EMPEROR Vs. ABDULALI SHARFALI

JUDGEMENT

(1.) At the opening of the trial Mr. Lowndes asked the Court to rule whether, if the accused put in any documents in the course of his cross-examination of the witnesses for the prosecution, he would thereby forfeit his right to the last word. The question thus raised often comes before the Courts. It never would have occasioned me any difficulty but for the old standing distinction drawn in England between documents put in by the accused through prosecution witnesses, and statements elicited in cross-examination from prosecution witnesses, both of which the accused means to use for his defence. The illogicality of this distinction seems, later, to have given rise to a new principle. As far as the particular result, which is here in dispute, is concerned, English Judges now appear to make this the test: if the documents put in by the accused through a witness for the prosecution can fairly be said to take the prosecution by surprise, then the prosecution has the right to reply. In other words, the right to the last word is now made to depend, not on any difference between the quality of the evidence thus got in for his own use by the accused, but upon the degree of surprise which it may cause the prosecution. And this is obviously more illogical than ever.

(2.) Unless it can be presumed to know all that is in the mind of all its witnesses, nothing could well be more surprising to the prosecution than a statement elicited in cross-examination from one of its own witnesses, that the accused was somewhere else at the time when the crime was committed. But no one, either in England or India, has ever argued that merely on account of the surprise which such a statement might cause the prosecution it will deprive the prisoner of his right to the last word. It is thus shown that the attempt to improve upon the old distinction utterly fails, and that after all it has to be referred back to that distinction, if it is to be reasonably applied at all. In other words, the view that some documents put in through a witness for the prosecution may take the prosecution by surprise, and so entitle it to the last word, must be grounded upon some supposed qualitative distinction between documents and statements, as evidence. Logically no such distinction can be maintained. Therefore, pushed to its extreme logical conclusion, the English rule would preclude all cross-examination, except at the price of giving the prosecution the right to the last word. This is of course absurd. Yet there is no real alternative. If when an accused person puts in a paper through a witness for the Crown, he must be deemed to have adduced evidence" in his defence; by a parity of reasoning he mast be deemed to have adduced evidence in his defence, as soon as he has elicited some statement from a prosecution witness, which is in his favour, and is going to be used for his defence. In this country certainly, ninety per cent. of the evidence, on which prisoners rely, is contained in the cross-examination of crown witnesses.

(3.) If, therefore, the words in Section 292 of the Criminal Procedure Code, "adduce any evidence," can have no meaning at all, as Batty, J., thought, in giving his ruling in Bhaskar's case 8 Bom. L.R., 421, unless they include documents which the accused has put in through witnesses for the prosecution, assuredly they could not have had any meaning for that learned Judge's mind, unless they had also included every favourable oral statement which the accused had got out of prosecution witnesses in cross-examination. The one, as the other, is evidence in the accused's favour. That goes without saying. But the point is wholly missed, when from that premises the conclusion is drawn that either or both were meant to be included in the words quoted from Section 292, Criminal Procedure Code.