TARA SINGH v. THE STATE
Citation: [1951] 1 S.C.R. 729; 1951 INSC 40
Court: Supreme Court of India
Bench: M. PATANJALI SASTRI , SUDHI RANJAN DAS, SIR SYED FAZL ALI, VIVIAN BOSE
Judgment date:
Case summary
1951 INSC 40. Supreme Court of India judgment dated 1951-06-01. TARA SINGH v. THE STATE. Read the judgment and case details on LawSphereX.
Judgment text
S. C. R. SUPREME COURT REPORTS 729 appears to have been instituted to test the validity of a controversial measure and to secure a final decision The State qf Bol1'bay on it to set at rest the doubts and uncertainties which and Another may have clouded the minds of a section of the public v. F. N. Balsara. as to how far the provisions of the Act conform to law and to the Chapter on Fundamental Rights in the present Constitution. PATANJALI SAsTR1 J. -1 agree and have nothing Patanjali Sastri :J. more to add. MuKHERJEA J. -1 have read the judgment of my Muklurjea :J. learned brother Mr. Justice Fazl Ali and I am in entire agreement with his conclusions and reasons. There is nothing further which I can usefully add. S. R. DAs J. -1 agree and I have nothing further S. It. Das]. to add. V1VIAN BosE J. -I also agree. Vivian Bose J. Appeal No. 182 allowed. Appeal No. 183 dismissed. Agent for the appellants in Case No. 182 and res-pondents in Case No. 183 : P. A. Mehta~ .
Agent for the respondent in Case No. 182 and appellant in Case No. 183 : Rajinder Narain for R. A. Gagrat. TARA SINGH 1951 v. June 1 THE STATE. [SAIYID FAZL ALI, PATANJALI SASTRI, S. R. DAs and VIVIAN BosE JJ. ] Criminal Procedure Code (V of 1898), ss. 173 (1), 190 (1) (b), 340 (1), 342, 288-Evidence Act (1 of 1872), s. 145-Filing of second challan-Whether vitiates first report-Examination of accused-Imp<>rtance of-Statements made in Committal Court- W hen admissible. Where the report made by a police officer to · the Magistrate complies with the requirements of s. 173 ( 1) of the Criminal Procedure Code the Magistrate can take cognisance. of the case under s. 190 (1) (b) of the Code. The fact that a second challan was put in later would not necessarily vitiate the first and in-validate the proceedings taken before the second challan was submitted. The right conferred by s.
340 ( 1) of the Criminal Procedure Code does not · extend to a right in an accused person to be provided with a lawyer by the State or by the Police or by the Magistrate. That is a privilege given to him and it is his duty to ask for a lawyer if he wants to engage one, or to engage one himself, or get "his relations to engage one for him. The only duty cast on the ·Magistrate is to afford him the necessary opportunity. An accused should be properly examined under s. 342 of th. ,. Code and, if a point in the evidence is considered important against the accused and the conviction is intended to be based upon it, then it is right and proper that the accused should be questioned about the matter and be given an opportunity of explaining it if he so desires. This is an important and salutary provision and should not be slurred over. It is not a proper compliance of s.
342 to read out a long string of questions and answers made in the Committal Court and ask the accused whether the statement is correct. A question of that kind is misleading. In the next place, it is not sufficient compliance to string together a long series of facts and ask the accused what he has to say about them. He must be questioned separately about each material circumstance which is intended to be used against him. Dwark_anath v. Emperor (A. LR. 1933 P. C. 124) referred to. In view of the words "subject to the provisions of the Indian Evidence Act" whith occur in s.
288 of the Criminal Procedure Code, the evidence given by a witness in the Committal Court cannot be used as substantive evidence in the Sessions· Court unle·ss the witness is confronted with those parts of his evidence which arc to be used for the purpose of contradicting him, even though if the only object of the prosecution is to discredit the evidence given in the Sessions Court by cross-examination him with reference to previous statements made in the Committal Court, it is not necessary to do so. CluMINAL APPELLATE JURiso1cnoN : Criminal Appeal No. 14 of 1951. Appeal against the Judgment and Order dated the 6th June, 1950, of the High Court of Judicature for the State of Punjab at Simla in Criminal Appeal No. 75 of 1950. Hardayal Hardy for the appellant. S. L. Chibber for the respondent. 1951. June 1. The following Judgments were delivered. Tara Singh v. The State. BosE J. -This is an appeal under arti:cle 136 (1) of the Constitution. The appellant, Tara Singh, was con- Bose].
