{"id":101670,"date":"1974-01-10T00:00:00","date_gmt":"1974-01-09T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/raghunandan-vs-state-of-u-p-on-10-january-1974"},"modified":"2016-02-12T12:17:51","modified_gmt":"2016-02-12T06:47:51","slug":"raghunandan-vs-state-of-u-p-on-10-january-1974","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/raghunandan-vs-state-of-u-p-on-10-january-1974","title":{"rendered":"Raghunandan vs State Of U.P on 10 January, 1974"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Raghunandan vs State Of U.P on 10 January, 1974<\/div>\n
Equivalent citations: 1974 AIR 463, \t\t 1974 SCR (3)\t 92<\/div>\n
Author: M H Beg<\/div>\n
Bench: Beg, M. Hameedullah<\/div>\n
           PETITIONER:\nRAGHUNANDAN\n\n\tVs.\n\nRESPONDENT:\nSTATE OF U.P.\n\nDATE OF JUDGMENT10\/01\/1974\n\nBENCH:\nBEG, M. HAMEEDULLAH\nBENCH:\nBEG, M. HAMEEDULLAH\nCHANDRACHUD, Y.V.\n\nCITATION:\n 1974 AIR  463\t\t  1974 SCR  (3)\t 92\n 1974 SCC  (4) 186\n\n\nACT:\nMurder--Criminal  Procedure Code--Ss.162, 428 and  540--Duty\nof  court  to  put  essential  questions--Evidence  Act,  s.\n165--Scope of\n\n\n\nHEADNOTE:\nAll the appellants were tried for various offences under the\nPenal  Code.  The first appellant (Cr.\tA. 10 of  1973)\t was\nheld  guilty  of the offence of murder of  the\tdeceased  by\nshooting him with a gun while the other appellants were held\nguilty\tof offences under Ss. 147 and 148, 1. P. C. All\t the\nappellants were held guilty of offences punishable under Ss.\n307  and  323  read with s. 149.  The  first  appellant\t was\nsentenced  to  death while the others  to  imprisonment\t for\nlife.  The High Court confirmed the sentences.\nAllowing the appeals in part and remitting the cases to\t the\nHigh Court for disposal,\nHELD : Several material points escaped consideration by\t the\nHigh  Court.   In a case of death sentence  one\t would\thave\nexpected a closer and a more critical scrutiny and a  fuller\ndiscussion by the High Court of the evidence in the case and\nof  the\t material questions arising for decision  before  it\ntogether  with\tits decisions supported by  more  than\twhat\ncould appear as perfunctory reasoning. [99E;100B]\n(1)  The more important questions emerging from a reading of\nthe  post.  mortem  report regarding  the  contents  of\t the\nstomach\t of the deceased, considered in the context  of\t the\nalleged time of the murder have not been discussed at all by\nthe  High  Court.  It is precisely questions  of  this\tkind\nwhich,\teven  if  the prosecution  or  the  defence  counsel\nomitted to put, the trial court could and should have put to\nthe  doctor  who conducted the post mortem to clear  up\t the\nposition.   If the trial Court had failed to consider  their\nimportance,  the  High Court itself could  and\tshould\thave\ntaken further expert medical evidence under Ss. 540 and 428,\nCr.  P. C. on this question. [9F]\n(2)  It is true that the ban imposed by s.. 162.  Cr.  P. C.\nagainst the use of a statement of a witness recorded by\t the\npolice during investigation, appears sweeping and wide.\t But\nat  the same time, the powers of the court under s.  165  of\nthe Evidence Act to put any questions to a witness are\talso\ncouched\t in very wide terms authorising the judge \"in  order\nto discover or to obtain proper proof of relevant facts\"  to\n\"ask  any question he pleases, in any form, at any  time  of\nany  witness, or of the parties. about any fact relevant  or\nirrelevant\".   The  first proviso to s. 165,  Evidence\tAct,\nenacting  that, despite the powers of the court to  put\t any\nquestion to a witness, the judgment must be based upon facts\ndeclared by the Act to be relevant, only serves to emphasise\nthe width of the power of the court to question a witness.