Ramdeo Singh and Others vs Emperor

Rowland, J.—Ramdeo Singh appellant in Criminal Appeal No. 249 and Mangal Singh, Shakur Mian and Zamir Mian appellants in Criminal Appeal No. 259 have each been convicted of dacoity by the Additional Sessions Judge of Saran in conformity with the unanimous verdict of a jury and each of tbem has been sentenced u/s 395, Penal Code, to suffer rigorous imprisonment for seven years. It is not necessary to state the facts in great detail. Briefly, on the night of 4/5th August 1940, a dacoity was committed in village Deoria in the house of Babu Daya Maheshwar Dayal. A number of the inmates of the house were injured by lathis and some damage to property was done; a number of boxes were taken away and found in a damaged condition and empty at some distance from the house. The accused persons Ramdeo and Mangal are Rajputs residents of village Mithwalia about two miles from Deoria. The other two accused Shakur and Zamir are residents of Jalalpur described in evidence as 1 1/2 kos from Deoria. The police station is about five miles from the place of occurrence and the first information was laid there at 7 A.M. on the morning of 5th August by chaukidar Ram Kishun P.W. 2. This witness was going his round when hearing an alarm he came towards that place and observed that a fight was proceeding between the dacoits and the villagers, that some villagers were injured and some dacoits were also said to have been struck. He came to the house and no one of the inmates was able to name any accused person, no one described to him any dacoit and the information does not state that anything was said to him about the dacoits having or not having torches or other means of illumination. He was told that the defenders had dealt blows on some of the dacoits.

The Sub-Inspector arrested Mangal Singh and Zamir Mian on 6th August and Ramdeo was arrested and sent to the Magistrate on or about 12th August and Shakur who was said to have been absconding surrendered in Court on 29th September 1940. Test identifications were held of Mangal and Zamir on 12th August 1940, of Ramdeo on 19th August and of Shakur on 3rd October 1940. The houses of the suspects were searched, but nothing incriminating was recovered.

At the trial, the prosecution relied on the evidence of witnesses who identified the several accused "by face" as persons previously unknown to them. Ramdeo was identified by 4 witnesses, Shakur by 2, Zamir by 4 and Mangal by 3. The witnesses have said in their evidence that they were able to identify them by means of torches which members of the, party of the dacoits were flashing. The accused all pleaded not guilty, and filed written statements. Shakur, Zamir and Ramdeo said they were known to the witnesses from before and the test identification parade had therefore no value. They had been falsely implicated. Mangal Singh said that he was known to the witnesses from before and they had implicated him merely on suspicion. There was a suggestion of some dispute between the uncle of this accused and Daya Babu; and of a dispute between Daya Babu and one Jadunandan Singh a friend of the uncle of this accused. It was said that this accused had incurred the displeasure of the police: that material witnesses had been withheld; and that the witnesses examined had deposed falsely at the instance of Tarkeshwar Dayal P.W. 9.