victed of murder by the Additional Sessions Judge of Amritsar and sentenced to death. On appeal the High Court upheld the conviction and confirmed the sentence. Tara Singh has made a further appeal to this Court. As we intend to order a retrial, it will not be desirable to say anything about the merits of the case. The case for the prosecution is that two persons, Milkha Singh and Hakam Singh, were murdered in the early hours of the morning of Friday the 30th of September, 1949. The former is the appellant's uncle. He died on the spot. The latter is the appellant's father. He was removed to the hospital and died there on Friday, the 7th of October, 1949. The murders are said to have been committed about three in the morning. The appellant's brother Narindar Singh reported the occurrence at the Police Station, about 7 miles distant, at 8. 45 the sa~e morning. According to this report, Narindar was present and he named the appellant as the assailant.
The prosecution alleges that there were three eye-witnesses to the assault on ·the father Hakam Singh, namely the appellant's brother Na:rindar Singh, his mother Bibi Santi and his sister Bibi Jito, aged 14. They are said to have arrived on the scene while the appellant was still attacking the father with a kripan. The prosecution version is that these three persons saw the uncle Milkha Singh laying . dead on the scene of the occurrence with injuries on his person, and it is said that the appellant admitted to them that he ·had killed the uncle. The appellant is also said to have made an extra-judicial confession to three persons, Ujagar Singh (P. W. 8), Fauja Singh (P. W. 9) and Gurbakhsh Singh (P. W. 10). The prosecution also adduced evidence about three dying declarations made by the father Hakam Singh in each of which he implicated the appellant. Two of these were made to the police and the third was recorded by a Magistrate on the ! st of October.
The appellant was arrested between 4 and 5 p. m. on Friday, 30th September, the day of the occurrence, and was produced before a Magistrate on the 1st October. The. police asked for a remand to police custody till the 2nd as their enquiry was not complete. This was granted and the appellant was produced bef9re another Magistrate on the 3rd. When the appellant was produced on the 3rd October, the police handed over to the Magistrate what they called an incomplete challan dated the 2nd October, 1949, and also produced certain prosecution · witnesses. It is not clear whether these witness~ were named in the challan of that date or not, but that is a matter which can be cleared up in the course of the retrial which we intend to order. Among the witnesses so produced were three who are said to have witnessed. the occurrence. They were the appellant's brother Narindar, his mother Bibi Santi and his sister Bibi Jito. The Magistrate examined them straight-away and recorded their· evidence.
The appellant was not at the time represented by counsel. On the 5th of October, the police put in what they called a complete challandmd on the 19th they put in a supplementary ch~llan. The Magistrate committed the appellant for trial on the 12th of November, 1949. The first objection taken to the trial is that the Magistrate had no power to take cognizance of the case on the 3rd October. Accordingly, the depositions of- the three so-called eye-witnesses which he recorded on the 3rd cannot be received in evidence, and if they are excluded, then for reasons which I shall set out hereafter, the whole case against the appellant collap-ses because, according to the learned counsel, there is no other evidence on which the conviction can properly be based. This part of the argument is based on section 190, Criminal Procedure Code. It is contended that cogni-zance of an offence can only be taken in one of the ways set out in that section.
We are concerned here with the method set out in clause (b) of sub-section (1), namely "upon a report in writing of such facts made by any police officer. " It is cont. ended that the police are not permitted to send in an incomplete report because of the provisions of section 173(1) which runs as follows :- "Every investigation under this Chapter shall be completed without unnecessary delay, and as soon as it is completed, the officer in charge of the police station shall:_ (a) forward to a Magistrate empowered to take cognizance of offence on a police report, a report in the form prescribed etc ...... " I need not express any opinion about this because, in my opini er asked to explain supplies evidence on which the jury should infer etc. " The High Court has fallen into the same error and has based its decision on material which the appellant was not asked to explain. For example, the learned Judges rely on the evidence of the three eye (') A. LR. 1933 P. C. 134 at 135.