\nThe second proviso in this section preserves the  privileges\nof  witnesses  to  refuse to answer  certain  questions\t and\nprohibits only questions which would be considered  improper\nunder  Ss.  148\t and  149,  Evidence  Act.   Statements\t  of\nwitnesses made to the police during the investigation do not\nfail  under  any prohibited category mentioned\tin  S.\t165,\nEvidence Act.  If s. 162 Cr.  P. C. was meant to be so\twide\nin its sweep it could make a further inroad upon the  powers\nof  the judge to put questions under s. 165,  Evidence\tAct.\nIf that was the correct position at least s. 162, Cr.  P. C.\nwould  have said so explicitly.\t Section 165,  Evidence\t Act\nwas already on the statute book when s. 162, Cr.  P. C.\t was\nenacted.\nIt is certainly quite arguable that s. 162, Cr.\t P. C.\tdoes\namount to a prohibition against the use even by the court of\nstatements  mentioned there.  Nevertheless, the\t purpose  of\nthe  prohibition  of  s. 162, Cr.  P. C.  being\t to  prevent\nunfair\tuse  by\t the  prosecution  of  statements  made\t  by\nwitnesses to the police during the course of  investigation,\nwhile  the  proviso  is\t intended for  the  benefit  of\t the\ndefence, it could be\n93\nurged  that,  in order to secure the ends  of  justice,\t the\nProhibition,  by taking into account, it 8 purpose  and\t the\nmischief it was designed to prevent as well as its  context,\nmust, be confined in its scope to the use by parties only to\na proceeding of statements mentioned therein.\nThe  language  of  s.162, Cr.  P. C., though  wide,  is\t not\nexplicit or specific enough to extend the prohibition to the\nuse of the wide and special powers of the court to, question\na  witness,  expressly\tand  explicitly\t given\tby  s.\t165,\nEvidence  Act  in order to secure the ends  of\tjustice.   A\nnarrow and restrictive construction put upon the prohibition\nin s. 162 Cr.  P. C. so as to confine the ambit of it to the\nuse  of\t statements  by\t witnesses, by\tparties\t only  to  a\nproceeding  before the court, would reconcile  or  harmonize\nthe  two  provisions. and also serve the  ends\tof  justice.\nTherefore  s.  162, Cr.. P. C. does not impair\tthe  special\npowers of the court under s. 165 Evidence Act. [98A-H]\nIn  the\t instant  case a person who was said to\t be  an\t eye\nwitness\t was  not examined' by the  prosecution.   But\tthis\nwitness\t was considered so important that the  trial  court:\nexamined  him  as  a  court  witness.\tWhile  some  of\t the\nprosecution  witnesses stated that this witness was  present\nat  the\t time and place of occurrence, the  witness  himself\nstated\tto the police that he was not an eye witness to\t the\noccurrence  but\t came there. later.  This witness  ought  to\nhave  been  confronted by the trial court  itself  with\t his\nprevious  statement to the police and that  statement  could\nhave been proved by the investigating officer.\tAfter  that,\na  better appraisal of the other evidence in the case.\tthan\nwas possible now could take place.  The High Court,  without\nconsidering  or discussing the significance of the  presence\nor  absence of this witness at the house at the time of\t the\noccurrence,  had merely observed that he also supported\t the\nprosecution.   If  this witness was not really\tpresent\t the\nevidence of witnesses who were prepared to state that he was\npresent, though not necessarily false about the\t occurrences\nhas to be appraised less uncritically.\nEmperor v. Lal Mian A. I. R. 1943 Cal, 521, approved.\n\n\n\nJUDGMENT:\n<\/pre>\n
CRIMINAL  APPELLATE JURISDICTION Criminal Appeal Nos. 10  &.
