Om Parkash, J.
1. The facto, giving rise to this reference, made by the learned Sessions Judge Mandi and Chamba Sessions Division, are as follows :--
Chandi Dass, Narsingh Dass and Mahash Dass were three brothers. Chandi Dass and Mahesh Dass have died. Shrimati Dawarku P. W. 1 is the widow of Chandi Dass. The petitioners are the sons of Mahesh Dass. Mar, singh Dass had no issue. He was living with Chandi Dass.
2. Shrimati Dawarku P.W. 1 had submitted an application to the District Magistrate, Chamba, alleging that a shop, situated in Muhal Sarol, belonging to Chandi Dass and was in his possession and that after his death, Narsingh Dass was in possession of the shop on her behalf It was, further, alleged that the petitioners had taken forcible possession of the shop on the 9th September, 1962.
3. The above application and another application submitted by Shrimati Dawarku were forwarded to the police. After investigation, the police put up a challan, under Section 448 I.P. C., against the petitioners.
4. The petitioners denied the charge, levelled against them. They pleaded that the shop, in dispute, was jointly owned and possessed by the three brothers-- Chandi Dass, Narsingh Dass and Mahesh Dass--and that the petitioners had not taken forcible possession of the shop on the 9th September, 1962.
5. The Magistrate, who had tried the case, held that the shop, in dispute, was exclusively owned and possessed by Chandi Dass and that the petitioners had taken forcible possession on the 9th September, 1962 and had, thus committed house trespass. He convicted the petitioners, under Section 448 I. P. C., and sentenced them to pay a fine of Rs. 40 each. He also ordered that the possession of the shop be res-stored to Shrimati Dawarku P. W. 1.
6. Aggrieved by the order of the Magistrate, the petitioners went up in revision to the learned Sessions Judge, questioning their conviction and the order for restoration of possession of the shop. The learned Sessions Judge has reported to this Court that the order for the restoration of possession of the shop may be vacated but the conviction of the petitioners, under Section 448, I P. C should be maintained
7. The learned counsel for the petitioners contended that the conviction of the petitioners was, also, liable to be quashed as the trial of the petitioners had been vitiated, on account of illegalities, committed by the trial Court. The learned counsel pointed out that the trial Court had got produced a very material piece of evidence, which adversely affected the petitioners, through a Court witness but, they were not examined, with reference to that evidence, and were not afforded an opportunity to lead evidence, in rebuttal. The failure of the trial Court, in this respect, according to the learned counsel, had seriously prejudiced the petitioners, caused miscarriage of justice and had vitiated their trial. The contention, raised by the learned counsel for the petitioners, appears to have force. After the close of the prosecution and defence evidence, the trial Court examined Ram Chand, Office Kammgo, as a Court witness. Ram Chand produced Ex. CW 1/A and Ex. CW 1/B. Ex. CW 1/A is a copy of a mutation, whereby the names of Narshing Dass and Mahesh Dass were removed from the revenue records, with respect to the shop, in dispute, and it was recorded as exclusively owned and possessed by Chandi Dass,
As already stated, the plea of the petitioners was that the shop, in dispute, was jointly owned and possessed by the three brothers--Chandi Dass, Narsingh Dass and Mahesh Dass. This plea received support from the entries in the document Ex. PD, produced by the prosecution itself. Ex. PD is a copy of the Jamabandi for the year 1960, with respect to the shop, in dispute. According to the entries in Ex. PD, the shop in dispute, was in the joint ownership and possession of Chandi Dass, Narsing Dass and Mahesh Dass. The mutation Ex. CW 1/A superseded the entries in Ex. PD and removed the names of Narsingh Dass and Mahesh Dass, from the revenue records. Ex. CW 1/A, thus, prejudicially affected the plea of the petitioners that the shop, in dispute, was joint of Chandi Dass, Narsingh Dass and Mahesh Dass. The trial Court should have given an opportunity to the petitioners to offer any explanation with respect to Ex. CW I/A and lead evidence, if any, in rebuttal.
