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PETITIONER: BHAGWAN SINGH

       Vs.

RESPONDENT: THE STATE OF PUNJAB

DATE OF JUDGMENT: 30/04/1952

BENCH: BOSE, VIVIAN BENCH: BOSE, VIVIAN FAZAL ALI, SAIYID

CITATION:  1952 AIR  214            1952 SCR  812  CITATOR INFO :  R          1959 SC1012  (13)  R          1980 SC 628  (11)

ACT:     Evidence Act (1 of 1872) secs. 145, 157--Criminal Proce- dure   Code,   1898,  secs.  208,   288,   537,540--Criminal trial--Examination of witness not examined before Committing Magistrate--Legality-Statements  before  Committing   Magis- trate--Admissibility--Statement not denied--Use as  corrobo- rative  evidence--Certificate of magistrate that  deposition was  read  over--Presumption  of  correctness--Practice   of examining Committing Magistrate, impropriety of.

HEADNOTE:     The  Sessions Court has power to examine  witnesses  who were  not examined before the Committing Magistrate  because of sec. 540, Criminal Procedure Code, and if the witness  is treated as a prosecution witness and examined by the  prose- cuting  counsel instead of by the court, that at best  would be  an  irrigularity curable by sec. 537 of the  Code.   The proper  time to object to such a procedure would be  at  the trial itself.     Sher Bahadur v. The Crown (I.L.R. 15 Lah. 331) and Queen Empress  v.  G.W.  Hayfield  (I.L.R.  14   All.  212)distin- quished S.S. Jhabwala v. Emperor (A.I.R. 1933 All. 690)  and Mussamat. Niamat v. The Crown I.L.R. 17 All. 176)  approved. Emperor v. Channing Arnold (13 Cr. L.J. 877) referred to.     Resort to sec. 145 of the Evidence Act is necessary only if  a witness denies that he made the former statement.   In that event it would be necessary to prove that he did and if the  former statement was reduced to writing, then sec.  145 requires  that  his attention must be drawn to  those  parts which  are to be used for contradiction.  But that  position does not arise when the witness admits the former statement. In  such  a  case all that is necessary is to  look  to  the former  statement  of which no further  proof  is  necessary because  of  the admission’ that it was  made.   The  former statement cannot be used as substantive evidence unless sec. 288,  Criminal  Procedure Code, is called in  aid  but  even without sec. 288 the court would be entitled to say,  basing on the evidence-in-chief which is the substantive  evidence, that  what the witness said to the police or the  Committing

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Magistrate,  is the true version, not because  those  state- ments form substantive evidence, but because they tally with the evidence-in-chief which is substantive.     If  a former statement can be brought in under sec.  157 of  the Evidence Act, it can be transmuted into  substantive evidence  by  the application of sec. 288  of  the  Criminal Procedure Code. Tara Singh v. The State [1951]  S.C.R. 729 distinquished.  813     In the certificate of the Committing Magistrate endorsed on the deposition sheet states that the deposition was  read out to the witness and the witness admitted it to be correct the  court is bound to accept this as correct under sec.  80 of the Evidence Act until it is proved to be untrue.     It is not necessary nor desirable to examine the Commit- ting Magistrate to prove the truth of his certificate.     Kashmera  Singh  v. The State of  Madhya  Pradsh  [1952] (S.C.R.) 526 followed.     Even  if  it be true that the deposition  was  not  read over,  that would only amount to a curable irregularity  and in  the absence of prejudice which must be disclosed  in  an affidavit which shows exactly where the record departs  from what  the  witness actually said, the  objection  cannot  be sustained.