\n11 of 1973.\n<\/p>\n
Appeals\t by special leave from the judgment and order  dated
\nthe  28th  October,  1971 of the  Allahabad  High  Court  in
\nCriminal  Appeal,  No. 351 of 1971 and Referred\t No.  31  of
\n1971.\n<\/p>\n
Frank  Anthony,\t E.  C. Agrawala, M. M.\t L.  Srivastava\t and
\nA.T.M. Sampath, for the appellants.\n<\/p>\n
O. P. Rana. for the respondent.\n<\/p>\n
The Judgment of the Court was delivered by
\nBEG.  J.-The appellants Raghunandan, Ganga Sahai, Ghalendra,
\nKhem Singh, and Sohan Singh, in the two Criminal Appeals now
\nbefore us by special leave, were tried by a Civil & Sessions
\nJudge  of  Moradabad for various offences  punishable  under
\nSections  147 148, 302, 307, 323 and 452 read  with  section
\n149  Indian Penal Code.\t Raghunandan was held guilty of\t the
\noffence\t of  murder  by shooting one Sriram with  a  gun  on
\n12-12-1969,  at\t about\t1 P. m.,  while\t the.  deceased\t was
\nsitting in front of his cattle shed in his outer court\tyard
\nand talking to Hari Singh, a neighbour, who was also injured
\nby  gun shots.\tThe appellants Ganga Sahai and\tSohan  Singh
\nwere  held guilty of Offences punishable under\tsection\t 148
\nIndian Penal Code while Khem Singh and Ghalendra were  found
\nguilty punishable under Section 147 Indian Penal Code.\t All
\nthe appellants were held guilty of Offences punishable under
\nSection 307 and 323 read with Section 149 Indian Penal\tCode
\nand Section 452 Indian Penal Code.-\n<\/p>\n
94<\/span><\/p>\n
But,  no separate sentences were passed against any  of\t the
\naccused\t persons  for  these  Offences\tas  Raghunandan\t was
\nsentenced  to death under section 3O2 Indian Penal Code\t and
\nthe   other   four  appellants\twere   sentenced   to\tlife
\nimprisonment under section 302 read with section 149  Indian
\nPenal  Court.  The High Court of Allahabad had accepted\t the
\ndeath  reference,,  and, dismissing the appeals of  all\t the
\n:appellants, had confirmed their sentences.
\nThe  Trial  Court  as well as the High\tCourt  had  recorded
\nconcurrent  findings  of  fact that  the  appellants  formed
\nthemselves  into  an  unlawful assembly armed  with  a\tgun,
\nballams,  and lathis, and shot Sriram and Hari\tSingh,\tand,
\nalso injured Smt.  Brahma, P. W. 2, the wife of Hari  Singh,
\nwho  is said to have covered her husband Hari  Singh  during
\nthe  attack,  and,  Durga  Prasad,  P.W.6,  the\t brother  of
\nmurdered  man.\t The prosecution case is also  supported  by
\nBbai   Singh,  P.W.1,  a  brother  of  Raghunandan,  and  by
\nRameshwar,  P.W. 5, a resident of Village Karimpur, who\t was
\nsaid to be passing by at the time of the occurrence.
\nThe appellants pleaded that they had been falsely implicated
\ndue  to ,enmity.  They produced Gokul, D. W. 1, who  deposed
\nabout an ,occurrence which was alleged to have taken’  place
\nat the house of Hari Singh in the early hours of the morning
\npresumably  of 12th of December, 1969.\tHe stated  that\t the
\ncause of the occurrence was that Rohan, the brother of\tHari
\nSingh,\thad abducted Smt.  Rukia of Naurangabad and  brought
\nher  to village Karimpur where she was living.\tHe  asserted
\nthat her husband and other residents of Naurangabad  forming
\na  party of ten to twelve, had come to take her\t away.\t Its
\nmembers\t were said to have been armed with a  Gun,  Ballams,
\nand  Lathis,  which they were alleged to have  used  against
\nHari  Singh and the deceased Srirams and Durga\tPrasad.\t  He
\ndeposed\t that  Sriram, Hari ‘Singh, and\t Durga\tPrasad\twere
\nfired at.  He stated that the Naurangabad party caught\thold
\nof Smt.\t Brahma and that her husband, Hari Singh, had  tried
\nto  save her.  Gokul alleged that Sriram was struck  by\t gun
\nshots.\t He  suggested that Hari Singh may  also  have\tbeen
\n,similarly  injured.   He stated that Durga Prasad  was\t not
\nhit.\n<\/p>\n
The  Trial  Court,  which had the advantage  of\t seeing\t the
