Harnam Singh, J.
1. Jit Singh, Amrik Singh and Harnam Singh of village Akalgarh were tried for the murder of Hazura Singh of village Rasulpur in the Court of the Sessions Judge, Ludhisna. Jit Singh and Amrik Singh are brothers and Harnam Singh is their uncle. Amrik Singh and Harnam Singh have been acquitted and Jit Singh has been convicted under Section 302, Penal Code, and sentenced to transportation for life. Jit Singh appeals.
2-3. Briefly, the prosecution case is that there was enmity between Bakhshi Singh an uncle of Hazura Singh deceased, and the accused. Hazurft Singh had come to visit his uncle Bakhshi Singh in village Akalgarh and at about sunset on I8tb June 1947 he was taking Mb meals with Bakhshi Singh when Jit Singh, Amrik Singh and Harnam Singh attacked him. Jit Singh appellant gave a. barohha blow in the abdomen of Hazura Singh while Amrik Singh attacked him with dhangi on his head and Harnam Singh gave him a dang blow on the bipa. Nichhatar Singh and Bakhshi Singh witnessed the occurrence.
4. The dying declaration of Hazura Singh was recorded by Pandit Kewal Krishan, Naib Tehsildar, on 14th June 1947 about 8.30 a. m. in the Civil Hospital.
5. The prosecution examined Bakhshi Singh and Nichhatar Singh in support of the prosecution story and also examined evidence to prove the dying declaration of Hazura Singh deceased.
6. In the chalan that was put in Court it was stated that Bakhshi Singh had collected Hazura Singh and some other men including Himmat Khan who were Badmashes and tried to attack the other party with barchhas and other weapons. They attacked Jit Singh but he saved himself and his brother Amar Singh who was standing in the lane was caught and injured. Amrik Singh, brother of Jit Singh, appellant, and his mother threw brickbats on the assailants from the roof of the house and that it was under these circumstances that Jit Singh gave barohha blow to Hazura Singh. The police put up in Court two separate chalans, one under Section 148 and the other under Section 302, Penal Code. In the case under Section 148, Bakhshi Singh and his companions were the accused and in the other case Jit Singh, Amrik Singh and Harnam Singh were the accused.
7. The accused-appellant pleaded that he had been implicated in the case on account of enmity with the opposite party. He stated that on the day of occurrence Hazura Singh, Bakhshi Singh, Himmat Khan, Pritam Singh and others, whom he was not able to identify, assaulted his brother, Amar Singh, in front of his house at 8 p. m, and it was in that affair that Hazura Singh received the fatal injury but that be did not know who caused that injury.
8. The learned Session Judge found : a) that the dying declaration of Hazura Singh was fraught with untruths; (b) that the occurrence did not take place in the house of Bakhshi Singh and that it took place just outside the house of Amar Singh, brother of the appellant; (c) that the prosecution witnesses failed to explain the injuries on the person of the said Amar Singh; and (d) that the prosecution story was false and that the Original statement of Nichhatar Singh made to the police during the investigation represented the truth.
9. The learned Sessions Judge gave the benefit of doubt to Amrik Singh and Harnam Singh accused as it was not possible which injury was caused by any one of them and convicted Jit Singh appellant on the dying declaration of Hazura Singh and the statement of p. w. Nichhatar Singh made under Section 161, Criminal P.C.
10. Now the dying declaration of Hazura Singh was found by the trial Court to be 'fraught with untruths, ' It has not been used against Amrik Singh and Harnam Singh and is obviously false as regards the place of occurrence and the manner of attack. No marks of violence Cr blood stains were found in the house of Bakhsi Singh p.w, and the police recovered blood-stained earth from outside the house of Amar Singh, a brother of the appellant. The defects for which the statement of Bakshi Singh P.w. was discarded by the trial Court are all to be found in the dying declaration of Hazura Singh. Obviously no reliance can be placed upon the dying dock-, ration in this case.
