- (1.) THESE three appeals arise against a single judgment of the Additional Sessions Judge, Balotra dated 8th May, 1952 by which the appellants were convicted under sec. 302 I. P. C. , and sentenced to transportation for life. They were also convicted under sec. 201 and 379 I. P. C. , and sentenced to 5 years' and 2 years' rigorous imprisonment respectively. All the sentences were to run concurrently.
(2.) THE following pedigree will show the relationship of the deceased, the accused and some of the prosecution witnesses - Ramlal Jetha Kheraj Mula Khuma (1st wife Lakhia (accused) 2nd wife Mst. Sajni (PW1) (wife Naini @ Nainuri) | (P. W. 9) | | | Ganesh @ Gunia (accd.) Amra (P. W. 4) Mst. Bhurki (Daughter) (P. W. 2) Moti (son) (P. W. 3) Kania (accd.) Harji (Mst. Gairki) (P. W. 5) It is alleged that the accused Lakhia, Kania and Ganesha alias Gunia had been turned out of the family and had no ostensible means of livelihood. The case for the prosecution is that on the 13th July, 1950, Jetha, his wife Sajni and her two nieces Bhurki and Nainuri went to the Jungle to search for the cows which had strayed. Jetha was ahead, and Sajni, Bhurki and Nainuri saw that the three accused came from behind some Jal trees nearby. They saw Kania hitting Jetha on the head with an axe. Lakhia and Ganesha were thereafter seen beating Jetha with lathis. The women retraced their steps towards their Dhani, but Lakhia, Kania and Ganesha overtook them snatched the keys of the house and the boxes and took away cash and ornaments of the value of several thousand rupees. A report was made by Mst. Sajni at Police Station Gudha Malani on the same day at 4 P. M. The three accused were arrested and certain property was recovered at the house of one Rajee on information alleged to have been supplied by Kana. The accused denied the charge and attributed their prosecution to a desire on the part of Mula to become the sole owner of the family property after putting the appellants in jail. The trial resulted in their conviction and sentence as aforesaid. The conviction under sec. 201 was made or the allegation that they disposed of the corpse of Jetha after killing him in order to escape prosecution. It was argued by learned counsel for the appellants that the alleged eye witnesses Mst. Sajni P. W. 1 and Bhurki P. W. 2 have not implicated the accused at the trial, and the learned Sessions Judge had committed an error in relying on their statements before the committing Magistrate Exs. P-3 and P-4 without complying with the provisions of sec. 145 of the Evidence Act. It was also urged that Nainuri P. W. 9 and Mst. Gairki P. W. 5 were not produced in the court of the committing Magistrate, and the accused had been prejudiced in as much as they were not even summoned by the court and had been produced without previous intimation to the accused. In respect of Nainuri P. W. 10 it is further urged that her evidence should not be believed as she had been smuggled in as an eye-witness by a similarity of names. P. W. 10 Nainuri has described herself as the wife of Iyedan, while the one who was alleged to be an eye witness was the wife of Kheraj. As regards the incident of theft, learned counsel urges that the two alleged eye-witnesses P. W. 3 Motiram and P. W. 4 Amra have not implicated the accused, and the court committed the same mistake in relying on the statements of these witnesses in the court of the committing Magistrate Exs. P-5 and P-6 without complying with the provisions of sec. 145 of the Evidence Act. The evidence as to recovery of property is also assailed as being unreliable. The relevant statement of Mst. Sajni before the committing Magistrate was "jetha was my husband. He was killed in the jungle of Guda. He had gone in search of cows. Bhurki, Nainuri and I had also gone with him. The three accused present in court came from the Jal trees and Kania gave an axe blow on the head of Jetha. Gunia and Lakhia (thereafter) beat him with lathis and the two also strangulated him with a piece of cloth. Lakhia stood by us, while Gunia and Kania took away the corpse. The accused came to us after throwing the corpse. They asked for the keys of the house. I gave the keys out of fear. Gunia remained with us. After taking the keys Kania and Lakhia went to the house and after sometime came back and the three went away. I at first went to police station and lodged the report Ex. P-l. On reaching home I found the lock broken. My husband's younger brother's wife, Motia and Amaria were at the house. On the next day I saw a corpse which was of Jetha. " Some of the property was recovered during the course of investigation, which the witness identified to be her own. At the trial the relevant portion of her statement was : "my husband Jetha, (his brother) Mula, I, Nainuri wife of Kheraj and Bhurki daughter of Kheraj went to the jungle to search for the cows. Jetha and Mula had started earlier and we went a bit after. Mula met us in the way and told us to return home. We came home. I do not know who killed my husband Jetha. I went with Mula to Thana. A report was got written by Mula and I had affixed my thumb mark on it. The report was that my husband had been killed. I had asked Mula who had killed my husband and he said that Kania, Gunia and Lakhia had killed him. I had affixed my thumb-impression on F. I. R. without the contents