1. This revisional application arises from an order of Sri. M. N. Mukherjee, Assistant Sessions Judge, Burdwan, convicting the petitioners, Radha Nath Dhara, Naran Dhara alias Ram Narayan Dhara, Madhusudan Dhara, Siddheswar Mondal & Furna ChandraDas under Section 147, 1. P. C. and sentencing each of them to suffer rigorous imprisonment for one year.
2. The prosecution case briefly was that on the 26-8-1951 at about 6-30 A. M. the complainant Rasomay Mondal, his brothers Kartick Mondal & Madan Mondal & an agricultural labourer Radhu Bauri were transplanting paddy in their land comprising C. S. plot 1062 of Mouza Soknar Beel. According to the complainant he and his brothers had been in continuous possession of the land in question from the time of their father. At about 7 or 7-30 A. M. the five petitioners along with Khoka Pande 'alias' Abanidhar Pande armed with a gun and 7 or 8 Hindusthani 'lathials' came up there. The petitioners challenged Rasomoy Mondal and his brothers and asked them to leave the land. There was an altercation & thereafter the petitioners asked Khoka Pande 'alias' Abanidhar Pande to fire at the complainant and his brothers saying that otherwise they could not be made to leave the land. Thereupon Khoka Pande fired 4 times as the result of which some men of the complainant's party including Kartick Mondal and Madan Mondal were hit with pellets and fell down injured. Radhu Bauri was also hit with pellets and crawled into the Patiban which was close to the disputed land. One Bholanath Misra came up on hearing the row and he was also shot at by Khoka Pandey and was also injured with gun shot wounds. Thereafter other people of the neighbourhood came up and then the petitioners and other men of the accused party ran away.
The complainant Rasomoy Mondal went to Kanksa P. S. at 2 P. M. on the same day and lodged the first information report at the thana. After investigation charge-sheet was submitted against five petitioners and Khoka Pande 'alias' Abanidhar Pande. After the preliminary enquiry these accused were placed on trial before the learned Assistant Sessions Judge and a jury of five. There was a charge under Section 307, I. P. C. for attempt to murder against Khoka Pande 'alias' Abanidhar Pande, a charge under Sections 307/; 114, I. P. C. against the 5 petitioners and a charge under Section 148, I. P. C. for rioting being armed with deadly weapons against all the 6 accused.
3. The accused all pleaded not guilty, one of the accused Ram Narayan Dhara took the plea of 'alibi' saying that he was a teacher and that on 26-8-1951 in the morning the Education Minister had come to Raniganj and that as a school teacher he had attended the function at Ranigunj and was not present at the place of occurrence. Khoka Pande 'alias' Abandhar Pande stated that though he had a shot gun he had deposited the gun on 24-8-1951 two days before the occurrence with a repairer and that he had been falsely implicated out of enmity. The accused Purna Chandra Das stated that he had taken settlement of C. S. plot no. 1062 of Mouza Soknar Beel from the landlord who had auction purchased the jote at a rent sale and that from Pous 1357 B. S. corresponding to December 1950, that is, about 7 months before the occurrence, he was in possession of the land through his labourer Ananda Bhuinya, and that on the day of occurrence Ananda Bhuinya was transplanting paddy on the land and then the complainant's party came up and tried to take forcible possession of the land in question after driving out Ananda Bhuiya. The other accused merely pleaded not guilty and did not take any definite defence.
4. The jury returned a unanimous verdict of not guilty in respect of Khoka Pande 'alias' Abanidhar Pande in respect of all the charges against him. They found the petitioners not guilty of the charge under Sections 307/114, I. P. C. but found them all guilty by a majority of 3 to 2 in respect of the charge under Section 147, I. P. C. for rioting. The learned Judge accepted the verdict and sentenced the 5 petitioners as already described.
