Thota Ramakrishnayya and Others vs The State

Ramaswami, J.—These are appeals preferred against the convictions and sentences of the learned Sessions Judge of Guntur Division in S.C.

No. 30 of 1951.

The facts are : in the village of Adigoppula there are two factions headed by the accused 1 Thota Ramakotayya and G. Venkatappayya

respectively. There is no dispute that accused 2 to 22 in this case are the partisans of accused 1 and that the Adlgoppula witnesses examined in this

case as P. Ws. 1 to 6, 7, 12 and 15 to 18 are the partisans of Venkatappayya. This faction had arisen from the District Board Election held about

two years prior to the commission of the offences, forming the subject-matter of this Sessions Case on 18-4-1950. In this District Board Election

accused 1 and G. Venkatappayya stood as rival candidates and accused 1 was the successful and Venkatappayya was the defeated candidate.

On account of this faction hay-ricks were being burnt on either side and ill-feelings were smouldering. The village Munsif''s hay-rick was burnt

before and three days prior to occurrence the hay-rick of accused 1 and 2 was burnt. In the dry areas of Guntur District like Adigoppulu the

burning of a hay-rick means hamstringing of the ryots because cattle cannot survive without fodder and without cattle agricultural operations will be

brought to a standstill.

It is common ground that on account of this faction there were several civil, criminal, revenue and District Congress Election Tribunal

proceedings and which need not be reset here because they are not disputed and which go to show that there were acute ill-feelings between these

two factions on the eve of this occurrence.

On 18-4-1950 at about 5 P. M. there was undoubtedly a clash at the outskirts of the village between these two sets of factionists and this

resulted in so far as G. Venkatappayya''s party was concerned in the death of Narayya, the deceased in the Sessions Case, and the sustaining of

injuries by P. Ws. 1 to 6 and in regard to accused 1''s faction in the sustaining of injuries by accused 3 to 5, 7 to 9, 12, 15 and 21. Two versions

are given regarding this occurrence, viz., the version of G. Venkatappayya''s party which is the subject-matter of the Sessions Case and the version

given by accused 1''s party and which is the subject-matter of a pending criminal case numbered as C.C. 262 of 1950 on the file of the Additional

First Class Magistrate''s Court. Tenali, and which information is embodied in D. W. 5''s dying declaration Ex. D-15, the complaint Ex. P-60 and

the sworn statement Ex. P-61 and accused 3''s report Ex. P-35.

The version of G. Venkatappayya''s party is as follows : On 18-4-1950 at about 5 P. M. P. W. 1 Y. Raghavayya and the deceased Narayya

went to bring drinking water from the Gutlapallivari well which is to the west of their house. When they returned back with water pots and came as

far as Peertachavadi, accused 1 to 16 came from eastern direction armed with sticks, spears and pounders to kill them. On seeing the accused,

they threw away the water pots and ran as far as Hanuman Temple. As they came up to the corner of Kotamma''s well, accused 1 to 16 chased

them, surrounded them and beat them. Accused 2, 3, 4 and 6 had pounders; two or three accused were having spears and the rest sticks.

Accused 2 and 4 beat the deceased on the head with pounders. He fell down. Accused 16 beat the fallen man on the forehead with a stick.

Accused 1 beat the fallen man on the left hand with a stick. Accused 10 and 15 beat him on the legs and right hand with sticks. Accused 3 beat P.

w. 1 with a pounder on the forehead. Accused 5 beat P. W. 1 with a stick on his right thumb. Accused 14 also beat him with a stick on the left

hand above the fingers.

This is the version of the first scene as spoken to by P. W. 1 and the onlookers P. Ws, 7, 12 and 15 to 18. At that time, his uncle Vidayya and

China Musalayya (P. Ws. 5 and 2) and his cousins Ramayya'' and Vengayya and V. Ramiah (P. Ws 4, 3 and 6) were sitting and chatting on the

pial. He informed them of the beating given to him and the deceased. They got up and ran to the lying deceased along with P.W. 1 and they found

accused 1 to 16 & 17 to 22 surrounding the fallen, deceased. When P.Ws. 2 to 6 attempted to get at the fallen man, they were also beaten. The

second scene consisted in the beating of P.Ws. 2 to 6 by the accused. P.Ws. 2 to 6 and the Onlookers P.Ws. 7, 12 and 15 to 18 speak to the

blows received by P.Ws. 2 to 6. All that the onlookers P.Ws. 7, 12 and 15 to 18 did was bo raise an uproar saying that the assailants were

beating the victims unjustly.

After beating, all the accused went to the house of accused 1 in the northern direction P.W. 1 then went round the fallen people and next

proceeded to the acting village munsif Kotayya (P.W. 14) to give a report. The injured persons were taken on cots to the hospital at Gurzala,

which is about 8 miles from the village. In the evening on the day of occurrence, the acting village Munsif P.W. 14 was in the house of the karnam

along with the karnam, the Mohated P.W. 9 the Sub-Inspector of Central Excise and others and at 5 P. M. they came to know that the deceased

was beaten by Thota people and Peddinedi people. On getting this news P.W. 14 went to his house along with P.W. 9. P.W. 1 came to his house

then and gave the report Ex. P-1. Based on Ex. P-1 P.W. 14 sent his reports Exs. P-3 and P-29 to the Police and the Magistrate at about 8-30

P. M. The report Ex. P-3 was taken by the Mohated P.W. 9 and was delivered at the Karempudi Police Station only at 7 A. M. next morning as

he was bitten by a scorpian on the way and as he regained consciousness only at 5 A. M. In the morning. Ex. P-4 is the explanation given by him

to the Police for the delay. P.W. 21 was the Station-writer of Karempudi Police Station in April 1950. He received the report Ex. P-3 along with

Ex. P-1 at 7 A.M. on 19-4-1950 through P.W. 9. He registered it as Crime No. 14 of 1950 under sections 147, 148, 325 and 326 I.P.C. He

incorporated the explanation for the delay given by the Mohated in the F.I.R. Ex. p-32 and sent express reports to the authorities.

P.W. 19 was the Station-writer of Gurzala Police Station in April 1950. He received an intimation (Ex. P-30) from the Medical Officer Gurzala at

3 A.M. on 19-4-1950 about the admission of Narayya (deceased) in the Hospital. He went to the Hospital at 3-30 A. M. The Sub-Magistrate

also came there. The deceased Narayya was then in an unconscious state and so his dying declaration could not be taken. P.W. 19 again received

an intimation (Ex. P-7) at 12 noon that Narayya died at 11-15 A. M. He then registered It as Crime No. 32/50 u/s 302 I.P.C. and sent express

reports to the authorities. Ex. P-31 is the F.I.R. He deputed the Head Constable (P.W. 20) to hold inquest. The case was then transferred to

Karempudi Police Station as the offence related to its jurisdiction. As the Sub-Inspector was not in town, the Head Constable P.W. 20 went to

the Hospital and held inquest from 3 to 5-30 P. M. Ex. P-2 is the inquest report. He did not examine any witnesses during the inquest. After

inquest, he sent the dead body through P.W. 11 for autopsy. P.W. 23 the then Circle Inspector of Police Gurzala, received information of this case

at 10 A.M. on 18-4-1950 from the Station House Officer, Karempudi. He left Ourzala at 10-30 P. M. In a jeep and reached Karempudi at 11 P.

M. There was an entry in the general diary that one K Nagayya gave a report of the occurrence at 9 P. M. as per Ex. P-37. He then proceeded to

Adigpppula and on his way ho met at Oppicheria some of the injured persons of the accused party who were being brought to the station. Hence

he returned with them to Karempudi and took a report from accused 3 as per Ex. P-35. He came to know that some other injured persons had

been taken to Gurzala Hospital. So he left Karempudi at 4 A. M. and reached Gurzala at 4-30 A. M. by jeep. He found the deceased and P.Ws.

