Bhagwan Singh vs The State Of Punjab
Rewritten Version Notice: This is a rewritten version of the original judgment.
Court: Supreme Court of India
Case Number: Criminal Appeal No. 12 of 1952
Decision Date: 30 April, 1952
Coram: Vivian Bose, Saiyid Fazal Ali
In the matter titled Bhagwan Singh versus The State of Punjab, the Supreme Court rendered its judgment on the thirtieth day of April, 1952. The opinion was authored by Justice Vivian Bose and the bench was composed of Justice Vivian Bose together with Justice Saiyid Fazal Ali. The petitioner was identified as Bhagwan Singh and the respondent was the State of Punjab. The official date of the judgment is recorded as 30/04/1952. The citation for this decision appears as 1952 AIR 214 and 1952 SCR 812, and it is referenced in subsequent reports such as R 1959 SC1012 (13) and R 1980 SC 628 (11). The judgment discusses provisions of the Evidence Act of 1872, specifically sections 145 and 157, and also examines sections 208, 288, 537 and 540 of the Criminal Procedure Code of 1898. The central issue concerns the legality of examining a witness who was not examined before the committing magistrate, the admissibility of statements made before the committing magistrate, the effect of a statement that is not denied, its use as corroborative evidence, and the significance of a magistrate’s certificate that the deposition was read to the witness, together with the presumption of correctness attached to that certificate and the propriety of examining the committing magistrate.
The headnote explains that, pursuant to section 540 of the Criminal Procedure Code, a Sessions Court possesses the authority to examine witnesses who had not been examined before the committing magistrate. If such a witness is instead taken as a prosecution witness and examined by the prosecuting counsel rather than by the court, the irregularity that may arise is at most curable under section 537 of the Code, and any objection to this procedure should be raised at the trial itself. The headnote cites Sher Bahadur v. The Crown (I.L.R. 15 Lah. 331) and Queen Empress v. G.W. Hayfield (I.L.R. 14 All. 212) as distinguished authorities, while approving S.S. Jhabwala v. Emperor (A.I.R. 1933 All. 690) and Mussamat Niamat v. The Crown (I.L.R. 17 All. 176). It also refers to Emperor v. Channing Arnold (13 Cr. L.J. 877). The analysis states that resort to section 145 of the Evidence Act becomes necessary only when a witness denies having made the earlier statement; in such a case, proof of the statement’s existence is required and, if the statement is in writing, the witness must be drawn to the specific parts intended for contradiction. However, when the witness admits the former statement, no further proof of its making is required because of the admission. The former statement cannot be treated as substantive evidence unless section 288 of the Criminal Procedure Code is invoked, but even without that provision the court may, based on the substantive evidence-in-chief, conclude that what the witness told the police or the committing magistrate represents the true version, not because the statements are substantive evidence but because they coincide with the substantive evidence-in-chief. If a former statement is introduced under section 157 of the Evidence Act, it may be transformed into substantive evidence by applying section 288 of the Criminal Procedure Code. The headnote distinguishes Tara Singh v. The State [1951] S.C.R. 729. Finally, the headnote notes that the certificate of the committing magistrate, endorsed on the deposition sheet, states that the deposition was read out to the witness and that the witness…
When a witness admitted that a former statement was correct, the court was required to treat that admission as valid under section 80 of the Evidence Act until such admission was disproved by evidence. The court further held that it was neither necessary nor desirable to call the Committing Magistrate in order to verify the truth of the magistrate’s certificate. The decision relied upon the authority of Kashmera Singh v. The State of Madhya Pradsh [1952] (S.C.R.) 526 to support this rule of law. Even assuming that the deposition had not been read aloud to the witness, the court described such an omission as merely a curable irregularity that did not invalidate the proceeding. Because no prejudice could be shown, the court required any objection to be supported by an affidavit that precisely identified the exact divergence between the record and the witness’s actual words. In the absence of such an affidavit, the objection could not be sustained and the admission remained binding on the record. Accordingly, the admission was accepted as proof of the statement’s correctness unless and until contrary evidence was produced by the opposing party.
