# The State qf Bol1'bay and Another v. F. N. Balsara. Patanjali

- **Citation:** [1951] 1 S.C.R. 729
- **Court:** Supreme Court of India
- **Decided:** 1951-06-01
- **Bench:** Saiyid Fazl Ali, Patanjali Sastri, S. R. DAs, VIVIAN BosE
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/the-state-qf-bol1-bay-and-another-v-f-n-balsara-patanjali-202
- **Pages:** 18

## Headnote

Criminal Procedure Code (V of 1898), ss. 173 (1), 190 (1) (b),
340 (1), 342, 288-Evidence Act (1 of 1872), s. 145-Filing of
second
challan-Whether
vitiates
first
report-Examination of
accused-Imp<>rtance of-Statements made in Committal CourtW hen admissible.
Where the report made by a police officer to · the Magistrate
complies with the requirements of s. 173 ( 1) of the Criminal
Procedure Code the Magistrate can take cognisance. of the case
1951
The State qf
Bol1'bay
and Another
v.
F. N. Balsara.
Patanjali
Sastri :J.
Muklurjea :J.
S. It. Das].
Vivian Bose J.
1951
June 1
1951
Tara Singh
v.
Tia• Stott
730
SUPREME COURT REPORTS
[1951]
under s. 190 (1) (b) of the Code. The fact that a second challan
was put in later would not necessarily vitiate the first and invalidate the proceedings taken before the second challan was
submitted.
The right conferred by s. 340 ( 1) of the Criminal Procedure Code
does not · extend to a right in an accused person to be provided
with a lawyer by the State or by the Police or by the Magistrate.
That is a privilege given to him and it is his duty to ask for a lawyer if he wants to engage one, or to engage one himself, or get
"his relations to engage one for him.
The only duty cast on the
·Magistrate is to afford him the necessary opportunity.
An accused should be properly examined under s. 342 of th.,.
Code and, if a point
in the
evidence is considered important
against the accused and the conviction is intended to be
based
upon it, then it is right and proper that the accused should be
questioned about the matter and be given an opportunity of
explaining it if he so desires.
This is an important and salutary
provision and should not be slurred over.
It is not a proper compliance of s. 342 to read out a long string
of questions and answers made in the Committal Court and ask
the
accused
whether
the
statement
is
correct.
A question of
that kind is misleading.
In the next place, it is not sufficient
compliance to string together a long series
of facts
and
ask
the accused what he
has to say about them. He must be
questioned separately about each material circumstance which
is
intended to be used against him.
Dwark_anath v. Emperor (A.LR.
1933 P. C. 124) referred to.
In view of the words "subject to the provisions of the Indian
Evidence Act" whith occur in s. 288 of the Criminal Procedure
Code, the evidence given by a witness in the Committal Court cannot be used as substantive evidence in the Sessions· Court unle·ss
the witness is confronted with those parts of his evidence which
arc to be used for the purpose of contradicting him, even though
if the only object of the prosecution is to discredit the
evidence
given in the Sessions
Court
by
cross-examination
him
with
reference to previous statements made in the Committal
Court,
it is not necessary to do so.
CluMINAL
APPELLATE
JURiso1cnoN :
Criminal
Appeal No. 14 of 1951. Appeal against the Judgment
and Order dated the 6th June, 1950, of the High Court
of Judicature for the State of Punjab at Simla
in
Criminal Appeal No. 75 of 1950.
Hardayal Hardy for the appellant.
S. L. Chibber for the respondent.
S.C.R.
SUPREME COURT REPORTS
731
1951.
June 1.
The following Judgments were
delivered.
BosE J.-This is an appeal under arti:cle 136 (1) of
the Constitution. The appellant, Tara Singh, was convicted of murder by the Additional Sessions Judge of
Amritsar and sentenced to death. On appeal the High
Court upheld the conviction and confirmed the sentence.
Tara Singh has made a further appeal to this Court.
As we intend to order a retrial, it will not be desirable to say anything about the merits of the case. The
case for the prosecution is that two persons, Milkha
Singh and Hakam Singh, were murdered in the early
hours of the morning of Friday the 30th of September,
1949.
The former is the appellant's uncle.
He died
on the spot.
The latter is the appellant's
father. He
was removed to the hospital and died there on Friday,
the 7th of October, 1949.
The murders are s

## Text

S.C.R.
SUPREME COURT REPORTS
729
appears to have been instituted to test the validity of
a controversial measure and to secure a final decision
on it to set at rest the doubts and uncertainties which
may have clouded the minds of a section of the public
as to how far the provisions of the Act conform to law
and to the Chapter on Fundamental Rights in the present Constitution.
