Emperor v. Haradhan Accused.

Rowland, J.:— This case comes before us on a reference by the Additional Sessions Judge of the Santal Parganas who has convicted accused Haradhan alias Haru Dome of the murder of Dukhu Dome and sentenced him to death. The prisoner has also presented an appeal from jail which has been heard along with the reference for the confirmation of the sentence. The accused is a resident of Beludabar where there are several families of Domes. Dukhu lived in an outlying hamlet named Hirandangal of the same village situated about half a mile to the west. This tola is inhabited mostly by the Santals, Dukhu's being the only residence of a Dome in that tola. It is alleged that on the evening of 9th November 1932 at about 8 p.m Dukhu, who had fever, was lying on a khatia in his hut which faces north on to the village path running east to west. His wife Paban, P.W 2, was lying on another not parallel with Dukhu's and north of it in the same room. Her two small children were on the cot with her. The accused Haru entered the room carrying an are with which he dealt one blow on the head of Dukhu causing his death. Haru then returned to Beludabar, encountering in the way Jamadar Dome, P.W 11, younger brother of Dukhu, who lives in Beludabar and was on his way to Hirandangal.

2. The defence of accused is that he is innocent. His statement before the committing Magistrate to which he adhered at the trial was that he is a peon of Sital Babu, and on the day in question spent his time in his ordinary avocations. He gave particulars of his movements. He called evidence in the Magistrate's Court to confirm his statement as to his movements. He examined no witness in the Court of Session possibly because the evidence as to his movements during the day did not apparently cover the time of the actual occurrence so as to disprove his commission of it. The further defence taken in the cross-examination of the witnesses was that he has been falsely implicated, because of enmity, by Jamadar Mirdha, and that there has been for some time past an intrigue between Jamadar Mirdha and his elder brother Dukhu's wife Paban. Post mortem examination of the body which was held at 2-45 p.m on 10th November 1932, showed that death had been caused by a single incised wound inflicted with a sharp thick weapon like an axe on the front part of the right earlobe and the temporal region in front. The weapon penetrated to the brain and caused fractures of the skull in three directions from the seat of the injury. Such an injury would cause death either immediately or within a few minutes.

3. The alaram raised just after the occurrence brought to the place Puma, P.W 4, wife of Churku, whose house is north of Dukhu's, and Naha, daughter-in-law of Dalloo, whose house is west of Dukhu's Jamadar also arrived. A number of the male Santal residents of Hirandangal were outside the tola on the north on some open ground where they and Sohari Mirdha, father of Dukhu and Jamadar, were cutting up a dead cow, Jamadar came to them and informed them of the occurrence. They came to the house of Dukhu where Paban, it is said, repeated to them her statement that Haru was her husband's assailant. Jamadar then went to the Sardar Dhiba Marandi before whom he laid the first information at 9 p.m It may be mentioned that in the part of the Santal Parganas with which we are concerned, there are no regular police stations. The area is divided into circles in each of which some leading resident is appointed Sardar and is entrusted with the powers of a Sub-Inspector. The Sardar recorded the information and came at 10 p.m to the house of Dukhu about two miles from his headquarters. He found Dukhu dead and held an inquest. He then went to Beludabar where be found accused Haru Dome in his house. He found an are there of which he took possession. There was no blood on it. The direct evidence against accused is that of Paban Domin, that she saw the commission of the crime and of Jamadar Mirdha that he saw Haru coming away from the direction of the place of occurrence; there is some corroborative evidence of witnesses who depose that the statements made by these persons immediately after the occurrence were in accordance with what they testify and there is also some evidence of motive, regarding which the witnesses are Paban the widow of deceased, Jamadar, his brother, and Sohari his father. It is alleged that when Dukhu, whose family lived at Beludabar, came to reside in Hirandangal, Haru Dome who is peon of Sital Babu, the landlord, demanded to be paid Rs. 5 and threatened that otherwise he would not allow Dukhu to live there.

