GANESHA Vs. STATE

JUDGEMENT

(1.) THESE three appeals arise against a single judgment of the Additional Sessions Judge, Balotra dated 8th May, 1952 by which the appellants were convicted under sec. 302 I. P. C. , and sentenced to transportation for life. They were also convicted under sec. 201 and 379 I. P. C. , and sentenced to 5 years' and 2 years' rigorous imprisonment respectively. All the sentences were to run concurrently.

(2.) THE following pedigree will show the relationship of the deceased, the accused and some of the prosecution witnesses - Ramlal Jetha Kheraj Mula Khuma (1st wife Lakhia (accused) 2nd wife Mst. Sajni (PW1) (wife Naini @ Nainuri) | (P. W. 9) | | | Ganesh @ Gunia (accd.) Amra (P. W. 4) Mst. Bhurki (Daughter) (P. W. 2) Moti (son) (P. W. 3) Kania (accd.) Harji (Mst. Gairki) (P. W. 5)

(3.) THE earlier authorities cited above must be deemed to have been overruled by the latest pronouncement of the Supreme Court in Tara Singh vs. THE State (3) (A. I. R. 1951 S. C. , 441.) and we have to see whether the provisions of sec. 145 were duly complied with in this case. Learned Government Advocate placed reliance on the answers elicited in cross-examination in respect of the statement. THE relevant portion is as under: - - "i did not give any statement in the court at Barmer. My statement was not read over to me by the Raj Vakil (Ex. P-3 was read out to the witness who said that she did not depose this ). It was read out by the P. I. He told me to put my thumb-mark and I put it. I did not depose the same statement that was read over to me by the P. I. THE statement, which was read over to me Ex. P-3 was wrong. I did not witness things with my eyes" In our opinion, what has been elicited in cross-examination by the defence counsel does not amount to a full compliance with the provisions of sec. 145 of the Evidence Act. What seems to have happened was that when the court admitted the previous statement of this witness in the committal court Ex. P-3 in evidence, the defence counsel tried to minimise its effect by a few questions which elicited an answer from the witness that it was not her statement. But that only served one purpose namely to destroy her testimony in Sessions Court, but the other purpose of using that testimony as substantive evidence was also to be served. THE witness should have been confronted with that portion of the evidence which was to be used as substantive evidence, and an explanation obtained as to why she was then going back on her previous statement. That was not done in this case. Mst. Sajni's previous statement Ex. P-3 cannot therefore be used as substantive evidence in this case.