PATANJALI SAsTR1 J.-1 agree and have nothing
more to add.
MuKHERJEA J.-1 have read the judgment of my
learned brother Mr. Justice Fazl Ali and I am in
entire agreement with his conclusions and reasons.
There is nothing further which I can usefully add.
S. R. DAs J.-1 agree and I have nothing
further
to add.
V1VIAN BosE J.-I also agree.
Appeal No. 182 allowed.
Appeal No. 183 dismissed.
Agent for the appellants in Case No. 182 and respondents in Case No. 183 : P. A. Mehta~ .
Agent for the respondent in Case No. 182
and
appellant in Case No. 183 : Rajinder
Narain for
R. A. Gagrat.
TARA SINGH
v.
THE STATE.
[SAIYID FAZL ALI, PATANJALI SASTRI,
S. R. DAs and VIVIAN BosE JJ.]
Criminal Procedure Code (V of 1898), ss. 173 (1), 190 (1) (b),
340 (1), 342, 288-Evidence Act (1 of 1872), s. 145-Filing of
second
challan-Whether
vitiates
first
report-Examination of
accused-Imp<>rtance of-Statements made in Committal CourtW hen admissible.
Where the report made by a police officer to · the Magistrate
complies with the requirements of s. 173 ( 1) of the Criminal
Procedure Code the Magistrate can take cognisance. of the case
1951
The State qf
Bol1'bay
and Another
v.
F. N. Balsara.
Patanjali
Sastri :J.
Muklurjea :J.
S. It. Das].
Vivian Bose J.
1951
June 1
1951
Tara Singh
v.
Tia• Stott
730
SUPREME COURT REPORTS
[1951]
under s. 190 (1) (b) of the Code. The fact that a second challan
was put in later would not necessarily vitiate the first and invalidate the proceedings taken before the second challan was
submitted.
The right conferred by s. 340 ( 1) of the Criminal Procedure Code
does not · extend to a right in an accused person to be provided
with a lawyer by the State or by the Police or by the Magistrate.
That is a privilege given to him and it is his duty to ask for a lawyer if he wants to engage one, or to engage one himself, or get
"his relations to engage one for him.
The only duty cast on the
·Magistrate is to afford him the necessary opportunity.
An accused should be properly examined under s. 342 of th.,.
Code and, if a point
in the
evidence is considered important
against the accused and the conviction is intended to be
based
upon it, then it is right and proper that the accused should be
questioned about the matter and be given an opportunity of
explaining it if he so desires.
This is an important and salutary
provision and should not be slurred over.
It is not a proper compliance of s. 342 to read out a long string
of questions and answers made in the Committal Court and ask
the
accused
whether
the
statement
is
correct.
A question of
that kind is misleading.
In the next place, it is not sufficient
compliance to string together a long series
of facts
and
ask
the accused what he
has to say about them. He must be
questioned separately about each material circumstance which
is
intended to be used against him.
Dwark_anath v. Emperor (A.LR.
1933 P. C. 124) referred to.
In view of the words "subject to the provisions of the Indian
Evidence Act" whith occur in s. 288 of the Criminal Procedure
Code, the evidence given by a witness in the Committal Court cannot be used as substantive evidence in the Sessions· Court unle·ss
the witness is confronted with those parts of his evidence which
arc to be used for the purpose of contradicting him, even though
if the only object of the prosecution is to discredit the
evidence
given in the Sessions
Court
by
cross-examination
him
with
reference to previous statements made in the Committal
Court,
it is not necessary to do so.
CluMINAL
APPELLATE
JURiso1cnoN :
Criminal
Appeal No. 14 of 1951. Appeal against the Judgment
and Order dated the 6th June, 1950, of the High Court
of Judicature for the State of Punjab at Simla
in
Criminal Appeal No. 75 of 1950.
Hardayal Hardy for the appellant.
S. L. Chibber for the respondent.
S.C.R.
SUPREME COURT REPORTS
731
1951.
June 1.
The following Judgments were
delivered.
BosE J.-This is an appeal under arti:cle 136 (1) of
the Constitution. The appellant, Tara Singh, was convicted of murder by the Additional Sessions Judge of
Amritsar and sentenced to death. On appeal the High
Court upheld the conviction and confirmed the sentence.
Tara Singh has made a further appeal to this Court.
As we intend to order a retrial, it will not be desirable to say anything about the merits of the case. The
case for the prosecution is that two persons, Milkha
Singh and Hakam Singh, were murdered in the early
hours of the morning of Friday the 30th of September,
1949.
