TMI Blog1957 (7) TMI 50X X X X Extracts X X X X X X X X Extracts X X X X ..... ntial evidence. It is well-settled principle of criminal jurisprudence that circumstantial evidence must be consistent and consistent only with the guilt of the accused and that if the evidence is consistent with any other rational explanation, then there is an element of doubt of which the accused must be given the benefit. Bearing in mind the said caution, we shall proceed to consider the evidence in this case. 4. The doctor, who performed the autopsy on the dead body, described the condition of the body and the wounds thereon thus: 1. A horizonal mark in front of the neck measuring 2 in length 1/2 in breadth: abrasions and ecchymosis were present in front of the neck: the horizontal mark had brown and parchment appearance: there was congestion under the skin. 2. Abrasion on the chin and the lower lip. 3. Abrasions on the posterior side and left and right elbow joints. 4. Abrasion on the left and right inguinal and left inguinal. 5. Abrasion on the right thigh. 6. Abrasions on the right temple. 7. Abrasion on the lateral side of the left knee joint; and half digested food was present in the stomach. 5. The witness expresses his view that, in his o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aughter Narasavva to fetch her husband and after he came, she saw behind the wooden cot, the corpse of the deceased lying on her face and her body was covered with new clothes. The evidence of this witness is sought to be impugned by suggesting to her that the accused had given her five toast of gold at the time of her son's marriage and that she had not returned to him, presumably insinuating that she had done away with the deceased so that her brother might be inculpated in the murder. To put it differently, the suggestion is that to escape her liability to her brother, she conceived the diabolical act of murdering her innocent sister-in-law so that she could at one stroke get rid of her sister-in-law as well as her liability to give back the gold to her brother. This suggestion is as extravagant as it is far-fetched and there is no justification or even foundation for it on the evidence. If it was the intention of this witness to get at the jewels of her sister-in-law, she would not have allowed the jewels to continue to remain on the dead-body of the deceased. 7. It is then said that there are some discrepancies between her evidence and that of her husband. We shall d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to his father-in-law. In cross-examination discloses that he did not mention this fact to anybody till he gave evidence in Court. We are inclined to think that this witness had been improvised for the occasion for, if really the accused informed him of his suspicions and threatened to do some thing which would be known to them all, it is not likely that he would not have mentioned that fact to the father of the deceased, or, at any rate, to his wife immediately when he went to his place. We, cannot therefore, accept the evidence of this witness. 9. Ex. P-5 is the letter found on the dead-body. P.W. 1, the Police Patel of Venkataipalli speaks to the fact that the letter was found on the deadbody and that the hand-writing of that letter was that of the accused. In cross-examination, he would say that he knows the handwriting of the accused from his childhood. P.W. 5 took part in the panchanama relating to this letter. He says that Ex. P-5 is in the hand-writing of the accused. His knowledge of the handwriting of the accused is derived from the fact that his sister used to bring letters written to her brother by the accused for being read. The learned Judge refused to rely upon Ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me feeling depriving him of all self-control engendered by a provocation, which is both grave and sudden. In this case, the accused, who was a young man and who had lurking suspicions of the conduct of his wife who newly joined him was confronted with the confession of illicit intimacy with and consequent pregnancy by another. We have no doubt, that, under these circumstances, the provocation was both sudden and grave and that the accused, deprived of his power of self-control, strangled his wife to death. This is not a case covered by the proviso to Exception 1. The evidence does not disclose that this provocation was sought or voluntarily provoked by the accused as an excuse for killing his wife. It is true that he had his suspicions and also questioned her about it. But he did not extract the confession as an excuse to kill her but the confession of adultery and pregnancy by another made him lose his self-control and commit all act, which he did not either contemplate or prepare to do prior to the confession. We, therefore, hold that the accused is only guilty of culpable homicide not amounting to murder. 