The appeal originated as Criminal Appeal No. 12 of 1952, filed by special leave against the judgment and order dated 4 June 1951 of the High Court of Judicature of Punjab at Simla. The High Court decision had been rendered by Justices Bhandari and Soni, who presided over the original matter. The High Court judgment arose from Criminal Appeal No. 109 of 1951, which had itself been based on an earlier order. That earlier order was dated 19 March 1951 and was issued by the Additional Sessions Judge, Ferozepore, in Sessions Trial No. 18 of 1951. Counsel for the appellant was identified as T.R. Bhasin, while the respondent was represented by counsel named Gopal Singh. The judgment of the Supreme Court was delivered by Justice Bose on 30 April 1952, after a full hearing of the matter. The Court described the case as simple, although the appellant’s counsel had argued at length and raised numerous technical objections to the trial’s validity. The appellant, Bhagwan Singh, had been found guilty of murdering Buggar Singh and sentenced to death by the lower court. He had also been convicted under section 19(f) of the Indian Arms Act, but the Supreme Court stated that it would not consider that conviction in the present reasoning. According to the prosecution, the appellant harboured a long-standing grudge because the deceased had shot at the appellant’s brother about six or seven years earlier, leading to the brother’s imprisonment. After the brother’s release, police deemed it appropriate to commence proceedings against both parties under section 107 of the Code of Criminal Procedure. This resulted in the appellant’s two brothers, his cousins, and the deceased being bound over as part of the legal process. The prosecution alleged that this sequence of events furnished the motive for the crime committed on 7 September 1950. On that date, the prosecution claimed the appellant was seated in the shop of Jit Singh, identified as PW 2. The deceased arrived at approximately twelve to fifteen past noon and borrowed five rupees from Jit Singh, who recorded the transaction in his account book. After leaving the shop, the deceased was pursued by the appellant, who shot him at point-blank range with a pistol at a distance of four or five karams from the shop. Bystanders who witnessed the shooting immediately gave chase, caught the appellant after a short run of about thirty karams, and found him still holding the pistol. The pistol was subsequently seized from the appellant by Jagir Singh Patwari, identified as PW 4. The appellant was then taken directly to the nearest police post for immediate custody and further investigation.
The shopkeeper Jit Singh, identified as witness 2, lodged the first information report at approximately 12:07 p.m., doing so within fifteen minutes of the incident. The police post to which the report was made lay about one hundred karams away. The prosecution submitted that the motive for the crime was established by the testimony of Bhag Singh, witness 7, whose evidence was accepted as credible and was not contested before this Court. A large number of persons observed the occurrence, yet the prosecution chose to examine only five of them. Of those five, two turned hostile during the Sessions Court proceedings, while a third gave evidence that the High Court described as neutral. The remaining two witnesses, Balbir Singh (witness 5) and Jaswant Singh (witness 6), were found to be reliable. The matters presently before the Court were limited to two questions: first, whether a conviction could be based upon the testimony of the two reliable witnesses, and second, whether certain procedural irregularities in the trial were sufficient to invalidate the judgment.
No specific challenge was raised against the testimony of Balbir Singh, witness 5, except that the two eyewitnesses who had become hostile in the Sessions Court contradicted his statements. It was argued, however, that the evidence of Jaswant Singh, witness 6, was defective because he had not been examined by the Committing Magistrate, and that this omission rendered his testimony inadmissible at the Sessions Court. The Court observed that this issue was largely academic, for Jaswant Singh was unavailable after leaving the jurisdiction, and it would have been unnecessary and unjustifiable to delay the proceedings in order to locate and summon him. Section 540 of the Criminal Procedure Code authorises the Sessions Court to examine witnesses who were not produced before the Committing Magistrate. If such a witness is treated as a prosecution witness and examined by the prosecuting counsel rather than by the Court itself, the resulting irregularity can be corrected under section 537. The appropriate time to object to this procedure would have been during the trial itself; the appellant was represented by two counsel at the Sessions Court, and any objection at this stage would be untimely. Counsel for the appellant referred exhaustively to Chapter XVIII of the Code, especially section 208(1), but the Court found that reference unnecessary because section 540 provides a complete answer. None of the authorities cited by the appellant established a rule that a witness omitted from the committal stage could not be examined at trial, and the Court could not accept such a proposition. The decision most favorable to the appellant’s position was Sher Bahadur v. The Crown, which treated the omission as a curable defect. The judgment of Abdul Qadir J., noted on pages 338 and 342, confirmed that it had been conceded that section 540 could be invoked in circumstances of this kind.
