judgement:
minal Misc.
Petition,No. 191 of 1978.
in the Matter of: CRIMINAL APPEAL No. 274 of 1977 R. k. Jain for the Petitioner.
D. P. Uniyad and O. P. Rana for the Responent The Order of the Court was delivered by KRISHNA IYER, J.
The petitioners have moved for bail setting out special grounds in support of the prayer.
The State opposes on various grounds which we will presently set out.
One of us sitting as a Chamber Judge in Gudikanti Narasihmalu and others vs, Public Prosecutor, Govt.
of AP(1) had considered this question at some length and since the principles set out herein commend themselves to us,we are proceeding on the same lines and are inclined to reach the same conclusion.
Briefly we will state the facts pertinent to the, present petition and prayer and proceed thereafter to ratiocinate on the relevant criteria in considering the interlocutory relief of bail.
Right at the beginning, we must mention that, at an earlier stage, their application for bail was rejected by this, Court on September 7, 1977.
But an order refusing an application for bail does not necessarily preciude another, on a later occasion, giving more materials, further, developments and different considerations.
While we surely must set store by this circumstance, we cannot accede to the faint plea that we are, barred from second consideration ' at a later stage.
An interim direction is not a conclusive adjudication, and updated reconsideration is not over turning an earlier negation.
In this view, we entertain the application and evaluate the merits pro and con.
Shri R.K. Jain has brought to our notice certain significant factors which frown upon continuance of incarceration and favour provisional, perhaps conditional enlargement of the applicants.
All the petitioners were charged with an offence of murder under s.302 I.P.C. but all of them were acquitted by the, Sessions Court as early as November 4, 1972.
The, State successfully appealed against the acquittal and the High Court, reversing the, findings of the, Sessions Court, held all the petitioners guilty and sentenced them all to life imprisonment.
This judgment was pronounced on May 20, 1977, after an unfortunately tragic sojourn of five years 'for an appeal in a murder case.
Our justice, system, even in grave cases, suffers from slow motion syndrome which is lethal to "fair trial".
, whatever the ultimate decision ' Speedy justice is a component of social justice since the community, as a whole, is concerned in the criminal being condignly and finaly punished within a reasonable and the innocent being absolved from the incordinate ordeal of criminal proceedings.
This is, (1) [1978] 2 S.C.R.371 780 by the way, although it is important that judicial business management by engineering, not tinkering, so as to produce efficient expedition, is in urgent, high priority item on the agenda of court reform, to be adically undertaken none to soon.
Back to the necessary facts.
On the High Court upsetting the acquittal, the petitioners have come up to this Court exercising their statutory right to appeal.
The present petition, as earlier stated, is the second one for bail, the first having been rejected about six months ago.
The petitioners 1 to 5 have suffered sentence in some Measure, having.
been imprisoned for about twenty months.
The sixth petitioner had 'been on bail in the Sessions Court and all the petitioners had been free during the pendency of the appeal.
Certain other pregnant particulars deserve special mention.
All the petitioners 1 to 5 are the entire male members of a family, and one point mentioned by Shri Jain is that all of them are in jail.
Their defence in this Court may, therefore, be jeopardised.
Another factor, equally meaningful, is that there is nothing indicated before us to show that during the long five years, when the petitioners had been out of prison, pending appeal, there had been any conduct on their part suggestive of disturbing the peace, of the locality, threatening anyone in the village or otherwise thwarting the life of the community or the course of justice.
Nay more.
When the High Court entertained the appeal, the State did not press for their custody for apprehended abscondence or menace to peace and justice.
It must be noticed that the episode of murder itself is attributed as the outcome of a faction fight or feud between the two clans in the village, not an unusual phenomenon in rural India riven by rivalry of castes, sects and gens.
This is, of course, a survival of primitive tribalism, as it were, but cannot be wished away unless sociological therapeutics were applied.
The pharmacopoeia of the Penal Code is no sufficient curative.
Nevertheless, we have to remember the reality of the village feud and consequent proneness to, flare ups and recrudescence of criminal conflicts.
Against this backdrop of social and individual facts we must consider the motion for bail.
The correct legal approach has been clouded in the past by focus on the ferocity of the crime to the neglect of the real purposes of bail or jail and indifferent to many other sensitive and sensible circumstances which deserve judicial, notice.
The whole issue, going by decisional material and legal literature has been relegated to a twilight zone of the criminal justice system.
Courts have often acted intuitively or reacted traditionally, so much the fate of applicants for bail at the High Court level and in the, Supreme Court, has largely hinged on the hunch of the bench as on expression of 'judicial discretion '.
A scientific treatment is the desideratum.
The Code is cryptic on this topic and the court prefers to be tacit, be the order custodial or not.
And yet, the issue is one of liberty, justice, public safety and burden on the public treasury, all of which insists that a developed jurisprudence of bail is integral to a socially sensitized judicial process.
As Chamber Judge in the summit court I have to 781 deal with this uncanalised case flow, ad hoc response to the docket being the flickering candle light.
So it is desirable that the subject disposed of on basic principle, not improvised brevity draped as discretion.
Personal liberty, deprived whom bail is value of our constitutional system recognised Under article 21 that curial power to negate it is a great trust exercisable, not casually but judicially, with lively concern for the cost to the individual and the community.
To glamorise impressionistic orders as discretionary may, on occasions, make a litigative gamble, decisive of a fundamental right.
After all, personal liberty of an accused or convict is fundamental, suffering lawful eclipse only in terms of "procedure established by law".
The last four words of article 21 are the life of that human right.
The doctrine of Police, Power,, constitutionally validates punitive processes for the maintenance of public order, security of the State, national integrity and the interest of the public generally.
Even so, having regard to the solemn issue involved, deprivation of personal freedom, ephemeral or enduring, must be founded on the most serious considerations relevant to the welfare objectives of society, specified in the Constitution.
What then, is 'judicial discretion ' in this bail context? In the elegant words of Benjamin Cardozo. "The judge, even when he is free, is still not wholly free.
He is not to innovate at pleasure.
He is not a knight errant roaming at will in pursuit of his own ideal of beauty or of goodness.
He is to draw his inspiration from consecrated principles.
He is not to yield to spasmodic sentiment, to vague and unregulated benevolence.
He is to exercise a discretion informed by tradition, methodized by analogy, disciplined by system, and subordinated to 'the primordial necessity of order in the social life '.
Wide enough in all conscience is the field of discretion that remains." (The Nature of Judicial Process Yale University Press (1921).
Even so it is useful to notice the tart terms of Lord Camdon that "the discretion of a judge is the law of tyrants: it is always unknown, it is different in different men; it is casual, and depends upon constitution temper and passion.
In th e best, it is often times caprice; in the worst, it is every vice, folly and passion to which human nature is liable.
" (I Bovu.
Law Dict.
, Rawles ' III Revision p. 685 quoted in Judicial Discretion National College of the State Judiciary, Reno, Nevada p. 14).
Some jurists have regarded the term 'judicial discretion ' as a misnomer.
Nevertheless, the vesting of 'discretion is the unspoken but inescapable, silent command of our judicial system, and those who exercise it will remember that 782 discretion, when applied to a court of justice, means sound discretion guided by law.
It must be governed by rule, not by,humour, it must not be arbitrary, vague and fanciful but legal and regular.
(Attributed to Lord Mansfield Tinglay vs Dolby, "An appeal, to a judge 's discretion is an appeal to his judicial conscience.
The discretion must be exercised, not in opposition to, but in accordance with, established principles of law." Judicial discretion, (ibid) p. 33 Having grasped the core concept of judicial discretion and the constitutional perspective in which the 'Court must operate public policy by a restraint on liberty, we have to proceed to see what are the relevant criteria for granty or refusal of bail in the case of a person who has either been convicted and has appealed or one whose conviction has been set aside but leave has been granted by this Court to appeal against the acquittal.
"What is often forgotten, and therefore warrants reminder, is the object to keep a person in judicial custody pending trial or disposal of an appeal.
Lord Russel, C.J. said "I observe that in this case bail was refused for the prisoner.
It cannot be too strongly impressed on the, magistracy of the country that bail is not to be withhold as a punishment, but that the requirements as to bail are merely to secure the attendance of the prisoner at trial." (R.v.
Rose 1898 18Cox CC.
717: 67 LJOB 289 quoted in 'The granting of Bail ', Mod.
Law Rev. Vol.
81, Jan 1968 p. 40, 48).
This theme was developed by Lord Russel of killowen C. J., when he charged the grand jury at Salisbury Assizes, 1899 ". it was the duty of magistrates to admit accused persons to bail, wherever practicable, unless there were strong grounds for supposing that such persons would not appear to take their trial.
It was not the poorer classes who did not appear, for their circumstances were such as to tie them to the place where, they carried on their work.
They had not the golden wings with which to fly from justice." , Mod.
Law Rev. p. 49 (ibid) In Archbold it is stated that "The proper test of whether bail should be granted or refused is whether it is probable that the defendant will appear to take his trial .
The test should be applied by reference to the following considerations 783 (1) The nature of the accusation (2) The nature of the, evidence in support of the accusation (a) The severity of the Punishment which conviction will entail. (4) Whether the sureties are independent, OF indemnified by the accused person . " (Mod. Law Rev. ibid.
P. 53 Archbold, pleading Evidence and Practice in Criminal Cases, 56th edn., London,1966 para 203) Perhaps, this is an overly simplistic statement and we must remember the constitutional focus in article 21 and 19 before following diffuse observations and practices in the English system.
