# Chalit1gulia Ramachandr iyya v. Bopp4na Satyanarayana JJas Gupta J, ·/963 May IOJ

- **Citation:** [1964] 3 S.C.R. 992
- **Court:** Supreme Court of India
- **Decided:** 1962-09-13
- **Case number:** Criminal Appeal No. 54of1963
- **Bench:** B. P. SINHA c . .J, J. c. SHAH, N. Rajagopala Ayyangar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/chalit1gulia-ramachandr-iyya-v-bopp4na-satyanarayana-jjas-gupta-j-963-may-ioj-3030
- **Pages:** 10

## Headnote

Criminal Law-Committal proceedings-Powers and duties
'
of the Mnqistrate-Desirability to examine all the witne8ses to
the actual commission of the offence-Code of Criminal Pro·
cedure, 1898 (Act 5 of 1898), as amended by Act 26 of 1955,
ss.173, 207A (4).
The appell~nt was convicted by the Sessions Judge of the
offence of murder of K and sentenced to death, and the con·
viction and sentence were confirmed by the High Court. The
committal proceedings disclosed that the Magistrate committed
the accused to the Court of
Session without
recording the
evidence of the \\dtnesses to the actual commis~ion of the
offence.
Held that under s. 207 A of the Code of Criminal Pro·
cedure, 1898, as amended by Act 26 of 1955, a Magistrate ha.s •
_,
r
,.
-
...
3 S.C.R.
SUPREm COURT REPORTS
!!93
been given a discretion in the matter of examination of witnesses not produced by the prosecutor. The prosecutor is expected ordinarily to examine in the court of the committing
Magistrate all witnesses to the actual commission of the offence,
but if without adequate reasons he fails to do so, the Magistrate
is justified and, in enquiries on charges of serious offences like
murder, is under a duty to call witnesses who would throw light
up0n the prosecution case. A Magistrate failing to examine
witnesses to the actual commission of the offence because
they arc not produced, without considering whether it is not
necessary in the intt'rests of justice to rxa1nine such witnesses,
fai!I in the discharge of his duties.
The Mcgistratc must apply his mind to the documents
referred to in s. 173 of the Code and the 1e•timony of witnesses,
if any, produced by the prosecutor and examined, and consider
whether in the interests of justice it is necessary to record the
evidence of other witnesses.
A Magistrate in committing a person accused of an
offence for trial has to perform a judicial function which has
a vital importance in the ultimate trial, and a sJip,hod or
mechanical dealing with the proceeding must be depncated.
Shrirar~ Daya Ram v. The Stat• of Bombay, [1961]
2 S.C.R. 890, considered.
CRIMIN.AL APPELL.ATE JURISDICTION : Criminal
Appeal No. 54of1963.
Appeal by special leave from the judgment
and order dated
September 13, 1962, of the
Allahabad High Court in Criminal Appeal No. 877
of 1962 and Referred No. 70 of 1962 .
0. P. Rana, for the appellant.
G. 0. Malh1'r and 0. P. Lal, for the respondent.
1963. May 10.
The Judgment of the Court
was delivered by
.
SHAH ].-The appellant Kirpal Singh and
his two brothers Arjun Singh and Sarwan Singh,
Klrpol
s~ngh
v.
[tale of U.P.
Sh.ii I
i963
Kirpal Sir.gla
v.
S•ot11J U.P.
Shali J.
....
994
SUPREME COURT REPORTS (1964] VOL.
-•
were tried by the Sessions Judge, Pillibhit for causing the death of one Karam Singh with gunshot
injuries in the evening of March 26, 1961 at Village
Shanti Nagar. The Sessions Judge acquitted Arjun
Singh and
Sarwan Singh
and
convicted the
appellant Kirpal Singh of the
offence
charged
against him and sentenced him to suffer the penalty
of death subject to confirmation by the High Court.
The High Court of Allahabad confirmed the order
of conviction and sentence. With special leave,
Kirpal Singh has appealed to this Court.
The case for the prosecution was as follows :
The appellant and his father-in-law Rakkha
Singh were refugees from West Pakistan. A block of
agriculturaltland, allotted by the Government to
Rakkha Singh and the appellant was partitioned
but no boundary marks were erected on the line
dividing the lands. In December 1960 there was
a dispute between Rakkha Singh on the one hand
and the appellant and his brothers on the other about
the harvesting of sugarcane planted in the land,
This dispute was settled on the intervention of one
Sardar Ajit Singh, and Rakkha Singh agreed to give
seven hundred maunds of sugarcane to the appellant
and his brothers. The appellant and his brothers
went to the home of Rakkha Singh on March 22,
1961 and complained that they were not given four
hundred ma

## Text

1963
Chalit1gulia Ramachandr iyya
v.