At page 339 the learned judge examined the issue of prejudice, citing the authority (1) (1934) I.L.R. 15 Lah. 331, and at page 344 he remarked that the determination of prejudice was a factual question in each case and, in his opinion, prejudice existed in the case before the court. The other learned judge arrived at the same conclusion on pages 3J, 7 and 348, stating that “the Court can, of course, always use its discretion and allow the production of further evidence.” It was observed that in the reference case the objection had been raised at a very early stage, prior to the commencement of the sessions trial, and that the prosecution had sought to examine no fewer than eight material witnesses out of a total of sixteen, witnesses that had been deliberately omitted from the committal proceedings. No comment was made on the correctness of observations that extended beyond the question of prejudice, as such discussion was deemed unnecessary. It was sufficient to note that the learned judges acknowledged the discretion conferred by section 510 and resolved the dispute primarily on the basis of prejudice. The question raised in Queen-Empress v. G.W. Hayfield (1) was not applicable, because the Sessions Court had not refused to examine Jaswant Singh, PW 6, and consequently the issue of whether the prosecution could demand his examination as a matter of right never arose. The record showed that the prosecution was permitted to examine the witness and that the defence raised no objection. The decisions of the Allahabad High Court in S.H. Jhabwala v. Emperor (2) and of the Full Bench of the Lahore High Court in Mussammat Niamat v. The Crown (3) were contrary to the contention advanced by the learned counsel for the appellant. The ruling of the Full Bench of the Lower Burma Chief Court in Emperor v. Channing Arnold (4) was not on point, as in that case the committing magistrate had refused to examine witnesses desired by the prosecution, had insisted on examining them himself, and had even prevented the accused from completing cross-examination of the sole prosecution witness that the magistrate deemed fit to examine. While other authorities such as (1) (1892) I.L.R. 14 All. 212, (3) (1936) I.L.R. 17 Lah. 176, (2) A.I.R. 1933 All. 690 and (4) (1912) 13 Cr.L.J. 877, as well as section 208, made clear that the accused possessed the right to cross-examine, it was emphasized that witnesses examined by the committing magistrate on behalf of the prosecution under section 547 could not be employed as a pretext for a hasty committal before the completion of cross-examination. In the view of the Court, the authorities cited did not support the extreme position taken by the learned counsel for the appellant, and since section 540 provided a complete answer in the present matter, the sole issue for consideration was that of prejudice. The Court did not hold that it was bound to examine a witness summoned under section 540 as a court witness, nor that examination could never be entrusted to the prosecuting counsel, even if that were deemed the proper procedure.
