CHAINCHAL SINGH Vs. EMPEROR

JUDGEMENT

(1.) THIS is an appeal by special leave from judgment of the High Court of Lahore dismissing an appeal by the appellant from a conviction for murder by the Additional Sessions Judge of Amritsar. The question of law which arises and was the ground on which special leave was given is whether the previous statement of a witness for the prosecution made before the committing Magistrate was properly admitted at the trial under Section 33 of the Indian Evidence Act, 1872. While contending; that the statement was properly admitted, the Crown submits that even if it ought to have been rejected, there was ample evidence justifying the conviction and that accordingly no grave or substantial injustice has been done. Their Lordships have already stated that they will humbly advise His Majesty that the appeal should be dismissed and now proceed to give their reasons.

(2.) THE appellant was charged before the learned Additional Sessions Judge along with thirteen others with the murder of one Sohan Singh. THE Sessions Judge convicted seven of the prisoners and sentenced them all to death, and acquitted the remaining seven. All the convicted persons appealed, and the High Court upheld the conviction and sentence on the appellant; they upheld the conviction of one other of the prisoners but substituted a sentence of transportation for life for that of death and quashed the convictions of the other appellants. THE evidence showed that there was undoubted enmity between the murdered man and the appellant and there is also no doubt but that the former was attacked by a considerable number of persons, some of whom were armed with weapons, that he was killed and his body afterwards disposed of so that no trace of it has been found. It has not however been disputed before the Board that there was not ample evidence upon which it could be found that the man was murdered, and the only question was whether the evidence showed that the appellant took part in the murder. THE murder took place at the Gorewala well in the village where the murdered man was lying on a cot. THEre were several persons called who alleged they were eye witnesses. Among them was a " patwari," Lachhman Das, who happened to be at the village that night in the course of his duties. He was examined before the committing Magistrate and there gave evidence in considerable detail showing that the appellant took a prominent part in, the attack on the deceased, and he was cross-examined by counsel for the accused. On December 8, 1943, the appellant along with the other accused persons was committed for trial to the Sessions which were held on January 19, 1944. On January 6, a summons was served on Lachhman Das ordering him to appear and give evidence at the trial on the 19th. This summons was served upon him by a police officer, Ganda Singh. Lachhman Das wrote on the summons : Sir, I am seriously ill and am unable to attend the Court. My statement may kindly be recorded at my place of residence. and gave it to the police officer. He did not appear at the trial and the officer was called and his evidence was as follows: I was entrusted with the summons issued for the service of Lachhman Das. I found him ill and unable to move from his house. He is suffering from tuberculosis. I got a report to that effect made by the Patwari on the summons.

(3.) NEXT it was contended for the appellant that if the previous statement of Lachhman Das was inadmissible, the appeal must be allowed as it was on that evidence that the High Court relied in upholding the conviction. Before this Board will advise His. Majesty to allow an appeal in a criminal case on the ground of the misreception o. evidence, they require to be satisfied that grave and substantial injustice has been caused thereby. In their Lordships' opinion there was ample evidence to justify a conviction in this case apart from Lachhman Das' statement, and they feel no doubt as to the guilt of the appellant. The trial Judge who saw and heaid the witnesses saw no reason to disbelieve the eye-witnesses on the main points in their evidence. It appears to their Lordships that the main reason the High Court had for not accepting, their evidence as satisfactory was that it did not accord in all aspects with that of Lachhman Das, and because he apparently did not see the two principal witnesses, Mula Singh and Mangal Singh, at the scene of the murder, to which he himself was not particularly close. Considering the number of people who were collected at the-spot, either as participants in the attack or as onlookers attracted by the uproar, it is; no ground for disbelieving witnesses who have given an apparently reliable account and whose evidence was believed by the trial Judge, that another witness says he did not see them there, as might well be the case. Another reason given by the High Court for disbelieving Mula Singh was that he gave as a reason for his presence on the scene that he was suffering from dysentery and had gone to the well to relieve himself. The High Court do not believe he would have gone a distance of 600 karms for this purpose. But there was no evidence that his house was so far from the well and he denied that it was. Moreover if the statement of Lachman Das is excluded, it follows that the principal reason given by the High Court for not accepting the evidence of the eyewitnesses, who as has already been said were not disbelieved by the learned Judge, no longer exists. Looking at the evidence as a whole their Lordships entertain no doubt that the, appellant took an active part in the murder, and they were accordingly unable to advise His Majesty that there were any grounds for quashing the conviction. .