1 to 6 in the Hospital. He learnt from P.W. 1 that he had already given a report to the Village Munsif. P.W. 23 could not take any statement from

the deceased as he was in an unconscious state. He examined p. Ws. 1 to 6 in the Hospital at that time. At about 7 A. M. he left the Hospital to

Nadikudi where there was a big railway collision and he returned from there in the even-Ing. He learnt that the deceased died in the Hospital and

that inquest had been held by P.W, 20. He continued investigation on the 20th and examined P.Ws. 7, 12, 15 to 18 and others at Gurzala. On

21st, he went to the scene of offence and prepared the plan Ex. P-36 noting down the index and distances correctly. By then the Sub-Inspector

Karempudi P.W. 22 was already there investigating. He directed P.W. 22 to complete the investigation and file the charge sheet. The accused

were not available for arrest. All but Accused 1 and 2 were arrested by the Sub-Inspector P.W. 22 on 7-5-1050 at Oppicharla and accused 1

and 2 on 26-5-1950, at Karempudi.

The autopsy held by P.W. 10 over the dead body of Narayya on 20-4-1950 and the examinations of P.Ws. 1 to 6 by him on 20-4-1952

showed that the injuries found by the doctor on Narayya and P.Ws. 1 to 6 could have been caused at the time and in the manner alleged by the

prosecution. In addition, the clothes of the deceased and P.Ws. 2 to 4 seized by P.W. 22 were found by the Serologist to be stained with human-

blood.

So far we have dealt with the events as portrayed in the present Sessions Case and we must now switch back to the cross-case forming the

subject-matter of C. C. No. 262 of 1950 on the file of the Additional First Class Magistrate, Tenali. On 18-4-1950 at 1 O''clock in the night

Thota Ramakrishnayya has given the following statement to the Police.

For the last about two months hay-ricks of our party and of the party of Gutlapalli Venkatappayya are being burnt on account of factions in the

village. We have been giving reports that there is no suspicion on either party. On the night of 15-4-1950 our hay-rick consist ing about Rs. 3000

was burnt There was entirely no fodder for our cattle. As my cattle were starving, I went at about three hours to-day to call Pedinedi Sithayya for

Fodder. When I was bringing Sitayya, Y. Videya (and 27 others) all these persons were sitting in a group Jn the verandah of the house of the

permanent Munsif. By the time I started along with Sitayya, from the temple of Ranuman, Yaganti Videya (and 7 others) armed with sticks came

upon us. There was a gun with Munsif Ramayya. He fired at us. We had drawn back. We raised loud cries.

Hearing our cries Thota Hanumayya (& 7 others) came running. Yaganti Raghaviah stabbed Pedaneti Sitayya with a spear on his leftside. Yaganti

Yengiah and Y. Guruyayya and Yeniah beat on the top of the head with stick. China Guruvayya hurled stones on the top of the head. Y.

Musayayya beat me on the top of the head with a stick. Yaganti Ramayya stabbed on the back with stone. After I was stabbed I fell down on the

ground, when it was said he did not die; second side'', he beat with a stick on the right side of the head. All the remaining persons came with sticks

and all together beat with stones and sticks Thota Hanumayya (and 8 others) from among our people. All of us fell down on the ground. We were

all brought to the Police Station. When this disturbance occurred, my elder brother Thota Ramakotayya & others were present ........"".

On the early morning of the next day one of the injured persons on the opposite side P. Sitayya (D. W. 5) gave his dying declaration to the

effect that the persons of the other faction had done injustice to them and that himself and his brothers were stabbed with spears and beaten with

sticks by ten persons, that he fell down and that he does not know what happened afterwards. This dying declaration attributed specific parts to

three persons in so far as the injuries on this P. Sitayya were concerned.

Besides these dramatically opposed versions on 18-4-1950 at about 5 P. M one Kolleru Nagayya a resident of Adigoppulu gave information

to the Sub-Inspector of Police at Karempudi that five persons on one side (names omitted here) and five persons on the other side (names omitted

here) of the two factions hurled stones against each other and beat each other with sticks between the temple of Hanuman and Gangavarapuvari

well and that he was sent to inform this happening to the police and that he was sent by Thota Ramakotayya and Chirumamilla Anantaramayya. It

will be seen how this version of this Nagayya is a compromise and reconciliation of the two versions of these two (actions set out above viz., that

what happened was a free fight and secondly, that it took place neither near the Gangavarapuvari well aa is the present Sessions case nor near the

temple of Hanuman as is the cross-case but between the two.

On the foot that the Police were indifferent in investigating and charging the case against the P.Ws. In the present case because one of the

partisans of P.Ws. In the Sessions Case had died whereas the injured partisan on the other viz. D. W. 5 survived, a complaint was preferred by D.

w. 5 in the Court of the additional First Class Magistrate''s Court, Tenali in C.C. No. 262 of 1950. This complaint was apparently prepared with

the aid of outside intelligence. The relevant portion of this complaint giving both the preliminary as well as the sequal as to what happened

according to the accused in the present Sessions Case is as follows:

The complainant and accused are residents of the village of Adigoppula, Curzala Taluk. There have been factions in the village for some years. In

the month of September or October 1949, elections for the Guntur District Board took place and one Thota Ramakotiah Garu of our village on

the one hand and accused 9 on the other consisted fes candidates in which accused 9 got defeated in spite of enormous amount spent by him and

his party. Ever since the factions became acute. The leaders of the accused party somehow got at the Central Excise Inspector, Macherla, and

made a huge effort to file a case against Kongera Budda Kotayya for alleged stocking of contraband tobacco by him.

This attempt however did not fructify. Even since during the last four months prior to the date of offence hay-ricks belonging to both parties were

set fire to by some one or other including those of the leaders. On 18-4-1950 also the Central Excise Inspector was again prevailed upon by the

accused leaders to search the stocks of Peddinedi Kondayya, one of the prosecution witnesses just after the midday. The hay-ricks of Thota

Ramakotiah having been previously burnt, his brother Thota Ramakrisnnayya was collecting hay and straw for their cattle and the complainant was

assisting him in collecting the same.

On 18-4-1950 evening, Thota Ramakrishnayya came to his house for taking him for hay collection and tooth were going along the street, in which

accused 8''s house is situated. Complainant saw all the accused in his verandah in a gayful mood gloating at their achievement of the day. On seeing

us accused 1 to 4, 9 and 10 and Yaganti Narayya stood up saying ''where do you go'' accused 8 came out with a gun which was owned by his

brother-in-law, accused 9 and 2 came with a spear. The rest were armed with sticks. Accused 8 fired the gun at Ramakrishnayya, but luckily

Ramakrishnayya avoided the aim and saved himself. We raised alarm. The above persons and accused 7, 12 to 14, 17, 20 and 21 surrounded the

complainant and attacked him. Accused 2 speared him on the back. Accused 9 gave him a blow on the head with a stick resulting in a fracture and

Yaganti Narayya gave him another blow on the head with a stick.

Accused 20 hurled a dried mud clod while accused 21 hurled a stone. The others fisted and kicked the complainant before falling and after he fell

down. Thota Ramakrishnayya was also attacked and he received a number of injuries at the hands of some of the accused. The remaining accused

also joined the assembly while we are attacked. On hearing our alarm, Thota Hanumayya, Thota Seetayya, etc. etc. came to the scene and

according as they came there, they were all beaten by the accused indiscriminately all of them taking part in the attack. In the course of the rioting,

Yaganti Narayya and accused 1 to 5 and accused 22 also received injuries in the attempts of the prosecution witnesses to defend themselves

against the aggression of the accused persons....

The Police obviously stampeded by these moves on the part of both the sides and apparently frightened that they would be falsely accused of

partisanship if they charged one side only, have charged both the cases with the singular result that in regard to the same rioting at the same place

and at the same time, they have put forward two diametrically opposed versions as truthful versions and the Circle Inspector who was examined as

P.W. 23 in this case has unabashedly explained this as follows.

I thought that the accused were the aggressors and I was consulting my superiors whether the prosecution party should be prosecuted. Finally it

was settled that the Court should decide it. Hence the delay in filing the charge-sheet in the counter-case.

