JUDGMENT Mehar Singh, J.
1. The two appellants, Chhota Singh and Gurbux smgn, real Brothers, were along with their third brother puran, tried by the learned Additional Sessions Judge at sangrur, of an offence of murder of Pali and of offences oi voluntarily causing hurt with srvarp and blunt weapons xo Nike P. W. 2 and Budnu P. w. 3. By his judgment and order of March 17, 1962, the learned trial judge has acquitted Puran and convicted Chhota Singh appellant Under section 302 of the ipenal code for the murder of Pall sentencing him to life imprisonment and also Under Section 323, read with Section 34, of the Penal Code In connection with the injuries to Nikku, P.W. 2, sentencing mm to lour months' rigorous imprisonment and has also convicted Gurbux Singh appellant Under Section 326 of me Penal Code for Injuries caused to Pali deceased sentencing him to five years' rigorous imprisonment and Under Section 323 of the Penal Code for the simple injury to Nikku P.W, Z sentencing him to six months' rigorous imprisonment.
The sentences of each appellant have been oraerea to run concurrently. There is an appeal by the appellant? against their convictions and sentences. There Is a revision application by the State seeking enhancement of sentence of life imprisonment to death in the case of Chhota Singn appellant for the murder of Pali deceased. I here is no appeal or revision against the acquittal of Puran or the acquittal of Gurbux Singh appellant of the offence of murder.
2. The case is quite simple, the occurrence took place at about 7 a.m. on September 12, 1961, in village Jailor near the house of Pali deceased. Nikku P. W. I Is the real brother of the deceased and Budhu p, w. 3 is the son of Pali deceased and thus the nephew of the first named witness. The third eye-witness is ennoto P. W. 4 who Is the widow of Pali deceased. The report was loogea by Nikku P. W. 2 at 11 A.M. on the same day in a ponce station some 12 miles away from the village. It is Oviousiy prompt. In this report as also In the testimony of the three eye-witnesses the facts stated are that Chhota Singh appellant and Budhu P. w. 3 were friends, sometime in tne month of Balsakh, which should be about the month of April, they distilled illicit liquor wmch they then diviaea, and each had bottles of liquor, uudhu P. W. 3 consumeo two bottles and kept concealed the remaining half bottle which was quietly taken away by Chhota Singh appellant.
This led to Budhu P. W. 3 making demands for the return of the half bottle of illicit liquor from chhota singh appellant who promising to return the same Put him off a number of times. A couple of days before the occurrence there was an altercation between these two at the shop of Sham Lai p. w. 7 on this account because Buanu P. W. 3 demanded price of half bottle of illicit liquor from Chlwta Singh appellant. Sham Lai p. W. 7 intervened and separated them. On the next day, that Is to say, a ray prior to the morning of the occurrence, there was again an altercation between the two in the presence of Fiara P. W. 8 on the same matter, but this witness again stoppeo that altercation. It appears apparent, that budhu P. W. o was making a scene, and ratner unpleasant scene of the conduct of his friend Chhota Singh appellant in not eitner returning the half bottle of illicit liquor or giving dock its price.
On the early morning of September 12, 19B1, Buanii P. W. 3 started off with the bullocks of Kartar Singh win whom he was a sri or labourer engaged in cmtivat on. He had not gone far from his house when the two appellants and their brother Puran appeared on the scene, ennota Singh appellant had Khurpa, Gurbux Singh appellant a ganoasa and their third brother Puran a barenna. me three of them challenged Budnu P. W. 3, who ran bacn towards his house. The two appellants and their broinei pursued him. Alarm raised by Budhu P. W. 3 brought our his father fall deceased and his mother Cjihoto P. w, ?.' Pall deceased intervened to stop the quarrel Dut cnnotai smgn appellant sam that he be dealt with first. Thereupon this appellant gave a khurpa blow on the head of Pan deceased which brought the latter to the ground, liurbux Singh appellant followed with a gandasa blow on the face of the deceased with a second blow on his cam intervention of Budhu p. w. 3 to save his father brougni a thrust blow from Puran with a barchha in his chess and another blow with the blunt side of the barchha oh his back.
