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PETITIONER: RAGHUNANDAN

       Vs.

RESPONDENT: STATE OF U.P.

DATE OF JUDGMENT10/01/1974

BENCH: BEG, M. HAMEEDULLAH BENCH: BEG, M. HAMEEDULLAH CHANDRACHUD, Y.V.

CITATION:  1974 AIR  463            1974 SCR  (3)  92  1974 SCC  (4) 186

ACT: Murder--Criminal  Procedure Code--Ss.162, 428 and  540--Duty of  court  to  put  essential  questions--Evidence  Act,  s. 165--Scope of

HEADNOTE: All the appellants were tried for various offences under the Penal  Code.  The first appellant (Cr.  A. 10 of  1973)  was held  guilty  of the offence of murder of  the  deceased  by shooting him with a gun while the other appellants were held guilty  of offences under Ss. 147 and 148, 1. P. C. All  the appellants were held guilty of offences punishable under Ss. 307  and  323  read with s. 149.  The  first  appellant  was sentenced  to  death while the others  to  imprisonment  for life.  The High Court confirmed the sentences. Allowing the appeals in part and remitting the cases to  the High Court for disposal, HELD : Several material points escaped consideration by  the High  Court.   In a case of death sentence  one  would  have expected a closer and a more critical scrutiny and a  fuller discussion by the High Court of the evidence in the case and of  the  material questions arising for decision  before  it together  with  its decisions supported by  more  than  what could appear as perfunctory reasoning. [99E;100B] (1)  The more important questions emerging from a reading of the  post.  mortem  report regarding  the  contents  of  the stomach  of the deceased, considered in the context  of  the alleged time of the murder have not been discussed at all by the  High  Court.  It is precisely questions  of  this  kind which,  even  if  the prosecution  or  the  defence  counsel omitted to put, the trial court could and should have put to the  doctor  who conducted the post mortem to clear  up  the position.   If the trial Court had failed to consider  their importance,  the  High Court itself could  and  should  have taken further expert medical evidence under Ss. 540 and 428, Cr.  P. C. on this question. [9F] (2)  It is true that the ban imposed by s.. 162.  Cr.  P. C. against the use of a statement of a witness recorded by  the police during investigation, appears sweeping and wide.  But at  the same time, the powers of the court under s.  165  of the Evidence Act to put any questions to a witness are  also couched  in very wide terms authorising the judge "in  order

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to discover or to obtain proper proof of relevant facts"  to "ask  any question he pleases, in any form, at any  time  of any  witness, or of the parties. about any fact relevant  or irrelevant".   The  first proviso to s. 165,  Evidence  Act, enacting  that, despite the powers of the court to  put  any question to a witness, the judgment must be based upon facts declared by the Act to be relevant, only serves to emphasise the width of the power of the court to question a witness. The second proviso in this section preserves the  privileges of  witnesses  to  refuse to answer  certain  questions  and prohibits only questions which would be considered  improper under  Ss.  148  and  149,  Evidence  Act.   Statements   of witnesses made to the police during the investigation do not fail  under  any prohibited category mentioned  in  S.  165, Evidence Act.  If s. 162 Cr.  P. C. was meant to be so  wide in its sweep it could make a further inroad upon the  powers of  the judge to put questions under s. 165,  Evidence  Act. If that was the correct position at least s. 162, Cr.  P. C. would  have said so explicitly.  Section 165,  Evidence  Act was already on the statute book when s. 162, Cr.  P. C.  was enacted. It is certainly quite arguable that s. 162, Cr.  P. C.  does amount to a prohibition against the use even by the court of statements  mentioned there.  Nevertheless, the  purpose  of the  prohibition  of  s. 162, Cr.  P. C.  being  to  prevent unfair  use  by  the  prosecution  of  statements  made   by witnesses to the police during the course of  investigation, while  the  proviso  is  intended for  the  benefit  of  the defence, it could be 93 urged  that,  in order to secure the ends  of  justice,  the Prohibition,  by taking into account, it 8 purpose  and  the mischief it was designed to prevent as well as its  context, must, be confined in its scope to the use by parties only to a proceeding of statements mentioned therein. The  language  of  s.162, Cr.  P. C., though  wide,  is  not explicit or specific enough to extend the prohibition to the use of the wide and special powers of the court to, question a  witness,  expressly  and  explicitly  given  by  s.  165, Evidence  Act  in order to secure the ends  of  justice.   A narrow and restrictive construction put upon the prohibition in s. 162 Cr.  P. C. so as to confine the ambit of it to the use  of  statements  by  witnesses, by  parties  only  to  a proceeding  before the court, would reconcile  or  harmonize the  two  provisions. and also serve the  ends  of  justice. Therefore  s.  162, Cr.. P. C. does not impair  the  special powers of the court under s. 165 Evidence Act. [98A-H] In  the  instant  case a person who was said to  be  an  eye witness  was  not examined’ by the  prosecution.   But  this witness  was considered so important that the  trial  court: examined  him  as  a  court  witness.   While  some  of  the prosecution  witnesses stated that this witness was  present at  the  time and place of occurrence, the  witness  himself stated  to the police that he was not an eye witness to  the occurrence  but  came there. later.  This witness  ought  to have  been  confronted by the trial court  itself  with  his previous  statement to the police and that  statement  could have been proved by the investigating officer.  After  that, a  better appraisal of the other evidence in the case.  than was possible now could take place.  The High Court,  without considering  or discussing the significance of the  presence or  absence of this witness at the house at the time of  the occurrence,  had merely observed that he also supported  the prosecution.   If  this witness was not really  present  the evidence of witnesses who were prepared to state that he was