The former is the appellant's uncle.
He died
on the spot.
The latter is the appellant's
father. He
was removed to the hospital and died there on Friday,
the 7th of October, 1949.
The murders are said to have been committed about
three in the morning. The appellant's brother Narindar Singh reported the occurrence at the Police Station,
about 7 miles distant, at 8.45 the
sa~e morning.
According to this report, Narindar was present and he
named the appellant as the assailant.
The prosecution alleges that there were three eyewitnesses to the assault on ·the father Hakam Singh,
namely the appellant's brother Na:rindar
Singh, his
mother Bibi Santi and his sister Bibi Jito, aged 14.
They are said to have arrived on the scene while the
appellant was still attacking the father with a kripan.
The prosecution version is that these
three
persons
saw the uncle Milkha Singh laying . dead on the scene of
the occurrence with injuries on his person, and it is
said that the appellant admitted to them that he ·had
killed the uncle.
The appellant is also said to have made an extrajudicial confession
to three persons,
Ujagar
Singh
(P.W. 8), Fauja Singh (P.W. 9) and Gurbakhsh Singh
(P.W. 10). The prosecution also adduced evidence about
three dying declarations made by the father
Hakam
Singh in each of which he implicated the
appellant.
1951
Tara Singh
v.
The State.
Bose].
!951
Tara Singh.
v.
The State
Bose J.
732
SUPREME COURT REPORTS
[1951]
Two of these were made to the police and the third
was recorded by a Magistrate on the !st of October.
The appellant was arrested between 4 and 5 p.m. on
Friday, 30th September, the day of the occurrence, and
was produced before a Magistrate on the 1st October.
The. police asked for a remand to police custody till
the 2nd as their enquiry was not complete. This was
granted and the appellant was produced bef9re another
Magistrate on the 3rd.
When the appellant was produced on the 3rd
October, the police handed over to the Magistrate
what they called an incomplete challan dated the 2nd
October, 1949, and also produced certain prosecution
· witnesses.
It is not clear whether these
witness~
were named in the challan of that date or not, but that
is a matter which can be cleared up in the course of
the retrial which we intend to order. Among the
witnesses so produced were three who are said to have
witnessed. the occurrence.
They were the appellant's
brother Narindar, his mother Bibi Santi and his sister
Bibi Jito. The Magistrate examined them straightaway and recorded their· evidence.
The appellant was not at the time represented by
counsel.
On the 5th of October, the police put in what they
called a complete challandmd on the 19th they put in
a supplementary
ch~llan. The Magistrate
committed
the appellant for trial on the 12th of November, 1949.
The first objection taken to the trial is that
the
Magistrate had no power to take cognizance of the
case on the 3rd October. Accordingly, the depositions
of- the three so-called eye-witnesses which he recorded
on the 3rd cannot be received in evidence, and if they
are excluded, then for reasons which I shall
set out
hereafter, the whole case against the appellant collapses because, according to the learned counsel, there
is
no other evidence on which the conviction can properly
be based.
This part of the argument is based on section 190,
Criminal Procedure Code. It is contended that cogni-
S.C.R.
SUPREME COURT REPORTS
733
zance of an offence can only be taken in one of the
ways set out in that section.
We are concerned here
with the method set out in clause (b) of sub-section (1),
namely "upon a report in writing of such facts made
by any police officer." It is cont.ended that the police
are not permitted to send in an incomplete report
because of the provisions of section 173(1) which runs
as follows :-
"Every investigation under this Chapter shall
be
completed without unnecessary delay, and as soon as
it is completed, the officer in charge of the police station
shall:_
(a) forward to a Magistrate empowered to take
cognizance of offence on a police report, a report in
the form prescribed etc ...... "
I need not express any opinion about this because,
in my opini<m the challan which the police referred
to as an incomplete challan, namely the one of 2nd
October, 1949, was in fact a complete report within
the meaning of section 193(l)(b}, Criminal Procedure
· Code, read with section 173(1).
When the police drew up their challan . of the 2nd
October, 1949, . and submitted it to the court on the
3rd, they had in fact completed their investigation
except for the report of the Imperial Serologist and
the drawing of a sketch map of the occurrence.
It
is always permissible for the Magistrate to take additional evidence not set , out in the challan. Therefore
the mere fact that a second challan W?S put in on the
5th October would not necessarily vitiate the first.
