1. The Second Additional Sessions Judge, Morena, convicted the eight accused appellants under Section 302 read with Section 149 of the Indian Penal Code and sentenced them each to life imprisonment. Against their conviction and sentences, the accused have filed this appeal.
2. Before beginning arguments on the merits of the case, Mr. Anand, learned counsel for the appellants submitted that the trial court refused to summon the material evidence of the defence and requested that that evidence should either be recorded here or the case be sent back to the trial court for recording that evidence and giving the judgment afresh after considering that evidence.
3. It appears from the record that while the defence evidence was being recorded, the counsel of the accused submitted an application on 7-3-59 requesting the court that Gyasiram and Radha Ramanteachers of a village School, and the Station Master of the Jora Railway Station be summoned and examined in the case as defence witnesses. The trial court dismissed this application on the ground that the names of these witnesses were not included in the list of persons whom the accused wanted to summon as defence witnesses according to Section 211 of the Criminal Procedure Code.
Thereafter it appears that the accused presented an application under Section 540 of the Criminal Procedure Code for the examination of these persons as Court-witnesses. This application was also rejected summarily.
4. It is true that these three witnesses were not mentioned in the list of witnesses of defence submitted to the Committing Court. It is also true that because the accused did not do so, they are not entitled as of right to have these witnesses examined. But all the same, the accused can submit an application to the trial court to examine witnesses not included in the list given to the Committing Court and in proper cases, I have no doubt that the court would exercise its discretion and summon such defence witnesses under Section 291 of the Criminal Procedure Code. In In the matter of the petn. of Rajah of Kantit ILR 8 All 668, it has been said that though the summoning of the witness by an accused through) the Sessions Judge is not a matter of 'right', yet the judge has an inherent power, if he thinks proper to exercise it, to summon witnesses other than those named in the list delivered to the Committing Magistrate.
We are of the opinion that in serious cases (such as a present one is), every opportunity should be given to the accused to adduce evidence on behalf of the defence and before refusing such evidence the Judge must take into account whether the evidence sought to be produced in the defence is material or frivolous. If it is material, the court should allow such evidence to be examined under Section 291 of tile Criminal Procedure Code. Even otherwise, the court can examine such witness under Section 540 of the Criminal Procedure Code in order to secure a just decision of the case. It seems that in refusing to examine the defence witnesses, the court did not try to ascertain whether this evidence was material or not.
5-6. (His Lordship considered the nature of evidence sought to be tendered.)
7. The duty of prosecution is to place all material evidence before the court. But if the prosecu-tion shirks its duty, the duty of the court is always there to make an endeavour to find out the truth. In this view of the matter, we think that the trial court should have allowed the accused to examine the above three witnesses though their names did not appear in the list delivered to the Committing Magistrate.
8. Section 540 of the Criminal Procedure Code is a supplementary provision, enabling the court and in certain circumstances, imposing on the court a duty to examine a material witness who would not otherwise be before the court. Having regard to the facts of the particular case, one thing which is so obvious is that if the trial court after recording the evidence of these witnesses rejects their testimony as unworthyof credit, then it will make no difference and the present decision would stand. But if after considering the evidence, the court believes it to be trustworthy, the whole bottom of the prosecution case would be knocked out.
9. Another grievance of the counsel for the appellants is that on 18-3-59, the Court in its order-sheet recorded that Mansingh accused had furnished the new address of Dr. Sardarsingh Vaid and that the vaid should be summoned urgently. But on 23-3-59, without issuing the summons to the vaid, the court went back upon its former order of 18-3-59 & refused to issue summons and directed the accused to bring him personally. This order virtually amounts to a refusal to record the evidence without good rea-son. The name of this witness (Dr. Sardarsingh Vaid) was included in the list given in the Committing Court, But before this witness could be examined, he being Govt. servant was transferred and thereafter the counsel of the accused had to supply fresh address of the witness.
The court seems to have accepted the position and on 18-3-59 ordered that the witness should be urgently summoned. But for some reason, not apparent from the record, the summonses were not issued. Instead of trying to find out from the office why the summonses were not issued, the trial court blamed the accused for not giving the new address in the list submitted to the committing court. This is not proper. In his anxiety to bring the trial to an end, the learned Judge was not justified in acting as he did. The trial courts must bear in mind that in Criminal cases of a serious nature, where the question of life and death of the accused is involved, every reasonable opportunity should be afforded to the accused to adduce evidence.
10. The learned Additional Government Advocate does not oppose the prayer that the case be sent back to the trial court for recording evidence of the above four witnesses.
11. For reasons stated above, we allow the appeal and setting aside the conviction and sentence passed on the accused, remit the case to the trial court with the direction to summon the above witnesses (Cyasiram, village Teacher, Radharaman village Teacher, the Station Master Jora Railway Station and Dr. Sardarsingh Vaida along with the record), record their evidence and after taking it into consideration, to give judgment afresh. The learned Trial Court shall not record the whole evidence again nor try the case anew, but shall commence it from the stage where it refused to summon witness.
12. I agree.