Bopp4na Satyanarayana
JJas Gupta J,
·/963
May IOJ
992
SUPREME COURT REPORTS [1964] VOL.
be applied in India is where the requirements of 53A
are satisfied.
Quite clearly, s. 53A does not apply
to the facts of the present case. It must therefore be
held that the considerations of equity cannot confer
on Nagayya or his heirs any title in the lands which
under the statute could be conferred only by a re·
gistered instrument.
Our conclusion
therefore 1s that the High
r
Court was right in holding that Nagayya or his
heirs had acquired no right in the property. The
appeal is accordingly dismissed. In the circumstances
of the case, we make no order as to costs.
Appeal dismissed.
KIRPAL SINGH
v.
STATE OF U.P.
(B. P. SINHA c . .J., J. c. SHAH & N. RAJAGOPALA
AYYANGAR JJ.)
Criminal Law-Committal proceedings-Powers and duties
'
of the Mnqistrate-Desirability to examine all the witne8ses to
the actual commission of the offence-Code of Criminal Pro·
cedure, 1898 (Act 5 of 1898), as amended by Act 26 of 1955,
ss.173, 207A (4).
The appell~nt was convicted by the Sessions Judge of the
offence of murder of K and sentenced to death, and the con·
viction and sentence were confirmed by the High Court. The
committal proceedings disclosed that the Magistrate committed
the accused to the Court of
Session without
recording the
evidence of the \\dtnesses to the actual commis~ion of the
offence.
Held that under s. 207 A of the Code of Criminal Pro·
cedure, 1898, as amended by Act 26 of 1955, a Magistrate ha.s •
_,
r
,.
-
...
3 S.C.R.
SUPREm COURT REPORTS
!!93
been given a discretion in the matter of examination of witnesses not produced by the prosecutor. The prosecutor is expected ordinarily to examine in the court of the committing
Magistrate all witnesses to the actual commission of the offence,
but if without adequate reasons he fails to do so, the Magistrate
is justified and, in enquiries on charges of serious offences like
murder, is under a duty to call witnesses who would throw light
up0n the prosecution case. A Magistrate failing to examine
witnesses to the actual commission of the offence because
they arc not produced, without considering whether it is not
necessary in the intt'rests of justice to rxa1nine such witnesses,
fai!I in the discharge of his duties.
The Mcgistratc must apply his mind to the documents
referred to in s. 173 of the Code and the 1e•timony of witnesses,
if any, produced by the prosecutor and examined, and consider
whether in the interests of justice it is necessary to record the
evidence of other witnesses.
A Magistrate in committing a person accused of an
offence for trial has to perform a judicial function which has
a vital importance in the ultimate trial, and a sJip,hod or
mechanical dealing with the proceeding must be depncated.
Shrirar~ Daya Ram v. The Stat• of Bombay, [1961]
2 S.C.R. 890, considered.
CRIMIN.AL APPELL.ATE JURISDICTION : Criminal
Appeal No. 54of1963.
Appeal by special leave from the judgment
and order dated
September 13, 1962, of the
Allahabad High Court in Criminal Appeal No. 877
of 1962 and Referred No. 70 of 1962 .
0. P. Rana, for the appellant.
G. 0. Malh1'r and 0. P. Lal, for the respondent.
1963. May 10.
The Judgment of the Court
was delivered by
.
SHAH ].-The appellant Kirpal Singh and
his two brothers Arjun Singh and Sarwan Singh,
Klrpol
s~ngh
v.
[tale of U.P.
Sh.ii I
i963
Kirpal Sir.gla
v.
S•ot11J U.P.
Shali J.
....
994
SUPREME COURT REPORTS (1964] VOL.
-•
were tried by the Sessions Judge, Pillibhit for causing the death of one Karam Singh with gunshot
injuries in the evening of March 26, 1961 at Village
Shanti Nagar. The Sessions Judge acquitted Arjun
Singh and
Sarwan Singh
and
convicted the
appellant Kirpal Singh of the
offence
charged
against him and sentenced him to suffer the penalty
of death subject to confirmation by the High Court.
