Patna High Court
Manzurul Haque And Ors. vs State Of Bihar on 10 January, 1958
Equivalent citations: AIR1958PAT422, 1958CRILJ931, AIR 1958 PATNA 422, ILR 37 PAT 274
JUDGMENT H.K. Chaudhuri, J.
1. The learned Sessions Judge of Purnea has convicted the five appellants under Section 395 of the Indian Penal Code and sentenced them to rigorous imprisonment for 10 years each. Two other persons, Guddar and Lal Mohammad, who were tried along with the appellants were acquitted.
2. The occunence took place on the night between the 13th and 14th November, 1955 in the house of Baijnath Missir (P. W. 1) at village Sonaila within police station Katihar. Baijnath Missir (P. W. 1) and his brother Sheoshankar Missir (P. W. 3) appear to have migrated to this village from East Pakistan some years ago The house of Sheoshankar is adjacent to south of the house of Baijnath, his elder brother. At about 2 A. M. on the night in question Baijnath woke up and found that the house of his brother had been raided by a gang of dacoits. He along with his servant Madhuban Missir rushed to the baithak of Sheoshankar. The dacoits, however, started throwing brickbats at them, as a result of which Madhuban was injured. Both of them returned from the place and Baijnath asked Mudhnban to run to the village and inform the villagers about the occurrence. He then set fire to a heap of straw and began to shout alarm. Achaibar Nath Missir (P. VV. 2), a servant of Sheoshankar, was severely assaulted by the dacoits in the latter's baithak. The dacoits then proceeded to the house of Baijnath. Baijnath concealed himself nearby and noticed about 20 or 25 dacoits at his darwaza. Eight or ten of them remained at the entrance door and the rest went inside the house. Soon after the villagers including Tulsi Mochi (P. W. 5), Kalicharan (P. VV. 4) and others came rushing. The dacoits began to throw brickbats at them. The villagers in their turn pelted the dacoits with stones. The dacoits then decamped with a large boaty consisting of clothes, ornaments and other articles. Baijuath, according to the prosecution, asserted before the villagers the same night that he had recognized the five appellants among the dacoits.
3. Early next morning Baijnath sent Achaibar Nath Missir (P. W. 2) and Surendra Nath Missir (P. W. 7), son of Sheoshankar Missir, who also had been injured, to the thana which was at a distance of 10 miles from the scene of occurrence. He also proceeded to the thana immediately after and reached there at 12 noon. Sub-Inspector Ragliubir Singh (P. W. 10) recorded his statement and drew up the first information report (exhibit 1/1). Of the two injured persons Surendra Nath Missir (P. W. 7) was examined by the Sub-Inspector. Achaibar Nath Missir (P. W. 2) could not be examined as he was unable to speak at the time. Both these injured men were sent to Katihar hospital for examination and treatment. The Sub-Inspector left the police station for the spot at about 2 P. M. on the same day. On the way he found Manzurul Haque, one of the five appellants named in the first information report, in a field and arrested him. He found some injuries on his person and prepared an injury report in respect thereof (exhibit 3. On reaching the spot at 4-30 P. M. the Sub-Inspector made an inspection of the scene of occurrence and noticed the ravages done by the dacoits. He found a heap of ashes with pual still burning near zenana house of Baijnath. After examining some witnesses on the spot the Sub-Inspector proceeded to mauza Jhawa, which was at a distance of half a mile from the place of occurrence. Appellant Saiful Haque who is a resident of village Jhawa and appellants Abdul Karim and Jan Mohammad, residents of another contiguous village named Sahja, were arrested. The Sub-Inspector noticed injuries on the person of appellants Saiful and Jan Mohammad (vide injury reports, exhibits 3/1 and 3/2). Appellant Makbul, who also is a resident of village Jhawa, was found absent from his house. He later on surrendered in Court.
4. The defence was a plea of innocence. According to the accused persons they were falsely implicated as there was a serious land dispute between them and the members of the prosecution party. The case was that the accused persons had migrated to Pakistan after exchanging their lands with Baijnath Missir and his relations. Later on, it was alleged, the accused persons returned from Pakistan and began to take steps to get back those lands. An Inspector of evacuee properties was also said to have visited the village to find out the necessary particulars regarding the lands exchanged. The defence alleged that as this caused an apprehension in the mind of Baijnath Missir that the accused persons would succeed in getting back their lands he took advantage of the occurrence of dacoity in his house in order to implicate them falsely in this case.