The Court observed that, in the present case, no prejudice had arisen from the procedural irregularity, and that any such irregularity, if it existed, was so minor as to be harmless. A more significant issue, the Court noted, was whether the appellant had been taken by surprise and consequently suffered prejudice. The Court held that such prejudice did not occur because Jaswant Singh had been identified in the first information report, which was prepared within fifteen minutes of the incident, as an eye-witness, and the same witness had again been listed as an eye-witness in the calendar of the committal proceedings. It was presumed that the appellant had either received the police statement of the witnesses or, at any rate, possessed the right under section 162 to request a copy; the Court inferred that the appellant and his two counsel had not made such a request, likely because they did not deem it necessary. The first information report was described as comprehensive and containing all essential elements of the prosecution’s case; therefore, with that report in the appellant’s and counsel’s possession, it would have been impossible for the appellant to argue that he was unaware of the purpose of the witness’s testimony. The Court added that, had the witness’s evidence gone beyond the statements recorded in the first information report, an objection to the inclusion of such additional material would have been understandable, although such an objection would ordinarily need to be raised at trial. Since the witness did not raise any such objection, the Court concluded that no prejudice could be said to have arisen on that ground. The Court further noted that the Explanation to section 537 required consideration of whether any objection to the irregularity could have been made at an earlier stage. The High Court, the Court explained, based its decision on the testimony of the eye-witnesses and on the fact that the appellant had been seized on the spot within a minute or two of the murder, still in possession of the pistol. The Court held that, had the learned judges limited themselves to those facts, there would have been no basis for the elaborate technical arguments advanced by the appellant’s counsel. The Court then referred to the observations of Justice Bhandari, with Justice Soni concurring, who, after stating, “After a careful consideration of all the facts and circumstances of the case I entertain no doubt in my mind that Balbir Singh and Jaswant Singh P.W.s have told nothing but the truth,” added that “Jit Singh and Jagir Singh, who made correct statements before the police and before the Committing Magistrate, gave false evidence in the trial Court with the object of saving the appellant from the gallows.” It was argued that the learned judges had treated the testimony of these witnesses before the Committing Magistrate as substantive evidence, despite its inadmissibility for that purpose because the formalities required by section 288 had not been observed. The argument relied upon the precedent set in Tara Singh v. The State (1). Even assuming that reliance, the Court indicated that it would not alter the overall assessment.
In this case the Court observed that the evidence of Balbir Singh and Jaswant Singh, which the learned Judges accepted as credible, was sufficient to support a conviction. The fact that additional material, which was not necessary for the conviction, had also been introduced did not alter the result. The Court further noted that the challenge to the conviction was founded on mistaken assumptions. The discussion then turned to the testimony of Jit Singh, identified as PW 2. During his examination-in-chief, Jit Singh had supported the prosecution’s case, but he withdrew that support when he was cross-examined. Consequently, the trial Judge treated him as a hostile witness and allowed the public prosecutor to cross-examine him. During cross-examination, the statement that Jit Singh had made in the Committal Court was read to him, and he admitted having made that statement. The Court found that this earlier statement was consistent with Jit Singh’s evidence in chief, with the depositions of Balbir Singh and Jaswant Singh, and with the First Information Report. The Court explained that it was unnecessary to treat the earlier statement as substantive evidence. Moreover, the High Court’s decision to place the earlier statement on an equal footing with the statements made to the police, including the First Information Report, showed that the earlier statements were being used only as corroboration of the evidence given in chief, not as substantive proof.
The Court then explained the subtle distinction between using an earlier statement as substantive evidence and using it merely for corroboration or to test credibility. It illustrated the point with a hypothetical scenario: a witness first declares in chief, “I saw the accused shoot X.” During cross-examination the witness retracts, saying, “I did not see it.” The prosecutor then asks whether the witness had told others on the spot that he had seen the incident, to which the witness replies affirmatively. The statement in this illustration had not been reduced to writing and had not been made to police or a magistrate, and therefore it could not be admitted as substantive evidence. Such a statement could only be employed as corroboration of the chief evidence under section 157 of the Evidence Act, or to challenge the witness’s credibility under section 146. Section 145 would become relevant only if the witness denied ever having made the prior statement; in that situation, proof of the statement would be required, and if the statement were written, section 145 would mandate drawing the witness’s attention to the portions used for contradiction. Because Jit Singh admitted the earlier statement, no additional proof was needed, but the Court emphasized that, despite the admission, the earlier statement could not be used as substantive evidence.
