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PETITIONER:

BHAGWAN SINGH

Vs.

RESPONDENT:

THE STATE OF PUNJAB

DATE OF JUDGMENT:

30/04/1952

BENCH:

BOSE, VIVIAN

BENCH:

BOSE, VIVIAN

FAZAL ALI, SAIYID

CITATION:

1952 AIR 214 1952 SCR 812

CITATOR INFO :

R 1959 SC1012 (13)

R 1980 SC 628 (11)

ACT:

Evidence Act (1 of 1872) secs. 145, 157--Criminal Proce-

dure Code, 1898, secs. 208, 288, 537,540--Criminal

trial--Examination of witness not examined before Committing

Magistrate--Legality-Statements before Committing Magis-

trate--Admissibility--Statement not denied--Use as corrobo-

rative evidence--Certificate of magistrate that deposition

was read over--Presumption of correctness--Practice of

examining Committing Magistrate, impropriety of.

HEADNOTE:

The Sessions Court has power to examine witnesses who

were not examined before the Committing Magistrate because

of sec. 540, Criminal Procedure Code, and if the witness is

treated as a prosecution witness and examined by the prose-

cuting counsel instead of by the court, that at best would

be an irrigularity curable by sec. 537 of the Code. The

proper time to object to such a procedure would be at the

trial itself.

Sher Bahadur v. The Crown (I.L.R. 15 Lah. 331) and Queen

Empress v. G.W. Hayfield (I.L.R. 14 All. 212)distin-

quished S.S. Jhabwala v. Emperor (A.I.R. 1933 All. 690) and

Mussamat. Niamat v. The Crown I.L.R. 17 All. 176) approved.

Emperor v. Channing Arnold (13 Cr. L.J. 877) referred to.

Resort to sec. 145 of the Evidence Act is necessary only

if a 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 sec. 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 statement of which no further proof is necessary

because of the admission' that it was made. The former

statement cannot be used as substantive evidence unless sec.

288, Criminal Procedure Code, is called in aid but even

without sec. 288 the court would be entitled to say, basing

on the evidence-in-chief which is the substantive evidence,

that what the witness said to the police or the Committing

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Magistrate, is the true version, not because those state-

ments form substantive evidence, but because they tally with

the evidence-in-chief which is substantive.

If a former statement can be brought in under sec. 157

of the Evidence Act, it can be transmuted into substantive

evidence by the application of sec. 288 of the Criminal

Procedure Code.

Tara Singh v. The State [1951] S.C.R. 729 distinquished.

813

In the certificate of the Committing Magistrate endorsed

on the deposition sheet states that the deposition was read

out to the witness and the witness admitted it to be correct

the court is bound to accept this as correct under sec. 80

of the Evidence Act until it is proved to be untrue.

It is not necessary nor desirable to examine the Commit-

ting Magistrate to prove the truth of his certificate.

Kashmera Singh v. The State of Madhya Pradsh [1952]

(S.C.R.) 526 followed.

Even if it be true that the deposition was not read

over, that would only amount to a curable irregularity and

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, the objection cannot be

sustained.

JUDGMENT:

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.

12 of 1952.

Appeal by special leave from the judgment and order

dated 4th June, 1951, of the High Court of Judicature of

Punjab at Simla (Bhandari and Soni JJ.) in Criminal Appeal

No. 109 of 1951 arising out of Judgment and order dated 19th

March 1951 of the Court of the Additional Sessions Judge,

Ferozepore, in Sessions Trial No. 18 of 1951.

T.R. Bhasin, for the appellant.

Gopal Singh, for the respondent.

1952. April 30. The Judgment of the Court was delivered

by

BOSE J.--This is a simple case though it was argued at

great length on behalf of the appellant and a number of

technical objections to the validity of the trial taken.

The appellant Bhagwan Singh has been convicted of the

murder of one Buggar Singh and sentenced to death. He has

also been convicted under section 19(f) of the Indian Arms

Act but we are not concerned with that here.

The prosecution story is that the appellant bore a

grudge against the deceased because the deceased had fired

at the appellant's brother some six or seven years before

the present occurrence and was sent to jail for

814

it. When he came out of jail the police thought it prudent

to take proceedings against both sides under section 107 of

the Code of Criminal Procedure. This resulted in the appel-

lant's two brothers and his cousins being bound down, as

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 Rs. 5 from Jit Singh who

lent him the money and entered the transaction in his ac-

count book. When the deceased left the shop he was followed

by the appellant who shot him at point blank range with a

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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 prosecution examined only five. Two of

them turned hostile in the Sessions Court and one gave

evidence which has been regarded by the High Court as neu-

tral. The remaining two, Balbir Singh (P.W. 5) and Jaswant

Singh (P.W. 6) have been believed. The only questions are

(1) whether the conviction can be rested on their testimony

and(2) whether certain irregularities in the trial vitiate

it.

