Karl Heim.

The Criminal law journal of India : a monthly legal publication containing full reports of all reported criminal cases of the high courts and chief courts in India online

. (page 61 of 91)
Online LibraryKarl HeimThe Criminal law journal of India : a monthly legal publication containing full reports of all reported criminal cases of the high courts and chief courts in India → online text (page 61 of 91)
Font size
QR-code for this ebook

Babu Lachmi Narain Singh for the Petitioner.

The judgment of the Court was delivered by

Woodroffe^ J. — We make this Rule absolute. We set aside the order
passed under section 476 of the Criminal Procedure Code on the ground,
that in the appeal which was preferred by the accused in the case in which
the applicant is alleged to have given false evidence and to have produced
fabricated document, the Sessions Judge has differed from the opinion of
the Joint Magistrate and ihe case has not yet been finally decided.

When however the case is finally decided, it will be open to the Magis-
trate to take such proceedings as he may be authorised to do by law.

Rale mcule absolute^

Digitized by


304 The Criminal Law Journal Reports, [Vol. Ill


(3 C. L. J., 303.)


Dec. 12 [(^IMINAL REVISION No. 1041 of 1905.] 1905.

Present: — Mr. Justice Brett and Mr. Justice Stephen.


Criminal Procedure Co<h (Act V of 189S), section 423, 428^Retnal and recordi tig fur-
ther eridence, differencf bettceen.

When an Appellate Court pasf;e8 an onler of remand umler section 423, Criminal Proce-
dure Code, it cannot restrict the cTidence to be taken to that mentioned in its order, but it
Hhould onler the case to be retried in view of the instructions contained in its order. In such
a case it is open to the accused person to adduce such additional evidence as he maj desire.

The petitioner had l>een convicted by the Deputy Magistrate of Peroj-
pur under sections 154 and 155, Indian Penal (Jode, and had appealed to
the Sessions Judge of Backergunge. The Sessions Judge on appeal passed
the following order on the 26th July 1905 : —

" It appears from the proceeilings and judgment of the Deputy Magistrate that he has
virtually accepte«l a certified copy of a judgment in a rioting case as conclusive evidence that
a riot was committed. It is however evidence of the fact that the persons therein named were
convicted of rioting on the date specified. There must be further inde|)emlent evidence that
a riot did in fact take place before a conviction can be had under either of the two sections

" The Magistrate's finding and sentence are set aside under section 423 (B), Criminal Pro-
ce<lure Code, and the case remanded to the Deputy Magistrate for reconl of acklitional evidence
as to the fact of a riot having occurred. The reconl with the additional evidence so reconled
will then be returned to this Court for disi)08al of the appeal.''

The Deputy Magistrate thereupon took this order as one passed under
section 428, Criminal Procedure Code, and recorded additional evidence
and sent up the record to the Sessions Judge. When the record came up
before the Judge again, he, on the 2nd September 1905, passed the follow-
ing order : —

" The record has been returned with the further additional evidence recorded. It is re-
manded to the Deputy Magistrate for consideration of this evidence together with the evidence
previously on the record and for the recording of a judgment in that case upon the whole evi-
dence, the original finding and sentence having been set aside."

The accused thereupon moved the High Court and on his behalf it
was contended that the learned Judge ha^nng set aside the conviction and
sentence had no authority in law to pass an order under section 428,
Criminal Procedure Code, for recording additional evidence ; and in the
next place, if his order be treated as having been passed under section 423,
Criminal Procedure Code, then the order should have been for a retrial
of the case. A rule was issued upon these grounds.

Babu Manmatha Nath Mukerjee for the Petitioner.

The judgment of the Court was delivered by

Brett^ ,/. — In this ease a Rule was issued calling upon the District

Magistrate of Backergunge to show cause why the order of the Sessions]

Digitized by


Vol. Ill] The Okiminal Law Journal Hepobts. 305


Judge, dated the 2nd September 1905, should not be set aside on the
ground stated in the petition or why such other order should not be made
as to this Court may seem fit.

It appears that the petitioner was convicted by the Deputy Magistrate
of Peroj{)ore on the 30th June last under sections 154 and 155 of the
Indian Penal Code, and sentenced to pay a fine of Rs. 250 under each
section. He appealed to the Sessions Judge of Backergunge, who set
aside the conviction and sentence and remanded the case to the Deputy
Magistrate for the purpose of recording additional evidence. This order
apparently was passed under section 423 of the Criminal Procedure Code,
for so far as we can gather from its terms it is not an order which we can
hold to come within the provisions of section 428 of the (-ode.