None of the accused suggested that no dacoity had been committed. The substantial point raised by all. the accused was whether the evidence of identification should be accepted or should be rejected as dishonest, mistaken or insufficient. The learned Judge in charging the jury explained to them the offence of dacoity placing before them the several defining sections and asked them to hold whether there was a dacoity or not. If not he said, they must find all the accused persons not guilty; but if they found that there was a dacoity, they would have to see whether the four accused persons were in it. He told them by which witnesses each accused had been identified and he pointed out that the witnesses had not told the police that they had identified dacoits or described the persons whom they have subsequently identified. In the case of Zamir he referred to a description by Ramdeo to the Sub-Inspector of a dacoit whom he expected to, be able to identify if he saw him again and he invited the jury to draw their own conclusions as to whether this description tallied or not. He referred to the absence of description of dacoits in the statement of Ramayan to the Sub-Inspector as also to the absence of any mention in his earlier statements about the dacoits having torches with them, whereas at the trial he bad referred to the light of torches flashed by the dacoits. In dealing with the evidence of Tarkeshwar he pointed out that this witness had identified three accused persons, but before the Sub-Inspector he did not claim that he would be able to identify any dacoit except one. In dealing with the witness Raghunath Ahir, he pointed out that this witness had told the Sub-Inspector that he would not be able to identify any of the dacoits. In dealing with the case of Mangal who was identified by three witnesses, he referred the jury to the criticisms he had already made on the evidence of those witnesses in dealing with the other accused and to a further discrepancy in the description of Mangal. He told them that according to Tarkeshwar, Mangal had no moustache at the time of the dacoity, but at the trial he had a substantial moustache. He also placed before the jury the statement of the witness to the committing Magistrate that the man who sat upon him was assaulted by another dacoit with a lathi, whereas at the trial he professed himself unable to say whether any dacoit assaulted Mangal. He also pointed out that Mangal had given his age in Court as 32 years, while Tarkeshwar described the dacoit who threw him down as aged about 20 or 22 years. He referred to the suggestion of a dispute with Jadunandan Singh and the suggestion regarding a dispute between Daya Babu''s family and Bamrekha Singh. In placing before the jury the evidence of Ramdeo and Ramayan regarding Mangal, he referred the jury to his comments on these witnesses'' evidence when dealing with Zamir. He further reminded the jury that the chaukidar had come immediately after the dacoity was over, but nobody mentioned the names of the dacoits or their village. He referred to the accused''s suggestion that they must have been known to the prosecution witnesses and further to the case set up by Mangal that he was being persecuted by the police. As to that he told the jury that such a suggestion has not been put to the police or other witness.

The jury returned a unanimous verdict of guilty against all the accused and the learned Judge after taking time to consider his decision has accepted that verdict and convicted them. An appeal does not lie on the facts, but only on a point of law. In this case, we have not been shown anything said in the charge to the jury which can be called a misdirection, but we are asked to say that the verdict is vitiated by non-direction amounting to misdirection because the Judge has failed to put before the jury certain suggestions and considerations on behalf of the accused which might have affected the verdict. It is contended that there was non-direction amounting to misdirection on the part of the learned Judge in not putting to the jury contradictions between the first information and statements of the witnesses to the police on the one hand and the evidence given at the trial on the other.

The first point which it is said that the learned Judge has failed to put to the jury is that there is a discrepancy between the first information report and the evidence of the chaukidar Earn Kiahun who in Court testifies that he reached the house of Daya Babu after the dacoits had gone and says nothing about witnessing any fighting. The discrepancy is more apparent than real. He did not in his first information say that he had reached the house before the dacoits had disappeared and a reading of the information rather implies that he did not proceed actually to the house until the dacoits had gone. Then it is said that the witnesses had not told the police that by the torch light they identified the accused, nor had torches been mentioned in the first information report, but this story of torches is introduced at the trial. The Judge, it is said, should have specifically drawn the attention of the jury to the non-mention of torches at the early stage and invited them to say whether this discredited the evidence given at the trial. I find however that in dealing with the evidence of Ramayan Ahir the learned Judge did point out that to the police he said nothing about any of the dacoits having torches with them and in dealing with the evidence of Tarkeshwar as to identification of Zamir he pointed out that there was no evidence on the record of any torch light being shone at the time when the witness came out of the zenana kita and saw Zamir.

Next a general criticism directed against the charge was that the learned Judge ought to have brought particularly to the notice of the jury the absence of corroboration of the direct evidence in matters such as these. First that whereas in the first information report it was said that some of the dacoits bad been struck, none of the persons accused in the trial is shown to have any mark of injury. Secondly, that although the houses of the accused persons were searched nothing incriminating was recovered and that fact should have been specially brought to the notice of the jury as a circumstance suggesting their innocence; and thirdly that whereas certain articles were left behind by the dacoits (such as some green bamboos, a sendhmarni or instrument of house-breaking and some brickbats and stones), none of these things has been proved to be, connected with, or to have come from the possession of, any of the accused persons. If I had myself been charging the jury, I might have alluded to these matters: but I do not accept the position that absence of corroboration (except where corroboration was ordinarily to be expected) is equivalent to substantial evidence in proof of the negative, that is to say, in disproof of the prosecution or in rebuttal of the direct evidence of witnesses. As regards marks of injury, I shall have to say something more in dealing with the cases of Mangal and Zamir: but it was never the prosecution case that all the dacoits had been injured, so that injuries must be expected to be found on every guilty person.