12. Learned Counsel for the accused contends that the committal proc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r than 14 days from the date of the receipt of the report, unless for reasons to be recorded he fixed any later date, for holding an enquiry. In addition to the documents referred to in Section 173, he will have to take the evidence of such persons, if any, as may be produced by the prosecution as witnesses to the actual commission of the offence alleged. The witnesses, who will depose to the prosecution case may be of different categories viz., among others (i) witnesses who are eye-witnesses to the actual occurrence; (ii) witnesses who speak to the facts which afford a motive for the commission of the offence; (iii) witnesses who speak to the investigation and the facts unfurled by the investigation and (iv) witnesses who speak to circumstances and facts probabilising the commission of the offence, which is technically described as circumstantial evidence. One of the said categories of witnesses, sub. Section 4 enjoins on the Magistrate to examine witnesses to the actual commission of the offence alleged, produced by the prosecution. The word 'actual' qualifying the word 'commission' emphasises the fact that the said witnesses should be those who have seen the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and thereafter the Magistrate will be within his rights in invoking his power to examine other witnesses. 15. Nor can we agree with the learned Counsel that the adverb 'also' indicates that the Magistrate may take the evidence of other witnesses only in addition to the eye-witnesses examined by him. In our view, the word 'also' denotes the extent of the power of the Magistrate rather than its limitation. What it means is that the Magistrate, after exhausting his power under the first part of the Sub-section, may also take such evidence i.e., evidence other than the evidence of witnesses to the actual commission of the offence. Thereafter, under sub-ss. 6 and 7 the Magistrate, after considering the evidence that has been taken by him and the documents referred to in Section 173 and if necessary after examining the accused either commits him to Sessions or discharges him. We realise that there is considerable force in the argument of the learned Counsel for the accused but the aforesaid construction would, without doing any violence to the language, avoid anomalies and, as often as not, work to the advantage of the accused rather than to his detriment. We hold ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arge, did not require the accused to give the said list. We must, therefore, hold that the Magistrate has contravened one of the provisions of Section 207-A, Cr.PC. 18. Even so, the question is whether the breach of such a provision invalidates the entire trial. Section 537, Cr.PC the residuary section, which cures irregularities committed by a Court of competent jurisdiction, reads: Subject to the provisions herein before contained, no finding sentence or order passed by a Court of competent jurisdiction shall be reversed or altered under Chapter XXVII or on appeal or revision on account- (a) of any error, commission or irregularity in the complaint, summons, warrant, proclamation, order, judgment or other proceedings before or during trial or in any inquiry or other proceedings under this Code, unless such error, omission, irregularity or misdirection has in fact occasioned a failure of justice. Explanation:In determining whether any error, omission or irregularity in any proceeding under this Code has occasioned a failure of justice, the Court shall have regard to the fact whether the objection could and should have been raised at an earlier stage in the proceedings ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aniti Pramanik v. The State A.I.R. 1953 Cal 620. Krishna Rao, J. followed those decisions in Tatikavela Ayyappa Naidu v. The State A.I.R. 1056 Andhra 110 . It may be mentioned that the aforesaid decisions turn upon the construction of Sections 211, 212 and 213, Cr.PC whereas we are concerned in this case with the provisions of Section 207-A introduced by Act XXVI of 1955. While the amended Section applies to a proceeding instituted on a Police report, the former set of sections apply to a proceeding instituted other than on a Police report or by the Court suo motu or under Sections 195, 476, Cr.PC etc. 22. The essential distinction between the two sets of sections is that, under the amended section, after the charge is framed and the accused is asked to give a list of witnesses, the Magistrate has no power to discharge the accused for he decides to commit him before that stage is reached, while under Sections 211, 212 and 213, Cr.PC the Magistrate may in his discretion summon and examine any witnesses named in the list given by the accused under Section 211 and on the basis of such evidence discharge the accused non-compliance, therefore, with the provisions of Section 211 subst ..... X X X X Extracts X X X X X X X X Extracts X X X X
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