4. The accused has adduced no defence evidence but has relied on admissions of the prosecution witnesses as lending colour to his suggestion that there was an intrigue between Jamadar and Paban, that Jamadar was on bad terms with Dukhu, and that the whole family of Sohari and his sons are inimically disposed towards accused Haru. The learned Additional Sessions Judge has been impressed by the corroboration given to the evidence of Paban and Jamadar by the testimony of witnesses who deposed that the eye witnesses made statements at the outset agreeing with what they have deposed in Court. It is contended, that undue importance has been attached to this corroboration. Certainly corroboration of this kind is by no means conclusive. Cases do occur in which witnesses tell a lie at the outset and stick to it throughout repeating it over and over again and it is as well not to lose sight of the fact that any number of repetitions will not make a false story true. Consistency is not the only test of truth and the essential question whether the fact deposed to is true or false has to be determined not merely by the test of consistency but by whatever other tests may be available in the circumstances of the particular case. Such tests are the probability of the story and how far it fits in with the facts established and admitted, whether the witnesses are interested or disinterested, and whether there is corroboration from external circumstances and in on. It is contended in the first instance that identification of the assailant by Paban was not possible. (After dealing with the possibilities his Lordship found that it was impossible that she could have seen the blow struck on her husband so long as she was lying with her face turned away from him and towards the door and also found the evidence of Jamadar as to his meeting with Haru to be very unsatisfactory.) I have now to deal with the question of motive. First, shall take up the question of the adequacy of the motive which is said so have impelled Haru to commit the crime. The witnesses, as I have said, are only Sohari, Jamadar and Paban. None of the disinterested witnesses, that is witnessss other than the members of the family, have spoken to the existence of any dispute between Haru and Dukhu. All that Jamadar says is “Haru Dome was not on good terms with my brother.” Paban says that Haru had demanded Rs. 5 and said he would not allow Dukhu to make a new house in Hirandangal unless he was paid; that no payment was made as Dukhu had no money and so Haru Dome “began quarrelling with us.” Sohari gives similar evidence and adds that there was a marpit, but he admits that it was not in his presence and did not lead to any criminal case, nor was any information given to the Sardar about it. It may be mentioned here that during the investigation by the Sardar, Sohari did not say anything about hostility between Haru and Dukhu. The motive seems doubtful and even if true a is very slight one for such a heinous crime.

5. On the other hand Jamadar has admitted that his uncle Gobardhan prosecuted Haru's brother Jiban seven years ago on a charge of inflicting grievous hurt, and Jiban was acquitted. It may be inferred that relations between Haru's household and the whole family of Sohari and his brother and sons were unfriendly. This hardly seems to account for Haru having singled out Dukhu as a victim. On the other hand it might equally probably serve as a motive for the members of the family of Sohari to implicate Haru; and Jamadar has said that his uncles Gobardhan and Labda were called in from Beludabar before he started off to lay his information.

6. Next we have to consider the more difficult question of the relations between Jamadar and Dukhu and his wife. The defence version is in evidence in the cross-examination of Panu Mirdha, chaukidar of Beludabar. This witness says that Sohari and Jamadar live in Beludabar and Dukhu had built a separate house in Hirandangal having left his father's house because of disputes between him and Jamadar; that Dukhu took his wife to Rani Bahal (her father's village) for about two years in consequence of the disputes; later he built a separate house in Hirandangal. He says that there was intrigue between Paban Domin and Jamadar Mirdha and he also says that Jamadar does not bring his own wife to his house. This witness had been called as a formal witness to prove the conveyance of the body to the morgue and identify the deceased's clothing. In consequence of what he has given out in cross-examination the Public Prosecutor presented a petition declaring him hostile and asking permission to cross-examine him. Permission was granted. The witness admits in cross-examination that his father Jiban and the accused Haru Dome are full brothers and Jiban like Haru is in the service of Sital Babu.

7. The learned Additional Sessions Judge has observed that regard being had to the close relationship between Panu Mirdha and the accused it seems extremely unsafe to attach any weight to his words and has treated his evidence as worthless. He says there is no other evidence to prove the immoral intrigue. In appeal it is contended firstly that the Judge should not have declared Panu Mirdha hostile and given the prosecution permission to cross-examine him simply because he made certain statements in favour of the accused; secondly that the mere fact of being cross-examined by the prosecution should not have been treated as making a witness hostile or unreliable and thirdly that even if the Judge was right in permitting the Prosecutor to treat a witness as hostile and cross-examine him, his evidence ought to have been considered on the merits and accepted as truthful evidence.

