J.N. Wazir, C.J.
1. This is a revision application filed cy ma accused and is directed against the order of the Additional Sessions Judge quashing the order of discharge passed oy Subordinate Judge Magistrate First Class, jammu in favour of the accused.
2. It appears that one Sukh Dev alias Deban was murdered on the night intervening 7th and 8th March, 1962 and his dead body was found in a pond in village Manoa, Tehsil Akhnur. A report in regard to this occurrence was made by Sita Ram and Ranga Ram at the police station, Akhnur, on 9th March, 1962 and no mention was made us that report as to who had committed the ottence. ma dead body was sent for post mortem examination and me doctor was of the opinion that the deceased had died or nead injuries causing extensive fracture of the skull wunr injury to the brain and haemorrhage as a result of assault with a heavy sharp weapon. The police started investigation and Ibrahim accused was arrested in a jungle on 1stli March, 1962 and Baj Singh, Goochhan and Gian were arrestea on the 24th of March,, 1962. They were all chaiianeo Under Section 302 I.P.C. in the Court of Subordinate judge Magistrate First Class, jammu.
3. The prosecution produced Ravel Singh, nrotnar of the deceased and also relied upon the recovery of amuier from the possession of Baj Singh and blood stained1 axe from the possession of Ibrahim. Another important witness examined by the prosecution was Ram Lai who has aehieo having any knowledge of the occurrence. The uommitting Magistrate found that there was no evidence worth the name connecting the accused with the commission of met crime and discharged the accused. Against that order the State filed a revision application before the Additional Sessions Judge who overset that order and directed that the accused should be committed to Sessions. The accused have come up in revision to this Court.
4. It is argued on behalf of the petitioners that the order of discharge was erroneously set aside by the Additional Sessions Judge. It is contended that there is no, evidence at all to show that the accused had anything to do with the commissioni of the crime. I have hew taken through the evidence adduced in this case. The learner Additional sessions Judge has relied upon: the testimony or Revel Singh but I am convinced that this evidence is noy worthy of credence. He is the real brother of the debase. It is stated by him that he went with his brother to make some purchases on the fateful day. They went to this shop of Ram Lai, Ram Lai was not present at his shop but Glrdhari Lai was present and from him they made the purchases. According to this witness they met one Babu who took them to his house where they had soma water and and smoke. Then Babu also went along with them and any came to a place where they saw the accused sitting together alongwith Ram Lai and drinking wine. They mviteu the witness as well as his brother to join them in the party. They did so and the witness was also offered some wine but he refused whereas his brother joined them mi taking wine. Subsequently he gave a different statement and did not stick to what he had stated before. He cemea that the accused drank wine in his presence. He fuitner denied that his brother drank wine in his presence. ins witness stated that he wanted to go home because ms mother was ill. He asked his brother to accompany nim but he stayed on and the witness went home. The witness did not notice as to what happened to his brother.
According to the witness he went to Reasi to inform, his other brothers about the disappearance of his orctner. The conduct of the witness appears to be strange and improbable that he should not have tried to find out as i where his brother was in the evening when neatest mm in the company of drunkards, especially when some or them were on Inimical terms with his brother as anegeo &y; him. He kept quiet all the time and next morning went to Reasi. On his return he heard that his brother had been killed. After the witness got information about the deaw of his brother he did not inform the police or any one me the village that his brother was in the company of the accused on the night of occurrence and that he suspeciea foul play. He Kept quiet and did not reveal the fact that the deceased was in the company of the accused till three days after the deceased had been cremated. This conduct of we-witness raises grave suspicions and his testimony appears to be highly unreliable and doubtful. Another witness wain Lal has been pdoduced by the prosecution to show that the deceased was in the company of the accused. But we have it from the statement of this witness that he never saw the deceased on the fateful evening in the company of the accused, that he was not himself in the company of the accused and he never drank any wine in their company. In other words, this witness gives a lie direct to we allegations which are made by the prosecution.
