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PETITIONER: KIRPAL SINGH

       Vs.

RESPONDENT: STATE OF U.P.

DATE OF JUDGMENT: 10/05/1963

BENCH: SHAH, J.C. BENCH: SHAH, J.C. SINHA, BHUVNESHWAR P.(CJ) AYYANGAR, N. RAJAGOPALA

CITATION:  1965 AIR  712            1964 SCR  (3) 992  CITATOR INFO :  R          1968 SC1402  (7)

ACT:     Criminal Law-Committal proceedings-Powers and duties  of the Magistrate-Desirability to examine all the witnesses  to the actual commission of the offence- Code of Criminal  Pro- cedure, 1898 (Act 5 of 1898), as amended by Act 26 of  1955, ss.173, 207A (4).

HEADNOTE:   The  appellant was convicted by the Sessions judge of  the offence of murder of K and sentenced to death, and the  con- viction and sentence were confirmed by the High Court.   The committal   proceedings   disclosed  that   the   Magistrate committed  the  accused  to the  Court  of  Session  without recording  the  evidence  of the  witnesses  to  the  actual commission of the offence.    Held  that  under s. 207A of the Code  of  Criminal  Pro- cedure,  1898, as amended by Act 26 of 1955, a  Magistrate., has  993 been  given  a discretion in the matter  of  examination  of witnesses not produced by the prosecutor.  The prosecutor is expected   ordinarily  to  examine  in  the  court  of   the committing Magistrate all witnesses to the actual commission of the offence, but if without adequate reasons he fails  to do  so,  the Magistrate is justified and,  in  enquiries  on charges of serious offences like murder, is under a duty  to call  witnesses who would throw light upon  the  prosecution case.   A  Magistrate failing to examine  witnesses  to  the actual  commission  of  the offence  because  they  are  not produced, without considering whether it is not necessary in the interests of justice to examine such witnesses, fails in the discharge of his duties.   The  Magistrate  must  apply his  mind  to  the  documents referred  to  in  s. 173 of the code and  the  testimony  of witnesses, if any, produced by the prosecutor and  examined, and  consider  whether  in the interests of  justice  it  is necessary to record the evidence of other witnesses.   A Magistrate in committing a person accused of an  offence for  trial  has to perform a judicial function which  has  a

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vital  importance in the ultimate trial, and a  slipshod  or mechanical dealing with the proceeding must be deprecated.   Shriram  Daya Ram v. The State of Bombay, [1961] 2  S.C.R. 890, considered.

JUDGMENT:     CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.  54 of 1963.   Appeal by special leave from the judgment and order  dated September 13, 1962, of the Allahabad High Court in  Criminal Appeal No. 877 of 1962 and Referred No. 79 of 1962.    O. P. Rana, for the appellant.    G.C. Mathur and C. P. Lal, for the respondent.    1963.   May 10.  The judgment of the Court was  delivered by SHAH  J.-The  appellant Kirpal Singh and  his  two  brothers Arjun -Singh and Sarwan Singh, 994 were tried by the Sessions judge, Pillibhit for causing  the death  of  one  Karam Singh with  gunshot  injuries  in  the evening  of  March 26, 1961 at Village  Shanti  Nagar.   The Sessions  judge acquitted Arjun Singh and Sarwan  Singh  and convicted the appellant Kirpal Singh of the offence  charged against him and sentenced him to suffer the penalty of death subject  to confirmation by the High Court.  The High  Court of Allahabad confirmed the order of conviction and sentence. With special leave, Kirpal Singh has appealed to this Court.   The case for the prosecution was as follows    The  appellant  and his father-in-law Rakkha  Singh  were refugees from West Pakistan.  A block of agricultural  land, allotted by the Government to Rakkha Singh and the appellant was  partitioned but no boundary marks were erected  on  the line  dividing  the  lands.  In December 1960  there  was  a dispute  between  Rakkha  Singh  on the  one  hand  and  the appellant and his brothers on the other about the harvesting of sugarcane planted in the land.  This dispute was  settled on  the  intervention of one Sardar Ajit Singh,  and  Rakkha Singh  agreed to give seven hundred maunds of  sugarcane  to the  appellant  and  his brothers.  The  appellant  and  his brothers went to the house of Rakkha Singh on March 22, 1961 and complained that they were not given four hundred  maunds of  sugarcane  out of the seven hundred maunds  promised  to them.   There was a quarrel on that occasion  between  Karam Singh  eldest  son of Rakkha Singh and  the  appellant,  the former  saying  that  the appellant and  his  brothers  were "behaving like dishonest persons’.  Rakkha Singh  intervened and  nothing untoward happened on that occasion.   On  March 26, 1961 at about 6 p.m. when Rakkha Singh and his two  sons Karam  Singh  and Manjit Singh and  their  neighbour  Sardar Anokh Singh were sitting in a thatched hut, the appellant  995 armed  with  a gun, and his two brothers armed  with  lathis arrived  near  the hut, and the appellant shouted  to  Karam Singh  asking him to come out of the hut.  On Karam  Singh’s emerging  from the hut the appellant told him that since  he (Karam  Singh)  "did not settle the  dispute  regarding  the sugarcane he would settle his account just then", and opened fire  causing  injuries to Karam Singh on  the  chest  which resulted in death instantaneously.  On hearing the report of gun fire Rakkha Singh, his son Manjit Singh and Sardar Anokh Singh  came out of the thatched hut.  Manjit Singh tried  to catch  hold  of the appellant and his brothers  but  without success.   Rakkha  Singh  then went to  the  police  station

