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Online LibraryChas. A. Stevens & BrosThe Indian decisions (New series) : being a re-print of all the decisions of the Privy Council on appeals from India and of the various high courts and other superior courts in India reported both in the official and non-official reports from 1875 (Volume 7) → online text (page 107 of 155)
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Act XLV cf I860, ss. 191 and 193 Criminal Procedure Code, s 161 False evidence
Statement made to a police officer investigating a case Mode of recording such
statements.

It is not necessary that the ptatement of a witness recorded under s. 161 of the
Code of Criminal Procedure, 1882, should be elicited and recorded in the form of
alternate question and answer. It is sufficient if such statement is substantially
an answer to one or more questions addressed to the witness before the statement
is made.

The provisions of B. 191 and 193 of the Indian Penal Code do apply to tha
case of false statements made under b. 161 of the Code of Criminal Procedure,
1882.

[12] It is not illegal, though unnecessary, for a police officer recording a state-
ment under B. 161 of the Code of Criminal Procedure, 1882, to obtain the
signatures of persons present at the time to authenticate his record of such
statement.

THE facts of this case sufficiently appear from the judgment of the
Court.

The Public Prosecutor (The Hon'ble Mr. Spankie), for the Crown.
The respondent was not represented.

JUDGMENT.

EDGE, C. J., and TYRRELL, J. In this case an appeal has, by order
ofSthe Local Government, been presented under s. 417 of the Code of
Criminal Procedure against an order in appeal of the Sessions Judge of
Meerut acquitting Muaammat Bhagwantia of the offence of which she had
been convicted under s. 193 of the Indian Penal Code. She was tried on
an alternative charge of perjury. She had made a statement to a Police
Officer holding an investigation, and she was bound under s. 161 of the
Code of Criminal Procedure, 1882, to answer truly all the questions relating
to the case put to her by such officer. Section 193 of the Indian Penal
Code applies to answers so given ; because she was, within the meaning
of s. 191, legally bound by an express provision of law to speak the truth
to the officer. The questions were not question tending to criminate her.
When Texamined before the Magistrate her evidence was in contradiction
of the answers given by her to the Police Officer. The question, or rather
series of questions, under the head of " question, " which was put to her



* Criminal Appeal No. 257 of 1892.

[N.B. -For a similar case see Criminal Appeal No, 'J5S of 1892 decided by this
High Court on 8th July 1892-ED.]

722



YII] QUEEN-EMPRESS V. BHAGWANTIA 15 All. 14

by the Police Officer was as follows - " What do you know in tha case ? 1892
Where were you on Saturday night? What did you see? Was there JULY 9.
any one else in the house?" That series of questions or one question
combining several led to her answer, the material part of which is in APPEL-
effect that she saw four Chamars, whom she named, strangling Musammat LAT3

