STATE Vs. RAM BILAS

JUDGEMENT

(1.) This is an appeal filed by the State in a dacoity case. The Additional Sessions Judge of Sitapur acquitted the fourteen accused respondents, who were prosecuted under Section 395 I. P. Code, but this decision aggrieved the State and it has filed this, appeal,

(2.) The main ground on which the trial court acquitted the accused-respondents was that only two witnesses were examined before the committing Magistrate and the identification by one of these witnesses was totally unreliable. It ignored to take into consideration the identification by the other witnesses who were produced for the first time before the trial court in view of a Divisional Bench decision of this Court in Lalla Singh v. The State, Cri. Appeal No. 29l of 1958, D/13- 12-1959 (All). The Divisional Bench consisted of Mr. Justice James and one of us and the decision was dictated by Mr. Justice James. One of us who sat on that Bench concurred with that decision. It was observed in that decision: No witness of identification can be deemed reliable unless he is found to consistently identify an accused person in the jail and in the Courts of the Committing Magistrate and Sessions Judge, and day-to-day experience shows that not up often, a witness identifies a person in the jail and to the Session Court, but fails to do so in the Magistrate's Court, with the result that his evidence is invariably rejected. No doubt the amended Code of Criminal Procedure does not compel the prosecution to examine every witness in Magistrate's Court, nevertheless the prosecution take a big risk by withholding from Committing Magistrate's Court witnesses whose testimony includes personal identification. Even though his identification of a given accused person may be correct in the jail and in the Sessions Court, I would consider it trustworthy rally if I find him identifying him in the Magistrate's Court also. I am, therefore, not disposed to attaching any value... to the identification of a witness who had correctly identified the accused in jail and in Sessions, but who had not been produced before the committing Magistrate. It seems that this view was accepted in several decisions and then later on a contrary view was expressed and what is extraordinary about it is that this contrary view was also expressed by the same Judge whose view has been cited above. It is all the more amazing that when the learned Judge gave a contradictory view, he did not refer to the earlier view expressed by him and did not indicate that for some reason the earlier view was not correct and he had changed his view. This view was expressed in Asharfi v. The State, AIR 1961 All 153, 1961 CriLJ 340. The counsel for the accused in that case had contended that if an identifying witness is not produced in the Magistrate's Court then the defence loses the reasonable possibility of contradicting the subsequent identification before the trial court by his failure to do so before the Committing Magistrate. The learned. Judges in Asharfi's case AIR 1981 All 153 considered this argument and observed (p, 167). The argument is plausible and merits consideration. Now. the accused has a right to use a witness's statement before the Committing Magistrate for contradicting him, and that right cannot be abridged, 'provided the legislature itself does not decide otherwise'. But what has the legislature done? By introducing Section 207-A in the Code by Act No. XXVI of 1955 it has considerably altered the law relating to the procedure to be adopted in commitment Proceedings instituted on a police report, and by virtue of Clause (4) has given to the prosecution absolute discretion in the matter of production of eye-witnesses, and indeed this Bench has held in State v. Yasin, AIR 1958 All 861, 1958 CriLJ 1449, that if in a particular case the prosecution do not choose to call a single eye-witness they cannot be compelled to do so. It is clear, therefore, that the legislature itself has conferred a power upon the prosecution which results in the Curtailment of the right of the accused to utilize a witness's statement in the committing Court for his own benefit. Since this is the outcome of a specific statutory provision, no grievance can be made of the fact that by the non-production of an identifying witness in the Magistrate's Court the accused has been deprived of a possible chance of discrediting; him in the event of his failure to identify him in that Court - we are not aware of any principle of law By which the prosecution can be penalised for exercising a right conferred upon them by the statute.

(3.) We have given due consideration to the view expressed above. With all respects to the learned Judges, we are unable to agree with it. The basic question to he considered in our opinion was whether it was within the province of the legislature to lay down rules for the Courts of law as to what evidence they should believe and what evidence they should not believe. They can do so only by amending the Indian Evidence Act and certain other relevant statutes. They can do so by modifying certain Articles of the Constitution, but so long as the Indian Evidence Act remains as it is, it is for the Courts of law to determine when a fact can be held to be Proved, Apart from this, we believe, that the legislature amended the Code of Criminal Procedure only to speed up the committal proceedings and not to lessen the degree of proof which was considered necessary earlier. At any rate there were two contradictory views given by two Divisional Benches of the High Court and the same Judge had given both these views. We have already mentioned above that the first view was followed in several other cases both by Single Judges and by Divisional Benches.