- (1.) THIS is an appeal by the accused Kishna against the judgment of the Sessions Judge, Kishangarh, dated the 31st October 1949, by which he has been convicted under sec. 307 I. P. C. and sentenced to undergo seven year's rigorous imprisonment and pay a fine of Rs. 200/- or suffer six months' further rigorous imprisonment in default.
(2.) THE applicant's advocate contends that the main evidence in this case is that of the complainant, prosecution witness Mst. Chandri, alone that it is neither sufficient nor reliable to base the appellant's conviction and, therefore, he should be acquitted. THE Government Advocate, on the other hand, argues that Chandri's statement was fully supported by the appellant's own confession recorded under section 164 Cr. P. C. and that this important piece of evidence being wrongly rejected by the Sessions Judge it should be admitted now. It appears from the record of the Sessions Judge's court that on the 17th of October, 1949 when the Public Prosecutor had examined three prosecution witnesses, he presented an application before that court with a request to summon the Magistrate, Shri V. V. Halve, and examine him about the appellant's confession which he had recorded under section 164 Cr. P. C. This petition was turned down by the court on the ground that the witness was neither cited before nor examined by the committing Magistrate. It was, however, ordered that if the said Magistrate could be persuaded to come to the court by the prosecution he would be examined. The Public Prosecutor thereupon made a written request to Shri Halve to appear -in the Sessions Court but he wrote back saying that he could do so only if summoned by the court. His reply was then forwarded to the Sessions Judge with further remarks to the effect that the Magistrate was willing to give statement and that he was present within the precincts of his own court, but the learned Judge filed this application saying that no other order could be passed. It further appears that the Public Prosecutor tendered this document in evidence again on the 18th October 1949 when he was examining the Sub-Inspector Ghisalal but the court again refused to admit it in evidence saying that it was not exhibited in the committing Magistrate's court. It is clear from the above that the learned Sessions Judge has failed to make a correct application of the law on the subject. The committing Magistrate has referred to this document in his committal report and it was also forwarded by him to the Sessions Judge along with other papers. Since he has pointedly referred to this document in his committal report it follows that he had admitted it in evidence and by his mere failure to exhibit this document it cannot be said that it was rejected by him. Section 80 of the Indian Evidence Act, provides as follows: - "80. Whenever any document is produced before any court, purporting to be a record or memorandum of the evidence, or of any part of the evidence, given by a witness in a judicial proceeding or before any officer authorised by law to take such evidence or to be a statement or confession by any prisoner or accused person, taken in accordance with law, and purporting to be signed by any Judge or Magistrate, or by any such officer as aforesaid, the court shall presume-that the document is genuine; that any statement as to the circumstances under which it was taken, purporting to be made by the person signing it, are true, and that such evidence, statement or confession was duly taken. " It is clear from the language of this section that in case the statement or confession of a prisoner or an accused is found by the court to be taken in accordance with law and if it purports to be signed by the Magistrate,then it is obligatory for the court to presume that the document is genuine. In other words if the necessary formalities mentioned in this section are found to have been performed, the document is admissible in evidence without further proof. When the committing Magistrate had admitted this document in evidence, the learned Sessions Judge should not have refused it unless it was found wanting in one or more of the essential formalities. Moreover, the attention of the learned Sessions Judge does not seem to have been drawn towards Sec. 533 Cr. P. C. which runs as follows. "533-- (1) If any court, before which a confession or other state-ment of an accused person recorded or purporting to be recorded under section 164 or section 364 is tendered or has been received in evidence, finds that any of the provisions of either of such sections have not been complied with by the Magistrate recording the statement, it shall take evidence that such person duly made the statement recorded; and notwithstanding anything contained in the Indian Evidence Act, 1872, section 91, such statement shall be admitted if the error has not injured the accused as to his defence on the merits. (2) The provisions of this section apply to Courts of Appeal, Reference and Revision. " It is apparent from the wordings of this section that even if it is found by the court that a confession of an accused person which is tendered in evidence is defective, because any of the provisions of sec. 164 or section 364 having not been complied with, then it is again the duty of the court to take evidence to the effect that the statement recorded was duly made by the person by whom it was purported to be given. Again section 540 Cr. P. C. which is reproduced below enjoins upon the court a duty to summon and examine any person if his evidence appears to it essential to the just decision of the case:- "540. Any court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness or recall and reexamine any person already examined; and the court shall summon and examine or recall and re-examine any such person if his evidence appears to it essential to the just decision of the case. " The provisions of all the three sections quoted above are mandatory and the cumulative effect thereof is that the learned Sessions Judge has committed a gross mistake in rejecting this important piece of evidence and further refusing to summon and examine the Magistrate, who recorded it. In order to give proper decision in this case with all fairness to the accused, it seems necessary that the Magistrate, who recorded this confession should be examined. The accused should be given an opportunity to explain it in his statement and that he should also be given a further opportunity to produce his defence evidence on this point if he so desires. This can be done only in a retrial and, therefore, it is ordered that the appellant's conviction is set aside and the case be sent back to the Addl. Sessions Judge, Kishangarh, for retrial in the light of the above remarks. The appellant may be released on bail pending the decision of the trial, in case he furnishes a bond to the extent of Rs. 2000/- with two sureties for the like amount. . ;