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Puranpur  and lodged the first information at 7-45  a.m.  At the trial of the appellant and his brothers before the Court of Session, Manjit Singh, Anokh Singh and Rakkha Singh  were examined as persons who were present at the scene of offence and witnessed the assault on Karam Singh.  Manjit Singh  and Anokh  Singh however did not support the  prosecution  case. They stated that at about 8 or 9 p.m. on March 26, 1961 when they  were in their respective houses they heard  report  of gun  fire and on coming out came to learn from  some  person that  Karam  Singh was fired upon by ’some  Sardar  who  was wearing  a mask’.  The witnesses were cross-examined by  the prosecutor  with  leave of the Court in the light  of  their statements  recorded by the sub-inspector of police  in  the course of his investigation but they denied having made  the statements that the appellant and his two brothers had  come to Shanti Nagar at 6 p.m. on the day of occurrence and  that the appellant had killed Karam Singh by causing him  gunshot injuries.  But Rakkha Singh supported the prosecution  case. He  spoke about the dispute about sugarcane, and also  about the quarrel between Karani Singh and the appellant on  March 22,  1961.  He then stated that on March 26,1961 at about  6 p.m. the appellant and his two brothers had 996 come  near his hut, that the appellant had called out  Karam Singh  and  after  shouting  that as  Karam  Singh  was  not settling the matter of sugarcane they "were going to  settle his   matter"   had  fired  a  shot  killing   Karam   Singh instantaneously.   In cross-examination he stated that  from the  hut in which he was sitting he could not see the  faces of  the assailants but on hearing the report of gun fire  he came out of the hut and saw the assailants running away, and that  he  was  able to recognise them  by  "their  gait  and voice".    The  learned  Sessions judge accepted  the  testimony  of Rakkha Singh and, in so for as it inculpated the  appellant, convicted  him of the offence of causing the death of  Karam Singh.   He  however  held  that the  two  brothers  of  the appellant  were  not  proved to be  guilty  of  the  offence charged against them and acquitted them.  The High Court  of Allahabad  agreed with the finding recorded by the Court  of First  Instance and confirmed the sentence of  death  passed against the appellant.   The conclusion recorded by the Court of First Instance and affirmed  by  the High Court is based upon  appreciation  of evidence and no question of law arises therefrom.   Normally this  Court  does  not proceed to  review  the  evidence  in appeals  in criminal cases, unless the trial is vitiated  by some illegality or irregularity of procedure or the trial is held  in a manner violative of the rules of natural  justice resulting  in an unfair trial or unless the  judgment  under appeal has resulted in gross miscarriage of justice.  Rakkha Singh  deposed  that  he  had been  able  to  recognise  the appellant  from his "voice and gait".  Rakkha Singh was  the father-in-law of the appellant, and had during the last  few days  before  the death of Karam Singh  seen  the  appellant frequently.  Only four days before the incident there was  a quarrel between Kararn Singh and the appellant about the  997 delivery  of  sugarcane  crop  and  the  appellant  and  his brothers  had retired from the scene at the intervention  of Rakkha Singh, greatly annoyed.  It is true that the evidence about identification of a person by the timbre of his  voice depending  upon subtle variations in the overtones when  the person   recognising  is  not  familiar  with   the   person recognised  may be somewhat risky in a criminal trial.   But