8. In support of the first contention the learned advocate for the appellant has referred us to Parmeshwar Dayal v. Emperor (1). In this case, the two witnesses who were declared hostile, in their cross-examination had made statements favourable to the accused. It was contended that there was no justification for declaring these witnesses hostile. The trial Court had said that these witnesses do not support the prosecution story but they are admittedly neighbours of the accused and they have been won over by them. Witness 19 is a tout and witness 22 is a man of straw and quite unreliable. It was said in the judgment of Ross, J.:

“Unless there is something in their depositions which conflicted with earlier statements made by them, which would afford good ground for thinking that they had been gained over by the defence, the prosecution is not entitled to declare them hostile. Now Abdulss Wahid was only examined to prove that he had let his house to Singheswar and he did make that statement. He was then cross-examined for the defence; and, apparently because of statements made in that cross-examination, he was allowed to be cross-examined by the prosecution. Madan Barhi was not examined in chief, but only tendered for cross-examination; and it was after his cross-examination by the defence, that he was allowed to be cross-examined by the prosecution. This procedure was, in my opinion, erroneous.”

9. These observations seem to imply that unless a witness is “hostile” to the party calling him, that party ought not to be allowed to cross-examine him; and if he is declared “hostile” that amounts, to a declaration that his evidence is worthless. I am unable to reconcile-these propositions with a pronouncement of the Judicial Committee of the Privy Council to which shall refer later, and with great respect do not propose to-accept them. They appear to be based on a confusion due to the fact that the word “hostile” (a word not used in the Evidence Act) is used with a double meaning; and failure to realise this has-led and still leads to difficulties in the mofussil Courts.

10. There is a sense in which every witness may be regarded as hostile to the party against whom he deposes, whose interests his testimony may damage, and friendly to the party who calls him and whose case his testimony is expected to support. Each party is in every case civil or criminal, permitted to treat his-opponent's witnesses as “hostile” to this extent and is given the right to cross-examine them both to elicit admissions favourable to himself and to test their veracity. They are from the start treated; as adverse to him, hostile to him, or, to borrow an expression which has been used by Ross, J., “unfriendly.” If he-obtains from them admissions favourable to his case, he is ordinarily entitled to treat these admissions as confessions won from an adversary; to certain extent; he may claim to treat them as admissions of his opponent. Let us now examine the position when the opponent taken by surprise by such admissions of his own witness, asks permission to-cross-examine him. If he says to the Court:

“This is not my case; I do not admit these facts; the witness in so far as he deposes to these facts is not my witness by whose admissions am bound: rather he is a witness friendly to my adversary. Give me permission to treat him as have a right to treat my adversary's witnesses, to cross-examine him, to test his veracity, to disprove the statements he has made against me.”

11. Can a Court properly refuse such permission? and if leave is granted, what follows? In Kalagurla Suryanarayana v. Yarlagadda Naidoo (2) the trial Court in such circumstances had refused leave to cross-examine. Their Lordships expressed

“much regret that this course was adopted. Common fairness required that opportunity to test such statements by cross-examination should be given, if the evidence was to be relied on; and that not having been done, the evidence is of no value.”

12. These words of the Judicial Committee deserve careful perusal; they fully support two inferences: first that to obtain leave to cross-examine all that is necessary is that the witness's testimony should have been adverse to the party calling him; and second that the value of the witness's testimony is to be judged in the light of the results of such cross-examination. But in mofussil Courts the position taken by the Public Prosecutor towards such a witness is too often this:

“I declare this witness hostile, meaning not only that his testimony is adverse to me but that he has been gained over and suborned by my opponent, and his testimony is worthless.”

