KAMINI KUMAR CHAKRAVARTY Vs. EMPEROR

JUDGEMENT

(1.) This rule was issued on three grounds. The first is that the conviction is not sustainable in view of the fact that the evidence in respect of which the petitioner was prosecuted was not read over to him according to law. The facts are that the petitioner was a witness in a case and was examined-in-chief on 18 November 1927 and his deposition was read over to him by the Peshkar of the Sub-Deputy Magistrate before whom he gave his evidence while another witness was in the box. He was cross-examined on 9 December 1927 and the Magistrate read over the whole of the deposition including his examination-in-chief on that day. There is a note recorded under the deposition of both days that it was read over to the petitioner and admitted by him. The petitioner was charged with making contradictory statements in examination-in-chief and in cross-examination. The objection on the ground that the examination-in-chief of the petitioner was read over to him by the Peshkar on 18 November while another witness was being examined is now set at rest by the decision of their Lordships of the Judicial Committee in Abdul Rahman V/s. Emperor . It is not necessary to consider the cases previous to that decision which held that absence of strict compliance with the words of Section 360, Criminal P.C. made the statements inadmissible in evidence. Their Lordships further held that non-compliance with the provisions of Section 360 is curable under Section 537, Criminal P.C., that is, it will not vitiate the trial unless it is proved that it has caused failure of justice. The learned advocate for the petitioner rightly contends that it cannot be said in the present case where the petitioner has been prosecuted and convicted for making, two contradictory statements that the non-compliance with the letter of the law has not caused failure of justice in this case. It is unnecessary to enquire whether this irregularity has really caused failure of justice in this case because whatever irregularity there was it was cured by the subsequent reading over of the whole of the evidence by the Magistrate himself at the end of his cross examination. It is urged that the reading of the examination-in-chief at a subsequent date was not strict compliance with the words of Section 360 and reliance has been placed on the ratio of the case of Shamserali Hazi V/s. Emperor A.I.R. 1926 Cal. 563. I do not think that this contention should prevail. Section 360 says that as the evidence of each witness is completed it shall be read over to him. The evidence of a witness is ordinarily completed when he has been examined-in-chief, cross-examined, and if necessary, re- examined. By the completion of the evidence in that section is not meant what the witness's deposition was on a particular day. The case relied upon was decided upon a totally different set, of facts There the witnesses were examined one after another for some time and then the depositions of these witnesses were read over to them altogether. In that case, therefore, the evidence of each witness was not read over to him after its completion. Even if there has been in this case any irregularity, it is according to the view of their Lordships of the Judicial Committee curable under Section 537: and there is nothing to show that the reading of the examination-in-chief on a subsequent day caused failure of justice because the defence of the petitioner is not that he did not make the statement but that the first statement that he made was on hearsay. This ground must be overruled.

(2.) The second ground is that the petitioner was not given an opportunity of explaining the discrepancies in his alleged statements before the prosecution was started; and the third is that the contradictory statement not being apparently irreconcilable the petitioner ought not to have been convicted at all. These two grounds may be considered together. There is no provision in the law that it is the binding duty of the Magistrate to give an opportunity to a witness to explain the contradictory statements. But in this case the Magistrate has considered the explanation which the petitioner then gave and which he has given in the present trial. Whether the complaint made by the Court under Section 476, Criminal P.C. before an opportunity was given. to the accused to offer sufficient explanation of his contradictory statements has vitiated the trial is a question which cannot be argued after conviction. As to the statements being reconcilable it appears to me that on a reading of the whole of the deposition of the witness no doubt is left in one's mind that the accused apparently made a statement in his examination-in-chief from which he resiled in his cross-examination. His contention is that what he stated in his examination-in-chief was on hearsay and the statement made in his cross-examination was the true statement, namely, that he had not seen the occurrence at all. In his examination-in-chief he said: In went there and saw Mahendra was being beaten by Jyotish, Rabati and Karuna with cane and lathi. Mahendra was tied with a rope to a post.

(3.) In his cross-examination he said: In my presence no body assaulted Mehendra. I saw Mahendra sitting in the yard. I did not notice whether his hands ware tied. No man was found near him. Nemai got bail at the time of the occurrence. He took his seat inside the house.