JUDGMENT:    CRIMINAL  APPELLATE  JURISDICTION:   Criminal Appeal  No. 12 of 1952.     Appeal  by  special leave from the  judgment  and  order dated  4th  June, 1951, of the High Court of  Judicature  of Punjab  at Simla (Bhandari and Soni JJ.) in Criminal  Appeal No. 109 of 1951 arising out of Judgment and order dated 19th March  1951 of the Court of the Additional  Sessions  Judge, Ferozepore, in Sessions Trial No. 18 of 1951. T.R. Bhasin, for the appellant. Gopal Singh, for the respondent.     1952. April 30.  The Judgment of the Court was delivered by     BOSE  J.--This is a simple case though it was argued  at great  length  on behalf of the appellant and  a  number  of technical objections to the validity of the trial taken.     The  appellant Bhagwan Singh has been convicted  of  the murder  of one Buggar Singh and sentenced to death.  He  has also  been convicted under section 19(f) of the Indian  Arms Act but we are not concerned with that here.     The  prosecution  story  is that the  appellant  bore  a grudge  against the deceased because the deceased had  fired at  the appellant’s brother some six or seven  years  before the present occurrence and was sent to jail for 814 it. When he came out of jail the police thought it   prudent to take proceedings against both sides under section 107  of the Code of Criminal Procedure. This  resulted in the appel- lant’s  two  brothers and his cousins being bound  down,  as also the deceased. This, it is said, constituted the  motive for the present crime.      On  the  date of the occurrence, the 7th  of  September 1950,  the prosecution state that the appellant was  sitting at  the  shop of Jit Singh, P.W. 2, when the  deceased  came there about 12-15 p.m. and borrowed Rs. 5 from Jit Singh who lent  him the money and entered the transaction in  his  ac- count book. When the deceased left the shop he was  followed by  the appellant who shot him at point blank range  with  a

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pistol only 4 or 5 karams from the shop.  This attracted the attention  of a number of bystanders who immediately  chased the appellant and apprehended him after a short run of about 30  karams. He was still carrying the pistol. It  was  taken away from him by Jagir Singh Patwari, P.W. 4.      The appellant was immediately taken to the local police post about 100 karams distant and the shopkeeper Jit  Singh, P.W.  2,  made the first information report  at  12-a7  p.m. within 15 minutes of the occurrence.       The  motive is proved by Bhag Singh, P.W. 7,  who  has been believed and that part of the case was’ not  challenged before us.       The  occurrence  was witnessed by a  large  number  of persons  of whom the prosecution examined only five. Two  of them  turned  hostile  in the Sessions Court  and  one  gave evidence  which has been regarded by the High Court as  neu- tral.  The remaining two, Balbir Singh (P.W. 5) and  Jaswant Singh  (P.W. 6) have been believed. The only  questions  are (1) whether the conviction can be rested on their  testimony and(2)  whether certain irregularities in the trial  vitiate it.       No  attack was made on the testimony of Balbir  Singh, P.W. 5, except that the two eye-witnesses who 815 resiled  in the Sessions Court contradict him.  But  it  was argued that the evidence of Jaswant  Singh P.W. 6, is  viti- ated  because he was not examined by the  Committing  Magis- trate.  It was said that makes his evidence in the  Sessions Court inadmissible.     This raises a question which is largely academic in this case  because  the  reason Jaswant Singh, P.W.  6,  was  not examined  by the Committing Magistrate is that  the  witness had gone away and was not available and it would have been a needless,  and indeed unjustifiable, holding up of the  pro- ceedings to wait till he could be found and summoned. It  is evident  that the Sessions Court has power to  examine  wit- nesses  who were not examined before the  Committing  Magis- trate because of section 540 of the Criminal Procedure Code, and  if the witness is treated as a prosecution witness  and examined by the prosecuting counsel instead of by the  Court itself  that  at best would be an  irregularity  curable  by section 537.  The proper time to object to such a  procedure would  be  at  the trial itself, and as  the  appellant  was represented  in the Sessions Court by two counsel it is  too late to object to such a venial irregularity in this Court.     The learned counsel for the appellant took us elaborate- ly  through the provisions of Chapter XVIII of the  Criminal Procedure  Code and stressed in particular section  208  (1) but  we  need not enter into this because section 540  is  a complete  answer in this particular case. None of the  cases cited  goes  so far as to say that no witness  who  was  not produced in the committal proceedings can be examined at the trial  and  we would be unable to agree if  they  did.   The decision  most  in favour of the appellant’s  contention  is Sher  Bahadur  v. The Crown (1)but that does  no  more  than consider  such an omission as a curable defect. Abdul  Qadir J. said at pages 338 and 342 that it  was  conceded   before them   that  section 540 could be called in aid  in  such  a case,  and  at  page 339 the learned Judge  dealt  with  the question of prejudice (1)(1934)I.L.R. 15 lah.331. 106 816 and concluded at page 344 with the remark that the  question is  one of fact in each case and that in his  opinion  there