In dealing with the comments on the negative aspect, that is to say, the omission to remind the jury of the absence of matters specially incriminating these accused, I would follow the general J principle guiding the point of view from which an appellate Court will scrutinise a charge to the jury as laid down in this Court in Eknath Sahay v. Emperor AIR 1916 Pat. 236 "the Judge must present the main case for the prosecution and for the defence fairly for the consideration of the jury. But this does not mean that he must in every particular and in every detail address himself to every suggestion put forward by the defence. His duty is fairly and candidly to point out the main and salient features of the case from the point of view of the prosecution and of the defence respectively. And in doing so he is entitled to take into consideration the speeches made upon both sides by the Crown and by the prisoners'' counsel, in considering his presentation of the evidence to the jury." Atkinson, J. continued: "It is for the Judges on appeal in applications similar to the present one, to construe the heads of charge as prepared by the Judge, and see if from such heads the Judge has fairly and properly directed the jury in point of law, and whether he has fairly and properly reviewed the evidence in support of the prosecution and of the defence." Later on the dictum of Lord Alverstone in King v. Stoddart 2 CAR 217 was cited to the following effect: "Mere non-direction is not necessarily misdirection. Those who allege misdirection must shew that something wrong was said or something was said which would make wrong that which was left to be understood. Every summing up must be regarded in the light of the conduct of the trial, and the questions which have been raised by the prosecution and defence respectively."

Now it seems to me, speaking in general terms, that the learned Judge has taken pains to put fairly, to the jury the defence of each accused and the materials on the record bearing on it. There is no sign anywhere in the charge of his having attempted to lead the jury in the direction of a conviction. On the contrary, if anything, the charge might be read as an invitation to the jury to acquit. That being so, a trifling omission or the fact that the enumeration of points in favour of the accused is not absolutely exhaustive ought not to be considered as vitiating the charge unless there is some reason to suppose that a different direction might have influenced the result.

Another general criticizm was that the learned Judge should have commented on the fact that the prosecution have not called as witnesses certain persons whose names appear in the history of the case, and should have invited the jury to draw an inference adverse to the prosecution. One of these was Chamela an old lady staying in the house of Daya Babu who was examined by the police, who attended a test identification at which she identified all the appellants and another person named Ajodhya. She was not examined in the committing Magistrate''s Court or at the trial, the explanation being offered that she had left Daya Babu''s place and that her whereabouts were unknown. Another was Kashinath Pandey a resident of village Deoria who had come out at the time of the dacoity and was said to have received some injury. His name appears in the first information, but he was not examined as a witness. Another was Daya Babu himself, the owner of the house in which the dacoity was committed; but as regards this gentleman, the objection is not pressed as it does not appear clear '' in the evidence that he was in the village on the night of the dacoity. Then there are two more ladies, the sister of Daya Babu whose name has not been given and Mt. Dularia the wife of Sheolochan, P.W. 4. They were present at the house during the dacoity and could have been eye-witnesses. Another is Kheyali brother of Sheolochan, P.W. 4 who also appears to have been present at the dacoity. All these might perhaps be classed in one group and it can be said that the prosecution has not examined all possible eye-witnesses of the dacoity. Leaving aside the case of two more persons Ram Sakal and Sheoshankar Tewari regarding whom the grounds of complaint are somewhat different, I am not of opinion that it was the imperative duty of the prosecutor to put in the witness-box all the possible eye-witnesses of the dacoity, failing which an inference adverse to the prosecution must necessarily be drawn. It is a matter dependent on the particular circumstances of each case. A prosecution is not bound to call witnesses'' irrespective of considerations of number and of reliability, though witnesses essential to the unfolding of the narrative on which the prosecution is based must of course be called: see Stephen Seneviratne v. The King AIR 1936 P.C. 289. Therefore, when an objection is taken to the charge to the jury that the absence of certain witnesses ought to have been the subject of comment by the Judge, we have to see what was the position of the witnesses and what facts they were to prove.