Even in England there is a growing awareness that the working of the bail system requires a second look from the point of view of correct legal criteria and sound principles, has been pointed out by Pr.
Bottomley.
(The Granting of Bail: Principles and Practices : Mod.
Law Rev. ibid p.40 to 54).
Let us have a glance around which other relevant factors must revolve.
When the case is finally disposed of and a person is sentenced to incarceration, things stand on a different footing.
We are concerned with the penultimate stage and the principal rule to guide release on bail should be to secure the presence of the applicant who seeks to be liberated, to take judgement and serve sentence in the event of the court punishing him with imprisonment.
In this perspective, relevance of considerations is regulated by their nexus with the likely absence of the applicant for fear of a severe sentence, if such be plausible in the case.
As Erle J. indicated, 'when the crime charged, (of which a convictions has been sustained) is of the highest magnitude, and the 'punishment of it assigned by law is of extreme severity, the Court may reasonably presume, some evidence warranting, that no amount of bail would secure the presence of the convict at the stage of judgment, should he be en larged.
Law Rev. p. 50 ibid, 1952 I.E. & B.I.).
Lord Campbell CJ concurred in this approach in that case and Coleridge J. down the order of priorities as follows "I do not think that an accused party is detained in custody because of his guilt, but because there are sufficient probable grounds for the charge against him as to make it proper that he should be tried, and because the detention is necessary to ensure his appearance at trial, .It very important element in considering whether the party, if admitted to bail, would appear to take his trial; and I think that in coming to a determination on that point three elements will generally be found the most important : the charge, the nature of the evidence by which it is supported, 784 and the punishment to which the, party would be liable if convicted.
In the present case, the charge is that of ' wilful murder; the evidence contains an admission by the prisoners of the truth of the charge, and the punishment of the offence is, by law, death".
Law Rev. ibid p. 50 51) it is thus obvious that the nature of the charge is the vital factor and the nature of the evidence also is pertinent.
The punishment to which the party may be liable, if convicted or conviction is confirmed, also bears upon the issue.
Another relevant factor is as to whether the course of justice would be thwarted by him who seeks the benignant jurisdiction of the Court to be freed for the time being.
(Patrick Devlin The Criminal Prosecution in England London) 1960, p. 75 Mod.
Law Rev. ibid p. 54); Thus the legal principle and practice validate the court considering the likelihood of the applicant interfering with witnesses for the prosecution or otherwise polluting the process of justice.
It is not only traditional but rational, in this context, to enquire into the antecedents of a man who is a lying for bail to find whether he has a bad record particularly a record which suggests that he is likely to commit serious offences while on bail.
In regard to habituals it is part of criminological history that a thoughtless bail order has enabled the bailee to expoit the opportunity to inflict further crimes on the members of society.
Bail discretion, on the basis of evidence about the criminal record of a defendant, is therefore not an exercise in irrelevance.
The significance and sweep of article 21 make the deprivation of liberty a matter of grave concern and permissible only when the law authorising it is reasonable, even handed and geared to the goals of community good and State necessity spelt out in article 19.
Indeed, the, considerations I have set out as criteria are germane to the constitutional proposition I have deduced.
Reasonableness postulates intelligent care and predicates that deprivation of freedom by refusal of bail is not for punitive purpose, but for the bi focal interests of justice to the individual involved and society affected.
We must weigh the contrary factors to answer the. test of reasonableness, subject to the need for securing the presence of the bail applicant.
It makes sense to assume that a man on bail has a better chance to Prepare or present his case than one remanded in custody.
And if public justice is to be promoted.
mechanical detention should be demoted.
In the United States, which has a constitutional perspective close to ours, the function of bail is limited, 'community roots ' of the applicant are stressed and, after the Vera Foundation 's Manhattan Bail Project, monetary suretyship is losing ground.
The considerable public expense in keeping in custody where no danger of 785 disappearance or disturbance can arise, is not a negligible consideration.
Equally important is the deplorable condition, verging on the inhuman, of our sub jails, that the unrewarding cruelty and expensive custody of avoidable incarceration makes refusal of bail unreasonable and a policy favouring release justly sensible.
A few other weighty factors deserve reference.
All deprivation of liberty is validated by social defense and individual correction along an anti criminal direction.
Public justice is central to the whole scheme of bail law.
Fleeing justice must be forbidden but punitive harshness should be minimised.
Restorative devices to redeem the man, even through community service, meditative drill, study classes or other resources should be innovated, and playing foul with public peace by tampering with evidence, intimidating witnesses or committing offences while on judicially sanctioned 'free enterprise, should be provided against.
No seeker of justice shall play confidence tricks on the court or community.
Thus, conditions may be hung around bail orders, not to cripple but to protect.
Such is the holistic jurisdiction and humanistic orientation invoked by the judicial discretion correlated to the values of our constitution.
Viewed from this perspective,, we gain a better insight into the ,rules of the game.
When a person, charged with a grave offence, has been acquitted at a stage, has the intermediate acquittal pertinence to a bail plea when the appeal before ;his Court pends ? Yes, it has.
The panic which might prompt the accused to jump the gauntlet of justice is less, having enjoyed the confidence of the court 's verdict once.
Concurrent holdings of guilt hive the opposite effect.
Again, the ground for denial of provisional release becomes weaker where the fact stares us in the fact that a fair finding if that be so innocence has been recorded by one court.
It may be conclusive, for the judgment of acquittal may be ex facie wrong, the likelihood of desperate reprisal, if enlarged, may be a deterrent and his own safety may be more in prison than in the vengeful village where feuds have provoked the violent offence.
It depends.
Antecedents of the man and socio geographical circumstances have a bearing only from this angle.
Police exaggerations of prospective misconduct of the accused, if enlarged, must be soberly sized up lest danger of excesses and injustice creep subtly into the discretionery curial technique.
Bad record and police prediction of criminal prospects to invalidate the bail plea are admissable in principle but shall not stampede the court into a complacent refusal.
Realisim is a component of humanism which is the heart of the legal system.
We come across cases where parties have already suffered 3, 4 and in one case (the other day it was unearthed) over 10 years in prison.
These persons may perhaps be acquitted difficult to guess.
If they are, the injustice of innocence long in rigorous incarceration inflicted by the protraction of curial processes is an irrevocable injury.
And, taking a pragmatic view, while life imprisonment may, in law, last a whole life, in practice it hardily survives ten years, thanks to rules of remission.
Thus, at the worst, the prisoner 786 may have to serve some more years, and, at the best, law is vicariously guilty of dilatory deprivation of citizen 's liberty, a consummation vigilantly to be vetoed.
So, a circumstance of some consequence, when considering a motion for bail, is the period in prison already spent and the prospect of the appeal being delayed for hearing, having regard to the suffocating crowd of dockets pressing before the few Benches.
It is , not out of place to mention that if the State takes up a flexible attitude it may be possible to permit long spells of parole, under controlled conditions, so that fear that the full freedom if bailed out, might be abused, may be eliminated by this experimental measure, punctuated by reversion to prison.
Unremitting insulation in the harsh and hardened company of prisoners leads to many unmention able vices that humanizing interludes of parole are part of the compassionate constitutionalism of our system.
The basics being thus illuminated, we have to apply them to the tangled knot of specifics projected by each case.
The delicate light of the law favours release unless countered by the negative criteria necessitating that course.
The corrective instinct of the law plays upon release orders by strapping on to them protective and curative conditions.
Heavy bail from poor men is obviously wrong.
Poverty is society 's malady and sympathy, not sternness, is the judicial response.
Yet another factor which heavily tips the scales of justice in favour of release Pendente lite is the thought best expressed, by Justice Bhagwati, speaking for the Court in Kashmira Singh vs The State of Punjab(1).
"The appellant, contends in this application that ?ending the hearing of the appeal he should be released on bail.
Now, the practice in this Court as also in many of the High Courts has been not to release on bail a person who has been sentenced to life imprisonment for an offence under section 302 of the Indian Penal Code.
The question is whether this practice should be departed from and if so in what circumstances.
It is obvious that no practice howsoever sanctified by usage and hallowed by time can be ' allowed to prevail if it operates to cause injustice.
Every practice of the Court must find its ultimate justification in the interest of justice.
The practice not to release on bail a person who has been sentenced to life imprisonment was evolved in the High Courts and in this Court on the basis that once a person has been found guilty and sentenced to life imprisonment, he should not be let loose, so long I as his conviction and sentence are not set aside, but the underlying, postulate of this practice was that the appeal of such person would be disposed of within a measurable of time, so that if he is ultimately found to be innocent, he would not have to remain in jail for an unduly long (1) ; at 2148.
787 period.
The rationale of this practice, can have no application where the Court is not in a position to dispose of the appeal for five or six years.
It would indeed be a travesty of justice to keep a person in jail for a period of five or six years for an offence which is ultimately found not to have been committed by him.
Can the Court ever com pensate him for his incarceration which is found to be unjustified ? Would it be just at all for the Court to tell a person : "We have admitted your appeal because we think you have a prima facie case, but unfortunately we have no time to hear your appeal for quite a few years and, therefore, until we hear your appeal, you must remain in jail, even though you may be innocent ?" What confidence would such administration of justice, inspire in the mind of the public ? It may quite conceivably happen, and it has in fact happened in a few cases in this Court, that a person may serve out his full term of imprisonment before his appeal is taken up for hearing.