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the  appellant was intimately known to Rakkha Singh and  for more than a fortnight before the date of the offence he  had met  the appellant on several occasions in  connection  with the  dispute  about the sugarcane crop.   Rakkha  Singh  bad heard the appellant and his brothers calling Karam Singh  to come  out of the hut and had also heard the appellant, as  a prelude  to  the  shooting referring to  the  dispute  about sugarcane.   In the examination, in-chief Rakkha  Singh  has deposed  as  if  he  had seen  the  actual  assault  by  the appellant,  but in cross-examination he stated that  he  had not  seen  the  face of the assailant of  Karam  Singh.   He asserted however that he was able to recognize the appellant and his two brothers from their ’gait and voice’.  It cannot be  said  that  identification of the  assailant  by  Rakkha Singh,  from  what he heard and observed was  so  improbable that  we would be justified in disagreeing with the  opinion of the Court which saw the witness and formed its opinion as to  his credibility and of the High Court  which  considered the   evidence  against  the  appellant  and  accepted   the testimony.    Manjit  Singh  and Anokh Singh have tried to  shield  the appellant by deposing that the assault took place at about 9 p.m. and that they were informed that the assailant had  put on  a  mask.   Their statements recorded in  the  course  of investigation  were  inconsistent with the  tenor  of  their evidence in Court.  It is true that there was some delay  in lodging  the  first  information,  the  offence  took  place according to Rakkha Singh at 6 p.m. ,on March 26, 1961 and 998 information  at  the police station Puranpur was  lodged  at 7.45  a.m.  on  March 27, 1961.  The  distance  between  the police  station  and the village Shanti Nagar, as  the  crow flies, is about 15 miles but by the public transport  system one  has  to  take a long detour to  reach  Puranpur  Police Station.   Rakkha  Singh  says that to avoid  delay  and  to secure  the presence of a Police Officer he secured  a  jeep from  Sampurna  Nagar  Union and  proceeded  to  the  police brought the sub-inspector of police to in the same jeep.  We do  not think, station and santi Nagar having regard to  the circumstances,  that there has been any such gross delay  in lodging  the  first  information  as  would  justify  us  in throwing  doubt on the truth of the story of  Rakkha  Singh. It  appears that there are two police outposts  near  Shanti Negar-one at a distance of about two miles and another at  a distance  of  five miles but the officer in  charge  of  the police  outposts  had,  it is conceded by  counsel  for  the appellant,  no  authority  to record  a  first  information. Rakkha Singh desired to lodge a complaint About the  commis- sion  of the offence of murder, he was not  apprehensive  of any violence at the hands of the appellant and his brothers, and  if  he  did  not contact  the  officer  at  the  police outposts,  who could not record his complaint, no fault  can be found. against him.    The  postmortem  examination of the stomach  contents  of Karam Singh disclosed that there was 8 ozs. of half-digested food  and that indicated that the death was caused some  two hours after the last meal was taken by Karam Singh;  Counsel for  the  appellant said that the condition of  the  stomach supported  the version of Manjit Singh and Anokh Singh,  but Rakkha Singh has deposed that Karam Singh had taken at about 4  p.m.  tea and pakadas.  That explains  the  presence  of’ half-digested  food  in  the  stomach.   The  case  for  the prosecution  undoubtedly  depends for its support  upon  the testimony  of  a single witness, who did not claim  to  have identified