Now the witnesses Kashinath, Kheyali and the two ladies Daya Babu''s sister and Dularia were persons who were present at the dacoity, but none of whom if examined could have been expected to, identify any of the accused persons. The same applies to Daya Babu if indeed he was in the house at all. Chamela no doubt if examined was expected to identify the accused, but in her case the prosecution had offered the explanation that she had left the locality and was untraced. The evidence of the other persons named would have been relevant for proving the fact of the dacoity and would have been important if they had been the only witnesses or almost the only witnesses to prove this point; but this fact was established by very abundant evidence, indeed so abundant that the defence made no attempt at disputing its truth. What then was the necessity of multiplying witnesses to a point already sufficiently established. As to the absence of Chamela, it left the prosecution in the position that the identifying witnesses were fewer than they would otherwise have been. It left it open to the accused to suggest, if they chose, that Chamela if called. would not have been able to identify ; but before us it has been argued that this lady was a necessary witness because at the test identification she had identified the accused; and has been kept out of the way lest she should in cross-examination make admissions favouring the defence. Of that test identification there was as far as we can see no evidence in the Court below. A Magistrate who held the test identification appears to have been examined before the Committing Magistrate, but not in the Sessions trial. Had the prosecution wished to use that identification, she was a necessary witness: no one else could prove it, and no evidence of it could be allowed to go to the jury. In the circumstances, it seems that it was of importance that the Sessions Judge should not let the jury be aware that another per. son not a witness before them had identified some of the accused. It might have been difficult for the jury to avoid being influenced to some extent by the hearsay evidence of identification by this witness and had the Judge placed before the jury the line of reasoning which Mr. N.N. Sinha for the appellants has placed before us, there would have been very just cause of complaint that the Judge had permitted matters of hearsay to go to the jury by which there was grave danger that the decision of the jury might have been affected adversely to the accused. So far as this witness is concerned, I think it was not for the Judge to treat her any differently from the other witnesses of this class namely as a person who had been present but, as not an identifying witness, did not need to be examined in proof of the dacoity which had been established by other evidence.

The other two witnesses regarding whose absence ( comments are made are Ram Sakal and Sheo Shan-kar Tewari. Ram Sakal was a person examined in the Committing Magistrate''s Court as P.W. 14, but not at the trial. That his evidence was of no great significance to the main points of the case is the natural inference from the fact that in the commitment order no fact is mentioned as having been proved by this witness. On referring to his original deposition, we find that he happens to have seen some broken boxes lying near the railway line on the morning after the dacoity. Later, the boxes were seen by Police officers who have given full particulars of what they found there and are the best witnesses of that. In cross-examination Ram Sakal made statements entirely unconnected with what he had said in chief and tending to lend colour to the defence case that Mangal who as already stated resides only two miles from Deoria was well-known to the residents of Deoria, so that the test identification of Mangal was of no test value. This was a matter entirely foreign to the allegations which the prosecution set out to prove and it was a matter which it was open for the accused to establish by evidence of their own. His Evidence was not material to the prosecution case; and as the Judicial Committee have observed in Stephen Seneviratne v. The King AIR 1936 P.C. 289 it is not for the prosecutor to discharge the function both of prosecution and defence. Sheoshankar Tewary seems to be a person referred to in the Evidence as having given some information to a prosecution witness Ramdeo regarding the movements of accused Mangal on the morning after the occurrence. Those movements were not very relevant: he was not a witness having any direct knowledge of the dacoity and would not have been a material witness for the prosecution. The argument before us has been that by not calling these two witnesses, and the additional eye-witnesses of the dacoity, the accused have been deprived of the opportunity of proving by admissions of the witnesses matters in favour of the defence. As to that, it seems to me to be answered by the observation of their Lordships which I have just quoted. It is not the duty of the prosecution to go out of its way to preserve to the accused the right of reply by putting into the witness box persons who are not material witnesses for the prosecution but would be in substance, if not in form, witnesses for the defence.

