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Kalachand Sircar and ors. Vs. Queen-empress - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata
Decided On
Judge
Reported in(1886)ILR13Cal53
AppellantKalachand Sircar and ors.
RespondentQueen-empress
Excerpt:
evidence act (i of 1872), section 154--hostile witness. - .....the sessions judge, in concurrence with the assessors who sat with him, has selected the story told by the four witnesses for the prosecution before the magistrate, and has rejected the one that was told before him. he arrived at this result partly in this way: when the witnesses, one after another, told the story sworn to in his own court, he allowed the advocate for the prosecution to cross-examine these, his own witnesses, apparently on the ground that they were hostile (of which we can see no trace), and so brought out by reference to their depositions given before the magistrate: the story which had been given in the magistrate's court.2. it appears to us that there was no sufficient ground for allowing such cross-examination. we can see nothing on the face of their.....
Judgment:

Wilson, J.

1. The English law at the time the last case was decided was entirely different to the law out here. I refer to that ease for the conclusion that you were formerly not allowed to do away with the effect of such evidence.

1. The Sessions Judge, in concurrence with the assessors who sat with him, has selected the story told by the four witnesses for the prosecution before the Magistrate, and has rejected the one that was told before him. He arrived at this result partly in this way: When the witnesses, one after another, told the story sworn to in his own Court, he allowed the advocate for the prosecution to cross-examine these, his own witnesses, apparently on the ground that they were hostile (of which we can see no trace), and so brought out by reference to their depositions given before the Magistrate: the story which had been given in the Magistrate's Court.

2. It appears to us that there was no sufficient ground for allowing such cross-examination. We can see nothing on the face of their evidence to lead to the supposition that they were hostile witnesses, that is, witnesses who were trying to defeat the prosecution by suppressing the truth. The mere fact that at a sessions trial a witness tells a different story from that told by him before the Magistrate does not necessarily make him hostile. The proper inference to be drawn from the contradictions in their evidence--contradictions so far as Prannath is concerned, not in the details, but in the whole texture of the story--is not that they are witnesses hostile to this side or to that, but that they are witnesses who ought not to be believed, unless supported by other satisfactory evidence, which they are not. That in itself is sufficient to show that the conviction of Prannath cannot be supported.

3. But it is a somewhat different question whether the conviction of Kalachand and Moser Sheikh can be supported. As to them, these four witnesses, Adu, Meher, Ketu and Lalu, have not contradicted each other in any specific and precise way but there is a substantial contradiction between the story now told against Kalachand and Moser Sheikh, and the story as told in the first information given at & o'clock on the day after the occurrence. In the first information it was represented that the outrage was committed by Prannath and his servants, and Prosunno Coomar, the jemadar, and the whole body of the police. That is quite inconsistent with the story believed in the Court below, that Kalachand and Moser Sheikh and others committed this crime with the sanction of Prannath, and in his presence, or with the other story that they did so under the orders of Prosunno Coomar, the police jemadar alone.

4. When these witnesses have told such fundamentally different stories about the whole transaction, and when they are proved to be disreputable men, and the story told by them is on the face of^it so full of unexplained improbabilities, we do not think it safe to act upon their unsupported testimony as to the parts these two men; Kalachand and Mo3er Sheikh, are said to have taken in the alleged outrage.

5. We, therefore, set aside the convictions and acquit all three prisoners Prannath Shaha Chowdhuri, Kalachand Sircar and Moser Sheikh, and direct their release.


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