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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 80 of 155)
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Jawahir Lai's evidence above referred to closed the evidence which
was recorded on the 6th of January. Beyond the fact that Jawahir Lai
had stated that when he met Bahadur Singh and the accused, liajwanfc
Singh, between eight and nine o'clock on the morning of the 13th of
September, he told them to go with him, " as Prayag was complaining of
them," there was not one word of evidence given on the 6th of January
connecting the accused men, or any of them, with the crime. At the
close of the evidence on the 6th of January the Sessions Judge made an
order, the only material part of which was " arrangements to be made to
keep the accused apart until they are examined."

On the morning of the 7th of January the trial was resumed. The
part of the record relating to that day begins thus :

" Trial resumed. Present as before. Bead and heard application of
the Government Pleader to examine all the defence witnesses as witnesses
for the Crown, as the Deputy Magistrate has omitted to question them,
though they are (more or less) summoned to prove that Sambhal Singh
was murdered by men who are witnesses for the Crown.

" Application refused. At the earliest possible moment the Court
will examine the accused and then, if necessary, proceed under section

A VII 57


1892 [250] 540, Criminal Procedure Code. Amir Singh, recalled, re-sworn,

JUNE 7, states : ' My brother Sambhal Singh was knocked down in my sight by

lathi blows, and died on the spot by the embankment which was being

APPEL- made some five or seven cubits westward from the charri or feeding

LATE troughs. I saw the blows struck. The first blow was struck by Bahadur

CRIMINAL. Singh : this did not knock him down. He was then simultaneously struck

by Eajwant Singh, Jhulai Ahir, Budhu Keori, and Hargobind Singh. Each

11 A. 212 one struck him with a lathi. There were some 15 or 20 other men there

12 A.W.N, armed with lathis, all ready to fight on the side to which Bahadur Singh
W892) 83. waa allied."

Then the Sessions Judge makes an order that the prisoners be

It is now necessary to refer to the petition which had been presented
by the'Government Pleader. We have above set out what the Judge's
record of that morning states concerning it. Lat us 'now turn to the
judgment. Speaking of the case for the defence, the Sessions Judge in
his judgment says :

" Assuming for a moment, for the sake of argument only, that this
countercharge be false, then a more heinous and revolting attempt to
procure judicial murders cannot be conceived by man.

" Extermination by the halter is meant.

" A Magistrate invested with first class powers, one whose whole life
has been passed in this land of intrigue and perjury, has been content to
pass on this most dangerous case without taking the precaution of reduc-
ing to writing what could be said against the theory he adopted. He
left it open to one side to produce men in relays tutored to say whatever
might be deemed expedient to cause to be said. When examining the two
accused, Raj want and Jhulai, he did not take the trouble to insist on their
saying who else besides themselves could have seen the murder of one
brother at the hand of another. When committing the four prisoners, he
again neglected his most important duty by allowing them to reserve the
names of their witnesses. Lists were subsequently filed ; but then, again,
it was [251] left open to the friends of the prisoners to utillize each man so
named in any way which might thereafter be deemed expedient. In other
words, the Magistrate neglected culpably neglected to insist on a
specification of the nature and scope of the expected evidence of each
witness then named.

" Worse was to follow. After the records came into this Court,
those then concerned with the defence found means to have substituted
lists of witnesses brought on to the record, so that, when the trial in this
Court commenced, the prosecution had no knowledge of the names of
many of the witnesses who were attending to rebut the evidence for the
prosecution ; and among the additional witnesses secretly added are two
avowed eye-witnesses of the murder of Sambhal Singh by the members
of his own family, the chief witnesses for the prosecution.

