S.D. Singh, J.
1. The applicants Bisram Singh, Bahadur Singh, Mahinder Singh, Gangadin and Sobaran Singh were convicted by the Assistant Sessions Judge, Mainpuri, two of them under Section 148 and the other three under Section 147 and all of them under Section 307 read with Section 149 of the Indian Penal Code. Bisram Singh and Bahadur Singh who were convicted under Section 148 have been sentenced to two years rigorous imprisonment thereunder and the other three who have been convicted under Section 147 to one year's rigorous imprisonment and all of them have been sentenced to four years' rigorous imprisonment under Section 307 read with Section 149 of the Indian Penal Code. The applicants went up in appeal which was dismissed by the Sessions Judge andhence this application in revision bythem.
2. There was an occurrence at about 8 a.m. on 23rd September, 1963. Saheb Singh's calf was let loose and had gone to the cattle trough of Bisram Singh and others to which objection was raised by them. Saheb Singh apologised for the same and was even prepared to compensate Bisram Singh, but he was not satisfied with it He held out a threat to Saheb Singh, called the other accused of the case and Bahadur Singh among them brought a kanta and a spear and while he handed over the kanta to Bisram Singh he retained the spear with him; the other accused were armed with lathis, and all the accused attacked Saheb Singh. Saheb Singh received injuries which were examined by Dr. K.M.L. Chaube the same evening at 5.30 p. m. The injury report is Ex. Ka. 5. Next day Saheb Singh got a report written bv one Darshan Lal. This report is Ex. Ka. 1 and it was sent to the police station at Mainpuri wherefrom it was forwarded to the police station concerned.
3. It appears that a counter-affidavit was also made against Saheb Singh. Badan Singh and Rakesh and two others. After the statements of the witnesses were recorded in this case in the court of the Committing Magistrate the parties appear to have come to terms and the counter case started at the instance of the present applicants was compounded. The case against the applicants, however, proceeded further and when it came to the stage of trial before the Sessions Court, the three witnesses in the case Badan Singh (P. W. 1). Rakesh (P. W. 2) and Saheb Singh (P. W. 4) so changed their statements that normally there could be no conviction on the basis thereof. The Assistant Sessions Judge, however, relied upon Section 288 of the Code of Criminal Procedure and treated the statements of these witnesses before the Committing Magistrate as evidence in the case and has relied upon the same for convicting the present applicants.
3-A. The Sessions Judge agreed with the trial court that the statements of the three witnesses before the Committing Magistrate could be treated as substantive evidence under Section 288 of the Code of Criminal Procedure and relied upon them for the conviction of the applicants. He found that their statements were materially corroborated by the circumstances of the case.
4. The question whether the offence alleged against the applicants is made out on the basis of the evidence relied upon by the courts below is a pure question of fact which cannot be entered into in revision. Both the courts have believed the evidence which has been referred to in their judgments and their conclusions cannot be scrutinized afresh on a pure question of fact
5. Two questions of law were, however, raised at the hearing of this application in revision. It was urged that one of the applicants was not present in court when the statements of the witnesses were recorded by the Committing Magistrate and it was, therefore, contended that the evidence of the witnesses recorded before the Committing Magistrate could not be read in evidence against all the applicants or at least against the particular applicant who was absent in the court of the Committing Magistrate.
6. The second question argued was whether the evidence recorded in the case before the Committing Magistrate could by itself be taken as sufficient for finding an accused guilty, even though the statements of the witnesses in the Sessions Court differ from what they had deposed before the Committing Magistrate.
7. So far as the first contention is concerned, the law seems to be clear. It is only that evidence of a witness which is duly recorded in the presence of the accused which may in the discretion of the presiding judge be treated as evidence in the case. The statements in the court of the Committing Magistrate must have, therefore, been recorded in the presence of the accused, if those statements are to be read in evidence in the Sessions Court. The only question, therefore, which remains to be considered in this respect is whether the statements were in fact recorded in the presence of the accused or not. What happened was that Sobaran Singh, one of the applicants, fell ill when the case was proceeding In the court of the Committing Magistrate and he, therefore, moved an application for his attendance being exempted under Section 205(1) of the Code of Criminal Procedure, The Magistrate passed an order:
'Personal attendance of the accused Sobaran is exempted for today and he is allowed to be represented by the defence counsel Sri Gyan Prakash Saxena Advocate.'
The application was moved by his counsel Sri Gyan Prakash Saxena and exemption was granted to him from attendance in court but the proceedings were to continue and the accused was to be represented by his counsel. Can it be said under these circumstances that the evidence so recorded in the Court that day in the absence of the accused was 'in his presence', which in other words means whether the expression 'presence of the accused' in Section 288 means personal presence of the accused in court or would cover his appearance through counsel.
8. Normally proceedings in a criminal case are taken in the presence of the accused. Section 205 of the Code of Criminal Procedure makes an exception when it provides that a Magistrate may dispense with the personal attendance of the accused and permit him to appear through his pleader. When an accused is allowed to be present in court through his counsel, it is to be assumed that for all practical purposes the accused is present in Court. Otherwise the question of exempting him from personal attendance would become meaningless. If an accused absents himself at the time of the hearing of a case against him, the case normally does not proceed against him and it is to avoid that contingency that provision is made in Section 205 for exemption being granted to an accused in a suitable case so that hearing of the case may not be disturbed. If the effect of this exemption is that the proceedings taken in the court are regarded as proceedings taken in the absence of the accused then there would be no sense in granting exemption and proceeding with the case with the accused represented by his counsel. No authority was cited in support of the contention that the expression 'presence of the accused' in Section 288 means personal attendance of the accused in court and would not include a case in which the accused appears in court through his counsel under Section 205(1) of the Code of Criminal Procedure. In my opinion this expression would only mean that the accused must be present in court by himself or be represented by his counsel, and after that happens he will be deemed to have been present in court and the statements recorded even in such presence of the accused would be liable to be read In evidence in a subsequent trial under Section 288 of the Criminal Procedure Code.
