STATE OF MAHARASHTRA Vs. ABDUL GAFUR MIYA MAHAMAD

JUDGEMENT

(1.) HIS Lordship, after narrating the facts, proceeded.) The learned Government Pleader appearing on behalf of the State conceded at the outset that the learned Additional Sessions Judge had dealt with the facts, evidence and circumstances of the case fairly and fully and that this was a case of an unanimous verdict of the jury who had considered all the evidence and circumstances of the case very carefully. Nevertheless, he said that there was one glaring illegality committed by the learned Additional Sessions Judge in his charge to the jury, and he addressed his arguments to us on that point. Now, that point is this: During the committal proceedings in this case certain three witnesses Ramji, Magan and Pancham were examined for the prosecution before the committing Magistrate. When the case went before the Sessions Court for trial, the learned Public Prosecutor, who was in charge of the case, made an application to the Court stating that he did not wish to examine as prosecution witnesses Ramji, Magan and Pancham as they had turned hostile and were not expected to give evidence in favour of the prosecution. The learned Additional Sessions Judge allowed that application and permitted the prosecution not to examine those three witnesses, although they had been examined as witnesses for the prosecution during committal proceedings. The next stage was reached when the defence made an application to the learned Additional Sessions Judge praying that the above mentioned persons be examined as Court witnesses. The learned Judge rejected that application and said that it was perfectly open to the accused to examine these persons as witnesses in their defence. Thereafter when the stage arrived for the accused persons to make statements under Section 342 of the Code of Criminal Procedure, accused No. 1 stated that he wished to use, as a part of his own statement, the statements made by the above mentioned three persons Ramji, Magan and Pancham when they were examined as prosecution witnesses in the Court of the committing Magistrate, and this is how the learned Judge dealt with that request:

(2.) MR. Gidwani appearing on behalf of the original accused No. 2 has drawn our attention to a decision in 'md. SALIA ROWTHER v. EMPEROR', AIR 1928 Mad 1135, in which it was held that it was open to an accused person to file in Court along with his statement a document written by him, whether it be a letter or any other document, and even if there was no witness to speak to the actual writing of the document, the Court was bound to consider the document along with his statement. It is to be noted that this was a judgment of a single Judge and, besides, that case stood on its own footing. It was a case in which the accused person sought to file in Court along with his own statement a 'document written by himself and a question arose whether the Court was bound to consider it along with his statement. In our present case, however, the question is not at all in respect of a document written by accused No. 1 himself or a statement made by himself at some other stage. The point has arisen in relation to statements, not made by the accused at all, but by three other persons when they were examined as witnesses in the Court of the committing Magistrate. Therefore, the observations contained in the above cited Madras case could not possibly apply to the present case. Besides, it is to be noted that the above mentioned decision in 'md. SALIA ROWTHER v. EMPEROR', was considered in 'emperor v. TUTI BABU', 25 Pat 33, and was disapproved in the following terms:

(3.) MR. Gidwani drew our attention in this connection to the provisions of Section 292 (c) of the Code of Criminal Procedure which lay down: