K.Narayan, J. - (1.) KISHAN and his two sons-R atan Lal and Devendra stood their trial on charges under section 302 read with section 34 IPC in S.T. No. 490 of 78 before the Sessions . Judge, Moradahad, KISHAN and Ratan Lal were acquitted and Devendra was convicted under section 302 IPC and sentenced to imprisonment for life by judgment and order dated 18-12-1978. He has preferred this appeal.
(2.) THE deceased in the case one Nanhey was resident of Kanjari Sarai and the accused also lived in another portion of the same house. THE locations of their houses are shown in the site plan. On the North of this house and after a little lane or open space of land is a polish workshop, which according to the prosecution belonged to Nanhey and according to the defence to one Gupta Ji. THE occurrence is said to be of about 3.15 p.m. on 30-6-78. THE occurrence was alleged in the first information report in the form that the brother in law 'Sadhu' of the deceased Nanhey, namely, Pooran Lal had gone to see him and was sitting with the deceased in the northern polish workshop, Some noise was heard from the house of Nanhey, whereupon Nanhey went towards his house. A little later, noise of Nanhey was also heard, whereupon Pooran Lal, Rajendra, Ram Swarup and others rushed towards the house of Nanhey. Nanhey by that time was coming out of the house and was being_chased by Kishan and his two sons-Devendra and Ratan Lal. Devendra held a knife and Kishan held a hammer. THE three accused assaulted Nanhey with knife and Kishan also put the blows of hammer on the knife itself. In the meanwhile Om Prakash and Jagmohan sons of Nanhey also arrived but the accused made good their escape. Since the condition of Nanhey was serious, he was taken to the hospital, where though he reached alive Nanhey died and a report was sent. The prosecution had examined as many as 11 witnesses during the trial. Out of these, the evidence of Dr. S. P. Uppal related to the post mortem examination and that of PW 7 Suresh Chandra, PW 3 constable Chandra Pal and PW 11 H.C. Harnam Singh related to the investigation etc. PW 2 Buddha Singh was the scribe of the FIR prepared at the dictation of Pooran Singh, The suggestion to him has been that the FIR was prepared at the police station in consultation with the police officials. Though he has denied the suggestion, it will be worthwhile to refer to certain things which do support the impression that there was some thing black in the bottom and the FIR was not the result of spontaneity. It was stated by PW 3 Pooran Lal that Buddha Singh had arrived in the District Hospital and he had dictated the FIR there. It was also stated by him that he had gone to Kotwali leaving Nanhey dead in the hospital. However, in his cross examination it was made out that Daroga who must have come to the District Hospital on receipt of some information from the Medical Officer who had conducted the medical examination of injuries of Nanhey Singh was already there. It was after the direction of the Sub Inspector to make the report that the report was lodged. It may not be as such of much value but withholding of that medical examination report and the report of the medical officer to the police regarding arrival of the injured Nanhey, is something which should not be lost sight of. It will gain weigh when we discuss the other omissions in the case.
(3.) THE other evidence was of PW 3 Pooran Lal, PW 4 Smt. Phoolwati, widow of the injured PW 5 Rajendra, PW 6 Jagmohan Singh, and PW 9 Om Prakash. After considering the evidence of these persons as also other formal evidence mentioned above, the learned Sessions Judge came to the conclusion that the deceased was murdered by Devendra, who held knife. He did not consider the case proved against the other two accused and consequently he recorded the above mentioned order of acquittal for two. The main witness in the case has been PW 3 Pooran Lal and his statement has met certain peculiar behaviour. He had supported the case of the prosecution as mentioned above but when he made statement about the report to the police by the doctor and subsequent report by himself, the Public Prosecutor possibly considered him to be going beyond his hands. A request was made during cross-examination by the defence counsel by the Public Prosecutor for leave to cross examine him, and strangely enough he was allowed also. We. will say that the conduct of both-the public prosecutor and the Judge in this behalf has been rather strange. A party who had called a witness can be allowed to put questions to a witness, which may be lawful in cross-examination alone, but that is always limited to certain conditions and Section 154 and 155 CrPC had to be kept in mind. Ordinarily the order of examination of a witness is that a witness is first to face examination in chief by the, party who called it and then cross-examination by a patty adverse to him and if need be re-examination (Section 137 of the Evidence Act). There is difference between the examination in chief and cross- examination. The leading question are not permitted in examination in chief but they may be permitted if need be by the Court under Section 154 CrPC but naturally weight, of that evidence is affected by such examination. Then again, the questions lawful in cross-examination have been mentioned under Section 146 of the Evidence Act, and they may be also for testing his verasity to discover who he is and what is his position in life or to shake his credit by injuring his character and the like. These questions cannot be asked by a party, who had called him and if such questions are put, the party who had called him himself is impeaching his credit and discrediting him for his evidence which will mean a negation of his evidence as well. Once a witness is called untrustworthy by the persons who had called him, there is nothing to be cared for in his statement as naturally adversary is impeaching his credit. Therefore, the very application of the public prosecutor that he desired to cross-examine the witness apart from being illegal and against the procedure at the stage, conveyed that the witness was not any more worthy of credit. The prosecutor it seems, in order to conceal the report of the medical officer, which was a bad impression in the case, attended to discredit the main witness but naturally no benefit can go to the prosecution for that.;