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was  prejudice  in that particular case. The  other  learned Judge took the same view at pages 3J,7 and 348 and said:-  "The Court can, of course, always use its discretion  and allow the production of further evidence."     It is to be observed that the objection in that case was raised  at a very early stage and before the sessions  trial had commenced; also  that the prosecution wished to  examine no  less  than eight material witnesses (out of a  total  of sixteen) which they had deliberately withheld in the commit- tal  proceedings.  We make no remarks about the  correctness of  the  observations which travel beyond  the  question  of prejudice because that is unnecessary here. It is sufficient to  say  that the learned Judges conceded  the  power  under section  510 and decided the case on the question of  preju- dice.     The   question   raised  in    Queen-Empress   v.   G.W. Hayfield(1)  does not arise here because the Sessions  Court did not refuse to examine Jaswant Singh, P.W. 6, and so  the question  whether the prosecution could demand his  examina- tion as a matter of right never arose. The fact remains that they  were  permitted  to do so and the  defence  raised  no objection.     The decision of the Allahabad High Court in S.H. Jhabwa- la v. Emperor (2)and the Full Bench of the Lahore High Court in Mussammat Niamat v. The Crown(3) are against the  learned counsel’s contention.     The decision of the Full Bench of the Lower Burma  Chief Court  in  Emperor v. Channing Arnold (4) is  not  in  point because  the Committing Magistrate there refused to  examine witnesses which the prosecution wanted, and indeed  insisted that he should examine, and what was worse he prevented  the accused  from completing the cross-examination of  the  only prosecution witness which the Committing Magistrate  thought fit to examine. Whatever else may be thought of (1)  (1892) I.L.R. 14 All. 212.  (3) (Z936) I.L.R.  17  Lah. 176. (2) A.I.R. 1933 All. 690.  (4) (1912) 13 Cr. L,.J. 877. 817 section 208 it is evident that the accused has the right  to cross-examine.  at  any  rate, those of  the  witnesses  who are.examined  by the Committing Magistrate on behalf of  the prosecution and section :547 cannot be used as a cloak for a hasty committal before such cross-examination is complete.     In  our  opinion,  the cases cited do  not  justify  the extreme  position  taken up by the learned counsel  for  the appellant  and as section 540 is a complete answer  in  this case all we need consider is the question of prejudice.   We do  not  hold that the Court is bound to examine  a  witness called under section 540 itself as a court witness and  that it  can  never entrust the examination  to  the  prosecuting counsel  because  even if that be the  proper  procedure  no prejudice has been occasioned in this particular case.   The irregularity here on this score, if indeed it is one, is  so trivial as to be innocuous.     A more important question is, was the appellant taken by surprise  and was prejudice occasioned because of that ?  We do  not think so because Jaswant Singh was mentioned in  the first information report, recorded within 15 minutes of  the occurrence,  as  one of the eye-witnesses and he  was  again mentioned as an eye-witness in the calendar of the committal proceedings.  The appellant was presumably supplied with the witnesses’  statement to the police, or at any rate  he  had the  right to demand a copy under section 162 and if he  did not do so, It was presumably because neither he nor his  two learned counsel wanted it. The first information report is a

