Jamuna Singh vs The State

Sen, J.—The 4 Petitioners Jamuna Singh, Bhagwat Singh, Awadh Kishore Singh and Dina Nath Singh have been convicted u/s 323 of the Indian Penal Code and each sentenced to pay a fine of Rs. 50 in default to suffer rigorous imprisonment of one month each. They were also convicted tinder Section 341 of the Indian Penal Code, but no separate sentence was passed thereunder.

The prosecution case was briefly as follows: On January 4, 1958 Keshab Banerjee, Swaraj Singh, Kuar Pandey and Bake Singh were travelling by taxi from Barabani Colliery to Asansol. When near Nunia bridge the taxi was stopped by another car which overtook the taxi and then blocked the progress of the taxi by turning to the left in front of the taxi. Four men came out of the car which had blocked the way of the taxi, with hockey sticks in their hands, and started striking the taxi damaging and breaking the wind screen and the glass windows they also struck Keshab and his companions with the hockey sticks. At that time a bus came along and seeing the bus approaching the accused party left in their car. Bake Singh happened to know one Tulshi Napit who was travelling by the bus and asked him, to inform the Union office about the incident. It should be mentioned that Keshab, Swaraj Singh, Kuar Pandey and Bake Singh who were travelling by taxi were the members of the Mazdoor Union of Colliery workers, whereas Jamuna Singh and other accused were members of Mazdoor Congress Union; and a good deal of rivalry and ill-feeling were going on between the two Unions, and it was suggested that out of the ill-feeling arising from the rivalry between the two Unions, the complainant party travelling by taxi was thus attacked and belabored. After the accused went away in their car, Keshab and others proceeded in their taxi to Asansol police-station and there Bake Singh lodged an ejahar at about 8 p.m. on the same day in which the Petitioners, Jamuha Singh, Bhagwat Singh, Awadh, Kishore Singh and Dina Nath Singh were all mentioned as people who had attacked them.

The defence was that the case was a false one, that no much occurrence had taken place as alleged by the prosecution, and that in any case the assailants had been recognised and that the Petitioners were named out of enmity as they were prominent members of the rival Union:

The learned Magistrate, however, held in view of the evidence that occurrence was sufficiently proved and that the identification of the four accused Petitioners as the assailants was also proved beyond reasonable doubt. Accordingly, the learned Magistrate convicted and sentenced them as already stated.

Mr. S.S. Mukherjee, appearing for the Petitioners has urged that Bake Singh, though he named and identified all the fours accused in court, gave only the names of Jamuna Singh when he spoke to Tulshi Napit whom he asked to give information about the attack at their Union office, and that in the circumstances it would be unsafe to convict the other accused in the case, because their names might have been thought of as they were members of the rival union to which Jamuna Singh belonged. In this case the information at the thana was given about 45 minutes after the occurrence had taken place according to the prosecution witnesses. But Mr. Mukherjee's argument is that in the mean time information had been sent to the Union office through Tulshi Napit and there was sufficient time for the informant to consult the members of their own union and implicate some prominent men of the other union, that is, Jamuna Singh's Union.

Mr. Mukherjee has also pointed out that the only eye witnesses are the four men who were travelling by the taxi viz. Keshab Banerjee, Swaraj Singh, Kuar Pandey and Bake Singh; and the taxi driver who deposed as P.W. 5 admitted that he did not know the names of the assailants but heard their names from P.W. 1 Keshab Banerjee. Mr. Mukherjee has commented on the non-examination of any independent witnesses, and has referred to statement made by P.W. 1 in cross-examination that there were shops on either side of the road; and has commented on the fact that none of the shopkeepers was examined. In this case the learned trying Magistrate held a local inspection and there is a memorandum of his local inspection on the record. He did not find any shop near the place of occurrence as pointed out to him, but on the other hand found that it was a lonely place. Mr. Mukherjee has commented on the learned Magistrate having used his own observation at the local inspection made u/s 539B of the Code of Criminal Procedure to discredit a statement of the witnesses in Court. He has urged that the result of the local inspection could only be used for the purpose of appreciating the evidence given in Court and not for the purpose of testing its veracity. In this connection Mr. Mukherjee has referred to a decision of the Supreme Court in Pritam Singh and Another Vs. The State of Punjab, there it was held as follows:

A Magistrate is certainly not entitled to allow his view or observation to take the place of evidence because such view or observation of his cannot be tested by cross-examination and the accused would certainly not be in a position to: furnish any explanation in regard to the same.

