Man Mohan Singh vs The State

Pritam Singh Pattar, J.—This is a revision petition filed under s. 661 A of the Code of Criminal Procedure, to quash the commitment order dated 31st July, 1972, passed by the Judicial Magistrate First Class, Patiala, D) committing the petitioner Man Mohan Singh son of Inder Singh resident of Patiala to stand his trial in the Court of Sessions u/s 307, Indian Penal Code.

The facts of this case are that Gurcharan Singh owned a poultary farm near T.B. Hospital. Patiala, and on 22nd August, 1969, at about 9.30 P.M. he went to wards Sheranwala Gate, Patiala, to purchase some ice from Lal Chand, Man Mohan Singh petitioner and one Chaman Lal were already present on the ice depot of Lal Chand and on seeing Gurcharan Singh they exhorted that he should not be allowed to escape that day. The petitioner and Chaman Lal took out knives from their pockets and inflicted two injuries on the chest of Gurcharan Singh. Chaman Lal also inflicted a knife injury on the right arm of Gurcharan Singh Balwant Singh and Gurdial Singh were the eye witnesses and they rescued Gurcharan Singh from the accused. They took the injured Gurcharan Singh to the Civil Hospital, Patiala, where he was medically examined. A case u/s 307/24, Indian Penal Code, was registered against them. Chaman Lal accused has absconded and has not yet been arrested. Chalan against Man Mohan Singh petitioner alone was submitted in Court. The prosecution examined in the Court of the Judicial Magistrate, the doctor who examined Gurcharan Singh injured besides the two eye witnesses. Gurdial Singh (P. W.) and Balwant Singh (P. W. 4.) They also examined Dr. Vir Bhan Garg who conducted the X-ray examination of the injuries on the person of Gurcharan Singh. Gurcharan Singh injured after the occurrence had died a natural death before he was examined in Court. In the revision petition it was alleged that both the eye-witnesses did not support the prosecution story, that the Judicial Magistrate wrongly relied on the first information report made by Gurcharan Singh deceased and illegally passed the commitment order and the same, therefore be quashed. Notice of this revision petition was issued to the State of Punjab and the records were summoned.

Section 561-A of the Code of Criminal Procedure reads as under:

Nothing in this Code shall be deemed to limit or affect the inherent power of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice.

In R.P. Kapur Vs. The State of Punjab, it was held as under:

The inherent power of High Court u/s 561 A. Criminal Procedure Code, cannot be exercised in regard to matters specifically covered by the other provisions of the Code. The inherent jurisdiction of the High Court can be exercised to quash proceedings in a proper case either to prevent the abuse of the process of any Court or otherwise to secure the ends of justice. Ordinarily criminal proceedings instituted against an accused person must be tried under the provisions of the Code, and the High Court would be reluctant to interfere with the said proceedings at an interlocutory stage. It is not possible, desirable or expedient to lay down any inflexible rule which would govern the exercise of the inherent jurisdictions Some of the categories of cases where the inherent jurisdiction to quash proceedings can and should be exercised are:

(i) Where it manifestly appears that there is a legal bar against the institution or continuance of the criminal proceeding in respect of the offence alleged.

(ii) where the allegations in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety, do not constitute the offence alleged.

(iii) Where the allegations made against the accused person do not constitutes an offence alleged but there is no legal evidence adduced in support of the case or the evidence adduced clearly or manifestly fails to prove the charge.

In the instant case the allegations made against the accused did constitute the offence alleged. But the contention of the counsel for the petitioner is that there is no legal evidence adduced in support of those allegations and the accused should have been discharged by the Committing Magistrate and the order of commitment is manifestly wrong and illegal.

Section 207-A, Criminal Procedure Code, lays down the procedure to be adopted on proceedings instituted on police report into cases triable by the Court of Session. Its sub-sections (6) and (7) read as follows:

When the evidence referred to in sub-section (4) has been taken and the Magistrate has considered and the documents referred to in section 173 and has if necessary, examined the accused for the purpose of enabling him to explain any circumstances appearing in the evidence against him and give the prosecution and the accused an opportunity of being heard, such Magistrate shall, if he is of opinion that such evidence and documents disclose no grounds for committing the accused person for trial, record his reasons and discharge him unless it appears to the Magistrate that such person should be tried before himself or some other Magistrate, in which case be shall proceed accordingly.