All that section 173(1) (a) requires is that as so0n
as
the police investigation under Chapter XIV of the
Code is complete, there should be forwarded to the
Magistrate a report in the prescribed form "seting
forth the names of the· parties, the nature of the information _and the names of the person who appear to
be acquainted with the circumstances of the case."
All that appears to have been done in the report of
the 2nd October which the police called their incomplete challan. The witnesses named in the second
6=!l. s. a. India/68
1951
Tara Singh
v.
Tiu Stall
Bost].
1951
Tara Singh
v.
Th• Stat•
Bas<].
734
SUPREME COURT REPORTS
[1951]
challan of the 5th October were not witnesses who
were
"acquainted
with
the
circumstances
of
the
case."
They
were
merely
formal
witnesses
on
other
matters.
So
also
in
the
supplementary
challan of the 19th. The witnesses named are the
1st class Magistrate, Amritsar,
who
recorded
the
dying declaration, and the Assistant
Civil
Surgeon.
They are not witnesses who were "acquainted with the
circumstances of the case."
Accordingly, the
challan
which the police calltd an incomplete challan was in
fact a completed report of the kind which section 173(1)(a) of the Code contemplates. There is no
force in this argument and we hold that the Magistrate took proper cognisance of the matter.
The next point urged was that when, the Magistrate
recorded the evidence of the three eye-witnesses, he
did not afford the appellant an opportunity of being
represented by counsel though he is given that right
by section 340 (1) of the Criminal Procedure Code.
There might have been force in this contention because
of the peculiar circumstances of this case, had it not
been for the fact that the inquiry continued after the
date on which the three eye-witnesses were examined
and the appellant made no complaint about this.
He
did not at any of the subsequent proceedings before
the Committing Magistrate ask for permission
to
engage a counsel or indicate in any way that he desired
to be represented by one.
I have referred to the peculiar circumstances of this
case.
I say that because this is a case in which the
accused is said to have killed his father and his uncle.
As far as I can gather from the record, his only
relatives are his brother Narindar, his mother
Bibi
Santi and his sister Bibi Jito. Ordinarily, when a man
is arrested for murder and is proceeded against and he
wants to be represented, his relatives come to his
rescue and engage counsel for him, but in a case like
this, if the prosecution story is true, the only relatives
the man has would not help him because, in their eyes,
he was a patricide and they, being filled with indigna1
tion against him, took all steps they could to bring
S.C.R.
SuPREME" COURT REPORTS
735
him to justice. On the other hand, if the present
story of the appellant is correct and the witnesses were
. intimidated by the police, equally they would take no
steps to assist the appellant.
Either way, the appellant would, in the peculiar circumstances of the case,
be helpless from that point of view. Therefore,
had
it not been for the fact that there were subsequent proceedings in which the ap~llant could have raised this
objection had · there been any substance in it, we might
have considered the argument with more favour.
But
the appellant's subsequent conduct indicat.es that · he
had no intention of engaging counsel and made 'no
grievance of the fact. I need hardly say that the right
conferred _by section 340 (1) does"not extend to a right
in an accused person to be provided . with a lawyer by
the · State or by the police or by the . Magistrate. · That
is a privilege given to him and it is his , duty to ask
for a lawyer if he wants to engage one and to engage
one himself or · get his relations. to engage one for him.
The only duty cast on the Magistrate is to afford him
the necessary opportunity. There is no force in this
contention either ..
The next point taken regarding the committal stage
of the case is that the Committing Magistrate did not
examine the appellant properly under sections 209 and
342 of the Criminal Procedure Code.
Section 342 (1)
states
that "for the purpose of enabling the accused
to explain any circumstances appearing in the evidence
against him, the Court may etc ... " And sub-section (3)
states that "the answers given by the accused
may
be taken into consideration in· such inquiry or trial."
Further, section 287 requires that "the
examination
of the accused duly recorded by or before the Committing Magistrate shall be tendered by the prosecutor
and read as evidence." (This refers
to
the
sessions
trial).
It is
important therefore that an accused
should be properly examined under ·section 342 and,
as their Lordships of the Privy Council indicated
in
Dwarkanath v. Emperor(1), if a point in the evidence is
(1) A.I.R. 1933 P.O. 124 at 130.
7'4 s. C. India/68
1951
Tara Singh
v.
Tiu Stott
·Bost].
!951
Tara SingA
v.
Tiu State
Bose].
736
SUPREME COURT REPORTS
[ 1951]
considered important against the accused and the conviction is intended to be based upon it, then it is right
and proper that the accused should be questioned
about the matter and be given an opportunity of
explaining it if he so desires.
