MUTHAYA THEVAN Vs. KING-EMPEROR

JUDGEMENT

(1.) This appeal is by two persons convicted by a jury on a majority of 4 to 1 of offences of house-breaking by night, robbery with hurt, and against one of them, grievous hurt in committing robbery. The learned vakil for the appellants is satisfied with the major portion of the charge to the jury, which in fact was evidently a summing up for an acquittal. He however put forward three points for consideration of this Court which will be better understood if the slight consideration of the details of the case is set out.

(2.) The general prosecution case was that on the night of 7 January 1926, P. W. 1 and his family were attacked by robbers, of whom the appellants were two, who inflicted hurt on them and carried off a huge wooden box belonging to P. W. l's wife. In committing Court it was sought to connect the appellants with the crime by evidence that in the box stolen were certain jewels which had been pledged with P. W. 1 and which had been recovered from the appellants, and witnesses to identify the jewels were called and examined. They however did not in that Court support the prosecution, but stated that they could not identify the jewels. When the case came up to the Sessions Court these witnesses were dispensed with by the Public Prosecutor and not examined, and one other witness, who had been put forward in the committing Court as an eyewitness but there deposed that he had not heard about their robbery, was also dispensed with and not examined. Further in the Sessions Court the first complaint of P. W. 1, made to the Village Munsif through P. W. 5, was not filed and in it we understand that the names of certain witnesses as eyewitnesses to the robbery are given, of whom one has not been examined at all even in the committing Court, and one, whom we have mentioned above, was examined in the committing Court but dispensed with in the Sessions Court. The contentions for the appellant are first: that it is a misdirection by the lower Court in that it did not insist on the prosecution examining all the witnesses who could have given information on the subject of the robbery; secondly, that it is a misdirection in that it did not tell the jury that a number of witnesses examined in the committing Court for the prosecution had not given their support to the prosecution; and thirdly that it is a misdirection not to have told the jury that the failure of the prosecution to file the original complaint justified them in inferring that that complaint, if filed, would not support the prosecution case.

(3.) A few general remarks on points 1 and 2 may be made. An extreme position has no doubt been taken up by some Courts that it is the duty of a prosecution to adopt an attitude of noncommittal to any version of the case and to examine all witnesses alleged to have known something about the offence, whether or not they will support the prosecution case and whether or not the prosecution regards them as true or false. This position we are not prepared to adopt. For one thing we regard it as unfair to the accused that the prosecution should be allowed to put forward a nebulous case which can be shaped as the trial goes on. Again the result would be in our view to place the case wholly in a false light. It would compel the prosecution to put into the witness-box witnesses whom it regards as false and as prepared to mislead the Court as to the real truth, which witnesses it has no chance of cross- examining, and therefore no chance of discrediting; we say this because it is clear that, if the prosecution attitude is noncommittal, the Court could not treat such witnesses as "hostile" to the prosecution. The evidence of such witnesses would stand untested, unshaken and the result would be that the prosecution would become a farce, since the true evidence if it survived the test of cross-examination would be negatived by the false evidence which would not have been tested at all. If therefore witnesses have been examined in the Committing Court who have not given what the prosecution regards as true evidence, we do not consider it the duty of the prosecution to examine them in the Sessions Court. It is always open in this country to the Court itself to call and examine any of them and always open to the defence to move the Court to do so, so that there is no fear of a failure of justice because the prosecution does not examine them, If we pursue the contention to its logical conclusion, it will follow that when an accused has examined defence witnesses in the committing Court, who profess some knowledge of the matter under trial, it is the duty of the prosecution to examine these in the Sessions Court, as witnesses knowing something about the case. The Court would probably allow these to be treated as hostile to the prosecution. We should then have the spectacle of the prosecution examining and cross-examining in order to discredit in advance witnesses whom the defence wishes to examine in its favour, a procedure which this Bench condemned in strong terms in Crl. A. No. 105A of 1926. The only procedure which is fair to both parties is for the prosecution to put forward a definite case and to refrain from calling witnesses whom it regards as false or unnecessary.