LexNARAIN AND TWO OTHERS versus THE STATE OF PUNJAB
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72' SUPREME COURT REPORTS (1959] Supp. 1958 operation the ea.me da.y, a.re repugnant to ea.ch other, that which last received the Roya.I assent must prevail As• v~""' a.nd be considered pro ta.nto a repeal of the other." He Dist.ic1 Board, Again in Daw, Clerk of the Commissioner of Sewers of Muzaffa.nag•• the City of London v. The Metropolitan Board of Worka ( 1 ), it wa.s held- W••,hoo J. "Where two statutes give authority to two public bodies to exercis!l powers which cannot consistently _with the object of the Legislature co-exist, the earlier must necessarily be repealed by the later statute." In that case the conflict \11'.&S between s. 145 of the City of London Sewers Act, 1848 a.nd s. 141 of the Metro- polis Local Ma.na.gement Act, 1855, a.nd the later wa.s held to prevail. The principle of these cases will apply to the present circumstances, and if the words " town area. committee " are not held to be a transla- tion of the words " town panchayat ", the result is that a Town Area Committee being vested with power under s. 26 (a) to regulate offensive trades or callings, the power of the Town Area. Committee must prevail over the power of the' District Board under s. 174(l)(k) of the District Boards Act. We, therefore, allow the a.ppea.l, set aside the order of the High Court a.nd order the acquittal of Asa Ram a.ppella.nt. Appeal allowed. NARAIN AND TWO OTHERS v. THE STATE OF PUNJAB (GAJENDRAGADKAR and A. K. SARKAR, JJ.) Criminal Trial-Material witness, who is-Failure to examine -Effect of-If amounts to rejection of evidence-Indian Evidence Act, r87z (I of r87z), s. r67. Several persons attacked and seriously injured one M. After assaulting him the assailants were carrying him away when M's brother R came to rescue him and in self defence shot dead one of the assailants and carried M away. For the assault on M eight persons, including the appellants, were tried for offences under (1) (1862) C.P. u C.B.N.S. 16x; (1862) 133 R.R. 311. (1) S.C.R. SUPREME COURT REPORTS 721$ I ss. 148, 307 and 364 both read with ss. 149 and 34 of the Indian Penal Code. At the trial R was cited as a witness by the prosei- cution, but R refused to give evidence claiming protection under Art. 20 of the Constitution. The Sessions Judge upheld R's objection and the prosecution gave him up as a witness. After trial, the Sessions Judge acquitted four of the accused but con~ victed the appellants and one other person. In appeal before the High Court the appellants urged that the Sessions Judge wa11 wrong in holding that R was entitled to the protection of Art. 2~ and that the trial was vitiated by th;s decision whereby the accused had been deprived of the benefit of R's evidence. Th~ High Court was of the view that if R had been compelled t!> give evidence he would not have supported the prosecution but whatever he would have stated would not have rebutted the convincing testimony of the other witnesses and that therefore the failure to.examine R did not in any way affect the ultimate d.ecision of the case. The High Court apparently had s. 167 of the Evidence Act in view. In the result the High Court uphelfl the convictions. The appellants appealed and contended tha:t t:he view of the High Court was not justified by s. 167 and that the trial was not fair as R, a material witness, had been kept out of Court. Held, that the trial was not vitiated by the failure of the prosecution to examine R as a witness. Section 167 did not help the appellants as it was not a case in which evidence could be said to have been rejected within the meaning of that section. Further, R was not a witness material to the prosecution ina11- much as he arrived on the scene after the assault was over and it was not necessary for the prosecution to examine him to ensure a fair trial. Where a material witness has been deliberately !>r unfairly kept back, a serious reflection is cast on the propriety bf the trial and the validity of the conviction resulting from it may be open to challenge. The test whether a witness is material .is whether he is essential to the unfolding of the narrative on which the prosecution is based and not whether he would have given evidence in support of the defence. , Habeeb Mohammad v. The State of Hyderabad, [1954] S.C.R. 475; Stephen Seneviratne v. The King, A.I.R. 1936 P.C. 289. CRIMINAL APPELLATE JURISDICTION: Crimin1tol Appeal No. 186 of 1956. Appeal
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