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full one and sets out all the essentials of the  prosecution case; therefore, with all that information in the possession of the appellant and his counsel it could be impossible  for him to contend that he did not know what this witness was to prove.    Had the witness travelled beyond the statements  embodied in the first information report, objection to the use of any thing  not contained in it would have  been  understandable, though  to be effective such 818 objection  would ordinarily have to be raised at the  trial, but as the witness does not do that, there can be no  objec- tion on the score of prejudice.  It is to be  observed  that the Explanation to section 537 requires a Court to take into consideration the fact whether any objection on the score of irregularity could have been raised at an earlier stage.     Now the High Court bases its decision on the evidence of these  eye-witnesses and on the fact that the appellant  was apprehended on the spot within a minute or two of the murder with the pistol still in his possession, and had the learned Judges  stopped there, there would have been  no  foundation for the very elaborate network of technicalities upon  which the learned counsel for the appellant embarked.  But  Bhand- ari J. (Soni J. concurring) after saying that   "After  a  careful consideration of all the  facts  and circumstances  of the case I entertain no doubt in  my  mind that Balbir Singh and Jaswant Singh P. Ws. have told nothing but  the truth" went on to say"and that Jit Singh and  Jagir Singh  who  made correct statements before  the  police  and before  the Committing Magistrate have given false  evidence in  the trial Court with the object of saving the  appellant from the gallows."      It  was argued that the learned Judges have  here  used the evidence of these witnesses before the Committing Magis- trate  as substantive evidence despite the fact that it  was legally  inadmissible for that purpose because the  formali- ties  prescribed by section 288 were not observed.  Reliance was placed upon Tara Singh v. The State(1).      Even if that be so, it would make no difference because the  evidence  of Balbir Singh and Jaswant Singh,  whom  the learned Judges primarily believe, is sufficient to afford  a basis  for the conviction and the mere fact that  extraneous matter  not necessary for the conviction was also called  in aid would not affect  (1) [1951] S.C.R. 729.  819 the result. But as a matter of fact the foundation for  this attack is based upon incorrect assumptions.     We will deal with Jit Singh, P.W. 2, first. He supported the prosecution case in his examination-inchief but  resiled when cross-examined. He was therefore treated as hostile and the learned Public Prosecutor was permitted to cross-examine him.   In cross-examination the  witness’s statement in  the Committal Court was read out to him and he was asked whether he  had made such a statement and he said: "Yes." When  that statement is read it is found to tally with his evidence  in chief  and with the depositions of Balbir Singh and  Jaswant Singh and with the first information report. Now it was  not necessary  to use the former statement as  substantive  evi- dence at all and the fact that the learned High Court Judges placed  this  on a par with the statements  to  the  police, including of course the first information report,  indicates that  they were not using the former statements as  substan- tive  evidence but merely as corroboration of what was  said in chief. The distinction is a subtle one and can perhaps be