13. It has been widely believed that unless the Court accedes to all these contentions leave to cross-examine should be refused: that if the Court gives leave to cross-examine it has acceded to all these contentions; and that to give leave to cross-examination is tantamount to a declaration by the Court itself that the witness is worthless and unreliable, so that his evidence is not to be considered. That this is a complete reversal of the true principle, is clear from what the Privy Council has said. Apart from authority, it seems fundamentally unreasonable that the good or bad faith of a witness, instead of being judged by the test of cross-examination should be held to be prejudged by the mere fact that cross-examination is permitted. If the giving of leave to cross-examine did indeed involve ipso facto the rejection of the testimony of a witness, there would be reason for hesitating to give leave; but if the word “hostile” is taken as bearing no more sinister meaning than that in which I have at first used it, the giving of leave to cross-examine need not carry any such result. It need only imply that admissions of the witness are no longer to be treated as admissions of the party calling him. They are still evidence but are comparable to the evidence of a witness called by the opponent: or of a witness examined by the Court under Section 540 of the Cr PC whose testimony is evidence but whose statements do not bind either parties as admissions. Now, why should the word “hostile” bear the peculiar significance attributed to it? The word is an adjective derived from the Latin ‘hostia’ which means an enemy: hostia is not and never was the Latin for a liar. It has however been said in certain decisions that a hostile witness is one who “is not desirous of” telling the truth.”

14. To attribute this meaning to the word, in my view, does violence to the language. The learned Chief Justice of Bengal has gone so far as to say in Profulla Kumar Sarkar v. Emperor (3).

“this is not a very good definition of a hostile witness.”

15. After that denunciation I would like to hope that this definition is dead, and buried and will be forgotten. If I could be sure of this I would say, let it rest there. But so much confusion has been caused by it and in the use of the word “hostile” by lawyers it has become so habitual to attribute to it this extraneous meaning which has attached itself, like a poisonous creeper to a tree, to a simple and straightforward word that mofussil Courts will be well advised to avoid the use of it. If a prosecutor asks to declare a witness hostile and cross-examine him, the Court should limit its order to “cross-examination permitted” or may with advantage add:

“without prejudice to the right of both parties to ask the Court to rely on the witness's evidence.”

16. The order of the Additional Sessions-Judge in the present case run thus:

“After his cross-examination Assistant Public Prosecutor files a petition that this witness should be declared hostile and he may be permitted to cross-examine. His prayer is allowed.”

17. Courts should avoid passing such an order which may appear to carry the implication that the witness is already discredited. If this precaution is observed we may escape the confusion that has been caused by attaching to the word “hostile” a meaning foreign and alien to its linguistic significance. I will refer next to a Patna case in which an attempt was made to escape from this confusion, though the matter is not treated fully. In Fouzdar Rai v. Emperor (4), a case of alleged not in which possession of certain land was a material point for determination, two of the complainant's witnesses had made direct admissions favourable to the defence. Roe, J., observed:

“It is contended on behalf of the Grown that these two witnesses were hostile witnesses. There is much misconception in the minds of Public Prosecutors in the Courts below as to what constitutes a hostile witness. A witness is not necessarily hostile because in an absent-minded moment he let out the truth. It must be shown before a witness can be declared hostile that there is good ground for believing that the statement he has made in favour of the defence is due to enmity to the prosecution. It may be an unfriendly act to let out the truth, but it is not necessarily a hostile act. In this case there is nothing to show any hostility in the witnesses who have made these damaging admissions.”

18. It is not clear whether in this last case the Public Prosecutor had been permitted by the trial Court to cross-examine or not. Roe, J., did not say that it would have been improper to allow such cross-examination. If such cross-examination was allowed this decision of Roe, J., is direct authority for holding that whatever submissions the Public Prosecutor might have made, the evidence of the witness was still evidence. The contrary proposition has never, I think, been laid down in any reported decision of the Patna High Court and on the first occasion on which the question came directly for decision in Sohrai Sao v. King-Emperor* (5) it was definitely negatived. The learned Chief Justice said:

“A party is allowed to cross-examine his own witness because that witness displays hostility and not necessarily because he displays untruthfulness.”

