Baijnath Mahto @ Baijnath Gope vs Emperor

Sinha, J.—This application is directed against the concurrent orders of the Courts below convicting the petitioner u/s 411, Penal Code and sentencing him to rigorous imprisonment for four months and to pay a fine of as 50 and in default of payment of the fine to undergo further rigorous imprisonment for one month. The petitioner was arrested by the police on 26th March 1944, in connection with a dacoity case. The police searched his house, and recovered a woolen coat (EX. 1), a fine dhoti (Ex. 2), a silk kurta (Ex. 8) and a silk shirt (Ex. 4). The dacoity case, referred to above, ended in a final report, after investigation by the police; but the clothes aforesaid recovered from the house of the petitioner were utilised by the police for prosecution of the petitioner in connection with a burglary said to have taken place in the house of one Siris Prasad of Maheshpur on 27th February 1944.

A number of witnesses were examined on behalf of the prosecution to identify these clothes as the property of Siris Prasad or of some members of his family. P.W. 6 was examined as one of the witnesses to "the search. In his examination-in-chief, he deposed to the search having been made in his presence and the clothes recovered from the house of the accused. In his cross-examination on behalf of the accused, he admitted that clothes similar to those which were the subject-matter of the charge were seen being worn by the accused. on occasions earlier than the time of the alleged burglary case itself. He also admitted that the prosecution witnesses who had come to Court as identifying witnesses were present at the thana. He made certain other admissions, tending to support the defence of the accused. After his deposition has been finished and signed by the learned Magistrate, there is a note "declared hostile" and then signed by the learned Magistrate. I am not aware of any procedure contemplated either by the Code of Criminal Procedure or by the Evidence Act which justifies the Magistrate recording the evidence just to make a note to that effect. Section 154, Evidence Act gives the discretion to the Court to permit the party calling a witness to put questions to that witness by way of cross-examination. That, in popular language, is described as declaring a witness as hostile.

It must be presumed that the learned Magistrate was aware of the provisions of Section 154, Evidence Act. If he was, he should have permitted the prosecution to cross-examine P.W. 6 to show that he was giving false statements in his cross-examination in order to help the accused for any particular reasons of his own or that the statements made by him as to what happened at the thana were not true. But no such attempt was made by the prosecution, and, therefore, the entry at the end of the deposition to the effect that the witness had been declared hostile has absolutely no-significance in law. If a party calling a witness wants to challenge his veracity or to get certain admissions detracting from the value of his evidence given beforehand, the procedure contemplated in Section 154 has to be resorted to.

Hence, in this case simply because a witness has been declared hostile by the prosecution does not amount to saying that the value of his testimony given in cross-examination has been done away with. This was laid down by a Division Bench of this Court in Emperor Vs. Haradhan, . That case is also an authority for the proposition that the evidence given by a witness who has been declared hostile is not to be brushed aside, but has to be considered for what it is worth. The Courts below seem to be under the impression that because the prosecution got it noted in the deposition sheet that the witness was declared hostile they had done all that was necessary to get rid of the effect of that evidence. That is not the legal position. The defence is perfectly entitled to rely upon that testimony in corroboration of the other evidence adduced by the accused himself in support of his defence to the effect that these clothes were his personal property, which he was seen wearing on different occasions publicly and on dates anterior to the date of the alleged burglary.

Another very curious feature of the judgment of the lower appellate Court is that it has omitted to consider the value of the evidence of three defence witnesses who, in my opinion, give very relevant evidence in this case. D.W. 1 is a tailor who deposes to having made these clothes to the order of the accused three years before his deposition, that is to say, sometime in the year 1941. Nothing very damaging to the witness had been elicited in the cross-examination. D.Ws. 2 and 3 have come forward to testify to; the fact that they had seen the accused putting on these clothes on different occasions. Witness 2 puts it about three years before. The testimony of these three witnesses, if believed, entirely demolishes the prosecution case. Hence, it cannot be said that the lower appellate Court could have discarded the evidence; if it was cognizant of the fact that there was such evidence on the record, because it thought that that evidence was wholly irrelevant to the matter before the Court.

The evidence led on behalf of the accused summarized above, corroborated as it is by the evidence of P.W. 6 aforesaid, creates a very serious doubt in the mind of the Court as to whether the prosecution witnesses are telling the truth.

In my opinion, the accused petitioner is entitled to the benefit of that doubt. Giving him that benefit, I set aside the orders of the Courts below and acquit him, and it is directed that he be released from his bail bond, and the fine, if paid, be refunded to him.

The rule is accordingly made absolute.