witnesses before the Committing Magistrate. They also · rely on the fact that Narindar's evidence in the Committing Magistrate's Court in · corroborated by the First Information which he gave to the police. The appellant was not questioned about these ma~ers either in the Sessions Court or by the Committing Magistrate. The High Court also relies on the evidence of the three witnesses who speak about ! the extra-judicial confeSl-sion and the learned Judges state that these witnesses "are not suggested to be in any way unfriendly to the appellant and they seem to be persons of respectabi-lity. " Here, again, if the appellant was not asked whether these witnesses were unfriendly or not, it is not fair to use the absence of such a suggestion as something which tells against the appellant. It is true the accused can cross-examine as to comity but he is not confined to that.
It may be that in a given case cross-examination would be futile, for it would · only elicit a denial, whereas a statement made by the accused which the Code directs should be used as evidence, for or against him, might be of great Yalue. In any event, the Code directs that the accused shall be afforded these opportunities and an omission to do so vitiates the trial if prejudice occurs or is likely to occur. The High Court also bases its conclusion on the cir-cumstantial evidence arising from the production of the Kripan and the recovery of the shirt from the appellant. Those articles are said to be stained with human blood. The appellant was not asked to give any explanation about this. The Serologist's report had not been received whrn the appellant was questioned by the Committing Magistrate. Therefore, he could not be asked to explain the presence of human blood stains on the Kripan. All he was asked was whether the blood-stained Kripan was recovered at his instance.
That is not enough. He should also have been asked whether he could explain the presence of blood stains on it. The two are not the same. Then, in the Sessions Court there was the additional evidence of the Imperial Serologist showing that the Kripan had stains of human blood on it. That was an additional and very vital piece of evidence which the appellant should have been afforded an opportunity of explain-mg. I cannot stress too strongly the importance of obser-ving faithfully and fairly the provisions of section 342, Criminal Procedure Code_ It is not a proper compliance to read out a long string of questions and answers made in the Committal Court and ask whether the statement is correct. A question of that kind is misleading. It may mean either that the questioner wants to know whether the recording is correct, or whether the answers given are true, or whether there is some mistake or misunder£landing despite the accu-rate recording.
In the next pface, it is not sufficient compliance to string together a long seri,es of facts and ask the accused what he has to say about them. He must be questioned separately about each material circumstance which is intended to be used against him. The whole object of the section is to afford the accused ·a fair and proper opportunity of explaining circumstances which appear against him. The questioning must therefore be fair and must be couched in a form which an ignorant or illiterate person will be able to appreciate and understand. Even when an accused person is not illiterate, his mind is apt to be perturbed when he is facing a charge of murder. He is therefore in no lit position to understand the signifi-cance of a complex question. Fairness therefore requires that each material circumstance should be put simply and separately in a way that an illiterate mind, or one which is perturbed or confused, can readily appreciate and understand.
I do not suggest that every error or om1ss1on in this behalf would necessarily vitiate a trial because I am opinion that errors of this type fall within the category of curable irregula-rities. Therefore, the question in each case depends upon the . degree of the error and upon whether prejudice has been occasioned or is likely to have been occasioned. In my opinion, the disregard of the provisions of section 342, Criminal Procedure Code, is so gross. in this case that I feel there is. grave likelihood of prejudice. But this it not the only error. Two of the three eye witnesses whose depositions before the Committing Magistrate were brought on the sessions record under section 288 were not confronted with their former statements in the; manner required by section 145, Evidence Act. 'All that happened is that they were asked something about their previous statements and they replied that they were made under coercion. Now, section 145 of the Evidence Act states that :- .
·'' "A witness may be cross-examined as to previous statements made by him in writing or reduced into writing, and relevant to matters in question, (without such writing being shown to him) or being proved .... ". This is all that seems to have occurred in the cases of Bibi Santi (P. W. 6) and Bibi Jito (P. W. 7). But the section goes on :- "but if it is intended to contradict him by. the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him. " Now, it is evident that one of the main purposes of using the previous statements was to contradict and displace the evidence given before the Sessions · Court because until that evidence was contradicated and dis-placed, there was no room in this case for permitting the previous 5. tatcments to be brought on record and used under section 288.