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present, though not necessarily false about the  occurrences has to be appraised less uncritically. Emperor v. Lal Mian A. I. R. 1943 Cal, 521, approved.

JUDGMENT: CRIMINAL  APPELLATE JURISDICTION Criminal Appeal Nos. 10  &. 11 of 1973. Appeals  by special leave from the judgment and order  dated the  28th  October,  1971 of the  Allahabad  High  Court  in Criminal  Appeal,  No. 351 of 1971 and Referred  No.  31  of 1971. Frank  Anthony,  E.  C. Agrawala, M. M.  L.  Srivastava  and A.T.M. Sampath, for the appellants. O. P. Rana. for the respondent. The Judgment of the Court was delivered by BEG.  J.-The appellants Raghunandan, Ganga Sahai, Ghalendra, Khem Singh, and Sohan Singh, in the two Criminal Appeals now before us by special leave, were tried by a Civil & Sessions Judge  of  Moradabad for various offences  punishable  under Sections  147 148, 302, 307, 323 and 452 read  with  section 149  Indian Penal Code.  Raghunandan was held guilty of  the offence  of  murder  by shooting one Sriram with  a  gun  on 12-12-1969,  at  about  1 P. m.,  while  the.  deceased  was sitting in front of his cattle shed in his outer court  yard and talking to Hari Singh, a neighbour, who was also injured by  gun shots.  The appellants Ganga Sahai and  Sohan  Singh were  held guilty of Offences punishable under  section  148 Indian Penal Code while Khem Singh and Ghalendra were  found guilty punishable under Section 147 Indian Penal Code.   All the appellants were held guilty of Offences punishable under Section 307 and 323 read with Section 149 Indian Penal  Code and Section 452 Indian Penal Code.- 94 But,  no separate sentences were passed against any  of  the accused  persons  for  these  Offences  as  Raghunandan  was sentenced  to death under section 3O2 Indian Penal Code  and the   other   four  appellants  were   sentenced   to   life imprisonment under section 302 read with section 149  Indian Penal  Court.  The High Court of Allahabad had accepted  the death  reference,,  and, dismissing the appeals of  all  the :appellants, had confirmed their sentences. The  Trial  Court  as well as the High  Court  had  recorded concurrent  findings  of  fact that  the  appellants  formed themselves  into  an  unlawful assembly armed  with  a  gun, ballams,  and lathis, and shot Sriram and Hari  Singh,  and, also injured Smt.  Brahma, P. W. 2, the wife of Hari  Singh, who  is said to have covered her husband Hari  Singh  during the  attack,  and,  Durga  Prasad,  P.W.6,  the  brother  of murdered  man.   The prosecution case is also  supported  by Bbai   Singh,  P.W.1,  a  brother  of  Raghunandan,  and  by Rameshwar,  P.W. 5, a resident of Village Karimpur, who  was said to be passing by at the time of the occurrence. The appellants pleaded that they had been falsely implicated due  to ,enmity.  They produced Gokul, D. W. 1, who  deposed about an ,occurrence which was alleged to have taken’  place at the house of Hari Singh in the early hours of the morning presumably  of 12th of December, 1969.  He stated  that  the cause of the occurrence was that Rohan, the brother of  Hari Singh,  had abducted Smt.  Rukia of Naurangabad and  brought her  to village Karimpur where she was living.  He  asserted that her husband and other residents of Naurangabad  forming a  party of ten to twelve, had come to take her  away.   Its members  were said to have been armed with a  Gun,  Ballams,

