Authored By : N.G.A. Edgley, Sen

N.G.A. Edgley, J.

1. In this case the learned Sessions Judge of Nadia has madea reference to this Court under S. 374, Criminal P.C., in respect of RahenuddinMondal who was sentenced to death by him on 20th January 1943. The prisoner hadbeen placed on his trial on a charge of murdering a woman named Sarasi Bala Dasion or about 30th July 1942. He was found guilty under S. 302, Penal Code, by amajority verdict, five of the jurors holding that he was guilty, while four ofthem found that he was not guilty. The case for the prosecution was to theeffect that, on the day of the occurrence Sarasi Bala Dasi left her house inorder to bathe in the Chhota Pagla Beel which was situated at a distance ofabout three rashis from her residence. While she was on her way she wasattacked by the prisoner who cut her throat apparently for the purpose ofstealing a gold necklace which she was wearing. At this time a boy namedPutiram Biswas who had been ploughing his field near the road witnessed theoccurrence and raised the alarm. A number of villagers arrived on the scene andgave chase to the murderer. The chase was a long one and apparently occupiedseveral hours. Finally, Rahenuddin Mondal took refuge in the verandah of thehouse of Jyotish Haldar where he was arrested. Blood was found on his personand on the cloth which he was wearing. Subsequently, he was taken to the houseof Dr. Aswini Pramanik where he was identified by Putiram Biswas. He wasarrested in due course and after the usual proceedings before the Committing.Magistrate he was placed on his trial before the Sessions Judge of Nadia.(After discussing the evidence His Lordship proceeded.) Our attention has alsobeen called to another minor discrepancy between the testimony of Panchu GopalBiswas and his statement in the first information report. In the latter documenthe stated that he and some of his co-villagers saw a man running away throughthe Singnagar field while they were searching for the murderer. In his evidencehe merely states that after he had run a rashi he saw the appellant runningahead. We do not think that any significance can be attached to a discrepancyof this kind. In any case, however, we must point out that, even if it could besaid that there were discrepancies of a serious nature between the testimony ofthe first informant as given in Court and the previous statement made by him inthe first information report, it would not be open to the defence to place anyreliance on these discrepancies unless there had been a due compliance with theprovisions of S. 145, Evidence Act. The first information report is notsubstantive evidence. It is merely a previous statement which may be proved bythe prosecution for the purpose of corroborating the first informant and may beused by the defence for the purpose of contradicting him.

2. If it is desired to use any statement contained in thefirst information report for the purpose of contradicting the first informant,it is essential that the attention of the witness should be drawn to thoseparts of the document, which it is intended to use for the purpose ofcontradicting him, in order that he may be given an opportunity to furnish asuitable explanation with regard to the alleged contradiction. This had notbeen done in the case with which we are now dealing. After the first informanthas testified with regard to a particular incident connected with theoccurrence the requirements of S. 145, Evidence Act, are not met merely byasking him whether he made some other statement to the police. The attention ofthe witness must be expressly drawn to the terms of the relevant passage in theother statement and he should be asked whether he has any explanation to offerwith regard to any apparent discrepancy. This was not done in the present casewith regard to any of the abovementioned discrepancies upon which the defencerely and it follows that, with regard to the evidence of Panchu Gopal His was,the appellant was placed in a more favourable position before the jury thanthat to which he was legally entitled. Further, with reference to thisparticular witness we find that his deposition before the Committing Magistratewas allowed to be put in by the defence under the provisions of S. 288;Criminal P. C. We find it extremely difficult to understand why this course wasadopted as Panchu Gopal Biswass deposition before the Committing Magistrateseems only to contain at the most two very minor discrepancies. The first iswith regard to the depth of the water of the Pagla Beel and the next was on thepoint whether the appellant questioned the villagers who arrested him as to whythey had chased him. If the deposition of this witness be read as a whole, heappears to have told substantially the same story both before the CommittingMagistrate and before the Sessions Court. Section 288, Criminal P.C., is in thefollowing terms:

The evidence of a witness duly recorded in the presence ofthe accused under Chap. 18 may. in the discretion of the presiding Judge, ifsuch witness is produced and examined, be treated as evidence in the case forall purposes subject to the provisions of the Indian Evidence Act, 1872.