5. Great stress has been laid on- the recovery of amuiet from Baj Singh on 12th March, 1962 and it is Stated fiat the same amulet was worn by the deceased. There was ns mark of identification on the amulet and it is not a thing which is of extraordinary character. It is a commonplace article, as has been admitted by Chuni Lal invesngating officer and the possession of such an article would not in any way be sufficient to incriminate the possessor thereof. The article was recovered on 12th March, 1962 Baj Singh and if this was the article worn by the deceased It is not understandable as to why the accuses was not arrested on that day. On the other hand, we havs1 it from the evidence that Baj Singh accused was arresrea on 24th March, 1962. The recovery of blood sained axe from Imbrahim also is of no avail inasmuch as it is a common place article and is found with every farmer. There is no distinguishing feature of this axe and it cannot be said that It is the same axe which was taken by Vibration from the possession of the deceased. The mere fact that the axe had got blood stains is not sufficient to show that it had been stained with he blood of the deceased. Moreover, the Chemical Examiner has stated that it coma not Be said that the blood stains on the axe were or human being. In the circumstances the recovery of the axe with blood stains on it also- is not a circumstance which can be used against the accused. Assistant to the Advocate General has drawn my attention to a ruling of the Bombay High Court, Akberally layaball v. Aiimanomed Hussairt AIR 1939 Bom 372 in which it has been lain, down:
In proceedings commingup before Magistrate byway of committal the Magistrate's tutee is to consider whether at conviction is possible in the case, and in order to comet to that conclusion he is entitled to appreciate the evinced. But he must appreciate the evidence from that purview only, and1 it is not within his province to consider the evidence merely from the point of view of probability ot a conviction resulting. It may be that a conviction is improbable. But if it is possible for a Court to take such a view of the evidence as to be able to found a conviction upon it, then it is the duty of the Magistrate to commit the accused for trial. If the Magistrate refused to commit,, the grounds of the refusal should be stated (very generally that' no conviction is possible. The duty of the sessions. Court is to appreciate the evidence from the visw of ins correctness of the Magistrate's order of discharge, in oinker words, in order to see whether the basis of the Magistrate's order of discharge is correct.
This ruling does not say that the Committing Magistrate, should always commit the accused to the Sessions usury even if the evidence connecting the accused with the commission of crime is meagre. On the othed hand, it is Iain down in this ruling that the Magistrate should appreciate the evidence properly and if he finds that no conviction can be based on that evidence he should discharge met accused. Sessions Court or the High Court has to sea whether the order of discharge passed by the commuting Court is correct or not and it should be very reluctant to interfere with the order of discharge passed by the torn-mitting Court which had1 seen the demeanour of the witnesses and had fully discussed the evidence before it. But if the view taken by the committing court is perverse the Sessions Court can certainly interfere and overset we.-order of discharge. In the present case the evidence, adduced by the prosecution is highly unreliable and not worthy of credence. The testimony of Ravel Singh does not in any way connect the accused with the commission, of the offence. The recoveries do not form any connecting. 1 link between the accused and the crime. In the circumstances the order of discharge passed by the Committing Magistrate is fully justified and the learned Additional sessions Judge has erred in oversetting that order in law in regard to the functions of committing Magistrates-is laid down in Ramgopal Ganpatrai Ruia v. State of Bomnay : 1958CriLJ244 where it has been observed:
It is not necessary to multiply instances where the High Courts in India have, in some cases, held that the duty of the committing court is only to satisfy itself that there are sufficient grounds for committing the accused for trial In the sense that there is a prima facie evidence; which, if believed by the Court of Session, may lead toe conviction of the accused. Whereas, there are also cases,, as laid in the earliest case referred to above in Lacnman v. Juala ILR 5 All 161 (judgment of Manmooo, j.), to-the effect that the Magistrate holding a preliminary inquiry is empowered to weigh the evidence led on benair of the prosecution, and to decide for nemesis were tidier is a probability of the trial ending in the conviction o? the accused. An examination of the large number of rulings cited before us, which we do not think it necessary to refer to in detail, shows that it is easy to say that & Magistrate should commit the accused for trial if he is satisfied that sufficient grounds for doing so, have Deen made out, it is difficult to apply those crucial words 'sufficient grounds' to individual cases. Apparently conflicting-observations about the powers of a committing Magistrate, have been made in the ftortea eases, but those observations have to be read in, the light of the tact's and circumstances disclosed in the case then before the court.
In our opinion, the law in India and the law 4n England, on the question cow under consideration, appears to be the same. in Haisbury's Laws' of Engiana Vol. 10, 3rd Ed. (Lord Simonds) in Article 666 at p. 365 the law has been stated thus;-When all the evidence has been heard, the examining Justices then present who have heard all the evidence must decme whether the accused is or is not to be committed for trial. Before determining this matter they must tans into consideration the evidence and any statement of we accused. If the justices are of opinion that there is sufficient evidence to put the accused upon trial by Jury for any indictable offence they must commit him for trial in custody or on bail.
In each case, therefore, the Magistrate holding preliminary Inquiry, has to be satisfied that a prima facie case Is made out against the accusec by the evidence of witnesses entitled to a reasonable degree of credit, and unless he is so satisfied, he is not to commit......
As pointed out above the evidence of the witnesses produced in the instant case is not entitled to a reasonaoie degree of credit and does not connect the accused in the least degree with the commission of the crime. I, therefore, allow this revision application, overset the order of the Additional Sessions Judge, jammu, and restore that of the Committing Court. The accused shall be set at noerty unless wanted in connection with some other case.