The High Court of Allahabad confirmed the order
of conviction and sentence. With special leave,
Kirpal Singh has appealed to this Court.
The case for the prosecution was as follows :
The appellant and his father-in-law Rakkha
Singh were refugees from West Pakistan. A block of
agriculturaltland, allotted by the Government to
Rakkha Singh and the appellant was partitioned
but no boundary marks were erected on the line
dividing the lands. In December 1960 there was
a dispute between Rakkha Singh on the one hand
and the appellant and his brothers on the other about
the harvesting of sugarcane planted in the land,
This dispute was settled on the intervention of one
Sardar Ajit Singh, and Rakkha Singh agreed to give
seven hundred maunds of sugarcane to the appellant
and his brothers. The appellant and his brothers
went to the home of Rakkha Singh on March 22,
1961 and complained that they were not given four
hundred maunds of sugarcane out of the seven
hundred maunds promised to them. There wat a
quarrel on that occasion between Karam Singheldest son of Rakkha Singh-and the appellant, the
former saying that the appellant and his brothers were
'behaving like dishonest persons'. Rakkha Singh
intervened and nothing untoward happened on that
occasion. On March 26, 1961 at about 6 p.m.
~hen Rakkha Sing-h and his two sons Karam Singh
and Manjit Singh and their neighbour Sardar Anokh
Singh were sitting in a thatched hut, the appellant
'
j
,
•
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•
3 S.C.R.
. SUPREME COURT REPORTS
995
armed with a gun, and his two brothers armed with
lathis arrived
near the hut, and the appellant
shouted to Karam Singh asking him to come out of
the hut. On Karam Singh's emerging from the hut
the appellant told him that since. he (Kar:1:m Singh)
"did not settle the dispute regardmg the. sugarcane
he would settle his ·account just then", and opened
fire causiog injuries to Karam Singh on the chest
which resulted in death instantaneously. · On hearing the report of gun fire Rakkha Singh, his son
Manjit Singh and Sardar Anokh Singh came out of
the thatched hut. Manjit Singh tried to catch hold
of the appellant and his brothers but without success.
Rakkha Singh then went to the police station Puranpur and lodged the first inforniation at 7-45 a.m;
At the trial of the appellant and his brothers before
the Court of Session, Manjit Singh, Anokh Singh and
Rakkha Singh were examined as persons who were
present at the scene of offence and· witnessed the.
assault on Karam Singh. Manjit Singh and Anokh
Singh however did not support the prosecution case.
They stated that at about 8 or 9 p.m. on March 26,
1961 when they were in their respective houses they
heard report of gun fire and on coming out came to
learn from some person that Karam Singh was
fired upon by 'some Sardar who was wearing a
mask'. The witnefses were cross-examined by the
prosecutor with leave of the Court in the light of
their statements recorded by the sub-inspector of
. police in the course of his investigation but they.
denied having made the statements that the appellant
and his two brothers had come to Shanti Nagar at
6 p.m. on the day of occurrence and that the
appellant had killed Karam Singh by causing him
gunshot injuries. But Rakkha Singh supported· the
prosecution case. He spoke about the dispute about
sugarcane, and also about the quarrel
between
Karam Singh and the appellant on l\farch 22, 1961.
He then stated that on March 26, 19~1 at about
6 p.m. the appellant and his two brothen had
/96J
Kirp•l Si•th
..
Stt1l1 of UP.
· Sh4'i J.
1969
Kirpal \inzh
,,
State of U.P.
Shah J.
,..
996
SUPREME COURT REPORTS [1964] VOL.
,.
come near his hut, that the appellant had called out
Karam Singh and after shouting that as Karam
Singh was not settling the matter of sugarcane they
"were going to settle his matter'' had fired a shot
killing Karam Singh instantaneously. In crossexamination he stated that from the hut in which he
was sitting he could not see the faces of the assailants
but on hearing the report of gun fire he came out
of the hut and saw the assailants running away,
and that he was able to re<;ognise them by "their
gait and voice".
The learned Sessions Judge accepted the testimony of Rakkha Singh· and, in so for as it inculpated the appellant, convicted him of the offence of
causing the death of Karam Singh.
He however
held that the two brothers of the appellant were not
proved to be guilty of the offence charged against
them and acquitted them.
The High Court of
Allahabad agreed with the finding recorded by the
Court of First Instance and confirmed the sentence
of death passed against the appellant.