5. There was an appeal to the Sessions Judge of Burdwan but the appeal was dismisse.
6. In this revisional application the first point urged, by Mr. S. S. Mukherjee appearing for the petitioners is that the Judge should have warned the jury that if they found that the case was false as to Khoka Pande they should take the evidence as to the other accused with great caution and that as no such warning was given there was a misdirection. It appears however that the learned Judge did give warning in this connection to the jury. He stated that the jury should bear in mind that once a witness was found to be deliberately telling an untruth they should as a matter of judicial prudence view the rest of the evidence with suspicion. He however added that if a witness could not be believed on one point the jury might accept so much of his evidence as tallied with other reliable evidence and circumstances and probabilities of the case. This direction, in our opinion, was quite correct and gave sufficient warning to the jury.
Again, in dealing with the case of Khoka 'alias' Abanidhar Pande the learned Judge referred to the receipt for the gun purporting to have been granted by the repairer. There was a question whether the receipt had been granted on 24-8-1951 or on 29-8-1951, the defence case being thatthe receipt had been granted on 24-8-1951 but that the Investigating Officer or some body on behalf of the prosecution had tampered with the receipt and changed the digit 4 into 9 converting 24 into 29. The learned Judge discussed this question and referred to the repairer's register showing the corresponding entry and asked the jury to make up their minds on the point whether or not there was any interpolation in the receipt. In this connection the learned Judge told the jury that if they found that the real date was 24-8-1951, it would follow that there had been interpolation by some body on behalf of the prosecution, and that would rudely shake the prosecution case in its entirety. We consider therefore that sufficient warning was given to the jury as to the mode of procedure if the evidence was found to be false in some respect and we do not consider that there was any misdirection in this respect.
7. The next point urged by Mr. S. S. Mukher-jee is that there was admission of evidence an contravention of Section 162, Cr. P. C. Thus the search list Ex. (1) in respect of a blood-stained vest which was seized from the person of one of the injured men contains a statement that the vest in question was seized as it was stained as a result of injuries received at the time of the occurrence. There is no doubt that this statement contained in the search list Ex. (1) was inadmissible, but the search-list was admitted merely to show that the vest had been seized and it does not appear that at any portion of the charge the learned Judge referred to the contents of the search list. It is true that the inadmissible portion was not pasted out, but the inadmissible statement was not placed before the jury and there was therefore no prejudice.
8. In this connection, it is also urged that the learned Judge told the jury repeatedly that the complainant Rasomoy Mondal had pointed out the C. S. plot No. 1082 and the place of occurrence to the Investigating Officer and it is urged by Mr. Mukherjee that this also amounted to a statement made before the investigating Officer and was inadmissible. It is however not possible to hold that the conduct of the complainant in merely pointing out a plot of land to the Investigating Officer constitutes a statement before the Investigating Officer and that evidence of such conduct is inadmissible under Section 162, Cr. P. C. But if evidence is led that a witness when pointing out of a plot of land to the investigating Officer, told him that the occurrence had taken place on that land or made any other similar statement, that statement would be inadmissible.
In this connection Mr. Mukherjee has referred to certain rulings, some of them however do not support his contention. In the case of -- 'Lala Lalung v. Emperor' : AIR1939Cal176 , it was held that Section 162 should be read upon its plain terms and a statement made by a witness to a police officer was not evidence at this trial; but where a witness deposed to the fact that he identified the two accused before the police officer in the village such evidence would be admissible, it was held that merely pointing out the accused in the village would be admissible and that the fact that the accused was arrested on his evidence could be proved at the trial and this would not contravene Section 162, Cr. P. C. It is true that in a subsequent case -- 'Sk. Khabiruddin v. Emperor' : AIR1943Cal644 , this ruling was not fully approved, but there the facts were different, viz., there was a regular test identificatoin of stolen property held at the thana by a police officer and it was held that identification of the stolen pro-perty by the complainant involved a statement, that the property was his property and therefore this amounted to a statement before the police and could not be admitted. This case is not an authority for the proposition that merely pointing out an accused or pointing out a plot of land to the police officer constitutes a statement before the police and we must hold that the evidence of such pointing out is admissible.
