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TMI Blog1922 (10) TMI 5X X X X Extracts X X X X X X X X Extracts X X X X ..... adjoining this bari is a bari occupied by Amar Kinkar Bhattacharjee and his brothers Prakash and Hara Kinkar. 4. Natabar Tarsa, the deceased, used to be employed as a servant by Satyendra, the accused, but on account of some difference he left his service and entered the service of Amar Kinkar and Prakash about six months before the occurrence. 5. The relations between the Bhattacharjee and the Dutts seem to have varied. Amar Kinkar says that he and Prakash have always been on friendly terms with Satyendra, in fact Amar Kinkar acted as his priest and his Pleader until just before the occurrence; Hara Kinkar, on the other hand, has been employed at different times by both Nagendra and Satyendra but Satyendra is said to have regarded him as a declared enemy. 6. On the day of occurrence the Bhattacharjee brothers were celebrating their mother's Sradh, and Satyendra wanted Amar Kinkar to keep up the old feud between himself (Amar Kinkar) land Hara Kinkar, and it is said that he tried to enforce his wishes by refusing to lend utensils for the ceremony, and by causing notice of execution proceedings in regard to a decree obtained by his aunt against Amar Kinkar and Prakash to be serv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... man of ordinary intelligence should have chosen such an occasion, time and place for the crime. 11. It is this second point which has caused so much trouble in the case. The Police appear to have submitted the case as one in which the accused attacked Natabar without any quarrel immediately preceding the incident, that is to say, with nothing more fresh than a quarrel at the tank on the previous day. In the Magistrate's Court, however, several witnesses gave quite a different version; instead of a stealthy entrance to deal a premeditated blow, they described a violent quarrel in which Natabar used filthy language, and threatened Satyendra with a piece of wood, and Satyendra, happening to find a spear, flung it at Natabar. In consequence of this variation before the Court of Session, the Public Prosecutor obtained permission to cross-examine one of the prosecution witnesses as hostile, while others were called as Court witnesses and tendered to both sides for cross-examination. The witness who was declared hostile is Padma Lochan (P.W. No. 3), while the witnesses called as Court witnesses and cross-examined or offered for cross-examination by both sides were Rameshawar Dhupi, M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1043. That is the principle to be applied to the evidence of a witness who has been cross-examined by the party which called him. The result is that Padma Lochan's evidence must be excluded altogether. Then there are the so-called Court witnesses. I say so-called, because I do not think that they are really Court witness. The provisions of Section 540, Criminal Procedure Code, are very wide, and the learned Judge might have summoned these witnesses to the box, and if the position were that the Public Prosecutor declined to examine the witnesses and the Judge thereupon acting on his own initiative caused them to be produced, I should regard them as called under that section. But the order recorded on June 26th which covers all the witnesses except the Sub-Inspector, shows that the position was quite different: The Public Prosecutor puts in a petition requesting the Court to examine witness Rameshwar as a Court witness, so that both parties may cross-examine him. The reason for the request appears to have been just the same as in the case of Padma Lochan that these witnesses had not mentioned any quarrel to the Sub-Inspector. The Public Prosecutor was, therefore, seeking to trea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had happened. In the Magistrate's Court his statement about the actual occurrence was very brief. On neither occasion did he say that he actually saw the blow being struck. In fact, before the Magistrate he clearly suggested that what he first saw was Satya holding one end of the spear and Padma the other. The Police and the Public Prosecutor, however, assumed that Amar Kinkar had seen everything in spite of the suggestion just mentioned, and in spite of the distinction which the witness drew in examination-in-chief between sight and inference. When the defence afterwards elicited that the witness had not seen accused give the spear-thrust but had inferred from circumstances that it was the accused who must have done so, the Public Prosecutor jumped to the conclusion that the witness was trying to aid the accused and after a few questions in reexamination he sought and obtained permission to cross-examine the witness. This was an egregious blunder. The question is, what result follows. One possible of way of looking at the matter is to say that the examination, of the witness was complete when this cross-examination began, and, therefore, the outcome of the Public Prosecutor&# ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion. It is said now that the explanation is absurd, but I do not understand why. Unwise tactics have left it unchallenged and I think we should accept it. My conclusion is that Mahendra's evidence may be regarded as reliable. In addition to criticisms upon the whole evidence of the witnesses severally, the learned Vakil has urged that there are discrepancies in small details, such as whether Natabar was standing or sitting, facing North or facing South when he was struck, who it was that pulled out the spear and so forth. It does not appear to me that such discrepancies are of any moment in the circumstances. 16. Further, the ownership of the spear has been discussed, and it is asked how it could have come to be in the hands of the accused. The evidence available does not disclose an answer. But to this argument as to the argument based on the wild improbability of the story, the same reply may be given that the undoubted facts are that some one chose that time and place to spear the deceased. 17. In addition to the direct evidence or in corroboration of it, we may take into consideration the fact that if Satya's name has been falsely substituted for another name, such sub ..... 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