TMI Blog1965 (1) TMI 86X X X X Extracts X X X X X X X X Extracts X X X X ..... half of the Gaon Samaj proceedings for encroachment started against the fathers of the appellants sentenced to death. 2. On the day of occurrence Babu Singh Pradhan had gone on cycle to Behjoi to negotiate for the purchase of a Persian wheel. He had has cycle repaired by one Amrik Singh who was examined as a court witness. He was returning to his own village Alpur situated to the North-East of Behjoi at a distance of four miles when he was way-laid, felled from the cycle and fatally attacked by the appellants. The report of the incident was made by his brother Sangram Singh at Behjoi Police Station at 8.30 P.M. Sangram Singh claimed to have accompanied his brother to Behjoi and to be in his company at the time of the assault. He was the principal eye-witness in the case. He gave the time of the assault as 6 P.M. The First Information Report also mentioned the names of Man Sukh (P.W. 9), Ved Ram (P.W. 4) and Jia Lal (P.W. 11) as eye-witnesses. In the Report one Umrao was also named but he was not examined as it was alleged that he had been won over by the defence. 3. The prosecution examined 16 witnesses in support of the case. Two witnesses were examined by the court and 4 wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was accepted to be the probable motive for his false testimony. Man Sukh was not believed because he was a previous history sheeter . Jia Lal, who had stated that the occurrence took place at 7 P.M., and was consequently declared hostile by the prosecution, was believed by the learned Judge who came to the conclusion that no light was available at that hour for proper identification. The learned Judge was also convinced that there was a delay in the dispatch of the copy of the First Information Report, special report and the case diary, and he was of the opinion that the First Information did not accompany the requisition for postmortem examination sent to the doctor. He was finally of the view that as no independent eyewitness was examined the benefit of the doubt must be given to the accused. 5. The two judgment were than laid before Takru, J. who agreed with Mathur, J. in accepting the prosecution case. As a result of his decision the appeals were dismissed. On the application for certificate of fitness the two learned Judges, who had originally heard the appeal, again differed : Mathur, J. was in favour of refusing the certificate while Gyanendra Kumar, J. was for granting ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... their opinions thereon, shall be laid before another Judge of the same Court, and such Judge, after such hearing (if any) as he thinks fit, shall deliver his opinion, and the judgment or order shall follow such opinion. 8. The section contemplates that it is for third Judge to decide on what points he shall hear arguments, if any, and that postulates that he is completely free in resolving the differences as he thinks fit. In our judgment, it was sufficient for Takru J to have said on the question of the First Information Report that he did not consider it necessary to decide the point but if it was necessary he was in agreement with all that Mathur J had said. There was, therefore, a proper decision by Takru J and the certificate could not be based upon the omission to discuss the First Information Report and the doubts about it. 9. It was contended by the State the certificate attempted to reopen questions of fact which must be held to be decided finally by the High Court in concurrence with the Sessions Judge and such a certificate was incompetent in view of the decisions of this Court earlier mentioned. Reference was also made to Khushalrao v. State of Bombay 1958CriLJ10 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eal was dismissed by J. P. Mitter and Sisir Kumar Sen, JJ. He applied for a certificate and according to the practice of the Calcutta High Court the petition was placed not before the Judges who heard the appeal but before another Bench consisting of the Chief Justice and Lahiri J. The Chief Justice passed an elaborate order in the course of which he observed : In my view a certificate of fitness ought to issue in this case, although the question involved is one of fact. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . In my view it is impossible not to feel in this case that there has not been as full and fair a trial as ought to have been held. In the circumstances, it appears to me that the petitioner is entitled to have his case further considered and since such further consideration can only be given by the Supreme Court, I would grant the certificate prayed for. 13. As the chief Justice himself said the question involved was one of fact, this Court did not approve of the certificate and held that it was no certificate at all. It was pointed out that a certificate granted in Criminal Appeal No. 146 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d up with Bechan Singh. What the High Court really meant to do was to convict Bechan Singh and acquit Nanhu Singh. Instead of that they acquitted Bechan Singh and convicted Nanhu Singh. As soon as the learned High Court Judges realised their mistake they communicated with the State Government and an order was thereupon passed by that Government remitting the sentences mistakenly passed on Nanhu and directing that he be released. 16. All the accused applied for a certificate and in view of what had happened and as the conviction of Nanhu Singh on a murder charge was still subsisting a common certificate was granted to all of them. The High Court thought that the word case in Art. 134(1)(c) meant the case as a whole. Nanhu Singh did not appeal and the appeal was filed by Nar Singh and Roshan Singh on the common certificate. This Court pointed out that the High Court was wrong in thinking that the word case in the sub-clause meant a case as a whole and the certificate in relation to accused other than Nanhu Singh was bad. The certificate to Nanhu Singh was said to be proper. The Divisional Bench then considered the case under Art. 136(1) for special leave but found it unfit. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nterpreted as including only those cases which involve a question of general public importance. That test need not necessarily be applied to a criminal case but it is clear that mere questions of fact should not be referred for decision. The Constitution does not contemplate a criminal jurisdiction for this Court except in those two cases covered by cls. (a) and (b) which provide for appeals as of right. The High Court before it certifies the case must be satisfied that it involves some substantial question of law or principle. In a criminal appeal the High Court can consider the case on law and fact and if the High Court entertains doubt about the guilt of the accused or the sufficiency of the evidence it can always give the benefit to the accused there and then. It is not necessary that the High Court should first convict him and then grant him a certificate so that his Court, if it thought fit, reverse the decision. It is thus obvious that only a case involving something more than mere appreciation of evidence is contemplated by the Constitution for the grant of a certificate. What that may be will depend on the circumstances of the case but the High Court should be slow to cert ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