" This culpable neglect of duty by the committing Magistrate has
added vastly to the labour of the Court to its difficulties, and has
placed the Judge in a most invidious position. At the earliest possible
stage, after discovering what had been done, the Government Pleader
applied to have all the witnesses for the defence made witnesses for the
Crown. This was refused, but as it would have been at the risk of fearful
miscarriage of justice to allow tutors of false witnesses a chance of
instructing willing pupils to swear away the lives of men sent up as
witnesses for the prosecution ; and as, on the other hand, the statements of



these man, supposing they had been telling a true story, would have had 1892
vary litble weight if their examination were delayed, the statements of all JUNE ?,

those likely to ba able to give evidence outside of those sent up as Grown

witnesses were recorded as quickly as possible." APPEL-

Eatertaining grave doubts as to the bona fides of that petition of the LATE
Government Pleader, we asked him, whilst this appeal was being heard,
under what section of the Code of Criminal Procedure he bad presented it.
He said he did not know. We asked him if he had ever presented any similar 14 A. 212-
petition before, and he said he had not. We then asked him to explain the 12 4.W.N.
circumstances under which he came to present it. His explanation was as (1892) 83.
follows : According [252] to him, when he went to the table of the Sessions
Judga at the closa of the evidence on the evening of the 6sh of January, to
get his certificate of attendance signed, the Sessions Judge told him to put
in a petition asking that the witnesses for the defence should ba examined
for the Grown, on the ground that the committing Magistrate had not fully
taken down the statements of the accused. The Government Pleader
stated that he did not then draw up the petition, and that when, on the
following morning, the 7th of January, the Sessions Judge asked him if
the petition was ready, he said it was not, as ho did not know under what
law he was to present it, and thereupon the Sessions Judge said to him
that it was not under any particular law, but he was to file it for the ends
of justice ; and he then went and drew it up at once and presented it, and
the Sessions Judge rejected it. We asked the Government Pleader if it was
bona fide intended by him to make the witnesses for the defence witnesses
for the Grown that is, witnesses whose evidence the Crown intended to
accept and he said it was not bona fide intended to make those witnesses
witnesses for the Crown. Such was the account given to us by the Govern-
ment Pleader. Forming our opinion from the record of the trial as to the
conduct of the trial by the Sessions Judge and as to his bias, we see no
reason to doubt that the statements of the Government Pleader may be
accepted as correct. If they are correct, they show an unwarranted inter-
ference by the Sessions Judge with the conduct of the prosecution, which
should have been left in the hands of the Government Pleader who had
been instructed to conduct it, and further show that the least that can be
said is that the opening passages from the Judge's record of the 7th of
January and the extract relating to the petition which we have given from
his judgment are the reverse of candid. That it was never intended bona
fide to make the witnesses for the defence, witnesses for the Crown we
have not a doubt.

Whoever instigated the presenting of that petition, the object, beyond
doubt, was to reverse the order of a criminal trial and to place the accused
m'en at a disadvantage by having their witnesses, [253] called and
all that they icould say disclosed before the evidence of Amir Singh
should be completed or the other genuine Grown witnesses should be
called. By such a course Amir Singh and the other witnesses for the
Grown would ba put upon their guard, and any cross-examination which
could ba administered to them would ba practically futile. Such a course
would be the last which any sane man who hoped to ascertain the truth
and had not already made up his mind that tha accused ware guilty, and
that nothing was to ba said or believed in their defence, would adopt.
And yet that course, but in another form, was adopted by the Sessions

After the evidence which we hava quoted from the Judge's record had
been given by Amir Singh on tha morning on tha 7th of January, the



1892 Sessions Judge ordered that the prisoners should be examined, and he

JUNE 7. proceeded to examine them accordingly. We asked Mr. Spankie under

what section of the Oode of Criminal Procedure the Judga was justi-

APPEL- fied in examining the accused at that stage of the trial, and the only section

LATE he could suggest was section 342. That section, so far as it is material

CRIMINAL. f r Present purposes, is as follows: "For the purpose of enabling the

accused to explain any circumstances appearing in the evidence against

14 A. 242= him, the Court may, at any stage of any inquiry or trial, without previously

12 A.W.N. warning the accused, put such questions to him as the Court considers

(1892) 83, necessary, and shall for the purpose aforesaid question him generally on

the case after the witnesses for the prosecution have been examined and

before he is called on for his defence." It requires no knowledge of law

to understand that section, and to understand that it is not for the

purpose of ascertaining what witnesses the accused intends to call, or what

evidence they will give, or what his defence is, that a Court is justified or

authorized in examining an accused under that section. A Court is only

authorized under section 342 to examine an accused " for the purpose of

enabling the accused to explain any circumstances appearing in the

evidence against him." The evidence in that section referred to is the

evidence already then given at the trial.