5. Mr. Safdar Imam appearing for the appellants has not challenged the factum of dacoity. The commission of the offence has been deposed to by the inmates of the house, viz., Baijnath Missir (P. W. 1), Achaibar Nath Missir (P. W. 2), Sheoshankar Missir (P. W. 3), Singhasan (P. W. 6), Snrendra Nath Missir (P. W. 7) and Bishundeo Chauby (P. W. 18) and two of the villagers Kalicharan P. W. 4) and Tulsi. Mochi (P. W. 5). Some of the inmates and a number of villagers had received assaults at the hands of the dacoits. The injuries on two of the inmates Achaibar Nath Missir and Surendra Nath Missir were serious. Their injuries were examined by Dr. K. Sinha on 14-11-55. Two of the injuries on Achaibar Nath Missir were grievous in nature. According to the doctor the injuries had been inflicted within 24 hours from the time of examination. The Sub-Inspector who visited the house of the victim Oil 14-11-55 found in it a state of disorder. He noticed a heap of ashes with straw still burning at a distance of 20 yards from the zenana house of Baijnath Missir, Remnants of the mashals used by the dacoits were also recovered on the spot. There were brickbats lying here and there. I am satisfied from all this evidence that a dacoity was committed in the house of Baijnath Missir on the night in question. The substantial question for decision is whether the appellants had taken part in it.
6. The witnesses who claimed to have identified the five appellants or some of them are Baijnath Missir (P. W. 1), Achaibar Nath Missir (P. W. 2). Sheoshankar Missir (P. W. 3), Kalicharan (P. W. 4), Tulsi Mochi (P. W. 5), Surendra Nath MLssir (P. W. 7) and Bishundeo Chaubey (P. W. 8). Of these witnesses, Baijnath Missir, Achaibar Nath Missir and Surendra Nath Missir (P. Ws. 1, 2 & 7) have claimed to have identified all the appellants. Sheoshankar (P, W. 3) identified all of them except appellant Manzurul Haque. Kalicharan (P. W. 4) identified three of the appellants, viz., Saiful Haque, Abdul Karim and Makbul. Tulsi Mochi (P. W. 5) identified appellant Makbul only. The last witness Bishundeo (P. W, 8) identified all the appellants xcept appellant Saiful Haque. So far as these witnesses are concerned, most of them were examined on 14-11-1955. Bishundeo (P. W. 8) was examined on 15-11-1955. Achaibar Nath Missir (P. W. 2) only was examined at a very late stage, viz., on 19-11-1955. It appears that this witness was detained in the hospital f 01 several days on account of the serious injuries that he had received. According to the prosecution it was on account of the detention of the witness in the hospital that he could not be examined by the investigating officer in time. The explanation, however, is not satisfactory. It is true that the witness was unable to speak when he was carried to the police station on 14-11-1955. From his evidence it appears that he regained consciousness in the hospital on the following day. There is no reason why the Sub-Inspector should not have been able to record his statement immediately thereafter. In view of the delay in recording his statement I would consider it unsafe to rely upon his testimony so far as the question of identification is concerned.
7. Having regard to the injuries sustained by some of the inmates and the villagers it is quite obvious that they had come in close contact with the dacoits. There is also abundant evidence to show that the scene of occurrence was sufficiently illumined by the conflagration caused by a huge straw heap being set fire to by Baijnath Missir. The fire thus caused was still burning when the Sub-Inspector reached the village in course of his investigation. There is also evidence to show that the dacoits had used burning mashals. I have, therefore, no doubt that the inmates of the house as well as the villagers who had arrived at the scene of occurrence had opportunity to observe the features of some of the dacoits while the dacoity was proceeding.
8. Mr. Safdar Imam appearing for the appellants has argued that no reliance should be placed upon the evidence of the identifying witnesses as none of them could be said to be independent. It is pointed out that Baijnath Missir and Sheoshankar Missir (P. Ws. 1 and 3) are brothers while Surendra Nath Missir (P. W. 7) is the son of Baijnath. Achuibar and Bishundeo (P. Ws. 2 and 8) are admittedly servants of Sheoshankar. It has further been elicited in evidence that Kalicharan and Tulsi Mochi have built houses in the village on lands taken settlement of from these Missirs. The fact that some of the witnesses are close relations or that some of them are connected with the Missirs is, however, no ground for discarding their evidence. Most of these witnesses were victims of the dacoity and had actually received assaults at the hands of the miscreants. They are, therefore, the most natural witnesses to speak on the question ot identification. I am not therefore prepared to hold that the evidence of the identifying witnesses is fit to be rejected on the ground urged by learned counsel.