On behalf of the petitioner it has been urged that when the order was
passed under section 423, the learned Sessions Judge could not restrict the
evidence to be taken to that mentioned in his order, but that under the
provisions of that section he should have ordered the case to be retried in
view of the instructions contained in his order.

We are of opinion that this contention is sound and that we must take
his order as one passed under section 423 for a retrial of the case and that
the petitioner is entitled under these circumstances to adduce such ad-
ditional evidence as he may desire.

We therefore set aside the order of the Sessions Judge, dated the 2nd
September 1905, and we direct that the case be remanded to the Deputy
Magistrate for a retrial either on the evidence which has already been re-
corded if no objection be taken to that course or on fresh evidence given
on behalf of the prosecution.

If however the case be heard on the evidence at present recorded an
opportunity must be given to the present petitioner to adduce any further
evidence he may wish to offer in his defence.

J^ifle mcule absolttle.

(15 K. L. 11,, 360.J



Juny. 20 [CRIMINAL SESSIONS CASE No. 13 of 1904^)5.] lood.

Present : — C. A. Kincaid, Esq., I. C. S.


Ecidenee Act (I of 1872) *. 32—Di/lHff d<;clu tat ion— Falsehood in U—CircHwstaHtUU
etl40/uie—*Perfumtor^ conduct of pdiee in iHteMiQation,

Digitized by


3O0 The Criminal Law JutiiyAL Uepuuts. [Vol. lit


If a <lying declamt ion is as clear as well could be, ami bears none of the higiis oE lueiital
confusion an<l distress, (which RomctimcH induce a dying jwrsou to give a iK»rverted account
of the circuni8tance8 surrounding his injur\'), or if the deceaseil's !^pecch was intcUigent and
<listinct, when his statement or dying tleclaration was taken dovn, it should be rcccivetl with-
out caution, and, though falschooil in it munt be guardal against, yet, if it i» supported by
circumstantial evidence, it must be taken as true.

The iMjrfunctory conduct of an investigating police officer is no reason, if there is otherwi'^^c
sutticicnt evidence for a conviction, to accjuit the accuse<l.

Address to the Members.

The aceiLsed Mem Vahi stands charged with having at about 7 a. m.
on the 21st November murdered Granga Mala by striking her in the abdo-
men with a dagger.

The questions for the court's adjudication are : —

(1) Was the deceased Ganga Mala murdered ?

(2) If so, was she murdered by the accused ?

The 1st issue will not require any consideration as Mr. Dayabhai, the
learned counsel for the accused, has admitted that the deceased must have
l>eeii murdered. The point therefore which engages our attention is
whether she was murdered by the accused Meru Vala.

The facts of the case as they appear from the evidence produced by
the i»rosecution are somewhat as follows. For some years previous to the
deceased's nmrder there had been an improper intimacy between her and
the accused. It seems, except for occasional remonstrances from Lakhmaii
the deceased's brother, to have continued without hindrance until the
death of the deceased's husband. It would then seem that Ganga, who
appears to have after that event become an ordinary prostitute, began to
neglect the accused. This excited his' desire for her and he wished to
induce her to live in his house. 8he declined pleading that she could not
do so as Meru had then already a wife and children. On the morning t»f
the 21st November he climbed over the low wall surrounding Ganga';*
compound, got admittance into her house and for the last time asked her
to live with him. She again declined. Exasperated at her refusal he
drove his dagger into her abdomen. She struggled with him and wrench-
ed away the dagger. He then fled from the house. Her little nephew
Bechar, who was a witn(»ss of the scene, went to call the Faujdar and
Ganga's relations. She herself walked out a little way but no doubt over-
come by the pain sat down in the Varipa Chok, a fair sized street close by.
There she was seen by her sister Hira to whom Bechar had gone and by
her was taken l^ack to her house and laid on the cot. Meru's dagger
w^iich till then the dying woman had held in her hand was taken from her
and placed l>eneath the bed. In this position she was found by the
Faujdar who with the Doctor came almost immediately afterwards. The

Digitized by


Vol. Ill] The Criminal Law Journal Kepouts. 307


Magistrate was sent for and took her dying declaration in which she
cliarged Meru with the crime. She was then taken to the hospital where
she died about 11 a. m. Meru was arrested in his house and taken to jail.
The foUoAving day the deceased's sister, who had no doubt gone into
Granga's house to put together such little property as she had, found the
scabbard of the dagger and a pachhedi near the grinding mill in the T)ack
part of the inner room. Upon these facts the accused Meru was com-
mitted to take his trial in this court.

