BHUPATI GHOSH Vs. KING

JUDGEMENT

(1.) THIS is an appeal against the conviction and sentence of the appellant under Section 395, Penal Code. Briefly, the facts are that there was a dacoity in the house of the complainant Jiten. There were three other inmates in the house, of them P. W. 2 is said to have fainted and P. W. Nos. 3 and 4 were two ladies. P.W. Nos. 6, 7 and 8 are three neighbours who came the next morning some hours later.

(2.) AS the learned Magistrate's order sheet seems to show, he considered that the public prosecutor had good reason to think that P. Ws. Nos. 6, 7 and 8 will not be witnesses of truth, but as the defence wanted them to be tendered for cross -examination, he directed that they should be so tendered, purporting to follow a decision of this Court, and at the same time when calling upon the public prosecutor to do so he gave him an opportunity to cross -examine these witnesses later.

(3.) MR . Mukherjee, appearing for the defence, has rightly pointed out that the learned Magistrate could have saved himself all the trouble and the complication he had later created in his charge if he had excluded all this evidence. It is clear that his charge as to how the evidence of hostile witnesses should be valued is not at all happy. What the learned Judge did not notice was that the evidence of these witnesses was really not relevant. To be evidence of corroborative value. "It must be at or about the time of the occurrence" which means that the evidence should be by persons who had heard the occurrence before there was sufficient time for concoction. That is the criterion. The evidence of witnesses who came several hours after the occurrence may be very interesting as village gossip, but is not ordinarily proper evidence over which a Court should spend its time. Such evidence has ordinarily got to be excluded.