9. It is urged that the learned Judge went further than merely admitting the statement that the complainant had pointed out a plot of land to the Investigating Officer and that he admitted a statement that the complainant had pointed out the land as the place of occurrence and as C. S. Plot 1062 to the police officer and that therein a statement before the police was involved and was wrongly admitted. I have already pointed out that such a statement would be hit by Section 162, Cr. P. C. If however the evidence given is that the complainant pointed out a plot of land to the police officer and then the complainant gives evidence in Court that the plot pointed out by him to the police officer was the plot on which the occurrence had taken place, there could be no objection and the result would be the same. Although the learned Judge was not careful enough to admit the statement in the form which would be unobjectionable and to a slight extent contravened Section 162, Cr. P. C., in this connection we do not think that there was any prejudice to the accused, because even according to the case of some of the accused headed by Purna Chandra Das there was occurrence over the particular plot, viz., C. S. plot No. 1062 of Mouza Soknar Beel and therefore there was no dispute as to the place where the occurrence had actually taken place. No prejudice could therefore occur even if the statement was wrongly admitted that that particular plot had been pointed out to the Investigating Officer as the land of occurrence.
10. The third point urged by Mr. S. S. Mukherjee is that two witnesses examined in the committing Court and present in Court were not tendered for cross-examination and that this prejudiced the accused. There is however no law which compels the Public Prosecutor to tender at the sessions trial every witness examined in the committing Court. If the Public Prosecutor is of the opinion that the evidence of a particular witness is false or unnecessary he might withhold such evidence and need not even tender the witness for cross examination. This was held in the case of --'Empress of India v. Kaliprosonno Doss', 14 Cal 245 (C), It was held an that case as follows:
'In a trial before the Sessions Court the prosecution is not bound to tender for cross-examination all witnesses called before the committing Magistrate'.
Mr. Mukherjee has referred to a later ruling, -- 'Nayan Mondal v. Emperor', AIR 1930 Cal 134 (D). In that case Lort-Williams J. observed that although it was not necessary for the prosecutor to call witness whose name was on the back of the indictment or in India whose deposition has been taken, in the committing Court it had become usual to do so so that the defence might cross-examine. them. Now though Lort Williams J. made the observation that it had become customary to tender witnesses at the Sessions Court for cross-examination, Lort-Wil-liams J. pointed out that the law was that the prosecutor was not bound to call such witnesses and the only thing he was bound to do was to have every such person in Court so that he might be called for the defence if the prisoner so chose.
As authority for this statement of law, the learned Judge referred to Archoold's Cmminal Pleadings, 22nd Edition, and some decided English cases and pointed out that the law was the same in India. This case cited by Mr. Mukherjee does not therefore go to show that there was any illegality in not tendering for cross-examination two of the witnesses who had been examined in the committing Court. Mr. Banarjee appearing for the state has pointed out that in a subsequent case the Privy Council has also held that it is not necessary that the public prosecutor should tender for cross-examination, any witness whom he considers to be unreliable even though such witness was examined in the committing Court. This view was taken in the case -- 'Adel Muham-med El. Dabbah v. Attorney-General of Palestine', AIR 1945 P. C. 42 (E). This was not an appeal from India and the Indian Law was not being considered, but it would appear that the principle involved is the same, in India as well as in England as pointed out by Lort Williams ,J. in the case reported in 'AIR 1930 Cal 134 (D)', cited above. Therefore we find that there was no illegality in the public prosecutor's refusing to tender the two witnesses for cross-examination though they had been examined in the committing Court. Admittedly, they were present in Court, but the defence did not call them as witnesses.
11. Next, Mr. S. S. Mukherjee has alleged that the learned Judge did not correctly explain to the jury the illus. (g) of Section 114, Evidence Act that the Court may draw a presumption that the evidence which could be and was not produced would, if produced, be unfavourable to the person who withheld it. The learned Judge referred to the presumption which the jury might draw from withholding of two witnesses who had been examined in the committing Court but not tendered for cross-examination and from the non-examination of certain witnesses named tin the charge sheet and the first information report. He also read and explained Section 114(g), Evidence Act. He however observed that under the law the jury was entitled to presume that if the witnesses had been examined they might have con-' tradicted the prosecution case, objection is taken to the words 'might have'; it is urged that the [earned Judge should have told the jury that if they thought fit they might presume that the evidence withheld would have been unfavourable to the prosecution. It appears to me however that this was not really an error in explaining the law but merely a case of faulty expression. The learned Judge should have said that the jury might or might not presume that the evidence would be unfavourable to the prosecution, instead of that he stated that the jury was entitled to presume that the jury was entitled to presume that the evidence might have contradicted the prosecution case. In further explaining the law with reference to the facts of the case, the learned Judge put the law correctly. Thus he stated that from the circumstances the jury would have to decide whether they would draw any adverse presumption. Thus, though we think that the learned Judge should have used the correct expression in explaining the law to the jury, there was really no misdirection. It is to be remembered that the charge was delivered in Bengali and not in English and a reading of the portion of the charge as a whole conveys the impression that the learned Judge had the correct idea of the law but sometimes he fumbled with the words in expressing his ideas in English.
