1. This is an appeal by seven persons, namely Kashi Ram, Chhotey Lal, Anant Ram, Banna Jat, Shib Sahai, Shib Dayal and Ram Charan who have been convicted by the learned Sessions Judge of Fatehgarh of the offence under S. 302 read with S. 149, I.P.C, and have been sentenced each to transportation for life. The facts of the case are given in detail in the excellent and comprehensive judgment written by the learned Sessions Judge. The judgment requires hardly anything to be added to it. The facts as found by him, and so far as they do not relate directly to the guilt or otherwise of the appellants, are as follows: The correctness of the findings which we are presently going to mention has not been questioned by the learned counsel appearing for the appellants. Indeed, the only points that have been discussed in the appeal have been the questions whether each and every one of the appellants have taken part in the commission of the offence. One of the pleas in the memorandum of appeal was that the appellants had acted in self-defence, but not a word was mentioned about this in the argument, nor could that plea have availed the accused.

2. It appears that at a short distance from and outside the town of Fatehgarh, on the south bank of the river Ganges there are two huge buildings known as bishrants of Shahus. As the name implies these buildings were erected as rest houses by some moneyed men or Shahus. Between the two buildings there is a small space of ground, and a dispute arose between the Hindus and Mahomedans as to whether the latter had a right to hold certain fairs on the Fridays of the month of Bhadon. The question was referred for settlement by the district authorities to the Tahsildar and the kotwal or city police officer of Fatehgarh. On 9th September 1926 the two officers met certain Hindus and Mahomedans, but no decision was arrived at, mainly because the two parties of Hindus and Mahomedans could not agree. The next day, 10th September 1926, was the third Friday of the month of Bhadon. On the afternoon of that day, some Hindus and Mahomedans came in collusion and this forms the subject-matter of this case.

3. The learned Judge has found that on the afternoon in question some Mahomedans came and met the kotwal who was sitting on a kuchcha platform to the south of a brick platform, which had been recently erected or repaired between the two buildings known as the bishrants. The Mahomedans had resented the construction or reconstruction of the pucca platform between the two buildings. The learned Judge found as a fact that the pucca platform had existed in its present form from March or April 1926. The learned Judge further found that the Mahomedans, having arrived on the scene, had a talk with the kotwal and were subsequently attacked with missiles in the shape of brickbats thrown from the two buildings. The learned Judge is unable from the evidence to decide whether the Mahomedans behaved in any way that might be treated as provocative towards the Hindus, but in the circumstances of the case it is needless to come to a clear finding on the point. Assuming that their behaviour was in any way offensive to the Hindus occupying the bishrants or the pucca platform which was being used as a place of “havan” or fire sacrifice, it seems to have been undoubtedly the case that the Hindus had no ground for fearing any trespass or commission of any other offence on the part of the Mussalmans. The learned Judge has found that the number of Mahomedans was between 50 and 100 and the number of assailant Hindus amounted to several hundreds.

4. We have been taken through the evidence in detail for two days and we accept the view of the learned Judge as regards the aforesaid facts. The finding, therefore, is that a small body of Mahomedans numbering between 50 and 100 was attacked without any proved provocation by several hundred Hindus and was pursued to some distance. The result was that one Mahomedan died almost on the spot, another was fatally wounded and died eight days later and six Mahomedans were injured in less serious manner. The questions that we have to determine are first: Whether the appellants took part in the attack; and, if they did, what offence they committed.

5. To take the second point first; it appears to us that the conviction in the case under S. 302 read with S. 149 is a correct one so far as the appellants are concerned. We are not dealing with people who may have joined in the pursuit empty handed and without knowing whether some of the party pursuing the Mahomedans had any deadly weapon with them or not. In the cases of such persons it might very well be said that they never knew that there was any likelihood of any murder being committed in the course of the attack. In the case of the present appellants the evidence has been throughout to the effect that each was armed either with a sword, spear or lathi and that they were found in the immediate presence of the persons actually killed. We, therefore, do not feel called upon to express any opinion on an abstract question of law. We hold that in the case of the appellants being found guilty their conviction under S. 302 read with S. 149 would be right.

6. Now we shall take up the cases of the individual appellants.

7. The learned Judge has taken up the evidence against each individual appellant separately and we have scrutinized the value of that evidence. So far as the appellants Banna Jat, Shib Sahai, Shib Dayal and Ram Charan are concerned, we may at once say that the evidence against them is convincing and there is little or nothing to urge in their defence. It would be a waste of time to review the evidence once again so far as these appellants are concerned.