Sanwalia on a charpoy outside Musammat Sanwalia's door and saw them

carrying her body off afterwards. When examined before the Magistrate CRIMINAL,
she stated that on the Sunday morning, which 'svas the day after that .to 15 A. lt =
which her previous statement referred, she sa-;r Musammat Sanwalia going 12 A W.N,
away with one Dharma, a sweeper. [13] It is perfectly obvious that these (1892) ill.
two statements are not consistent. One is destructive of the other. They
cannot both be true, as she must have known. The offence charged under
s. 193 of the Indian Pecal Code was consequently made out, if there was
satisfactory evidence that she made the first statement to the Police Officer.
On that point there was the Police Officer himself, who produced his diary
in which he had recorded the statement at the time. There was also ishe
evidence of three lambardars and the son of another lambardar, i.e., of four
independent persons who were present when Bhagwantia was questioned
by the Police Officer. AH these persons spoke to the statement which
was recorded and swore that that was the statement which the woman
had made. Three of them further remembered, apparently without
looking at the statement, that Bhagwantia had mentioned the four
men referred to in the statement as the persons whom she saw strang-
ling Musammat Sanwalia. The Sessions Judge considers that evidence
not satisfactory. We confess we do not see how, on occasions such
as this, a Police Officer can obtain more satisfactory evidence than
was obtained here. The woman was examined in the presence of several
lambardars, who apparently were respectable people, and three of those
lambardars and the son of another were called to prove that she made the
statement. In our opinion it is proved beyond all reasonable doubt that
she- made the alleged statement to the Police Officer. Sections 164 and
364 do not apply to an examination under s. 161 of the Code of Criminal
Procedure, 1882. If the Police Officer were at the completion of each
sentence by the person whom he was examining to stop that person and
ask a fresh question, it is probable that the whole turth would not come
out. The test as to whether a case comes within paragraph 2 of s. 161
of the Code of Criminal Procedure, 1882, is was a question put to the
person by the Police Officer, and was what was stated by that person
stated in answer to that question? Incur opinion this case fulfils that
test. The Sessions Judge was of opinion that the Police Officer should have
got the lambardars and other persons present to sign the reoord of
Bhagwantia's statement as witnesses. There would be nothing illegal in
Police Officers obtaining the signatures [14] of witnesses to a statement,
but there is nothing to compel a witness to sign, and we very much doubt
whether any of the by-standers would drag themselves into a case by signing
a statement made under s. 161 of the Code of Criminal Procedure, 1882.
We set- aside the order of acquittal of the Sessions Judge, and we convict
Musammat Bbagwantia of the offence charged under s. 193 of the Indian
Penal Code, and, taking into account the fact that she has already been
imprisoned for over two months, we sentence her to be rigorously im-
prisoned for fourteen days for the offence of which we have convicted her.



723



1893

JULY 12.

APPEL-
LATE
CIVIL.

15 A, 14 =
12A.W.N.

(1892) 1S2.



15 All. 15 INDIAN DECISIONS, NEW SERIES [Yol.

ISA. 14= 12 A.W.N. (1892) 132.

APPELLATE CIVIL.
Before Sir John Edge, Kt., Chief Justice, and Mr. Justice Tyrrell



IN THE MATTER OP PETITION OP SlTARAM KESHO AND OTHERS.*

[12th July, 1892.J

Act 10/1868, s. 3, cl. (l)ActXcf 1877, s. 599 Civil Procedure Cede, s. 599 Act VII
of 1&88, s. 57 Act XV of 1877, ss. li and 5 | sell, it, arts. 177 and 178 Application
for leave to appeal to Her Majesty in Council Limitation.

Section 599 of Act No, XIV of 1882 was not inconsistent with article 177 of
the second schedule of Act No. XV of 1877 as read in conjunction with the
provisions contained in the sections of that Act which are applicable to article 177.
The limitation therefore for an application for leave tojappealto Her Majesty in
Council in six months from the date of the decree to appeal from which leave is
sought.

The provisions of the second paragraph of s. 5 of Act No. XV of 1877 do not
extend to applications for leave to appeal to Her Majesty in Council.

Fazal-un-nissa Begam v. Mulo <lj, Burjore and Bhawani Pershad v.
Bhagana (2), LaJcshmi v. Atlanta Shanbaga (3), and Ganga Gir v . Bahcant
Git <4) referred to.

[P., 28 A. 391 = 3 A.L.J. 165 = A.W.N. (1906) 55 ; R., 3 C.W.N. 24 ; Disappr., 18 M.

484(486).]

THE facts of this case sufficiently appear from the judgment of the
Court.

Mr. A. H. S. Reid, for the applicants.

The Hon'ble Mr. Spankie, for the opposite party.

JUDGMENT.

EDGE, C. J., and TYRRELL, J. This application under ss. 598 and
600 of the Code of Civil Procedure was presented to this Court on the
19th of February 1891 by the plaintiffs in the suit, [15] who were the
respondents to the appeal in this Court, in which the decree from which
they desire to appeal to Her Majesty in Council was made. The decree
is dated the 30th of July 1890. The application was presented twenty
days after the expiration of the period of limitation prescribed, if art. 177
of the second schedule of the Indian Limitation Act, 1877, applies. If
art. 178, and not art. 177, applies the application was presented within
time.