This is an important
and salutary provision and I cannot permit it to be
slurred over. I regret to : find that in many cases scant
attention is paid to it, particularly in Sessions Courts.
But whether the matter arises in the Sessions Court or
in that of the Committing Magistrate, it is
important
that the provisions of section 342 should be fairly and
faithfully observed.
So far as the committal proceedings in this case are
concerned, the examination was on the whole fair and
full for the purposes of a Committal Court though I
feel the form of the questions put could have been a
little different.
As
they
stand, the questions read
more
like
cross-examination
than
an
examination
under section 208(2). I refer, for example, to the first
question which reads as follows :-
"Was Milkha Singh deceased your uncle issueless
and wanted to gift away his land to the Gurdwara
Baba Bakala, which fact you resented?"
and to the second question which reads-
"did you also resent your father mortgaging
his
land?"
The proper form in these two cases would have been
to tell the accused who suggested that he resented the
.fact that his uncle who was issueless wanted to gift
away his land, and in the second question, who said
that he resented his father mortgaging his land, and
then, after having told him that to ask him after each
question whether he wanted to say anything about the
matter. However, the point is trivial in this case
because the questions put are based on the evidence
of witnesses before the Committing Magistrate and the
questioning was sufficient for the Committing Magistrate's purposes. All that he had to consider was
whether under section 209(1) there were sufficient
grounds for committing the appellant for trial and not
S.C.R.
SUPREME COURT REPORTS
737
whether, on an appreciation of the whole evidence and
other material in the case, including witnesses for the
defence, the charge against him was proved. I am of
opinion that despite some shortcomings the committal
was good.
I turn next to the proceedings in the Sessions Court.
There are two grave defects there which, in my
opinion, vitiate the trial. The first is that the examination of the appellant was not in accordance with
the provisions of section 342.
The second is that
when the depositions of some of the witnesses examined before the Committing Magistrate were brought on
record in the Sessions Court under section 288, the
witnesses who made the statements were not confronted
with their previous statements as required by section
· 145 of the Evidence Act.
Dealing first with the examination of the appellant
by the Sessions Judge, all he did was to read over
the examination of the accused in the Commital
Court and then record · the following statements and
answers:-
"Q. Did you make the statement: on 9th November, 1949, as read out to you, and is it correct ?
A. Yes.
Q. Have you anything else to say ?
A. No. I am innocent and the statement of the
witnesses in the Court of the Committing Magistrate
were recorded without any notice to me.
I could not
therefore, engage any counsel.
Q. Do you wish to produce any defence ?
A. No."
Section 342 requires the accused to be examined for
the purpose of enabling him "to explain any . circumstances appearing in the evidence against him." Now
it is evident that when the Sessions Court is required
to make the examination
under
this
section,
the
evidence referred to is the evidence in the Sessions
Court and the circumstances which appear against the
accused in that Court.
It is not therefore enough to
1951
Tara Singh
v.
Thi State
Bose J.
1951
Tara Singh
v.
The State
Bose J.
738
SUPREME COURT REPORTS
[1951]
read over the questions and answers put in the Committing
Magistrate's
Court
and
ask
the
accused
whether
he
has anything to say about them. In the
present case, there was not even that.
The appellant
was not asked to explain the circumstances appearing
in the evidence against him but was asked whether
the statements made before the Committing Magistrate and his answers given there were correctly recorded.
That does not comply with the requirements of
the section. There is also · more than that in this case.
The evidence recorded in the Committal Magistrate's
Court. is not as full and as complete as the evidence
recorded
in the trial before
the
Sessions
Judge.
Accordingly, it often happens that evidence is given
in the Sessions Court and facts are disclosed which
do not appear on the record of the Committing Magistrate.
If the Judge intends to use these against the
accused, it is clearly not enough to question him about
matters which occurred in the Committal Court, for
material of this kind will not be found in the committal
record
m
these
circumstances.
That
has
happened here.
The Sessions Judge relied on the following circumstances.
First of all, he characterised as a "most significant piece of evidence" the fact that the three eyewitnesses had admitted before him that the appellant
was present in the Deohri before they went to the scene
of the occurrence on hearing the victims' cries and that
these witnesses did not suggest that there was anybody else who was responsible for the injuries to the
deceased. Now, this was evidence which was recorded
exclusively in the Sessions Court. The eye witnesses
before the Sessions Judge had resiled from the previous
statements which they made in the committal proceedings.
Accordingly, a questioning by the Committing
Magistrate would not and could not cover the point
made here and, naturally, the Magistrate has not questioned the appellant about that circumstance.