The evidence adduced in this case based on the version given in Ex. P-1 consists of the evidence of ill-feelings between two factions, oral and

documentary, concerning which there is no dispute and the evidence of the eye-witnesses P.Ws. 1 to 7, 12 and 15 to 18 who are all admittedly

partisans of Venkatapayya''s faction and the medical testimony concerning the injuries sustained by the deceased Narayya and p. Ws. 1 to 6 and

the so called investigation in this case. The defence consisted of an alibi for accused 1 and 2 and the version of the accused given in the complaint

of D. W. 5 and the medical testimony concerning the injuries sustained by accused 3 to 5, 7 to 9, 12, 15 and 21.

The learned Sessions Judge holding that the prosecution had proved its case convicted accused 1 to 16 under Sections 325 and 323 I.P.C.

and accused 17 to 22 u/s 323 I.P.C. and sentenced them to varying terms of imprisonment. The convicted persons have preferred these appeals.

The points taken by the learned counsel appearing for the accused are four in number viz., (i) that EX. P-1 should not have been treated as the

F.I.R.; (ii) that the investigation in this case was perfunctory; (iii) that both the cases should have been tried by the Sessions Court in quick

succession with separate assessors and separate recording of evidence and that judgments should have been delivered at their close as enjoined

repeatedly by this court and other High Courts as well; and (iv) that the learned Sessions Judge has not properly applied the tests which should be

applied in rioting cases of this nature for assessing the truth and adequacy of the evidence. I shall now examine these criticisms point by point.

POINT 1. The information that is usually called the first information is the basis upon which an investigation should be, and ordinarily is,

commenced by the police under Chapter 14 of the Code of Criminal Procedure. The information given in writing or reduced to writing u/s 154,

Criminal Procedure Code, is generally known as the First Information Report, though the word ''first'' is not used in the Code; -- Mani Mohan

Ghose Vs. Emperor, and -- ''Mir Rahman v. Emperor'', AIR 1935 Pesh 165 (B). This information constituting the F. I. R. should be in the nature

of a complaint or accusation, or at least information of a crime with the setting of the law in motion.

This First Information Report is generally proved by the prosecution and the report, is marked as evidence though by itself it is not substantive

evidence and can only be used for the limited purposes u/s 157 of the Evidence Act for the purpose of corroboration or in a proper case u/s 32 of

the Evidence Act as a declaration as to the cause of the informant''s death or as a part of the informant''s conduct u/s 8 of the Evidence Act or u/s

35 of the Indian Evidence Act without formal proof to show that the implication of the accused was not an after-thought; or as one of ''res gestae'';

-- Sadayan Chetti and Others Vs. Emperor, ; -- Mohan Singh Vs. Emperor, ;-- Azimaddy and Others Vs. Emperor, . It may of course be used

by the defence under sections 145 and 155(3) of the Evidence Act. These general provisions of the Evidence Act are, however, controlled by the

special provisions of section 162, Code of Criminal Procedure, and therefore the first question which has got to be decided is whether the

information in Ex. P-1 is really the first information or is hit by the provisions of Section 162, code of Criminal Procedure. If the information is hit

by section 162, it has got to be excluded.

Sometimes it happens that the offenders themselves are the first informants and such cases the non-culpatory portion should be admitted and the

confessional portion should be excluded. What now and then happens is that persons after committing an offence proceed to the Police Station

with the blood-stained instrument and there report the matter to the officer concerned. This information has got to be taken down by the Police

Officer as narrated to him and treated as the F. I. R. and a case has got to be registered and it is only when the matter comes to court and this

information embodied in the F. I. R. is sought to be put in evidence as first information, that information has to be scrutinised and when it is found

to consist as it does usually of three-parts (i) information of events, motive etc., leading to occurrence; (ii) murder proper and admitting doing it;

and (iii) subsequent events, Nos. (i) and (iii) will be admitted and No. (ii) will have, to be excluded; -- ''Dal Singh v. Emperor'', AIR 1917 PC 25

(P); -- Akal Sahu Vs. Emperor, ; -- ''Mohammada v. Emperor'', AIR 1948 Lah 19 (H); -- The Superintendent and Remembrancer of Legal

Affairs Vs. Lalit Mohan Singha Roy, ; and -- ''Bharosa Ramdayal v. Emperor'', AIR 1941 Nag 86 (J).

The tests which have to be applied to find out whether a particular information of an offence is admissible as first information or is hit by

Section 162, Criminal Procedure Code, have been correctly analysed by Mr. Y. H. Rao in his ''Law of Pre-trial Statements and Depositions''. The

tests are;

(a) The information on which the Police Officer is expected to act must be authentic. In other words, the information must be capable of being

traced to a specific individual who would take the responsibility for the same so that should the information subsequently turn out to be false the

informant could be proceeded against. Under this test telegrams and telephone messages have been held to be in no better position than village

gossip, in respect of authenticity, since any arrest based upon such unauthenticated information, would be in excess of the police officer''s duties.

But if the authenticity of the telegram or of the telephone message is subsequently confirmed, they themselves may then amount to authentic

information in certain circumstances and come within the purview of section 154, Criminal P. C. -- ''In re Anandayya'', AIR 1915 Mad 312 (K); -

-''Public Prosecutor v. Chidambaram AIR 1928 Mad 791 (L); -- Kachi Hazam Vs. Seraj Khan, and --''Chanan Singh v. Emperor'', AIR 1934

Lah 413 (N).

(b) The information must be sufficiently definite* and clear enough to suspect that a cognizable offence had been committed. Therefore, vague

information cannot constitute an F. I. R. In -- ''In re, Mylaswarny Chetty'', AIR 1939 Mad 66 (O), the Sub-Inspector was merely told that there

was a, shooting incident in the house of the deceased. When the Sub-Inspector got into the house of the shooting incident he saw the corpse of the

deceased. He then took the statement of P.W. 1. It was clearly only after recording the statement that the Sub-Inspector could have any real

information of the commission of the cognizable offence. While a riot accompanied with arson and looting was going in a village M who happened

to pass through that village at once proceeded to the nearest Police Station and gave some vague information about the disturbance in the village,

whereupon the Police Superintendent rushed to the village. A statement was then recorded. The latter and not the former was held to be the F. I.

R. -- AIR 1942 60 (Oudh) .

(c) The information may be merely hearsay, provided the person in possession of the hearsay is required to subscribe his signature to it and

mention the source of his information, so that the information may not amount to irresponsible rumour; -- ''Chinna Ramana Gowd v. Emperor'', 31

Mad 506 (Q); -- ''In re Krishna Baipadithaya'', 11 Cri LJ 286 (Mad) (R) and -- ''In re Sivan Chetty'', 32 Mad 258 (S).

(d) Where, though the tests (at (b) and (c) are satisfied the information is given to a police officer who is not in charge of the police station

concerned, and where therefore no step was taken in aid of investigation by the concerned station-house officer as a matter of fact, any subsequent

information given to the station-house officer himself which actually set the law in motion cannot be treated as one given in the course of

investigation : -- Momin Talukdar Vs. Emperor, and -- ''Mazarall Inayatali v. Emperor'', AIR 1933 Bom 266 (U).

Where these tests are satisfied, there is no justification for treating any subsequent information as the First Information Report except in

exceptional cases. These exceptions are three in number. The first exception is that where owing to wide-spread disturbances the Government

Machinery itself is in a state of suspension and no action could therefore be taken on reports of offences made to police-officers, a subsequent

report may be treated as the First Information Report -- ''Magan Lal v. Emperor'', AIR 1946 Nag 173 (V). Lists of stolen property supplied to

the police after the investigation has literally started but still in the preliminary stage, may be treated as parts of the First Information in proper cases

-- Brij Lal alias Birja and Others Vs. Emperor., . Where the report presented at the station is cryptic, answers of the informant to questions by the

Police Officer in elucidation of the report, and included in the report, and signed by the infor-maiit may form part of the First Information Report; --

''Kachu Gogal v. The State'', AIR 1951 Ass 151 (X). Whether investigation started, is not a question of law but a question of fact which has to be

decided on the circumstances of each case.