\nwitnesses  depose,  accepted the evidence of  the  four\t eye
\nwitnesses who included two injured persons.  It rejected the
\nstory put forward by Gokul in defence as incredible.   Apart
\nfrom  the  fact\t that the defence version  did\tnot  clearly
\nexplain\t the Ballam injury on Durga Prasad, the\t explanation
\nfor  the gun shot wounds on the chest, stomach, and  forearm
\nof Sriram, which had resulted in his death, suggesting\tthat
\nhe  was the ,principal target of the attack, did  not  quite
\nfit  in with the defence version.  The Trial Court had\talso
\nobserved  that the accused had reserved their defence up  to
\nthe  last stage and had not revealed it ,earlier  either  in
\nthe   Committing   Magistrate’s\t Court\tor   at\t  the\ttime
\nof .;applying for bail.\n<\/p>\n
It is true that what seems to be the principal motive set up
\nby  the ,prosecution helps the defence more than it  assists
\nthe  prosecution case.\tThis was that there was rivalry\t for
\nelection  to  the office of the Pradhan of  the\t Gram  Sabha
\nbetween Sriram deceased and Ganga Sahai,
\n95<\/span>
\nappellant, who was Pradhan of the village at the time of the
\nmurder.\t  According to the prosecution version, Sriram,\t who
\nhad  been a Pradhan of the village for about 8 to 10  years,
\nwas  threatened with dire consequences by Ganga Sahai if  he
\nstood again for the office.  Bhai Singh, P. W. 1, had stated
\nthat, out of fear, Sriram did not stand for election so that
\nGanga  Sahai  won  an uncontested election  and\t became\t the
\nPradhan.   If  that  was so, Ganga Sahai  should  have\tfelt
\nobliged\t to Sriram for not contesting the  election.   There
\nwas no suggestion that another election was near at the time
\nof the occurrence or that Sriram was conspiring to get Ganga
\nSahai unseated.\n<\/p>\n
Other  motives\twere  also set up.  Ganga  Sahai  and  other
\naccused\t persons  were said to have demolished the  mend  of
\nBhai  Singh’s field and taken his land under cultivation  so
\nthat Bhai Singh had complained about it to people of his own
\nvillage and other villages.  It was alleged that the accused
\npersons\t formed one set and used to threaten the  family  of
\nBhai  Singh and Sriram and Durga Prasad who were said to  be
\njoint  in  cultivation and mess.’ It was also  alleged\tthat
\nSriram\thad  gone with a friend of his, named Sahi  Ram,  to
\nPolice\tStation\t Bejoi\tto lodge a report  relating  to\t the
\nbeating\t up  of\t Sahi Ram by  Sohan  Singh  and\t Raghunandan
\nappellants.  Furthermore, Brahma, P. W. 2, had deposed\tthat
\nher husband Hari Singh, who had sustained gun shot  injuries
\nat  the occurrence under consideration but had survived\t was
\nthreatened by the accused persons that, if he gave  evidence
\nagainst\t them, he would be killed.  Hari Singh had  actually
\nbeen  murdered\tabout  7 months\t before\t Smt.\tBrahma\tgave
\nevidence in Court on 11. 1 1.70. The prosecution, therefore,
\nsuggested  that the appellants formed a set-of\tbullies\t and
\nthought that they could do what they liked to the family  of
\nSriram, deceased, and its property.  Enmity, as it has\tbeen
\noften  observed, is a double edged weapon.   We,  therefore,
\nrefrain\t from  saying  more than that  there  should  be  an
\nattempt to determine, in such a case, the direction in which
\nenmities set up were more likely to operate.
\nIf  the\t eye witnesses could be believed it was\t really\t not
\nnecessary   to\tsupport\t the  prosecution  case\t by   giving
\nsatisfactory evidence of the motive to murder.\tThe real and
\nmore important question to decide here was whether the\tfour
\nalleged\t eye  witnesses\t produced,  out\t of  whom  two\twere
\nbrothers  of the deceased Sriram, one a chance witness,\t and
\nthe  fourth,  the  injured wife of a  close  friend  of\t the
\ndeceased, who was also injured, were sufficiently  reliable.
