots so confusion is very apt to result, and never is it more likely to result than if the prosecution calls witnesses and then proceeds almost automatically to discredit them by cross-examination. Witnesses essential to the unfolding of tie narrative on which the prosecution is based, must of course, be called by the prosecution, whether in the result the effect of their testimony is for or against the case for the prosecution." Uma Shankar was not essential to the unfolding of the narrative on which the prosecution was based; that has been done by other witnesses. That the prosecution is not bound to put forward all witnesses named in the information report is settled since their Lordships' decision in Adel Muhammad v. Attorney-General, 1944 ALL. 466. "The prosecutor has a discretion as to what witnesses should be called for the prosecution, and the Court will not interfere with the exercise of that discretion, unless perhaps, it can be shown that the prosecutor has been influenced by some oblique motive." (ibid, p. 469, p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed. I am not prepared to say that they would give false evidence without any hesitation at the instance of the prosecution. Nothing could be said against Katwaroo except that his uncle Mata Prasad also was a witness of Achhaibar Singh in that complaint. The relationship between Batuk Singh and Tilak Singh is immaterial. The relationship between a witness and the party examining him may show that the former is not an independent or impartial witness, but the relationship between two witnesses examined by a party does not lead to any inference that they are interested in the party. On 15-1-1948 Param Sukh made a report of an offence under Sections 323 and 506 against Tilak Singh and Jhuro; these witnesses might have given evidence against him on account of it, but there is no certainty that they have given false evidence on account of it. The evidence given by the prosecution witnesses is quite consistent and probable. Nobody had touched the cloth that Ram Bali Singh had wrapped round him and since it was black and it was night, there is no wonder that some described it as a blanket and Sheikh Nazir Hasan, as a chaddar. There is a mystery about an abrasion found on the band of Marjad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hey are the cases where what is actually stated is irreconcilable with what is omitted and impliedly negatives its existence. If the statement under Section 162 can be reconciled with the deposition in Court and can stand with it, there is absolutely no conflict. If a witness stated under Section 162 that A was attached by X and makes no reference to Y at all but in the Court deposes that A was attacked by X and Y, it is possible to argue that his statement under Section 162 amounts to this that A was attacked by X alone and that Y did not take part in the attack and thus contradicts the deposition in Court. It depends upon whether the witness intended to name all the assailants of A in his statement or not. If a witness states under Section 162 that an incident was witnessed by S, T, W, X and Y and deposes in the Court that it was witnessed by S, T, W, X, Y and Z, there may be or may not be any conflict between the two. If his list of the eye-witnesses under Section 162 was intended to be exhaustive, it may amount to his denying that Z also was an eye-witness and thus contradict his deposition in Court. But if it was not intended to be exhaustive, then it cannot be said that his s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... positive or negative. To 'contradict' means to 'speak against' or in one word to gainsay. It is absurd to say that you can contradict by keeping silent." I would not go as far as Burns J. to say that an omission can never be a contradiction but I certainly agree with him that it is not synonymous with contradiction and that generally it does not amount to contradiction. 16. Closely connected with this question when does an omission amount to a contradiction, is the question of the proper way of using a statement made under Section 162 for the purpose of contradiction. The section itself does not lay down the manner in which the statement can be used for contradiction. Under Section 145, Evidence Act, a witness may be contradicted by a previous statement made by him and reduced to writing but before the statement is proved, the witness's attention must have been drawn to it. When under Section 162 a statement can be used only for the purpose of contradicting the witness when in the witness-box, it means that out of the whole statement made by him under Section 162, only the particular assertion, which contradicts his deposition in Court can be used. The p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion or spoken that sentence, the assertion or sentence is proved also and nothing further remains to be done; if he denies or does not remember having made the assertion or spoken the sentence, the station officer will have to be called to prove that he made or spoke it. This will be done by asking him whether the witness made the assertion or spoke the sentence bearing exhibit number so and so. This is the right way of proceeding to contradict a witness. I have dealt with this matter at length because many Ses. Judges do not know when an omission is a contradiction and allow lot of public time to be wasted in long cross-examination about omissions, and do not know the right way of confronting a witness by his previous statement and of getting it proved by Sub-Inspector. It is quite wrong for a Sessions Judge to make a note, when a witness denies or does not remember having made a certain statement before the Sub-Inspector, that such a statement exists or does not exist. There was no dispute about Nanku Singh's being stabbed in the abdomen yet there was unnecessary cross-examination of Laldhari Singh about his not stating in the report that the stabbing was done in the abdomen. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or the elucidation of the facts of a case and all reasonable latitude should be allowed but the Judge has always a discretion as to how far it may go or how long it may continue. A fair and reasonable exercise of his discretion by the Judge will not generally be questioned by an Appellate Court." His Lordship also referred to the above-quoted observation of the Lord Chancellor Lord Sankey. 18. All the appellants pleaded not guilty and 'alibi'. Ram Bali Singh stated that he was in Bombay and Harbans Singh, that he was in his Khalian in the neighbouring village Ajaipur. Ram Bali Singh could not explain why the witnesses had given evidence against him, while the other two appellants pleaded enmity with them. Ram Bali Singh did not examine any witness in defence, but the other two examined three witnesses between them. 19. I have not the slightest doubt that Nanku Singh was murdered by being stabbed in the abdomen with a knife at the door of Harbans Singh in the evening of 5-12-1948. The Station Officer found blood in front of Harbans Singh's house. Though the crime was committed in the evening and in the abadi, the appellants could not produce any evidence in rebut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... used has prejudiced him in the defence, his conviction may be vitiated, but that is not the same thing as saying .... that part of the evidence, which is relevant and admissible should be struck off the record. If he has been prejudiced, an appellate Court may order his retrial, but counsel for the appellants do not want any retrial in the present case. The facts, in Dwarka Nath Verma v. Emperor, relied upon by the appellants, were different. There the trial Court had stressed the fact that the accused had offered no explanation about a certain matter. As the accused had not been questioned about that matter at all while under examination under Section 342, Lord Atkin observed that the departure from the statutory rule in Section 342: "deprives of any force the suggestion that the doctor's" (he was the accused) "Omission to explain what he was never asked to explain supplies evidence." 21. In the present case there is no question of relying upon the appellant's failure to explain why Nanku Singh named them in the dying declarations; the evidence consists of the dying declarations themselves and not of any failure of the appellants, to offer any explan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with what he has actually said. If he has named only X as his assailant and the circumstances suggest that he intended to be exhaustive it means that everybody else was not his assailant. If Harbans Singh's and Param Sukh Lal's sitting there with Ram Bali Singh, instigating him to strike Nanku Singh and running, away with Ram Bali Singh is inconsistent with what Nanku Singh mentioned in his dying declaration, it means that the dying declaration contradicts the evidence given by the witnesses about the part played by Harbans Singh and Param Sukh Lal, I think in this particular case it is not easy to say that there is no inconsistency between the two. I find it difficult to say that the positive statement that Ram Bali Singh was sitting there, that as soon as he (Nanku Singh) and Uma Shankar got up to go he was stabbed by Ram Bali Singh and that Ram Bali Singh after knocking him down fled away, does not impliedly deny the presence of Harbans Singh and Param Sukh Lal and their instigation and running away together with Ram Ball Singh. When this implied statement of a person whose truthfulness is not in question at all runs counter to the oral evidence, it creates a reasonable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... explained his going to the tree near Harbansh Singh's house by saying that at that time there were no arus leaves between the house of Jang Bahadur Singh and his house. The matter was not pursued further. If Nazir Hasan could get the leaves closer to his house, he would not be expected to go a longer distance. The extra distance which he had to cover, even if the nearer tree had leaves, is not much and is said to be about a bigha. So it cannot be said that Nazir Hasan's explanation for his presence near the place of incident must be wrong. I need not express any opinion, therefore, as to how far it was proper to question Katwaru in cross-examination about the existence of the other arus tree near the house of Jang Bahadur Singh in order to show the improbability of Nazir Hasan's going near the house of Harbans Singh. 26. I do not agree with the contention that the dying declaration of Nanku Singh should not be taken into consideration on account of the fact that Ram Bali Singh was not questioned to explain as to why Nanku Singh named him in his dying declaration. Ram Bali Singh should have been questioned on this point. It has been repeatedly emphasised by this Court ..... X X X X Extracts X X X X X X X X Extracts X X X X
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