The Court adjudged that if an evidence of witness, which was given in the committing Court of the magistrate, was brought on record in the Session Court under Section 288 of the Criminal Procedure Code, 1898, it was to be treated as if it was a evidence given in the Sessions Court - Therefore, the same would be a testimony within the meaning of Section 157 of the Evidence Act, 1872 and could be corroborated there under.
Chainani, Ag. C.J.
1. This is an appeal by accused Nos. 8 and 9 against their convictions under Sections 148 and 307 read with Section 149 of the Indian Penal Code and Section 19(e) of the Indian Arms Act and sentences passed upon them for these offences.
2. These accused as well as the other eight accused, who were tried along with them, are residents of Kavathe Piran. Witness Tukaram also belonged to this village. About 7/8 years ago there was a quarrel between Tukaram and father of accused No. 5. Since then there was enmity between Tukaram and the accused. Tukaram was also beaten on two occasions. As Tukaram was afraid of living in the village thereafter, he left Kavathe Piran and went to reside at Bhadule in Kolhapur, District. On 5-5-1957 Tukaram returned to his village as he had some work in connection with his lands with the Talathi. In the afternoon of that day, Tukaram went to a cloth shop known as Patil Cloth Stores. The prosecution story is that while he was sitting on a chair in that shop, the 10 accused went there. Some of the accused dragged Tukaram outside the shop and he was then assaulted with a scythe by accused Nos. 1, 2 and 5. Accused Nos. 3, 8 and 9 were armed with rifles. They pointed these rifles at the crowd which had gathered there and prevented anybody from going to the rescue of Tukaram. After Tukaram fell down on the ground, the accused ran away. In the meantime the Manager of the cloth shop telephoned to the Police Station that a 'maramari' was going on in front of his shop and that Tukaram was being beaten with a scythe. A police party was immediately sent to the scene of offence. They found Tukaram lying injured on the ground. Tukaram was then removed to the Civil Hospital. Another Policy Party was returning from a raid about the same tie. They saw accused Nos. 1 to 7 running away. Immediately afterwards shouts were heard from the crowd that the persons, who were running away, had committed a murder. Sub-Inspector Bhosale, who was in charge of this party, rounded up these accused and put them in a police van and took them to the police station. As Tukaram's condition was considered to be serious, arrangements were made for his dying declaration being recorded. It was recorded by witness Thorat, Special Executive Magistrate, Sangli. In that statement Tukaram implicated accused Nos. 1 to 4, 8 and 9. He stated that three of them, accused Nos. 3, 8 and 9, were armed with rifles. Thereafter the Sub-Inspector recorded Tukaram's statement (Exh. 6-B), which has been treated as the first information of the offence. In that statement also Tukaram implicated the same accused and accused No. 10. Attempts were then made to trace the two appellants, accused No. 8 and 9. They could not be found in the village until 17-5-1957, on which date they were arrested. Accused No. 10 was arrested subsequently. thereafter all the accused were sent up for trial for committing offences punishable under Sections 147, 148 and 307 read with Section 149 of the Indian Penal Code. The appellants and accused No. 3 were also charged under Section 19(e) of the Indian Arms Act. All the accused pleaded not guilty to these charges. The appellants denied their presence at the scene of offence and stated that they had been falsely involved. The learned trial Judge came to the conclusion that the charges had been satisfactorily proved against the two appellants and accused Nos. 1 to 5. He therefore convicted these accused under Sections 148 and 307 read with Section 149 of the Penal Code. The two appellants were also convicted under Section 19(e) of the Indian Arms Act. the other three accused Nos. 6, 7 and 10 were acquitted by him. (After discussing the evidence, His Lordship proceeded:)
3. The next and the most important question to be considered is whether the two appellants, accused Nos. 8 and 9 were members of this unlawful assembly and whether they were armed with rifles at that time. Practically all the material witnesses, including Tukaram himself, turned hostile in the Sessions Court. The prosecution therefore brought on record the evidence of Tukaram given in the Committing Magistrate's Court under Section 288 of the Criminal Procedure Code. In his evidence in that Court Tukaram has stated that accused Nos. 8 and 9 and accused No. 3 were armed with rifles at the time of the offence and that they were intimidating the other persons and preventing them from rescuing him. He has also stated that witness Baburao had gone to his rescue but that he had been pushed aside by these accused. Tukaram resiled from this evidence in the Sessions Court. In his evidence in the Sessions Court he stated that he had been beaten by some unknown persons and that accused Nos. 1 to 5 and thee two appellants had gone to his rescue. Even in his evidence in the Sessions Court, therefore, he stated that the appellants were present at the time of the offence, but his story was that they had gone to rescue him and not in order to assault him. The learned trial Judge did not accept the evidence given by Tukaram in the Sessions Court. He believed the evidence given by him in the Committing Magistrate's Court which, according to him, was corroborated by the first information and the statement of Tukaram recorded by the Executive Magistrate and the evidence of two witnesses Shankarlal and Mangilal.
