JUDGMENT
1. The accused Manbodh has ??? convicted of the murder of one Dukhuwa Teli and ??? been sentenced to death. The murder occurred on 2 February 1932 more than 11½ years before the ???. The incident occurred, about 8 or 9 o'clock the morning and was reported on the same day. ??? appellant was mentioned as the murderer. But he ??? from the village and was untraceable till returned of his accord on 1st March 1943: (see Quamrujjamma Khan (P.W 6)). It appears that he ??? some sort of idea that the 12 years rule of ??? applied in the case of criminal offences because he ??? Patwari Kotwar (P.W 1) when he returned: “No am safe, 12 years have passed.” At the time of murder, Kishorilall (P.W 18) was the Station ??? Officer of the area in question and he took charge the investigation. As the accused had absconded put up a challan under Section 512 of the Cr PC, and proceedings were started in the absence of the ??? Certain witnesses were examined, among them H. Naidu (P.W 5), Lachhman (P.W 7) and Ramphal (P.W 14). It is proved, and also admitted, that Lachman is dead. As regards the other two the prosecute allege they cannot be found and Quammrujjamma ??? (P.W 6) has been called to prove this fact. The prosecution, therefore, want to use this evidence in present trial under Section 512 of the Cr PC. The ??? object and contend that the evidence is ??? because the provisions of S. 512 were not ??? with in that there is nothing to show that the Magistrate recording the evidence was satisfied that the ??? had absconded and that there was no ??? prospect of his arrest; also as regards Naidu (P.W ??? and Ramphal (P.W 14) it is not shown that their tendance cannot be procured without an amount delay, expense, or inconvenience, which would be ??? reasonable. The Additional Sessions Judge has ??? the evidence. (After referring to the evidence the file of the Magistrate who recorded this evidence the judgment proceeded.) It will be seen that Magistrate nowhere finds that the accused has ??? and that there is no immediate prospect of his rest. The learned Assistant Advocate-General rely on 6 Lah. 4891 and 41 All. 602 contended that ??? enough in these cases that the Magistrate should ??? recorded the evidence under S. 512. The mere fact ??? he did so would be sufficient to justify an inference ??? he was satisfied that the accused was absconding provided there is evidence before him sufficient to ??? such a conclusion. It is not necessary for him to ??? a finding to that effect because S. 512 does not ??? it. We are unable to agree.
2. It is true S. 512 does not say anything in ??? terms about the necessity for recording such a find but with the utmost respect to the learned Lahore Allahabad Judges we are of opinion that such a requirement is implicit in the words “If it is ??? occur at the beginning of S. 512. The word “if” conditional and signifies that a condition precedent is to be fulfilled before the evidence can be recorded, ??? condition is “proof” that the accused has ??? and that there is no immediate prospect of arresting him.
3. We then have to consider when and where is “proof” must be adduced. That again, in our opinion, is clear from the section. The section runs: “If it proved, etc.…. the Court competent to try or commit trial such person…. may in his absence examine a witnesses, etc.”. Therefore, it is clear that the proof must be adduced before the Court which records the ???, or to use the words of the section, examine witnesses.
4. Incidentally, the difference between the word “examine” used here, and “record” used in S. 164, is not ??? importance. Under S. 164 the Magistrate ??? records the statement; here, he examines the witnesses, a phrase which implies that he has power question and cross-examine when necessary. But to ??? back to S. 512 the words “if it is proved…. the ??? may….” imply that if it is not proved the Court ??? not examine the witnesses. Therefore, the proof ??? clearly be adduced before the Court examines the witnesses and it is no use adducing proof subsequent such examination as the learned Assistant Advocate-General has attempted to do here. He wanted us to ??? to the evidence about the absconding adduced in ??? Sessions Court and to the fact that the accused has ??? untraceable for 11½ years. In our opinion we cannot do that. The word “if” imports a condition present to the examination. Therefore unless the proof adduced before the Magistrate examining the witness and he is satisfied as to this proof he has no ??? to examine them under S. 512.
5. The next question is who has to be satisfied as to ??? proof—the Magistrate who conducts the examination? the Sessions Court?—or the High Court on ??? That we think is fairly obvious from the words ??? “if it is proved…. the Court may….” But becomes even clearer when we Analise the word ???”. “Proved” is defined in Section 3(2) of the Evidence ???, as follows: “A fact is said to be proved when, after considering the matters before it, the Court either believes to exist or considers its existence so probable, etc.”. Now, proof of the absconding, etc., is a condition precedent the right to examine in the accused's absence, as we ink it is, then obviously the only tribunal which can satisfied about the existence of these facts is the ??? recording the evidence, for the simple reason at there is no other tribunal competent to consider handle the matter at that time.
