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1945 Supreme(SC) 39
PRIVY COUNCIL [ON APPEAL FROM THEEAST INDIES]
LORD THANKERTON, LORD PORTER, LORD GODDARD, SIR MADHAVAN NAIR AND SIR JOHN BEAUMONT.
MALAK KHAN - Appellant
Versus
THE KING-EMPEROR - Respondents
On appeal from the High Court at Lahore.
Decided On : July. 3; Oct. 9. 1945.
Solicitors for appellant:Douglas Grant & Dold. Solicitor for respondent: Solicitor, India Office.
Evidence leading to an acquittal on one charge remains admissible as corroborative evidence for another charge in the same trial. Additionally, formal search procedures are unnecessary if the accused produces the items, and the prosecution has discretion regarding which witnesses to call.
Headnote:(A) Indian Penal Code - Sections 302, 325, 149, 392 - Code of Criminal Procedure - Sections 165, 103 - Conviction for murder - Evidence of recovery of stolen property - Use of evidence leading to acquittal on robbery charge as corroboration for murder charge - Whether evidence of recovery is admissible as corroboration for murder even if the accused was acquitted of the robbery charge - Held: An acquittal on a charge of robbery does not preclude the court from using the evidence of recovery of stolen articles as corroborative evidence to establish guilt for another crime, such as murder. The acquittal merely indicates the crime of robbery was not proven, not that the evidence was baseless.
(B) Code of Criminal Procedure - Section 165 and 103 - Search and Seizure - Requirement of witnesses during search - Where articles are produced by the accused himself, the formal requirements of a search under Section 165 do not apply.
(C) Criminal Procedure - Prosecution Witnesses - Duty of the Crown to call all witnesses - There is no absolute obligation compelling the prosecution to call every witness who speaks to facts they desire to prove; it is a matter of discretion for the prosecution counsel. The court must evaluate the evidence as a whole, considering the absence of certain witnesses.
(D) Appellate Jurisdiction - Scope of Interference in Criminal Matters - The Board will not interfere with the course of criminal proceedings unless it is shown that there has been a disregard of the forms of legal process or that substantial and grave injustice has been done.
Facts of the case:
An individual and his relative were assaulted, resulting in the death of the former. Several accused were charged with murder and robbery. Stolen articles were allegedly recovered from the courtyard of one of the accused. The trial court convicted the accused of murder but acquitted them of robbery, finding the robbery charge not proven. The High Court, however, relied on the recovery of the stolen articles as corroborative evidence to uphold the murder conviction for the appellant while acquitting the co-accused due to lack of corroboration.
Findings of Court:
The court found that the High Court was entitled to use the evidence of recovery as corroboration for murder despite the acquittal for robbery. It further held that the failure to call search witnesses did not invalidate the recovery since the accused had produced the items himself, and the prosecution has discretion over which witnesses to call.
Issues: Whether evidence that failed to prove a charge of robbery could be used as corroboration for a charge of murder, and whether the failure to comply with search witness requirements or call all witnesses constituted a miscarriage of justice.
Ratio Decidendi: An acquittal on a specific charge does not render the underlying evidence inadmissible or irrelevant for other charges in the same trial. Furthermore, the formal requirements of a search under the Code of Criminal Procedure are not applicable when the accused voluntarily produces the evidence. The prosecution's discretion in calling witnesses does not necessitate calling every possible witness, provided the overall evidence is sufficient.
Result: Appeal dismissed.
Legal Category Hierarchy
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crime and sentencing
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offences against the person
- murder
- grievous hurt
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offences involving property
- robbery
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offences against the person
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practice and procedure
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evidence
- corroboration
- search and seizure
- witness examination
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appellate procedure
- standard of review
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evidence
Judgement
Appeal (No. 20 of 1945), by special leave, from a judgment of the High Court (October 18, 1944), dismissing the appellants appeal from his conviction of murder by the Sessions Judge of Jhelum (July 1, 1944) and confirming the sentence of death passed on him by the Sessions Judge.
The following facts are taken from the judgment of the Judicial Committee. Akbar Khan was a lambardar of the village of Bahl, and he and his brother-in-law, Nur Khan, were waylaid on January 6, 1944, on their way back from the village of Munara, three or four miles distant, where Akbar Khan had been collecting land revenue. The time at which the assault took place was disputed, but the finding of the courts in India was that it was between 4 and 5 p.m. Both men received severe injuries, apparently with blunt weapons, and Akbar Khan died the same evening. Nur Khan survived and was a witness in the case.
The first information report was registered at the Police Station of Buchal Kalan at 10 a.m. on January 7, 1944, but was said to have been taken down at an outlying post at 4 a.m. by an assistant sub-inspector of police. The maker of the report, Imam Din, said that he had heard of the affair from one Mohammad Nawaz, and that he had gone to the spot and heard a statement made by Akbar Khan, who subsequently died on the road. The persons named as the assailants were Umar Hay at, Malak Khan, appellant, Nur Alam, Gulsher, Aurangzeb and Sarsa, all residents of the village of Bhal.
In the course of investigation Nur Khan and two witnesses, said to be eye-witnesses, told the police that Umar Hayat and the appellant had taken from Akbar Khan a black purse containing money and a list and a gold ring. As a result of that information it was said that on January 8, 1944, inspector Lutaf Khan and two other police officers who were taking part in the investigation went, together with one Fateh Khan and one Allah Yar Khan, to the appellants house and there recovered the purse, money, list and gold ring which it was alleged the appellant had told the inspector he had buried in his garden. The articles were said to have been buried under a stone and thence dug up and produced by the appellant. The inspector thereupon, as he said, drew up a search list, dated January 8, and it was signed by the three police officers and the two others who were present.
On February 29, 1944, separate charges were framed by the magistrate, namely, (1.) against all six accused " that they " committed murder by intentionally causing the death of " Akbar Khan in prosecution of the common object of the " unlawful assembly and caused grievous hurt to Nur Khan" under ss. 302/325/149 of the Indian Penal Code, and (2.) against Umar Hayat and Malak Khan only, that they committed robbery by forcibly removing the articles described above from the person of Akbar under s. 392 of the Indian Penal Code. The trial under those charges was conducted before the Sessions Judge of Jhelum from June 27 to 30, 1944.
The prosecution examined Nur Khan, Mohammad Nawaz and Alam Khan, who professed to be eye-witnesses of both offences, Imam Din, who made the report, Mussammat Begam, mother of the deceased, and Mohammed Ismail, whom he visited shortly before his death. The three police officers gave evidence for the prosecution, but the inspector alone spoke to the finding of the articles alleged to have been stolen. The Crown called neither of the attesting witnesses of the search list. Allah Yar Khan was, however, summoned as a defence witness to prove an alibi for Umar Hayat and Aurangzeb, and in the course of his evidence alleged that Imam Din had told him that the appellant had been one of the assailants. As to the search he said in examination in-chief—
"The A.S.I., S.I., inspector, Fateh Khan and myself went to the house of Malak Khan, but Malak Khan was not with Rs. The inspector himself removed the stone and took out the purse, etc. The stones were lying near the entrance to the courtyard by the sid