(7) When, upon such evidence being taken, such documents being considered, such examination (if any), being made and the prosecution and the accused being given an opportunity of being heard, the Magistrate is of opinion that the accused should be committed for trial, he shall, frame a charge under his hand, declaring with what offence the accused is charged.

In the instant case the prosecution examined two eye-witnesses and they are Gurdial Singh (P. W. 3) and Balwant Singh (P. W, 4). Both of them did not support the prosecution story in their examination-in-chief and, they were declared hostile Balwant Singh (P. W. 4) stated in the Court of the Committing Magistrate that no injury was inflicted upon Gurcharan Singh in his presence and that Manmohan Singh petitioner was not known to him. He denied having made any statement to the polite in this case. The other eye-witness Gurdial Singh as P W. 3 stated that he did not see, Man Mohan Singh and Chimna giving any blows to Gurcharan Singh. He was declared hostile and the State counsel was permitted by the Magistrate to cross examine him. He admitted that before the police he had stated that Man Mohan Singh accused gave a knife blow on the chest of Gurcharan Singh and that Chaman Lal accused gave a knife blow on the right arm of Gurcharan Singh and that he and Balwant Singh raised a raula. He denied that he had rescued Gurcharan Singh from the accused. In his cross-examination by the counsel for the accused he stated that he had seen the accused running away at a distance of 50 to 100 yards and it was all dark at that time. According to him he had signed the statement which was recorded by the police, and it was made in the Hospital.

Section 162 of the Code of Criminal Procedure lays down that no statement of any person to the police in the course of investigation shall if reduced into writing be signed by that person nor that statement whether in a police diary or otherwise be used at any enquiry or trial in respect of any offence under investigation at the time when such statement was made. Provided that when any witness is called for the prosecution in such inquiry or trial whose statement has been reduced into writing any part of his statement if duly proved may be used by the accused, and with the permission of the Court, by the prosecution to contradict such witness in the manner provided by section 145 of the Indian Evidence Act. In Tahsildar Singh and Another Vs. The State of Uttar Pradesh, it was The section was conceived in an attempt to find a happy via media, namely, while it enacts an absolute bar against the statement made before a police-officer being used for any purpose whatsoever, it enables the accused to rely upon it for a limited purpose of contradicting a witness in the manner provided by section 145 of the Evidence Act by drawing his attention to parts of the statement intended for contradiction. It cannot be used for corroboration of a prosecution or a defence witness or even a Court witness. Nor can it be used for contradicting a defence or a Court witness. Shortly stated, there is a general bar against its use subject to a limited exception in the interest of the accused, and the exception cannot obviously be used to cross the bar.

In Baladin and Others Vs. State of Uttar Pradesh, , it was held that the statements made during police investigation are not substantive evidence.

The legal position therefore is that statement of a prosecution witness made to the police u/s 161 of the Code of Criminal Procedure during the investigation of a case is not substantive evidence and it cannot be used for corroboration of prosecution or defence witness or even a court witness, nor can it be used for contradicting a defence or a court witness. Section 162, Criminal Procedure Code, prescribes a general statutory bar against its use except for the limited purpose mentioned therein.

The statement made by Gurdial Singh u/s 161, Criminal Procedure Code, before the police cannot be treated as substantive evidence and the Magistrate erred in holding that this statement of Gurdial Singh P.W. to the police was admissible in evidence. Thus it is clear that both the eyewitnesses Gurdial Singh (P. W. 3) and Balwant Singh (P. W. 4) did not support the prosecution story in the Court of Committing Magistrate. The Magistrate illegally held that the admission made by Gurdial Singh P.W. regarding the statement made by him u/s 161, Criminal Procedure Code, was substantive evidence.

