RAFI-UZ-ZAMAN KHAN Vs. CHHOTEY LAL

JUDGEMENT

(1.) Criminal Appeals Nos-747, 748 and 749 of 1925 arise out of a communal raiyat which occurred in 1924 and as a result of the case arising out of the raiyat the prosecution of the present three appellants for giving false evidence was ordered. It is admitted by counsel for the appellants that the false statements, which each of these three appellants is alleged to have made, were all directed to giving the same, or at any rats, a very similar account of the manner in which a certain Muhammadan met his death at the hands of Hindus.

(2.) The committing Magistrate decided to enquire into the case of all three separately and he eventually committed them for trial to the Sessions Court by three separate orders as in three distinct; cases. We think that in this, he was only conforming to what has been the usual practice, a practice which is to some extent well founded, so far as subordinate Courts within the jurisdiction of this Court are concerned, on at any rate, one decision of this Court, Empress of India V/s. Anant Ram (1882) 4 All 293. That was a decision of a single Judge and was arrived at clearly with some hesitation. Counsel for the appellants has not been able to refer us to any later cafe of this Court. He referred us to Empress of India V/s. Niaz Ali (1882) 5 All 917 in which however the facts were somewhat different.

(3.) When the case came up before the learned Sessions Judge for disposal, he also expressed his opinion that there should be strictly in law three separate trials. As the point is of importance we will quote in extenso the account he gives of his procedure which is to be found in the heads of charge to the jury. Early in that charge his note shows that he addressed the jury as follows: At this stage the Jury were again reminded that strictly speaking they were sitting to decide, not one trial of three persons, but three separate trials. The law required this, but the law did not require that in such circumstances each accused person should necessarily be tried by a separate Jury. In my opinion, it would have been improper to have tried each of these persons with a separate jury. Apart altogether from the great expenditure of public time and of private convenience involved, it would constitute a public scandal if one or more, of these persons was convicted and the other or the others acquitted. For whatever arguments might be put forward to the effect that all three were guilty or to the effect that all three were not guilty, it would be impossible for anybody to put forward the argument that one or two were not guilty. The story told by all three was to all intents and purposes the same story and that was a story either false beyond reasonable doubt or true beyond reasonable doubt, or a story the truth or falsity of which a reasonable man could not vouch for. That one or two persons should be punished and that one or two should go free for coming into Court and telling precisely the same story under exactly the same circumstances, would not be edifying. Therefore it was my opinion that all the three persons should be triad by one jury. The result was to make the trial in practice hardly distinguishable from a joint trial, but under the circumstances no prejudice could arise to any of the accused from this. The jury were reminded that the accused were given the option of having all the evidence recorded over again and had they chosen to exercise that option the evidence would have had to have been recorded over again. But they did not exercise that option considering and quite rightly, that nothing could be gained thereby. They ware however, each of them, allowed the option of recalling all or some of the prosecution witnesses for further cross-examination and this option they, in fact, exercised: On this aspect of the case it was only necessary to give the Jury one warning and that was that the cases being technically distinct cases the statement made by one of these three accused could not in any way whatever be used against other of the accused.