No attack was made on the testimony of Balbir Singh,

P.W. 5, except that the two eye-witnesses who

815

resiled in the Sessions Court contradict him. But it was

argued that the evidence of Jaswant Singh P.W. 6, is viti-

ated because he was not examined by the Committing Magis-

trate. It was said that makes his evidence in the Sessions

Court inadmissible.

This raises a question which is largely academic in this

case because the reason Jaswant Singh, P.W. 6, was not

examined by the Committing Magistrate is that the witness

had gone away and was not available and it would have been a

needless, and indeed unjustifiable, holding up of the pro-

ceedings to wait till he could be found and summoned. It is

evident that the Sessions Court has power to examine wit-

nesses who were not examined before the Committing Magis-

trate because of section 540 of the Criminal Procedure Code,

and if the witness is treated as a prosecution witness and

examined by the prosecuting counsel instead of by the Court

itself that at best would be an irregularity curable by

section 537. The proper time to object to such a procedure

would be at the trial itself, and as the appellant was

represented in the Sessions Court by two counsel it is too

late to object to such a venial irregularity in this Court.

The learned counsel for the appellant took us elaborate-

ly through the provisions of Chapter XVIII of the Criminal

Procedure Code and stressed in particular section 208 (1)

but we need not enter into this because section 540 is a

complete answer in this particular case. None of the cases

cited goes so far as to say that no witness who was not

produced in the committal proceedings can be examined at the

trial and we would be unable to agree if they did. The

decision most in favour of the appellant's contention is

Sher Bahadur v. The Crown (1)but that does no more than

consider such an omission as a curable defect. Abdul Qadir

J. said at pages 338 and 342 that it was conceded before

them that section 540 could be called in aid in such a

case, and at page 339 the learned Judge dealt with the

question of prejudice

(1)(1934)I.L.R. 15 lah.331.

106

816

and concluded at page 344 with the remark that the question

is one of fact in each case and that in his opinion there

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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 commit-

tal 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 preju-

dice.

The question raised in Queen-Empress v. G.W.

Hayfield(1) does not arise here because the Sessions Court

did not refuse to examine Jaswant Singh, P.W. 6, and so the

question whether the prosecution could demand his examina-

tion as a matter of right never arose. The fact remains that

they were permitted to do so and the defence raised no

objection.

The decision of the Allahabad High Court in S.H. Jhabwa-

la v. Emperor (2)and the Full Bench of the Lahore High Court

in Mussammat Niamat v. The Crown(3) are against the learned

counsel's contention.

The decision of the Full Bench of the Lower Burma Chief

Court in Emperor v. Channing Arnold (4) is not in point

because the Committing Magistrate there refused to examine

witnesses which the prosecution wanted, and indeed insisted

that he should examine, and what was worse he prevented the

accused from completing the cross-examination of the only

prosecution witness which the Committing Magistrate thought

fit to examine. Whatever else may be thought of

(1) (1892) I.L.R. 14 All. 212. (3) (Z936) I.L.R. 17 Lah.

176.

(2) A.I.R. 1933 All. 690. (4) (1912) 13 Cr. L,.J. 877.

817

section 208 it is evident that the accused has the right to

cross-examine. at any rate, those of the witnesses who

are.examined by the Committing Magistrate on behalf of the

prosecution and section :547 cannot be used as a cloak for a

hasty committal before such cross-examination is complete.

In our opinion, the cases cited do not justify the

extreme position taken up by the learned counsel for the

appellant and as section 540 is a complete answer in this

case all we need consider is the question of prejudice. We

do not hold that the Court is bound to examine a witness

called under section 540 itself as a court witness and that

it can never entrust the examination to the prosecuting

counsel because even if that be the proper procedure no

prejudice has been occasioned in this particular case. The

irregularity here on this score, if indeed it is one, is so

trivial as to be innocuous.