Therefore applying these tests to the instant case, the information given by K. Nagayya in Ex. P-37 both being vague and of the variety which

may be legitimately described as village gossip so far as authenticity goes, cannot certainly be treated as the First Information in this case. On the

other hand the First Information Report in this case will be Exs. P-35 and P-1. The Circle Inspector on receiving a vague information from the

station House Officer, Karempudi that a rioting had taken place at Adigoppula, left Gurzala in the night of 18-4-1950, saw the entry in the General

Diary of the information given by K. Nagayya (Ex. P-37) and proceeded to Adigoppula. On the way he met the injured persons of the accused

party at Oppicherla and came back with them to Karempudi and took a report from accused 3 reproduced above and then started investigation.

In early morning of the next day the complaint given by the prosecution party (Ex. P-1) to the village Munsif reached the Police Station. It is on the

foot of these two First Informations that these two cases had been launched by the Police.

Counter-complaints received even during investigation are not hit by Section 162, Criminal Procedure Code. They are not different from

independent and fresh complaints made by others than the accused persons in the course of investigation of a particular offence. Therefore, both

Exs. P-35 and P-1 will share the privilege of First Information Reports in this case, though in regard to the uses to which they should be put a vital

distinction should be borne in mind. Counter-complaint made by accused persons when sought to be used for or against them when figuring as

complainants in their cases attract only the provisions of the law of Evidence to corroboration or contradiction and are no more than former

statements of witnesses; yet in so far as nothing precludes their use even in cases against them as accused persons, it should be borne in mind that

when so used they attract the provisions as to admissions-and confessions.

The criticism of the learned counsel for the appellants under point No. 1 fails.

POINT 2.: There can be no doubt that the investigation in this case has been perfunctory. First of all, the Police have not carefully gone into the

question of the delay in a receipt ol Ex. P-1 on the morning of 19-4-1950 at the Police Station. They have too readily accepted the glib and

schoolboy explanation of the village servant P.W. 9 that he was bitten by the scorpion and became unconscious and hence delay. With experience

will come as pointed out by Sabonadiere I. C. S. In his. TRIAL OF CRIMINAL CASES and Sir Cecil Walsh''s CRIMES IN INDIA recognition

of the fact that stock stories are as characteristic of false evidence as of folklore. Each Province of India has its own standard lot of fairytales

devised for the entertainment of Courts. There is the soft-hearted witness who was on his way to deliver a message or to get a plough mended or

to arrange for his daughter''s marriage, but was so shocked and upset by the sound of a wordy quarrel and the sight of a bruised arm that he turned

back straight home though he had already gone four fifths of the way to the place to which he was bound to ""ease himself"" is a very favourite

pretext used by our witnesses in criminal cases to explain their otherwise unexplicable presence in most unexpected places at equally unexpected,

and convenient moments and to account for their chance meetings with important witnesses and for their fortuitous opportunities for seeing things

about which they would otherwise know nothing.

Similarly eye-witnesses to a brutal murder at night seldom say that they were aroused by the noise of disturbance. But almost always that they rose

to make water"". It is difficult to resist the conclusion that the little touch about the act of nature which appears again and again in every district

comes from the Police who have no doubt, a settled conviction that murderers working by stealth at night will take care not to wake the

neighbours. But an eye-witness who is peacefully sleeping must wake somehow and this demand of nature synchronises with the murderous attack

with the regularity of an aperient. To this stock of fairly tales must be added the village servant who never reaches the Police Station ""stung by

scorpion"" (Circas), disabled by stomach-ache (Tamil Districts) and put out of combat by malaria (Ceded Districts). On the other hand, the

circumstances of this case clearly show that the First Information Report was prepared long after the alleged time shown therein and when the

parties could put their heads together and evolve a First Information Report which would implicate-as many people as possible and assign specific

parts to them and contain a list of witnesses who would later lend themselves to support this version and which all take time for thinking out things.

The suggestion on behalf of the appellants that this report was prepared the next morning and was sent to the Police Station on a bicycle and that a

false explanation was cooked up to account for delay rings true. Secondly the version of these P.Ws. was cooked up later is seen from another

significant circumstances viz., that notwithstanding the fact that the injured P.Ws. were in the Hospital and handily available and the Inquest itself

was held therein, the Inquest report states that inasmuch as the offence had taken place at a place away from the Hospital and no witnesses had

been examined, the names of the offenders suspected to have committed the offence were not known. This returning of an open verdict by the

Panchayatdars is only consistent with the suggestions made by the appellants that instructions had been given to the Head Constable who held the

Inquest not to commit himself to any version but await the developments of the Inspector''s enquiry. ""To my mind the Inquest report is tell-tale and

clearly shows that the present version of the P.Ws. has been connected subsequently and that the First Information Report Ex. P-1 does not

represent the truthful version of what happened. Thirdly, one of the clinching details mentioned in the counter-complaint Ex. P-35 is that a revolver

was used and a shot was fired. This weapon has been seized and yet the Police have not sent it to the Chemical Examiner and the explanation

given by the prosecution is that the Circle Inspector is well-versed in firearms and was of the opinion that it had not been fired. If this point had

been cleared up in the manner in which it ought to have been done, it would have shown the truthfulness or otherwise of this version. Fourthly, the

alibi put forward by accused 1 and 2 and now sought to be supported by some respectable evidence has not been properly enquired into.

It is enjoined on the Police under Police Order No. 583 as follows:

It is but right that the Police when they are endeavouring to discover the author of a crime should make enquiries of or put questions to any person

including the accused from whom they think they can obtain useful information. But when an accused person is arrested he must be informed of the

charge against him. It is then open to the investigating officer to put to him such question as he considers necessary for the purpose of enabling him

to explain or elucidate any circumstance that may have been ascertained in the course of the investigation. If the accused proceeds to make a

defence with the object of explaining his position, further a question may be put to him to elucidate that explanation. But the questioning should not

be persistent or take the form of cross-examination nor should the accused be pressed to answer questions or make any statement he is unwilling

to do so.

The object of questioning the accused and the recording of the information given by him in the case-diary and which is insisted upon in this state is

that the aim of an investigating officer should be to find out the truth and that the truthful defence which a person accused may have may be

investigated and if true the accusation against him may be dropped.

It is quite impossible to believe that these two accused persons who are in fact witnesses in the other case would not have disclosed their alibi. It is

quite true that owing to the abuse of this plea of alibi it has come to be looked upon with a great amount of suspicion. There is great danger of even

true alibis being disbelieved, though a moment''s reflection will show that really innocent men can establish their innocence only by demonstrating

that they were somewhere else at the material time. The remedy for this course is unfortunately not in the hands of the Police or Courts but in the

hands of the Legislature. The plea of alibi will come to be believed only when we have a Rule in the Criminal Procedure Code, as under the Scotch

Criminal Administration of Justice that an accused person who proposes to put forward a plea of alibi should give advance notice to the

Prosecutor that he proposes to put forward such and such a plea of alibi and then it will be the duty of the prosecution to investigate into this plea

of alibi and accept it or reject it. The evidence in this case shows that this plea of alibi supported by a respectable volume of evidence has been

rejected by the learned Sessions Judge for no other reason than that as the accused persons call the alibi-wolf, alibi-wolf, too many times, even the

real one has come to look unreal. Fifthly, there has been no real investigation in this case because all that the prosecution has done is to make the

P.Ws. In the one case, the accused in the other, and ''vice-versa'' and put forward their versions without any attempt at finding out the truth and

which will be dealt with at some greater length when I come to the next point.

I cannot commend to the Police who investigated this case anything better than, if I may say so with respect, the wise admonition of my learned

brothers Mack and Somasundaram, JJ. in --''Malla Reddi v. State'', 1951 Mad WN 861 (Y),

The Investigation Police are primarily the guardians of the liberty of innocent persons. A heavy responsibility devolves on them of seeing that

innocent persons are not charged on irresponsible and false implications......... There is a duty cast on the investigating Police to scrutinise a first

complaint in which a number of persons are Implicated with rigorous care and to refrain from building up a case on its basis unless satisfied of its

truth.