The defence has called no witnesses, but has tried to pick holes in the
evidence produced by the crown. Mr. Dayabhai first wished to minimise
the effect of the dying declaration and read Mr. Field's Notes to section 32
as to the caution with which dying declarations should be received. But
in this case the declaration bears to my mind the stamp of truth. It runs
as follow : —

"Meru Vala struck me this morning at 7 a. m. with the jamiyo
(dagger) which is produced here. I ' was sleeping here in my house and
Meru came climbing over an earthen wall. The jamiyo produced was
with him. As I told him not to come to my house, he wounded me. He
wounded me on my belly and on my hands. My intestines have come
out. My brother's son Bechar was lying beside me." This statement is
as clear as well can be and bears none of the signs of mental confusion
and distress which according to Mr. Field's Notes sometimes induce a
dying person to give a perverted account of the circumstances surround-
ing his injury. Moreover, it must be remembered that here the deceased
Imd just before her dying declaration walked out and had told to her
sister Hira identically the same story. Lastly, the Magistrate who todc
it down has deposed that her speech was intelligible and distinct, Mr.
Field has indeed warned judges that falsehood must be guarded against,
but it has not been suggested why Ganga should falsely charge Meru
instead of the real murderer. Moreover, her story is abundantly supported
by circumstantial evidence. In her hand was the dagger which she
wrested from the murderer and that dagger has been identified by the
witness Lakhman to belong to Meru. The defence has tried to discredit
this identification, but I fully accept it as true. The dagger had peculiar
silver ornamentation on the handle and if once seen could easily be again
recognized. Its scabbard was found on the scene of the murder and near
it was a pachhedi which if not satisfactorily proved to belong to the accused
is yet a male garment and one which only certain classes, such as Girassias
and Khavases, wear. So much for the circumstantial evidence. I now
come to the evidence of the witness Bechar. He has been, as is only too
commonly done by defending counsel, stigmatized as a tutored Police

Digitized by


'Mb The Ckiminal Law Juuhnal Uepokts. [Vol. Ill


witness. The Members have themselves seen the boy and will probably

Mgree with me that he is nothing of the kind. He is a very intelligent

boy and gave his evidence in a direct and convincing manner. Moreover.

it must be borne in mind that Ghinga in her dying declaration distinctly

stated that he was present. This of course renders nugatory the plea that

he was brought forward at a later stage to bolster up the enquiry. Mr.

Dayabhai laid stress on a discrepancy between his story that he when

Meru jumped into the compound had gone to answer a call of nature and

Hira's account that Ganga told her that she had unfastened the chain of

the verandah door and so let him out. If, said Mr. Dayabhai, Bechar had

gone into the compound to answer a call of nature, the chain could not

have been fastened. Hira, however, made this statement in the Lower

Court and not here and as that statement has not been filed it is not in

evidence. Had Hira's attention been called to it I have not the slightest

doubt that an explanation would have been forthcoming. She would

probably have admitted that she was not positive that Ganga said that she

unfastened the chain, or we should have learnt that the door was a lattice

one through the interstices of which a child's hand could pass and so fasten

the chain from outside. We thus have Ganga's declaration supported by

the direct testimony of Bechar who saw Meru stab his aunt. These are

both corroborated by the witness Mr. Harishankar. Mr. Dayabhai has

argued that Mr. Harishanker only saw a man like Meru pass. This is

true but he went on to say that w hen he met Ganga and she charged Meru

with the murder he became certain that the man actually was Meru. And

this is rendered more probable because the time was that about which

Meru must have passed and the road, as the surveyor has deposed, was the

shortest way to Meru's house inside which he was immediately afterwards


Mr. Dayabhai has laid stress on the fact that Meru^s blood-stained
clothes were not discovered. But it does not at all follow that any blood
ever fell on them. The wound was in the woman's abdomen just above
the petticoat and the blood from it might easily have been soaked up by
its ample folds. No blood could have flowed on to Meru's clothes from
the dagger because he left that behind. I will however concede that the
Faujdar should liave forced open Meru's boxes to sec if inside them were
other and bloodstained clothes and that he should also have at once visited
the spot where the murder was committed. But it must not be forgotten
that the Faujdar is not a tniined Agency Official and has little or no
experience of cases such as the present. Moreover, the perfunctory con-
duct of the Faujdar is no reason, if there is otherwise sufficient evidence
for a conviction, to acquit the accused.