\nThe  alleged eye witnesses no doubt seem to  have  impressed
\nthe  Trial  Court  which had the advantage  of\tseeing\tthem
\ndepose.\t  There are, however, atleast two features  of\tthis
\ncase which could provide serious grounds for suspecting\t the
\nprosecution  version.  We now proceed to examine  these\t two
\nfeatures.\n<\/p>\n
It was repeatedly emphasised by the learned counsel for\t the
\nappellant that the post-mortem examination report  disclosed
\nthat  the small intestine as well as the large intestine  of
\nthe deceased contained faecal matter and were distended with
\ngas  whereas the stomach was found empty.  It was  submitted
\nbefore us that it was quite unnatural
\n96<\/span>
\nas  60\tyears  (found erroneously mentioned  as\t 80  in\t the
\njudgment of the High Court before us), would not eat until 1
\np.m.  during  the day, or, in any case, that  he  would\t not
\ndefecate  until\t that  time during the day  when  there\t was
\nnothing\t in  evidence  to show that he\twas  suffering\tfrom
\nconstipation.\tIt  was contended that the Trial  Court\t had
\nuncritically  and too easily accepted the explanation  given
\nby the prosecution witnesses that the deceased alone had not
\neaten  up  to  1 p.m. as he had a stream  of  visitors\tthat
\nmorning.  It is apparent from the testimony of Durga  Prasad
\nthat  he and his brother-in-law Jailal, C.W. 1, who was\t not
\nproduced  by the prosecution (although examined as  a  Court
\nwitness), was also said to be staying) at the house, and  to
\nhave taken his food with Durga Prasad before 1 p.m.
\nWe  find  that although Dr. J. P. Chaturvedi, P. W.  8,\t who
\nperformed   the\t postmortem  examination,  and\tDr.  D.\t  P.
\nManchanda, who had admitted Hari Singh. into the hospital on
\n13-12-1969  at\t11-40 a.m, were examined at  the  Trial,  no
\nquestion  was  put by either side to elicidate\twhether\t the
\ncontents  of  the small intestine and  the  large  intestine
\ncould  remain in that condition until 1 p.m. during the\t day
\nassuming  that\tSriram was quite  healthy.   The  postmortem
\nexamination  took place at 2-40 p.m. on 13-12-1969, and\t the
\nintestines  were then found distended with gas.\t We  do\t not
\nknow whether this could be their condition at 1 p.m. on\t 12-
\n12-1969\t or its effect.\t It is precisely questions  of\tthis
\nkind  which, even it the prosecution or the defence  counsel
\nomit to put them, the Trial Court could and should have, put
\nto  doctors to clear ,up the position.\tIf the\tTrial  Court
\nhad  failed  to consider their importance,  the\t High  Court
\ncould  have and should have taken further evidence  on\tthis
\nmatter\tunder  Section 540 Criminal Procedure  Code.   In  a
\ncriminal  case, the fate of the proceeding cannot always  be
\nleft  entirely in the hands of the parties.  The  Court\t has
\nalso a duty to see that essential questions are not, so\t far
\nas  reasonably possible, left unanswered.  We are  surprised
\nto  find,  from\t the judgment of the High  Court,  that\t the
\nquestions  mentioned above, arising out of  the\t post-mortem
\nreport, were not, for some reason, even mentioned there.  We
\nfind  it  very difficult to believe that, in a case  with  a
\ndeath  sentence\t a matter of such  significance,  which\t was
\nnoticed by the Trial Court, was not raised at all by Counsel
\nfor  the  appellants. in any event, it ought  to  have\tbeen
\ndealt  with  by\t the High  Court  after\t taking\t appropriate
\nadditional  expert medical evidence under Section  540\tread
\nwith  Section  428  Criminal  Procedure\t Code  if  that\t was
\nconsidered necessary before deciding it.
\nAnother\t question  raised  by the learned  Counsel  for\t the
\nappellant   relates   to  the  testimony  of   Jailal,\t the
\nbrother-in-law of Sriram.  He was said to be an eye witness.
\nBut,  he was neither mentioned in the F. I. R., although  he
\nwas said to be present at the Police Station when the F.  1.
\nR.  was\t lodged\t at  5 p.m., nor  was  he  produced  by\t the
\nprosecution. indeed, Rameshwar, P. W. 5. had stated that  he
\nhad not seen Jailal at all there.  Jailal was considered  so
\nimportant a witness by the Trial Court that he was  examined
\nas a Court witness.  He denied having made any statement  to
\nthe  Police  although it is in evidence that he did  make  a
\nstatement to the Police.  The Trial
\n97<\/span>
\nCourt  had  not permitted the contents\tof  that  statement,
\nwhich indicated that Jailal was not an eye witness but\tcame
\nthere at a time when the Corpse of Sriram was being removed,
\nto  be\tused to contradict his version as a  Court  witness.