[254] At that stage of the trial the Sessions Judge put 21 questions
to Hargobind Singh, 28 questions to Bajwant Singh, 22 questions to
Buddhu Koeri, and 24 questions to Jhulai. The direct and only object of
those questions was to get from the accused by a species of cross-examin-
ation the names of their witnesses, what evidence those witneeses would
be called to give, what means of knowledge of the facts those witnesses had
and the particulars of the defence of each of the accused. We doubt
looking at those questions from a point of view most favourable to the
Sessions Judge, if there was one single question of those 95 questions which
was authorized by section 342, or was in any way directed towards
enabling any of the accused " to explain any circumstances appearing in
the evidence against him." Here are some examples. Amongst other
questions the following were put by the Sessions Judge to Hargobind
Singh :

"Q. To what point is Badal, Gadaria, your witness?"

"Q. On which side of the road did you come across with Badal,
Gadaria ?"

"Q. Strain your memory and tell anything more besides this that
Gadaria, Badal, may have said to you."

Here are some of the questions put to, and the answers given by,
Eajwant Singh :

"Q." Who are the witnesses in your defence? Name them. A. Chhotu"
Chamar, Panchu Chamar, Phulman Chamar, Sukhdeo, Pande, and Sheo-
nandan Pande altogether five persons. These are my witnesses, and
no other besides them.

"Q. Do you know whether Kuar Singh is included in the list of
your witnesses or not ? A. I do not know, as I was in custody.

"Q. What can Kuar Singh say in your defence ? A. I don't know
what deposition he will give.

"Q. Did you see Kuar Singh on the spot ? A. No, I did not see
him on the spot, but on the day of this occurrence I saw him in his juar
field. .

[255] "Q. Why did you not get Kuar Singh summoned in your
defence ? No answer."



Here are a few examples from the examination of Jhulai : 1892

"Q. Were there any others who could see Amir Singh, &e., strik- JUNE 7.
ing Sambhal Singh or not ? If there were, name them.

A. I don't think any one else saw the affair besides those whose APPEL-
names I have already mentioned. LATE

" Q. Now state again fully the whole affair as you saw it." CRIMINAL

We have no hesitation in saying that the procedure and those ques-

tions were entirely illegal. The Sessions Judge, having got all the H *> 212-
information be could from the accused as to their witnesses, proceeded 12 A.W.N,
to call and examine the witnesses for the defence. We should here U892) 83.
say that the Sessions Judge had given the witnesses for the defence
into the custody of the police. This is his euphemistic account of
that proceeding. " The fact is, it would seem, that the action of the
Court on the second day of the trial in suddenly putting every witness
available for the defence under surveillance till he had declared what he
had to say came as a total surprise on witnesses not yet prepared, to say
their say."

Avoiding euphemism, we should say that the Sessions Judge had
been guilty of what is commonly known as wrongful restraint. This is
what he did : he picketed the witnesses for the defence in twos in custody
of the police, each two men being placed back to back, so that there
might be no communication between them. Much as the witnesses may
have been surprised by that action of the Sessions Judge, there was a
still greater surprise in store for them.

Immediately after the accused had been examined in the manner
referred to, the Sessions Judge proceeded to call the witnesses for the
defence and to examine them. It is alleged on behalf of the appellants
that the Sessions Judge, as each of the witnesses for the .defence was
called, or shortly after his examination commenced, caused section 194 of
the Indian Penal Code to be read to the witness. Referring to the wit-
nesses for the defence, [256] this is what the Sessions Judge says on the
subject in his judgment :

" However, what they hive deposed has been declared by them with
a full knowledge of the provisions of section 194, Indian Penal Code. "