6. And that brings us to the question about the necessary of recording a finding. It is evident that the Court ??? subsequently tries the accused must decide all ??? relating to the admissibility of the evidence ??? before it. Under the law a previous statement a person who is not called as a witness at the trial rigidly excluded unless specially allowed by statute, in all cases where there is a statutory exception ??? conditions are imposed. Section 512 itself ??? that the statements previously recorded are ??? to be admitted unless the witness is dead etc. Therefore, before admitting such a statement in evince at the subsequent trial the Court trying the case is to be satisfied that the provisions of S. 512 have been ??? with. That section requires, as a condition ??? to the recording, that the Court recording the ??? should either have “believed” the facts ??? or have “considered their existence so probable”. Now how is the mind of a Court to be determined some other tribunal? There are only 4 ways: (i) by ??? what the Court has recorded in its order and ??? the words used there, (ii) by inferring the ??? of the Court's mind from its action and conduct, ??? by calling the presiding Officer as a witness, and ??? by calling some other persons to depose about the state of his mind. The last two alternatives are ruled out at once by the ratio decidendi of the Judicial Committee in 17 Lah. 6293 at p. 642: “It is for obvious reasons most undesirable that Magistrates and Judges should be in the position of witnesses in so far as it can be avoided.” That is one of the reasons why Judges and Magistrates are required to record their orders in writing, and that, in our opinion, is the only proper way in which the mind of the Court can be ascertained when the tribunal acts judicially. It would be against public policy to call Judges and Magistrates as witnesses to determine what they meant by their judgments or orders and still more undesirable to call third persons to explain what was in the mind of the Court. As in the case of a document, the mind of the person making it can only be inferred from the words used; so also in the case of the Court; its mind can, in our opinion, only be determined by what was written and recorded in the judgment or order. The meaning to be attached to a phrase used, or as to what was the intention of the Judge, can only be gathered from the words written in the judgment or order and it is just as much a matter of construction as it is in the case of a will, or a sale, or a mortgage, or any other document. As to inferences which may be drawn from conduct, we agree that the matter must be considered as a whole and that there is no magic in a formula. The Court need not use any particular phrase or set of words; but it is essential that there should be material in the order which can reasonably import an inference that the Court had the point at issue in mind and that it considered that the question at issue was “proved” within the meaning of the Evidence Act. It is clearly not enough that the Court should have recorded the evidence without giving a finding because Courts sometimes make mistakes as 38 All. 294 illustrates: indeed the learned Government, pleader seeks to distinguish that case on this ground. He contends that there was no evidence about the absconding before the Magistrate who recorded the statements in that case and therefore the inference that the Magistrate there was satisfied etc., cannot be drawn from his conduct in recording the statements, but when there is evidence from which the conclusion can be drawn then the inference is otherwise. We gather that was what the learned Judges in the Lahore and Allahabad cases had in mind; but with the utmost respect we are unable to agree that ‘proved’ simply means the existence of evidence from which the required inference can be drawn coupled with the fact that the evidence was recorded and that the Magistrate was aware that the challan was put up under S. 512. In our opinion the word ‘proved’ imports much more than that.
7. Nothing can be said to be ‘proved’ however much material there may be available until the Court invested with jurisdiction to determine the question believes the facts to exist or considers their existence so probable etc. The Court must therefore apply its mind and actually believe the evidence adduced and consider that it is sufficient to establish the point at issue. No other tribunal can do that for it unless there is an appeal or a revision; but we are not acting in either of those capacities here so far as the Magistrate who recorded the evidence under S. 512 is concerned. The mere fact that the Court proceeded to record the statements no more, indicates that it applied its mind to the requisite issue when there is material for a finding than when there is none. If a Court can make a mistake in the one case it can equally do so in another. We cannot admit the evidence here unless we are satisfied that the conditions laid down in S. 512 are present. Among other things those conditions require that the Magistrate should have considered the points at issue ‘proved.’ Therefore we have to be satisfied that he did consider them ‘proved’, and we cannot be so satisfied unless there is material before us to show that the Magistrate had these matters in mind, that he considered them, and that he reached the required conclusion. As we have said there is only one way in which the mind of a Court can be ascertained, and that is by looking to what it has put down in writing in its judgment or order. With utmost respect for the Lahore and Allahabad Judges we are of opinion that a close analysis of S. 512 shows that a finding about the absconding etc., must be recorded, though it need not be recorded in any particular form of words, because there is no other way in which a subsequent tribunal can determine the matter of admissibility. If the conditions precedent to the recording under S. 512 are not fulfilled the evidence becomes inadmissible. The learned Government pleader relied upon a part of the opening sentence in the order-sheet of 19th August 1932, viz., on the words ‘as the accused is absconding’; but the Magistrate is not even purporting to reach a finding there. All he is setting out is the reason why the challan asks for action under S. 512. No evidence had been recorded or even adduced at that stage. The evidence was not taken till 31st March 1933, that is to say, not until 7½ months later. It is impossible for any Court to decide whether a fact is proved before even the evidence on which that proof is to rest is adduced. In our opinion, the conditions precedent, which alone give jurisdiction to the Magistrate under S. 512, were not fulfilled in this case. As to this we agree with 21 P.R 18835 and respectfully dissent from 38 All. 29, 41 All. 60 and 6 Lah. 489. This finding shuts out the evidence of all the three witnesses named above; but as regards two of them, viz., Naidu and Ramphal (P.Ws 5 and 14) there is an additional reason for exclusion. Section 512 requires that the witnesses whose depositions are recorded under that section must either be dead or that they “cannot be procured without an amount of delay, expense or inconvenience which, under the circumstances of the case, would be unreasonable.” It is admitted that these two witnesses are not dead, and as to the rest all that the Crown has done is to examine Quammrujjamma Khan (P.W 6) who says: “One H.R Naidu was also a witness. His whereabouts are not known now. He is working in some aerodrome. He is an overseer. Constable Ramfal has retired. His correct address is not known. He is somewhere in U.P” The burden is on the Crown to show why the usual rules of evidence should be departed from in this case, that is to say, the Crown has to bring the matter within the very narrow limits prescribed by S. 512. It is no sufficient compliance with these provisions for a witness to come forward and say that the whereabouts of these persons are not known. He must disclose to whom the whereabouts are not known, whether only to himself or to other authorities who would be able to procure the attendance of the witnesses and discover their whereabouts with the taking of a little trouble. The Crown must disclose what steps have been taken to ascertain where they are. So far as these two witnesses are concerned, they are retired Government servants and so must be drawing a pension, and we are by no means satisfied that Government pensioners, who presumably draw their pension month by month, cannot be traced if a Utile trouble is taken.