Gurcharan Singh injured had made the statement Exhibit P. W. 2/B to the police after the occurrence and on its basis the first information report, was recorded by the police. Gurcharan Singh had died a natural death after this occurrence and his statement could not he recorded in the Court of the Committing Magistrate. However, the Judicial Magistrate held that this statement Exhibit P. W. 2/B and the first information report were admissible as dying declaration u/s 32 (1) of the Indian Evidence Act and be treated as substantive evidence. This view is clearly wrong and erroneous. It is well settled law that the first information report can only be used to corroborate or contradict its maker and not the other prosecution witnesses. The first information report is not a substantive piece of evidence and can only be used to corroborate the statement of the maker u/s 157 of the Evidence Act or to contradict it u/s 145 of that Act.

Gurcharan Singh injured who gave the first information report had died before his statement could be recorded in the Committing Court. Therefore the first information report could not be used to corroborate or to contradict the statements of the other two eye-witnesses, namely, Gurdial Singh and Balwant Singh.

Section 32 of the Indian Evidence Act lays down that statements, written or verbal, of relevant facts made by a person who is dead, or who cannot be found or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which under the circumstances of the case appears to the Court unreasonable, are themselves relevant facts in the following cases:

(1) When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person''s death comes into question.

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In Kappinaiah v. Emperor AIR 1531 Mad. 233 (2). It was held as under:

Section 32 refers to actual cause of death, or to the transaction resulting in death. If a woman is raped and decides three days later to commit suicide, the rape is not the cause of her death or transaction resulting in death, though it may be the contingent motive. A statement made by the woman to her mother-in-law immediately after the rape does not become admissible u/s 32.

To the same effect was the law laid down in The The State of Bombay Vs. Rusy Mistry and Another, , in AIR 1930 450 (Lahore) and AIR 1939 47 (Privy Council) . Therefore it is well settled law that the statement of a dead person to be admissible in evidence u/s 32(1) of the Indian Evidence Act must satisfy the tests, firstly it must refer as to the cause of his death or as to any of the circumstances of the transaction which resulted into death and secondly it could be admitted in evidence in those cases only in which the cause of that person''s death comes into question.

In the instant case the facts mentioned in the first information report related to the occurrence regarding which Man Mohan Singh petitioner was chalaned and these facts had nothing to do as to the cause of death of Gurcharan Singh who admittedly had died a natural death after the occurrence. Consequently this first information report cannot be treated as a dying declaration of Gurcharan Singh and therefore it is in admissible in evidence. The decision of the trial Magistrate that this first information report was a dying declaration of Gurcharan Singh is wrong and incorrect and is set aside. This first information report is inadmissible in evidence and cannot be looked at and read as evidence against the petitioner Man Mohan Singh Thus the position conies to this that there was no prima facie evidence on the file against petitioner. There was no ground for committing the accused person for trial as there was no prima facie evidence on the file. In Rameshwar Daga Vs. The State of West Bengal, , it was ruled that for making a prima facie case the Magistrate must have material before him which is capable of being translated into evidence in which case the evidence would prima fade establish the gulit of the accused. In the instant case there is no circumstantial evidence connecting the petitioner with the commission of the crime. The prosecution examined two eye-witnesses and they did not support the prosecution story against the petitioner Man Mohan Singh. The Committing Magistrate wrongly held that the first information report which was recorded on the statement of Gurcharan Singh injured who died after the occurrence was admissible in evidence and was a substantive piece of evidence. Thus there was no evidence on the file against the petitioner. It is therefore a fit case to exercise the inherent jurisdiction of the Court to quash the commitment order in view of the law laid down in R. P. Kapur''s case supra). There is no legal evidence adduced in support of the case As a result the revision petition is accepted and the order of commitment dated 31st July, 1972, of the Judicial Magistrate First Class Patiala (D) committing the petitioner to stand his trial in the Court of Session u/s 307, Indian Penal Code, is quashed and Man Mohan Singh petitioner is discharged.