3. In our view this section confers a discretion on theJudge which should be very carefully and sparingly exercised. The generalscheme of the Evidence Act and of the Code of Criminal Procedure with regard tocriminal trials is that the evidence for or against an accused person shouldordinarily be given in open Court and that the witness should be subjected tocross-examination in the ordinary way with regard to all statements made byhim.

4. If a witness completely resiles from the evidence whichhe has given before the Committing Magistrate or, if the testimony which hegives at the trial of an accused person is substantially different from thatwhich he has given on some previous occasion it may be necessary for the Judgeto exercise his discretion under S. 288, Criminal P.C., for the purpose ofbringing the previous statement on the record. In the present case, however, weare of opinion that the learned Judge wrongly exercised his discretion underthis particular section. As already pointed out, the testimony of Panchu GopalBiswas before the Committing Magistrate was substantially the same as thatwhich he gave before the Sessions Court. If it had been considered necessary tocontradict him by any statement contained in his previous deposition thisshould have been done under S. 145, Evidence Act, by observing the procedure towhich attention has already been drawn. In any case, however, even if it hadbeen necessary to apply the provisions of S. 288, Criminal P.C., in this case,it would still have been incumbent upon the defence if they wished tocontradict Panchu Gopal Biswas by anything contained in his previous depositionto draw his attention to those passages in that deposition by which it wasintended to contradict him, inasmuch as S. 288, Criminal P.C., expressly statesthat this section must be treated as subject to the provisions of the EvidenceAct. This is, therefore, another instance in which the appellant appears tohave had the benefit of an advantage to which strictly speaking, he was notentitled.

5. Before leaving the first information report it may, alsobe mentioned that Mr. Talukdar has relied upon certain statements contained inthis document for the, purpose of discrediting the witnesses other than thefirst informant In our view, this is a use to which a document of this naturecannot properly be put To use the first information report in this way is ineffect to treat it as substantive evidence in a case, whereas, as alreadypointed out, it is merely a previous statement which may be used either for thepurpose of corroborating the first informant or for discrediting him, providedthe proper procedure is observed The next three important witnesses areGourpada Bhattacharjee, P.W 3, Panchanan Biswas, P.W 4 and Bnndaban Mondal P.W5 These witnesses corroborate the testimony of Panchu Gopal Biswas with regardto the details connected with the chase and the subsequent arrest of theappellant at the house of Jyotish Haldar They also furnish corroboration asregards the testimony of Putiram Biswas with regard to the circumstances inwhich the alarm was given From the testimony of these persons there can be nodoubt that, at the time of his apprehension, the appellant was wearing ablood-stained cloth and also that he had blood-stains on his person. Althoughhe had an opportunity to explain both his attempt to escape and the presence ofthese blood-stains no satisfactory explanation was offered by him with regardto these matters.

6. We find that the whole of the deposition of BnndabanMondal at the previous trial of this appellant was put in under the provisionsof S 145, Evidence Act This was apparently done for the purpose of bringingsome minor discrepancies on the record The observations which we have alreadymade with regard to S. 145, Evidence Act, apply also in this case as it isquite clear that this witness was not properly cross-examined with regard tothese alleged discrepancies nor was he given an opportunity of explaining themIn any view of the matter, however, it was not necessary to put in the whole ofthis witnesss deposition at the previous trial of this appellant If the properprocedure had been observed, all that need have been done was to put in thesepassages in the former deposition by which it was intended to contradict thewitness (After dealing with the evidence of the doctor who testified withregard to the nature of the injuries on the deceased woman and of certain otherwitnesses His Lordship concluded) We consider that the prosecution case wasfully established The evidence was placed very carefully before the jury by thelearned Sessions Judge and, as already pointed out the appellant was in factgiven the benefit of certain advantages to which he was not legally entitledThe evidence of Putiram Biswas s was apparently believed by the majority of thejurors and we consider that they were quite justified in considering that thiswitness had spoken the truth The circumstances proved by the other witnessesfurnish very convincing corroborative details and there is no doubt that theappellant committed a murder of extreme brutality We consider that the verdictof the jury was correct and that the appellant has been properly convicted ofmurder Having regard to the circumstances and the callous and brutal nature ofthe crime we have no option but to confirm the sentence of death which has beenpassed upon the appellant The result, therefore, is that the reference isaccepted and the appeal is dismissed

Sen, J.