I have dealt with the general comments and now I have to deal with matters affecting individual accused. Accused Ramdeo has been identified by four witnesses, P.W. 9 Tarkeshwar, P.W. 4 Sheolochan, P.W. 3 Ramayan and Raghunath P.W. 6. His appeal is from jail and we have examined the portion of the charge dealing with him for ourselves. The evidence of each witness has been fairly placed. The failure to name or describe the dacoits at the early stages has been brought to the notice of the jury and there seems to be no defect in the charge affecting this accused.

Regarding the charge against Shakur also, there is no special circumstance calling for comment. He was identified by two witnesses only and the learned Judge specially drew the attention of the jury to the fact that only two witnesses have identified this accused. He drew the attention of the jury to discrepancies between the statements of the witnesses at the earliest stage and their statements at the trial and I can find no point on which the charge regarding this accused can be said to have misled the jury.

Next there is the case of Zamir. He has been identified by four witnesses, P.W. 1 Ramdeo Narain, P.W. 3 Ramayan, P.W. 4 Sheolochan, and P.W. 9 Tarkeshwar Dayal. All these witnesses calim to have identified him and recognized him at a test identification, being strangers to him. Tarkeshwar had said in his evidence that Zamir had a box on his head and was going away with it and P.W. 3 Ramayan has said the same. Now one of the other witnesses namely, Raghunath P.W. 6 in describing the occurrence had said to the Sub-Inspector that he gave a blow to a dacoit who had a box on his head; but when Zamir was arrested no mark of injury was found on his person. Mr. N.N. Sinha in addressing us on behalf of this accused suggested that the dacoit who was carrying a box should have had a mark of injury on his head and that it may be inferred from the absence of such an injury on Zamir that he was not successfully identified. But as a matter of fact there is nothing to show that Zamir was the only one of the dacoits who was carrying a box. Indeed four steel boxes and three wooden boxes were removed. The point does not seem to be of much assistance to the accused. Raghunath at the trial does not speak of having assaulted any dacoit carrying a box. It is suggested before us that Raghunath has changed his story to avoid the suggestion that Zamir had been wrongly identified. This is a matter of fact hardly to be raised in appeal in a jury trial. We have no means of knowing whether the point was taken in the Court below. If it had been, considering the care with which the learned Judge has handled this case, it seems almost safe to presume that he would have dealt with it. I find therefore that the conviction of Zamir cannot be disturbed because of any supposed misdirection or non-direction.

Lastly, there is the case of Mangal. The witnesses who have identified him are P.W. 1, Ramdeo, P.W. 3, Ramayan and P.W. 9, Tarkeshwar. Tarkeshwar in the course of his Evidence has said that, one of the dacoits threw him down and sat on him. To the committing Magistrate he has also said that another of the dacoits struck with a lathi the man who had thrown him down. He also said at the trial that the man who threw him down and sat on him bad no moustache. Now it is argued that the Sessions Judge ought to have told the jury that Mangal must have been wrongly identified because the description of him as having no moustache does not tally with the Sub-Inspector''s recollection that on the day after the dacoity, namely, 6th August when he arrested Mangal he had a small moustache. On this matter the Sub-Inspector unfortunately has to speak from memory, he not having made any note in his diary as to the existence or absence of a moustache. At the trial Mangal had a moustache a very substantial moustache. Another point was that the Judge should have told the jury that the identification of Mangal should be rejected because if he were the person who had sat on the chest of Tarkeshwar and had received a lathi blow from another dacoit, there should have been found an injury on his person at the time of his arrest; whereas there is no evidence of any such mark of injury being found. As a matter of fact, the evidence is Silent whether Mangal had or had not any mark and it is possible on the one hand that he may have received a lathi blow not severe enough to leave a mark or that there might have been a mark not sufficiently conspicuous to be noticed. Both these points might have been put to the jury, but I am not prepared to say that the omission was a defect in the charge which would justify our interference in his case.