9. It was also submitted that there were some other persons who had slept in the houses of the two victims and there were also some other villagers who had received injuries at the hands of the dacoits. Learned counsel contended that an adverse inference should be drawn against the prosecution for its failure to examine all these witnesses. I am not impressed with this contention. It is obvious that these witnesses were not produced at the trial because they had not identified any of the miscreants. It was unnecessary for the prosecution to produce them in Court only to prove the commission of the dacoity which was never seriously challenged.
10. It was next submitted that the prosecution witnesses had not disclosed at night the names of the dacoits whom they had identified. The evidence on record, however, does not support this contention. Baijnath Missir (P. W. 1) stated that he had told the witnesses the names of the 5 dacoits identified by him. Sheoshankar (P. W. 3) has supported him on this point. He also stated that the other witnesses who had identified those dacoits also disclosed their names. As regards himself the witnesses who had identified those dacoits also disclosed their names. As regards himself the witness has stated that he disclosed the names of the ducoits identified by him to his brother when he was proceeding to the police station. Kalicharan (P. W. 4) stated that he had named the dacoits identified by him before Tulsi Mochi (P. W. 5). He is supported on this point by Tulsi Mochi. Tulsi Mochi has deposed that he had disclosed the names of the dacoits identified by him before Kalicharan and Baijnath Missir. Sureodranath and Bishundeo (P. Ws. 7 and 8) also claimed to have disclosed the names of the dacoits identified by them in the presence of Baijnath Missir and Sheo-shankar Missir. In the first information report it was stated that Sheoshankar Missir and Surendranath Missir had also disclosed the names of the appellants as having been identified by them. This statement, however, is slightly inaccurate so far as Sheoshankar Missir is concerned for he had not identified appellant Manzurul Haque. This discrepancy is however of little consequence. It was also mentioned in the first information report that Tulsi Mochi (P. W. 5) had identified Makbul. So far as the identification made by the other villagers was concerned the statement was that the informant had not asked the villagers who came up on hulla whether they had identified any of the dacoits or not.
11. Mr, Safdar Imam has criticised the evidence of Baijnath Missir on the ground that he stated in his evidence in Court that though Sheoshankar and Surendranath Missir claimed to have identified some of the dacoits they did not name them. He also stated that he had not met Tulsi Mochi as he was busy after the dacoity. In the first information report, however, Baijnath Missir had stated that all these witnesses had disclosed the names of the dacoits before him at night. It appears that at the trial Sheoshankar claimed to have identified three more dacoits, of whom two were put on trial. Similarly, Tulsi Mochi also claimed to have identified one more dacoit besides Makbul. Since these additional names do not find mention in the first information report Baijnath Missir appears to have made an attempt to conceal at the trial that Sheoshankar, Surendranath Missir and Tulsi Mochi had given out the names of the dacoits identified by them at night. I am not, therefore, prepared to attach any importance to this part of the statement of Baijnath at the trial. Comment was made on the evidence of Sheoshankar (P. W. 3) on the ground that he had not disclosed the names of the dacoits before the villagers. The witness, however, has explained that he personally had no talk with the villagers as he was busy in looking after his son and Achaibarnath Missir, who had been injured. He has, however, asserted that he had disclosed the names to his brother before the latter went out to thana. It was further pointed out that Surendranath Missir had claimed at the trial that he had identified 7 dacoits although he actually named five before his uncle. The 5 names actually given out by him that night were those of the present appellants. His subsequent claim that he had identified two more dacoits may not have been true, but that does not affect his testimony in regard to the present appellants.
