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Makbul Khan v. The King-Emperor
Factual and Procedural Background
The Appellant, Makbul Khan, was convicted under Section 325 by a unanimous jury verdict and sentenced by the Sessions Judge of Pabna to two years' rigorous imprisonment and a fine of Rs. 200. The incident arose from an altercation involving the Appellant, his brother Mansur, and the complainant concerning an exchange of labour. During this dispute, Prodhan Babu Khan attempted to arbitrate, but Makbul and Mansur began beating the complainant. Foiz Bepari protested and was struck by Makbul and Mansur, resulting in his death shortly thereafter. The defence claimed the case was entirely false. The prosecution's case depended primarily on the testimony of the complainant Mahajan and witnesses to statements he allegedly made shortly after the incident. After Mahajan was examined, the Public Prosecutor, considering part of his evidence hostile, obtained the Court's leave to cross-examine him under Section 154, apparently to discredit parts of his testimony. This action was not challenged by the Crown.
Legal Issues Presented
- Whether the prosecution can cross-examine its own witness to discredit part of his evidence without discrediting the entire testimony.
- Whether, after the prosecution discredits its own sole witness, there remains sufficient evidence to convict the accused.
- The appropriate direction the Judge should give the jury when the sole prosecution witness is declared hostile and discredited.
Arguments of the Parties
Appellant's Arguments
- The prosecution improperly cross-examined its own witness, Mahajan, to discredit part of his evidence.
- Discrediting part of a witness’s evidence effectively discredits the entire testimony.
- Since Mahajan was the sole witness for the prosecution, discrediting him means the prosecution no longer relies on any evidence.
- Therefore, the Judge should have directed the jury that there was no evidence to convict and should have instructed a verdict of not guilty.
- The Judge’s failure to so direct amounted to a misdirection that vitiates the conviction.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| King-Emperor v. Satyendra | Cross-examining one's own witness to discredit part of the testimony discredits the entire evidence of that witness for the party calling him. | The Court applied this principle to hold that the prosecution, having cross-examined their own sole witness to discredit part of his evidence, could no longer rely on his testimony to convict. |
| Khejiruddin v. King-Emperor | Allowing a party to cross-examine its own witness results in discrediting the witness altogether; partial reliance on such witness is impermissible. | The Court reaffirmed that once the prosecution discredits its own witness, it must be held that they no longer rely on that witness’s evidence. |
| Faulkner v. Brine (dictum of Lord Campbell) | Cross-examination of one's own witness leads to discrediting the witness entirely. | Supported the reasoning that partial acceptance of a witness’s evidence after declaring him hostile is not legally tenable. |
| King-Emperor v. Upendra Nath Das | The Judge’s duty is to determine if evidence exists on which a jury can properly find for the party bearing the onus. | The Court emphasized the Judge’s obligation to direct the jury accordingly if no such evidence exists. |
Court's Reasoning and Analysis
The Court analyzed the prosecution's decision to cross-examine its own sole witness, Mahajan, under Section 154, which effectively declared him hostile. The Court relied on established precedents to hold that such cross-examination discredits the witness's entire testimony for the party calling him. Consequently, the prosecution could not rely on Mahajan’s evidence to prove its case. The Judge, therefore, was obliged to determine whether any credible evidence remained for the jury to consider. Finding none, the Judge should have directed the jury to return a verdict of not guilty. The failure to give such direction constituted a serious misdirection, invalidating the jury's guilty verdict and the sentence imposed. The Court concluded that a retrial would be futile and ordered the acquittal of the accused.
Holding and Implications
The Court set aside the jury's verdict and the sentence, and ordered the acquittal of the Appellant.
The direct effect of this decision is the release and acquittal of Makbul Khan, as the prosecution's sole witness was discredited, leaving no evidence to support the conviction. The Court did not establish a new precedent but applied existing principles concerning hostile witnesses and the prosecution's burden of proof.