8. If this evidence is excluded then a case of murder becomes difficult to establish because some of the essential links are missing. It is true we have an eyewitness, Jhadu (P.W 4), who proves that there was a fight and that the accused beat the deceased in it — as a matter of fact the accused admits this. It is also proved by other evidence to which we shall refer that the man did not live very long after the fight; but it is not proved, if this evidence is excluded, that the deceased died as a consequence of blows inflicted during the struggle, nor is the defence of right of private defence satisfactorily excluded. The trouble is that the moment Ramphal's statement under S. 512 is excluded we have nothing ??? connect the body on which the post mortem was conducted with the man assaulted. The doctor says ??? he was told by Ramphal that the body was the body Dukhuwa, but that is hearsay in the absence of Ramphal. The result is that we are unable to use the ??? discovered in the post-mortem in this case, and ??? result of that is that we do not know what the ??? cause of death was. After eliminating the ??? evidence this is what we get from the rest. There some evidence of previous quarrels and of threats ??? the accused that he would beat the deceased. But the threats are not placed any higher than that. (After ??? cussing the evidence on the question of motive and ??? erring to the actual incident which resulted in the ??? of the deceased, their Lordships concluded.) We ??? it safe to hold, even in the absence of the doctor's evidence, that death ensued because of the beating ??? Dukhuwa received, though exactly what caused ??? namely, a blow over the head or an enlarged spleen a weak heart, we are not in a position to say; nor, in ??? absence of the medical evidence, are we able to ??? an intention to kill. Such an intention can usually deduced from the nature of the injuries, for example a man's head is bashed in there can have been no ??? intention, but if there is no evidence to which we ??? refer to ascertain the exact cause of death, then all ??? can do on the material before us is to record a ??? finding that the man died as a result of the ??? which he received in the course of this struggle. Before analysing the legal consequences of this finding, we ??? consider the version of the incident given by the accused. It all boils down to a right of private ??? (Here their Lordships considered the version of ??? incident given by the accused and observed.) We ??? we will be justified in holding in the accused's favour that the deceased started the quarrel, though in a ??? way, and that this roused the accused who thereupon started to attack the deceased. The two were “separated” (that is the word used by Jhadu and ??? that both were ready to fight) and they again came blows, the deceased being the initial aggressor ??? the blow struck by him was a very light one. In the circumstances, we are of opinion that both sides we ready to fight and that though the quarrel was started by the deceased the initial act of aggression came ??? the accused. He was the one who first attempted attack, and though he was prevented, the other ??? followed so closely on the heels of this attempt that was really all part and parcel of the one fight. Seeing that both sides were out to fight no question of ??? defence arises and in any event the right was ???, if there was any, because the accused continued belabour his opponent when he was helpless and ??? lying of the ground. We think that we can infer ??? the facts that the bodily injuries were likely to can death though we are not in a position to say that ??? were sufficient in the ordinary course of nature to ??? death. We say that they were likely to cause ??? because of the description of the injuries given by ??? (P.W 1), namely, on the head, jaws, teeth ??? other parts of the body. Multiple injuries on these ??? are likely to cause death from shock and when we ??? that death did ensue very shortly after it is ??? to infer that the injuries were of the kind describe. There is no doubt that the accused had the ??? of causing the injuries he actually inflicted. Thereto since these injuries were likely to cause death, ??? matter falls under part 1 of S. 304, Penal Code. ??? accordingly acquit the accused of the charge of ??? and convict him instead under S. 304, Part 1, ??? Code. As regards the sentence, seeing that the ??? was mutual, and seeing that a blow was actually ??? on the person of an already angry man, we think term of ten years rigorous imprisonment will meet ??? ends of justice and sentence him accordingly.