Mr. Spankie, who appeared for the opposite party, who had notice to
show cause why a certificate should not be granted, objected on the ground
that the application was when presented barred by limitation. It is not
disputed that if the application was not barred by limitation, it is one
which should be granted. Mr. Reid for the applicants contended that
art. 177 of the second schedule of the Indian Limitation Act, 1877 (Act No.
XV of 1877), had been repealed by the Code of Civil Procedure (Act No.
XIV of 1882). He also relied upon an affidavit filed with the application
as showing that the applicants were under the impression that the time
necessary for obtaining a copy of the judgment of this Court would be
excluded in computing the time prescribed for the presentation of such
an application, and further formally contended that the second paragraph
of s. 5 of Act No. XV of 1877 may be applied by us in case art. 177 has



"Application No. 4 of 1891 for leaye to appeal to Her Majesty in Council.

(1) 6 A. 250. (2) 11 LA. 7 = 10 C. 557.

(3) 2 M. 230.

724



(4) 1 A.W.N. (1881) 130,



YII]



In re PETITION OF SITA BAM KESHO



15 All. If



nofc been repealed, although he admitted that the construction placed by
the Courts in India upon that paragraph was opposed to his contention.
In support of his contention that art. 177 has been repealed Mr. Reid relied
upon a passage in the judgment of Sir Bobert Sbuart, C. J., in Fazal-un-
nissa Begam v. Mulo (1), upon s. 599 of Act No. XIV of 1882, and upon
8. 599 of Act No. X of 1877 the first paragraph of s. 2 of, and the first sche-
dule to, Act No. XV of 1877, as showing that the Legislature considered that
art. 177 of the second schedule of Act No. XV of 1877 was inconsistent with
s. 599 of Act No. XIV of 1882 and by s. 599 intended to ^repeal art. 177.
In support of his contention that art. 178 applies, Mr. Reid further relied
upon s. 57 of the Civil Procedure Code Amendment Act, 1888 (Act No. [16]
VII of 1888) by which s. 599 of Act No. XIV of 1882 was repealed, and
upon clause (1) of s. 3 of the General Clauses Act, 1868 (Act No. I of 1868).
Although the course of legislation on this subject is confusing and can
only be explained by an oversight on the part of the Legislature when Act
No. XIV of 1882 was passed, we would not have thought that there could
be any reasonable doubt that s. 599 of Act No. XIV of 1882 did not
effect^ repeal of art. 177 of the second schedule of Act No. XV of 1877,
if it had not been for the expressed opinion of Sir Eobert Stuart, C. J.,
upon which Mr. Reid relied. That opinion was merely an obiter dictum
of that learned Chief Justice, and consequently is not binding upon us.
The question before the Full Bench in Fazal-un-nissa Begam v. Mulo (1)
related to the constructions of s. 602 of Act No. XIV of 1882, and was de-
cided in accordance with the interpretation put upon the corresponding
section, s. 602 of Act No. X of 1877, by their Lordships of the Privy
Council in Burjore and Bhavjani Per shad v. Bhagana (2) in which they
held that s. 602 of Act No. X of 1877 which enacted that if the certifi-
cate be granted, the applicant shall within six months from the date of
the decree complained of, or within six weeks from the grant of the certi-
ficate, whichever is the later date, (a) give security, &c.," was directory
only and not per-emptory. The Full Bench case and that decision of
their Lordships of the Privy Council which was referred to by Sir Eobert
Stuart, do not, as it appears to us, bear upon the questions before us. It
is also to be noticed that the other Judges, Straight, Oldfield, Brodhurst
and Tyrrell, JJ., who took part in that Full Bench case confined them-
selves to holding that the question before them was concluded by the
Privy Council ruling.

If s. 599 of Act No. XIV of 1882 was inconsistent with art. 177 of
the second schedule of the Indian Limitation Act, 1877, and the sections of
that Act which must be read in conjunction with art. 177, Mr. Reid's
contention that art. 178 prescribes the period of limitation applicable in
this case would in our opinion be sound.

