Decided on July 14,1952

SURJA Appellant
STATE Respondents

Referred Judgements :-



- (1.)THIS is an appeal by Pema, Surja and Lalu against their conviction and sentence passed by the learned Sessions Judge of Bikaner. Lalu was convicted under sec 325 I. P. C. and sentenced to 4 years' rigorous imprisonment, and Surja and Pema were convicted under sec. 323 I. P. C. and sentenced to one year's rigorous imprisonment each.
(2.)THE case for the prosecution was that on the 11th of December 1950 at about noon Mamraj went on his bullock-cart to bring water from the tank and wanted to go through the field of Surja. Surja objected to the passing through his field and Mamraj turned back his cart. THE three accused, however, assaulted him with lathis. His cries attracted his uncle Bagaria who was working close by in his field but he too was assaulted. Boga, another uncle of Mamraj, also came on hearing cries, but he was also given a beating. Mamraj became unconscious as a result of the assault. Boga carried Mamraj to the village in the bullock-cart where he died and the report was made next day at Police Station Nokha. THE accused denied the charge but they did not lead any evidence in defence. THE trial resulted in the conviction and sentence as aforesaid.
Learned counsel for the appellants argued that the prosecution evidence was unreliable as Bagaria and Boga are near relations of the deceased and there was previous enmity between the accused and these persons. The learned Sessions Judge has exercised sufficient caution in respect of the statements of these witnesses but he has accepted their evidence as it was corroborated by P. W. 1 Multana Kumhar who was also an eye-witness to the occurrence and has supported the prosecution story in all its details. Learned counsel argued that Multana was a chance witness and should not be believed, more particularly as there is a discrepancy between his statement in the court of the committing Magistrate and that in the court of Session as to the occasion which led him to be present near the scene of the incident. In the court of the committing Magistrate he had stated that he was going from his field to the village to bring the bullocks but in the Court of Session he stated that he was coming from the jungle toward? the village while searching his bullocks. Learned counsel urged that if he proceeded directly from his field to the village, the scene of incident would be left away at a distance of 100 paundas and therefore according to his statement in the committing Magistrate's court, he had no occasion to be present on the scene of occurrence. This argument would throw some doubt as to the fact of the presence of Multana on the spot but that doubt is removed by reference to the report made by Surja and Pema, Ex. P-13, on 11th December at about mid-night. In this report Surja and Pema described their version of the incident and exculpated themselves but mentioned the presence of Multana who was stated to have tried to intervene. Learned counsel contended that this report Ex. P-13 was inadmissible as being a statement by the accused to the police. Reliance was placed on sec. 25, Evidence Act, and Harnam Kisha vs. Emperor (A. I. R. 1935 Bombay 26) was also cited.

Sec. 25 of the Evidence Act only makes inadmissible a confession made to a police officer and this is what is laid down in the Bombay case also. Where, however, the statement is not a confession but an exculpatory statement it is not rendered inadmissible by any provision of the Indian Evidence Act. In Dal Singh vs. The King Emperor (XLIV Indian Appeals 137) their Lordships held that a report made by the accused to the police in respect of an occurrence for which he was tried subsequently and which report was in the nature of information or charge laid against others was admissible in evidence. In Emperor vs. Kangalmali (I. L. R. XLI Calcutta 601) it was held that exculpatory statements by an accused to the police as to what according to his case actually happened on the occasion of the commission of the offence and put forward by way of defence, are admissible notwithstanding that they are shown by other evidence to be untruthful. Similarly a report by an accused which was of an exculpatory nature and did not amount to confession was held admissible in Emperor vs. Bhagi (A. I. R. 1941 Oudh 359 ). In Akal Sahu vs. Emperor (A. I. R. 1948 Patna 62) a person accused of murdering the deceased with a bhala stated in his first information to the police that some unknown thief had cut a portion of maize crop and he had assaulted that thief with a bhala. It was held that the statement was admissible.