Would a judge not be overwhelmed with a feeling of contribution while acquitting such a person after hearing the appeal? Would it not be an affront to his sense of justice? Of what avail would the acquittal be to a person who has already served out his term of imprisonment or at any rate a major part of it ? It is, therefore, absolutely essential that the practice which this Court has been following in the past must be reconsidered and so long as this Court is not in a position to hear the appeal of an accused within a reasonable period of time, the Court should ordinarily unless there are cogent grounds for acting otherwise, release the accused on bail in cases where special leave has been granted to the accused to appeal against his conviction and sentence." Having regard to this constollation of considerations, carefully viewed in the jurisprudential setting above silhourted, we are of the view, that subject to certain safeguards, the petitioners are eligible to be enlarged on bail.
The endemic pathology of factious scrimmage and blood shed should be preempted by suitable safeguards, even if we are inclined to bail out the petitioners.
So, we direct that the petitioners be released on their own recognisances in a sum of Rs. 5,000/ each, with one surety for each in a like sum, subject to two conditions, viz., firstly, that the petitioners shall not enter Bharaiyam village which is alleged to be the hot bed of Plan clashes according to the prosecution and secondly, the petitioners shall report at the Tandiawan Police Station (District Hardor) once every week.
We direct the Sub Inspector of Police station concerned to see that both the conditions are observed.
In 'the event 'of breach of either condition, the prosecution will be at liberty to move this Court for cancellation Of the bail hereby granted.

summary/full:
All the petitioners were charged with the offence of murder u/s 302 I.P.C., but all of them were acquitted by the Sections Judge on 4 11 1972.
The State successfully appealed against the acquittal and by its judgment dated 20 5 1977 the High Court, while reversing the findings of the Sessions Court, held all of them guilty and sentenced them all to life imprisonment.
The petitioners came up to the Supreme Court exercising their statutory right of appeal.
Pending the disposal of the appeal, they moved an application for bail which was rejected on 7 9 1977.
The petitioners moved another application for bail.
Granting the bail, subject to fulfilment of conditions imposed, the Court HELD : 1.
An order refusing an application for bail does not necessarily preclude another, on a later occasion, giving more materials, further developments and different considerations.
While it is a circumstance which the Courts surely must set store, Courts are not barred from second consideration at a later stage.
An interim direction is not a conclusive adjudication and updated reconsideration is not overturning an earlier negation.
[779 D E] 2.
The significance and sweep of article 21 make the deprivation of liberty ephemeral or enduring, a matter of grave concern and permissible only when the law authorising it is reasonable, even handed and geared to the goals of community good and State necessity spelt out In Article 19.
Reasonableness postulates intelligent care and predicates that deprivation of freedom by refusal of bail is not for punitive purpose, but for the bifocal interests of justice to the individual involved and society affected.
[784 E F] 3.
Personal liberty deprived when bail is refused, is too precious a value of ourconstitutional system recognised under article 21, that the curial power to negateit is a great trust exercisable, not casually, but judicially with lively concern for the cost to the individual and the community.
Personal liberty of an accused or convict is fundamental, suffering lawful eclipse only in terms of procedure established by law.
The last four words of article 21 are the life of that human right.
[781 A B] 4.
All deprivation of liberty is validated by social defence and individual correction along an anti criminal direction.
Public justice is central to the whole scheme of bail law.
Feeling justice must be forbidden but punitive harshness should be minimised.
Restorative devises to redeem the man, even through community service, meditative drill, study classes or other resources should be innovated and playing foul with public peace by tampering with evidence, intimidating witnesses or committing offences while on judicially sanctioned "free enterprise" should be provided against.
No seeker of justice shall play confidence tricks on the Court or community.
Conditions may be hung around bail orders, not to cripple but to protect.
Such is the holistic jurisdiction and humanistic orientation invoked by the judicial discretion correlated to the values of our Constitution.
[785 B C] 5.
The principal rule to guide release on bail should be to secure the presence of the applicant, who seeks to be liberated, to take judgment and serve sentence in the event of the Court punishing him with imprisonment.
In this 778 perspective relevance of considerations is regulated by their nexus with the likely absence of the applicant for fear of a severe sentence.
[783 E] The vital considerations are: (a) The nature of charge, the nature of the evidence and, the punishment to which the party may be liable, if convicted, or conviction is confirmed.
When the crime charged is of the highest magni tude and the punishment of it assigned by law is of extreme severity, the Court may reasonably presume, some evidence warranting, that no amount of bail would secure the presence of the convict at the stage of judgment, should he be enlarged (b) whether the course of justices would be thwarted by him who seeks the benignant jurisdiction of the Court to be freed for the time being (c) Antecedents of the man and socio geographical circumstance, and whether or the petitioner 's record shows him to be 'a habitual offender, (d) When, a person charged with a grave offence has been acquitted at a stage, the intermediate acquittal has pertinence to a bail plea when the appeal before this Court pends.
The grounds for denial of provisional releases becomes weaker when a fair finding of innocence has been recorded by one court, (e) Whether the accused 's safety may be.
in, prison, than in the, vengeful village where feuds have provoked the violent offence and (f) The period in.
prison already spent and the prospect of delay in the appeal being heard, and disposed of.
[783 A B,F, 784 C, D, 785 D E, 786,A] Kashmira Singh vs State of Punjab, ; = A.I.R. @ 2148; Gudikanti Narasihmalu and Ors.
vs Public Prosecutor, Govt of A.P.; , Reiterated.
Tinglay vs Dolby, ; Rex vs Rose, 1898 18 CC 717; 67 QB 289; quoted with approval.
Courts should soberly size up police exaggerations; of prospective misconduct of the accused if enlarged, lest danger of excesses and injustice creep subtly into the discretionary curial technique.
Bad record and police prediction of criminal prospects to invalidate the bail plea are admissible in principle, but shall not stampede the Court into complacent refusal.
The endemic pathology of factious scrimmage and bloodshed should be preempted by suitable safe guards.
[785 F G] To answer the test of reasonableness subject to the need for securing the presence of the bail applicant, the Court must also weigh the contrary factors like (i) the better chances which a man on bail has to prepare or present his case than one remanded in custody, (ii) promotion of public justice, (iii) the considerable public expenses in keeping in custody where no danger of disappearance or disturbance can arise and (iv) the deplorable condition verging on the inhuman of our sub jails.
[784 G H; 785 A] In the instant case, the following 'significant factors frown ' upon continuance of incarceration and favour provisional but conditional enlargement of the petitioners.
(a) Petitioners 1 to 5 have suffered sentences in some measures having been imprisoned for about twenty months.
(b) When the High Court entertained the appeal, the State did not press for their custody for apprehended abscondence or menace to peace and justice.
(c) The sixth Petitioner had been on bail in the Sessions Court and all the petitioners had been free during the pendency of the appeal.
(d) There is nothing indicated to show that during the long five years, when the petitioners had been out of prison, pending appeal, there had been any conduct on their part suggestive of disturbing the peace of #he locality, threatening any one in the village or otherwise thwarting the life of the community or the cause of justice and (e) All the petitioners 1 to 5 are the entire male members of a family and their remaining in jail will jeopardise their defence in this Court.
, B E]


judgement:
: Criminal Appeal NO 246 of 1976.
(Appeal by Special Leave from the Judgment and Order dated 5 12 1975 of the Delhi High Court in Criminal Appeal No. 111 of 1974).
R.L. Kohli and R.C. Kohli, for the appellant.
G.L. Sanghi and M.N. Shroff, for the respondent.
The Judgment of the Court was delivered by GOSWAMI, J.
This appeal by special leave is directed against the judgment of the Delhi High Court confirming the conviction of the appellant under section 302/34, Indian Penal Code, and sentence of imprisonment for life.
144 Ashok Kumar aged about 17 years and his younger brother, Vijay Kumar, below the age of 16 years were charge sheeted for an offence under section 302/34 IPC for causing the death of Rajinder Kumar aged about 23 years.
Vijay Kumar was sent for trial under the , and is not, therefore, before us.
In June 1971 Jai Bhagwan, father of the accused, had complained to the police against the deceased, Rajinder Kumar, alleging that he had kidnapped his daughter, Saroj Kumari.
It is said that Saroj Kumari was recovered from the company of Rajinder Kumar at Ahmedabad and Rajinder Kumar was charged for offences under sections 366 and 376, Indian Penal Code, and the case was pending on the date of occurrence.
The prosecution case is that on May 22, 1973, Hukum Chand (PW 1), father of the deceased, Rajinder Kumar, was coming back from the Fountain in Chandni Chowk on H.C. Road and took a turn towards right leading to Mor Sarai when.
he saw the accused, Ashok Kumar, and his brother, Vijay Kumar, having surrounded his son Rajinder Kumar.
He also saw that Ashok Kumar caught hold of the hand of Rajinder Kumar while his younger brother stood behind him in front of the gate of Mor Sarai.
Having seen this he walked quickly and when he was at a distance of four or five paces from them he heard Ashok Kumar and his brother, Vijay Kumar.
telling Rajinder Kumar that they would avenge the kidnapping of their sister no matter whether the court might punish him or not.
Hukam Chand then saw both the brothers taking out their knives.
Accused Ashok Kumar struck a blow on the left cheek of Rajinder Kumar.
Vijay Kumar struck one blow on Rajinder Kumar which was warded off by him as a result of which his right forearm was struck by the knife on the back of his palm.
Rajinder Kumar tried to run away but was pursued by the two brothers and was overpowered.
