EMPEROR Vs. RAJA RAM

JUDGEMENT

(1.) 1. In Criminal Case No. 117 of 1932, the appellants Rajaram and Sheoram, along with certain other persons, are being prosecuted in the Court of the Tahsildar and Magistrate, Second Class, Wardha, for offences under Sections 324 and 147, I.P.C. In this trial one Ghulam Ali was examined as the seventh witness for the prosepution. During the cross-examination of this witness the defence pleader wanted to impeach the credit of the witness by producing a letter written by the witness to one Fida Hussain. and putting certain questions to the witness with respect to the contents of that letter. The prosecuting counsel having objected to the production of the letter on the ground that it had not come from the custody of Fida Hussain to whom it was addressed, the trying Magistrate-disallowed the production of the letter even though the defence had offered to examine Fida Hussain who was present in Court and get the said letter formally produced by him. Against this order of the trying Magistrate the applicants moved the Sessions Court in revision and the learned Sessions Judge has reported the case to this Court under Section 438 Criminal P.C., with a recommendation that the said order being illegal should be set aside.

(2.) ON a rule being issued to the District Magistrate to show cause against the reference that learned officer has merely forwarded to this Court a report of the trying Magistrate which runs as under: There is nothing to be said against the reference except that the legitimate origin of the document is in question. In this case the accused should have proved the legitimacy of his possession over the letter before trying to use it to contradict the witness.

(3.) THE section in question nowhere lays down that the document which is intended to be used to contradict a witness must come from proper or legitimate custody. Again, Section 146 (ibid) provides that a witness during his cross-examination may, in addition to the questions referred to before in the Act, be asked any questions which tend to test his veracity or to shake his credit. For the reasons given above I accept the reference, set aside the order of the trying Magistrate and direct him to permit the defence to cross-examine the witness Ghulam Ali with reference to the contents of the letter alleged to have been written by him to Fida Hussain and which is in possession of the defence pleader. If the witness does not admit the fact of his having written that letter it will then be open to the defence to formally examine Fida Hussain and prove the document.