The record of the evidence of the first seven witnesses for the defence
who were examined by the Sessions Judge shows that the attention of
six out of the seven must have bean drawn to section . 194 of the Indian
Penal Code, and that they misunderstood that section. Their evidence
shows that as they were aware that Amir Singh was accused of having
killed his brother, Sambhal Singh, they considered that they might be
transported for life if they gave false evidence at the trial of Hargobind
Singh, Bajwant Singh, Buddhu, and Jhulai in their favour. The fact
is that the section was entirely inapplicable to the witnesses, unless
they gave false evidence at the trial, intending thereby to cause, or
knowing it to be likely that they would thereby cause, these four appellants
or some or one of them, to be convicted of the murder with which they
were charged. The Sessions Judge could not have imagined that the
witnesses for the defence were likely to give false evidence against the four
accused or any of them. The only event in which section 194 could
possibly have applied to them was the event of the action of the Sessions
Judge so far intimidating the witnesses as to induce them to give false
evidence against the accused. The witnesses for the defence may be
excused for not knowing the law when it is apparent that the Judge
himself was ignorant on the subject.



1892 We have no hesitation in saying that it is illegal of a Judge to threaten

JUNK 7. a witness with the penalties of the law, and that no Judge should allow

anything of the nature of a threat to be administered to a witness, unless

APPEL- and until the witness has shown by his evidence that he is wilfully saying

LATE what is false or is persistently refusing to give evidence on facts which

CRIMINAL mus ^ De within his knowledge. To threaten witnesses for the defence of

' a man who is on bis trial for his life is to deny him a chance of proving his

II 1. 212= innocence, and is, in [257] our experience, before this present case, un-

12 A.W.N. heard of on the part of a Judge. It is easy to conceive what must have

(1892) 83, been the effect on any but the stoutest witness of what had happened and

was happening. There could not have been any official, pleader or witness,

about the Sessions Judge's Court, attending to what was going on, who

could have doubted on the 7th of January that the Sessions Judge had

made up his mind that the accused were guilty, and that their case was


The Sessions Judge had administered at that early stage of the case an
illegal and inquisitorial cross-examination to the prisoners. He had
picketed all the witnesses available for the defence in twos in custody of
policemen. He was making use of section 540 of the Code of Criminal
Procedure in a way in which that section was never intended to be used.
He was reversing the ordinary and legal course of a criminal trial.
He was acting in violation of the spirit, if not of the letter, of sections
289 and 290 of the Code of Criminal Procedure, and he was beginning the
examination of the witnesses 'for the defence by what must have seemed
to them a threat of transportation for life if,tbey should say in their evid-
ence that it was Amir Singh, and not the prisoners, who had murdered
Sambhal Singh ; and yet the issue which the Sessions Judge had to try
was, did the prisoners, or some or one of them, murder Sambhal Singh ;
and at that period of the trial the only direct evidence which had been
given connecting the prisoners, or any of them, with the murder had been
the evidence of Amir Singh, who himself was accused by the defence of
the murder, whose evidence in chief had not been concluded, and who
had not then been submitted to cross-examination.

What we have already pointed out would make it impossible for us
to consider the trial a judicial one, or to allow the conviction of these
appellants by the Sessions Judge to stand.

There are, however, other matters connected with the conduct of
that trial by the Sessions Judge which we should be failing in our
duty if we were to pass over in silence. The calling and examination by
the Sessions Judge of the witnesses for the defence [258] proceeded under
the conditions to which we have referred. On the 8th of January the
prisoner, Hargobind Singh, was further examined. He admitted that be
had caused the petition of the 5th of September 1891 to be drawn up and
presented to the police, and then the followingSquestion and answer are
recorded by the Sessions Judge :

" Q. When you stood in the dock before the trial had fully begun,
when the inquiry was made as to what class of Kajputs Amir Singh belong-
ed to, did you not call out that he was a bastard Kajput ?. A. I did."

That question put by the Sessions Judge to Hargobind Singh needs
no comment. Amir Singh was recalled on the 8bh of January and further
examined. He was then cross-examined. At the close of his cross-exami-
nation he was not re-xamined by the Government Pleader, but ha
was again examined by the Sessions Judge. In that re- examination,
or whatever it may be called, by. the Sessions Judge, Amir Singh



committed, as we believe, deliberate perjury on a material question 1892
having regard to the case for the defence. He said Sambhal Singh was JUKE 7,
not ill for a single day. After that re-examination by the Sessions Judge -
the calling and examination by him of the witnesses for the defence was APPEL-
again proceeded with, some witness being interposed to prove localities LATE
or that one of the zemindars and Bhukan Das had absconded. CRIMINAL.