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and  Lathis,  which they were alleged to have  used  against Hari  Singh and the deceased Srirams and Durga  Prasad.   He deposed  that  Sriram, Hari ’Singh, and  Durga  Prasad  were fired at.  He stated that the Naurangabad party caught  hold of Smt.  Brahma and that her husband, Hari Singh, had  tried to  save her.  Gokul alleged that Sriram was struck  by  gun shots.   He  suggested that Hari Singh may  also  have  been ,similarly  injured.   He stated that Durga Prasad  was  not hit. The  Trial  Court,  which had the advantage  of  seeing  the witnesses  depose,  accepted the evidence of  the  four  eye witnesses who included two injured persons.  It rejected the story put forward by Gokul in defence as incredible.   Apart from  the  fact  that the defence version  did  not  clearly explain  the Ballam injury on Durga Prasad, the  explanation for  the gun shot wounds on the chest, stomach, and  forearm of Sriram, which had resulted in his death, suggesting  that he  was the ,principal target of the attack, did  not  quite fit  in with the defence version.  The Trial Court had  also observed  that the accused had reserved their defence up  to the  last stage and had not revealed it ,earlier  either  in the   Committing   Magistrate’s  Court  or   at   the   time of .;applying for bail. It is true that what seems to be the principal motive set up by  the ,prosecution helps the defence more than it  assists the  prosecution case.  This was that there was rivalry  for election  to  the office of the Pradhan of  the  Gram  Sabha between Sriram deceased and Ganga Sahai, 95 appellant, who was Pradhan of the village at the time of the murder.   According to the prosecution version, Sriram,  who had  been a Pradhan of the village for about 8 to 10  years, was  threatened with dire consequences by Ganga Sahai if  he stood again for the office.  Bhai Singh, P. W. 1, had stated that, out of fear, Sriram did not stand for election so that Ganga  Sahai  won  an uncontested election  and  became  the Pradhan.   If  that  was so, Ganga Sahai  should  have  felt obliged  to Sriram for not contesting the  election.   There was no suggestion that another election was near at the time of the occurrence or that Sriram was conspiring to get Ganga Sahai unseated. Other  motives  were  also set up.  Ganga  Sahai  and  other accused  persons  were said to have demolished the  mend  of Bhai  Singh’s field and taken his land under cultivation  so that Bhai Singh had complained about it to people of his own village and other villages.  It was alleged that the accused persons  formed one set and used to threaten the  family  of Bhai  Singh and Sriram and Durga Prasad who were said to  be joint  in  cultivation and mess.’ It was also  alleged  that Sriram  had  gone with a friend of his, named Sahi  Ram,  to Police  Station  Bejoi  to lodge a report  relating  to  the beating  up  of  Sahi Ram by  Sohan  Singh  and  Raghunandan appellants.  Furthermore, Brahma, P. W. 2, had deposed  that her husband Hari Singh, who had sustained gun shot  injuries at  the occurrence under consideration but had survived  was threatened by the accused persons that, if he gave  evidence against  them, he would be killed.  Hari Singh had  actually been  murdered  about  7 months  before  Smt.   Brahma  gave evidence in Court on 11. 1 1.70. The prosecution, therefore, suggested  that the appellants formed a set-of  bullies  and thought that they could do what they liked to the family  of Sriram, deceased, and its property.  Enmity, as it has  been often  observed, is a double edged weapon.   We,  therefore, refrain  from  saying  more than that  there  should  be  an attempt to determine, in such a case, the direction in which