In that case, it appear that the "learned Additional Sessions Judge had carried out an experiment in court to ascertain whether or not a pair of shoes recovered and alleged to have been in the wearing of the accused at the time of the occurrence did belong to the accused by making the accused put thereon in Court. The question was whether the pair of shoes fitted the feet of the particular accused. The learned Judge recorded his observation that the pair of shoes appeared to fit the accused perfectly, but the accused made the statement that the pair of shoes was too tight for him. Their Lordships of the Supreme Court held that in such circumstances a Magistrate or a Judge could not use his own observation as to perfect fitting or otherwise of the pair of shoes as evidence against the accused. This case, therefore, does not throw light on the question whether when the Magistrate has observed certain local, features in. the course of local inspection he is not entitled to use such observation to test the evidence of the witnesses who have deposed before him. In Babbon Sheikh v. The King-Emperor ILR (1910) Cal. 340 this question was considered. There was difference of opinion between two learned Judges, viz., Stephen, J. who held that the trying Magistrate, may visit the scene of an alleged offence to test the evidence he had heard in Court and to act on the impression he had formed from what he had seen, Woodroffe, J. who held that a Court could not take a view of the locality for any purpose other than that of understanding evidence adduced in Court. The case was therefore referred to a 3rd Judge, Chatterjee, J. Chatterjee, J. held that the Magistrate may use his own observation for testing the evidence adduced before him with regard to the features of the locality. In this connection the following observation of Chatterjee, J. are relevant:

If the Magistrate has seen a certain state of things and if witnesses examined before him testify to the contrary, it is natural that he should believe the testimony of his own senses and disbelieve the sworn testimony. It seems to be a psychological impossibility that he should do otherwise. If a Magistrate is required to see a place and its environments for the purpose merely of understanding that the witnesses are speaking about and to ignore what he has seen when weighing the credibility of the witnesses who confirm or contradict his own senses, it would be making him to do what no man in the ordinary course of human experience can be expected to do. As soon there fore as we admit that a local inspection is permissible, we must admit also that the Magistrate can use the testimony of his own senses for testing the veracity of the witnesses deposing before him as regards the features of the locality.

As regards safeguard against the Magistrate being wrong in his observations it was observed that this might be guarded against by requiring the Magistrate in every case in which he makes a local inspection to place at once on the record a report of what he had seen, leaving it open to the parties to contradict the same by an application for further inspection.

With this observation of Chatterjee, J. I respectfully agree, and this is precisely what the learned Magistrate in the present case proceeded to do. Mr. Mukherjee has pointed out that the reported case of Babbon Sheikh was decided before Section 539B was enacted. At the time when Babbon Sheikh's case was decided there was no direct provision enabling a Magistrate to hold a local inspection. It was only in 1923 that Section 539B enabling a Magistrate to hold a local inspection was introduced into the Code, and therefore at present when ascertaining the relevant law we should look to the wording of Section 539B. Section 539B provides as follows:

Any Judge or Magistrate may at any stage of any inquiry, trial or other proceeding, after due notice to the parties, visit and inspect any place in which an offence is alleged to have been committed or any other place which it is. in his opinion necessary to view for the purpose of properly appreciating the evidence given at such inquiry or trial and shall without unnecessary delay record a memorandum of any relevant fact a observed at such inspection.

The term "appreciating evidence given at the trial" does not merely mean understanding but also realising the credibility thereof; in other words, testing of the evidence as to local features cannot be ruled out by the use of the word "appreciating". Further, this section also provides that the Magistrate shall note relevant fates observed by him. This, the local features observed by him and recorded in the memorandum can certainly be used by the learned Magistrate to test the veracity of the witnesses who have spoken on the point and naturally the learned Magistrate will prefer the testimony of his own senses, as pointed out by Chatterjee, J. in Bahhnn Sheikh's case.

In the circumstances, from the non examination of other witnesses no adverse inference can be drawn because I agree with the learned Magistrate in holding that no such witness apart from the passengers and the driver of the taxi was available. But there remains the fact that in this case the existence of a party faction over the rival Unions has been, admitted and there also remains the fact that P.W. 7 Tulshi Napit spoke of or only one name having been given to him when he stated in examination in chief that Bake Singh told him about Jamuna having assaulted him and others there was no further question by the prosecution to ascertain whether any person other than Jamuna Singh had also been named by the passengers. In the circumstances to be on the safe side it would be proper to convict Jamuna Singh only in the present case and give the benefit of doubt to the other Petitioners.

Accordingly, this Rule is made absolute so far as Petitioners Nos. 2, 3 and 4 are concerned; their conviction under Sections 323 and 341 of the Indian Penal Code and the sentence passed thereunder being set aside. But the Rule is discharged so far as Jamuna Singh is concerned, his conviction under Sections 323 and 341 of the Indian Penal Code, and the sentence passed thereunder being affirmed.