being read over to me. From the jungle I went straight to the Thana and then went home. I found my boxes open and ornaments and cash were stolen. " She denied that any body had demanded the keys from her and expressed ignorance about the recovery of the corpse of her husband. At this stage the Public Prosecutor requested the court to bring on record the statement of the witness made in the court of the committing Magistrate, and the learned Sessions Judge ordered accordingly and made a note that notice of this fact had been given to counsel for the accused. The examination-in-chief of the witness was closed and counsel for the accused began his cross-examination. In cross-examination she stated that Mula was present at time of the making of the report. She was not interrogated at the time of the making of the report, and she did not make the statement Ex. P-3, and that it was incorrect. She also denied having made statements in the police Ex. D-l and Ex. D-2. Learned counsel for the State has argued that it is not necessary under the law to question the witness in respect of previous statement and the order of the court bringing on record the previous statement of the witness made it admissible for all purposes in the court of Session, and all that was required was to inform the accused of the intention of the Judge to do so, which was done in this case. Reliance was placed on (i) Mohammad Sarwar vs. Emperor (1) (A. I. R. 1942 Lahore, 215.), (ii) Mohan vs. The State (2) (1951 R. L. W. 242. ). That view has however been overruled by their Lordships of the Supreme Court in Tara Singh vs. The State (3 ). Bose J. observed at page 446 that "one line of reasoning is that sec. 145, Evidence Act, is not attracted because that section relates to previous statements in writing which are to be used for the purpose of contradiction alone. But under sec. 288, Criminal P. C. the previous statement becomes evidence for all purposes and can form the basis of a conviction. The other line of reasoning is that sec. 288 makes no exception of any provision in the Evidence Act, and therefore sec. 145 cannot be excluded. All that sec. 288 does is to import into the law of evidence something which is not to be found in Evidence Act, namely, to make a statement of this kind substantive evidence, but only when all the provisions of the Evidence Act have been duly complied with. In my opinion the second line of reasoning is to be preferred. I see no reason why sec. 145. Evidence Act, should be excluded when sec. 288 states that the previous statements are to be "subject to the provisions of the Indian Evidence Act, sec. 145" talls fairly and squarely within the plain meaning of these words. More than that. This is a fair and proper provision and is in accord with the Sense of fairy lay to which Courts are accustomed ". . . . . . . . . His Lordship went on to say that I hold that the evidence in the Committal Court cannot be used in the Sessions Court unless the witness is confronted with his previous statement as required by sec. 145, Evidence Act. Of course, the witness can be cross-examined about the previous statement and that cross-examination can be used to destroy his testimony in the Sessions Court. If that serves the purpose of the prosecution, then nothing more is required, but if the prosecution wishes to go further and use the previous testimony to the contrary as substantive evidence, then it must, in my opinion, confront the witness with those parts of it which are to be used for the purpose of contradicting him. Then only can the matter be brought in as substantive evidence under sec. 288. "
(3.) THE earlier authorities cited above must be deemed to have been overruled by the latest pronouncement of the Supreme Court in Tara Singh vs. THE State (3) (A. I. R. 1951 S. C. , 441.) and we have to see whether the provisions of sec. 145 were duly complied with in this case. Learned Government Advocate placed reliance on the answers elicited in cross-examination in respect of the statement. THE relevant portion is as under: - - "i did not give any statement in the court at Barmer. My statement was not read over to me by the Raj Vakil (Ex. P-3 was read out to the witness who said that she did not depose this ). It was read out by the P. I. He told me to put my thumb-mark and I put it. I did not depose the same statement that was read over to me by the P. I. THE statement, which was read over to me Ex. P-3 was wrong. I did not witness things with my eyes" In our opinion, what has been elicited in cross-examination by the defence counsel does not amount to a full compliance with the provisions of sec. 145 of the Evidence Act. What seems to have happened was that when the court admitted the previous statement of this witness in the committal court Ex. P-3 in evidence, the defence counsel tried to minimise its effect by a few questions which elicited an answer from the witness that it was not her statement. But that only served one purpose namely to destroy her testimony in Sessions Court, but the other purpose of using that testimony as substantive evidence was also to be served. THE witness should have been confronted with that portion of the evidence which was to be used as substantive evidence, and an explanation obtained as to why she was then going back on her previous statement. That was not done