12. It has next been urged that before the end of the trial the Public Prosecutor filed a petition for the prosecution of one witness P. W. 23 for perjury and that before the jury the learned Judge heard the submission of the Public Prosecutor in connection with that application, although he passed the order that the application be put up after the disposal of the sessions case, and that such discussion in the presence of the jury had prejudiced the accused. Now it is quite true that the Public Prosecutor ought not to have been permitted to move the petition before the end of the trial. In this particular case, however, we are satisfied that no prejudice was caused to any of the petitioners. P. W. 23's evidence concerned only Khoka Pande 'alias' Abanidhar Pande. This P. W- 23 Chandi Charan Hazra had stated in the committing Court that on 25-8-1951, that is, a day before the occurrence, he was a conductor of the bus by which the accused Khoka Pandey along with 5 or 6 other men armed with lathis travelled from Ondal and got down at Rajbundh and further stated that the accused Khoka Pandey had a shot gun in his hand, in the sessions Court this witness stated that Khoka did travel by his 'bus along with 5 or 6 other men on a particular day but that he did not remember the date and did not remember whether Khoka had any weapon in his hand. He was then cross-examined with reference to his statement in the committing Court and his deposition in the committing Court was also put in on behalf of the prosecution under s, 288, Cr. P. C. and it was in this connection that the application for prosecution for perjury was made against Chandi Charan Hazra. As pointed out, this witness's evidence was concerned only with Khoka's presence at the place of occurrence and the jury returned a unanimous verdict of not guilty ha respect of Khoka alias Abanidhar Pandey. This witness's evidence did not at all touch the other accused, viz., the present petitioners, and the moving of the application for prosecution for perjury by the Public Prosecutor in the presence of the jury, though it is to be condemned, did not therefore at all prejudice the present petitioners.
13. The next point urged was that in putting in the depositions of two witnesses recorded in the committing Court under Section 288, Cr. P. C. the learned Judge did not comply with the provisions of law and therefore it must be held that the evidence was put in improperly and that this had prejudiced the petitioners. Of the two witnesses whose recorded depositions had been put in one was P. W. 23 whose deposition has already been referred to. He was fully cross-examined by the prosecution with reference to his differing statements in the committing Court. The other witness P. W. 8 was similarly questioned with reference to his differing statement in the committing Court. It appears that in the committing Court P. W. 8 stated that he had seen the accused going away, having arrived at the place of occurrence on hearing the row. In the sessions Court however he stated that he did not see any of the accused going away; and he was cross-examined on this point by the prosecution with reference to his lower Court deposition.
In the case of -- 'Tara Singh v. The State', : 2SCR729 , (P) it was held that if the prosecution wanted to use previous testimony to the contrary as substantive evidence it must confront the witness with tho.se parts of it which are to be used for the purpose of contradicting him and then only could the evidence be brought in as substantive evidence under Section 288, Cr. P. C. In this case the prosecution did confrontthe two witnesses with those parts of their lower Court depositions which were to be used for the purpose of contradicting the witnesses. The only irregularity was that the application lor putting in the depositions of the two witnesses was not made then and there but that it was made on the following day. We do not think that this irregularity would amount to an illegality.