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enmities set up were more likely to operate. If  the  eye witnesses could be believed it was  really  not necessary   to  support  the  prosecution  case  by   giving satisfactory evidence of the motive to murder.  The real and more important question to decide here was whether the  four alleged  eye  witnesses  produced,  out  of  whom  two  were brothers  of the deceased Sriram, one a chance witness,  and the  fourth,  the  injured wife of a  close  friend  of  the deceased, who was also injured, were sufficiently  reliable. The  alleged eye witnesses no doubt seem to  have  impressed the  Trial  Court  which had the advantage  of  seeing  them depose.   There are, however, atleast two features  of  this case which could provide serious grounds for suspecting  the prosecution  version.  We now proceed to examine  these  two features. It was repeatedly emphasised by the learned counsel for  the appellant that the post-mortem examination report  disclosed that  the small intestine as well as the large intestine  of the deceased contained faecal matter and were distended with gas  whereas the stomach was found empty.  It was  submitted before us that it was quite unnatural 96 as  60  years  (found erroneously mentioned  as  80  in  the judgment of the High Court before us), would not eat until 1 p.m.  during  the day, or, in any case, that  he  would  not defecate  until  that  time during the day  when  there  was nothing  in  evidence  to show that he  was  suffering  from constipation.   It  was contended that the Trial  Court  had uncritically  and too easily accepted the explanation  given by the prosecution witnesses that the deceased alone had not eaten  up  to  1 p.m. as he had a stream  of  visitors  that morning.  It is apparent from the testimony of Durga  Prasad that  he and his brother-in-law Jailal, C.W. 1, who was  not produced  by the prosecution (although examined as  a  Court witness), was also said to be staying) at the house, and  to have taken his food with Durga Prasad before 1 p.m. We  find  that although Dr. J. P. Chaturvedi, P. W.  8,  who performed   the  postmortem  examination,  and  Dr.  D.   P. Manchanda, who had admitted Hari Singh. into the hospital on 13-12-1969  at  11-40 a.m, were examined at  the  Trial,  no question  was  put by either side to elicidate  whether  the contents  of  the small intestine and  the  large  intestine could  remain in that condition until 1 p.m. during the  day assuming  that  Sriram was quite  healthy.   The  postmortem examination  took place at 2-40 p.m. on 13-12-1969, and  the intestines  were then found distended with gas.  We  do  not know whether this could be their condition at 1 p.m. on  12- 12-1969  or its effect.  It is precisely questions  of  this kind  which, even it the prosecution or the defence  counsel omit to put them, the Trial Court could and should have, put to  doctors to clear ,up the position.  If the  Trial  Court had  failed  to consider their importance,  the  High  Court could  have and should have taken further evidence  on  this matter  under  Section 540 Criminal Procedure  Code.   In  a criminal  case, the fate of the proceeding cannot always  be left  entirely in the hands of the parties.  The  Court  has also a duty to see that essential questions are not, so  far as  reasonably possible, left unanswered.  We are  surprised to  find,  from  the judgment of the High  Court,  that  the questions  mentioned above, arising out of  the  post-mortem report, were not, for some reason, even mentioned there.  We find  it  very difficult to believe that, in a case  with  a death  sentence  a matter of such  significance,  which  was noticed by the Trial Court, was not raised at all by Counsel for  the  appellants. in any event, it ought  to  have  been

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dealt  with  by  the High  Court  after  taking  appropriate additional  expert medical evidence under Section  540  read with  Section  428  Criminal  Procedure  Code  if  that  was considered necessary before deciding it. Another  question  raised  by the learned  Counsel  for  the appellant   relates   to  the  testimony  of   Jailal,   the brother-in-law of Sriram.  He was said to be an eye witness. But,  he was neither mentioned in the F. I. R., although  he was said to be present at the Police Station when the F.  1. R.  was  lodged  at  5 p.m., nor  was  he  produced  by  the prosecution. indeed, Rameshwar, P. W. 5. had stated that  he had not seen Jailal at all there.  Jailal was considered  so important a witness by the Trial Court that he was  examined as a Court witness.  He denied having made any statement  to the  Police  although it is in evidence that he did  make  a statement to the Police.  The Trial 97 Court  had  not permitted the contents  of  that  statement, which indicated that Jailal was not an eye witness but  came there at a time when the Corpse of Sriram was being removed, to  be  used to contradict his version as a  Court  witness. Smt.  Brahma, P. W. 2, as well as Durga Prasad, P. W. 6, the injured  eye  witnesses,  as well as Bhai Singh,  P.  W.  1, stated   that  Jailal  was  present  at  the  time  of   the occurrence. Learned  Counsel for the appellant submitted  that  Jailal’s statement  before the Police suggested that he had  come  in the  morning, long before 1 p.m., and had found that  Sriram had already been murdered.  This, it is urged indicates that Sriram must have been murdered either by Naurangabad  people or  by  unknown persons during the night.  We  do  not  find material  on  record to support the suggestion  that  Jailal must  have reached the house in the morning at a  time  when Sriram’s murder had been already committed.  The Trial Court had discussed the evidence of Jailal at some length and  had opined  that his name was not mentioned in the F.I.R. as  be was  related to the accused persons also.  That may  be  the reason  why Jailal was distrusted.  If, however,  Rameshwar, P.W.5.  a chance witness, who claimed to be present, at  the time of the alleged occurrence and to have seen it, is to be believed,  Jailal was not to be seen at all at that time  at the  house.  If Jailal was really not present, the  evidence of  witnesses who were prepared to state, for  some  oblique reason,  that he was present, though not  necessarily  false about  the  whole occurrence, has to be appraised  less  un- critically.    The  High  Court,  without   considering   or discussing  the significance of the presence or  absence  of Jailal  at  the  house at the time of  the  occurrence,  had merely  observed  that Jailal, C.W. 1,  also  supported  the prosecution version. Learned  counsel  for  the’  appellant  submitted  that  the testimony of Jailal could not have been accepted by the High Court  because  Jailal  had not  been  confronted  with  his previous  statement  before the police.  He  urged,  relying upon Emperor v. Lal Mian (1), that, even if the statement of a witness, recorded by the Police during the  investigation, cannot  be  used  for  "any purpose"  other  than  the  ones mentioned  in Section 162 Criminal Procedure Code, yet  this prohobition  applies only to the parties to the  proceedings and does not operate against the powers of the Court  itself when  it  considers  the  testimony  of  a  witness  to   be necessary.   Although, the Trial Court  considered  Jailal’s evidence  important enough to examine him under Section  540 Criminal Procedure Code, yet it disabled itself from testing its worth by putting an alleged contradiction to the witness