As the three eye witnesses had resiled from their
statements made in the committal proceedings, the
Sessions Judge brought their depositions on record
$.C.R.
SUPREME COURT REPORTS
739
under section 288, Criminal Procedure Code.
He next
relied on the evii:lence of these witnesses as recorded in
the Court of the Committing Magistrate. One point
he used against them was the evidence of motive which
these witnesses supplied in the committal proceedings.
The appellant was not told what that evidence was
nor was he asked to explain it. He was questioned
about this motive in the committal proceedings by the
Committing Magistrate, but even there he was not told
who had given the evidence, and the material on which
the Committing Magistrate relied to establish the presense of
motive was not disclosed.
The Sessions Judge also relied on the fact that the
appellant had confessed to the three eye witnesses that
he had killed his uncle and injured his ~ather. There
is not a single question regarding. that either in the
Committing Magistrate's Court or in
the
Sessions
Court.
Another ground on which the Sessions Judge proceeded was the extra-judicial confessions made by the
appellant to Ujagar Singh, Fauja Singh and Gurbakhsh
singh.
The appellant was questioned about an extrajudicial confession by the Committing Magistrate btit
not about one made to these three persons. What the
Committing Magistrate asked was :-
"Did you confess on 30th
September,
1949,
at
Timmowal before Ujagar Singh, Mangal Singh P.Ws.
etc., that you had killed Milkha Singh and cause
injuries to your father ?
It will be seen that Fauja Singh and
Gurbakhsh
Singh were not mentioned at all, and yet the Sessions
Judge considered them "respectables of the · village"
and said that they were independent witnesses. If the
appellant had been asked about them, he might have
been able to show that they were not disinterested and
that they had some motive for implicating him falsely,
or that they were not there.
Next, the Sessions Judge considered that "the most
important piece of evidence damaging to the accused"
was the dying declaration of Hakam Singh recorded
195!
Tata Singft
v.
TAI Stale
8o11 J.
1951
Tara Sing/,
v.
The Stat•
Bose J.
740
SUPREME COURT REPORTS
[1951]
by the Magistrate, P.W. 5.
Neither the Sessions Judge
nor the Committing Magistrate questioned the appellant about that.
The Sessioas Judge
also
relied
on
the two statements of Ha.kam Singh made before the
police one of which the police recorded as his dying
declaration. Again, not
on~ word was put to the
appellant about this.
Now, section 342(2) requires that the anwsers given
by the accused may be ta.ken into consideration.
If
the accused had been properly questioned and had
given reasonable explanations and the Sessions
Judge
had omitted to take them into consideration, it is
obvious that that
would have
constituted . a grave
defect in his judgment. How much graver is the defect
when the accused is not questioned at all and is not
given an opportunity of explaining
the circumstances
which are intended to be used against him.
The
unfairness of the Sessions Judge's conclusion
can
be
gathered from the fact that he (the Sessions Judge)
considered the evidence of the eye witnesses before
him
(as distinct from the depositions brought on
record under section 288)
material and then, not
having asked the appellant for any explanation, he
said:-
"The accused himself has not rendered any explanation as to at whose hands the two deceased had
met their death."
This is precisely what the Privy Council commented
on in Dwarkanath v. Emperor(') where the High Court
having relied on a piece of evidence which it considered
vital went on to say that the accused had not explained
it.
Their Lordships remarked that that "deprives of
any force the suggestion that the doctor's· omission to
explain what he was ne\>er asked to explain supplies
evidence on which the jury should infer etc."
The High Court has fallen into the same error and
has
based
its
decision
on
material
which
the
appellant was not asked to explain. For example, the
learned Judges rely on the evidence of the three eye
(') A.LR. 1933 P.C. 134 at 135.
'
_,
S.C.R.
SUPREME COURT REPORTS
741
witnesses before the Committing Magistrate. They also
· rely on the fact that Narindar's evidence in the Committing Magistrate's Court in · corroborated by
the
First Information which he gave to the police. The
appellant was not questioned about these ma~ers either
in the Sessions Court or by the Committing Magistrate.
The High Court also relies on the evidence of the three
witnesses who speak about !the extra-judicial confeSlsion and the learned Judges state that these witnesses
"are not suggested to be in any way unfriendly to the
appellant and they seem to be persons of respectability."
Here, again, if the appellant
was not
asked
whether these witnesses were unfriendly or not, it is
not fair to use the absence of such a suggestion
as
something which tells against the appellant. It is true
the accused can cross-examine as to comity but he is
not confined to that.