\nSmt.  Brahma, P. W. 2, as well as Durga Prasad, P. W. 6, the
\ninjured\t eye  witnesses,  as well as Bhai Singh,  P.  W.  1,
\nstated\t that  Jailal  was  present  at\t the  time  of\t the
\noccurrence.\n<\/p>\n
Learned\t Counsel for the appellant submitted  that  Jailal’s
\nstatement  before the Police suggested that he had  come  in
\nthe  morning, long before 1 p.m., and had found that  Sriram
\nhad already been murdered.  This, it is urged indicates that
\nSriram must have been murdered either by Naurangabad  people
\nor  by\tunknown persons during the night.  We  do  not\tfind
\nmaterial  on  record to support the suggestion\tthat  Jailal
\nmust  have reached the house in the morning at a  time\twhen
\nSriram’s murder had been already committed.  The Trial Court
\nhad discussed the evidence of Jailal at some length and\t had
\nopined\tthat his name was not mentioned in the F.I.R. as  be
\nwas  related to the accused persons also.  That may  be\t the
\nreason\twhy Jailal was distrusted.  If, however,  Rameshwar,
\nP.W.5.\ta chance witness, who claimed to be present, at\t the
\ntime of the alleged occurrence and to have seen it, is to be
\nbelieved,  Jailal was not to be seen at all at that time  at
\nthe  house.  If Jailal was really not present, the  evidence
\nof  witnesses who were prepared to state, for  some  oblique
\nreason,\t that he was present, though not  necessarily  false
\nabout  the  whole occurrence, has to be appraised  less\t un-
\ncritically.    The  High  Court,  without   considering\t  or
\ndiscussing  the significance of the presence or\t absence  of
\nJailal\tat  the\t house at the time of  the  occurrence,\t had
\nmerely\tobserved  that Jailal, C.W. 1,\talso  supported\t the
\nprosecution version.\n<\/p>\n
Learned\t counsel  for  the’  appellant\tsubmitted  that\t the
\ntestimony of Jailal could not have been accepted by the High
\nCourt  because\tJailal\thad not\t been  confronted  with\t his
\nprevious  statement  before the police.\t He  urged,  relying
\nupon Emperor v. Lal Mian (1), that, even if the statement of
\na witness, recorded by the Police during the  investigation,
\ncannot\tbe  used  for  “any purpose”  other  than  the\tones
\nmentioned  in Section 162 Criminal Procedure Code, yet\tthis
\nprohobition  applies only to the parties to the\t proceedings
\nand does not operate against the powers of the Court  itself
\nwhen  it  considers  the  testimony  of\t a  witness  to\t  be
\nnecessary.   Although, the Trial Court\tconsidered  Jailal’s
\nevidence  important enough to examine him under Section\t 540
\nCriminal Procedure Code, yet it disabled itself from testing
\nits worth by putting an alleged contradiction to the witness
\non a matter of some importance, in the case.