They then gave several blows on the back of his waist, on left abdomen and on the right thigh.
As a result of these blows Rajinder Kumar fell down on the footpath on the side of the quarters of Mor Sarai.
Accused Ashok Kumar ran away towards the station along with his brother.
Hukam Chand sent for a taxi and took Rajinder Kumar in it to the Irwin Hospital where he was examined by Dr. U. Kaul (PW 12) who found the follow ing injuries on his person : 1.
Stab wound 4" x 2" left inter scapular region with surrounding surgical emphysema.
Stab left lumber region 2" x 2".
Stab left thigh 2" x 1".
Stab left cheek 2" x 2".
Stab left hand 4" x 1" on the dorsum.
Constable, Vijay Kumar, (PW 7) who was on duty at the Irwin Hospital informed the Police Station, Kotwali, about the admission of Rajinder Kumar in the Hospital.
Constable, Ram Saran (PW 145 14) made an entry in the daily diary about the report re ceived from the irwin Hospital.
He sent a copy of this report to S.I. Dewan Singh (PW 20) who proceeded to the Hospital.
When PW 20 arrived.
Rajinder Kumar was not in a position to make a statement and he recorded the statement of Hukam Chand (exhibit PW 1/A) at about 8.40 P.M. which is the first information report registered under section 307/34 IPC.
According to the Doctor the punctured injury at the left inter scapular region was sufficient to cause his death in the ordinary course of nature.
On the death of Rajinder Kumar at 11.35 P.M., the same night, the section under which the case was registered was altered to section 302 IPC and investigation proceeded accordingly.
Names of Ashok Kumar and Vijay Kumar appeared in the first information report, as the assailams.
The first information report also dis closed that there was another person, Mohar 'Singh (PW 2) with Hukam .Chand.
The accused, Ashok Kumar, was arrested on May 25, 1973, near Jat Dharamshala in Jamuna Bazar.
It is said that on the following day Ashok Kumar made a state ment before Inspector Sardar Singh, Station House Offi cer, P.S. Kotwali, Delhi (PW 21) in pursuance of which on May 28, 1973, a blood stained knife (exhibit P 7) was recov ered.
Evidence was also led by the prosecution to prove recovery of a shirt and pantaloons having stains of blood although these had already been washed from the person of the accused, Ashok Kumar, when he was arrested on May 25, 1973.
The serological report showed the origin of these stains as human blood.
At the trial not only Hukam Chand gave evidence as an eye witness, but Mohar Singh (PW 2), Rajinder Kumar Jain (PW 3) and Puran Singh (PW 4) were also produced as eye witnesses.
While PW 1, Hukam Chand, contin ued to tell his melancholy story, PWs 3 and 4 did not sup port the prosecution and were accordingly declared hostile.
It was shown in the course of their cross examination that they had earlier during the investigation made statements as eye witnesses to the occurrence.
The statements of PWs 3 and 4 which were recorded in the committing court were transferred to the record during the trial under section 288, Criminal Procedure ' Code.
In the committing court these witnesses had stated that they had seen the accused assaulting the deceased with a knife.
P.W. 2, Mohar Singh, was not examined before the committing court.
The accused denied the charge and stated that he was arrest ed by the police in Agra on May 24, 1973, and not on the following day at Jat Dhararashala as alleged by the prosecution.
After examining the evidence of the defence witnesses as well as the station diary entries about the departure of the Head Constable.
Manohar Lal and Constable Balbir Singh, to outside districts the Sessions Judge held that it was "not at all improbable" that the two policemen accompanied by Jai Bhagwan went to Agra and brought the accused from there.
The Sessions Judge also did not rely upon the disclosure statement made by the accused and also ignored the recovery of the knife as being in pursuance of that disclosure statement.
146 The Sessions Judge observed that it was very unusual in a murder case that recovery of the offending weapon was so belated.
The trial court convicted the accused on the testimony of Hukam Chand (PW 1) and accepted the evidence of PWs 3 and 4 recorded in the committing court.
Referring to PWs 3 and 4, the trial court observed as follows : "I treat the evidence of PW 3 Rajinder Kumar Jain and PW 4 Puran as substantive evidence under section 288 Cr.
P.C. I find abundant corroboration thereof in the testimo ny of PW 1 Hukam Chand.
This evidence treated as substantive evidence under section 288 Cr.
P.C. taken into consideration with the testimony of PW 1 Hukam Chand provides a complete picture by ocular evidence of what happened to the victim Rajinder Kumar on that fateful evening at the hands of Ashok accused and his brother Vijay.
I accept this part of the testimony".
With regard to the evidence of PW 1 the trial court observed as follows : "In the case before me Hukam Chand is a father of the deceased.
He admits the enmity on the part of the accused towards the deceased.
He mentioned the name of the accused in the FIR and gave complete sequence of events.
He did not lose any time.
He had no time to manufacture things so as to be incorporated in the report.
This is a strong circumstance in favour of the prosecution in this case".
The High Court, as stated earlier, confirmed the convic tion by accepting the testimony of Hukam Chand as well as the statements made by PWs 3 and 4 before the committing court in which they had clearly supported the prosecution case.
Since the accused had opportunity to cross examine the PWs 3 and 4 in the committing court the fact that he had not actually cross examined these witnesses is of no conse quence.
Apart from that during the Sessions trial their explanation was that they had made the statements before the committing court under the threat of the police.
This explanation had been rejected by both the courts.
Mr. Kohli submits that PWs 3 and 4 were not mentioned in the first information report although PW 1 mentioned,.
therein, at threeplaces about the presence of Mohar Singh (PW 2) who was not even examined before the committing court.
Since PW 2 denied having seen the occurrence, his evidence is of no assistance and the fact that he was con tradicted by his previous statement made before the police only dubs him as an unreliable witness.
147 So far as PWs 3 and 4 are concerned, we do not see much force in the contention that their names were not mentioned in the first information report.
It is possible that even if they had seen the occurence from some other point, PW 1 hastening away to the Hospital might not have, noticed them.
Besides, when S.I. Diwan Singh (PW 20) went to the place of occurrence with PW 1 (Hukarn Chand) at about 9.45 P.M. the same night he found a large crowd there.
PW 20 stated that he recorded at that time the statements of Mohar Singh (PW 2), Rajinder Kumar Jain (PW 3) and Puran Singh (PW 4).
The omission of the names of PWs 3 and 4 in the first information report lodged at 8.45 P.M. cannot, there fore, be of much significance to reject their testimony on that score.
Next, Mr. Kohli submits that the statements of PWs 3 and 4 recorded in the committing court and trans ferred under section 288, Criminal Procedure Code, is inad missible and should not be acted upon, since no specific portion of their contradictory statements had been put to them in the course of their cross examination by the public prosecutor.
We find that after drawing the attention of these two witnesses to their contradictory statements re corded by the police with regard to their having seen the assault which they denied, the entire respective state ments recorded by the committing magistrate in Hindi were read out to the witness who did not deny to have made the same but only explained that they had deposed in that manner under threat and pressure from the police.
Section 288, Criminal Procedure Code, which provides for transfer of evidence recorded in the committing court under certain circumstances, is subject, inter alia, to the provisions of section 145 of the Evidence Act, and the provisions of the latter section have been substantially complied with in this case.
Under the circumstances there is no legal infirmity about the transfer of the deposition of the two witnesses to the record of the Sessions Court under section 288, Criminal Procedure Code, and it was a legitimate use of discretion by the Sessions Judge in adopting this course.
Their evidence recorded in the committing court is substantive evidence in this case and is clearly admissible.
Rajinder Kumar Jain (PW 3) had written an inland letter which the Inspector General of Police received on January 18, 1974, complaining about the police torture in threatening him to give evidence in the court.
He was examined before the Sessions Judge on January 19, 1974, when he, for the first time, denied in court to have seen the occurrence.
He had been examined in the committing court on November 21, 1973, about six months after the occurrence when he had made no complaint about police torture and gave evidence as an eye witness to the occurrence.
The trial court was, therefore perfectly justified in not accepting the belated explanation of PWs 3 and 4 about police threat under which alone they stated that they had supported the prosecution case.
148 Although the High Court was not prepared to accept the defence case about the arrest of the accused in Agra, it is not necessary to pursue the matter further.
It is also not necessary to deal with .the recovery of the knife and the blood stained clothes about which the High Court was not prepared to accept the reasons given by the Sessions Judge for discarding that evidence.
We agree with the Sessions Judge that it was unusual for the police to delay recovery of the blood stained knife in a murder case.
But since the two courts have relied upon the evidence of the three eye witnesses, it is not necessary to consider whether the High Court was right in differing from the views of the trial court in the matter of the recovery of the knife and the clothes.
After having perused the entire evidence, we see no reason to interfere with the conviction in this case.
In the result the appeal is dismissed.
P.B.R. Appeal dismissed.

dataset_name: IN-Abs

summary/full:
The appellant was convicted under section 302/34, Indian Penal Code and sentenced.
Statements of two witnesses recorded in the committing court were transferred to the record during trial under section 288 Cr.
P.C. and the trial court treated the evidence of these witnesses as substantive evidence.
The High Court accepted the testimony of the witnesses before the committing Court.
In appeal it was contended that the statements of wit nesses in the committing court transferred under section 288 were inadmissible in evidence and should not be acted upon, since no specific portion of their contradictory statements had been put to them in cross examination.
Dismissing the appeal, HELD: There is no legal infirmity about the transfer of deposition of the witnesses to the record of the Sessions Court under section 288 Cr.
