TMI Blog1952 (4) TMI 34X X X X Extracts X X X X X X X X Extracts X X X X ..... also the deceased. This, it is said, constituted the motive for the present crime. On the date of the occurrence, the 7th of September 1950, the prosecution state that the appellant was sitting at the shop of Jit Singh, P.W. 2, when the deceased came there about 12-15 p.m. and borrowed ₹ 5 from Jit Singh who lent him the money and entered the transaction in his account book. When the deceased left the shop he was followed by the appellant who shot him at point blank range with a pistol only 4 or 5 karams from the shop. This attracted the attention of a number of bystanders who immediately chased the appellant and apprehended him after a short run of about 30 karams. He was still carrying the pistol. It was taken away from him by Jagir Singh Patwari, P.W. 4. The appellant was immediately taken to the local police post about 100 karams distant and the shopkeeper Jit Singh, P.W. 2, made the first information report at 12-a7 p.m. within 15 minutes of the occurrence. The motive is proved by Bhag Singh, P.W. 7, who has been believed and that part of the case was' not challenged before us. The occurrence was witnessed by a large number of persons of whom the prosecu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 540 could be called in aid in such a case, and at page 339 the learned Judge dealt with the question of prejudice and concluded at page 344 with the remark that the question is one of fact in each case and that in his opinion there was prejudice in that particular case. The other learned Judge took the same view at pages 3J,7 and 348 and said: The Court can, of course, always use its discretion and allow the production of further evidence. It is to be observed that the objection in that case was raised at a very early stage and before the sessions trial had commenced; also that the prosecution wished to examine no less than eight material witnesses (out of a total of sixteen) which they had deliberately withheld in the committal proceedings. We make no remarks about the correctness of the observations which travel beyond the question of prejudice because that is unnecessary here. It is sufficient to say that the learned Judges conceded the power under section 510 and decided the case on the question of prejudice. The question raised in Queen-Empress v. G.W. Hayfield((1892) I.L.R. 14 All. 212.) does not arise here because the Sessions Court did not refuse to examine Jaswant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bly because neither he nor his two learned counsel wanted it. The first information report is a full one and sets out all the essentials of the prosecution case; therefore, with all that information in the possession of the appellant and his counsel it could be impossible for him to contend that he did not know what this witness was to prove. Had the witness travelled beyond the statements embodied in the first information report, objection to the use of any thing not contained in it would have been understandable, though to be effective such objection would ordinarily have to be raised at the trial, but as the witness does not do that, there can be no objection on the score of prejudice. It is to be observed that the Explanation to section 537 requires a Court to take into consideration the fact whether any objection on the score of irregularity could have been raised at an earlier stage. Now the High Court bases its decision on the evidence of these eye-witnesses and on the fact that the appellant was apprehended on the spot within a minute or two of the murder with the pistol still in his possession, and had the learned Judges stopped there, there would have been no foundatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ay. A witness is called and he says in chief, I saw the accused shoot X . In cross-examination he resiles and says I did not see it at all. He is then asked but didn't you tell A, B C on the spot that you had seen it ? He replies yes, I did. We have, of set purpose, chosen as an illustration a statement which was not reduced to writing and which was not made either to the police or to a magistrate. Now, the former statement could not be used as substantive evidence. It would only be used as corroboration of the evidence in chief under section 157 of the Evidence Act or to shake the witness's credit or test his veracity under section 146, Section 145 is not called into play at all in such a case. Resort to section 145 would only be necessary if the witness denies that he made the former statement. In that event, it would be necessary to prove that he did, and if the former statement was reduced to writing, then section 145 requires that his attention must be drawn to those parts which are to be used for contradiction.But that position does not arise when the witness admits the former statement. In such a case all that is necessary is to look to the former stateme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on or to corroborate what was said in chief. In either event, section 288 of the Criminal Procedure Code could be used to make the former statement substantive evidence because what the section says is subject to the provisions of the Indian Evidence Act, and not subject to any particular section in it. Section 157 is as much a provision of the Indian Evidence Act as section 145 and if the former statement can be brought in under section 157 it can be transmuted into substantive evidence by the application of section 288. Tara Singh v. The State([1951] S.C.R. 729 at 743.) is to be distinguished because there, there were no two versions in the course of the same testimony. The witness in question was hostile from the start in the Sessions Court and the whole purpose of resorting to section 288 was to contradict what he said there and no question of corroboration arose. The prosecution had no choice there, as it was here, of using the former statement either to contradict or to corroborate. We turn next to Jagir Singh, P.W. 4. In his case there was no choice. He was hostile from the start and in his ease our observations in the ruling just referred to apply in full. But on an ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to rely on the testimony of a witness which the Court is not prepared to believe the matter ends there. The duty of displacing the presumption lies on the person who questions it. The Court is of course bound to consider such evidence as is adduced but it is not bound to believe such evidence nor is there any duty whatever on the Court to conduct an enquiry on its own. There is nothing in this point. But we again wish to discountenance the suggestion that the Committing Magistrate should have been examined to prove the truth of his certificate and we endorse the remarks we made in Kashmera Singh v. The State of Madhya Pradesh ([1952] S.C.R. 526.) based on the decision of the Privy Council in Nazir Ahmad v. King Emperor(A.I.R. 1936 P.C. 253 at 258.) regarding the undesirability of any such practice. But even if the fact be true that the deposition was not read over, that would only amount to a curable irregularity and, as the Privy Council observed in Abdul Rahman v. King Emperor (A.I.R 1927 P.C. 44 at 45-47.), in the absence of prejudice which must be disclosed in an affidavit which shows exactly where the record departs from what the witness actually said, there is no point in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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