In this case the substance of Ex-P. 13 reported by Pema and Surja was that Mamraj had been prohibited several times not to pass through the field while bringing water from the well; nevertheless he came with his cart at about noon on the 11th December 1950 and on remonstrance mutual exchange of abuses took place. Bagaria and Boga came with lathis to help Mamraj while Lalu and Deepli also came there on hearing the noise. Multana Kumhar also came in the meanwhile and tried to intervene to prevent any quarrel but Mamraj gave lathi blow on Deepli and Bagaria and Boga also began to assault Pema. Surja and Lalu whereupon they retaliated in order to save themselves. This information was followed by a further information about every one of the four persons of the party of Pema having received injuries on various parts of the body at the hands of the party of Mamraj.

The very perusal of the report shows that it is not a confession but an exculpatory statement regarding the incident for which they are being prosecuted. It was clearly admissible in evidence on the authorities cited above.

It was next contended that the lower court erred in recording the statement of Sub-Inspector Sri Niwas in proof of Ex. P-13 after the close of the prosecution evidence and that this evidence should not be taken into consideration against the accused more particularly as he had no opportunity to rebut it. Reliance was placed on Karam Chand vs. Emperor (A. I. R. 1928 Lahore 953), Shugan Chand vs. Emperor (A. I. R. 1925 Lahore 531) and Alex Pimento vs. Emperor (A. I. R. 1920 Bombay 339 ).

In Karamchand's case a prosecution witness was examined after the whole of the defence evidence had been recorded and the learned Judge held that the procedure was illegal and vitiated the trial. In Shugan Chand's case a witness was examined under sec. 540 Cr. P. C. after the close of defence, but no opportunity was given to the accused to rebut that evidence and no further arguments were heard and the procedure was held to be illegal. Similarly in Alex Pimento's case the evidence of a witness was recorded under sec. 540 Cr. P. C. after the close of the defence evidence and the procedure was held to be irregular. The irregularity was however held to have been cured under sec. 537 Cr. P. C.

In the present case the Sub-Inspector Sriniwas had been examined as prosecution witness No. 3. The accused were examined after the close of the prosecution evidence on 11th February 1952. The accused did not lead any evidence in defence and the learned Sessions Judge found at the time of arguments that Sriniwas had stated in his evidence that a certain report about the same incident was made by the accused but that it had not been produced. He, therefore, sent for the report and summoned Sriniwas for the next hearing. The report Ex. P-13 was then produced and Sriniwas proved it by his statement. The accused cross-examined him. The court recorded further statements of the accused who were questioned about this report. They were asked if they would produce any evidence in defence but they refused to do so. This is clear from a perusal of the orders recorded on the order sheets in this case.

(3.)THE provisions of sec. 540 Cr. P. C. give ample powers to a court to summon any person as a witness or recall and re-examine any person already examined, at any stage of an inquiry or trial, and it has been made incumbent upon the court to summon and examine or recall and re-examine any person if his evidence appears to it essential for just decision of the case. THE learned Sessions Judge had, therefore, ample powers to recall and re-examine Sriniwas. THE learned Sessions Judge also gave opportunity to the accused to lead any evidence in defence if they so liked but the accused having chosen not to lead any evidence cannot now be permitted to make out any grievance. THE authorities relied upon by learned counsel are inapplicable to the circumstances of this case.
The learned Sessions Judge rightly relied upon Multana Kumhar who has been shown to be an independent witness. As Multana Kumhar corroborated Bagaria, the learned Sessions Judge was also right in relying upon Bagaria's evidence. Both these witnesses have deposed that Lalu assaulted Mamraj with a jatura (a heavy danda), while Surja and Pema assaulted Bagaria with lathis. Although the doctor who examined Mamraj and conducted the post-mortem could not be available in spite of best Efforts, Boga's evidence is clear that when he reached the spot Mamraj was unconscious and died before regaining his consciousness. The injuries caused to Mamraj have rightly been held to be grievous within the meaning of eighth clause of sec. 320 I. P. C as being any hurt which endangered life and the conviction of Lalu under sec. 325 of the Penal Code is correct. As regards Pema and Surja, their conviction under sec. 323 I. P. C. has also been rightly made. Looking to the circumstances of this case, the sentences passed are not at all severe.

The appeal is hereby dismissed. Pema and Surja are on bail and will surrender to undergo the remaining term of sentence. .

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