Nikku P. W. 2 and Chnota P. W. 4 also Intervened but Gurbux Singh appellant delivered a blow from the blunt side of his gandasa on the left thigh of Nikku P. W. and Chhota Singh appellant pushed Chhoto P. W. 4 bringing her to the ground causing an injury on the ten elbow. Wazir P. W. 5 also witnessed the occurrence. Budhu P. W. 3 did use a gandasa to save his father pan deceased and this was against Gurbux Singh appenam but the latter was not hit. Hari Singh P. W. 6 arrived and to him the witnesses gave the information of the occurrence. Budhu Ram P. W. 17 also arrived and to him also the witnesses gave the information of the occurrence. But the witnesses say that all they said to the witnesses was that the sons of Hira had caused injuries to fan deceased, Nikku P. w. 2, Budhu P. W. 3 and Chhoto P.W. 4. The appellants and Puran are the sons of Hira.
3. The Investigating Officer soon reached the place of the occurrence but he did not succeed in arresting the appellants and their third brother until they were produced before him by Sarpanch Bachan Singh of Khetai on the night between September 14 and 15, 1961 inereaner each one of the three made a statement that he was prepared to produce a weapon and pursuant to that statement be actually produced his weapon and the handle of the weapon. To those statements of the appellants and their brotner Puran and the recoveries made by each one of tnem wazir Chaukidar P. w. 11 is a witness. This witness says that the Sub-inspector had asked me to wait as he stated that the accused were going to make disclosure statements. He also told me that the accused would tell about the place where they had placed their respective weapons. He had also said that the accused had already told rum about the places of concealment of the weapons and he would like to take down their statements in my presence. Among other reasons given By the learned trial Judge one reason is that it is evident from the statement of this Chaukidar that the investigating Officer maze no answer In fact from any statement by either of the appellants or their brother Puran made Under Section 27 of the evidence Act, he already naming Knowledge where ins weapons Were lying. The evidence with regard to the recoveries of the weapons has been discarded by the learned that judge and apparently on sound grounu nothing need more be said about that.
4. On September 13, 1951, at about 1.3O A. M., Dr. P. C. Roy P. W. 1 performed the post-mortem examination of the dead body of Pali deceased who Qiea sometime after the assault. He tunas inure tnciseu wounds and one stab wound on the dead body. The first incised wound was on the feet side of the head won frontal and parietal bones, membranes and brain cut throughout under the injury, the second incised wound was situate in between the lower lip and the chin won mandible bone under tire injury cut, the third incised wound was transverse on the mouth and night side of the cheek with the tongue cut, and the fourth stab wound was inside the upper lip with maxillary Done cut. me doctor found the first injury fatal and individually salient to cause' death In the ordinary course of nature though he was of the opinion that the 2nd, 3rd and 4th Injuries combined were also sufficient to cause death in the ordinary course of nature.
The first three injuries were caused with a stampeded weapon and the fourth with a piercing weapon. He examined on the same day, some hours attar, Budhu P. w. 3 and found four simple injuries on his person, one caused with a sharp-edged weapon and the remaining with blunt weapon. He also examined the injury of nickel P. W. 2 and found it a lathi mark on the let tuning, the injury being simple in nature and caused with a biunr weapon, on the person of Chhoto P. w. 4 he found one abrasion above the elbow. The injury was simple and caused with blunt weapon.
5. The learned Judge has not accepted the evidence of the witnesses against Purim because no injury with piercing weapon like barchna has been found In me chest of Budhu P. W. 3 as deposed to by the witnesses, and though blunt weapon injuries have been found on the person of this witness but the learned judge has not Relieved that if Puran came armed with a Okarche and once used it in a piercing manner he would have been, disposed thereafter to use it like a stick as a Blunt weapon. He has, therefore, given benefit of doubt to Puran and acquitted him on this ground. Apart from this trie medical testimony is completely consistent with the version of the occurrence in the report as also in the consistent testimony of the three eye-witnesses.
6. The appellants have denied their participation in the incident and their main theme is that they nave enmity with Kartar Singh, with whom Budhu P. w. 3 was employed and thus they have been involved In this case falsely. There is no evidence In defence.