It was a legitimate use of discretion by the Sessions Judge.
Evidence recorded in the committing court is substantive evidence in this case and is admissible.
[147 E F] Section 288 Cr.
P.C. which provides for transfer of evidence recorded in the committing court under certain circumstances is subject inter alia to the provisions of section 145 of the Evidence Act.
Provisions of the latter section have been substantially complied with in this case.
[147 E] In the instant case after drawing the attention of the witnesses to their contradictory statements recorded by the police, the statements recorded by the committing Magistrate were read out to the witnesses who did not deny have made them but only explained that they had deposed in that manner under threat and pressure from the police.
[147 D]


judgement:
minal Appeals Nos.
241 242 of 1972.
(Appeals by Special Leave from the Judgment and Order dated 1 8 1972 of.
the Allahabad High Court in Criminal Appeal Nos.488 and 2561 of 1969).
R. K. Garg, section C. Agarwala and A. P. Gupta for the appellants.
O. P. Rana for the Respondent.
D. Mookerjee and R. K. Bhatt for the Intervener.
The Judgment of the Court was delivered by FAZAL ALI, J.
These two criminal appeals by special leave are directed against a common judgment dated 1st August, 1972 of the Allahabad High Court upholding the conviction and sentences imposed by the Sessions Judge, Bareilly on the appellants.
In Criminal Appeal No. 241 of 1972 there are seven appellants, viz., Rameshwar Dayal, Acchmal, Janmeje, Rohan, Raghunandan, Ramdas and Sudama.
In Criminal Appeal No. 242 of 1972 there are two appellants, viz., Rohtas and Sukhdev.
All the appellants were convicted under section 302/149, I.P.C. and sentenced to imprisonment for life.
Rameshwar Dayal, Achhmal Ram, Janmejaya 61 Deo, Rohtas, Sudama, Ramdas, Raghunandan and Rohan were further convicted under section 324 read with section 149 I.P.C. and sentenced to one year 's rigorous imprisonment.
Sukhdev was also convicted under section 324 whereas Rameshwar Dayal and Janmejaya Deo were convicted under section 394 I.P.C. and sentenced to four years ' rigorous imprisonment.
Rameshwar Dayal, Achhmal Ram, Janmejaya Deo, Rohtas, Sukhdeo and Sudama were further convicted under sec tion 148 I.P.C. and sentenced to 18 months ' rigorous imprisonment whereas Ramdas, Raghunandan and Rohan were convicted under section 147, I.P.C. and sentenced to one year 's rigorous imprisonment.
The High Court, on appeal, affirmed the conviction and sentences indicated above.
The unfortunate occurrence which resulted in the death of the deceased is an outcome of an outstanding enmity between the two parties.
Both the High Court and the Sessions Judge have clearly spelt out the essential features of the prosecution case and it is not necessary for us to repeat the same with all its details.
It appears that apart from the long outstanding enmity between the parties the immediate provocation for the occurrence was that proceedings under section 107/117 Cr.P.C. had been initiated by Babu Ram and Munnalal against each other and were pending in the Court of the Sub Divisional Magistrate, Faridpur.
In these proceedings a number of persons figured as parties on both sides.
9th December, 1969 was the date fixed for giving evidence in the proceedings under section 107/117 Cr.P.C. which had been initiated against the accused persons on the basis of an application given by the deceased Babu Ram.
The leader of the faction against whom the proceedings had been started was Munnalal.
Babu Ram along with his companions left for Faridpur and when he reached near the field of one Laltu Nal, he was surrounded by the appellants who were Iying in wait for him in the bushes and who on seeing the accused add his party emerged and started abusing him right and left.
Of the accused persons Rameshwar Dayal was armed with a single barrel gun, Achmal Ram with a double barrel gun, Janmejaya Deo with a country made pistol and the others were variously armed with spears, Kantas and lathes.
Rameshwar Dayal fired his gun at the deceased and Janmejaya fired another shot at the deceased from his pistol simultaneously.
Babu Ram fell down as a result of the injuries received by him.
Sukhdeo intercepted Chhoteylal when he wanted to protect his brother and inflicted a spear injury on him.
Virendra and others who were accompanying the deceased raised an alarm at which Achhmal fired a shot at them which did not hit them.
Meanwhile, Rameshwar Dayal snatched away a bag from the belt of the deceased containing his licensed revolver and cartridges and Janmejaya Deo picked, up the cloth bag in which the deceased was carrying the papers relating to the proceedings under section 107/117 Cr.P.C. which was fixed on 9th December, 1969, the day of the occurrence.
Thereafter, the. appellants made good their escape by running away towards the south.
A narrative regarding the manner in which the occurrence took place was jotted down by P.W, 1 Rajendra, son of the deceased at the spot and he carried the same to the Police Station 62 Fatehganj, a mile from the scene of the occurrence where the F.I.R. was lodged at 8 a.m. on the basis of which a case was registered against the appellants under sections 302, 394 and 324 and other provisions of the Penal Code.
The police visited the spot and after the usual investigation submitted a charge sheet against the appellants as a result of which they were put on trial by the Sessions Judge and convinced and sentenced by him as indicated above.
Two facts need special mention which have taken place during the course of investigation.
In the first place, when the Investigating Officer visited the place of occurrence he found one empty cartridge and four live cartridges at the spot.
The appellants have challenged the factum of the recovery of four live cartridges at the spot an aspect which has engaged the main attention of counsel for the appellants in this Court as well in the High Court which will be dealt with a little later.
The prosecution had examined three main eye witnesses in the case, namely, P.W.1 Rajendra, P.W.2 Mungolal Sharma and P.W.3 Chhoteylal.
The learned Sessions Judge after a very careful appraisal of the evidence and the circumstances of the case came to the clear conclusion that the case was proved against the appellants and he accordingly convicted them.
It may also be mentioned here that the Sessions Judge found as a fact in his judgment that the cartridges which were found on the spot were live cartridges though by mistake they were recorded as empty cartridges in the evidence of the Investigating Officer Muniraj Singh.
In this connection, the learned Sessions Judge while dealing with the evidence of the Investigating Officer, P.W.1 I observed as follows "He also found four live cartridges exhibit 2 of 32 bore revolver near the dead body (the word empty instead of live being wrongly written in the statement, as is shown by the memo exhibit Ka.14 prepared in respect of it after they being sealed) ".
The learned Sessions Judge further observed as follows "Further that four live cartridges said to be belonging to the deceased were found lying at the spot by the I.O. which fact is again not challenged by the defence, the prosecution has succeeded in proving that the incident occurred near the field of Laltu".
These two statements of fact made by the learned Sessions Judge in his judgment do not appear to have been challenged by the appellants in their grounds of appeal before the High Court.
Normally, this Court would not allow the parties to contest any statement of fact mentioned in the judgment unless unerring and cogent evidence is produced to draw a converse conclusion.
Neither before the High Court nor before this Court such an evidence has been suggested much less proved in the case.
63 It appears that while the appeal was pending in the High Court where the material exhibits were sent for and after the material exhibits were sent for an application was filed by the accused on 25th April, 1972 praying that in view of the fact that on inspection of the material exhibits showed that the cartridges found at the spot were not live cartridges but empty cartridges, additional evidence may be allowed to be taken by the Court to clear up the issue.
It may be noted that this application was made almost three years after the memo of appeal was filed in the High Court.
The, fact that live cartridges were found at the spot does not appear to have been controverted either before the Sessions Judge or even at the time when the appeal was filed before the High Court.
In fact, it would appear that counsel for both the parties argued the case before the Sessions Judge on the footing that the evidence showed that four live cartridges were found at the spot.
When the matter was taken up by the High Court, at the hearing the High Court examined two witnesses, viz., Mr. Hira Lal Capoor, the Sessions Judge himself and Muniraj Singh, the Investigating Officer on the question as to whether live or empty cartridges were found at the spot.
Indeed, if it was proved that empty cartridges were found at the spot, then having regard to the admitted fact that the deceased was carrying a pistol along with cartridges there may be a possibility of his having himself fired five shots on his assailants and that would naturally change the entire complexion of the case.
After the witnesses were examined by the High Court the appellants were reexamined under section 342 Cr.P.C.
Thereafter, the appellants filed an application on 25th April, 1972 praying that they may be given an opportunity to rebut the evidence of the Court witnesses summoned by the High Court.
In their application the appellants prayed for the examination of two witnesses, namely Shri section N. Mulla, Bar at Law and Shri 'Bankesh Behari Mathur, Advocate, Bareilly and also call for a docu ment, viz., the Panchayatnama Register of Police Station Fatebganj.
The High Court, however, refused to accede to the prayer of the appellants on the ground that they had got full opportunity to crossexamine the witness examined by the High Court under section 540, Cr.P.C.
One of the main points taken by the appellants in their petition for special leave was that the High Court judgment was vitiated by the failure of the High Court to give a reasonable opportunity to the appellants in order to rebut the evidence of the witnesses examined by the High Court under section 540, Cr.P.C. and this argument has been the sheet anchor of Mr. Garg, counsel for the appellants before us.
We have gone through the judgments of the two courts and have also been taken through the entire evidence.
Mr. Garg, learned counsel for the appellants submitted that if the High Court chose to summon the Sessions Judge and the Investigating Officer under Section 540 Cr.P.C. it was incumbent on it to give a reasonable opportunity to the appellants to rebut that evidence and the High Court committed a serious error of law in not summoning the witnesses Shri Mulla and Shri Mathur in spite of a prayer having been made to this effect to it.