19. Here the distinction between an enemy and a liar which has been so often lost sight of is clearly brought out. The contrary view embodying the proposition that a witness who is hostile is untruthful was adopted in a series of cases decided by the Calcutta High Court. For instance Surendra Krishna Mandal v. Ranee Dassi (6), Khijiruddin v. Emperor (7), Emperor v. Satyendra Kumar Dutta (8) and Panchanan Gogai v. Emperor (9). In these decisions it was laid down that the party who calls the witness if he declares him hostile and cross-examines him, cannot after wards rely on a portion of his evidence which supports the party's case; and the doctrine was pushed to the length of holding that when a witness is cross-examined by the party calling him his evidence cannot be believed in part and disbelieved in part, but must be excluded from consideration altogether. In a criminal case neither the prosecutor nor the accused can use the evidence of such a witness. This was the state of authority when a Division Bench of the Calcutta High Court referred the question of the treatment of such witnesses to a Full Bench. The decision of the Full Bench in Profulla Kumar Sarkar v. Emperor deserves the careful study of all Courts. A Sessions Judge in charging a jury had said of a witness:

“This witness has been declared hostile and cross-examined by the prosecution, his evidence has therefore to be excluded from our consideration.”

20. The doctrine that permission given to the prosecution to cross-examine a prosecution witness prevents even the defence from relying on his evidence at all, would appear to have been accepted by that Sessions Judge in reliance on some observations in Emperor v. Satyendra Kumar Duti and in Khijiruddin v. Emperor , notwithstanding that in Mahbul Khan v. Emperor (10) it has been pointed out that in such a case the defence must still be entitled to rely on so much of the evidence of the witness as supported the defence case. The learned Chief Justice points out that

“so wide a proposition can hardly be correct as that the Court and the prosecutor between them can destroy in advance testimony which may be vital to the defence;” (P. 1420 of 58 Cal).

21. The learned Chief Justice said:

“I believe there is no English case which has ever held or suggested that permission given by the Judge to the party calling a witness to “cross-examine” him amounts to a declaration binding upon the Court or the jury that the evidence which he has given or is about to give is unworthy of any credit. Such a doctrine is wholly contrary to fundamental principle…. The utility of cross-examination was supposed to be that it was a means whereby the Court could more readily get the truth out of the witness. In the case of witnesses like attesting witnesses to a will or witnesses whose interest was obviously contrary to that of the party who called them, liberty to cross-examine was somewhat freely given without any intention of declaring in advance against the reputation of the witness.”

22. The evidence of such witness, it was said,

“will be more fully given and his credit more adequately tested by questions put in a more pointed and searching way.”

23. The conclusion was that either side may rely upon the evidence of a witness who is cross-examined by the party calling him; and that the whole of the evidence so far as it affects both parties favourably or unfavourably must go to the jury for what it is worth. Buck-land, J., in a separate judgment arrived at the same conclusion on an examination of the relevant sections of the Evidence Act and the Code of Criminal Procedure. The law is thus definitely settled in this sense for the territories under the jurisdiction of the High Court of Calcutta in agreement with the Patna view.

24. Now, turning to the evidence of Panu Mirdha, he is a near relative and a close neighbour of the accused. (After examining the evidence. His Lordship proceeded). Turning back again to the evidence of Panu Mirdha there is no evidence except that of members of the family of the deceased, partisan witnesses, to disprove any of the statements that he had made and much of what he says is confirmed by the circumstantial evidence. The mere fact that he is himself a partisan and interested in the accused, as to which he has been quite candid, is not sufficient alone to discredit his testimony. I find no reason to dismiss the evidence of Panu as dishonest and the result of examination on the question of motive is that it is at least as probable that Jamadar had a motive for getting Dukhu out of his way as that Haru committed the crime for the trivial reason alleged.

25. When the evidence of motive is equally consistent with the innocence and guilt of the accused, we have to see next what external corroboration there is connecting Haru with the crime. There is absolutely none. Haru's axe was not hidden and was not blood stained. Dhiba Marandi found him peacefully sleeping in his house. His conduct just after the occurrence was the normal behaviour of an innocent man. He forthwith denied committing any offence and denied having met Jamadar Mirdha. In this state of the evidence three assessors thought accused not guilty and one assessor thought him guilty. The learned Judge in agreement with one assessor convicted him, but I am quite unable to agree with this finding. In my opinion nothing is proved against Haru Dome and he is entitled to an acquittal. I would discharge the reference, accept the appeal and acquit the accused.

Dhavle, J.:— agree.

K.S

26. Appeal accepted.