A more important question is, was the appellant taken by

surprise and was prejudice occasioned because of that ? We

do not think so because Jaswant Singh was mentioned in the

first information report, recorded within 15 minutes of the

occurrence, as one of the eye-witnesses and he was again

mentioned as an eye-witness in the calendar of the committal

proceedings. The appellant was presumably supplied with the

witnesses' statement to the police, or at any rate he had

the right to demand a copy under section 162 and if he did

not do so, It was presumably because neither he nor his two

learned counsel wanted it. The first information report is a

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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

818

objection would ordinarily have to be raised at the trial,

but as the witness does not do that, there can be no objec-

tion 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 foundation

for the very elaborate network of technicalities upon which

the learned counsel for the appellant embarked. But Bhand-

ari J. (Soni J. concurring) after saying that

"After a careful consideration of all the facts and

circumstances of the case I entertain no doubt in my mind

that Balbir Singh and Jaswant Singh P. Ws. have told nothing

but the truth" went on to say"and that Jit Singh and Jagir

Singh who made correct statements before the police and

before the Committing Magistrate have given false evidence

in the trial Court with the object of saving the appellant

from the gallows."

It was argued that the learned Judges have here used

the evidence of these witnesses before the Committing Magis-

trate as substantive evidence despite the fact that it was

legally inadmissible for that purpose because the formali-

ties prescribed by section 288 were not observed. Reliance

was placed upon Tara Singh v. The State(1).

Even if that be so, it would make no difference because

the evidence of Balbir Singh and Jaswant Singh, whom the

learned Judges primarily believe, is sufficient to afford a

basis for the conviction and the mere fact that extraneous

matter not necessary for the conviction was also called in

aid would not affect

(1) [1951] S.C.R. 729.

819

the result. But as a matter of fact the foundation for this

attack is based upon incorrect assumptions.

We will deal with Jit Singh, P.W. 2, first. He supported

the prosecution case in his examination-inchief but resiled

when cross-examined. He was therefore treated as hostile and

the learned Public Prosecutor was permitted to cross-examine

him. In cross-examination the witness's statement in the

Committal Court was read out to him and he was asked whether

he had made such a statement and he said: "Yes." When that

statement is read it is found to tally with his evidence in

chief and with the depositions of Balbir Singh and Jaswant

Singh and with the first information report. Now it was not

necessary to use the former statement as substantive evi-

dence at all and the fact that the learned High Court Judges

placed this on a par with the statements to the police,

including of course the first information report, indicates

that they were not using the former statements as substan-

tive evidence but merely as corroboration of what was said

in chief. The distinction is a subtle one and can perhaps be

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best explained in the following way.

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 illus-

tration 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

820

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 statement of which no further proof is necessary

because of the admission that it was made.

Of course, that statement cannot be used as substantive

evidence unless section 988 of the Criminal Procedure Code

is called in aid. But even without section 288 a Court would

be entitled to say in such a case, basing on the evidence in

chief, which is substantive evidence. that what the witness

said to the police, or to the Committing Magistrate, is the

true version, not because those statements form substantive

evidence but. because they tally with the evidence in chief

which is substantive. This is only one of the many ways in

which a witness's testimony can be sifted and examined.

Corroboration is as useful to test the truth of a story as

any other method. In such a case, what the Court really

does, though it may happen to put the matter the other way

round, is to say that in its opinion the substantive evi-

dence given in chief is true because it is corroborated by

an earlier statement and for that reason, namely because the

version in chief is the true one the contradictory version

given in cross-examination is wrong, not because of the

contradiction embodied in the former statement but because

of what was said in chief, a version which it is now safe to

believe on account of the corroboration afforded by the

earlier statement. It is true the earlier statement could

also have been used for contradicting the version given in

crossexamination and in- that event, if it is in writing,

the limitations imposed by section 145 of the Evidence Act

would have to be observed, but the prosecution is not bound

to do that. It has a choice. It can, if it so chooses,

build up the version given in chief in any way it pleases

and, having done that, use the version in chief to destroy

the version in cross-examination.

821

But in the case before us there is no need to resort to

these subtleties because here the depositions were brought

on record and could be used as substantive evidence even if

the formalities prescribed by section 145 of the Evidence

Act were not observed for the very simple reason that there

was no need in this cause to resort to section 145. As we

have said, the prosecution had a choice here because of the

two conflicting versions given in chief and in crossexami-

nation. It was entitled to use the former statement either

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to contradict what was said in crossexamination or to

corroborate what was said in chief. In either event, sec-

tion 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 Evi-

dence 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(1) 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 resort-

ing 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 examination of his evidence we find that

the formalities prescribed by section 145 were complied

with. His cross-examination, in contrast to Jit Singh's

where such a procedure was not necessary. shows that every

circumstance intended to be used as contradiction was put to

him point by point and passage by passage. That was

(1) [1951] S.C.R. 729 at 743.