The investigation in this case was perfunctory and little reliance can be placed upon the evidence so gathered and placed or more appropriately

dumped before Court. The measure of this perfunctory investigation is well brought out from the reply given by the Circle Inspector in re-

examination alluded to above and the measure of condemnation that statement carries is well brought out by the following observations of Reillys,

C. J. and Nageswara Ayyar J. In -- ''Giriyappa, in the case of, 18 Mys LJ 229 (Z)'',

It is improper for the Police to prosecute at the same time two counter-cases in regard to the same occurrence one of which must be false and

that it was improper also and disrespectful to the Court for the Public Prosecutor to conduct both cases in the Sessions Court knowing that one

must be false. Such counter-cases cannot both be prosecuted honestly either by the Police or the Public Prosecutor. The powers: of investigation

given to the Police by the Criminal Procedure Code are given for the purpose of ascertaining the truth not for dressing up cases with any evidence

true or false, which may be available.

POINT 3 : The trial of this case is in violation of the injunction of this High Court and other High Courts in a series of decisions and the

principle of which is as follows. Where there is a fight between two rival factions which gives rise to the complaint and counter-complaint it is a

generally recognised rule that both the cases should be tried by the same Judge in quick succession though with different Assessors and Jurors; the

first case should be tried to a conclusion and the verdict of the Jury or the opinion of the Assessors be taken. The Judge should, however,

postpone the judgment in that case till he has heard the second case to a conclusion and he Should then pronounce judgments separately in each

case. He is bound to confute his judgment in each Case to the evidence let in that particular case and is not at liberty to use the evidence in one

case for the purpose of the judgment in the other case and to allow his findings in one case to be influenced in any manner to the prejudice of the

accused by the views which he may have formed in the other case.

This settled practice enunciated above was laid down by this High Court and has been adopted by other High Courts and can now legitimately

be described as an universal practice in India. I shall now briefly indicate the case-law on the subject.

The earliest decision of the Madras High Court is. the Bench decision of Waller and Cornish JJ. In -- ''Goriparthi Krishtamma, in re'', 1929 2

Mad Cri. C. 238 (Z1). It was held therein that where there was a fight between two parties and the Police charge-sheeted both and the offences

against one party were triable by the Magistrate while those against the other were triable by the Sessions, that both cases should have been

committed for trial by the Sessions Court on the foot of the following reasoning:

A case and a counter case arising out of the same affair should always, if practicable be tried by the same Court. Each party represent themselves

as having been the innocent victim of the aggression of the other. Neither will, as prosecution witnesses admit that they retaliated on the other, for

the obvious reason that they are themselves on trial in the other case. As accused, they do not, as a rule let in any defence evidence, relying on the

evidence they have given in the other case as prosecution witnesses. The result is that no court can grasp the real facts unless it tries both cases.

In -- Krishna Pannadi Vs. Emperor, , Jackson, J. observed: ""There is no clear law as regards the procedure in counter-cases, a defect which the

Legislature ought to remedy.

It is a generally recognised rule that such cases should be tried in quick succession by the same Judge, who should not pronounce till the hearing of

both cases is finished.

This precludes the danger of an accused being convicted before his whole case is before the Court, and also prevents there being conflicting

judgments upon similar facts. But at the same time the rule involves obvious difficulty. It seems to infringe the fundamental principle that the Court

must not import any facts into a case which are not to be found on the record. To take an illustration; suppose in the first of the cases, the accused

succeeds in showing that the prosecution has failed to prove its charge, and then in the second case, the same accused as complainant goes into the

witness-box and breaks down in the cross-examination so as to convince the court that the truth lies with the other side. Can the Court be

expected to dismiss this circumstance from its mind, and if it does not do so, what legal justification is there for importing it into the case already

heard?

The only,way in which such a procedure can be Justified is by setting up a fiction that the case and a counter-case are really one, and this fiction

should be made a reality by statute. If a court were empowered to link cases, as they link files in a Secretariat, there would also be the incidental

advantage of a great saving of time. At present in each case the evidence of every witness must be fully recorded and what P.W. 1 says for the

prosecution in one case must all be written out again when he repeats it as D. W. in the other case.

But whether there be a statutory enactment or not, the point remains that for practical purposes a case and its counter are one, and it is this that

makes these general observations particularly germane to the present case.

On account of the waste of time involved in recording the statements of the P.WS., Wallace and Jackson JJ. pointed out in -- ''Krishnayya

Naidu V. Emperor'', AIR 1930 Mad 505 (Z3), that

in case the depositions given by two persons as defence witnesses in one case were filed with the consent of both parties when they were

examined as prosecution witnesses in the counter-case, such a procedure is neither prohibited nor illegal but saves a good deal of time of the

Court. No prejudice can be said to be caused to the accused. This procedure is justified especially when the depositions were filed with the

consent of the parties and when the witnesses were examined in the presence of the accused and sworn to the truth of their previous depositions.

This decision is not binding because as pointed out in this decision itself such a procedure was considered as fatally irregular in a previous Bench

decision in -- ''Umar Hajee, in re'', AIR 1923 Mad 32 (Z4) and so far as this was concerned these observations were obiter. It would appear

from the decision that this procedure which was condemned in -- ''AIR 1923 Mad 32 (Z4) and which was approved in this decision was the one

adopted by one of the Judges who was a party to the later decision viz., Jackson J. as Special Sessions Judge. It has now become settled law that

such a procedure is not permissible because trials in criminal cases are governed by the provisions of the Criminal Procedure Code and the

procedure of treating prosecution evidence in one case as defence in the other and ''vice versa'' is not warranted by any provision of the Criminal

Procedure Code & the procedure permissible in civil cases cannot be engrafted on criminal trials. The fact that counsel on both sides consented to

such a procedure and in fact asked for such a procedure to be adopted cannot make it legal. The Public Prosecutor by assenting to this illegal

procedure had given away his legal and necessary right which in a regular trial he would have of cross-examining the witnesses of the defence as he

could not cross-examine the witnesses whom he himself produced for the prosecution in both the cases. ''Sarju v. Emperor'', AIR 1938 Oudh 249

(Z5).

This principle laid down above is further adumberated by Jackson J. In -- ''Sathakuttia Pillai v. Pichai Cruz'', 1931 Mad WN Cri 276 (Z6), in

so far as case and counter-case triable by Magistrate only are concerned. It is stated that Court cannot possibly take one case on file and

summarily dismiss the other in whole or part. If one case on its face looks stronger, that cart be heard first. But at least to the point of framing

charge or discharging, the Magistrate must keep his hands free and not commit himself to a decision one way or the other. Similar views have been

expressed by Newsam J. In -- ''Periaswami v. Emperor'', 1937 Mad WN 998 (Z7), when so called counter-cases were presented a Magistrate

must treat them both as defence cases disguised as prosecution cases and dismiss them both at once or if he is unable to come to that conclusion

''prima facie'' he must treat both complaints with equal respect until he is in a position to make a simultaneous order in each case. See also for

similar observations Burn J. In -- Krishnapannadi v. Buryanarayana Asari'', 1933 Mad WN Cri 35 (Z8).

in -- ''Lakshminarayana v. Suryanarayana'', Am 1932 Mad 502 (Z9), Walsh, J. held as follows :

In regard to an occurrence, the Police filed a charge-sheet against one party which included a charge of murder. The case was committed to the

Sessions. A counter-complaint was made and the Police filed a referred charge sheet on the ground that the injuries on the complainant were due

to a right of private defence. Then complainant filed a complaint before the Court in which charge was framed under sections 147 & 323 I.P.C.

The accused on being asked to plead wanted to recall the prosecution witnesses. At that stage the court changed its mind and committed this case

also to the Sessions. Held that the commitment should be quashed as accused had no opportunity to adduce evidence before committal and as the

court did not follow the procedure in Chapter 18, Criminal Procedure code.

This case is an authority for the proposition that case and counter must be committed to the Sessions. But in that case the commitment had to be

quashed for the reasons set out above.

Then we come to the very important case decided by Reilly and Pandalal JJ. -- ''In re Jaggu Kaldu 1932 5 Mad Cri. C. 235 (Z 10)'',

following extracts may be usefully made as they have a material bearing on the present case: ""That two cases really ''Counter'' to each other in the

sense that they put forward two versions of the same incident, one of which must be false, should be sent to the Sessions Court at or about the

same time for trial ought to be extremely rare. Such counter cases sometimes come before a Magistrate though it should be impossible that both

should be prosecuted by any public authority. It sometimes happens however that in cases of rioting in which two groups of persons are concerned

the Police put in a charge-sheet against one party and members of that party prefer a private complaint against their opponents. And counter cases

of that sort may arise in connection with other offences. It is generally the duty of one ''Magistrate to hear both cases and though the Magistrate

can never legally use in one case evidence which is on record only in the other case, it is sometime convenient that he should hear all the evidence

in both cases before he pronounces judgment in either in order that if any relevant evidence comes to his notice in one case which would be of use

in the other he may have it brought on record in the other case also.