In the matter before the Court, the recorded statement could not be treated as substantive evidence unless section 988 of the Criminal Procedure Code was invoked. Nevertheless, even in the absence of a reliance on section 288, the Court was entitled to conclude, based on the substantive evidence presented in chief, that the account given by the witness to the police or to the committing magistrate represented the true version. This conclusion was not derived because those statements themselves constituted substantive evidence, but because they were consistent with the substantive evidence in chief. Such an approach illustrates one of the many methods by which a witness’s testimony may be examined and filtered. Corroboration, like any other technique, serves to test the veracity of a narrative.
Accordingly, the Court, while it may appear to reverse the order of analysis, essentially held that the substantive evidence offered in chief was reliable because it was supported by an earlier statement. For that reason, the version advanced in chief was deemed true and the contradictory version offered during cross-examination was regarded as erroneous. This inference was not based on a simple contradiction arising from the earlier statement, but on the corroborative effect of that statement on the chief evidence, which made the chief version safe to accept. It is true that the earlier statement could also have been employed to challenge the divergent account given in cross-examination; in such a circumstance, if the statement were in writing, the requirements of section 145 of the Evidence Act would have to be observed. However, the prosecution was not compelled to comply with those formalities and retained a choice.
The prosecution could, if it wished, construct the version presented in chief in any manner it deemed appropriate and then use that constructed version to defeat the cross-examination narrative. In the present case, however, such technical subtleties were unnecessary because the depositions had been formally recorded and could be admitted as substantive evidence even though the procedural safeguards of section 145 of the Evidence Act were not observed. This was permissible because there was no requirement in this proceeding to invoke section 145. As previously noted, the prosecution faced two conflicting accounts—one given in chief and another in cross-examination—and therefore could elect to use the former statement either to contradict the cross-examination testimony or to corroborate the chief evidence. In either scenario, section 288 of the Criminal Procedure Code could be applied to render the former statement substantive, since the provision states that it is “subject to the provisions of the Indian Evidence Act” and does not depend on any particular subsection of that Act. Section 157, being a provision of the Indian Evidence Act like section 145, likewise allows the former statement to be introduced under section 157, after which section 288 may transform it into substantive evidence. Tara Singh
The Court observed that the case involving the State (1) had to be distinguished because, in that matter, there were not two conflicting versions within the same testimony. The witness concerned was hostile from the outset in the Sessions Court, and the sole purpose of invoking section 288 was to contradict the statements he had made there; no issue of corroboration arose. Consequently, the prosecution, as in the present case, had no alternative but to rely on the earlier statement either for contradiction or for corroboration. Turning to the testimony of Jagir Singh, identified as P.W. 4, the Court noted that there was likewise no alternative in his case. He was hostile from the beginning, and the observations made in the earlier ruling applied to him in full. However, an examination of his evidence revealed that the formalities prescribed by section 145 had been observed. Unlike the cross-examination of Jit Singh, where such a procedure was deemed unnecessary, Jagir Singh’s cross-examination addressed every circumstance intended for contradiction point by point and passage by passage. The Court dismissed the contention that the witness had not been drawn to the specific parts of the writing that would be used for contradiction, noting that at least one passage was reproduced in quotation marks and therefore must have been read out from the statement. After the detailed questioning of each separate factual point, the entire statement was read to the witness, and he expressly admitted that he had made it in the committing court.
The Court further held that while the procedure might be objectionable when the prior statement is lengthy and only a few small passages are used for contradiction—potentially confusing the witness and denying a fair opportunity to explain—in the present case the prior statement was short and the witness was questioned about every material passage therein. Accordingly, the method employed substantially complied with the requirements of section 145. The Court emphasized that no rigid rule governs such matters; the essential requirement is that the witness be treated fairly and be given a reasonable chance to explain the contradictions after his attention has been drawn to them in a fair and reasonable manner. Satisfying this requirement, the Court concluded, concerns substance rather than mere form. The Court also noted that Jit Singh, P.W. 2, asserted that his statement made during the committal proceedings was not read back to him, a claim similarly raised by Jagir Singh, P.W. 4. An argument was advanced that, in the absence of an enquiry that must be accepted as true, the evidence would become inadmissible. Nonetheless, the certificate of the Committing Magistrate, endorsed on the deposition sheet, stated that the deposition had been read to the witness and that the witness had admitted its correctness. The Court maintained that, under section 80 of the Indian Evidence Act, such a certificate must be accepted as correct until it is proved otherwise, and the burden of overturning the statutory presumption rests on the party challenging it.