8. At the arguments the convictions of Kashi Ram, Chhotej Lal and Anant Ram have been the more closely examined and we owe it to the learned counsel for the appellants to discuss the cases of these appellants somewhat in detail. (The judgment then discussed the evidence against these appellants and proceeded.) The learned counsel put forward a special argument for the appellants Kashi Ram, Ghhotey Lal and Anant Ram and has argued very forcibly that from their positions and connexion with the bishrants, these appellants would be likely to be named by the Mahomedans as being among the assailants. It appears that Kashi Ram looks after the repairs of the two bishrants and Chhotey Lal is a swami or ascetic who took part in the performance of the “havan” or sacrifice on the masonry platform. The argument is that these two appellants, as also Anant Ram, have been selected by way of vengeance by the Mahomedan witnesses. This argument is no doubt entitled to weight and we have given it consideration. On the other hand, these men have taken a keen interest in the bishrants and the platform. The evidence of the Superintendent of Police has shown that bricks had been collected in the two bishrants. These appellants, therefore, must have known that weapons of attack or defence had been brought together on the premises.

9. As regards Anant Ram: he has a son who received education in one of these buildings. If anybody thought that the sacred buildings and the platform should be protected against the profane attack of Mahomedans or that the Mahomedans should be punished for something improper done by them, these (Kashi Ram, Chhotey Lal and Anant Ram) would be among the persons who would be likely to take part in the defence or punishment. The argument, therefore, cuts either ways. The three appellants are still in their prime of life, if not entitled to be called young. It is dear, therefore, that we cannot accept the learned counsel's argument, in the teeth of positive and reliable evidence that those three appellants, did as a matter of fact, take part in the commission of the offence. The evidence brought against them is free from improbabilities or material contradictions and is given by witnesses of a kind who would naturally be called to give evidence. We may mention that, if these persons actually took part in the commission of the offence, the witnesses, who have come forward against them, would be precisely that kind of witnesses whom the prosecution would be able to produce. We are of opinion that we cannot act on surmise to the disregard of dear evidence.

10. Before finishing the judgment in the case, we would like to make a few observations as to some of the evidence on the record. We think that the method adopted by the learned counsel for the accused persons was erroneous and should not have been permitted by the learned Sessions Judge. We draw the attention of the learned Judge to the questions put by the learned counsel for the accused persons to the prosecution witnesses Babu Jagdish Shankar, Circle Inspector, and the city kotwal, Chaube Balmakund. These witnesses took part in the investigation of the case, and examined certain of the prosecution witnesses. The learned counsel asked these investigating officers if a certain witness made or not a particular statement to them. Presumably the counsel was using Section 155, Clause 3 of the Evidence Act, as his authority for this procedure. It is true the language of the rule just quoted is prima facie wide enough to permit of such questions. But where, as in this case, the evidence has been reduced to writing, it is undesirable to permit the putting of such questions and for several reasons. The investigating officer, having examined many witnesses in this and other cases cannot be expected to remember what a particular witness told him. If, therefore, he is replying from his memory alone, there is little value in what he may say. If he is refreshing his memory by looking at the diary, the procedure is outside the scope and intent of Section 159 of the Evidence Act. In the circumstances, the written record made by the police officer is the only proper and right thing to prove to discredit the witness. If the written record (police diary) be used, the provisions of Section 145 of the Evidence Act, and Section 162 of the Cr PC, will have to be borne in mind. A copy of the statement made before the police cannot be used against the witness till he has been confronted with it. The right procedure, then, when a prosecution witness is contradicting himself, is to ask the Judge to look into the diary and decide whether the accused person should not have a copy of the statement. If such copy be granted, the witness' attention must be called to the same; [see Bal Gangadhar Tilak v. Srinivasa Pandit . A.I.R 1915 P.C 7], before the investigating officer is called to prove the record made by him. It will, therefore, be seen that much of the cross-examination of these two witnesses has been of little value: See Woodroffe and Amir Ali's Evidence Act, edition 1925, p. 979, under Cl. 3, S. 155. We, therefore, uphold the convictions of all the seven appellants and affirm the sentences passed on them. The appeals are dismissed.

D.D

11. Appeals dismissed.