64 We find ourselves in complete agreement with the principles adumbrated by Mr. Garg and we feel that the High Court ought to have given art opportunity to the appellants to examine the witnesses.
It was also argued that the High Court erred in examining the Sessions Judge as a witness which was a most extraordinary course.
In this connection, reliance was placed on a decision in the case of The Most Noble the Duke of Buccleuch and Queensberry and The Metropolitan Board of Works (1871 2) V English & Irish Appeal Cases 418 where Lord Chelmsford speaking for the Appeal Court observed as follows : "With respect to those who fill the office of Judge it has been felt that there are grave objections to their conduct being made the subject of cross examination and comment (to which hardly any limit could be put) in relation to proceedings before them; and, as everything which they can properly prove can be proved by others, the Courts of law dis countenance, and I think I may say prevent them being examined".
We fully agree with the rule of law laid down in the aforesaid ruling.
Judges should not be allowed to become witnesses in cases which they decide otherwise that would lead to most anomalous results and would undermine the confidence of the people in the judiciary.
A Judge has to decide the case according the evidence and the circumstances before him and it can not be allowed to fill up gaps left by the prosecution or the defence by giving statement on oath before a court of law.
If any statement of fact made by the Judge in his judgment is sought, to be, controverted the_ same should be done by the well established method of filing affidavits by counsel and getting a report from the Judge by the High Court.
It is true that under section 540 of the Criminal Procedure Code the High Court has got very wide powers to examine any witness it likes for the just decision of the case, but this power has to be exercised sparingly and only when the ends of justice so demand.
The higher the power the more careful should be its exercise.
In the case of Regina vs Gazard(1) it was held by Patteson, J. that it will be a dangerous precedent to allow a President of the Court of Record to be examined as a witness.
In this connection, Patteson, J. made the following observations : "It is a new point, but I should advise the grand jury not to examine him.
He is the present of a Court of Record, and it would be dangerous to allow such an examination, as the Judges of England might be called upon to state what occurred before them in Court".
Although in the instant case the Sessions Judge was not a Court of Record but the principles laid down by Patteson, J. would equally apply to him.
We do not mean to suggest for a moment that the High Court (1) ; 65 has no power to examine a Sessions Judge in any case whatsoever for there may be proper and suitable cases where the examination of the Sessions Judge or the trial Court may be very necessary but this must be indeed a very rare occasion where all other remedies are exhausted.
In the instant case, we feel that there was no good and cogent ground for the High Court to have examined the Sessions Judge because his evidence was not essential for a just and proper decision of the case particularly when the appellants never challenged the statements made in the judgment regarding the live cartridges either before the Sessions Judge or even in the High Court when the memo of appeal was filed before the Court.
As far as the evidence of Muniraj Singh the Investigating Officer is concerned that also was not necessary because that really amounted to allowing the prosecution to fill up gaps.
Even if we hold that the High Court was justified in exercising its discretion under section 540 Cr.P.C. the High Court committed a serious error of law in not allowing the appellants an opportunity to rebut the statement of the witnesses examined by the High Court which caused a serious prejudice to the accused.
It was argued by counsel for the State that there is no provision in the Criminal Procedure Code which requires the Court to allow the appellant an opportunity to rebut the evidence of witnesses summoned ' under section 540 Cr.P.C.
This argument, in our opinion, is based on a serious misconception of the correct approach to the cardinal principles of criminal justice.
Section 540 itself incorporates a rule of natural justice.
The accused is presumed to be innocent until he is proved guilty.
It is, therefore, manifest that where any fresh evidence is admitted against the accused the presumption of innocence is weakened and the accused in all fairness should be given an opportunity to rebut that evidence.
The right to adduce evidence in rebuttal is one of the inevitable steps in the defence of a case by the accused and a refusal of the same amounts not only to an infraction of the provisions of the Criminal Procedure Code but also of the principles of natural justice and offends the famous maxim Audi Alteram Partem.
Section 540 of the Criminal Procedure Code runs thus : "Any Court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and re examine any person already examined, and the Court shall summon and examine or recall and re examine any such person if his evidence appears to it essential to the just decision of the case".
A careful perusal of this provision manifestly reveals that the statute has armed the Court with all the powers to do full justice between the parties and as full justice cannot be done until both the parties are properly heard, the condition of giving an opportunity to the accused to rebut any fresh evidence sought to, be adduced against him either at the trial or the appellate stage appears to us to be implicit under section 540 of the Cr.
The words " just decision of the case" would become meaningless and without any significance if a decision is to be arrived at without a sense of justice and fair play.
66 In the case of Channu Lal and Anr.vs Rex(1) the Division Bench of the Allahabad High Court ruled as follows : "Section 540, in our opinion, empowers a Court to take such evidence.
If the Court decides to take such evidence, it would be proper for the Court to re examine the accused with reference to the new evidence recorded and to give an opportunity to the accused to give such further evidence in defence, as he may be advised to do".
To the same effect is a decision of the Madras High Court in the case of Rangaswami Naicker vs Muruga Naicker(2) where Ramaswami, J. observed as follows "The only rules, which the Magistrate must bear in mind when examining court witnesses are (1) that the prosecution and the accused are both equally entitled to cross examine a court witness, and (2) that if the evidence of a court witness is prejudicial to the accused, opportunity to rebut the evidence so given must be given to the accused".
Same view has been taken by the Lahore High Court in the case of Shugan Chand and Anr.vs Emperor(3) and in the case of The Queen vs Assanoollah (4) where a Division Bench of the Court observed as follows : "In the present case, the prisoner has had no opportunity of making a defence or calling evidence, with reference to the evidence of the Moonsiff given by him when re called after the prisoner had concluded his defence.
I think, therefore, that the case has not been properly tried, and that the conviction and sentence are not legal.
It appears to me that, under section 405, we ought to quash the conviction, and order a new trial".
We find ourselves in complete agreement with the principles laid down and the observations made in the aforesaid cases which represent the correct law on the subject.
The, High Court seems to have justified the refusal to give an opportunity to the accused to rebut the evidence on the ground that Shri Mulla who was counsel representing the accused did not choose to withdraw from the appeal and that other witnesses sought to be examined by the appellants were bye standers.
These considerations are absolutely extraneous to the issue.
It was not open to the High Court to have prejudged the merits of the evidence of the witnesses sought to be examined by the defence even before their evidence was recorded.
In these circumstances, we feel that the reasons given by the High Court for not examining the witnesses suggested by the accused are wholly unsustainable in law.
(1) A.I.R. 1949 All.
(2) A.I.R. 1954 Mad. 169.
(3) A.I.R. 1925 Lahore 531.
(4) 13 S.W.R. (Crl.) 15. 67 For these reasons, therefore,.
we are clearly of the opinion that the High Court was in error in refusing the appellants an opportunity of giving evidence to rebut the evidence, of the witnesses examined by the High Court under section 540, Cr.P.C.
Normally, this error would have been sufficient to vitiate the judgment and would have required our remitting the case to the ' High Court for a fresh decision.
We however find that this is a very old case when the occurrence had taken place more than 8 years ago and the appeal in this Court has itself taken more than five years.
In these circumstances, we feel that the ends of justice do not require that the case should be sent back to the High Court which would entail further delay.
We have therefore, decided to go into the, evidence ourselves after completely excluding the evidence of the witnesses examined by the High Court under section 540, Cr.P.C. so that we base our decision only on the evidence and the circumstances that were before the Sessions Judge.
Before going into the merits we might mention a few facts which have been found against the appellants.
Both the High Court and the, Sessions Judge have believed the evidence of P.Ws. 1, 2 and 3 who proved the assault on the deceased and Chhotey Lal.
The Sessions Judge has particularly discussed all the aspects of the case very exliaustively and has combated every possible argument that was or could be advanced before him by the appellants.
Regarding P.W. 1 the High Court accepted his evidence and observed as follows : "We are satisfied that Chhoteylal (P.W. 3) was also present in the company of his brother Babu Ram when he was shot dead".
Similarly, rejecting the adverse comments made against the testimony of P.W. 2 the High Court said that "his explanation for his presence in the company of the deceased when he was shot at is quite plausible.
He is in our judgment, a thoroughly reliable witness".
Similar opinion was given by the High Court in respect of Chhotey Lal, P.W. 3 where the High Court observed as follows : "Rajendra whom we have found was present during the occurrence has supported the statement of Chhoteylal.
In the First Information Report lodged by him without any delay whatsoever it bad been mentioned that Chhoteylal had been injured by Sukhdeo with a spear wielded by him '.
Similarly, the trial Court has also accepted the evidence of these witnesses in the same terms.
We have also gone through the evidence of these three witnesses in their entirety and we find that they have given straight forward answers and their evidence has the ring of truth in it.
One of the most important circumstances which proves the prosecution case is the fact that although the main person against whom proceedings under section 107 had been initiated by the deceased was Munna Lal yet Munna Lal has not at all been made an accused in this 68 case nor has any act been attributed to him.
This is an intrinsic evidence of the fact that the prosecution had no intention of falsely implicating any person even though he may have been the greatest enemy of the deceased.
Another pertinent fact which deserves particular mention is that the F.I.R. appears to have been lodged within an hour of the occurrence and there was hardly any time for the parties to discuss or deliberate.
The F.I.R. contains a brief but full narrative of the manner in which the deceased was killed and the names of the accused persons are also mentioned therein.