The Magistrate must be trusted not to allow himself to be confused between the two cases nor to base his judgment in either on evidence not

legally admitted in that case. And it has sometimes been said that when the Magistrate finds it necessary to commit the accused in one of such

cases to the Sessions court for trial it is desirable that he should commit the accused in the counter case also instead of disposing of it himself.

There may be cases in which that procedure is appropriate, though a Magistrate can never be justified in exposing any person to the anxiety and

expense of a trial in the Sessions court, merely because he is the complainant or one of the prosecution party in a counter case in which the

accused is committed to session for trial.

Preliminary inquiries under Chapter 18 Criminal Procedure Code, are intended to be a real protection to parties from unnecessary harassment by

committal to the Sessions Court as well as a means of preventing waste of public time and money.

But occasionally two counter cases relating to the same incident, one of which must be false, are sent to the Sessions Court for trial either by the

same Magistrate or by different Magistrates. According to the procedure which it has been understood has been prescribed by Jackson J. In --

Krishna Pannadi Vs. Emperor, '', though I must repeat that I have greatest difficulty in believing that he really meant this--both cases must be heard

in full by the same Judge and assessors or by the same Judge and Jury before the assessors express any opinion or the jury gives any verdict in

either.

Let us see how this affects the Public Prosecutor and it must be remembered that in every trial in Sessions Court the prosecution must be

conducted by a public Prosecutor. Let us suppose-that the two cases relate to the murder of ''X'', in the one case Ramaswami Goundan being the

accused, in the other Palaniyappa Naidu. If it be thought that this is an extreme instance to take, I can only say that I have known of two such

counter cases of murder and have been invited to use the revisional powers of this court to order that the man charged by the Police with murder

and a man charged by the accused person with the murder of the same victim be tried at a combined trial in the Sessions Court in accordance with

the procedure supposed to have been prescribed by Jackson J.

How is the Public Prosecutor to conduct himself in such circumstances? According to -- Krishna Pannadi Vs. Emperor, '', it is not proper for him

to-suggest to the Sessions Judge that the case which appears to him to be true should be tried first; the two cases must be tried first; the two-cases

must be heard one after the other in a combined trial before the assessors express any opinion or the Jury gives any verdict is the Public Prosecutor

to conduct each case wholeheartedly as if against a man whom he has reason to believe to be guilty? is he to prosecute the case against

Ramaswami Goundan in the ordinary way and then open the case against Palaniappa Naidu in some such way as this:

For the last two days I have been endeavouring to prove to you that this murder was committed by Ramaswami Goundan, and I trust that of that I

have completely satisfied you. It is now my duty to demonstrate that the story is entirely false and that the murderer was not Ramasami Goundan

but Palainappa Natdu. And of that too I trust that I shall convince you to your entire satisfaction.''

Or is he to adopt the attitude that he knows who was the murderer of the victim but that he is not going to let the Judge or the assessors or the Jury

into the secret; they must find it out for themselves? Or, is he to represent himself as entirely in the dark about the whole matter? Is he to say

something of this sort:

That a murder was committed, I think I shall have no difficulty in convincing you. The question is whether that murder was committed by

Ramaswami Goundan or Palaniappa Naidu. All the resources of the Crown have been devoted to the investigation of that very serious question.

But I regret to have to tell you that alter months of patient labour we are still in the dark. We have no idea whatever which Was the murderer. So

we have decided to lay the whole facts before you and leave you to make your choice.''

Whichever method he adopts, it is likely that the proceedings will be reduced to a disgraceful and wicked farce. The Public Prosecutor wiil be

required to run with the hare and hunt with the hounds, to appear alternatively in the same proceedings for the prosecution and for the defence and

to be in the counsels of both, to ride two horses at once in a scandalous competition. If those were the duties of the Public Prosecutor, no

honourable member of the profession would demean himself by accepting the office. Nor could these difficulties really be escaped by appointing

two Public Prosecutors for the occasion one to conduct the prosecution of each man. Would it be less scandalous that two counsel should appear

for the Crown in the same proceedings, each making out that the other''s case was false?

In this country every prosecution in a Sessions Court must be conducted by a Public Prosecutor as a representative of the Crown; and those who

represent the Crown betray their trust if they prosecute a case which they have not reason to believe to be true. The great majority of cases which

come before a Sessions Court for trial have been investigated by the Police. The object of that investigation is not to collect evidence to make out

a case but to sift true cases from false. In preliminary enquiries made by a Magistrate under Chapter 18 Criminal Procedure Code, again the case

is to be tested and the evidence sifted and only where there is a good ''prima facie'' case against the accused, the accused should be committed to

the Sessions Court for trial. But every case in which a person is committed for trial to the Sessions Court is not to be tried. The Public Prosecutor

is not a machine or a slave to prosecute every case in which there has been a committal. To the Public Prosecutor is entrusted discretion to

withdraw from the prosecution with the consent of the Court and his withdrawal puts an end to the case. The law gives him a real discretion in the

matter. It may often be proper for him to consult the District Magistrate or other authorities before exercising that discretion. But in the eye of the

law and of the Court the discretion is his alone subject to the consent of the Court.

The Public Prosecutor holds a very honourable and responsible office. To suggest that if unfortunately'' two counter-cases, one of which must be

false, are sent to the Sessions Court, he cannot properly indicate to the Court which case he has reason to believe to be true and undertake the

prosecution of that case first, is to my mind quite unreasonable. On the contrary it is his right and his duty to select the case which appears to him

to be true. It is possible -- indeed it has sometimes happened --that, after the first case has failed, the Public Prosecutor may have reason to

change his mind and to believe the second case to -be true either on account of something which has come to light later or something which has

been disclosed in the course of the first trial. In such circumstances he may honestly and honourably prosecute the second case. But how can he

ever be required to jumble up the false and the true by prosecuting both cases at once? There is not a word in the Code to suggest a procedure so

likely to bring courts of justice into contempt.

And the Public Prosecutor is not the only person to be considered. Are the assessors or the jury to be confused by the Crown putting before them

two contradictory cases? What are they to think of that Public Prosecutor arguing for the prosecution to-day and for the defence tomorrow, taking

up inconsistent positions, demolishing his own arguments, examining witnesses of truth and cross-examining them tomorrow to show that they are

liars? Can Jurors or assessors who have to watch such a performance be expected to take their duties seriously? It is probable that self-respecting

Jurors or assessors would show their disgust at such proceedings by refusing to find any one guilty in either case. And I think is a simple test which

will show that in cases tried by Jury the postponement of the verdict of the Jury in the first of two cases tried in succession until they have heard the

evidence in the second case, whether the two cases are counter-cases in the sense that one must be false or are merely connected cases, is

unquestionably illegal.

If the Judge at the end of the first case does not take the verdict of the Jury but requires them to listen to the evidence in the Second case before

they give any verdict what is he inviting them to do? He is inviting them to take the evidence in the second case into consideration before they give

their verdict in the first case. There can be no other object in requiring them to hear the evidence in the second case before they give a verdict in

the first. The Judge who does that is inviting the Jury to break their oath which they have taken in the first case that they will give a true verdict

according to the evidence in that case. Assessors are not bound by any oath; but it is clear that it is the intention of the Code that they shall give

their opinions as required by Section 309, at the conclusion of each case on the evidence in that alone.