[17] Section 599 of Act'No.X of 1877 and s. 599 of Act No. XIV of
1882 were in precisely the same terms. They were as follows :

" S. 599. Such application must ordinarily be made within six
months from the data of such decree.

But if that period expires when the Court is closed, the application
may be made on the day the Court re-opens."

The second paragraph of s. 599 was to the same effect, so far as an
application of the kind is concerned, as the first paragraph of s. 5 of Act
No. XV of 1877.



1892

JULY 12.

APPEL-
LATE
CIVIL.

151.14 =
12 A.W.N.
(1892) 152.



(1) 6 A. 250.



(3) 11 I, A. 7 -IOC, 557.



725



13 All. 18



INDIAN DECISIONS, NEW SERIES



[tfol.



1892 Article 177 of the second schedule of Act No. XV of 1877 prescribes

JULY 12. six months from the date of the decree appealed against as the period of

limitation, but art. 177 must be read asjsubject to the provisions contained

APPEL- in certain sections in the Act, as for instance s. 7, which extends in cases

LATIT of legal disability the period of limitation as prescribed in the articles

CIVIL contained in the second schedule. Consequently, ib would be correct to

say that an application for the admission of an appeal to Her Majesty in

ISA. 14= Council must, in order to be within the limitation prescribed by Act No.

12 A.W.N, XV of 1877, ordinarily be made within six months from the date of the

(1892) 152. decree appealed against, which is what s. 599 of Act No. XIV of 1882

said.

We see no inconsistency between s. 599 of Act No. XIV of 1882 and
art. 177 of the second schedule of Acb No. XV of 1877 as read in
conjunction with the provisions contained in the sections of that Act
which are applicable to art. 177.

It is true that s. 599 of Act. No. X of 1877 was repealed by s. 2 and
the first schedule of Act No. XV of 1877, that s. 599 of Act No. XIV of
1882 was in precisely the same terms as s. 599 of Acb No. X of 1877, and
that by s. 57 of Act No. VII of 1888, s. 599 of Act No. XIV of 1882 was
repealed ; but we do not infer from that peculiar course of legislation that
the Legislature considered that art. 177 of the second schedule of Act No.
XV of 1877 was inconsistent with s. 599 of Act No. XIV of 1882, or
intended to repeal art. 177, or to limit its application, or to extend the
period of 15mita-[18]tion for the presenting of an application for the
admission of an appeal to Her Majesty in Council to three years from the
date of the decree appealed against. We are consequently of opinion
that art. 177 of the second schedule of Act No. XV of 1877 has not been
repealed or its application limited.

Now as to the questions raised by the affidavit which was filed with
the application. In that affidavit it was stated as follows :

"1. That your petitioners were under the impression that the time
necessary for obtaining a copy of the judgment of this Honourable Court
would be execluded from the period prescribed for this application.

"2. That when your petitioners learned thejr mistake the period
prescribed for this application had expired.

"3. That your petitioners had been advised to make this appli-
cation in the hope that under the circumstances this Honourable Court
will be pleased to grant them a certificate in spite of the lapse. "

That was a misleading affidavit. It implied that the applicants had,
as was the fact, applied for a copy of the judgment of this Court, and
that the time necessary for obtaining such copy, if allowed to them in
the computation of time for the purposes of limitation, would make their
application under ss. 598 and 600 of the Code of the Civil Procedure
within time, ib having been presented otherwise twenty days beyond time.
The fact is that the applicants having on the 1st of August 1890, applied
for a copy of the judgment of this Court received the copy on the 13th of
August 1890. Consequently if the applicants were allowed those thirteen
days their application would still have been beyond time.