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on a matter of some importance, in the case. It  is urged by learned counsel for the appellants that  the powers  of the Court to question a witness are regulated  by the  special provisions of Section 165 of the  Evidence  Act exclusively,  so that a previous statement of  the  witness, who  is called as a Court witness, can be used by the  Court to  contradict him even if it was made to the police  during the investigation.  This, it is submitted, is the effect  of the  special powers of the Court under Section 165  Evidence Act. (1) A.I.R. 1943 Cal. 521. 98 It  is  true that the ban, imposed by section  162  Criminal Procedure Code, against the use of a statement of a  Witness recorded   by  the  Police  during  investigation,   appears sweeping  and wide.  But, at the same time, we and that  the powers of the Court, under section 165 of the Evidence  Act, to  put any question to a witness, are also couched in  very wide terms authorising the Judge "in order to discover or to obtain proper proof of relevant facts" to "ask any  question he pleases, in any form, at any time, of any witness, or  of the  parties, about any fact relevant or  irrelevant".   The first  proviso to section 165 Evidence Act,  enacting  that, despite  the  powers of the Court to put any question  to  a witness,  the judgment must be based upon facts declared  by the  Act to be relevant, only serves to emphasize the  width of the power of the Court to Question a witness.  The second proviso   is  this  section  preserves  the  privileges   of witnesses   to  refuse  to  answer  certain  questions   and prohibits only questions which would be considered  improper under  section 148 and 149 of the Evidence Act.   Statements of witnesses made to the police during the investigation  do not fall under any prohibited category mentioned in  Section 165  Evidence Act.  If Section 162 Criminal  Procedure  Code was  meant  to be so wide in its sweep as  the  Trial  Court thought  it to be, it would make a further inroad  upon  the powers  of  the  Judge to put Questions  under  Section  165 Evidence  Act.   If that was the correct  position,  atleast Section  162  Criminal  Procedure Code would  have  said  so explicitly.   Section  165 of the Evidence Act  was  already there when section 162 Criminal Procedure Code was enacted. It  is  certainly quite arguable that Section  162  Criminal Procedure Code doer, amount to a prohibition against the use even   by   the  Court  of   statements   mentioned   there. Nevertheless, the purpose of the prohibition of Section  162 Criminal  Procedure Code being to prevent unfair use by  the prosecution  of statements made by witnesses to  the  Police during  the  course of investigation, while the  proviso  is intended  for the benefit of the defence, it could  also  be urged  that, in order to secure the ends of  Justice,  which all procedural law is meant to subserve, the prohibition, by taking  into  account its purpose and the  mischief  it  was designed to prevent as well as its context, must be confined in  its scope to the use by parties only to a proceeding  of statements mentioned there. We are inclined to accept the argument of the appellant that the language of Section 162 Criminal Procedure Code,  though wide,  is  not  explicit or specific enough  to  extend  the prohibit on to the use of the wide and special powers of the Court to question a witness, expressly and explicitly  given by Section 165 of the Indian Evidence Act in order to secure the ends of justice.  We think that a narrow and restrictive construction  put  upon  the  prohibition  in  Sect  on  162 Criminal Procedure Code, so as to confine the ambit of it to the  use  of statements by witnesses by parties  only  to  a