14. It has next been urged that the learned Judge used the first information report as substantive evidence and in this connection Mr. Mukherjee has referred to the last part of the charge where the learned Judge was dealing with . the case against each of the accused. The learned Judge in this connection pointed out that each accused had been mentioned in the first information report as well as by a number of eyewitnesses. It appears, however, that in the beginning of the charge the learned Judge did explain to the jury that the first information report was not substantive evidence but it was the first recorded version of the occurrence and therefore of immense importance for the purpose of corrobora-tion and contradiction. The summary of the case against each accused at the end of the charge must be read in that context. The learned Judge might have done better by first referring to the identifying witnesses who had deposed in Court and then stating that the identification by the complainant was corroborated by the fact that the name was also mentioned in the first information report. But in this portion of the charge the learned Judge recorded the case against each accused in the form of a memorandum and not in extenso and it must be held that with reference to the earlier portion of the charge the learned Judge was referring to the first information report as corroborative evidence of immense value as mentioned by him. We do not therefore find that there was any misdirection.
15. The next point urged is that the law relating to the right of private defence was not properly explained and that the learned Judge only referred to the sections of law but did not put down in so many words what was the law as actually explained by him. It is quite true that the learned Judge in explaining the law relating to private defence of property referred to section 97 to the restrictions referred to under Section 99, I. P. C. and he made a note that he had read out these sections and explained them. He did not put down in so many words what exactly he had told the jury in connection with this case. He ought to have put down clearly that if the jury found that the complainant's party had committed criminal trespass into the land of the accused Puma Chandra DAS, the accused would have a right of private defence against such criminal trespass. Similarly, all the limitations to the right of private defence as applicable to the particular case should have also been put down concisely as explained by him, and not disposed of by reference to sections only. In this particular case, however, we do not think that we should take serious notice of the failure of the learned Judge to put down in words the specific explanation that he gave to the jury in relation to the right of private defence. The right of private defence taken by the accused depended on the statement of the accused Puma Chandra Das that the landlord had settled c. s. plot 1082 of Mouza Suknar Beel with him in Pous 1357 B. S. corresponding to December 1950 and that from that time he had been in possession of the same through his labourer Ananda Bhuinya; but no oral or documentary evidence of such settlement by the landlord or such possession on behalf of the accused by the labourerAnanda Bhuinya was given. The thing was no doubt suggested to the prosecution witnesses but it was denied by them. One item of documentary evidence on behalf of the accused was produced in this connection, viz., a sale certificate showing that the jote comprising c. s. plot no. 1062 had been sold at a rent execution sale and purchased, by the landlord. That was more than 14 years before the present occurrence. There was nothing to show whether the landlord after such auction sale had actually taken possession of the land. It is to be noted that the accused did not plead that 14 years ago after the rent sale the landlord had settled the plot with them. They stated that they had taken settlement of the land only 7 or 8 months before the occurrence. The complainant and his brothers and other witnesses all stated that in spite of the rent sale the complainant's father and uncle and after them the complainant and his brothers had been continuously in possession of the plot of land. This evidence of possession was referred to by the learned Judge. In the circumstances, there was no evidence at all in support of the defence that the plot of land belonged to the accused and that the accused had the right of private defence against any criminal trespass committed on the land by the complainant's party.
16. Lastly, it has been urged that the jury trial constitutes a contravention of Article 14 of the Constitution because under Section 269, Cr. P. C. the normal procedure for trial by the Sessions-Court is with the aid of assessors and it is only when Government makes a notification under Section 269, Cr. P. C. that there may be a trial by a jury,. but as Section 269 does not contain the basis of the Classificatfion of offences or cases for trial by a jury, a notification that certain specified offences-shall be tried by jury is in contravention o'f Article 14 of the Constitution. This point was raised in -- 'Badri Prasad Missir v. The State', : AIR1953Cal394 (G), and it was held that the notification being in respect of classes of offence there is no contravention of Article 14. The same view was taken also by a Division Bench of the Allahabad High Court in the case -- 'Dal Chand v. The State', : AIR1953All123 (H). We must therefore hold that the jury trial does not contravene Article 14 of the Constitution.
17. This application therefore fails and the Rule is discharged.
18. The petitioners must now surrender to their bail and serve out the remainder of their sentences.
19. I agree.