As we have said, Mr. Reid formally contended that we had power
under the second paragraph of s. 5 of Act No. XV of 1877 to admit the
appeal after the expiration of the prescribed period of limitation. That
paragraph relates only to appeals and applications for review of judgment,
and does not relate to applications for leave to appeal, as was held on
an application fqr leare to appeal [19] as a pauper by the Madras

726>;



YII]



QUBEN-EMPRESS V. NATHU



15 All. 20



High Court in Lakshmi v. Ananta Shanbaga (1) and by this Court in 92

Ganga Gir v. Balwant Gir (2) and in subsequent cases. Further, art. 177 JULY 12.
is in the third division of the second schedule to Act No. XV of 1877.
The third division contains the articles which relate to applications. APPBL-

The articles which relate to appeals, as distinguished from applica- LATE
tions for leave to appsal, are contained in the second division of the CIVIL.
second schedule and none of those articles apply to appeals to Her Majesty
in Council. 1S * **=*

Further, even if the second paragraph of s. 5 of Act No. XV of 1877 * 2 A.W.N
applied to the application in question here, no sufficient cause has been (1892) 182.
shown for the applicants not; having presented this application within the
prescribed period of limitation. No copy of the judgment of this Court
was required as a preliminary to the presentation of this application, and,
if it had been, the time actually occupied in obtaining the copy was
thirteen and not twenty days.

We have no power to ex&end the period of limitation in this case. We
must apply art. 177 of the second schedule of Act No. XV of 1877, and
doing so we dismiss this application with costs.

Application rejected.



13 A. 19 = 12 A.W.N. (1892) 158.

APPELLATE CRIMINAL.
Before Sir John Edge, Kt., Ghief Justice, and Mr. Justice Tyrrell.



QUEEN-EMPRESS v. NATHU AND OTHERS.*

[27th July, 1892J
Act XLVof I860, s. 118"Dead'y weapon" Lathi.

The question whether or not a lathi is a " deadly weapon " within the meaning
of s. 148 of the Indian Pen^l Code is a question of faot to be determined on the
special oiroumitaacea of each case as it arises.

THE facts of this case sufficiently appear from the judgment of the
Court.

Mr. C. C. Dillon and Mr. Roshan Lai, for the appellants.

[20] The Public Prosecutor (The Hon'ble Mr. Spankie), for the
Crown.

JUDGMENT.

EDGE, C. J., and TYRRELL, J. Fatta, Taga Brahmin, aged 70 years,
and Nathu, Taga Brahmin, aged 30 years, are the appellants. Tbey have
been tried and convicted of murder and abetment of murder. They have
been sentenced to transportation for life ; Nathu having been found
guilty of murder and Fatta of abetment of that offence. Nothing has
been said to us against the propriety of Nathu's conviction, and it is plain
that he has been justly convicted. Full of enmity and malice of long stand-
ing he seized the chance afforded by a petty quarrel to make a murder-
ous attack on an inoffensive man, whom he killed by at least three
violent blows on the head. The sole provocation was that the unfortu-
nate Idu was moving to the protection of Kuribhisti, whom Nathu and
his party had just assaulted. On bebalf of Fatta, it was contended that

* Criminal Appeal No, 248 of 1893,
(1) 2 M. 230. (2) 1 A.W.N. (1881) 130.

727



15 All. 21 INDIAN DECISIONS, NEW SERIES [Yol.

1892 while bis presence during the attack on Kuri and the rescue from his

JULY 27. custody of Nathu's mare is admitted, it is not satisfactorily proved that

he abetted the murder of Idu. It is proved, and it is hardly disputed,

APPEL- that Fatta accompanied Nathu and the other Tagas with the object

LATE common to them all of assaulting Kuri and taking Fatta's mare from him.

CRIMINAL. ^forcing to the charge that the Tagas were provided with "deadly

weapons" the Judges remarked that "a common lathi is not a deadly

15 A. 19= weapon within the meaning of section 148 of the Indian Penal Code."

12 A.W.N, " Deadly weapons," he held, are swords, pistols, guns, spears and so

(1892) 158. forth." This is not a sound proposition.

