BABU LAL MUSHAR Vs. EMPEROR

JUDGEMENT

(1.) In these two appeals the only question for decision is whether the identification of the appellants as having been concerned in a dacoity which took place on the night of 27 and 28 March, 1944 in the house of Harey Krishna Misra is sufficient to warrant their conviction. The first information of this dacoity was given to the police by Harey Krishna Misra himself on 28-3-1944 at 5 A.M. the police station is only three miles away. In that information the names of Babu Lal Mushar, Sattan Koeri, Panchu Koeri and Ali Bux Mian and others are mentioned. The first informant stated that by the aid of torchlight and by the blaze of fire he was able to recognise these persons as among the dacoits and that he could identify the remaining dacoits also on seeing them. He also ascribed specific parts to some of the dacoits thus: At the time when I was running away, Sattan Koeri struck me with a pharsa and Babu Lal Mushar pulled and took off my dhoti due to which I went out naked.

(2.) It was also stated that Bhawesh Missir, Jaideo Khan, Jagdish Thakur, Kuesheshwar Jha, Darogi Singh, Sahdeo Singh, Lakshmi Kant Missir, Gaibi Lal Missir and Chandra Shekhar also recognised some of the dacoits. Towards the end of the narrative it was stated: There are civil and criminal cases going on between myself and Babu Lal Mushar, Satan Koeri, Panchu Koeri and Makbool Mian. Due to this grudge, they along with their companions committed dacoity in my house. 2. The learned Assistant Sessions Judge of Madhipura has analysed the evidence of identification against each individual accused and no exception has been taken to the correctness of this classification. It is pointed out by the learned Counsel for the appellants in their argument that the learned Judge failed to notice that in the case of some of the identifying witnesses they did not name some of the appellants before the police and yet the learned Judge has relied on the evidence of those witnesses. It was also argued that the learned Judge was wrong in preferring the evidence of identification given by the prosecution witnesses in the committing Magistrate's Court to the evidence given by them in the Sessions Court before the Judge himself where the witnesses failed to identify the particular accused. Some other criticisms were also advanced which would be noticed while discussing the evidence against each of the appellants.

(3.) Before dealing with the evidence of identification it is necessary to deal with the important contention raised on behalf of the appellants that the learned Judge was wrong in law in preferring the identification of the accused persons by the prosecution witnesses before the committing Magistrate to the absence of their identification before the learned Judge himself. In support of this reliance was placed by the learned Judge upon a stray observation by Macpherson, J. when delivering the judgment of the Division Bench in [Mt. Champa Pasin V/s. Emperor] A.I.R. 1928 Pat. 326. As this question is of great importance in criminal trials, it is necessary to lay down the law clearly for the guidance of the Sessions Courts. Section 288, Criminal P.C., before its amendment in 1928 read as follows: The evidence of a witness duly taken in the presence of the accused before the committing Magistrate may, in the discretion of the presiding Judge, if such witness is produced and examined, be treated as evidence in the case. The altered section reads: The evidence of a witness duly recorded in the presence of the accused under Chap. 18, may, in the discretion of the presiding Judge, if such witness is produced and examined, be treated as evidence in the case for all purposes subject to the provisions of the Indian Evidence Act, 1872. Upon a plain reading of the provisions of the section as it now stands, it is clear to my mind that the evidence of a witness given before the committing Magistrate is admissible as evidence in the case for all purposes subject to the provisions of the Evidence Act. But the Code does not, and obviously cannot, lay down for the guidance of the Courts the amount of weight which should be attached to such evidence. That is a matter which is to be decided by the Court of fact in each case. Ordinarily, if a witness makes one statement at one stage of the proceedings and a different statement at another stage of the proceedings, in the absence of any reasonable explanation as to why he is making two absolutely contradictory statements, the proper course would be to reject the evidence of such a witness: see the observations of Lord Davey in delivering the judgment of their Lordships in In the matter of Bomanjee Cowasjee (07) 34 Cal. 129. The Courts are sometimes confronted with the difficult situation that the eye-witnesses, for some reason or another, completely resile from the statements which they had made implicating the accused before the committing Magistrate and then profess to make out before the Sessions Court that the accused is wholly innocent of the charge. The matter came to be examined in this Court by Dawson Miller, C.J. in Gansa Oraon V/s. Emperor A.I.R. 1923 Pat. 550. At page 525 and 526 the cases from Allahabad, Madras and Bombay High Courts were noticed by the learned Chief Justice and he came to the conclusion that Section 288, Criminal P.C., clearly intends that the evidence taken before the committing Magistrate where the witnesses produced are examined at the subsequent trial may be treated as substantive evidence in the case. No doubt it is a matter for the discretion of the Judge whether he thinks that such evidence should be used in the interests of justice. At the same time I consider that many cases may arise in which it would be extremely dangerous to rely upon such evidence where witnesses have proved themselves altogether unworthy of credit. In my opinion, the, learned Judicial Commissioner rightly admitted the evidence in this case. It must also be observed that it was the only evidence which corroborated the appellant's confession. Mullick, J. who gave a concurring judgment, did not deal with this question specifically. In the following year, a Division Bench of this Court examined the question at great length in the now well-known case in Jehal Teli V/s. Emperor A.I.R. 1925 Pat. 51. Bucknill J., who delivered the judgment of the Bench, after reviewing most of the important authorities dealing with the question came to the conclusion at page 794: The principle is quite clearly settled by this line of cases that unless there is clearly present, besides the evidence given before the Magistrate, evidence which will show that the evidence given before the Magistrate should be preferred to and substituted for that given before the Sessions Judge, the evidence given before the Magistrate cannot be effectively utilized in support of a conviction. With respect, I entirely agree with this conclusion, and in my opinion, it is the only reasonable view which should be taken by a Court of fact. Has then another view been expressed by the case in A.I.R. 1928 Pat. 326. In that case Macpherson, J. who was dealing elaborately with the evidence in the case was expressing his views why the evidence of the prosecution given in the Court of session was not believable. It was thought by the learned Judge that a false case of rape had been started against the Muhammadan accused at the instance of the Hindu reformers of Monghyr and he was giving reasons why he preferred the statement made by the prosecutrix in the Magistrate's Court as to the place where the alleged rape took place to her testimony as revised and enlarged in the Sessions Court where she stated that the incident of rape took place in the northern room. In this connection the learned Judge observed at page 332: It should be noted that the Magistrate did not belong to either of the contending communities and the correctness of his record of the deposition is beyond suspicion. The learned Judge then is reported to have stated that where the deposition of a witness before the Magistrate differs from the deposition at the Sessions the former is to be invariably preferred. The remarks quoted just now were wholly unnecessary for the purpose of the decision in that case, and I cannot help observing that the learned Judge could not have intended to lay it down as a principle of universal application that wherever the deposition of a witness before a Magistrate differs from the deposition at the Sessions Court, the former should be invariably preferred. The Courts below would be well advised to follow the law clearly laid down in A.I.R. 1925 Pat. 51.