TMI Blog1978 (2) TMI 211X X X X Extracts X X X X X X X X Extracts X X X X ..... s imprisonment. Sukhdev was also convicted under section 324 whereas Rameshwar Dayal and Janmejaya Deo were convicted under section 394 I.P.C. and sentenced to four years' rigorous imprisonment. Rameshwar Dayal, Achhmal Ram, Janmejaya Deo, Rohtas, Sukhdeo and Sudama were further convicted under sec- tion 148 I.P.C. and sentenced to 18 months' rigorous imprisonment whereas Ramdas, Raghunandan and Rohan were convicted under section 147, I.P.C. and sentenced to one year's rigorous imprisonment. The High Court, on appeal, affirmed the conviction and sentences indicated above. The unfortunate occurrence which resulted in the death of the deceased is an outcome of an outstanding enmity between the two parties. Both the High Court and the Sessions Judge have clearly spelt out the essential features of the prosecution case and it is not necessary for us to repeat the same with all its details. It appears that apart from the long outstanding enmity between the parties the immediate provocation for the occurrence was that proceedings under section 107/117 Cr. P.C. had been initiated by Babu Ram and Munnalal against each other and were pending in the Court of the Sub-Divisional Ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Two facts need special mention which have taken place during the course of investigation. In the first place, when the Investigating Officer visited the place of occurrence he found one empty cartridge and four live cartridges at the spot. The appellants have challenged the factum of the recovery of four live cartridges at the spot an aspect which has engaged the main attention of counsel for the appellants in this Court as well in the High Court which will be dealt with a little later. The prosecution had examined three main eye-witnesses in the case, namely, P.W.1 Rajendra, P.W.2 Mungolal Sharma and P.W.3 Chhoteylal. The learned Sessions Judge after a very careful appraisal of the evidence and the circumstances of the case came to the clear conclusion that the case was proved against the appellants and he accordingly convicted them. It may also be mentioned here that the Sessions Judge found as a fact in his judgment that the cartridges which were found on the spot were live cartridges though by mistake they were recorded as empty cartridges in the evidence of the Investigating Officer Muniraj Singh. In this connection, the learned Sessions Judge while dealing with the evide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t empty cartridges were found at the spot, then having regard to the admitted fact that the deceased was carrying a pistol along with cartridges there may be a possibility of his having himself fired five shots on his assailants and that would naturally change the entire complexion of the case. After the witnesses were examined by the High Court the appellants were reexamined under section 342 Cr.P.C. Thereafter, the appellants filed an application on 25th April, 1972 praying that they may be given an opportunity to rebut the evidence of the Court witnesses summoned by the High Court. In their application the appellants prayed for the examination of two witnesses, namely. Shri S. N. Mulla, Bar-at-Law and Shri 'Bankesh Behari Mathur, Advocate, Bareilly and also call for a docu- ment, viz., the Panchayatnama Register of Police Station Fatebganj. The High Court, however, refused to accede to the prayer of the appellants on the ground that they had got full opportunity to crossexamine the witness examined by the High Court under section 540, Cr.P.C. One of the main points taken by the appellants in their petition for special leave was that the High Court judgment was vitiated by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is sought, to be, controverted the_ same should be done by the well established method of filing affidavits by counsel and getting a report from the Judge by the. High Court. It is true that under section 540 of the Criminal Procedure Code the High Court has got very wide powers to examine any witness it likes for the just decision of the case, but this power has to be exercised sparingly and only when the ends of justice so demand.. The higher the power the more careful should be its exercise. In the case of Regina v. Gazard(173 E.R. 633.) it was held by Patteson, J. that it will be a dangerous precedent to allow a President of the Court of Record to be examined as a witness. In this connection, Patteson, J. made the following observations : It is a new point, but I should advise the grand jury not to examine him. He is the present of a Court of Record, and it would be dangerous to allow such an examination, as the Judges of England might be called upon to state what occurred before them in Court . Although in the instant case the Sessions Judge was not a Court of Record but the principles laid down by Patteson, J. would equally apply to him. We do not mean to suggest for a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and re-examine 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 . A careful perusal of this provision manifestly reveals that the statute has armed the Court with all the powers to do full justice between the parties and as full justice cannot be done until both the parties are properly heard, the condition of giving an opportunity to the accused to rebut any fresh evidence sought to, be adduced against him either at the trial or the appellate stage appears to us to be implicit under section 540 of the Cr.P.C. The words just decision of the case would become meaningless and without any significance if a decision is to be arrived at without a sense of justice and fair play. In the case of Channu Lal and Anr. v. Rex(1) the Division Bench of the Allahabad High Court ruled as follows : Section 540, in our opinion, empowers a Court to take such evidence. If the Court decides to take such evidence, it would be pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... error in refusing the appellants an opportunity of giving evidence to rebut the evidence, of the witnesses examined by the High Court under section 540, Cr.P.C. Normally, this error would have been sufficient to vitiate the judgment and would have required our remitting the case to the' High Court for a fresh decision. We however find that this is a very old case when the occurrence had taken place more than 8 years ago and the appeal in this Court has itself taken more than five years. In these circumstances, we feel that the ends of justice do not require that the case should be sent back to the High Court which would entail further delay. We have therefore, decided to go into the, evidence ourselves after completely excluding