RAGHURAJ SINGH Vs. EMPEROR

JUDGEMENT

(1.) This is an application in criminal revision on behalf of five persons who have been convicted of riot and causing grievous hurt under Secs.147 and 325, Indian Penal Code. Their convictions by a Magistrate were upheld on appeal by the Sessions Court. The case has been pressed in regard to applicants Raghuraj Singh and Aidal Singh. As regards Aidal Singh, he was named in the first report which only named four persons, and Raghuraj Singh was not named in the first report, but the Sessions Judge states that he finds he was the leading spirit of the opposite party. Both these persons are named as having taken part in the riot by a respectable witness, P.W. 2, B. Sup Keshore Mukhtar. This Mukhtar was. present making a local inquiry as a Commissioner in a revenue case, and it was in the course of this proceeding that the riot took place between the parties in the revenue case. The Mukhtar states that 12 or 14 men took part in the riot on behalf of the accused party and of those he recognized four men, Aidal Singh, Raghuraj Singh, Thani and Hardan Singh. These are all four applicants in revision. Thani was one of the parties in the revenue case. Stress is laid in the first ground of revision on the fact that in a statement (Ex. D), before the police this mukhtar stated that he did not know anybody by name, but to the Court he stated that he knew Aidal Singh and Raghuraj Singh before by name. Now, if it intended to contradict the witness by a previous statement reduced to writing the procedure laid down must be observed. Section 162, Criminal P.C., states that statements in the police diaries may be used in the manner provided by Section 145, Evidence Act. That section provides: If it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used f on the purpose o? contradicting him.

(2.) In cross-examination the last statement taken down of the witness is : "The statement I gave to the police is Ex. D-1, shown to me. " No further question was asked and apparently the only question asked was : " Is this Ex. D-l your statement to the police?" and the witness stated that it was. Now, this cannot be regarded as a compliance with the provision of Section 145, Evidence Act. What is intended by that section is that a witness should be informed of the part of his statement which is to be used to contradict him and he should be given an opportunity of explaining what he meant by that portion of his statement. The statement Ex. D-1 is a long statement and it was quite impossible for a witness to understand what portion of it would be used for contradicting him by a mere general reference to the statement. The particular portion on which learned Counsel relies is as follows: Except the names of the witnesses I have mentioned I do not know the names of any others. I hope that on seeing them I can recognize them.

(3.) Now, in the first place it is not clear whether the witness meant that he could recognize other witnesses or other persons who took part in the assault, and in the second place he does not appear to have been cleary asked which of the persons taking part in the assault he recognized. It is therefore clear that there is no necessary contradiction in the statement Ex. D-l as it stands and in the evidence of the witness, and further it is clear that the defence did not adopt the procedure required by law laid down by Section 145, Evidence Act, and by Section 162, Criminal P.C., That being so I do not consider that the evidence of the witness on this point can be discounted or that the Courts below were wrong In accepting that evidence. The grounds of appeal to the lower appellate Court did not mention this point and apparently the point was not taken before the lower appellate Court. The next; argument that was used was that the Court below was wrong in convicting on the evidence of a single witness when the Court beleve did not accept the evidence of the witness from the village. What the Court below said about the village witness was that it was a case in which a great amount of caution was to be exercised in convicting the accused named by the complainant and that the Magistrate was right in discarding the evidence of the villagers when there were two rival factions. The Magistrate discharged accused persons and acquitted one and the Sessions Judge acquitted one on appeal. The Courts below therefore have gone into the question of the reliability of the evidence of the witnesses and have come to the conclusion that the evidence of B. Rup Keshore Mukhtar was evidence on which they should act. I do not see any reason to interfere with that conclusion.