7. I entirely agree with my learned brother The charge ofthe learned Judge in this case is full and fair, and I see no material defecttherein The main evidence against the appellant is that of an eye-witnessPutiram and of certain other witnesses to whom Putiram had described what hehad seen I have not the slightest hesitation in accepting what Putiram had saidto be true That being so, there can be no doubt that the accused committed thismurder Putirams evidence has been corroborated as I have said before, by otherpersons to whom Putiram described what he had seen and who immediately chasedthe accused and subsequently seized him. The murder was a most brutal and coldblooded one, and the only sentence that could be passed in a case of thisdescription is the one which the learned Judge has passed.

8. I agree with what my learned brother has said about S.145, Evidence Act, and S. 288, Criminal P.C. The only justification for mysaying anything more about this matter is that the infringements of these twosections have been far too many in the cases which have come up before me. Ishall say only a few words merely to emphasise what has already been said by mylearned brother. I shall first deal with S. 145, Evidence Act. When theevidence of a witness given before the jury is sought to be contradicted bysomething which he has said on some previous occasion in the course of astatement made by him which has been reduced to writing, the proper course tofollow is this: the attention of the witness should be pointedly drawn to thatportion of the previous statement which is contradictory to his presentstatement and he should be asked to give such explanation as he thinks properin respect of the contradiction. It is only after this has been done that thatportion of the previous statement which is contradictory to the presenttestimony can be proved for the purpose of contradiction. Further, the entireprevious statement in which the contradiction appears should not be put inevidence but only so much thereof as is contradictory to his testimony beforethe jury. In this case the deposition of Brindaban Mondal, P.W. 5, at theprevious trial of this accused was put in evidence for the purpose ofcontradicting some statements of Brindaban Mondal made at the present trial. Wefind that the entire statement of Brindaban Mondal in the previous trial hasbeen put in. Further, we find that the contradictory statements were notexpressly put to the witness and he was not given an opportunity of explainingthe contradictions. It is not sufficient merely to ask a witness whether he hadmade a contradictory statement on some previous occasion. He must be given areal opportunity of explaining the contradictions. That is all I need say aboutS. 145, Evidence Act.

9. I now turn to the law regarding S. 288, Criminal P.C.This section is constantly being misapplied. The idea seems to prevail thatwhenever a witness says something which is contradictory to some portion of hisformer statement, the former statement should be put in under S. 288, CriminalP.C. This is not the intention of the section. Once a statement is put inevidence under S. 288, Criminal P.C., it becomes substantive evidence and itcan be used for all purposes subject to the provisions of the Evidence Act. Theuse of statements put in under S. 288, Criminal P.C., is not restricted to thepurposes of contradiction or corroboration. That being so, Judges should beextremely cautious in applying this section. It is only in very exceptionalcases that statements should be put in under this section. I do not propose togive any exhaustive list of the conditions under which this section should beutilised; but, for the sake of illustrating my meaning, I would say that wherea witness resiles entirely or to a very great extent from his previousstatement or where a witness has forgotten a great deal of what he had statedin his previous statement, the Court will be exercising a wise discretion inputting in the previous statement under S. 288, Criminal P.C. But merelybecause the previous statement contains some stray statements which arecontradictory to the present testimony of the witness, it is not permissible toput in the entire previous statement under S. 288, Criminal P.C. In this case,the previous statement of Panchu Gopal Biswas before the Committing Magistratewas put in under S. 288, Criminal P.C. What Panchu Gopal had said before theCommitting Magistrate is in all material particulars the same as what he hadsaid before the learned Judge and the jury. There was, therefore, nojustification for putting in the entire statement under S. 288, Criminal P.C.

10. Further, I would point out that if a statement has beenproperly put in under S. 288, Criminal P.C., and either of the parties wishesto use any portion of that statement for the purpose of contradicting thepresent testimony of a witness then it would still be necessary for that partyto observe the provisions of S. 145, Evidence Act, by drawing the attention ofthe witness to the contradictory statement in the previous statement for thepurpose of explaining the contradiction.

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Emperor vs.Rahenuddin Mondal (01.03.1943 - CALHC)