(After dealing with certain points not material for purposes of reporting and discussing evidence, His Lordship proceeded:)
4. As I have mentioned, Tukaram's dying declaration was recorded by the magistrate, as his condition was considered to be very serious. In this statement (Exh. 34A) Tukaram stated that the two appellants and accused No. 3 were armed with guns and that they had pointed these guns at the crowd and stopped all traffic on the road. This statement is not admissible in evidence as a dying declaration, as Tukaram has survived of the injuries received by him. The learned government Pleader has urged that this statement is admissible under Section 157 of the Indian evidence Act in order to corroborate the evidence given by Tukaram in the Committing magistrate's Court. Section 157 provides that in order to corroborate the testimony of a witness, any former statement made by such witness relating to the same fact at or about the time when the fact took place may be proved. This section is contained in Chapter X, the heading of which is 'Of the examination of witnesses'. Section 135, which is the first section in this Chapter, deals with the order in which witnesses may be examined. Sections 137 and 138 provide for the manner in which a witness may be examined. Sections 141 to 143 relate to questions, which may be put to witnesses, when they are being examined. Section 145 provides for the manner in which a witness's evidence may be contradicted by reference to his previous statements. These and other provisions in this Chapter, which also contains Section 157, have been relied upon by Mr. Paranjpe in support of his argument that the words 'testimony of a witness' in Section 157 mean the evidence of that witness given at the trial of the case, in which he is examined as a witness and not any statement made by him before the trial. We might perhaps have been inclined to accept this argument, if the question had to be decided by reference to section 157 only. In this case, however it is also necessary to consider Section 288 of the Criminal Procedure Code. This section provides that the evidence of a witness duly recorded in the presence of the accused under Chapter XVIII, i.e. in Committal proceedings, may, in the discretion of the presiding Judge, if such witness is produced and examined, be treated as evidence in the case for all purposes subject to the provisions of the Indian Evidence Act, 1872. As observed by the Supreme Court in Tara Singh v. The State, , this section imports into the law of evidence something which is not to be found in the Evidence Act, viz. to make a statement of this kind substantive evidence. Consequently the evidence of a witness given in the Committing Magistrate's Court is, if it is brought on record in the Sessions Court under Section 288, to be treated as if it was evidence given in the Sessions Court. It stands on exactly the footing as evidence given in the Sessions Court. It would therefore be 'testimony' within the meaning of Section 157 of the Indian Evidence Act.
5. Mr. Paranjpe has relied on the decision of this Court in Emperor v. Akbar Badoo, ILR 34 Bom. 599. In that case at p. 602 it was observed that only the statements of witnesses made to the trying Court can be corroborated in the manner contemplated by Section 157 of the Indian Evidence Act and that previous statements could be used to corroborate or contradict statements made at the trial, but not to corroborate statements made prior to the trial. The judgment contains no reasons for so limiting the meaning of the word 'testimony' in Section 157. This case was decided in 1910. Since then Section 288 has been amended and the words 'for all purposes subject to the provisions of the Indian Evidence Act, 1872' were added in 1923. Under the section as amended, the deposition of a witness given in the Committing Magistrate's Court is, after its admission under Section 288, to be treated as evidence for all purposes, that is, as if it was evidence given in the trial Court. It is therefore also evidence, which can be corroborated under Section 157 of the Indian Evidence Act. This is also the view, which has been taken by the Calcutta High Court in Manar Ali v. Emperor, ILR Cal 1339. In that case it was held that the object of Section 288 is to place a deposition in the committal enquiry on exactly the same footing as the deposition in the Sessions Court, that the deposition before the Committing Magistrate put in under Section 288 is substantive evidence in a case that the credibility of the statement before the Committing Magistrate's Court must be considered and tested in the same way as the one made in the Sessions Court and that consequently the statement made by a witness before a Magistrate under Section 164 of the Code is admissible in evidence to corroborate the statement put in under Section 288. With respect, we agree with the view taken by the Calcutta High Court.
6. The statement of Tukaram, Exh. 34-B recorded by the Executive Magistrate, is therefore admissible in evidence for the purpose of corroborating the evidence given by him before the Committing Magistrate's Court. (The rest of the judgment has been omitted as it is not necessary for the purposes of reporting.)
7. Appeals dismissed.