It is true that it is not obligatory, on a Court, under Section 342 Cr. P. C.. to re-examine an accused person after recording the evidence of a Court witness, vide Mahadu Raghavji v Emperor, AIR 1928 Bom 388 and Gurbaksh Singh v. Emperor, AIR 1938 Lah 631. But, as was observed, in Ibrahim v. Emperor, AIR 1933 Sind 49, there is a rule of prudence which requires that before an accused is condemned, he should have an opportunity of making any explanation, he may have, with regard to the circumstances appearing in evidence against him. According to this rule of prudence, an accused should be examined with reference to the evidence of a Court witness, if such evidence prejudicially affects him. It was held in Channu Lal v. Rex, AIR 1949 All 692, that, after the Court takes evidence, under Section 540 Cr. P. C., it would be proper for the Court to re-examine the accused with reference to the new evidence recorded and to give an opportunity to him to give such further evidence in defence as he may be advised to do.
In the instant case, a material piece of evidence, prejudicially affecting the plea of the petitioners, was produced, by the Court witness. The trial Court should have examined the petitioners, with reference to that evidence, and should have given them an opportunity to produce such further evidence in defence as they desired. The failure of the trial Court to examine the petitioners with reference to the evidence of the Court witness and to give them an opportunity to adduce further evidence in rebuttal, was a serious irregularity and as it had prejudiced them, in their defence, their trial and conviction were vitiated. The conviction of the petitioners is illegal and is to be set aside and a re-trial is to be ordered. With the quashing of the conviction of the petitioners, the order for restoration of possession of the shop cannof stand.
8. The next question is from what stage the re-trial should commence in this connection, it will be relevant to refer to another serious error committed by the trial Court. For holding, that Mahesh Dass, the father of the petitioners, had no interest in the shop, in dispute, and that his name in the revenue records had been entered through a mistake, the trial Court placed reliance on Ex. PK and Ex. CW 1/A. It has already been shown that the petitioners were not examined with reference to Ex CW 1/A The trial Court was not justified in placing reliance on this evidence. Ex. PK purports to be a copy of an affidavit of Mahesh Dass, stating that he had no interest in the shop and his name was wrongly entered in the revenue records as one of the owners of the shop. The original affidavit, alleged to have been made by Mahesh Dass was not produced. Ex. PK, the copy, was tendered in evidence by Head Constable Mali Ram P.W. 8 An objection was taken, on behalf of the petitioners, that Ex. PK was not admissible in evidence The trial Court did not give any decision on this objection, though it placed reliance on Ex. PK. This document, which was merely a copy, was clearly inadmissible, as the original document was neither produced nor proved. There is nothing to show that Ex PK was admissible in evidence under Section 65. Evidence Act.
A mere certified copy of even a police report was held inadmissible in Hasta Ismail v. Emperor. AIR 1937 Lah 593. In the same case, a petition alleged to have been made by one Ghaus to the Superintendent of Police and produced and tendered in evidence by the Sub-Inspector, was held to be inadmissible on the ground that neither Ghaus nor the writer of the petition was produced to prove it. It was observed that mere production of a document is not tantamount to proof, especially when the production is by a person who is neither the writer of the document nor the person on whose behalf the document has been written. In the present case, not to speak of producing the maker or the writer of the affidavit, even the original affidavit was not produced No case was made out for the admission of secondary evidence of the affidavit Ex. PK, the copy of the affidavit, was not admissible in evidence. The trial Court committed an error in relying upon Ex. PK
9. As already pointed out, an objection against the admissibility of Ex. PK, was taken up, on behalf of the petitioners, before the trial Court, but it did not decide that objection. Had the trial Court given a finding on the objection of the petitioners and held the document Ex. PK to be inadmissible in evidence, the prosecution might have taken steps to get the original affidavit produced or to prove its contents in a manner permissible under law. It would be but fair to give the prosecution an opportunity to take steps for that purpose, if advised to doso, now, in view of the finding of this Court that Ex. PK was inadmissible in evidence. In the circumstances of the case, it will be in the interest of justice, if a de novo trial is ordered.
10. In conclusion, the reference is accepted. The conviction and sentence of the petitioners are set aside. The order for restoration of possession of the shop in dispute is, also, set aside. The case is remitted to the trial Court with the direction that it should hold a de novo trial The fine, if paid, shall be refunded to the petitioners.