12. The circumstance that three of the appellants, viz., Manzurul Haque, Saiful Haque and Jan Mohammad, had injuries on their persons at the time of their arrest was also relied upon by the prosecution as evidence pointing to their guilt. The Sub-Inspector found a swelling on the left palm and the left side of the face of appellant Manzurul Haque, a scratch on the back and a swelling on the left foot of appellant Saiful and swelling on both the feet of appellant Mohommad Jan. The injury reports prepared by him in respect of these injuries are Exs. 3, 3/1 and 3/2. The prosecution case is that very probably these injuries on the persons of the appellants were caused when they came in clash with the villagers. Mr. Safdar Imam has criticised this evidence on the ground that there is no medical evidence to show that these persons really had injuries on their persons at the time of their arrest. The Sub-Inspector stated that he had sent the accused persons to the Sub-divisional Magistrate along with the injury reports. The order-sheet of the Sub-divisional Magistrate, however, makes no mention of these injuries. The Sub-Inspector has admitted that accused persons who are found injured are generally examined by the jail doctor and that the report of such examination is sent to the investigating officer. No such report was received by the witness in this case. He added that he did not receive any such report although he had! sent a reminder to the jail doctor through the Sub-divisional Magistrate. In view of what the Sub-Inspector has stated and in the absence of any medical report by an expert I would consider it unsafe to hold that the accused persons had injuries on their persons at the time of their arrest.
13. Mr. Safdar Imam next argued that the facts disclosed in this case indicate that very probably the Missirs had falsely implicated the appellants as the latter were trying to get back their lands from them on their return from Pakistan. It appears that Baijnath Missir and Sheoshankar Missir had acquired considerable properties in the district of Rajshahi When there was a partition of the country and Kajshahi became a part of East Pakistan the two brothers and their agnates migrated to village Sonaila and settled there. There were 50 or 60 families of Mohammadans in Sonaila at that time. The new comers exchanged their properties in Rajshahi with the lands and houses of the Mohammadans of Sonaila, most of whom migrated to Pakistan. Those who remained shifted to neighbouring areas within a distance of about a mile from Sonaila. Some of the migrants including most of the accused persons later returned from Pakistan and settled in those areas. It was suggested to Baijnath Missir that the appellants have since their return been trying to get back their lands and that this has caused friction between them and the Missirs. It was also urged that an Inspector of evacuee properties actually visited the village at the instance of the appellants. Baijnath Missir admitted that he has filed some documents in a case started against him in connection with evacuee properties. There is, however, nothing to indicate that this case was instituted at the instance of the appellants or that the Inspector visited the village in connection with any petition filed by the appellants. Baijnath Missir has totally denied that the appellants who had executed regular sale deeds in his favour in respect of their lands ever demanded the return of those lands. He stated that he had only heard about some petitions filed by the accused persons. He did not, however, file any rejoinder to the alleged petitions or make any pairvi in connection with any such, matter. It was suggested to him that the accused persons were cultivating his lands on batai. This suggestion was denied by the witness. He also denied that the accused had ever offered to cultivate his lands on batai. The learned Sessions Judge seemed to be of the view that the accused persons entertained a grievance against the Missirs and their gotias, and that it was highly probable that they had committed the dacoity on account of that grudge. I am inclined to agree with this view. It was not suggested that the Missirs had not acquired a good title to the lands which they had acquired from the accused persons. As it was not possible for these persons to get back their Sands by lawful means it is very likely that they committed the dacoity in order to terrorise the Missirs into leaving this village.
14. Learned counsel finally relied upon the statement of Jagdish Jadav (P. W. 9), who stated that it was Lal Mohamad, one of the accused persons on trial, who had carried the injured persons to the hospital in his cart. He also stated that appellants Abdul Karim, Makbul and Jan Mohammad had come to the village when the villagers assembled at the place of dacoity after the escape of the dacoits. This witness had been tendered for cross-examination and made the statements aforesaid in answer to questions put by the defence lawyer. It appears that after the witness made those statements in favour of the accused persons the learned Public Prosecutor asked for leave to cross-examine him. The leave asked for was granted. The learned Public Prosecutor in cross-examination elicited some facts in order to discredit the witness. Mr. Safdar Imam has argued that the learned Sessions Judge committed a grave irregularity in permitting the witness to be cross-examined by the prosecution after he had been cross-examined by the defence. In support of this contention he has relied upon Ramjag Ahir v. Emperor, A]R 1928 Pat 203 (A). In that case a witness was attacked by the prosecution as hostile. He was not called by the prosecution, but the learned Assistant Sessions Judge noted on his deposition that he was "tendered as gained over". He was cross-examined by the defence and also by the prosecution. Ross, J. relying upon Section 154 of the Evidence Act observed that the procedure adopted was altogether wrong. The observations of the learned Judge may be quoted :
"Under Section 154, Evidence Act:
'The Court may in its discretion, permit the person who calls a witness to put any questions to him which might be put in cross-examination by the adverse party.' But the witness must be called. Here the witness was not called by the prosecution. There was nothing to show that his evidence would have differed from his proof and there was no ground upon which he could be treated as an adverse witness or cross-examined by the prosecution".
