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1926 DIGILAW 379 (ALL)

Emperor v. Bihari

1926-09-07

BANERJI, SULAIMAN

body1926
JUDGMENT : SULAIMAN and BANERJI, JJ.:— After discussing at length the evidence in the case, as regards the point of law raised on behalf of the accused, thus continued:— We have overruled the point of law raised by the learned vakil for the accused that the statements of Roshan and Tiku made before the Committing Magistrate, though admitted by the Judge under section 288 of the Code of Criminal Procedure, cannot be used as substantive evidence and could only have been used for the purpose of corroboration or contradiction. Under the old Code there was some conflict of opinion. In the earlier cases, namely, Queen-Empress v. Dan Sahai, (1885) I.L.R., 7 All., 862 and Queen-Empress v. Nirmal Das, (1900) I.L.R., 22 All., 445 it was suggested that such statements could not be used as substantive evidence. But in the case of Emperor v. Dwarka Kurmi, (1906) I.L.R., 28 All., 683 a Bench of this Court held that statements made before a Committing Magistrate could be admitted as evidence. Since then the section has been amended and reads as follows:— “The evidence of a witness duly recorded in the presence of the accused under Chapter XVIII may, in the discretion of the presiding Judge, if such witness is produced and examined, be treated as evidence in the case for all purposes, subject to the provisions of the Indian Evidence Act, 1872.” This, in our opinion, makes it quite clear that statements when admissible under the Indian Evidence Act can be admitted “for all purposes” and not only for the purpose of corroboration or contradiction. The use of the expression “for all purposes” was clearly intended to remove the previous conflict. The words “subject to the provisions of the Indian Evidence Act, 1872,” mean nothing more than that such statements should not contain matters which would be irrelevant or inadmissible under that Act. After expressing this opinion our attention was drawn to the case of King-Emperor v. Jehal Teli, (1924) I.L.R., 3 Pat., 781. where this view has been accepted. We find, however, that the accused is a young man of about 22 years of age and his wife was openly immoral. After expressing this opinion our attention was drawn to the case of King-Emperor v. Jehal Teli, (1924) I.L.R., 3 Pat., 781. where this view has been accepted. We find, however, that the accused is a young man of about 22 years of age and his wife was openly immoral. He put up with her immorality for some time, but she proved too much for him and was bold enough to offer to go to court and give evidence on behalf of her paramour's father very much to the dislike of the accused. The accused must have resented it extremely and must have felt that he would be considerably disgraced by this act. It was in that moment of despair that he must have committed this murder. We, therefore, think that the ends of justice will be met by reducing the sentence to one of transportation for life. We accordingly uphold the conviction but reduce the sentence to one of transportation for life.