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best explained in the following way.     A  witness  is called and he says in chief, "I  saw  the accused shoot X".  In cross-examination he resiles and  says "I did not see it at all."  He is then asked "but didn’t you tell A, B & C on the spot that you had seen it ?" He replies "yes, I did."  We have, of set purpose, chosen as an  illus- tration  a  statement which was not reduced to  writing  and which was not made either to the police or to a  magistrate. Now,  the former statement could not be used as  substantive evidence.   It  would only be used as corroboration  of  the evidence  in chief under section 157 of the Evidence Act  or to  shake  the witness’s credit or test his  veracity  under section  146, Section 145 is not called into play at all  in such a case.  Resort to section 145 would only be  necessary if the witness denies that he made the former statement.  In that event, it would be necessary to prove that he did,  and if the 820 former  statement was reduced to writing, then  section  145 requires  that his attention must be drawn to   those  parts which  are  to be used for contradiction.But  that  position does not arise when the witness admits the former statement. In  such  a  case all that is necessary is to  look  to  the former  statement  of which no further  proof  is  necessary because of the admission that it was made.   Of course, that statement cannot be used as substantive evidence  unless section 988 of the Criminal Procedure  Code is called in aid. But even without section 288 a Court would be entitled to say in such a case, basing on the evidence in chief, which is substantive evidence. that what the  witness said to the police, or to the Committing Magistrate, is  the true version, not because those statements form  substantive evidence but. because they tally with the evidence in  chief which  is substantive. This is only one of the many ways  in which  a  witness’s testimony can be  sifted  and  examined. Corroboration  is as useful to test the truth of a story  as any  other  method.  In such a case, what the  Court  really does,  though it may happen to put the matter the other  way round,  is to say that in its opinion the  substantive  evi- dence  given in chief is true because it is corroborated  by an earlier statement and for that reason, namely because the version  in chief is the true one the contradictory  version given  in  cross-examination is wrong, not  because  of  the contradiction  embodied in the former statement but  because of what was said in chief, a version which it is now safe to believe  on  account of the corroboration  afforded  by  the earlier  statement. It is true the earlier  statement  could also  have been used for contradicting the version given  in crossexamination  and in- that event, if it is  in  writing, the  limitations imposed by section 145 of the Evidence  Act would have to be observed, but the prosecution is not  bound to  do  that.  It has a choice.  It can, if it  so  chooses, build  up the version given in chief in any way  it  pleases and,  having done that, use the version in chief to  destroy the version in cross-examination.      821     But in the case before us there is no need to resort  to these  subtleties because here the depositions were  brought on record and could be used as substantive evidence even  if the  formalities prescribed by section 145 of  the  Evidence Act were not observed for the very simple reason that  there was  no need in this cause to resort to section 145.  As  we have said, the prosecution had a choice here because of  the two conflicting versions given  in chief and in  crossexami- nation.  It was entitled to use the former statement  either

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to  contradict  what  was said  in  crossexamination  or  to corroborate  what was said in chief.  In either event,  sec- tion  288  of the Criminal Procedure Code could be  used  to make the former statement substantive evidence because  what the section says is "subject to the provisions of the Indian Evidence Act," and not subject to any particular section  in it.  Section 157 is as much a provision of the  Indian  Evi- dence Act as section 145 and if the former statement can  be brought  in  under  section 157 it can  be  transmuted  into substantive  evidence  by the application  of  section  288. Tara  Singh v. The State(1) is to be  distinguished  because there, there were no two versions in the course of the  same testimony.   The  witness in question was hostile  from  the start in the Sessions Court and the whole purpose of resort- ing to section 288 was to contradict what he said there  and no question of corroboration arose.  The prosecution had  no choice there, as it was here, of using the former  statement either to contradict or to corroborate.     We  turn next to Jagir Singh, P.W. 4. In his case  there was  no  choice.  He was hostile from the start and  in  his ease  our observations in the ruling just referred to  apply in full.  But on an examination of his evidence we find that the  formalities  prescribed by section  145  were  complied with.   His  cross-examination, in contrast to  Jit  Singh’s where  such a procedure was not necessary. shows that  every circumstance intended to be used as contradiction was put to him point by point and passage by passage.  That was (1) [1951] S.C.R. 729 at 743. 822 conceded,  but  it  was argued that this  was  done  without drawing the witness’s attention to the parts of the  writing which were to be used for the purposes of contradiction.     We are by no means satisfied that is the ease because at least  one of the passages is reproduced in inverted  commas and so must have been read out from the statement. But  that apart.  Immediately  after the witness had  been  questioned about each separate fact point by point, the whole statement was  read out to him and he admitted that he had made it  in the  Committing  Court.  Now this procedure may be  open  to objection when the previous statement is a long one and only one   or   two   small  passages  in   it   are   used   for contradiction--that may, in a given case, confuse a  witness and not be a fair method of affording him an opportunity  to explain-but in the present case the previous statement is  a short one and the witness was questioned about every materi- al passage in it point by point. Accordingly, the  procedure adopted  here was in  substantial compliance with what  sec- tion  145 requires. There can be no hard and fast rule.  All that is required is that the witness must be treated  fairly and  be afforded a reasonable opportunity of explaining  the contradictions after his attention has been drawn to them in a fair and reasonable manner. We are satisfied that was done here.  The matter is one of substance and not of mere form.     Jit  Singh, P.W. 2, said that the statement made by  him in the committal proceedings was not read over to him and so did  Jagir Singh, P.W. 4. It was argued that in the  absence of  an enquiry that must be accepted as true, and  if  true, the evidence becomes inadmissible.     Now  the  certificate of the Committing  Magistrate  en- dorsed  on the deposition sheet states that  the  deposition was read out to the witness and that the witness admitted it to be correct. The Court is bound to accept this as  correct under  section  80 of the Indian Evidence Act  until  it  is proved to be untrue.  The burden is on    823