the evidence of the witnesses examined by the High Court under section 540, Cr.P.C. so that we base our decision only on the evidence and the circumstances that were before the Sessions Judge. Before going into the merits we might mention a few facts which have been found against the appellants. Both the High Court and the, Sessions Judge have believed the evidence of P.Ws. 1, 2 and 3 who proved the assault on the deceased and Chhotey Lal. The Sessio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n in the circumstances of the present case does not appear to be a fatal defect in the prosecution case. This Court in the case of Dalbir Kaur Ors. V. State of Punjab ([1977] 1 S.C.R. 280.) said that it is manifest that what is important is not as to who were not examined but as to whether the witness who had actually been examined should be believed and while enunciating the principles on the basis of which this Court would interfere in an appeal by special leave observed as follows : 1. That this Court would not interfere with the concurrent findings of fact based on pure appreciation of evidence even if it were to take a different view on the evidence. 2. That the Court will not normally enter into a reappraisement or review of the evidence, unless the assessment of the High Court is vitiated by an error of law or pro- cedure or is based on error of record, misreading of evidence or is inconsistent with the evidence, for instance, where the ocular evidence is totally inconsistent with the medical evidence and so on; 3. That the Court would not enter into credibility of the evidence with a view to' substitute its own opinion for that of the High Court; 4. That ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o of appeal filed in the High Court nor was any attempt made by the appellants to prove that the said statement was wrong on a point of fact either by examining counsel who bad conducted the case before the trial Court or by producing any other proof. Furthermore, the learned Judge has clearly mentioned in his judgment that the fact that four live cartridges belonging to the deceased were found lying at the spot was not even challenged by the defence. Even this fact was not controverted either before the Sessions Court or in the memo of appeal filed in the High Court. Finally, the High Court itself has pointed out that Shri S. N. Mulla and Shri R. K. Shangloo who had represented the appellants in the appeal in the High Court and had also appeared for the appellants before the trial Court on enquiry by the High Court whether the revolver cartridges exhibited at the trial were live or empty were not in a position to refute the statement made by the prosecutor Shri B. C. Saxena. In this connection, the High Court observed as follows Shri S. N. Mulla and Shri R. K. Shangloo represent the appellants in Criminal Appeal No. 2561 of 1969. Both these learned counsel had appeared on beha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . State of U.P. (A.I.R. 1956 S.C. 181.) it was pointed out by this Court that statements made by the prosecution witnesses before the investigating police officer being the earliest statements made by them with reference to the facts of the occurrence are valuable material for testing the veracity of the witnesses examined. In this connection, this Court observed as follows Statements made by prosecution witnesses before the investigating police officer being the earliest statements made by them with reference to the facts of the occurrence are valuable material for testing the veracity of the witnesses examined in court but the statements made during police investigation are not substantive evidence . Reliance was placed by the learned counsel for the appellants on this decision in support of his argument that the statements made in the inquest report were inadmissible in evidence being hit by section 162 Cr. P.C. In the first place, the statement made by the Investigating Officer in Ex.Ka-10 is not a statement made by any witness before the police during investigation but it is a record of what the Investigating Officer himself observed and found. Such an evidence is the dire ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a case section 162 would have no application at all. Reliance was also placed on a recent decision of this Court in the case of Castano Piedade Fernandes Anr. v. Union Territory of Goa, Daman Diu Panaji Goa([1977] 1 S.C.C. 707.). This case is also wholly irrelevant to the issue in question because there the Court on a consideration of the evidence found as a fact that the panchnama was not a genuine document and did not inspire confidence. There is no such finding by the High Court or the Sessions Judge in the instant case nor has the inquest report been shown to be unreliable or perfunctory or suspect. Apart from the inquest report Ex. Ka-10 there is another document which throws a flood of light on this question. Exh. Ka-18 which is the site plan prepared by the Investigating Officer at the spot from where the empty cartridges of 12 bore were recovered. This is also a record of what the Investigating Officer himself found at the spot. The learned counsel for the appellants submitted that the site plan was also not admissible in evidence because it was- based on information derived by the Investigating Officer from the statement of witnesses during investigation. Relianc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the case as offence No. 126, under sections 147/148/149/302/392/ 324 I.P.C. It appears that where an empty cartridge is mentioned it is described as Khokha whereas in the case of live- cartridge the word cartridges-Kartoos has been clearly mentioned. Ex. Ka-13 is the seizure memo of the recovery of an empty cartridge of 12 bore which was found at the spot and which was said to have hit the deceased having been fired from the gun of one of the appellants. It was also mentioned in this memo, that smell of the gun powder was coming out of the Khokha. When the Investigating Officer deposed before the Sessions Judge that smell was coming out from the cartridge he was actually referring to the, empty cartridge which was recovered from the spot and which was fired from the gun of the appellants. Ex. Ka-14 however is the seizure memo of the four live Cartridges found by the Investigating Officer at the spot, in which it is mentioned that four cartridges of 32 bore revolver are recovered. The exact description is given thus : Description of the Cartridge Four cartridge of 32 bore of revolver of brass cap and blacks lead Kynock-32 Sand W. engraved on the brass cop. old. It wou ..... X X X X Extracts X X X X X X X X Extracts X X X X
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