Judgment

BOSE J. : This is a simple case though it was argued at great length on behalf of the appellant and a number of technical objections to the validity of the trial taken.

2. The appellant Bhagwan Singh has been convicted of the murder of one Buggar Singh and sentenced to death. He has also been convicted under Section 19 (f) of the Indian Arms Act but we are not concerned with that here.

3. The prosecution story is that the appellant bore a grudge against the deceased because the deceased had fired at the appellant s brother some six or seven years before the present occurrence and was sent to jail for it. When he came out of jail the police thought it prudent to take proceedings against both sides under S. 107 of the Code of Criminal Procedure. This resulted in the appellant s two brothers and his cousins being bound down, as also the deceased. This it is said, constituted the motive for the present crime.

4. On the date of the occurrence, the 7th of September 1950, the prosecution state that the appellant was sitting at the shop of Jit Singh, P. W.2, when the deceased came there about 12-15 p. m. and borrowed Rs. 5 from Jit Singh who lent him the money and entered the transaction in his account book. When the deceased left the shop he was followed by the appellant who shot him at point blank range with a pistol only 4 or 5 karams from the shop. This attracted the attention of a number of bystanders who immediately chased the appellant and apprehended him after a short run of about 30 karams. He was still carrying the pistol. It was taken away from him by Jagir Singh Patwari, P. W. 4.

5. The appellant was immediately taken to the local police post about 100 karams distant and the shopkeeper Jit Singh, P. W. 2, made the first information report at 12-30 p.m . within 15 minutes of the occurrence.

6. The motive is proved by Bhag Singh, P. W. 7, who has been believed and that part of the case was not challenged before us.

7. The occurrence was witnessed by a large number of persons of whom the prosecution examined only five. Two of them turned, hostile in the Sessions Court and one gave evidence which has been regarded by the High Court as neutral. The remaining two, Balbir Singh (P. W. 5) and Jaswant Singh (P. W. 6) have been believed. The only questions are (1) whether the conviction can be rested on their testimony and (2) whether certain irregularities in the trial vitiate it.

8. No attack was made on the testimony of Balbir Singh, P. W. 5, except that the two eyewitnesses who resiled in the Sessions court contradict him. But it was argued that the evidence of Jaswant Singh P. W. 6, is vitiated because he was not examined by the Committing Magistrate. It was said that that makes his evidence in the Sessions Court inadmissible.

9. This raises a question which is largely academic in this case because the reason Jaswant Singh, P. W. 6, was not examined by the Committing Magistrate is that the witness had gone away and was not available and it would have been a needless, and indeed unjustifiable, holding up of the proceedings to wait till he could be found and summoned. It is evident that the Sessions Court has power to examine witnesses who were not examined before the Committing Magistrate because of S. 540 of the Criminal Procedure Code, and if the witness is treated as a prosecution witness and examined by the prosecuting counsel instead of by the Court itself that at best would be an irregularity curable by S. 537. The proper time to object to such a procedure would be at the trial itself and as the appellant was represented in the Sessions Court by two counsel it is too late to object to such a venial irregularity in this Court

10. The learned counsel for the appellant took us elaborately through the provisions of Chapter XVIII of the Criminal Procedure Code and stressed in particular S. 208(1) but we need not enter into this because S. 540 is a complete answer in this particular case. None of the cases cited goes so far as t