The Court observed that the deposition had been read to the witness and that the witness had subsequently admitted that the record was correct. It held that, under section 80 of the Indian Evidence Act, such a certificate had to be treated as correct until it was proved otherwise. Accordingly, the burden of overturning the statutory presumption rested on the party who sought to displace it. If that party chose to rely on the testimony of a witness whom the Court was not prepared to credit, the matter would cease at that point. The duty to displace the presumption, the Court explained, lay with the person who challenged it. While the Court was required to consider any evidence that was produced, it was under no obligation to accept that evidence as true, nor was it bound to conduct an independent enquiry on its own. The Court rejected the suggestion that the Committing Magistrate should be examined to verify the truth of his certificate, and it reaffirmed the observations made in Kashmera Singh v. The State of Madhya Pradesh (1), which were based on the Privy Council decision in Nazir Ahmad v. King Emperor (2) and highlighted the undesirability of such a practice. The Court further noted that even if the deposition had not been read over, that omission would constitute only a curable irregularity. Referring to the Privy Council’s observation in Abdul Rahman v. King Emperor (3), the Court stated that, in the absence of prejudice, an objection on that ground was without merit. The purpose of the reading-over requirement in section 360 of the Code of Criminal Procedure, the Court explained, was not to permit a witness to alter his story but to ensure that the record accurately reflected the essence of the witness’s statement. Consequently, any claim of prejudice had to be supported by an affidavit specifying exactly where the record deviated from the witness’s actual words. The Court then addressed the final objection raised by the appellant. Jit Singh, P.W. 2, and Jagir Singh, P.W. 4, had alleged that their statements before the Committing Magistrate were made under police threats and duress. Counsel argued that such statements should not have been rejected without a further enquiry, citing a ruling that required a more detailed investigation. The Court held that it was not the Court’s duty to launch a roving enquiry during trial on matters that were merely collateral to the main issue. The onus to substantiate these allegations lay with the party making them, and if that party relied on evidence that failed to satisfy the Court, the party would suffer the same consequence as any other person unable to meet the legal burden placed upon him. The Court also noted the contention that there had been no proper compliance with the provisions of section 342 of the Criminal Procedure Code, but it found that substantial compliance had, in fact, been achieved.
The Court examined whether the provisions of the Criminal Procedure Code had been observed and concluded that substantial compliance with those provisions existed in the present matter. The factual matrix was straightforward and limited, and the material points were sufficiently brought to the notice of the appellant. Nevertheless, the counsel representing the appellant could not, even during the oral arguments, specify precisely how his client had been prejudiced by the proceedings, nor could he articulate the answers that his client would have given to the particular questions that the counsel claimed should have been addressed to the appellant. The Court repeatedly asked the counsel to furnish those particulars, but the counsel remained unable to provide any such explanation. The Court reiterated its initial observation that the case involved a very simple situation in which the accused was apprehended while still holding a pistol, and that the First Information Report was lodged almost immediately, within fifteen minutes of the incident. The homicide occurred in broad daylight and was witnessed by several persons. The testimony of two eyewitnesses was accepted, whereas the statements of the other two witnesses, which had been altered in the Sessions Court from the original accounts recorded during the committal proceedings, were found to be unreliable and were therefore disbelieved. Accordingly, the appeal was dismissed, and the Court saw no justification for altering the death sentence that had been imposed. The appeal was consequently rejected. The appellant was represented by Sanker Das, and the respondent was represented by P. 4 Mehta.