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proceeding  before the Court, would reconcile  or  harmonize the two provisions considered by us and also serve the  ends of  justice.  Therefore, we hold that Section  162  Criminal Procedure  Code  does not impair the special powers  of  the Court under Section 165 Indian Evidence Act.   Consequently, we think that the Trial Court could and should have itself 99 made  use of the statement made by Jailal during the  course of the investigation.  If that had been done, it is possible that  it  may have affected appraisal of evidence  of  other prosecution witnesses. We also find that the Trial Court as well as the High  Court had  brushed  aside the objection that the  blood  recovered from  the  place  of occurrence was not  sent  for  chemical examination.  We think that a failure of the police to  send the  blood  for chemical examination in a  serious  case  of murder, such as the one before us, is to be deprecated.   In such  cases, the place of occurrence is often disputed.   In the  instant case, it was actually disputed.  However,  such an   omission  need  not  jeopardise  the  success  of   the prosecution  case where there is other reliable evidence  to fix the scene of occurrence. The High Court had dealt with the contention that there  was some  conflict  between medical evidence  and  the  evidence about  the distances from which shootings are said  to  have taken  place.   It  held  that,  if  correctly  interpreted, medical evidence corroborated the accounts of eye witnesses. But,  the  High Court had not similarly discussed  or  dealt with the  infirmities  in  the  statements  of   prosecution witnesses, which were  placed before us, such as the  denial by Smt.  Brahma, P. W. 2 that she went to the police station to  lodge a report in respect of the murder of  Hari  Singh. It  was  urged  on  behalf  of  the  appellants  that   this deliberately  mendacious denial by her was made  to  conceal the  fact  that her report was untrue.   Matters  which  may shake  the  credibility  of a witness  must  be  taken  into account although they may not be enough to discard the whole statement of a witness. We have indicated a number of points on which, in a case  of a  death  sentence, one would have expected a closer  and  a more  critical scrutiny and a fuller discussion by the  High Court  of  the  evidence in the case  and  of  the  material questions  arising for decision before it together with  its decisions on these supported by more than what could  appear as perfunctory reasoning. We have also indicated the  rather important question which was, surprisingly, not discussed at all  by  the  High Court, emerging from  a  reading  of  the postmortem ,report considered in the context of the  alleged time  of  the murder.  We think that the High  Court  itself could and should have taken further expert medical evidence, under Sections 540 and 428 Criminal Procedure Code, on  this question.  For the reasons already given, we also think that Jailal, C. W. 1, ought to have been confronted by the  Court itself  with  his previous statement before the  police  and that statement could be proved by the Investigating officer. After that, a better appraisal of other evidence in the case than  is possible now, on the present state of  the  record, could take place. We have anxiously considered the question Whether this is  a case  in  which we should consider the merits of  the  whole case ourselves on the evidence on record or send it back for further  consideration and decision in accordance  with  the law, as laid down above, either by the High Court or by  the Trial  Court.   We do not think that in a  serious  case  of murder  such as the one before us, persons who were, if  the

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prosecution  case is true, acting as  utterly  irresponsible and callous bullies, should be judged on the evidence as  it stands 100 without  the additional evidence mentioned above by us.   We must  emphasise  that,  whatever may be the  nature  of  the offence  or  the  actions of the  accused,  as  revealed  by evidence, the accused, are entitled to a fair trial which  a well  considered judgment, dealing satisfactorily  with  the material  points  in the case, evidences.  For  the  reasons given  above.  we think that several material  points.  have escaped consideration by the High Court. Consequently, we allow this appeal to the extent that we set aside  the  judgment and orders of the High Court  and  sent back  the  case to it for reconsideration  and  decision  in accordance  with law as explained by us.  No  opinion  which may  have been expressed unwittingly by us on  questions  of fact   would  bind  the  Court  or  affect   an   unfettered consideration  of the merits of the respective cases of  the two  sides by the High Court in accordance with the  law  as laid down by us. appeal      partly allowed. P. B. R. 101