Now there is no doubt that the prosecution has no right to cross-examine a witness whom it has not called. The question, however, whether the defence itself is entitled to cross-examine a witness who has not been called was not considered by his Lordship. It is only when a witness has been called by a party that the other party as soon as the examination-in-chief is closed has a right to cross-examine him. The following passage from Taylor on Evidence (12 edition at page 910) may be quoted :
"Such being the importance which is properly attached to the right of cross-examination, it is not surprising that questions should occasionally arise whether the witness has been so called by the one party as to entitle the other party to exercise this right. It is clear that, if the witness be called under a subpoena duces tecum, merely to produce a document, which either requires no proof, or is to be identified by another witness, he need not be sworn, and if unsworn, he cannot he cross-examined. If a witness be sworn under a mistake, whether on the part of counsel or of the officer of the Court, and that mistake be discovered before the examination-in-chief has substantially begun, no cross-examination will be allowed. Neither has the adverse party any right to cross-examine a witness, whose examination-in-chief has been stopped by the Judge, after his having answered a merely immaterial question, On the other hand, it is by no means necessary that the witness should have been actually examined in chief, for, if he has been intentionally called and sworn, and is moreover a competent witness, the opposite party has, in strictness, a right to cross-examine him though the party calling him has declined to ask a single question".
That test, therefore, in order to determine whether a witness has been called by the prosecution is whether he has been Summoned and sworn and further whether he is a competent witness. In point of fact Ross, J. proceeded on the assumption that the witness had not been called by the prosecution. If that was so it is difficult to see how in that case the defence could claim the right of cross-examining him. The witness who was manifestly a competent witness having been, "tendered" and put into the witness-box by the prosecution and oath having been administered to him it is the prosecution which should technically be deemed to have called him although it did not put a single question to him. If the prosecution knew that the witness was not going to speak the truth the proper procedure would have been to keep him in attendance leaving it to the accused to call him and if he was so called by the defence the prosecution would have been entitled to cross-examine him. The question as to whether in such a case the prosecution counsel is entitled to cross-examine the witness was considered by the Bombay High Court in the Full Bench case ot Emperor v. Kasamalli, AIR 1942 Bom 71 (B), and it was held that such a right did exist. Beaumont, C. J., who delivered the judgment of the court, observed as follows :
"It has been said over again that it is not the function of the Crown to procure the conviction of an innocent person. That is obvious. But the Crown is not bound to call before the court a witness who, it believes, is not going to speak the truth. If the Crown informs the accused of the name of the witness and produces him in Court, it can then leave it to the accused to call him or not, as he thinks fit. If the witness is called, the Crown can cross-examine him."
The reason why the Crown has a right to cross-examine the witness in such a case has been explain-ed thus :
"We have his examination by the accused, which is called cross-examination, but is in fact examination-in-chief, and we have no cross-examination by the Crown, because he was supposed to be a prosecution witness. It is very difficult, therefore, to determine whether the witness was a credible person or not. We ought to have had examination-in-chief and cross examination. The practice of tendering witnesses for cross-examination leads to confusion and does not induce to the discovery of the truth."
The position in the present case therefore is that Jagdish Jadhav (P. W. 9), who was "tendered" and to whom oath was administered as a prosecution witness must be deemed to have been called by the prosecution. The learned Judge cannot therefore be said to have acted illegally in allowing him to be cross-examined by the prosecution. If, on the other hand, the witness is deemed to have been called by the defence then, strictly speaking, his examination by the accused was, as pointed out in the Full Bench case, in tact examination-in-chief and not cross-examination and the prosecution was entitled to cross-examine him. This would be in consonance with Section 138 of the Evidence Act, which provides that witnesses shall be first examined-in-chief, then (if the adverse party so desires) cross-examined, then (if the party calling him so desires) re-examined. In either view the contention raised by Mr. Safdar Imam must fail.