And what of the accused persons, who are in turn in the dock? The Public Prosecutor is their champion today and their opponent tomorrow. How

can they be open with him when he is on their side without exposing to him the weak points in their armour, through which he can wound them,

when he in turn attacks them? And, when all the evidence in the first case has been given, the accused in that case are entitled to know that they

have nothing more to meet. But how can they prevent new evidence being elicited in the second case to fill gaps in the case against them? Worse

still, if they are made, as they must often be made witnesses for the prosecution in the second case, they will be exposed to cross-examination. In

this country no accused person, can be cross-examined. Where the prosecution evidence has been given, the Judge must question the accused for

the purpose of enabling him to explain the evidence against him. But the Judge must be very careful to avoid any question in the nature of cross-

examination; he must never lead the accused to convict himself out of his own mouth; he must never elicit anything to discredit the accused, he must

never trip him up. But, when the accused is produced as a prosecution witness in the counter-case, all these things will be within the province and

duty of cross-examining counsel.

An accused person cannot be punished for any false answer which he gives while in the dock; but the moment he is transferred to the witness-box

as a prosecution witness he will be liable to punishment for perjury. Even in England an accused person cannot be compelled to give evidence

against his will. In the strange jumble of trials we are contemplating the accused will have no choice but go into the witness-box in his turn, when

the Public Prosecutor requires him to do so, and in many instances it will be the duty of the Public Prosecutor to put him there.

In other words, in these cases and counter cases, five parties are placed in an embarrassing position as evident from the liberal extracts which I

have made above. Firstly, we have to consider the posi tion of the investigating Police who have put for ward before court two diametrically

opposite ver sions of the same transactions as truthful versions. Secondly, we have the Public Prosecutor who has to conduct both the cases

running with the hare and hunting with the hounds and thereby bring ing his own honourable office into disrepute. Thirdly, the assessors and the

Jurors if the same assessors and Jurors are empanelled for both. Fourthly, the embarrassment of the Judge who has to hear both the versions and

to allow him self to come to independent conclusion in both cases without the evidence in one prejudicing his mind in regard to the other. Fifthly,

we have the accused who has to double his role as a prosecu tion witness in the one and an accused in the other.

So far as the investigating Police are concerned, the solution is clear viz., the answer given by Reilly and Pandalai, JJ. In -- ''1932 5 Mad Cri C

235 (Z10) and by Reilly, C. J. and Nageswara Iyer J. In -- ''18 Mys LJ 229 (Z). It is unthinkable that any self-respecting police would put

forward two diametrically opposed versions before court taking a completely abbreviated view of their own functions and treating so

disrespectfully courts of law. It is enough to point out that such a contingency would be undreamt of in an English Criminal Court from which

system of criminal jurisprudence we borrow ours.

Turning to the position of the Public Prosecutor, the solution in ordinary practice has always been to appoint separate Public Prosecutors for

the conduct of case and counter-case. I have myself as sessions Judge for nearly twenty years tried important cases and counter with different

Prosecutors.

Turning to the embarrassment caused to the Jurors and assessors and the Judge the solution has been found in the Full Bench decision of --

T.K.M. Alagappa Chetty Vs. Saminathan Chetty and Others, , to which reference will be made presently.

in so far as the accused is concerned, If the police charge both versions of the same transaction under two cross-cases, then this would be a

case of compelling an accused to criminate himself, which is forbidden not only under the provisions of the Indian Evidence Act but also by the

Fundamental Rights assured by the Constitution. In fact Newsam J. feeling this difficulty went to the following extent in -- ''Sanna Basva in re'',

1937 Mad Cri C 338 (Z12). The learned Judge held:

The Prosecution witnesses in this case were mostly accused in the other case. Their statements do not amount to evidence because they are the

statements of persons who were themselves accused of the same offence in this very affray or free fight and also because they have admittedly not

stated the whole truth.

This dictum, if I may say so respectfully, was clearly held to be wrong by a Bench of this Court in -- In Re: Rahiman Khan Sahib, . The learned

Judge remarked :

It will be disastrous if the lower courts proceed to act upon the principle that the statements of witnesses are not evidence merely because they

happen to be the statements of persons who are accused in a counter-case.

But this would not be the case viz., that the accused be compelled to criminate himself as P.W. if both the cross-cases are not charged by the

Police and one of them happened to be a private complaint and in such a case it will be certainly open to the accused notwithstanding his being an

accused in the police case where he wont be compelled to criminate himself, to voluntarily give evidence in regard to his own version. This analysis

of the position of the accused ''vis-a-vis as a prosecution witness in the counter-case under the provisions of the Indian Evidence Act and the

Fundamental Rights assured by the Constitution, makes it clear that the Police cannot charge both the cross-cases and must either find out the truth

and charge that version which is true or if they are unable to do so to throw out both the cases or charge one version leaving it open to the

aggrieved party to resort to his own remedies.

in -- T.K.M. Alagappa Chetty Vs. Saminathan Chetty and Others, '', decided by Sir Owen Beasley O. J. and Stone and Burn, JJ., it was laid

down after reviewing the previous decisions as follows :

Where a case and counter-case are tried by a Sessions Judge no hard and fast rule can be laid down in regard to the procedure to be adopted.

The trials must be separate, i.e., before different assessors and different judgments delivered. The conclusions in each case must be founded on

and only on the evidence in each case.

It has to be noted that this Full Bench had the advantage of the ''amici curici'' arguments of Messrs Nugent Grant and L.H. Bewes (Public

Prosecutor) with unrivalled experience.

The principles laid down in these Madras decisions have been adopted by the other High Courts and has now become a settled practice

throughout India; -- ''Banappa Kallappa v. Emperor'', AIR 1944 Bom 146 (Z14); -- Khair Mohammad v. Emperor'', AIR 1940 Lab. 466 (Z15);

-- Khitish Chandra Bose Vs. Nanuram Maklania, , -- ''Heta Singh v. Emperor'', AIR 1935 Pat 494 (Z17); -- ''Beni Madho v. Emperor'', AIR

1941 Oudh 20 (Z18); -- Ganga Singh and Others Vs. Emperor, ; -- ''Ibrahim v. Emperor'', AIR 1938 Pesh 10 (Z20); -- ''Pushkar Narain v. The

Crown'', 1948 3 Dom LR (Am) 1.

The principles which can be evolved from these decisions can be compendiously set out as follows. If complaints of the offence of rioting be

given by both the parties during investigation, the investigating officer should enquire into both of them and adopt one or the other of the two

sources, viz., to charge the case where the accused were the aggressors or to refer both the cases if he should find them untrue in material

particulars. If he finds that the choice of either course is difficult, he should seek the opinion of the Public Prosecutor of the District and act

accordingly. A Magistrate before whom such a case is charged by the Police and a private complaint from the party whose case was referred,

should hear both the cases together and commit both the cases to the Sessions even if only one of them is exclusively triable by a court of Session.

If, however, the Magistrate feels that there is no acceptable evidence in both the cases, he should discharge the accused. If, however, in one case a

more serious offence like Section 148 I.P.C. is made out then in the interest of justice, both the cases should be sent to the First Class Magistrate

for disposal, and he may commit both the cases, or discharge the committal case and himself try the other or if he finds the committal case after

recording evidence one triable by himself proceed to enquire into both and convict or discharge or acquit, the accused in both the cases. The

Sessions Judge should if both the cases had been committed hear them in succession with different assessors and come to independent conclusions

keeping as far as possible the evidence in the one case distinct from the other. If in respect of an occurrence, there is a variation in time, or place,

or other circumstances warranting a reasonable inference that they are not parts of the same transaction, but that the earlier occurrence may even

be a motive for the later one, then the two cases may be tried separately and the aforesaid rules of procedure need not be applied. If in respect of

a single incident, two different versions are offered, and they are substantially divergent from one another, then it is the duty of the investigating

officer to find out which version is true and charge that case only leaving the other version to be prosecuted if so advised after a referred charge-

sheet being served on the complainant and in such cases also the rules for enquiry and trial as in case and counter should be followed.

If in trials not exclusively triable by a Court of Session, a Magistrate has to hear and dispose of the cases himself and he frames charges in one case

and does not frame any charges at all in the other, it cannot be considered that the Magistrate had made up his mind in the other case by not

framing the charges and some kind of reasonable apprehension cannot be said to be created in the minds of the accused in respect of the other

case where charges had been framed and transfer asked for on that ground. The fact that in a similar case the Magistrate came to a particular

conclusion on the evidence in that case is no ground for a transfer : -- ''Rajani Kanta v. Emperor'', 36 Cal 904 (Z21). Interest or bias should not be

inferred from the opinions formed by the Magistrates on evidence judicially recorded -- ''Ghulamali v. Emperor'', AIR 1935 Sind 72 (Z32) and --

''Walidad v. Nizam-ud-din'', AIR 1929 Lab 48 (Z23).