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the person seeking to displace the statutory presumption and if  he chooses to rely on the testimony of a  witness  which the Court is not prepared to believe the matter ends  there. The  duty of displacing the presumption lies on  the  person who  questions it. The Court is of course bound to  consider such  evidence as is adduced but it is not bound to  believe such evidence nor is there any duty whatever on the Court to conduct  an  enquiry on its own. There is  nothing  in  this point.  But we again wish to discountenance  the  suggestion that the Committing Magistrate should have been examined  to prove  the truth of his certificate and we endorse  the  re- marks  we  made  in Kashmera Singh v. The  State  of  Madhya Pradesh  (1) based on the decision of the Privy  Council  in Nazir Ahmad v. King Emperor(2) regarding the  undesirability of any such practice.     But even if the fact be true that the deposition was not read over, that would only amount to a curable  irregularity and,  as the Privy Council observed in Abdul Rahman v.  King Emperor  (3),  in  the absence of prejudice  which  must  be disclosed  in  an affidavit which shows  exactly  where  the record departs from what the witness actually said, there is no  point in the objection.  The object of the reading  over prescribed by section 360 of the Code of Criminal  Procedure is  not  to enable the witness to change his  story  but  to ensure  that the record faithfully and  accurately  embodies the  gist  of what the witness  actually  said.   Therefore, before prejudice can be substantiated on this score, it must be disclosed by affidavit exactly where the inaccuracy lies.     The  next  and last objection is on similar  lines.  Jit Singh,  P.W.  2., and Jagir Singh, P.W. 4, said  that  their statements before the Committing Magistrate were made  under the  threats  and duress of the police. It was  argued  that that should not have been rejected without further  enquiry, and  a  ruling  in which a further  enquiry  was  considered necessary was cited. Here (1) [1952] S.C.R. 526. (2) A.I.R. 1936 P.C. 253 at 258. (3) A.I.R 1927 P.C. 44 at 45-47.      107 824 again,  it  is  no part of a Court’s duty to  enter  upon  a roving enquiry in the middle of a trial on matters which are collateral  to the main issue.  The burden is on the  person making  these  allegations to substantiate them  and  if  he chooses to rely on evidence.which does not satisfy the Court he  must’ suffer the same fate as every other person who  is unable to discharge an onus which the law places upon him.  It  was also argued that there was no proper  compliance with  the provisions. of section 342 of the Criminal  Proce- dure  Code.   We are satisfied that  there  was  substantial compliance in this case.  The facts were simple and few  and the  crucial  matters were brought to the attention  of  the appellant.  In any event, the learned counsel was unable  to tell  us even at the argument stage exactly how  his  client was  prejudiced  and tell us what answers his  client  would have  given to the questions which, according   to  counsel, ought  to  have been put to the appellant.  We  pressed  him several times to disclose that but he was unable to do so.     As we said at the outset, the case is a very simple  one in which a man was caught red-handed with a pistol still  in his  hand  and  in which the first  information  report  was recorded  practically on the spot within 15 minutes  of  the occurrence. The murder was committed in day light and  there was no dearth of eye-witnesses. Two have been believed,  and in  the  case of the other two, certain statements  made  by

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them  in the Sessions Court resiling from statements  previ- ously recorded in the committal proceedings have been disbe- lieved.     The  appeal fails and is dismissed. We see no reason  to interfere with the sentence of death. Appeal dismissed. Agent for the appellant: Sanker Das. Agent for the respondent: P. 4. Mehta. 825