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999 the assailant by seeing his face.  But we do not think  that is  a circumstance which would justify us in departing  from the  rule normally followed by this Court.  The offence  was committed when there was sufficient daylight : the assailant was  intimately  known to Rakkha Singh and the  witness  had heard the appellant’s voice speaking about the dispute which was pending between him and the appellant.  We do not  think that  the  circumstance that Rakkha Singh had not  seen  the face of the appellant when the latter was running away is  a ground for discarding his testimony.  The conviction of  the appellant  must therefore be confirmed.  Sentence passed  by the  Trial  Court is, in the circumstances of the  case  the only appropriate sentence.    Before  parting with the case, we think it  necessary  to observe that the committing Magistrate in this case erred in committing  the  accused  to the Court  of  Session  without recording  the evidence of all the witnesses to  the  actual commission  of  the  offence, Under  the  Code  of  Criminal Procedure  as  amended  by Act 26 of  1955,  the  Magistrate holding  committal  proceedings  is  required  to  take  the evidence of such persons, if any, as may be produced by  the prosecution  as  witnesses to the actual commission  of  the offence alleged, and if the Magistrate is of opinion that it is necessary in the interest of justice to take the evidence of  any  one  or  more  of  the  other  witnesses  for   the prosecution,  he may take such evidence also: s.  207A  (4). The Magistrate has in the enquiries relating to charges  for serious offences like murder the power and indeed a duty  in the  interest  of  the accused, as well  as  in  the  larger interest  of  the  public to record the  evidence  of  other witnesses  who  throw  light on the  case.   Examination  of witnesses to the actual commission of the offence should  in inquiries,  for  committal  on  charges  for  such   serious offences,  be the normal rule.  The prosecutor  is  expected ordinarily to examine in the Court of the 1000 committing Magistrate all witnesses to the actual commission of  the offence: if without adequate reasons he fails to  do so, the Magistrate is justified and in enquiries on  charges for  serious offences is under a duty to call witnesses  who would  throw  light upon the prosecution case.   Before  the Code was amended by Act 26 of 1955 it was necessary for  the Magistrate holding the inquiry to record the evidence of all the  important witnesses.  With a view to shorten delays  in the proceeding preliminary to bringing the accused to trial, the  Legislature  has  by  enacting  s.  207A  conferred   a discretion upon the Magistrate in the matter of  examination of  witnesses not produced by the prosecutor.   Exercise  of that  discretion must be judical : it is not to be  governed by  any set rules or standards, but must be adjusted in  the light of circumstances of the case.  The Magistrate is again not to be guided by the attitude of the prosecutor.  He must of  course  consider  the  representation  relating  to  the examination   of  witnesses  by  the  prosecutor,   but   in considering  whether  it  is necessary in  the  interest  of justice  to  take evidence of any one or more of  the  other witnesses  for the prosecution, he must have due  regard  to the  nature and gravity of the offence, the interest of  the accused  and  the  larger interest of the  public,  and  the defence  if  any  disclosed by the  accused.   A  Magistrate failing to examine witnesses to the actual commission of the offence  because they are not produced, without  considering whether  it  is  necessary in the  interest  of  justice  to examine  such  witnesses,  in our  judgment,  fails  in  the

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discharge of duties.    There is nothing in the decision of this Court in  Sriram v. The State of Bombay (1), which may support the view  that in the matter of examination of witnesses, especially in the inquiry relating to serious charges like murder and culpable homicide, the Magistrate is to be guided by the  prosecutor. It is (1)  [1961]2 S.C.R. 890.  1001 the duty of the Magistrate to examine all such witnesses  as may be produced by the prosecutor as witnesses to the actual commission of the offence alleged, but his duty does not end with  such  examination.   He must apply  his  mind  to  the documents  referred  to  in s. 173,  and  the  testimony  of witnesses, if any, produced by the prosecutor and  examined, and  consider  whether  in the interest  of  justice  it  is necessary  to re. cord the evidence of other witnesses.   In inquiries  relating  to charges for  serious  offences  like murder, normally the Magistrate should insist upon the  exa- mination of the principal witnesses to the actual commission of  the  offence.  Failure to examine the witnesses  may  be justified only in exceptional cases.  This is so because the Magistrate in committing a person accused of an offence  for trial  has to perform a judicial function which has a  vital importance in the ultimate trial, and slipshod or mechanical dealing with the proceeding must be deprecated. The appeal fails and is dismissed. Appeal dismissed. 1