TMI Blog1945 (7) TMI 11X X X X Extracts X X X X X X X X Extracts X X X X ..... r way back from the village of Munara three or four miles distant, where Akbar Khan had been collecting land revenue. The time at which the assault took place is disputed, but the finding of the Courts in India is that it was between 4 and 5 P.M. Both men received severe injuries apparently with blunt weapons, and Akbar Khan died the same evening. Nur Khan survived and was a witness in the case. The first information report was registered at the Police Station of Buchal Kalan at 10 A.M. on 7th January 1944, but is said to have been taken down at an outlying post at 4 A.M. by an Assistant Sub-Inspector of Police. The maker of the report Imam Din said that he had heard of the affair from one Mohammad Nawaz and that he had gone to the spot and heard a statement made by Akbar Khan, who subsequently died on the road. The persons named as the assailants were Umar Hayat, Malak Khan, appellant, Nur Alam, Grulsher, Aurangzeb and Baraa, all residents of the village of Bahl. 3. In the course of investigation, Nur Khan and two witnesses, said to be eye-witnesses, told the police that Umar Hayat and the appellant had taken from Akbar Khan a black purse containing money and a list and a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... outside the compound wall could have placed the purse etc. from where the articles were recovered. The residential Kotha (house) of Malak Khan is about 25 or 30 yards from those stones. In cross-examination he said: The fard (list) Bxh. P.C. about the recoveries made from Malak Khan's courtyard is signed by me. I signed the fard without reading or understanding it. The fard was not read out to me. I was merely told that I was to sign the memo, of recovery re purse etc. The A.S.I, held the papers in his own hand when I signed the fard. It was neither dark nor light at the time of the recovery. The fard was not made out at the spot, but at the dera (office). 5. Other witnesses belonging to the village of Munara gave evidence to the effect that the attack was made after sunset, that Akbar had set out after taking an evening meal with Falak Sher D.W. 5 and that the first statement of Nur Khan had been that he did not recognise the assailants, whose faces were bandaged. Two of the assessors were for convicting all six accused, and one for convicting all but Hayat and Aurangzeb, who pleaded alibi. The Sessions Judge in his judgment dated 1st July 1944, said ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the principal culprit and decided that there was at least one incident proving the existence of serious ill-will between Malak Khan on one hand and Akbar Khan, Nur Khan and Alam Khan on the other and providing a motive for Akbar Khan's murder. 9. As to the time at which it was alleged that the first information report had been made, they disbelieved both Imam Din who made it and the Assistant Sub-Inspector who wrote it, regarded it as having been made at a much later time than that given in evidence and drew the conclusion that the deceased was unconscious when Imam Din arrived and that the statements which were said to have been made to Imam Dim by him were inventions., pure and simple. The learned Judge placed little reliance on the evidence of Mohammad Nawaz and Alam Khan and even of the injured Nur Khan, of whom he says: The result, in my opinion, is that it is highly-unsafe to act upon his statement unless it is corroborated by any other evidence of unmistakable-character or by circumstances the correctness of which cannot be denied. 10. In his view, apart from the general tendency in cases of this nature to rope in innocent persons, Nur Khan an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itness examined and by the probabilities of the case. 13. Indeed this argument was put in the forefront of the appellant's case. The Sessions Judge, it was said, had acquitted the appellant of robbery; he was, therefore, not guilty of that offence; no appeal had been taken against that acquittal and therefore no Court was entitled to take into consideration the allegation upon which the accusation of robbery was founded even as corroborative evidence in another case. Their Lordships cannot accept this contention. The learned Sessions Judge did not in fact find the accusation baseless; he only found the crime not proven. But even if he had disbelieved the whole story of the recovery of the stolen property from the appellant, his finding would not prevent the High Court from weighing its value and if they accepted its substantial truth from taking it into consideration in determining whether another crime had been committed or No. The acquittal no doubt would have entitled the accused man to plead autrefois acquit if again charged with the same crime, but it would not prevent a civil action being brought against him for the return of the things stolen or for their value ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (2) The search shall be made in their presence and a list of all things seized in the course of such search and of the places in which they are respectively found shall be prepared by such officer or other person and signed by such witnesses: but no person witnessing a search under this section shall be required to attend the Court as a witness of the search unless specially summoned by it. 16. In their Lordships' opinion the presence of witnesses at a search is always desirable and their absence will weaken and may sometimes destroy the acceptance of the evidence as to the finding of the articles, but their attendance at the search is not always essential in order to enable evidence as to the search to be given. Where, as here, it is alleged and proved that the articles were produced by the accused man himself, Section 165 does not apply. That section is meant to be used in cases where a search warrant would be made use of in the ordinary course, but lack of time renders it impolitic to use it. If the section did apply, proof of the search might be inadmissible for other reasons, but there would be no necessity to call either of the witnesses to the search having reg ..... X X X X Extracts X X X X X X X X Extracts X X X X
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