822

conceded, but it was argued that this was done without

drawing the witness's attention to the parts of the writing

which were to be used for the purposes of contradiction.

We are by no means satisfied that is the ease because at

least one of the passages is reproduced in inverted commas

and so must have been read out from the statement. But that

apart. Immediately after the witness had been questioned

about each separate fact point by point, the whole statement

was read out to him and he admitted that he had made it in

the Committing Court. Now this procedure may be open to

objection when the previous statement is a long one and only

one or two small passages in it are used for

contradiction--that may, in a given case, confuse a witness

and not be a fair method of affording him an opportunity to

explain-but in the present case the previous statement is a

short one and the witness was questioned about every materi-

al passage in it point by point. Accordingly, the procedure

adopted here was in substantial compliance with what sec-

tion 145 requires. There can be no hard and fast rule. All

that is required is that the witness must be treated fairly

and be afforded a reasonable opportunity of explaining the

contradictions after his attention has been drawn to them in

a fair and reasonable manner. We are satisfied that was done

here. The matter is one of substance and not of mere form.

Jit Singh, P.W. 2, said that the statement made by him

in the committal proceedings was not read over to him and so

did Jagir Singh, P.W. 4. It was argued that in the absence

of an enquiry that must be accepted as true, and if true,

the evidence becomes inadmissible.

Now the certificate of the Committing Magistrate en-

dorsed on the deposition sheet states that the deposition

was read out to the witness and that the witness admitted it

to be correct. The Court is bound to accept this as correct

under section 80 of the Indian Evidence Act until it is

proved to be untrue. The burden is on

823

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the person seeking to displace the statutory presumption and

if he chooses 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 re-

marks we made in Kashmera Singh v. The State of Madhya

Pradesh (1) based on the decision of the Privy Council in

Nazir Ahmad v. King Emperor(2) 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 (3), 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 the objection. The object of the reading over

prescribed by section 360 of the Code of Criminal Procedure

is not to enable the witness to change his story but to

ensure that the record faithfully and accurately embodies

the gist of what the witness actually said. Therefore,

before prejudice can be substantiated on this score, it must

be disclosed by affidavit exactly where the inaccuracy lies.

The next and last objection is on similar lines. Jit

Singh, P.W. 2., and Jagir Singh, P.W. 4, said that their

statements before the Committing Magistrate were made under

the threats and duress of the police. It was argued that

that should not have been rejected without further enquiry,

and a ruling in which a further enquiry was considered

necessary was cited. Here

(1) [1952] S.C.R. 526.

(2) A.I.R. 1936 P.C. 253 at 258.

(3) A.I.R 1927 P.C. 44 at 45-47.

107

824

again, it is no part of a Court's duty to enter upon a

roving enquiry in the middle of a trial on matters which are

collateral to the main issue. The burden is on the person

making these allegations to substantiate them and if he

chooses to rely on evidence.which does not satisfy the Court

he must' suffer the same fate as every other person who is

unable to discharge an onus which the law places upon him.

It was also argued that there was no proper compliance

with the provisions. of section 342 of the Criminal Proce-

dure Code. We are satisfied that there was substantial

compliance in this case. The facts were simple and few and

the crucial matters were brought to the attention of the

appellant. In any event, the learned counsel was unable to

tell us even at the argument stage exactly how his client

was prejudiced and tell us what answers his client would

have given to the questions which, according to counsel,

ought to have been put to the appellant. We pressed him

several times to disclose that but he was unable to do so.

As we said at the outset, the case is a very simple one

in which a man was caught red-handed with a pistol still in

his hand and in which the first information report was

recorded practically on the spot within 15 minutes of the

occurrence. The murder was committed in day light and there

was no dearth of eye-witnesses. Two have been believed, and

in the case of the other two, certain statements made by

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them in the Sessions Court resiling from statements previ-

ously recorded in the committal proceedings have been disbe-

lieved.

The appeal fails and is dismissed. We see no reason to

interfere with the sentence of death.

Appeal dismissed.

Agent for the appellant: Sanker Das.

Agent for the respondent: P. 4. Mehta.

825