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
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
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
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
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
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