in this case. Mst. Sajni's previous statement Ex. P-3 cannot therefore be used as substantive evidence in this case. The next witness Bhurki P. W. 2's statement is to the same effect as that of Mst. Sajni at the trial. She stated that Jetha and Mula had gone ahead in search of the cows and she along with Sajni and Nainuri was a few steps behind. The witness heard a cry and Mula came and told them that his elder brother Jetha had been killed. The witness did not see anybody killing Jetha. Her previous statement in the court of committing Magistrate was brought on record at the request of the prosecution counsel after notice to the advocate for the defence and that statement was marked Ex. P-4. In the court of the committing Magistrate she purported to say that she saw Kania giving an axe blow on the head of Jetha. Jetha wanted to run, but Kania caught hold of him and sat on his chest and strangulated him with the Angochha, Ex. M-3. Gunia and Lakhia thereafter beat Jetha. Gunia and Kania dragged the corpse towards the Darra and Lakhia sat with them with a stick, Mst. Sajni gave the keys of the house to Lakhia and Gunia who thereafter went away. Bhurki's evidence in the court of the committing Magistrate is to be discarded with the same remarks as those for Sajni-Counsel for the prosecution did not put to the witness passages from her pre-vious statement sought to be relied upon and on cross-examination by counsel for accused she said that she had made that deposition at the behest of the police. The defect of not putting the very passages which are to be used as evidence existed in the case of Mst. Bhurki also. Bhurki's statement which she made in the court of the committing Magistrate cannot therefore be used as substantive evidence in this case. The prosecution examined one more witness in respect of the incident alleged to have taken place in the jungle. That witnesses Nainuri P. W. 10. Learned counsel for the defence contended that her evidence was inadmissible as she was not produced as a witness in the court of the committing Magistrate and was examined for the first time in the court of Session. This contention has no force. The evidence of a witness examined at the trial cannot be ruled out of consideration. What has to be considered is whether the accused had been prejudiced and how far that evidence was reliable. The name of Nainuri appears in the first information report as one of the persons who had witnessed the incident in the jungle, and therefore her evidence was of great importance. The court had powers even under sec. 540 to examine such witness and there was no illegality if the witness was examined by the prosecution was however bound to give previous intimation to the accused so that effective steps could be taken for cross-examination of the witness. In this case there is an application on the file dated 25th of September, 1951, by the Public Prosecutor intimating to the court that Nainuri was an important witness and should be summoned. It is not clear whether the accused were informed of this for there is no order on this petition except that it may be placed on file and summonses do not appear to have been issued to the witness. She seems to have been produced by the prosecution on 15th November, 1951, and examined as a witness. The witness gave her description as the daughter of Rama and wife of Ayedan aged about 40 years. The learned Sessions Judge has made a remark that she appeared to be of 25 years of age. Mst. Sajni P. W. 1 described Nainuri, who was with her at the time, to be the wife of Kheraj. Motiram P. W. 3, son of Kheraj, has also stated that his mother Naini went with Mst. Sajni to search the cows. Gairki states that Naini, wife of Ganesh, went with Sajni, while Naini, wife of Kheraj, remained in the house. Bhurki P. W. 2 gave the description of Naini, who accompanied her, as the daughter of Rama, the cousin of Mula, which may fit the witness. It may be that Mst. Sajui and Moti may not be telling the truth at the trial; but even in their earlier statements before the committing Magistrate Exs. P-3 and P-5 Nainuri's description has not been given, and therefore it cannot be said with certainty that the witness Nainuri produced at the trial was the person who witnessed the occurrence. This witness seems to be a person of weak intellect as the learned Sessions Judge has appended a note at the end of her statement that she gave replies after a question was repeated several times and a vacant gaze. Further, although she is only distantly related to Mula, she admitted that she was living with Mula and supported by him, and she had been brought to the court by Mula. Her statement that she had been summoned is false. She stated that she saw Kania inflicting an axe blow on the head of Jetha and thereafter Kania and Ganesh strangulated Jetha with a piece of cloth. Keeping in view the above circumstances it is not possible to place much reliance on this witness unless there was other corroborating evidence in proof of the facts stated by this witness. This is all the evidence of the incident in the Jungle. The weight to be attached to the statements of Mst. Sajni and Bhurki made by them in the court of the committing Magistrate is lessened by one important fact namely that they Were not cross-examined in the court as the accused were unrepresented. ;