It is true that some of the witnesses who have been mentioned in the F.I.R. as having accompanied the deceased have not been examined by the prosecution but that by itself in our opinion in the circumstances of the present case does not appear to be a fatal defect in the prosecution case.
This Court in the case of Dalbir Kaur & Ors.V. State of Punjab (1) said that it is manifest that what is important is not as to who were not examined but as to whether the witness who had actually been examined should be believed and while enunciating the principles on the basis of which this Court would interfere in an appeal by special leave observed as follows : "1.
That this Court would not interfere with the concurrent findings of fact based on pure appreciation of evidence even if it were to take a different view on the evidence.
That the Court will not normally enter into a reappraisement or review of the evidence, unless the assessment of the High Court is vitiated by an error of law or pro cedure or is based on error of record, misreading of evidence or is inconsistent with the evidence, for instance, where the ocular evidence is totally inconsistent with the medical evidence and so on; 3.
That the Court would not enter into credibility of the evidence with a view to ' substitute its own opinion for that of the High Court; 4.
That the Court would interfere where the High Court has arrived at a finding of fact in disregard of a judicial process, principles of natural justice or a fair hearing or has acted in violation of a mandatory provision of Jaw or procedure resulting in serious prejudice or injustice to the accused; 5.
This Court might also interfere where on the proved facts wrong inferences of law have been drawn or where the conclusions of the High Court are manifestly perverse and based on no evidence".
In the instant case, having regard to the concurrent findings of fact by the High Court and the Sessions Judge that the evidence of P.Ws. 1, 2 and 3 is worthy of credence, and after perusing the evidence we also do not see any reason why the evidence of these witnesses should be (1) ; 69 discarded.
All the three witnesses have been mentioned in the F.I.R. as being present on the scene of occurrence.
P.W. 3 has an injury which according to the doctor could not be self inflicted.
The presence of the injury on the person of Chhotey Lal is a strong corroboration of the evidence of the eye witnesses.
We shall now deal with some important contentions raised by the appellants on the merits of the case.
In the first place, great reliance was placed on the evidence of P.W. 11 the Investigating Officer who had said in his statement before the Sessions Court that he had found four empty cartridges at the spot.
Mr. Garg submitted that this admis sion of the Investing Officer knocks the bottom out of the case of the prosecution.
It was argued that if the empty cartridges were recovered from the spot as deposed to by this witness the, entire complexion of the case changes and it would appear that the prosecution had not presented the true version of the case before the Court.
We have ourselves gone through the evidence of P.W. 1 1 carefully and we find that either the witness has made some confusion regarding tile finding of four empty cartridges or the word "empty" has been wrongly recorded in the statement of the witness as is clearly found by the learned Judge in his judgment the extract of which has been quoted above.
We have already pointed out that although the trial Judie had clearly held that the word "empty" instead of "live" was wrongly written in the statement yet this statement of fact made by the Sessions Judge in his judgment was not controverted by the appellants in their memo of appeal filed in the High Court nor was any attempt made by the appellants to prove that the said statement was wrong on a point of fact either by examining counsel who bad conducted the case before the trial Court or by producing any other proof.
Furthermore, the learned Judge has clearly mentioned in his judgment that the fact that four live cartridges belonging to the deceased were found lying at the spot was not even challenged by the defence.
Even this fact was not controverted either before the Sessions Court or in the memo of appeal filed in the High Court.
Finally, the High Court itself has pointed out that Shri section N. Mulla and Shri R. K. Shangloo who had represented the appellants in the appeal in the High Court and had also appeared for the appellants before the trial Court on enquiry by the High Court whether the revolver cartridges exhibited at the trial were live or empty were not in a position to refute the statement made by the prosecutor Shri B. C. Saxena.
In this connection, the High Court observed as follows "Shri section N. Mulla and Shri R. K. Shangloo represent the appellants in Criminal Appeal No. 2561 of 1969.
Both these learned counsel had appeared on behalf of the defence before the trial court.
It was Shri Mulla who had cross examined the investigating Officer.
When we enquired from them as to whether the revolver cartridges when exhibited at the trial were live or empty neither of the two learned counsel found himself in a position to refute the statement made by Shri B. C. Saxena".
70 Shri B. C. Saxena who had appeared for the prosecution before the trial Court emphatically asserted that when the sealed packet containing Ex.2 was opened it contained four live cartridges.
Shri Saxena also asserted that during the arguments the attention of the Sessions Judge was pointedly drawn to the statement made by the Investigating Officer on which reliance has been placed by the appellants and both the parties proceeded on the footing that the cartridges were live when they were produced before the Court.
All these facts have been clearly mentioned in the judgment of the High Court.
The conduct of counsel for the appellants is fully consistent with the observations made by the Sessions Judge in his judgment that there appears to be some inadvertent mistake in recording the evidence of the Investigating Officer.
Apart from this there is overwhelming documentary evidence to show that the statement of the Investigating Officer in Court that he found four empty cartridges is factually incorrect.
To begin with there is exhibit Ka. 10 which is the panchayatnama or the inquest report prepared by the Investigating Officer himself which he proves in his evidence by stating as follows : "I reached the place of the occurrence at 9 a.m.
There I found the dead body of Babu Ram near the chak road towards the north of the field of Laltu Nal lying on the ridge at a distance of about 2 3 paces.
I had prepared the panchayatnama exhibit Ka 10".
In this inquest report it is clearly mentioned by the Investigating Officer that he had found four live cartridges.
The exact words used are "4 " The Investigating Officer does not say in his evidence that this finding of fact in the panchayatnama or the inquest report was incorrect.
The statement in the inquest report was made by the Investigating Officer soon after the occurrence and was, therefore, the earliest statement regarding a fact which he found and observed.
The earlier statement, therefore, is valuable material for testing the veracity of the witness.
In the case of Baladin & Ors.vs State of U.P. (1) it was pointed out by this Court that statements made by the prosecution witnesses before the investigating police officer being the earliest statements made by them with reference to the facts of the occurrence are valuable material for testing the veracity of the witnesses examined.
In this connection, this Court observed as follows "Statements made by prosecution witnesses before the investigating police officer being the earliest statements made by them with reference to the facts of the occurrence are valuable material for testing the veracity of the witnesses examined in court but the statements made during police investigation are not substantive evidence".
(1) A.I.R. 1956 S.C. 181.
71 Reliance was placed by the learned counsel for the appellants on this decision in support of his argument that the statements made in the inquest report were inadmissible in evidence being hit by section 162 Cr.
In the first place, the statement made by the Investigating Officer in exhibit Ka 10 is not a statement made by any witness before the police during investigation but it is a record of what the Investigating Officer himself observed and found.
Such an evidence is the direct or the primary evidence in the case and is in the eye of law the best evidence.
Unless the record is proved to be suspect and unreliable perfunctory or dishonest, there is no reason to disbelieve such a statement in the inquest report.
Reliance was also placed by counsel for the appellants in the case of Surjan and Ors.vs State of Rajasthan(1) where ibis Court observed as follows : "But the statement in the inquest report is not evidence by itself and it certainly cannot be pitted against the evi dence of the medical witness given in Court.
" This case is clearly distinguishable from the facts and circumstances of the present case.
What had happened in that case was that a description of an injury found on the head of the deceased as given by the Investigating Officer was inconsistent with the medical evidence.
This Court pointed out that where a statement in the inquest report was pitted against the medical evidence it had to yield before the opinion of the expert.
It is obvious that the description given by the Sub Inspector was merely his opinion which was not the opinion of an expert and could not, therefore, stand scrutiny before the evidence of a duly qualified expert, viz., the doctor.
This principle cannot be applied here for it does not require an expert knowledge to find out whether a live cartridge was there or not.
In these circumstances, therefore, the two cases cited by the appellants do not appear to be of any assistance to them.
Reliance was further placed on a decision of this Court in the case of Ch Rizak Ram vs Ch. J. section Chouhan ( 2) & Ors.
This case has also no application to the facts of the present case because what had happened in that case was that a statement of the witness Parmeshwari was recorded by the Investigating Officer and thumb marked was being used in a election petition.
It was held by this Court that the statement was kit by section 162, Cr.
This proposition is well settled.
Any statement made by any witness to a police officer during investigation is clearly hit by section 162 and can be used only for contradicting or corroborating the other witness and is not a substantive piece of evidence.
A statement contained in exhibit Ka 10 is not a statement of a witness at all but is a memo of what the Investigating Officer had himself found and observed at the spot and to such a case section 162 would have no application at all.
(1) A.I.R. 1956 S.C. 425.
(2) 72 Reliance was also placed on a recent decision of this Court in the case of Castano Piedade Fernandes & Anr vs Union Territory of Goa, Daman & Diu Panaji Goa(1).
This case is also wholly irrelevant to the issue in question because there the Court on a consideration of the evidence found as a fact that the panchnama was not a genuine document and did not inspire confidence.
There is no such finding by the High Court or the Sessions Judge in the instant case nor has the inquest report been shown to be unreliable or perfunctory or suspect.
Apart from the inquest report exhibit Ka 10 there is another document which throws a flood of light on this question.
Ka 18 which is the site plan prepared by the Investigating Officer at the spot from where the empty cartridges of 12 bore were recovered.
This is also a record of what the Investigating Officer himself found at the spot.
The learned counsel for the appellants submitted that the site plan was also not admissible in evidence because it was based on information derived by the Investigating Officer from the statement of witnesses during investigation.