15. This case and the Patna case relied upon by Mr. Safdar Imam show that considerable confusion is created as a result of witnesses being ''tendered" mechanically. Such a practice has been repeatedly deprecated. There are ordinarily two classes of witnesses who are tendered (1) witnesses whom the prosecution does not want to examine with a view to save time because there is already sufficient evidence on a particular point and the witnesses tendered would merely repeat that evidence and (2) witnesses who, according to the prosecution, gave false evidence in the Court below and it did not, therefore, want to examine them in the Sessions Court. In Sadeppa Gireppa v. Emperor, AIR 1942 Bom 37 (C), also their Lordships of the Bombay High Court observed that the practice of tendering for cross-examination should only be adopted in cases of witnesses of secondary importance. Even in such a case, it was pointed out, the witness ought to be asked by the prosecution with the consent of the pleader for the accused, and the leave of the Judge, whether his evidence in the lower Court was true, and that if he gave a general answer as to the truth of his evidence in the lower Court, he could be cross-examined on that. Their Lordships emphasised that the witness must in some way be examined-in-chief before he could be cross-examined. They further observed that in any case the practice of tendering a witness for cross-examination certainly should not be employed in the case of an important eye-witness. This case followed the earlier Madras case Veera Koravan v. Emperor, A I R 1929 Mad 906 (D). In that case it was held that in cases where any witness known to the prosecution is able to swear to facts very material to the case, the proper procedure to follow is to ask him to give evidence on oath as to the several facts known to him, which are relevant to the case, though other witnesses might have spoken to the same facts. Merely "tendering him for cross-examination," their Lordships observed, was not a practice which should be encouraged as it was very unfair to the accused. In regard to a witness who was examined by the prosecution before the committing Magistrate if the prasecution was of opinion that no reliance could be placed upon such witness's testimony the Allahabad High Court held in Queen-Empress v. Stanton, ILR 14 All 521 (E), that all that the prosecution was 'bound to do was to have the witnesses who were examined before the committing Magistrate present at the trial so as to give the Court or counsel for the defence, as the case may be an opportunity of examining him.
16. The following rules may therefore be deduced from the authorities discussed :
(1) The practice of tendering witnesses leads to 'considerable confusion and is to be deprecated.
(2) A material witness should not be merely Jtendered but should be sworn and asked to give evidence by the prosecution. Tendering if at all should be confined to witnesses of secondary importance.
(3) Even in a case where the prosecution has already got sufficient evidence on a particular point and does not want to waste time by examining a a witness although material, who was exmined in the lower Court on the same point, put at same time does not want to deprive the defence of the right of cross-examination, it should ask the witness at least whether his evidence in the lower Court was true, and if he gave a general answer as to the truth of his evidence in the lower Court he could be cross-examined on that.
(4) It is not the duty of the prosecution or of the Court to examine any witness merely because he was examined as a prosecution witness before the committing Magistrate if the prosecution is of: opinion that the witness was not likely to speak the truth. All that the prosecution need do in such a case is to see that the witness was present in Court so as to give the Court or counsel for the defence, as the case may be, an opportunity of examining him.
17. The facts elicited by the learned Public Prosecutor from Jagdish Jadhav (P. W. 9) show that he has a grudge against Baijnath Missir. He admitted that after the dacoity when he came to resume his duties at the house of Baijnath Missir he was turned out and another man was appointed in his place. The witness admittedly entertains a grievance as he was dismissed in spite of the fact that he had received injuries at the place of his master. Even if the evidence of the witness in answer to questions put by the learned Public Prosecutor is excluded from consideration there is material on the record to show that he is not a truthful witness. Pointing out to accused Lal Mohammad in the dock the defence lawyer asked the witness as to whether he recognised him. The witness stated that he did not. He was then asked a leading question as to whether he knew that this Lal Mohammad had taken the injured on a bhaisa gari to hospital. In answer to that he stated that he had been injured by bhala and taken to the hospital on a bhaisa gari but could not say who took the injured persons to the hospital on that gari. Later on, however, Lal Mohammad on being again produced before him he stated that he was the man who had driven the bhaisa gari carrying them to the hospital. In view of this inconsistency in his statement it is difficult to rely upon his testimony that accused Lal Mohammad hid carried the injured men to the hospital or that some of the appellants had come to the scene of occurrence after the departure of the dacoits. Ever, if some of these appellants had in fact come to Baijnath Missir's house that circumstance by itself does not prove that they could not have taken part in the occurrence. As I have already said their houses lie within a distance of about three-fourth of a mile from the scene of occurrence. They may have come to Baijnath Missir's house alter the occurrence either to thwart suspicion against them or to elicit information as to what steps were being taken by the prosecution party against the miscreants.