It may be that in a given case
cross-examination would be futile, for it would · only
elicit a denial, whereas a statement made
by
the
accused which the Code directs should be used as
evidence, for or against him, might be of great Yalue.
In any event, the Code directs that the accused shall
be afforded these opportunities and an omission to
do
so vitiates the trial if prejudice occurs or is likely
to
occur.
The High Court also bases its conclusion on the circumstantial evidence arising from the production of
the Kripan and the recovery of the shirt
from
the
appellant.
Those articles are said to be stained with
human blood.
The appellant was not asked to give
any explanation about this.
The
Serologist's
report
had not been received whrn the appellant was questioned by the Committing Magistrate. Therefore, he
could not be asked to explain the presence of human
blood stains on the Kripan.
All he was asked was
whether the blood-stained Kripan was recovered at his
instance.
That is not enough. He should also have
been asked whether he could explain the presence of
blood stains on it.
The two are not the same.
Then,
in the Sessions Court there was the additional evidence
of the Imperial Serologist showing that the Kripan had
T Illa Sintli
v.
Tli1 St4t1
8011 J.
1951
Tara Singh
v.
The State
Bose J.
742
SUPREME COURT REPORTS
[19511
stains of human blood on it. That was an additional
and very vital piece of evidence which the appellant
should have been afforded an opportunity of explainmg.
I cannot stress too strongly the importance of observing faithfully and fairly the provisions of section
342, Criminal Procedure Code_ It is not a proper compliance to read out a long string of questions and
answers made in the Committal Court and ask whether
the statement is correct.
A question of that kind is
misleading.
It may mean either that the questioner
wants to know whether the recording is correct, or
whether the answers given are true, or whether there
is some mistake or misunder£landing despite the accurate recording.
In the next pface, it is not sufficient
compliance to string together a long seri,es
of
facts
and ask the accused what he has to say about them.
He must be questioned separately about each material
circumstance which is intended to be used
against
him.
The whole object of the section is to afford the
accused ·a fair and proper opportunity of
explaining
circumstances which appear against him.
The
questioning must therefore be fair and must be couched
in a form which an ignorant or illiterate person will
be able to appreciate and understand.
Even when an
accused person is not illiterate, his mind is apt to be
perturbed when he is facing a charge of murder. He is
therefore in no lit position to understand the significance of a complex question. Fairness therefore requires
that each material circumstance should be put simply
and separately in a way that an illiterate mind,
or
one which is perturbed or confused, can readily appreciate and understand.
I do not suggest that every
error or om1ss1on in this behalf would
necessarily
vitiate a trial because I am opinion that errors of
this type fall within the category of curable irregularities. Therefore, the question in each case depends
upon the . degree of the error and upon whether prejudice has been occasioned or is likely to have
been
occasioned.
In my opinion, the disregard of the provisions of section 342, Criminal Procedure Code, is so
S.C.R.
SUPREME COURT REPORTS
743
gross. in this case that I feel there is. grave likelihood
of prejudice.
But this it not the only error.
Two of the three
eye witnesses whose depositions before the
Committing Magistrate
were brought
on
the sessions
record under section 288 were not confronted with
their former statements
in
the;
manner
required
by section
145, Evidence Act.
'All that happened
is that they were asked something about their
previous
statements and they replied that they were made
under coercion.
Now, section 145 of the Evidence Act
states that :-
. ·''
"A witness may be cross-examined as to previous
statements made by him in writing or reduced
into
writing, and relevant to matters in question, (without
such writing being shown to him) or being proved .... ".
This is all that seems to have occurred in the cases
of Bibi Santi (P.W. 6) and Bibi Jito (P.W. 7). But
the section goes on :-
"but if it is intended to contradict him by. the
writing, his attention must, before the writing can be
proved, be called to those parts of it which are to be
used for the purpose of contradicting him."
Now, it is evident that one of the main purposes of
using the previous statements was to contradict and
displace the evidence given before the Sessions · Court
because until that evidence was contradicated and displaced, there was no room in this case for permitting
the previous 5.tatcments to be brought on record and
used under section 288.
Therefore, as these statements
were not put to these witnesses and as their attention
was not drawn to them in the manner required by
section 145, Evidence Act, they were not admissible
in evidence.
The observations of the Privy Council in
Bal Gangadhar Tilak v. Shrinivas Pandit(1) are relevant
here.
In the case of Narindar Singh, his previous statement does seem to have been put to him in the proper
(1) 42 I.A. 135 at 147.
1951
Tara Singh
v.
The Stale
Bose j.