7. The report was lodged at the earnest possible opportunity. The facts given in it are consistently apposed to at the trial by Nikku P. W. 2, Budhu P. W, 3 and Chhoto P. W. 4. The first is the brother, the second is the son and the third is the widow of Pali deceased. I he .witnesses are interested. metro is, nowever, no enmity or subsisting Ill-will on their part with the appellants so as to render weir testimony suspicious in any manner. No doubt there was quarrel Between Budhu P. W. 3 and Chhota Singh appellant about the half a bottle of Illicit liquor as is without question proved by the evidence of Sham Lai P. W, 7 and Piara P. W. 8, apart from the three eye-witnesses, out that cannot possibly &e taken as a motive operating with he the eye-witnesses to make false allegations against the two appellants.
There is nothing fn the cross-examination of the witnesses that" throws any possible doubt on their veracity No doubt it is in the evidence of Nikku P. w. 1 and Chhoto P. W. 4 that when challenged, Budhu P. W. 3 had a gandasa with him and this last named witness says that he did not have a gandasa with him but that when his father was attacked he went inside and Drought out a gandasa. He was questioned whether he attached Guroux Singh appellant with a gandasa and lie replied that he did but unsuccessfully. This does not In any way advance the case of the appellant.
8. The three eye-witnesses say that when Hari Singh P. W. e came they told him that the sons of Hita had caussd injuries to them and the deceased and the much is clear from the evidence of Budhu Ram P. W. 1/2 who further says that on his enquiring the names of the three sons of Hira were given. However, Han Singh P.W. 6 says that as he was coming to the place of occurrence on hearing the noise of the quarrel, he saw Chhota Singh appellant, with a gandasa in his hand, going to his house. Khurpa Exhibit P. l. was shown to him in the Court and he said that that was the ganaasa that this appellant had with him. He then went to the place where Pali deceased was lying injured and met all the tour eye-witnesses but they, he says, did not name the assailants to him though the persons gatnerea there were saying that Chhota Singh appellant had causea Injuries to Pali deceased, The witness was cross-examines with regard to his statement before the police where he had stated that the eye-witnesses had informed mm that the two appellants and their third brotner Puran no caused injuries to them and Pan deceased.
He admitted that he made the statement but expiaineu that he did so being afraid of the police lest the ponce should disgrace him it he did not make that type of statement The Investigating officer has not been questioned on this point that he thus compelled Hari Singh P. W. 6 to make any such statement. The witness is unsatisfactory and though he was the first to arrive immediately as we occurrence came to an end his evidence cannot be accepteu because he is discredited by his earlier statement, Buanu Ram P. W. 17 says that Nikku P. W. 2 approacnea him at his house and Informed him that the sons of Hira had inflicted injuries on his person, on the person of his brother, Pali deceased, his nephew Budhu as also on the person of the white of Pali deceased. If Nikku P. W. 2 went to the house of this witness and gave him tams information it is not conceivable that he should nave withheld that information from Hari Singh P. W. 6 who immediately after the occurrence arrived at the spot, so the evidence of Hari Singh P. W. 6 Is not heipmi to the appellants. There Is noting to show any enmity on the part of Kartar Singh, with whom Budhu P. W. 3 was 'sari' with the appellants.
9. The learned trial Judge has rigid each one of the two appellants responsible for his own acts with regard to the death of Pali deceased on the ground that the arrival of Pali deceased was not within their tfvntempiation and they neither had nor court have common mien-tion to murder him in the circumstances of the case. This is correct approach on the facts as established by the evidence of the eye-witnesses.
10. as already pointed out there is no sumcient reason not to accept the testimony of the three eye-wit-" nesses with regard to the two appellants supported as it is by the medical testimony and the evidence of Buanu Ram P. W. 17 but even if Were was no support nom a witness of the type of Bhudhu Ram P. W. 17 there Is no reason why the three witnesses should not be bellevea.
11. It is surprising that In the present case wasra e, w. s, wno to all appearances is an independent witness, was tendered for cross-examination by the Pumice prosecutor and it is extraordinary that the learned Additional sessions Judge permitted such a practice which Is apparently contrary to law. There is no meaning in tendering a witness for cross-examination for the simple reason that when a witness has not given statement in examination-in-chief, the re is nothing in relation) to which he is to be cross-examined. Tendering a witness for cross-examination is almost tantamount to giving up a witness. There is nothing in law that justifies such a course. The trial Courts adopt this manner of examining witnesses simply to lighten their Duraen, but it Is not realised that in a serious case like the present murder case when the learned trial judge tailed to examine Wazira P. W. 5, he was very seriously remiss in his duty.