It is a question of fact to be decided in each case whether the lathi
used or the lathi with which the injury is caused, was or was not in itself
a deadly weapon. One lathi may by reason of its weight, length, or other
peculiarities be a deadly weapon : another may not. No general rule can
be laid down on the subject. In the case before us it is presumable that
the lathi which produced such deadly injuries in three blows on Idu was a
deadly weapon, or was used with extreme violence. It is not said by the
accused who admit being present with their lathis that it was not. In
support of Fatta's appeal it was argued :

[21] (1) That he was not accused in the first report at the Thana and
that the report was not promptly made.

(2) That it is not proved that he cried out " Thaur mardo."

(3) That be did nob use any words in reference to the assault on Idu.
As to the first point we find that in the first report made by Kuri at

four in the afternoon of the day of the crime, he named Fatta in connection
with the cause of the assault on himself. We would hardly expect him
to report, or the Police to record, the facts which might constitute the
technical offence of abetment respecting Fatta. Fafcta's report an hour
later showed that he was present at the assault, and this has been practi-
cally admitted throughout. The first report therefore is not false or
defective touching the appellant Fatta. The delay in reporting is explained.
On the second point, the Judge found that " it is sworn consistently that,
though Fatta did not himself use any violence in the riot, he loudly incited
to the beating of Idu (deceased), the words being "Thaur mardo," which
the Judge interpreted to mean " kill him on the spot." The assessors
thought the words meant, " beat him on the spot." But it makes little
difference, as s. Ill of the Indian Penal Code would make Fatta responsi-
ble for the act of Nathu in either case. We believe that Fatta incited the
slaying of some one present by the words he used if he used them. On
this point the evidence is not good or consistent. The complainant's wit-
nesses have nob only strong village animosity to the accused, but also
personal spite of an aggravated character. The Judge animadverted on
their manner in the witness-box, thus :

I. Kuri " infamous manner."

II. Jiwan "even worse, the dry cough of the false witness be-
tween every two or three words."

III. Alyia "not so bad."

IV. Jumna " manner as Alyia."

V. Amir Baksh ' helplessly confused, never could name any one
straight, always some one else."

[22] Of these witnesses Kuri swore that Fatta said : " Beat Idu,
I will see to the consequences." Jiwan swore that Fatta incited to
the beating of Kuri ; this witness would say the worst he could against

728



YII] QUEEN-EMPRESS V. RAGHUNATH RAI 15 All. 23

Fatta, for he was wounded by his party and he attributed his father's 1892
death to their malice. JULY 27.

Alyia was silent on this point, he apparently heard no inciting word
from Fatta. APPEL-

Jumna made Fatfea cry " Thaur Maro," after Idu fell, when he and LATE
the other witnesses said the accused went on beating Idu, which the Judge CRIMINAL,
disbelieved.

Amir Bakhsh deposed that " Fatta was there, but did not beat any 151.19 =
one ; he went away ; he cried out to the men to beat." This is no doubt a 12 A.W.N.
case of grave suspicion against Fatta, but the evidence is not such as to (1892) 158.
afford a safe basis for conviction of abetment of the murder of Idu. We
dismiss the appeal of Nathu. We allow in part the appeal of Fatta. We
set aside the conviction and sentence of Fatta under ss. 302 and 114 of
the Indian Penal Code, and we convict Fatta of the offence punishable
under s. 147 of the Indian Penal Code, and we sentence Fatta to be
imprisoned rigorously for two years.

The appeals of Earn Prasad and Sarjit were not pressed and are
dismissed.



15 A. 22 = 12 A.W.N. (1892) 220.

APPELLATE CRIMINAL.

Before Mr. Justice Tyrrell.



QUEEN-EMPRESS v. RAGHUNATH RAI AND OTHERS.*
[6th August, 1892.]

Act XLVoflSGO, ss. 24, 147 and 391 Dacoity Riot Dishonest intention a tiecessary



Online LibraryChas. A. Stevens & BrosThe Indian decisions (New series) : being a re-print of all the decisions of the Privy Council on appeals from India and of the various high courts and other superior courts in India reported both in the official and non-official reports from 1875 (Volume 7) → online text (page 107 of 155)