The conclusion recorded by the Court of First
Instance and affirmed by the High Court is based
upon appreciation of evidence and no question of
law arises therefrom. Normally this Court does not
proceed to review the evidence in appeals in criminal
cases, unless the trial is vitiated by some illegality
or irregularity of procedure or the trial is held in a
manner violative of the rules of natural justice resu.lting in an unfair trial or unless the judgment under
appe41 has resulted in gross miscarriage of justice.
Rakkha Singh deposed that he had been able to recognise the appellant from his "voice and gait".
Rakkha Singh was the father- in-law of the appellant,
and had during the last few days before the death of
Karam Singh seen the appellant frequently.
Only
four days before the incident there was a quarrel
between Karain Singh and the appellant about the
+
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"
..
..,
3 S.C.R.
SUPREME COURT REPORTS
997
•
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delivery of sugarcane crop and the appellant and his
brothers had retired from the scene at the intervention
of Rakkha Singh, greatly annoyed. It is true that the
evidence about identification of a person by the
timbre of his voice depending upon subtle variations
in the overtones when the person recognising is not
familiar with the person recognised may be some·
what risky in a criminal trial. Bot the appellant
was intimately known to Rakkha Singh and for more
than a fortnight before the date of the offence he had
met the appellant on several occasions in connection
with the dispute about the sugarcane crop. Rakkha
Singh had heard the appellant and his brothers
calling Karam Singh to come out of the hut and had
also heard the appellant, as a prelude to the shooting
referring to the dispute about sugarcane. In the
examination, in-chief Rakkha Singh has deposed as
if he had seen the actual assault by the appellant,
but in cross-examination he stated that he had not
seen the face of the assailant of Karam Singh. He
asserted however that he was able to recognize the
appellant and his two brothers from their 'gait and
voice'. It cannot be said that identification of the
assailant by Rakkha Singh, from what he heard and
observed was so improbable that we would be justified
in disagreeing with the opinion of the Court which·
saw the witness and formed its opinion as to his credibility and of the High Court which considered the
evidence agaimt the appellant and accepted the
testimony.
Manjit Singh and Anokh Singh have tried to
shield the appellant by deposing that the assault took
place at about 9 p.m. and that they were informed
that the assailant had put on a mask. Their statements recorded in the course of investigation were
inconsistent with the tenor of their evidence in Court.
It is true that there was some delay in lodging the
first information, the offence took place according to
Rakkha Singh at 6 p.m. on l\farch 26, 1961 and
/963
Ki1pil Si11gh
••
S1ott of UP.
11iahJ,
1963
Kirpal Singh
v.
State •f U.P.
ShahJ,
998
SUPREME COURT REPORTS (1964) VOL.
r
information at the police station, Puranpur was lodged
at 7.45 a.m. on March 27, 1961. The distance betbeen the police station and the village Shanti Nagar,
as the crow flies, is about 15 miles but by the public
transport system one has to take a long detour to
reach Puranpur Police Station. Rakkha Singh says
that to avoid delay and to secure the presence of a
Police Officer he secured a jeep from Sampurna
N agar Union and proceeded to the police station and
brought the sub-inspector of police to Shanti Nagar
in the same jeep. We do not think, having regard
to the circumstances, that there has been any such
gross delay in lodging the first information as would
justify us in throwing doubt on the truth of the story
of Rakkha Singh. It appears that there are two
police outposts near Shanti Negar-one at a distance
of about two miles and another at a distance of five
miles but the officer in charge of the police outposts
had, it is conceded by counsel for the appellant, no
authority to record a first information. Rakkha
Singh desired to lodge a complaint about the commission of the offence of murder, he was not apprehensive of any violence at the hands of the appellant and
his brothers, and if he did not contact the officer at
the police outposts, who could not record his comp·
'Iain!, no fault can be foun0 against him.
The post-mortem examination of the stomach
contents of Karam Singh disclosed that there was
8 ozs. of half-digested food and that indicated that
the death was caused some two hours after the last
meal was taken by Karam Singh; Counsel for the
appellant said that the condition of the stomach
supported the version of Manjit Singh and Anokh
Singh, but Rakkha Singh has deposed that Karam
Singh had taken at about 4 p.m. tea and pakadaa.
That explains the presence of half-digested food in
the stomach. The case for the prosecution undoubtedly depends for its support upon the testimony of a
single witness, who did not claim to have identified
•
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3 S.C.R
SUPREME COURT REPORTS
999
the assailant by seeing his face. But we do not think
that is a circumstance which would justify us in
departing from the rule normally followed by this
Court. The offence was committed when there was
sufficient day-light : the assailant was intimately
known to Rakkha Singh and the witness had heard
the appellant's voice speaking about the dispute
which was pending between him and the appdlant.