Therefore, as these statements were not put to these witnesses and as their attention was not drawn to them in the manner required by section 145, Evidence Act, they were not admissible in evidence. The observations of the Privy Council in Bal Gangadhar Tilak v. Shrinivas Pandit(1) are relevant here. In the case of Narindar Singh, his previous statement does seem to have been put to him in the proper (1) 42 I. A. 135 at 147. way. The partiCular portions on which the prosecution desired to contradict him were read out and he was afforded an opportunity of explaining them. So the inadmissiblity · extends only to the other two witnesses. There is some difference of opm1on regarding this matter in. the High Courts. Section 2~8 provides that the evidence recorded . by the Committing Magistrate in the presence of the accused may, in the circumstances set out in the section, "be treated as evidence in the case for all purposes subject to the provisions of the Indian Evidence Act, 1872.
" One line of reasoning is that section 145, Evidence Act, is not attracted because that section relates to previous statements in wntmg which are to be used for the purpose of contradiction alone. Statements of that kind do not become substantive evidence and though the evidence given in the trial can be destroyed by a contradiction ,of that kind, the previous statements cannot be used as substantive evidence and no decision can be grounded on them. But under. section 288, Criminal Procedure Code, the previous statement becomes evidence for all purposes and can form the basis of a conviction. Therefore, according to this line of reasoning, section 145 of the Evidence Act is not attracted. Judges who hold that view consider that the proyisions of the Evidence Act referred to are those relating to hearsay and matters of that kind which touch substantive evidence.
The other line of reasoning is that section 288 makes no exception of any ·provision in the Evidence Act and therefore section 145 cannot be excluded. As that section is one of the provisions or the Act, the statements are subject to its provisions as well. All that section 288 does is to import into the law of evidence somethiug which is not to be found in the Evidence Act, namely,. to make a statement of this kind substantive evidence, but only when all the provisions of the Evidence Act have been duly complied with. In my opinion, the secohd line of reasoning is to be preferred. I see no reason why •ection 145 of the Evidence Act should be excluded when section 288 states that the previous statements are to be "subject to the provisions of the Indian Evidence Act. " Section 145 falls fairly and squarely within the plain meaning of these words. More than that. This is a fair and proper provision and is in accord with the sense. of £airplay to which _Courts are accustomed.
Even the learned Judges who take the first view consider for the most part that though it is not obligatory (o confront a witness with his former statement when section 288 is resorted to, it is always desirable that that should be done if only for the reason that an omission to do so weakens the value of the testimony. I am of opinion that the matter is deeper than that, and giving effect to the plain meaning of the words "subject to the provisions of the Indian Evidence Act" as they stand. I hold that the evidence in the Committal Court cannot be used in the Sessions Court unless the witnesses is confronted with his previous statement as required by section 145 of the Evidence Act. Of course, the witness can be cross-examined about the previous statement and that cross-examination can be used to destroy his testimony in the Sessions Court.
If that serves the purpose of the prosecution, then nothing more is required, but if the prosecution wishes to go further and use the previous testimony to the contrary as substantive evidence, then it must, in my opinion, confront the witness with those parts of it which are to be used for the purpose of contradicting him. Then only can the matter be brought in as substantive evidence under section 288. As two of the eye witnesses were not confronted in the ~anner required by section 145, their statements will have to be ruled out, and if that is done the material on which the conviction is based is considerably weakened. I have considered anxiously whether this is a case in which we should direct a retrial de novo or whether the ret~ial should be from the stage at which the irregu-larity occurred or whether we should refuse to alfow a retr~al and acquit th~ appellant.
Having given my anxious thought to this matter, I am of opinion that there should be a retrial de novo in the Sessions Court either by the same or by some other Sessions Judge. I consider it inexpedient to say more than this, lest I prejudice the issue one way or the other. The conviction and sentence are set aside and the case is sent back to the High Court with a direction that that Court will order a retrial de novo in the Sessions Court, treating the committal as good. FAZL Au J. -1 agree and have nothing to add. PATANJALI SASTRI J. -1 agree and have nothing further to add. DAS J. -1 agree to the order proposed by my learned brother Bose. Re-trial cwdered. Agent for the appellant : Ganpt1t Rai. Agent for the respondent: P. A. Mehta . ,• •
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