Reliance was placed on a judgment of this Court in the case of Jit Singh vs State of Punjab(2) where this Court observed as follows "It is argued that presumably this site plan also was prepared by the Investigating Officer in accordance with the various situations pointed out to him by the witnesses.
We are afraid it is not permissible to use the site plan exhibit P.14 in the manner suggested by the counsel.
The notes in question on this site plan were statements recorded by the Police Officer in the course of investigation, and were hit by section 162 of the Code of Criminal Procedure.
These notes could be used only for the purposes of contradicting the prosecution witnesses concerned in accordance with the provisions of section 145.
Evidence Act and for no other purpose".
In our opinion, the argument of the learned counsel is based on misconception of law laid down by this Court.
What this Court has said is that the notes in question which are in the nature of a statemen, ' recorded by the Police Officer in the course of investigation would not be admissible.
There can be no quarrel with this proposition.
Note No. 4 in exhibit K 18 is not a note which is based on the information given to the Investigating Officer by the witnesses but is a memo of what he himself founded observed at the spot.
Such a statement does not fall within the four corners of section 162, Cr P.C. III fact, documents like the inquest reports, seizure lists or the site plans consist of two parts one of which is admissible and the other is inadmissible.
That part of such documents which is based on the actual observation of the witness at the spot being direct evidence in the case is clearly admissible under section 60 of (1) (2) A.T.R. 73 the Evidence Act whereas the other part which is based on information given to the Investigating Officer or on the statement recorded by him in the course of investigation is inadmissible under section 162 Cr.P.C. except for the limited purpose mentioned in that section.
For these reasons, therefore, we are of the opinion that the decision cited by the counsel for the appellants has no application to this case.
Exhibit Ka 13 is a memo relating to the recovery of the empty cartridges found at the spot by the Investigating Officer.
The title of this memo runs thus : "Memo relating to the recovery of Khokha (empty case of cartridge of 12 bore from the site in the case as offence No. 126, under sections 147/148/149/302/392/ 324 I.P.C." It appears that where an empty cartridge is mentioned it is described as Khokha whereas in the case of live cartridge the word "cartridges Kartoos" has been clearly mentioned.
exhibit Ka 13 is the seizure memo of the recovery of an empty cartridge of 12 bore which was found at the spot and which was said to have hit the deceased having been fired from the gun of one of the appellants.
It was also mentioned in this memo, that smell of the gun powder was coming out of the Khokha.
When the Investigating Officer deposed before the Sessions Judge that smell was coming out from the cartridge he was actually referring to the, empty cartridge which was recovered from the spot and which was fired from the gun of the appellants.
exhibit Ka 14 however is the seizure memo of the four live Cartridges found by the Investigating Officer at the spot, in which it is mentioned that four cartridges of 32 bore revolver are recovered.
The exact description is given thus : "Description of the Cartridge Four cartridge of 32 bore of revolver of brass cap and blacks lead Kynock 32 Sand W. engraved on the brass cop.
" It would be seen that the description of the four cartridges with brass cap on lead intact show that the cartridges were live and not empty because if the cartridges were empty then there was no question of there being any black lead in existence at the spot.
The Investigating Officer has clearly proved these documents in his evidence before the Sessions Judge and stated that he had prepared these documents.
Thus these documents having been prepared im mediately after the occurrence are undoubtedly reliable.
Having regard, therefore, to the documentary evidence and the circumstances mentioned above we find ourselves in complete agree,men*, with the view taken by the courts below that what had been recovered at the spot by the Investigating Officer were four live cartridges which had fallen at the spot when the bag of the deceased was 6 211 SC178 74 taken away by the appellants.
We are unable to find any reliable evidence to prove that the four cartridges found at the spot were empty cartridges.
The argument of the learned counsel for the appellants to the contrary must be overruled.
Great reliance was placed by the appellants on an application given by Rajendra son of the deceased before the S.D.M. Court at Bareilly informing the court that Babu Ram had been murdered.
This application is exhibit Ka 1 and was filed before the Magistrate on 9 12 1968.
It is true that in this application it was mentioned that Shri Babu Ram had been murdered but the name of the appellants nor the circumstances under which be was murdered have been mentioned.
It was argued by Mr. Garg that the absence of the names of the appellants clearly showed that the deceased was murdered by unknown persons, and, therefore, only the fact of his murder was mentioned in this application.
The argument appears to be attractive, but on closer scrutiny it is without any substance.
P.W. 1 had already rushed to the police station to lodge the F.I.R. wherein lie had narrated the facts which led to the death of the deceased.
Rajendra, son of the deceased who had been sent to Bareilly was sent for the limited purpose of informing the court regarding the death of Babu Ram.
In the proceedings under section 107 there was no occasion for mentioning the name of the assailants of Babu Ram or for detailing the circumstances under which he was killed because that was not germane for the proceedings.
In these circumstances, therefore, the absence of the name of the assailants in this application cannot put the prosecution out of Court.
Learned counsel for the appellants made certain comments against some of the witnesses which have been carefully dealt with by the Courts below.
The discrepancies relied upon by the appellants do not appear to be of great consequence and do not merit serious consideration.
On a careful consideration of the entire facts of the case we are clearly of the opinion that the prosecution case against the appellants has been proved beyond reasonable doubt and we find no reason to interfere with the judgement of the High Court upholding the conviction and the sentences passed on the appellants in both the appeals.
The result is that the appeals fail and are accordingly dismissed.
M.R. Appeals dismissed.

summary/full:
A long standing enmity between Baburam and Munnalal, triggered by proceedings u/s 107/117 Cr.
P.C., initiated by them against each other, resulted in an attack on Baburam 's party, by Munnalal 's party, in which Baburam died.
The appellants were convicted, inter alia, u/s 302/149 I.P.C., and sentenced to imprisonment for life.
The factum of the recovery of four live cartridges by the Investigating Officer at the spot, was challenged by the accused at the appellate stage.
The High Court examined the Sessions Judge and the Investigating Officer u/s 540 Cr.
P.C. but denied the appellants an opportunity to adduce evidence to rebut this fresh evidence.
Dismissing the appeals on merits, after completely excluding the, evidence of the witnesses examined by the High Court u/s 540 Cr.
P.C., the Court HELD: 1.
The principles on the basis of which this Court would interfere in an appeal by special leave are as follows : 1.
That this Court would not interfere with the concurrent findings of fact based on pure appreciation of evidence even if it were to take a different view on the evidence; 2.
That the Court will not normally enter into a reappraisement or review of the evidence, unless the assessment of the High Court is vitiated by an error of law or procedure or is based on error of record, misreading of evidence or is inconsistent with the evidence, for instance, where the ocular evidence is totally inconsistent with the medical evidence and so on; 3.
That the Court would not enter into credibility of the evidence with a view to substitute its own opinion for that of the High Court; 4.
That the Court would interfere where the High Court has arrived at a finding of fact in disregard of a judicial process, principles of natural justice or a fair bearing or has acted in violation of a mandatory provision of law or procedure resulting in serious prejudice or injustice to the accused; 5.
This Court might also interfere where on the proved facts wrong inferences of law have been drawn or where the conclusions of the, High Court are manifestly perverse and based on no evidence" [68C G] Dalbir Kaur and Ors.
vs State of Punjab, [1977] 1 S.C.R. 280; followed.
Judges should not be allowed to become witnesses in cases which they decide, otherwise that would lead to most anomalous results and would undermine the confidence of the people in the judiciary.
A Judge has to decide the cage according to the evidence and the circumstances before him and it cannot 60 be allowed to fill up gaps left by the prosecution or the defence by giving statement on oath before a Court of law.
Under section 540 of the Cr.
P.C. the High Court may examine the Sessions Judge or the Trial Court, when very necessary, on very rare occasions where all other remedies are exhausted.
[64D H, 65A] The Most Noble the Duke of Buccleuch and Queensberry and the Metropolitan Board of Works (1871 2) V E and 1, Appeal Cases 418; Regina vs Gazard, ; applied.
The condition of giving an opportunity to the accused to rebut any fresh evidence sought to be adduced against him either at the trial or the appellate stage, is implicit under section 540 of the Cr.
P.C. and a refusal of the same amounts not only to an infraction of the provisions of the Code, but also of the principles of natural justice, and offends the famous maxim Audi Alteram Partem.
[65 D E H] Channulal and Anr.
vs Rex, A.I.R. 1949 All. 692, Rangaswami Naicker vs Muruga Naicker, A.I.R. 1954 Mad. 169; Shugan Chand and Anr.
vs Emperor, A.I.R. 1925 Lahore 53 1; The Queen vs Assanoollah, 13 S.W.R. (Crl.) 15; approved.
Documents like the Inquest report, seizure lists or the site plans consists of two parts, one of which is admissible and the other is inadmissible.
That part of such documents which is based on the actual observation of the witness at the spot being direct evidence in the case, is clearly admissible, under section, 60 of the evidence Act, whereas the other part which is based on information given to the Investigating Officer, or on the statement recorded by him inadmissible under section 162 Cr. P.C., except for the limited purpose mentioned in that section.
[72G H, 73A] Baladin and Ors.
vs State of U.P., A.T.R. ; Surian and Ors.
vs State of Rajasthan ; Ch.
I Rizak Ram vs Ch.
J. section Chouhan and Ors.
, ; Caetano Piedade Fernandes and Anr.
vs Union Territory of Goa.
Daman and Diu, Panaji, Goa ; fit Singh State of Punjab, A.I.R., 1976 S.C. 1421; distinguished.