Another matter that we have observed in this case is that, though tecnnicaiy the learned committing Magistrate may be correct but from the practical point of view having regard to the serious nature of the charge against the accused persons in this case he was not justified m not taking the statements of We accused persons Under Section 342 of the code of Criminal Procedure, for it may of pointed out that any such statement by an accused person Is afterwards evidence against him at the sessions trial. So, even if it is not the strict requirement of the law, it is always proper and expedient in the interest of Justice that statements of an accused person should do taken Under section 342 of the code of criminal procedure at the stage of commitment. The learned Magistrate, at the stage of commitment proceedings, only seems to have proceeded, as appears from m$ order, on the examination of one eye-witness.
No doubt, again this may be within the very letter of the law, but this is a dangerous practice because if an Important witness like an eyewitness is not examined at the commitment stage and when he is examined In the Sessions Court at the trial, resiles and gives entirely a new version of the case, there is no statement of his at the stage or the commitment proceedings which can of transferred to the file of the trial judge in the sessions court Under section z88 of the code of criminal procedure, These defects it has been necessary to point obi because they lead sometime to serious consequences and to injustice in important and1 serious cases as the present case.
12. However, on the evidence in the present case ins (earned Judge has been from any angle justified in convicting the appellants and sentencing them as he has one. It has been stated that the State has not tiled any appeal or revision with regard to the acquittal of Puran or of turbid Singh appellant of the offence of murder but it fiats filed a revision application to obtain enhancement of the sentence of life imprisonment passed on ctinota Singh appellant In regard to the murder of ran deceased. No adequate ground has been shown to support that : application. The appellants did not come to attack fan i deceased. He appeared on the scene unexpectedly and : got Involved in the occurrence. In the circumstances I there Is no sufficient ground for taking a different I view In the matter of sentence so tar as this appellant 1$ concerned In regard to the death of Pall decased than the one that has prevailed with the learned iterate sags. so this appeal of the appellants and the I revision application of the State are dismissed.
Gurdev Singh, J.
13. I entirely agree with my learned brother their both the Criminal appeal and the petition for revision, be dismissed and with the reasons recorded for this decision. I further endorse his observations disapproving of the practice of tendering material witnesses by the prosecution and the failure of the trial noun and the Committing Magistrate to examine an important witness of the occurrence. The modification of the procedure for commitment of cases for trial by the Court or Session effected by the Code of Criminal procedure (Amendment) Act XXVI of 1955 has created an erroneous impression in the minds of some of the Magistrate that they are merely to act as post offices for transmuting cases of serious nature, which they are themselves not competent to try, to a superior Court. This is a fallacious view. On a careful perusal of the various provisions contained In Chapter XVIII of the Code of criminal Procedure relating to commitment proceedings, it wilt of evident that the Committing Magistrates have a real and important function to perform and commitment proceedings are not a mere Idle formality.
The amendments of the year 195b are intended to simplify the procedure and avoid delay and not to do away with the necessity of conducting enquiry by a Magistrate into cases triable by a court of Session or high Court. If the intention of the legislature was otherwise, it could have been achieved by merely deleting the provisions of Chapter XVIII of the Code.
14. It is true that the prosecution is not bound to examine all persons who may have been witnesses to the crime, but in cases where the number of such witnesses Is not much and the evidence of some witnesses on whom the prosecution relies is open to criticism on account of interestedness or improbability of their naming been present at the spot, it is of utmost importance that such witnesses as are available and willing to tell the truth should be examined. Even it the prosecution, because of some oblique motive, or with a view to avoid possible discrepancies in the statements of witnesses, tails to examine material witnesses, the Magistrate conducting enquiry proceedings has ample power to summon any examine such witnesses if it is necessary in the interests of justice to take such evidence. TMs power is clearly conferred on him by Sub-section (4) of Section 207-A of the Code of criminal proceaure. similar powers vest in the trial Judge Under Section 54u of the Code of Criminal Procedure, and such powers should be exercised where the interests of justice aemana. It has been observed time and again that Presiding Officers of Courts entrusted with the enquiry or trial of cases are expected to take Intelligent Interest In the proceedings before them, and not to act merely as automatons. If a party Is tempted to resort to unfair tactics, the Court should be vigilant enough to thwart such tactics to ensure a fair trial and to prevent failure of justice.