We give the following extracts from the Judge's record of the llth -
of January as showing how the trial was being conducted. The Judge's H A. 212=
record is silent as to the 9fch of January, and the 10th was a Sunday. H A-W.N.
This is the Judge's record of the examination of one Beni Pande, who (1882)83.
was called and examined by the Sessions Judge, but was not, apparently,
a witness for the defence. " Called by Court Beni Pande, son of
Romjan Pande, age 30, states on solemn affirmation. The witness is led
around through much irrelevant inquiry which it is unnecessary to record.
After describing his fields lower south of Gaharwarpur :

"Q. What servants have you? A. One. Q. Is he here to-day?
A. No. Q. What is his name ? A. WahiDalganjan. [259] Q What
explanation have you to placing the word 'Wahi' before the single name
' Dalganjan' ? (No answer.)

Cross-examination. I have jajmans in Gaharwarpur among tha
Sarwars Thakurs. I can eat puris and sweets at their hands. I know
Amir Singh and Sambhal Singh.

Q. (disallowed) 'Would you now drink water at the hands of Amir
Singh ?'"

Masai Pande was called and'examined by the Sessions Judge at some
length. He was cross-examined, and at the end of the record of his
evidence there is the following note :

" (Demeanour very hostile to the prosecution. Discharged.)" Then
follows this memorandum, or order, of the Sessions Judge : " Being now
night, and it being impossible to examine further witnesses, the defence
are called on to declare the points on which they expect their remaining
witnesses to be able to testify. Sundar and Dasaudi : it is explained that
nothing is known of what they can speak to. They were named as per-
sons who could give evidence, by the witnesses for the prosecution in the
Magistrate's Court ; but as they have not been examined for the prose-
cution, they have been called to be present for the defence. The Amin is
again sent to make more exact observations regarding the width between
the southern extremity of the old Kawal and Amir's well and to make
sections of the embankment." Then Amir Singh is recalled and further
examined, and the trial is postponed.

On the 12th of January Amir Singh is re-called by the prosecution
and further examined. Then the Amin is examined, and then the Sessions
Judge calls and examines Sundar Dasaudi, who was mentioned in his
order of the lltb. At the end of the record of Sundar's evidence is the
following note by the Sessions Judge:" (Witness is very impatient to
relate a conversation with Amir Singh)" and the conversation is not
recorded. The Sessions Judge, who had committed nearly every conceivable
irregularity in aid of the prosecution, short of sentencing the prisoners
to death without a trial, draws the line when ' Sundar, who was called by
[260] himself, proposed to speak to a [conversation with Amir Singh.
The Sessions Judge may have been right, as it is possible that the
conversation may have been irrelevant, or Amir Singh may not have been
cross-examined as to it. Then a witness for Hargobind Singh is called by



1892 the Sessions Judge and intimidated. Then one Dasmi * Bind is called and

JUNE 7. examined by the Sessions Judge. The Sessions Judge, who just previously

had prevented Sundar speaking to a conversation with Amir Singh, delibe-

APPEL- rately invites Dasmi * Bind to give hearsay evidence against the prisoners.

LATE Here is the record of the question pub by the Sessions Judge and the

OlRMINAL. a n8W t er to it :

To the Court. Q. You know that a fresh start has been made

11 A. 242 with a new bit of embankment between the extreme points at which you

12 A.W.N. began and left off your work. Oan you tell by whom tiiat work was done ?
(1892) 83. You can mention names from hearsay. A. I know nothing about it."

Apart altogether from the Judge's invitation for hearsay evidence,
that was as vicious and irregular a question as was ever put in a Court
of Justice, the witness had not said one word to suggest that he knew
that any " fresh start" had been made.

The record of the 12th of January concludes as follows :
" Pragash Dasondi, Sajan Pande or Somer Pande. Defence does
not want them. Bisseawar Singh has been summoned but has not attend-
ed. Warrant for his arrest to issue. Madho Singh is conveniently absent,
Warrant for his arrest to issue. Case postponed till to-morrow." We are

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 80 of 155)