The principle maintained universally by all High Courts is that the accused has no reason able ground for apprehension that he will not have a fair

trial merely because the Judge in an ence in that case as to which of the two versions ancillary proceeding arising out of a counter- case has

expressed certain views upon the evid-is correct. The basis of the ruling is that Judges are presumed to be upright men who will approach each

case from the point of view of that case alone and not permit their minds to be affected in any way by anything that has gone before that case. It

cannot be believed that Judges are so easily prejudiced that because one incidental part of the case before them has been decided in a previous

case, they will shut their eyes entirely to anything that may be alleged in favour of the accused in a subsequent trial : -- ''Amrit Mandal v. Emperor'',

AIR 1916 Pat 33 (Z24).

Therefore the procedure adopted by the Sessions Judge in this case was wholly incorrect and has resulted in his not grasping the facts of the

entire transactions which took place that day and this has materially prejudiced the accused. I do not mean to imply that the counter case is true.

Obviously the counter case is a counterblast and bears on its face very many indicia of untruths. The motive put forward in that complaint does not

explain the occurrence as it took place. The eye-witnesses mentioned therein are all the partisans of the complainant in that case. That complaint

does not show how the extensive Injuries to the P.Ws. In this case and the death of Narayya were caused. In fact in this case contrary to his own

dying declaration, complaint, and sworn statement, D.W. 5 has taken upon himself the role of the assailant of Narayya and the infliction of the

injuries in the right of private defence. I have already mentioned how the gun which is introduced by the other side was found by the Circle

Inspector to be a padding. That case itself has been charge-sheeted by the Police as mentioned by the Circle Inspector not because he considered

it to be true but because his superiors found it politic to do so. It is enough for our purpose to point out that by not observing the procedure laid

down by the High Courts the trial of this case has become a lopsided affair and the learned Sessions Judge has disabled himself from grasping the

entire facts of the case and which has resulted in material prejudice to the accused.

POINT 4: The general criticism generally being levelled by the learned counsel for the accused in these rioting cases, and levelled also in the

instant case is that the evidence of these prosecution witnesses is partisan evidence. It is our experience that in these factious areas it will be

impossible to secure evidence of independent non-partisan witnesses becauseitstands to commonsense that such persons take care not to get

mixed up in these gangster fights. As the old Latin proverb has it ""If a murder happens in a brothel, generally we can have only strumpets as

witnesses"". In very many cases when the fire-works start and the riotous crowd starts pelting stones to scare off people, as has happened in the

instant case person unconnected with the faction either shut themselves up or watch what happens from a safe distance and behind cover.

Therefore, the fact that the prosecution witnesses are partisans is not a ground for rejecting their testimony out of hand but to scrutinise them with

care. That is why we have to accept their testimony only subject to the tests which will be mentioned and if found resultantly satisfactory. To hold

otherwise would be to confer a character of immunity upon gangsters. On the other hand there is no reason whatsoever why even in such a case

these witnesses should implicate persons who did not really injure them & let off persons who actually injured them and who must necessarily be of

the opposite side and faction.

Therefore, the following four tests have been laid down by all the High Courts in innumerable cases to fix the culpability of the accused viz.,

whether they had a motive to share the common object and be present at the unlawful assembly and participate in the acts of violence therein;

secondly, whether they committed the acts proved by well corroborated evidence and which would establish affirmatively their common object,

presence and participation; thirdly, whether the names of these persons have been mentioned at the earliest instance; and finally the exonerating

pleas of these persons and how far they can be acted upon.

It is quite true that in this case the accused are all the partisans of Thota Ramakotayya and have made themselves further obnoxious to the P.Ws.

by individual acts of hostility towards the P.Ws. In addition, accused 3 is the brother of accused 1; accused 4 and 5 are related to accused 1;

accused 6 and 7 and their father gave evidence against G. Venkatappayya and gave statements before the Revenue Inspector on the purchase of

service inams; accused 8 and 9 are brothers and accused 8 gave evidence against the opposite side in the service inam matter; accused 10 and 11

are brothers against whom the maternal grandfather of Venkatappayya filed a suit and which was pending on the date of the offence; accused 12

to 15, 18, 21 and 22 are found to have helped accused 1 in the election; accused 16 has been suspected of an intrigue with P.W. 1''s wife and

accused 17, 19 and 20 seem to have had civil disputes with the members of opposite party. This motive, however, is a double-edged weapon and

if these accused had a motive to join the rioting by the same token there was every motive on the part of the opposite side to implicate them all

falsely in this rioting case. Therefore, we have to look to the other circumstances to find out whether the prosecution case is true.

The complaint on behalf of the accused has been filed, charged and is pending enquiry. The complaint in this case has undoubtedly been given

before the complaint Ex. P-1 was given. Therefore, this assortment of accused in this case might be due to retaliation and nothing more. In other

words, when what took place was a mere clash between few persons on each side as narrated by ''K. Nagayya in Ex. P-37 both the factionists

must have thought this a golden opportunity to implicate as many of their enemies as possible and when the accused persons set the example, the

P.Ws. have done nothing more than follow that and convert the P.Ws. in that case into accused person in their complaint. The inclusion of these

accused persons seems to be based not on the fact that they were present but that for exigencies of faction they should be made to be present.

Turning to the evidence of eye-witnesses there are two circumstances showing that the evidence must be false. The first circumstance is that at the

inquest none of the p. Ws. had been examined and so in regard to the overt acts, excepting that accused 3 and 5 beat P.W. 1, we have no other

details in Ex. P. 1. Therefore there was ample time for these witnesses to arrange the details in such a way as to capitalise every trivial injury and to

attribute a specific act to every individual accused. Then, when coming into the box these witnesses have given such meticulous details regarding

not only the injuries to themselves but also in regard to every other injured P.W., that it cannot be truthful evidence. It is quite true that as Jackson

J. remarked

Apart from the witnesses'' general credibility I do not consider that anything turns on the fact that the witnesses may not have given

photographically correct account of the exact details. For some reason best known to himself, an Indian villager never says that there was a general

kicking and beating, but works out an analysis of fists and feet and right sides and left sides which is shown to be ridiculous but which does not

necessarily prove him to be telling lies. It is merely his habit of thought and speech. The medical evidence may not reveal a mark for every blow.

But that is not important.

But in this case on the other hand the P.Ws. have given the evidence the other way round viz., they capitalise every trivial injury found on them &

recorded in the wound certificate, they have given pretended photographically correct account of the exact details of the injuries inflicted upon all

the injured P.Ws. by all the accused. Obviously, it is due to pre-fabrication. This receives corroboration from the fact that notwithstanding the ex

tensive and rambling cross-examination, no discrepancy worth mentioning has been elicited and this stream-lined testimony is only consistent with

the tutored unveracity of these witnesses.

he subsequent investigation has not in any way attempted to sift the truth from the falsehood because all that has happened is, as already pointed

out, the dumping of the information given by the P.Ws. In this case and the proposed dumping of the information given by the present accused in

the other cases. In such circumstances the only weapon at the disposal of the court for finding out the truth was the cross-examination of these

witnesses and which weapon was of no use in this case because the P.Ws. who are the accused in the other case would not incriminate themselves

and throw any light as to how the injuries were caused to the accused persons and the accused persons could not put forward their case effectively

because their case is still pending. The net result of this analysis is that the prosecution evidence in this case for bringing home the offence to the

accused consists of partisan evidence unsifted by investigation, lopsided in its presentation in court and incapable of being properly tested by

reason of not committing to the sessions court both the case and the counter.

In these circumstances it cannot be legitimately held that the prosecution has brought home the offences to the accused persons with which they

stood charged and for which they nave been convicted. The accused are entitled to the benefit of the reasonable doubt arising from the aforesaid

factors & their convictions and sentences are set aside and they are acquitted and these appeals are allowed.