\nIt  is urged by learned counsel for the appellants that\t the
\npowers\tof the Court to question a witness are regulated  by
\nthe  special provisions of Section 165 of the  Evidence\t Act
\nexclusively,  so that a previous statement of  the  witness,
\nwho  is called as a Court witness, can be used by the  Court
\nto  contradict him even if it was made to the police  during
\nthe investigation.  This, it is submitted, is the effect  of
\nthe  special powers of the Court under Section 165  Evidence
\nAct.\n<\/p>\n
(1) A.I.R. 1943 Cal. 521.\n<\/p>\n
98<\/span><\/p>\n
It  is\ttrue that the ban, imposed by section  162  Criminal
\nProcedure Code, against the use of a statement of a  Witness
\nrecorded   by  the  Police  during  investigation,   appears
\nsweeping  and wide.  But, at the same time, we and that\t the
\npowers of the Court, under section 165 of the Evidence\tAct,
\nto  put any question to a witness, are also couched in\tvery
\nwide terms authorising the Judge “in order to discover or to
\nobtain proper proof of relevant facts” to “ask any  question
\nhe pleases, in any form, at any time, of any witness, or  of
\nthe  parties, about any fact relevant or  irrelevant”.\t The
\nfirst  proviso to section 165 Evidence Act,  enacting  that,
\ndespite\t the  powers of the Court to put any question  to  a
\nwitness,  the judgment must be based upon facts declared  by
\nthe  Act to be relevant, only serves to emphasize the  width
\nof the power of the Court to Question a witness.  The second
\nproviso\t  is  this  section  preserves\tthe  privileges\t  of
\nwitnesses   to\trefuse\tto  answer  certain  questions\t and
\nprohibits only questions which would be considered  improper
\nunder  section 148 and 149 of the Evidence Act.\t  Statements
\nof witnesses made to the police during the investigation  do
\nnot fall under any prohibited category mentioned in  Section
\n165  Evidence Act.  If Section 162 Criminal  Procedure\tCode
\nwas  meant  to be so wide in its sweep as  the\tTrial  Court
\nthought\t it to be, it would make a further inroad  upon\t the
\npowers\tof  the\t Judge to put Questions\t under\tSection\t 165
\nEvidence  Act.\t If that was the correct  position,  atleast
\nSection\t 162  Criminal\tProcedure Code would  have  said  so
\nexplicitly.   Section  165 of the Evidence Act\twas  already
\nthere when section 162 Criminal Procedure Code was enacted.
\nIt  is\tcertainly quite arguable that Section  162  Criminal
\nProcedure Code doer, amount to a prohibition against the use
\neven   by   the\t Court\tof   statements\t  mentioned   there.
\nNevertheless, the purpose of the prohibition of Section\t 162
\nCriminal  Procedure Code being to prevent unfair use by\t the
\nprosecution  of statements made by witnesses to\t the  Police
\nduring\tthe  course of investigation, while the\t proviso  is
\nintended  for the benefit of the defence, it could  also  be
\nurged  that, in order to secure the ends of  Justice,  which
\nall procedural law is meant to subserve, the prohibition, by
\ntaking\tinto  account its purpose and the  mischief  it\t was
\ndesigned to prevent as well as its context, must be confined
\nin  its scope to the use by parties only to a proceeding  of
\nstatements mentioned there.\n<\/p>\n
We are inclined to accept the argument of the appellant that
\nthe language of Section 162 Criminal Procedure Code,  though
\nwide,  is  not\texplicit or specific enough  to\t extend\t the
\nprohibit on to the use of the wide and special powers of the
\nCourt to question a witness, expressly and explicitly  given
\nby Section 165 of the Indian Evidence Act in order to secure
\nthe ends of justice.  We think that a narrow and restrictive
\nconstruction  put  upon\t the  prohibition  in  Sect  on\t 162
\nCriminal Procedure Code, so as to confine the ambit of it to
\nthe  use  of statements by witnesses by parties\t only  to  a
\nproceeding  before the Court, would reconcile  or  harmonize
\nthe two provisions considered by us and also serve the\tends
\nof  justice.  Therefore, we hold that Section  162  Criminal
\nProcedure  Code\t does not impair the special powers  of\t the
\nCourt under Section 165 Indian Evidence Act.   Consequently,
\nwe think that the Trial Court could and should have itself
\n99<\/span>
\nmade  use of the statement made by Jailal during the  course
\nof the investigation.  If that had been done, it is possible
\nthat  it  may have affected appraisal of evidence  of  other
\nprosecution witnesses.\n<\/p>\n
We also find that the Trial Court as well as the High  Court
\nhad  brushed  aside the objection that the  blood  recovered
\nfrom  the  place  of occurrence was not\t sent  for  chemical
\nexamination.  We think that a failure of the police to\tsend
\nthe  blood  for chemical examination in a  serious  case  of
\nmurder, such as the one before us, is to be deprecated.\t  In
\nsuch  cases, the place of occurrence is often disputed.\t  In
\nthe  instant case, it was actually disputed.  However,\tsuch
\nan   omission  need  not  jeopardise  the  success  of\t the
\nprosecution  case where there is other reliable evidence  to
\nfix the scene of occurrence.\n<\/p>\n
The High Court had dealt with the contention that there\t was
\nsome  conflict\tbetween medical evidence  and  the  evidence
\nabout  the distances from which shootings are said  to\thave
\ntaken  place.\tIt  held  that,\t if  correctly\tinterpreted,
\nmedical evidence corroborated the accounts of eye witnesses.