The Judgment of the Court was as follows:—
Cuming, J.:— The Appellant Makbul Khan was found guilty under sec. 325 by a unanimous verdict of the jury and the learned Sessions Judge of Pabna agreeing with this verdict has sentenced the Appellant to two years' vigorous imprisonment and a fine of Rs. 200. The facts briefly are these: The Appellant and his brother Mansur had an altercation with the complainant about an exchange of labour. One Prodhan Babu Khan came to arbitrate. Makbul and Mansur began to beat complainant. Foiz Bepari protested. Makbul struck him on the head with a lathi and Mansur on the side. He fell down and shortly expired. Defence was that the case was entirely false. In order to understand Mr. Chaudhuri's point a few more facts are necessary. The occurrence took place at night. The only witness as to what happened is the complainant Mahajan and the case of the prosecution depends on the belief or disbelief of his evidence and also of the witnesses to whom it is alleged he stated what had occurred immediately or shortly after the occurrence. After Mahajan had been examined the Public Prosecutor apparently considered his evidence in some respect hostile and with the leave of the Court proceeded under sec. 154 to cross-examine him apparently with the view of getting rid of some part of his evidence which was unfavourable to the prosecution. That this was done has not been challenged by the Crown. Mr. Chaudhuri argues that it is not open to the Crown to cross-examine its own witnesses merely for the purpose of discrediting him so far as a portion of his evidence is concerned. The effect of discrediting a witness as to a part of his evidence is to discredit him as regards the whole. Therefore the Crown had by seeking to discredit their own witness said that he was not a witness on whom they relied. As he was the only witness on whom the prosecution relied to ask the Court to convict the accused it was the duty of the Judge to have directed the jury that there was no evidence and that they should return a verdict of not guilty. As to the position of a witness who has been declared hostile and the party calling him allowed to cross-examine him, we have been referred to two cases. The first case is the case of King-Emperor v. Satyendra (1). In that case it was held that where a party was allowed to cross-examine his own witness the effect of that cross-examination must be to discredit the witness altogether and not merely to get rid of part of his testimony and that hence the witness's evidence must be excluded altogether. I presume that this means so far as it supports the case for the prosecution for obviously the defence would I think be entitled to rely on so much of his evidence as supported their case. Otherwise a party who found that his witness had given evidence which supported his adversary's case could get rid of this evidence by declaring him hostile.
The other case to which we have been referred is Khejiruddin v. King-Emperor (2), a decision to which I was myself a party. There it was also held following the dictum of Lord Campbell in Faulkner v. Brine (3) that the result of allowing a party to cross-examine his own witness was to discredit him altogether. In other words a party cannot be allowed to say that his witness is a truthful witness so far as a part of his evidence is concerned but an untruthful witness so far as some other portion is concerned. Therefore it seems that once a party cross-examines his own witness he must be held to no longer rely on him.
Mr. Chaudhuri argues therefore that the position is this. The prosecution have discredited or sought to discredit their own witness. He is the sole witness to prove their case.
It is the duty of the Judge to determine whether any evidence has been given on which the jury could properly find the question for the party on whom the onus lay. [King-Emperor v. Upendra Nath Das (4)].
Mr. Chaudhuri argues that the prosecution have cross-examined their own witness and witnesses (?). In other words they seek to discredit him and do not rely on him. They cannot ask the jury to find for the prosecution on the testimony of a witness whom they have themselves discredited. Hence the Judge should have told the jury that there was no evidence on which they could find the accused guilty and directed them to find a verdict of not guilty. Not having done so the Judge has misdirected the jury.
This contention in the circumstances seems to me to be well-founded.
In view of the prosecution treatment of their own witness there was no evidence on which the accused could have been found guilty and therefore no evidence to go to the jury and the Judge should have directed them accordingly. There has been a serious misdirection therefore and we are obliged to set aside the verdict of the jury and the sentence passed by the Judge agreeing with the jury's verdict. In the circumstances of the case it would obviously be useless to re-try the accused and we order he be acquitted.
Lort-Williams, J.:— I agree.
S.C.M
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