11. Again, the trial Court has found that the statement of P. w, Niohhatar Singh made at the trial was false. The Court has, however, used the police statement of Nichhatar Singh in corroboration of a part of the dying declaration of Hazura Singh and found that Jit Singh appellant stabbed the deceased in the abdomen. The first proviso to Sub-section (l) of Section 162, Criminal P. C. enacts that a previous statement by a prosecution witness falling under the section can be used by the accused only for the purpose of contradicting such witness under Section 145, Evidence Act and not for any other purpose, such as corroborating a prosecution witness Cr contradicting a defence witness.
12. For the reasons stated above, I would allow the appeal, set aside conviction and sentence of the appellant and direct that Jit Singh appellant may be set at liberty forthwith.
13. In disposing of this appeal I have noticed that Madan Gopal who prepared the plan of the spot in the case was tendered for cross-examina. tion. He stated that the plan that he had prepared was not on the record of the case and, therefore, he could not give the distance between the house of Bakshi Singh p, w. and the house of the accused. No effort was made by the Judge to elucidate the point. Again the report of the Chemical Examiner was on the record of the case but the Public Prosecutor failed to tender the report in evidence and for that reason the Court has ruled out from consideration the report of the Chemical Examiner. I also find that the Public Prosecutor applying that Niohhatar Singh P. w. should be confronted with a statement of the witness made to the police the Court Ordered that the police statement of the witness should be brought on the record and exhibited as D, o,/l.
14. A similar question arose in Mehr Singh and Banta v. The Grown 23 P. E, 1917 Cri : A.I.R.(4) 1917 Lah. 175 : 18 Cr. L. J. 561. The judgment of the Court was delivered by Le Kossignol J. with which Johnstone, C. J., concurred. In that judgment Le Bossignol J. observed:
We must emphatically reject the doctrine of the learned Sessions Judge regarding the duty of a Judge in criminal trial. He appears to imagine that such a Judge is merely disinterested auditor of the contest between the prosecution and the defence and that it is no part of the duty of the Judge to elucidate a point which the prosecution Cr the def so may have left In obscurity either intentionally Cr unintentionally. Our view is that it is the duty of the Sessions Judge to remove all such obscurity so far as 1b possible. It is (Cr him to come to a clear understanding so far as is possible of the actual events that occurred and he cannot shield himself behind the plea that any point was left obscure by the prosecution Cr the defence when he had an opportunity of illuminating that obscurity.
Again in Emperor v. Janki Prasad and Anr. 48 ALL. 288 : A.I.R. (8) 1921 ALL 202 : 22 Cr.L.J. 210 Tudball, J. said:
It is difficult to understand what conception the learned Sessions Judge has of his duty as a Sessions Judge trying a Criminal case. It is the duty of every criminal Court to get to the bottom of a case and to bring all relevant evidence upon the record and to see that justice Is done. The latter portion of the Judge's judgment shows clearly that his conception of his duty as a Judge is utterly incorrect and somewhat puerile. It is the attitude that might possible be taken by a Civil Court trying a civil suit where it is the duty of the parties to place their case as they think best before the Court. But in a criminal case it it the duty of the Court to get to the very bottom of it and to see that every scrap of relevant evidence is brought before it.
Walsh J. concurred with the opinion of Tudball J.
15. The point does not require elaboration, for it is obvious that the presence of counsel in a criminal trial does not absolve the Court from its primary and fundamental responsibility to ensure that all proper and necessary steps are taken to arrive at the truth.
16. As regards the report of the Chemical Examinee the learned Sessions Judge has failed to follow the directions contained in High Court Rules and Orders, Vol. III, chap, 18-B.
17. The learned Sessions Judge seems to think that the object of the criminal Courts is primarily to do justice between a complainant and an accused person. That is not so. The primary object of all criminal Courts is to punish crime in the interests of the State and if a complainant is considering his own private grievances he can seek redress by way of damages in civil Court.
18. The point has been emphasised in the preceding paragraphs for it is important that criminal Courts should know that it is their duty to get to the bottom of a case and to bring relevant evidence upon the record and to see that justice is done.
Khosla, J.
19. I agree.