9. So far as the second contention is concerned, the case relied upon by the Assistant Sessions Judge as well as the Sessions Judge namely Sharnappa Mutyappa v. State of Maharashtra, AIR 1964 SC 1357 concludes the matter. Where it becomes necessary to rely upon the provisions of Section 288 of the Code of Criminal Procedure it is obvious that there are two contradictory statements made by the same person. The witness who is examined in the Sessions Court must have made one statement before the Committing Magistrate and a different statement in the Sessions Court and in that case alone it becomes necessary for the court to fall back upon his statement in the Committing Magistrate's court under the provisions of Section 288 aforesaid. Their Lordships of the Supreme Court observed in respect of this situation.-
'Where a person has made two contradictory statements on oath it is plainly unsafe to rely Implicitly on his evidence. In other words, before one decides to accept the evidence brought in under Section 288 of the Code of Criminal Procedure as true and reliable one has to be satisfied that this is really so. How can that satisfaction be reached? In most cases this satisfaction can come only if there is such support in extrinsic evidence as to give a reasonable indication that not only what is said about the occurrence in general but also what is said against the particular accused sought to be implicated in the crime is true. If there be a case -- and there is such infinite variety in facts and circumstances of the cases coming before the courts that it cannot be dogmatically said that there can never be such a case -- where even without such extrinsic support the judge of facts, after bearing in mind the intrinsic weakness of the evidence, in that two different statements on oath have been made, is satisfied that the evidence is true and can be safely relied upon, the Judge will be failing in his duty not to do so.'
It Is clear, therefore, that in the view of their Lordships of the Supreme Court there may be a case in which even without extrinsic support the Judge of facts may after bearing in mind the intrinsic weakness of the facts, be satisfied that the evidence as given before the Committing Magistrate is true and can be safely relied upon; and in the words of their Lordships themselves if he, even when so satisfied, does not proceed to rely upon such evidence, he would be failing in his duty. This is one of those cases in which both the courts below have found the evidence given before the Committing Magistrate true and liable to be safely relied upon. In the case before their Lordships the entire case against the accused of that case rested upon the solitary statement of one witness who had made contradictory statements and there was no extrinsic evidence to support the statement of the witnesses given in the Court of the Committing Magistrate and in that circumstance their Lordships came to the conclusion that his statement in the Committing Magistrate's court could not be relied upon. In the instant case, however, the position is materially different. There is the evidence of not one but three witnesses who supported the prosecution case in the Court of the Committing Magistrate. All of them turned sides and though they supported the prosecution story that there was an incident in which Saheb Singh was injured, they have partly twisted the story here and partly there so as to show that the prosecution case as given out in the Sessions Court was not true. This was done in the background that the parties had come to terms out of court and as a result of the same one of the two counter-cases had even been compounded. They might have moved an application for the compounding of the offence even in this case, had it not been for the fact that the applicants were charged under Section 307 of the Indian Penal Code and that offence was not compourtdable. The only course which was open to them was to tamper with the evidence and that tampering came in this case in the form of twisting the statements in the Sessions Court so as to weaken the prosecution case. It is gratifying to note that both the Assistant Sessions and the Sessions Judge sailed clear of the difficult situation in which this attempt on the part of the applicant and the complainants had placed the prosecution case.
10. In respect of Rakesh (P. W. 2) It was pointed out that the trial Court had doubted his presence at the time of the occurrence, but the Sessions Judge was not so doubtful about his presence at the time of the occurrence; and it was conceded that Rakesh was one of the accused in the counter-case, which means that he was present at the time of the occurrence even according to the applicants.
11. The statements of the three witnesses Saheb Singh, Badan Singh and Rakesh corroborate each other. Their statements as a whole are corroborated by the statement of Dr. M.L. Chaube (P. W. 7) and the injury report (Ex. Ka. 5). Saheb Singh had one contused wound, one punctured wound and one incised wound and these three injuries clearly indicate that at least three kinds of weapons were used against him. These injuries are, therefore, consistent with the prosecution case that Saheb Singh was attacked with lathis, Kanta and a spear. It is true that report about the occurrence was made the next day but Saheb Singh was admitted in the Mainpuri Hospital the same day and his injuries were examined at 5.30 p.m. He got the report written the next day by Darshanlal when he found himself a little composed,
12. The extrinsic evidence to corroborate the statements of the three witnesses is thus provided by the injuries on the body of Saheb Singh, by the allegations in the first information report and by the circumstance that there was motive for these three witnesses to change their statements in the Sessions Court.
13. The applicants have, therefore, been rightly convicted of the offences under Sections 147, 148 and 307 read with Section 149 of the Indian Penal Code. The sentences awarded to them are by no means excessive.
14. The application in revision is, therefore, dismissed. The applicants are on bail. They will surrender to their bail bonds immediately failing which necessary steps will be taken for their arrest.