MANGU Vs. STATE

JUDGEMENT

(1.) THIS is an appeal by the accused Mangu, Jiwan and Dhulla sons of Rambuxa, Bhana S/o Part and Ganpat S/o Bhura against their conviction and sentence by the learned Additional Sessions Judge, Sikar by his judgment, dated, 1st January, 1957. Mangu, Bhana and Jiwan have been convicted u/s 302, I P. C. read with sec. 34 I. P. C. and sentenced to imprisonment for life. They have also been convicted u/s 148 and sec. 326 read with sec. 149, I. P. C and sentenced to 3 years' R. I. each under each count. Dhulla and Ganpat have been convicted u/s 148 and sec. 326 read with sec. 149, I. P. C. and sentenced to 3 years' R. I. each under each count.

(2.) THE prosecution case was that on 28th June, 1955, Chandra S/o Sheo Buxa Gujar resident of village Harsh along with his mother Mst. Jarav was going towards village Harsh at about 9 A. M. to participate in a marriage ceremony at some Mahajan's house. As they passed by the field called Kothi Khawaswali, which is also called as 'jab land' on account of being irrigated land they saw eight persons, viz, Mangu S/o Rambuxa, Bhana S/o Parta, Jiwan, Dhulla, Surja, Ganpat, Gopi and Mangu S/o Bhura ploughing the said field. This field was in the joint cultivation of Sheobuxa, father of Chandra and Rambuxa, father of the accused Mangu, Jiwan and Dhulla. Chandra asked Mangu S/o Rambuxa why he was ploughing the field when there was dispute about it. On this Mangu along with Jiwan and Bhana ran towards Chandra on the public way, where the latter was standing. THE three accused fell upon Chandra and began to belabour him with lathis causing injuries to his head. Chandra fell down and Mst. Jarav fell upon him to protect him. THE three accused, however, pushed her aside and belaboured her also with lathis THE remaining 5 accused, namely, Dhulla S/o Rambuxa, Ganpat S/o Bhura, Mangu S/o Bhura, Surja and Gopi also ran up and joined the first three. On hearing the cries of Mst. Jarav Kalu another son of hers came to the spot and intervened, but he was also belaboured with lathis. Other sons of Mst. Jarav, namely, Doonga, Bhola, Jaila, Rekha, Rameshwar and her husband Sheobuxa also heard the cries and rushed to the spot. With the exception of Sheobuxa all the other last named persons came armed with lathis or sticks and as soon as they reached the spot there was free fight between both the parties and members of both the parties received injuries.

(3.) WE have considered the arguments of both the learned counsel. On a reading of the judgment of the learned Additional Sessions Judge we are certainly of opinion that he has taken some of the evidence of the cross case into consideration in convicting the accused in this case. Take, for example, the F. I. R. in the cross case. WE have not been able to find that document on the record of this case. Evidently the learned Additional Sessions Judge has made use of this document from the record of the cross-case In para 21 of his judgment he has gathered the defence of the accused in this case from the F. I. R. made by Mangu in the cross-case. He has given the summary of that document in this paragraph. The difficulty has arisen from the fact that the learned Additional Sessions Judge has given a single judgment in both the cases. The correct procedure in the trial ci cross-cases should be that both the cases should be tried separately although by the same Judge and separate record should be prepared for each case. The judgments should be separately given and they should be based on the evidence on the record of that case alone. By giving a single judgment in two cross-cases there is likelihood of confusion that evidence in one case might be acted upon in the other. This is what appears to have happened in this case. Although we find that the learned Additional Sessions Judge has tried his best in each case to refer to the evidence produced in that case alone but he has not been able to be on the guard throughout and as has been said above in some places he has referred to the material of one case in arriving at the finding in the other case. It has been observed in the judgment of a Division Bench of Bombay High Court in Banappa Kallappa Ajawan vs. Emperor (1) that "the most desirable procedure in such cases (cross-cases) would be that both the cases should be tried by the same Judge, though with different assessors or juries. The first case should be tried to a conclusion and the verdict of the jury or the opinion of the assessors taken. But the Judge should postpone judgment in that case till he has heard the second case to a conclusion, and he should then pronounce judgments separately in each case. He would of course be bound to confine his judgment in each case to the evidence led in that particular case and would not be at liberty to use the evidence in one case for the purpose of the judgment in the other case and to allow his findings in one case to be influenced in any manner to the prejudice of the accused by the views which he may have formed in the other case. " It is therefore necessary for a trial court to prepare separate record for each of the two cross-cases and base Its judgment only on the evidence in that case & not on that of cross-case. The question, however, is whether, where the trial court makes some use of the evidence in one cross-case in the other, the judgment and order of it must be altogether set aside. This depends upon the circumstances of each case. In some cases evidence in one cross case may be used in the other to such an extent that if that evidence is disregarded the order of the lower court might not stand only on the evidence of that case. In some cases although the evidence in one case may be used in the decision of the other but after discarding that evidence the evidence in that particular case alone might be sufficient to support the order of the trial court. It has been observed by Oudh Chief Court in case Debidayal vs. Emperor through Baburam (2) that "where two cases are tried by the same Magistrate and the evidence in one case is acted upon in the other, the procedure is a mere irregularity and unless the accused bus been prejudiced by reason of the evidence in the cross-case being acted upon, the trial should not be set aside. " In that case the accused were held not to be prejudiced at all by the consideration of evidence in the other cross-case and therefore their conviction was upheld.