Digitized by


Vol, III] The Ouiminal Law Journal Reports. -iiOfl


Two other pleas remain. The first is that the tracks were not followed
from the house of Granga to that of Meru. But the road was a principal
and much used one and it also appears that except while climbing over the
wall Meru wore boots. It would, therefore, have been useless to try.
The second is that there is a discrepancy between the duration of the
intimacy between Meru and Ganga as given by Lakhman and as given by
Hira. I would leave it to the Members to judge whether a sister was not
more likely to know the exact truth than a brother. It is no doubt pro-
bable that Meru's visits were in the later months less frequent than
formerly. This would account for Lakhman's belief that they had wholly
stopped and also for the jealous passion which led Meru to ] commit the

(Sd.) (/. A. Kincaid, President and
20th January, lOOG. Judicial Assistant.

The court is unanimously of opinion that the accused is guilty of the
murder of Ganga but as the members are of opinion that there was some
motive which has not been disclosed and that the crime was duo to a
sudden outburst of jealousy the accused is sentenced to undergo transporta-
tion for life.

20th January, 1906.

(Sd.) C. A. Kincaid, Judicial Assistant, Kathiawad : (Sd.) Jhala
Ohandrasingji B. ; (Sd.) Purshottam Moolji.

(15 K. L. i?., 363.)



Oct. 19 [CRIMINAL REFERENCE No. 1 of 1905-0(].] 1905.

Premit .— H. D. Rendall, Esq.


(Original Accusep).


BAI JETHIBA,—Oppoxent— (Original (V>mplainant).

Crinnnal Procedure (Me (Act V of 1S98) ss. 617, 620, 623 Dhpottal of projfcrfi/ after
dtjicharge or acquittal— Order a« to jhiMCiusUyH of Immoreahle propeity—lndian Penal Code
(Act XL VofJSeO) M. 379, 447, 604— Theft and tre»pa«s—Cyinnnal intent.

A Hindu having diecl without a male iasUe, his brother removed the produce of the de-
ceasetl's land allegetl to be in the possession of his widow, and so was charged by her for theft
and trespass, but was acquittetl on the ground that there was no criminal intention. The
Magistrate, however, awarded the land to her or held that the land was in her possession, and
ordered the produce to be handed over to he?. Keld (in revision), as regards the produce, that

Digitized by


310 The Criminal Law Journal Reports. [Vol. Ill


the onler was illegal as regards the produceaiid ultra rires as regains the immoveable pro-
perty, as, if in an enquiry or trial, the accused had been discharged or acquitted, the court was
bouml to restore any property in dispute to the jiossession of the party from whom it was
taken ; that, unless the court was of opinion that an offence had been committed regarding
Fuch property, s. 517, Criminal Procedure Cede, woukl not beApplicaUeand that the difficulty
as to rcfctoration was removed by tbe recent amendment of s. 5£0, Crimiaal Procedure Code.

HeJd, as regards the land, that though the Magistrate bad Ui determine tbe question (f
possession in order to arrive at a decision as to whether criminal trespass had been committed,
that fact was by no means equivalent to a necessity for putting that decision into operation
for the settlement of civil rights and liabilities ; an^l that his finding was a mere obiter iutum
in reference to civil rights.

This is an application by Madarsingji Jemalji for revision of an order
of the Thandar of Wadhwan directing the disposal of cotton pods and of
possession of immoveable property in connection with a criminal case.

The facts of the case have already been fully fitated by the Thandar
and it is necessary to record merely the following circumstances. There
were two brothers 8ardarsingji and Kesarisingji of whom the latter died
in August 1904 leaving him surviving two daughters and no male issue.
It was alleged that on behalf of these daughters Bai Jethibai took the
produce and held possession of this land, but that Madarsingji removed
the cotton pods and invaded opponent's possession. The opponent accord-
ingly charged Madarsingji with the commission of offences under sections
a79, 447 and 504, I. P. C, and the Thandar acquitted Madarsingji, hold-
ing that there was no criminal intention and that neither theft nor criminal
trespass had been committed. As regards the cotton pods produced, how-
ever, the Thandar directed that they should be handed over to complainant,
whilst as regards the land he said : ^^ I hold that the possession of the
land of Kesarising is with Jethibai on behalf of the two daughters after
the death of Kesarising." It is against this order as regards possession
of the cotton pods and of the land, that Madarsingji the applicant aed
original accused has approached this court.