Finally it has been said that the charge is defective because it does not show that the law regarding dacoity has been properly explained to the jury.

The offence of dacoity is an offence punishable u/s 395, Penal Code. This section must of course have been read out by the Public Prosecutor in opening his case u/s 286, Criminal P.C. As the section requires the prosecutor to read the "description of the offence charged," we may assume that some other of the relevant sections were placed before the Court by the public Prosecutor. The learned Sessions Judge has explained the offence of dacoity by placing before the jury in succession the statutory explanations of every element going to constitute the offence. He places successively the definitions of theft of moveable property, of dishonesty, or wrongful gain and wrongful loss, then the definition of robbery u/s 890 and the further definition of dacoity in Section 391. With reference to each of this section, the charge says that the section was read out and explained to the jury in detail but it is argued that he should have gone further than this and should have said what detailed language was used in explaining the section. Whether the statement of the law in a particular case is adequate or not must depend on the facts of the particular case and the points which were for deter, mination; the question is, whether there was a danger of the jury being misled. The facts in this case plainly amounted to dacoity or nothing. The learned Judge has put clearly to the jury the question whether there was a dacoity. He pointed out to them that there was a mass of evidence showing both the presence of a large number of dacoits and the various acts of violence done by members of the party as well as the theft. Moreover, it is neither argued before the jury, nor before us that no dacoity was committed or that the conviction, if it was to be had, ought to have been under any other section. This part of the argument addressed to us seems to me to be entirely unsubstantial and without merit. In the result I would dismiss the appeals of all the appellants.

Varma, J.

I agree. I would like to add just a few words in regard to two points raised by Mr. N.N. Sinha in this case, one of them being that in the absence of anything on the record to show what the explanation of the learned Judge was with regard to the different sections in this case, it was not certain that they were properly explained to the jury, and the other point raised is that some of the prosecution witnesses not having been examined the learned Judge should have asked the jury to draw an inference against the prosecution for the failure.

It appears that in this case the learned Judge in explaining the charge u/s 395, Penal Code (which provides for the punishment for dacoity), began by explaining Section 378 which defines theft. He has referred to, the various sections leading up to Section 395, and it is only when he reaches the preliminary sections that he says the sections were read out and explained to the jury in detail. In a case of dacoity where Sections 391, 390, 378 and Sections 22, 23 and 24, Penal Code, have been explained not much is left except explaining the definitions by illustrations. As an appellate Court, when the Sessions Judge says that he explained the relevant sections to the jury, it would not be proper to hold that his explanations were erroneous, unless it is definitely pointed out by the party questioning the charge to the jury. In Eknath Sahay v. EmperorA.I.R. 1916 Pat. 236, although we do not know what were the exact words used by the learned Judge in his charge to the jury, Atkinson, J. observed:

No doubt, u/s 367, Criminal P.C., a Judge is not required to write out in extenso the charge which he addresses to the jury, but under the section that I have referred to, the law requires that the Judge shall set forth in writing the headings of his charge to the jury, and such headings afterwards form part of the record of the proceedings in the trial before him. As the term ''heads of charge'' itself implies, it means that the Judge must faithfully record the lines upon which he addressed the jury, both on the evidence and on the law, and the object of these heads of charge is to inform the High Court, should occasion arise, of what direction he gave in law to the jury, and the nature of his summing up of the evidence not only for the pro-secution, but also for the defence.