!951
'T•asiagh
v.
'Thi St.ti
,S.S• ].
744
SUPREME COURT REPORTS
[19511
way.
The partiCular portions on which the
prosecution desired to contradict him were read out and he
was afforded an opportunity of explaining them.
So
the
inadmissiblity · extends only to the other two
witnesses.
There is some difference of opm1on regarding this
matter in. the High Courts. Section
2~8 provides that
the evidence recorded . by the Committing Magistrate in
the presence of the accused may, in the circumstances
set out in the section, "be treated as evidence in the
case for all purposes subject to the provisions of the
Indian Evidence Act, 1872."
One line of reasoning is
that section 145, Evidence Act, is not attracted because
that section relates to previous statements in
wntmg
which are to be used for the purpose of contradiction
alone.
Statements of that kind do not become substantive evidence and though the evidence given in the
trial can be destroyed by a contradiction ,of that kind,
the previous statements cannot be used as substantive
evidence and no decision can be grounded on them.
But under. section 288, Criminal
Procedure Code, the
previous statement becomes evidence for all
purposes
and can form the basis of a conviction.
Therefore,
according to this line of reasoning, section 145 of the
Evidence Act is not attracted. Judges who hold that
view consider that the proyisions of the Evidence Act
referred to are those relating to hearsay and matters of
that kind which touch substantive evidence.
The other line of reasoning is that section 288 makes
no exception of any ·provision in the Evidence Act and
therefore section 145 cannot be excluded.
As that
section is one of the provisions or the Act, the statements are subject to its provisions as well.
All that
section 288 does is to import into the law of evidence
somethiug which is not to be found in the Evidence
Act, namely,. to make a statement of this kind substantive evidence, but only when all the provisions of
the Evidence Act have been duly complied with.
In my opinion, the secohd line of reasoning is to be
preferred. I see no reason why •ection 145 of the
S.C.R.
SUPREME COURT REPORTS
745
Evidence Act should be excluded when section 288
states that the previous statements are to be "subject
to the provisions of the Indian Evidence Act."
Section 145 falls fairly
and
squarely
within the plain
meaning of these words.
More than that.
This is a
fair and proper provision and is in accord with the
sense. of £airplay to which _Courts are accustomed.
Even the learned Judges who take the first view consider for the most part that though it is not obligatory
(o confront a witness with his former statement when
section 288 is resorted to, it is always desirable that
that should be done if only for the reason that an
omission to do so weakens the value of the testimony.
I am of opinion that the matter is deeper than that,
and giving effect to the plain meaning of the words
"subject to the provisions of the Indian Evidence Act"
as they stand. I hold that the evidence in the Committal Court cannot be used in the Sessions Court unless
the witnesses is confronted with his previous statement
as required by section 145 of the Evidence Act.
Of
course, the witness can be cross-examined about
the
previous statement and that cross-examination can be
used to destroy his testimony in the Sessions Court.
If that serves the purpose of the prosecution, then
nothing more is
required, but if the prosecution
wishes to go further and use the previous testimony to
the contrary as substantive evidence, then it must, in
my opinion, confront the witness with those parts of it
which are to be used for the purpose of contradicting
him. Then only can the matter be brought in as
substantive evidence under section 288.
As two of
the eye witnesses were not confronted in the ~anner required by section 145, their statements will have to be
ruled out, and if that is done the material on which
the conviction is based is considerably weakened.
I have considered anxiously whether this is a case in
which we should direct a retrial de novo or whether the
ret~ial should be from the stage at which the irregularity occurred or whether we should refuse to alfow a
retr~al and acquit
th~ appellant.
Having given
my
anxious thought to this matter, I am of opinion that
1951
T•ts Sing!&
v.
Tiu S1ti11
/Jifsl J.
1951
TMa Slogh
v.
Thi SI"''
&s•]·
746
SUPREME COURT REPORTS
[1951]
there should be a retrial de novo in the Sessions Court
either by the same or by some other Sessions Judge. I
consider it inexpedient to say more than this, lest
I
prejudice the issue one way or the other.
The conviction and sentence are set aside and
the
case is sent back to the High Court with a direction
that that Court will order a retrial de novo in the
Sessions Court, treating the committal as good.
FAZL Au J.-1 agree and have nothing to add.
PATANJALI SASTRI J.-1 agree and have nothing
further to add.
DAS J.-1 agree to the order proposed by my learned
brother Bose.
• ,
•
Re-trial cwdered.
Agent for the appellant : Ganpt1t Rai.
Agent for the respondent: P. A. Mehta .