BAIJNATH MAHTO ALIAS BAIJNATH GOPE Vs. EMPEROR

JUDGEMENT

(1.) This application is directed against the concurrent orders of the Courts below convicting the petitioner under Section 411, Indian Penal Code and sentencing him to rigorous imprisonment for four months and to pay a fine of as 50 and in default of payment of the fine to undergo further rigorous imprisonment for one month. The petitioner was arrested by the police on 26 March 1944, in connection with a dacoity case. The police searched his house, and recovered a woolen coat (EX. 1), a fine dhoti (Ex. 2), a silk kurta (Ex. 8) and a silk shirt (Ex. 4). The dacoity case, referred to above, ended in a final report, after investigation by the police; but the clothes aforesaid recovered from the house of the petitioner were utilised by the police for prosecution of the petitioner in connection with a burglary said to have taken place in the house of one Siris Prasad of Maheshpur on 27 February 1944.

(2.) A number of witnesses were examined on behalf of the prosecution to identify these clothes as the property of Siris Prasad or of some members of his family. P.W. 6 was examined as one of the witnesses to "the search. In his examination- in-chief, he deposed to the search having been made in his presence and the clothes recovered from the house of the accused. In his cross-examination on behalf of the accused, he admitted that clothes similar to those which were the subject-matter of the charge were seen being worn by the accused. on occasions earlier than the time of the alleged burglary case itself. He also admitted that the prosecution witnesses who had come to Court as identifying witnesses were present at the thana. He made certain other admissions, tending to support the defence of the accused. After his deposition has been finished and signed by the learned Magistrate, there is a note "declared hostile" and then signed by the learned Magistrate. I am not aware of any procedure contemplated either by the Criminal P. C. or by the Evidence Act which justifies the Magistrate recording the evidence just to make a note to that effect. Section 154, Evidence Act gives the discretion to the Court to permit the party calling a witness to put questions to that witness by way of cross-examination. That, in popular language, is described as declaring a witness as hostile.

(3.) It must be presumed that the learned Magistrate was aware of the provisions of Section 154, Evidence Act. If he was, he should have permitted the prosecution to cross-examine P.W. 6 to show that he was giving false statements in his cross- examination in order to help the accused for any particular reasons of his own or that the statements made by him as to what happened at the thana were not true. But no such attempt was made by the prosecution, and, therefore, the entry at the end of the deposition to the effect that the witness had been declared hostile has absolutely no-significance in law. If a party calling a witness wants to challenge his veracity or to get certain admissions detracting from the value of his evidence given beforehand, the procedure contemplated in Section 154 has to be resorted to.