In Chotan Singh and Others Vs. Emperor, Allanson, J. who delivered the leading judgment in the case, said:

The first point taken is that the learned Sessions Judge has not recorded in the charge the directions he gave to the jury on the legal aspect of the case. His record on this point is as follows: Sections 302, 114, 326, 148, 149 and 34, Penal Code, read and explained.'' Towards the end of the charge he said: ''The charges have been explained to you. Tou cannot convict anyone u/s 147, or Section 148 or Section 302/149, unless you are satisfied that an unlawful assembly of five or more persons was framed.''

In those circumstances, after referring to the various authorities and also to the verdict of the jury, the learned Judge thought that the jury were not misled in the case and the omission by the Sessions Judge to set out in the charge his explanations of the law had not occasioned a failure of justice and was, therefore, of opinion that a retrial should not be ordered on that ground alone. Kulwant Sahay, J. however in a separate judgment observed that the charge to the jury was defective but did not think it necessary to interfere with the verdict because there were no complications in the case, the facts were simple and the Evidence was clear. In the present case I am of opinion that the learned Sessions Judge''s explanation of the law was quite ample and, therefore, the point raised by Mr. N.N. Sinha fails.

On the other point raised by Mr. N.N. Sinha, that the learned Sessions Judge should have directed the jury to draw an inference adverse to the prosecution for the failure to examine certain witnesses, we have to examine some of the decisions on the subject. The argument is evidently based on the illustration to Section 114, Evidence Act.

The classic case on the subject is that in Dhunno Kazi v. Empress 8 Cal. 121. That was a case in which accused 1 was charged with knowingly and dishonestly using as genuine a forged document. Ten persons appeared to have attested the document of which only three survived. Of them two were cited as defence witnesses but were not examined, and the third was kept out of the way in rather a marked manner. It was on these facts that Wilson, J. (who delivered the judgment of the Court) observed as follows:

The only legitimate object of a prosecution is to secure not a conviction, but that justice be done. The prosecutor is not therefore free to choose how much evidence he will bring before the Court. He is bound to produce all the evidence in his favour directly bearing upon the charge. It is prima facie his duty, accordingly, to call those witnesses who prove their connexion with the transactions in question, and also must be able to give important information. The only thing that can relieve the prosecutor from calling such witnesses is the reasonable Relief that if called, they would not speak the truth. If such witnesses are not called without sufficient reason being shown (and the mere fact of their being summoned for the defence seems to us by no means necessarily a sufficient reason), the Court may properly draw an inference adverse to the prosecution,

The decision in the case in Dhunno Kazi v. Empress 8 Cal. 121 was relied upon in Ram Ranjan Roy Vs. Emperor, . In that case the charges were u/s 302 and Section 302/114. Two persons, who were gomashtas of the zamindar, were eye-witnesses of the occurrence but were not examined before the committing Magistrate nor called at the trial by the Public Prosecutor though repeatedly asked to do so by the appellant''s counsel. Their names appeared to have been entered in the list of defence witnesses. In those circumstances their Lordships observed:

The public Prosecutor cannot shelter himself behind the suggestion that he was able to form an opinion from evidence previously given that these men would not be truthful witnesses, for they were not even examined before the committing Magistrate.

Their Lordships further observed:

It was, therefore, undoubtedly the duty of the public Prosecutor, in a capital case like the present, to have placed before the trial Court the testimony of all available eye-witnesses.

The next Calcutta decision is the case in Tenaram Mondal Vs. Emperor, . There certain material witnesses named in the first information report and also in the evidence, who were available, were not examined at the trial and the Judge did not tell the jury that they could draw an inference against the prosecution on that account; and in summing up the Judge had omitted to draw the attention of the jury to the discrepancies in the evidence of the principal witnesses for the prosecution between the statements made in their examination in chief and those in cross-examination. It was held that the omission to place before the jury the matters stated above constituted material misdirection to the jury. The whole case turned not only upon the non-production of the witnesses but also upon the failure of the trial Court to point out the discrepancies in the evidence, and therefore a retrial was ordered.

Then in Nababali and Others Vs. Emperor, the decisions in Tenaram Mondal Vs. Emperor, and an earlier decision were relied upon. There it was held that the learned Judge failed to direct the jury in not pointing out to them that they were at liberty to draw an inference adverse to the prosecution story if the explanation suggested by the advocate for the prosecution was not acceptable to them.