The District Magistrate directed that the parties should be referred
to this court as a High Court, and has not passed any order upon the
merits of the case. It must however be pointed out that the District
Magistrate had full power and authority to deal with an <wder of the
Thandar, which purports to be passed by him as a 2nd class Magistrate
jinder section 517, Cr. P. C. This power is conferred by section 520, Cr.
P. C, the scope of which hs^ been considerably extended by the words
added at the end of the section by a recent amendment. It is clear that
the District Magistrate could have taken action and passed necessary
orders under this section and a foriiori this court has full authority to do
so in the exercise of its powers of criminal revision.

Digitized by


Vol. ITI] Thk Ckimikal L\w Journal Rrports. 311


Turning now to the merits of the order complained of, I am clear that
the order of the Thandar is illegal as regards the cotton pods, and ultra
rires as regards the immoveable property, if, as I suppose, there is meant
to be an order in respect of the immoveable property.

First, as regards the cotton pods, the only order which the 2nd class
Magistrate was entitled to pass after an acquittal was that the property
should be restored to the person from whose possession it came. It in an
inquiry or trial the accused has been discharged or acquitted, the court
IS bound to restore any property in dispute to the possession <)f the party
from whom it was taken ; unless the court is of opinion that an ofFence has
been committed regarding such property, section 517, Cr. P. C, would not
be applicable to the case. No exceptions to this general rule have been
pointed out by Mr. Bhaichand T. Shah who represents opponent : he has
quoted rulings to be found at /. L. R. 9 Bom., p. 131 and 8 Bom., p. 338 ;
but these are rulings which refer to section 523, Cr. P. (\, as is shown by
the decision recorded at /. L. R. 17 Bom., p. 748.

Mr. Mohonlal, barrister for applicant, has quoted /. L. R. 14 Calc,
p. 834, 22 Bom., p. 844, 30 Calc, p. 690 and 1 Calc. W. y.. pp. 436 and
461 in support and illustration of the general principle to which I have
already adverted, and it will be observed that the difficulty as regards
restoration mentioned at 14 Calc, p. 834 has been removed by the amend-
ment of section 520, Cr. P. ('., to which I have already alluded. It is clear
therefore that the Magistrate had no jurisdiction to do otherwise than
direct the restoration of the cotton pods to the present applicant and
original accused Madarsingji, from whose possession they came. If it
were argued that the Magistrate's order was under the circumstances a
reasonable one, the reply must be that where no criminal offence has l)een
committed, Criminal Courts are not authorized to interfere, and it is
certainly most undesirable that a Magistrate should take upon himself to
usurp the functions of a Civil Cowri. A Magistrate cnn adjudicate such
claims, onlv in cases where section 523, Cr. P. C, comes into operation,
and I must therefore hold that the Thandar's order was illegal.

As regards the immoveable property, it is not clear y^hoiher the
Magistrate intended to pass an order as regards its possession. If he did
so intend, such order is plainly ultra vires, for section 517, (V, P. C, refers
to property in respect to whiJh an offence appears to have been committed.
The Magistrate did not find that any offence had been committed and he
could not therefore pass any onler as regards possession. It is argued
that the Magistrate had to determine the question of possession in order to
arrive at a decision as to whether ^' (Criminal trespass " had been committed
or not. This no doubt may be perfectly true. But the fact that it was

Digitized by


312 The C*jiiminal Law JorRXAL Reports. [Vol. m


necessary for the Magistrate to arrive at a certain decision in virtne of
his criminal jurisdiction is by no ine^ns equivalent to a necessity for
putting that decision into operation for the settlement of civil rights and
liabilities. It is one thing to say. '' I hold B was in possession," and it is
another thing to say '' Therefore I award possession to B." The Magistrate
was justified in recording a finding as to possession ; but his finding as a
Magistrate is under the circumstances a mere obiter dictum in reference

Online LibraryKarl HeimThe Criminal law journal of India : a monthly legal publication containing full reports of all reported criminal cases of the high courts and chief courts in India → online text (page 61 of 91)