18. On review of the evidence and the circumstances 1 am ot opinion that the evidence of Baijnath Missir (P. W. 1), Sheoshankar Missir (P. W. 3), Kalicharan (P. W. 4), Tulsi Mochi (P. W. 5), Surendra-nath Missir (P. W. 7) and Bishundeo Chaubey (P. W. 8) should be accepted as honest and reliable. Each of these appellants was identified by 3 to 6 witnesses. In my opinion, the charge has been fully brought home to the appellants.
19. In the result, the appeal fails and is dismissed. The conviction of the appellants and the sentence imposed upon them are affirmed.
K. Sahai, J.
20. I agree and I desire merely to make some observations on the point of law which Mr. Safdar Imam has raised.
21. It is manifest on a perusal of Sections 137 and 138 of the Indian Evidence Act that the first step in the examination of a witness is that he is called by one of the parties to the litigation. This means that he is put in the witness box on behalf of a party and sworn. Therefore, he is examined in chief, cross-examined and, if necessary re-examined. It is clear that examination in chief, cross-examination and re-exanimation follow alter the first step, viz., that of calling the witness.
22. Section 139 provides that a witness who merely produces a document on being summoned to do so "cannot be cross-examined unless and until he is called as a witness." This section also, therefore, shows that the calling of a witness is the first step.
23. It is open to a party calling a witness to decline to put any question to him by way of examination-in chief just as if is open to the opponent to decline the cross-examination of a witness who has been examined in chief. There is no examination-in-chief of a witness, be is said to have been tendered for cross-examination. This is ordinarily done in cases (1) where the witness is likely to repeat what a number of other witnesses have already said and the party calling him desires to save time, or (2) where the party feels that the witness is not likely to tell the truth or is going to give adverse evidence.
24. Mr. Safdar Imam has contended that the prosecution cannot declare a witness hostile and cross-examine him, if it merely tenders that witness for cross-examination, because such a witness cannot be said to have been called within the meaning of Section 154 of the Evidence Act. In support of this contention, he has relied upon AIR 1928 Pat 203 (A). Ross J., has made an observation in that case which supports Mr. Imam's contention; but it is to be noticed that Wort J., who was the other member of the Bench, has not expressed any agreement with that observation. He has agreed with Ross J., that the reference should be discharged, and has merely expressed his views upon a point other than the one which is under consideration in the present case. The observation has, therefore, no binding force, Ross J, has proceeded upon the assumption that the witness in question was not called by the prosecution; but, unless he was so called, the defence could not be allowed to cross-examine him. With great respect for the views of an eminent Judge like Ross J., the fact that the defence was allowed to cross-examine the witness iu that case shows that he was culled by the prosecution as its witness,
25. It appears from the record in this case that Jagdish Jadav (P. W. 9) was put in the witness box on behalf of the prosecution and sworn. He must, therefore, be held to be a witness who was called by the prosecution. As he made statements in his cross-examination by the defence which were adverse to the prosecution, I do not see any reason to hold that the learned Judge's act in permitting the Assistant Public Prosecutor to cross-examine him was illegal or irregular.
26. As my learned brother has observed, the practice of tendering a witness leads to confusion and should cease in all except one which I shall presently refer to. If, in a criminal case, the prosecutor feels that he cannot rely upon the evidence of a particular witness, all that should do is to produce the witness and keep him in readiness so that the trying Judge or Counsel for the defence may, if he so chooses, examine him as a Court witness or a defence witness, as the case may be. In either case, he will have the right to cross-examine the witness. He need not himself call the witness or, in other words, put him in the witness box and get him sworn. If, however, the prosecutor feels that the witness is reliable, he must make a distinction between an important and au unimportant witness. If the witness is important, the prosecutor should call him and examine him in chief and should not tender him, though he can make the examination-in-chief as brief as circumstances permit. If the witness is unimportant the prosecutor may tender him for cross-examination. Ordinarily, the practice of tendering a witness ought to be confined to such a case.