In Ramjit Ahir v. Emperor AIR 1923 Pat. 413 there were eye-witnesses to an occurrence and the prosecutor had not called some of them. It was held that the Court was entitled to draw an inference adverse to the prosecution, but if the witnesses called by the prosecution were otherwise worthy of credit the Court was not entitled to disbelieve them simply on the ground that the others had not been called; and that the police are not bound to send up as a witness a person whose statement they believe to be false or whose evidence they believe will be unnecessary at the trial. Reliance was placed in this case on the Full Bench decision of the Allahabad High Court in Queen-Empress v. Durga 16 All. 84.

In Kunja Subudhi and Another Vs. Emperor, reliance was placed upon the decision in Ram Ranjan Roy Vs. Emperor, and in Mathura Tewary Vs. Emperor, the decision in Dhunno Kazi v. Empress 8 Cal. 121 and other relevant decisions were followed.

In Tajali Mian, and Others Vs. Emperor, it was held that where the prosecution fails to call a material witness, the fact should be pointed out to the jury and they should be left to draw their own conclusions from it.

In Ibrahim v. Emperor AIR 1935 Pat. 95 , it was held that the public Prosecutor is not obliged to examine witnesses who, he has reason to believe, will not support the prosecution case, nor is the Court bound to examine any person as a Court witness unless the evidence of such person appeared to be essential to the just decision of the case. This decision was explained in a subsequent decision of this Court in Yusuf Mia and Others Vs. Emperor, . In the latter case while meeting the argument that the Judge should have asked the jury to draw an inference adverse to the prosecution because two witnesses were not examined by the prosecution, the learned Judge who delivered the leading judgment in the case observed that the trial Court had quoted from the judgment in Ibrahim v. Emperor AIR 1935 Pat. 95 and told the jury that the witnesses had been gained over and did not tell them that it was essential to examine them as Court witnesses. He did not give the jury any assistance in deciding whether to draw an inference on the failure of the prosecution to call the witnesses. He further said that the observations in Ibrahim v. Emperor AIR 1935 Pat. 95 were made with reference to the facts of the particular case. In Stephen Seneviratne v. The King AIR 1936 P.C. 289 their Lordships of the Judicial Committee while dealing with this point observed as follows:

It is said that the state of things above described arose because of a supposed obligation on the prosecution to call every available witness on the principle laid down in such a case as Ram Ranjan Roy Vs. Emperor, to the effect that all available eye-witnesses should be called by the prosecution even though, as in the case cited, their names were on the list of defence witnesses. Their Lordships do not desire to lay down any rules to fetter discretion on a matter such as this which is so dependent on the particular circumstances of each case. Still less do they desire to discourage the utmost candour and fairness on the part of those conducting prosecutions; but at the same time they cannot, speaking generally, approve of an idea that a prosecution must call witnesses irrespective of considerations of number and of reliability, or that a prosecution ought to discharge the functions both of prosecution and defence. If it does so confusion is very apt to result, and never is it more likely to result than if the prosecution calls witnesses and then proceeds almost automatically to discredit them by cross-examination. Witnesses essential to the unfolding of the narrative on which the prosecution is based, must, of course, be called by the prosecution, whether in the result the effect of their testimony is for or against the case for the prosecution.

A perusal of all these cases will show that the drawing up of an adverse inference will depend upon the nature of the evidence that was expected from the witnesses, the nature of the offence, the circumstances under which the witnesses have not been produced, etc If in a meeting of say 500 known persons, a fracas takes place, it would be unreasonable to expect that for a small incident like this all the 500 people present there should be examined. On this point I am of opinion that to the extent that the previous decisions differ from the principles laid down in Stephen Senevirate v. The King AIR 1936 P.C. 289 they are no longer authorities. The second point raised by Mr. N.N. Sinha, therefore, also fails.