We do not think that the circumstance that Rakkha
Singh had not seen the face of the appellant when
the latter was running away is a ground for discard·
ing his testimony. The conviction of the appllant
must therefore
be confirmed. Sentence passed
by the Trial Court is, in the circumstances of the case,
the only appropriate sentence.
Before parting with the case, we think it neces·
sary to observe that the committing Magistrate in
this case erred in committing the accused to the
Court of Session without recording the evidence of
all the witnesses to the actual commission of the
offence, Under the Code of Criminal Procedure as
amended by Act 26 of 1955, the Magistrate holding
committal proceedings is
required to take the
evidence of such persons, if any, as may be produced
by the prosecution as witnesses to the actual commis·
sion of the offence alleged, and if the Magistrate is
of opinion that it is necessary in the interest of justice
to take the evidence of any one or more of the other
witnesses for the prosecution, he may take such
evidence also: s. 207A (4). The Magistrate has in the
enquiries relating to charges for serious offences like
murder the power and indeed a duty in the interest
of the accused, as well as in the larger interest of the
public to record the evidence of other witnesses who
throw light on the case. Examination of witnesses
to the act11al commission of the offence should in
inquiries, for committal on charges for such serious
offences, be the normal rule. The prosecutor is expected ordinarily to examine in the Court of the
1963
Kirpal Sing I
••
S1at1 oj U.P.
Shah J.
/96!J
f, irpal ~irizll
v.
\'late of U.P.
\
1000 SUPREME COURT REPORTS [1964] VOL.
committing Magistrate all witnesses to the actual
commission of the offence: if without adequate reasons he fails to do so, the l\'1agistrate is justified and
in enquiries on charges for serious offences is under a
duty to call witnesses who would throw light upon
the prosecution case. Before the Code was amended
by Act 26 of 1955 it was necessary for the Magistrate holding the inquiry to record the evidence of
all the important witnesses. With a view to shorten
delays in the proceeding preliminary to bringing the
accused to trial, the Legislature has by enacting
s. 207 A conferred a discretion upon the Magistrate in
the matter of examination of witnesses not produced
by the prosecutor.
Exercise of that discretion must
be judical : it is not to be governed by any set rules
or standards, but must be adjusted in the light of
circumstances of the case.
The Magistrate is again
not to be guided by the attitude of the prosecutor.
He must of course consider the representation relating
to the examination of witnesses by the prosecutor,
but in considering whether it is necessary in the interest of justice to take evidence of any one or more
of the other witnesses for the prosecution, he must
have due regard to the nature and gravity of the
offence, the interest of the accused and the larger in·
terest of the public, and the defence if any disclosed
by the accused.
A Magistrate failing to
examine
witnesses to the actual commission of the offence
because they are not produced, without considering
whether it is necessary in the interest of justice to
examine such witnesses, in our judgment, fails in the
discharge of duties.
There is nothing in the decision of this Court
in Sriram v. The State of Bombay (1), which may
support the view that in the matter of examination of
witnesses, especially in the inquiry relating to serious
charges like murder and culpable homicide, the
Magistrate is to be guided by the prosecutor. It is
(1) [1961] 2 S.C.R. 890.
f
r
•
,
3 S.C.R.
SUPREME COURT REPORTS 1001
the duty of the Magistrate to examine all such witnesses as may be produced by the prosecutor as wit·
nesses to the actual commission of the offence alleged,
but his duty does not end with such examination.
He must apply his mind to the documents referred to
ins. 173, and the testimony of witnesses, if any, produced by the prosecutor and examined, and consider
whether in the interest of justice it is necessary to record the evidence of other witnesses. In inquiries relating to charges for serious offences like murder,
normally the Magistrate should insist upon the examination of the principal witnesses to the actual
commission of the offence.
Failure to examine the
witnesses may be justified only in exceptional cases.
This is so because the Magistrate in committing a
person accused of an offence for trial has to perform
a judicial function which has a vital importance in
the ultimate trial, and
slipshod or mechanical
de,aling with the proceeding must be deprecated.
The appeal fails and is dismissed.
Appeal dismissed.
---
1963
Kfrpal Singh
••
Ftate ofU.P.
ShahJ