Lachhmi Lal vs Emperor

Coutts, J.—The appellant in this case, Lachhmi Lal, has been convicted u/s 302 of the Indian Penal Code for the murder of one Nanhak Lal and has been sentenced to death by the Judicial Commissioner of Chota Nagpur Lachhmi Lal is a relation of Nanhak and the case for the prosecution is, that Nanhak was returning home from Mirzagunj Bazar on the 27th of August last when, at about 6 P.M., he was attacked by Lachhmi Lal with a sword. The attack was made on a foot path in village Juggernathdih where both the appellant and the deceased lived. Three persons are said to have witnessed the occurrence or some part of if; namely Musammat Thagni Barhin, Dilo Singh and Musammat Laro Kumari. Nanhak''s sister, Musammat Munshi Kumari, heard a cry that Lachhmi had out Nanhak with a sword and on going out she saw Lachhmi running away. She then found her brother lying severely wounded on Kartik Lal''s bari. She took him home on a khatia, called the villagers and the chowkidar. The chowkidar gave an information to the thana three miles off at about I.A.M, the Sub Inspector came at once, Nanhak was sent to the hospital and died there on the 3rd of September.

I do not propose to discuss the evidence which has been adduced in this case, because the trial has been of such a perfunctory nature and there have been sO many irregularities committed in the course of the trial by the learned Judicial Commissioner that the learned Government.Advocate has said that be is compelled to ask for a re-trial and that if his prayer be not granted he does not propose to try and support the conviction. The course he has adopted is, in my opinion, a very right one and the only course which was really open to him. We are, therefore, only concerned with the question of whether we should acquit the accused as we are asked to do by the learned Counsel for the appellant or to order a re trial.

The main grounds on which the prayer for a retrial is based are three: (1). that the evidence of the eye-witnesses, Musammat Thagni and Dilo Singh, has been co-perfunctorily recorded that it is impossible to say from their evidence whether they really saw the occurrence or not; (2) that the evidence of one of the most important witnesses, namely, Musammat Laro, is not on the record and is, therefore, not available to the Crown; and (3) that the statement which was made to the Sub Inspector of Police by Nanhak before his death and recorded by him has not been properly brought on the record.

In regard to the first point a mere glance at the evidence of Musammat Thagni and Dilo Singh is sufficient to show that the comment on this evidence which has been made by the learned Government.Advocate is justified, Thagni''s examination in chief consists of five lines of print and Dilo''s of about double this. It is impossible to discover from Dilo''s evidence where he was when be saw the part of the occurrence to which he deposes or whether in fact he could'' have seen any part of if. The same remark applies to Musammat Thagni''s evidence and it is also impossible to discover where the was working or how she happened to see the occurrence, It may be that the witnesses are perfectly good witnesses whose evidence can be accepted, but it is so sketchily recorded that it is impossible to tome to any conclusion on this point.

The next matter is in regard to the witness Musammat Laro Kumari. Here the learned Judicial Commissioner adopted a very extraordinary procedure. An application was made by the lady to be examined behind a parda. This is a very ordinary request which is made in the case of a parda-nashin woman and the usual procedure is for the woman to he brought into Court in a palki and examined by the Judge. If this had been done, there would have been nothing to be said although the request was one which probably should not have been granted as she appears to have been examined in the ordinary way before the Committing Magistrate; the learned Judicial Commissioner, however, treated the application as one for examination on Commission and directed Commission to issue to one Mr. Friend Pereira, apparently a Magistrate of the First Class. In the first place, the issue of a Commission for the examination of an important witness, such as an eye witness, in a serious criminal trial is a procedure which is much to he deprecated and which should never be adopted except for the most cogent reasons; yet not only in this case were there no cogent reasons but there was no application for issue of Commission and no reason at all for the issue of Commission was given Further, no writ of commission appears to have been issued and there is no return to the Commission. The woman''s evidence is merely placed on the record without comment. For these reasons alone I would not be prepared to take her statement into consideration, but there is another reason why it cannot be accepted in evidence; namely, that the identifier of the lady dose not appear to have been put on hie oath so that there is no certainty that the woman who has been examined is Musammat Laro. There is another matter in connection with Musammat Laro''s evidence to which it is necessary to refer. Her deposition before the Committing Magistrate has been put in. There is nothing to show under what section this has been done, but presumably it has been put in u/s 288. To put in such evidence is permissible, but it has been repeatedly laid down and it is now settled law that such statements should not be put in without the attention of the witness being drawn to the portion of the statement which it is desired to use. We are informed by the learned Government Advocate and by the learned Counsel for the appellant that this practice is not generally followed and if this is sO I would suggest that the attention of the Courts be drawn to the matter.

The last point is the use which has been made of Nanhak''s statement to the Sub-Inspector. The (Sub-Inspector has put in the statement and it has been used by the learned Judicial Commissioner. The prosecution was, under certain circumstances, entitled to examine the Sub-Inspector as to what Nanhak had told him, but the statement of Nanhak recorded by the Sub-Inspector could not be evidence and it is somewhat surprising that a Judge of the experience of the learned Judicial Commissioner should have fallen into this error.

There are other matters in respect of which the procedure adopted by the learned Judicial Commissioner is open to criticism but the points which I have referred to are sufficient for the purpose of indicating that it is necessary that there should be a re trial. The learned Counsel for the appellant has urged that we should acquit the accused and this would, in ordinary circumstances, I think be the correct course to pursue, but in the peculiar circumstances of the present case I would accede to the prayer of the learned Government Advocate, There is evidence some of which has been so perfunctorily recorded that it is impossible to say whether it is of value or not and there is also evidence which is not properly on the record.

Possibly this may be partly due to the fault of the prosecution but it is also due to the fault of the Trial Court, What the value of this evidence may be we cannot say as not being on the record we cannot consider it, I would, therefore, as I have already indicated, accede to the request of the learned Government Advocate and set aside the conviction and sentence and direct that the appellant be re tried.

Ross, J.

I agree.

At the request of the learned Government-Advocate and with the assent of the learned Counsel for the appellant we direct that the case be transferred to Gaya for trial by the Sessions Judge of that district.