\nBut,  the  High Court had not similarly discussed  or  dealt
\nwith the  infirmities  in  the\tstatements  of\t prosecution
\nwitnesses, which were  placed before us, such as the  denial
\nby Smt.\t Brahma, P. W. 2 that she went to the police station
\nto  lodge a report in respect of the murder of\tHari  Singh.
\nIt  was\t urged\ton  behalf  of\tthe  appellants\t that\tthis
\ndeliberately  mendacious denial by her was made\t to  conceal
\nthe  fact  that her report was untrue.\t Matters  which\t may
\nshake  the  credibility\t of a witness  must  be\t taken\tinto
\naccount although they may not be enough to discard the whole
\nstatement of a witness.\n<\/p>\n
We have indicated a number of points on which, in a case  of
\na  death  sentence, one would have expected a closer  and  a
\nmore  critical scrutiny and a fuller discussion by the\tHigh
\nCourt  of  the\tevidence in the case  and  of  the  material
\nquestions  arising for decision before it together with\t its
\ndecisions on these supported by more than what could  appear
\nas perfunctory reasoning. We have also indicated the  rather
\nimportant question which was, surprisingly, not discussed at
\nall  by\t the  High Court, emerging from\t a  reading  of\t the
\npostmortem ,report considered in the context of the  alleged
\ntime  of  the murder.  We think that the High  Court  itself
\ncould and should have taken further expert medical evidence,
\nunder Sections 540 and 428 Criminal Procedure Code, on\tthis
\nquestion.  For the reasons already given, we also think that
\nJailal, C. W. 1, ought to have been confronted by the  Court
\nitself\twith  his previous statement before the\t police\t and
\nthat statement could be proved by the Investigating officer.
\nAfter that, a better appraisal of other evidence in the case
\nthan  is possible now, on the present state of\tthe  record,
\ncould take place.\n<\/p>\n
We have anxiously considered the question Whether this is  a
\ncase  in  which we should consider the merits of  the  whole
\ncase ourselves on the evidence on record or send it back for
\nfurther\t consideration and decision in accordance  with\t the
\nlaw, as laid down above, either by the High Court or by\t the
\nTrial  Court.\tWe do not think that in a  serious  case  of
\nmurder\tsuch as the one before us, persons who were, if\t the
\nprosecution  case is true, acting as  utterly  irresponsible
\nand callous bullies, should be judged on the evidence as  it
\nstands
\n100<\/span>
\nwithout\t the additional evidence mentioned above by us.\t  We
\nmust  emphasise\t that,\twhatever may be the  nature  of\t the
\noffence\t or  the  actions of the  accused,  as\trevealed  by
\nevidence, the accused, are entitled to a fair trial which  a
\nwell  considered judgment, dealing satisfactorily  with\t the
\nmaterial  points  in the case, evidences.  For\tthe  reasons
\ngiven  above.  we think that several material  points.\thave
\nescaped consideration by the High Court.\n<\/p>\n
Consequently, we allow this appeal to the extent that we set
\naside  the  judgment and orders of the High Court  and\tsent
\nback  the  case to it for reconsideration  and\tdecision  in
\naccordance  with law as explained by us.  No  opinion  which
\nmay  have been expressed unwittingly by us on  questions  of
\nfact   would  bind  the\t Court\tor  affect   an\t  unfettered
\nconsideration  of the merits of the respective cases of\t the
\ntwo  sides by the High Court in accordance with the  law  as
\nlaid down by us.\n<\/p>\n
appeal\t    partly allowed.\nP. B. R.\n101<\/span>\n\n\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Raghunandan vs State Of U.P on 10 January, 1974 Equivalent citations: 1974 AIR 463, 1974 SCR (3) 92 Author: M H Beg Bench: Beg, M. Hameedullah 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-101670","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nRaghunandan vs State Of U.P on 10 January, 1974 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/raghunandan-vs-state-of-u-p-on-10-january-1974\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Raghunandan vs State Of U.P on 10 January, 1974 - 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