Badri Chaudhry And Others Accused v. King-Emperor Opposite Party.

Bucknill, J.:— [His Lordship after stating facts as given above, proceeded:]

2. Now, the learned Counsel has as his first point strenuously suggested that the story which was put forward by the prosecution as the occasion and cause of the wounding of the deceased, his brothers and Sheikh Banwali was not true. He has pointed out that there is a substantial difference between important features in the first information report which was laid by the deceased man on the 5th August, at the Bahera police station, and a statement which he subsequently made before a Magistrate on the 14th August, when it was seen that his condition of health owing to his having contracted look-jaw was such that it was probable that he would not recover. The principal feature of difference to which very prominent attention has been drawn by the learned Counsel for the appellants is that in the first information the deceased man undoubtedly states that on the 4th August, it was the third appellant Tirpit who had demanded forced labour from him and upon his refusal had threatened him with serious consequences on the following day. In the statement made by the deceased on the 14th August, it will be seen that the deceased man says that the occurrence on the 4th August, was between himself and the father of the third appellant, namely, Sinalal Chaudhry. The learned Sessions Judge evidently either thinks that there has been some mistake or pays little attention to this discrepancy. I think it is undoubtedly a peculiar matter and it is certainly remarkable that the deceased should have in the first instance spoken of the son (that is to say, the 3rd appellant) as having had words with him on the 4th August, and in the second instance that he should have spoken of the father. There is, however, this to be said that there is no doubt that in the first information report the deceased man speaks of the “malik resident” whilst in the statement which he made on the 14th August, he merely mentioned the name of Sinalal, the father of the man Tirpit Chaudhry, the 3rd appellant, whom however he did mention by name in the first information. I do not pretend to explain how this difference arose but at any rate there can be no doubt that the 3rd appellants father had only quite recently become the malik of the deceased man, who was one of his raiyats.

3. The learned Counsel has also referred to a somewhat remarkable statement which appears to have been made by one Genwa Dusadh, a chaukidar, on the 5th August, at the police station at about 3 p.m It is not quite clear whether the chaukidar, at the time he gave the information, was aware that something of the nature of a disturbance had already taken place. But what was taken down in the station diary at the Bahera police station was to the effect that this chaukidar had arrived and reported that there was an apprehension of a breach of the peace between Sheika Mazhar and Sheikh Latif on the one side and Sinalal Choudhry and others on the other side in connection with lands. The learned Counsel has persistently suggested that it was really a dispute about land and not about begari which had led up to the affray and he based, in the first instance, one of his arguments in this direction upon what he thought was the fact that although a number of parsons had accompanied the deceased man to the thana when he gave the first information, yet no person other than the deceased bad given the names of any of those who were said to have attacked him. He, therefore, suggested that at that time these persons, such as for instance Jero and Latif, the brothers of the deceased, who undoubtedly were both injured and were certainly present at the occurrence, did not know who had attacked their brother the deceased and subsequently concocted the story which has resulted in the conviction of the present appellants. The learned Sessions Judge does not appear, so far as I can gather, to have examined carefully what these parsons did actually say to the Head Constable who took down the first information given by the deceased. However, in this Court we had this document examined and it is found that the contention which was put forward by the learned Counsel for the appellants could not be substantiated; for it is quite clear that those persons who were examined by the Head Constable and who purported to be eyewitnesses did in fact corroborate what had been said by the deceased in his first information. This argument, therefore, that, owing to the lack of corroborative evidence at an early stage of the proceedings little, if any, value can be attached to the first information itself, falls to the ground. But, it is, I think, at this stage not unimportant to draw attention to the somewhat free use which appears to have been made of these statements to the police officer. It is said that according to the recently amended provisions of the Code of Criminal Procedure documents of this character can only be used to assist the accused in particular by showing that a witness who in court deposes to certain facts has in such a statement at an earlier stage given an account or made statements which are contradictory to the testimony which be gives in court. Here, in this case, these statements made to the police appear to have been used in cross-examining the witnesses not merely to show contradictions but at large; and they have been referred to in this Court again at large not merely with the idea of contradicting the witnesses' evidence but rather for the purpose of showing that the statements did not corroborate or assist the story as put forward in the first information report. I, therefore, must observe that it was only when this suggestion that these statements could thus he utilized as a serious attack upon the truth of the first information was made that I thought it desirable that what had actually been stated to the police officer should be seen and scrutinized; and it was, as I have said, then ascertained that the contention which was being put forward was not in fact correct. I am not, however, satisfied that the use which was sought to be made of these statements, both at the trial and in this Court, was justified by the present provisions of the Code of Criminal Procedure. The matter, however, need not be pursued here further because although it is suggested, now somewhat naively, that this Court should not perhaps have examined these documents for the purpose of scrutinizing them in order to see if the argument put forward by the learned Counsel for the appellants was sustainable, yet I can only point out that the examination of these statements by this Court was really rendered necessary by the argument of the learned Counsel for the appellants: an argument which perhaps should not hive been listened to.

[The rest of His Lordship's judgment is not material to our report.].

4. Macpherson, J.:— I agree that this appeal must be dismissed and that the sentences under section 148, I.P.C, are inadequate and fall to be enhanced as proposed.

5. I offer a few additional observations.

6. I agree generally with the careful judgment of the learned Sessions Judge except in two particulars. The first of these is the question of sentence; that has been fully dealt with in the judgment just delivered. The second is his interpretation of the new section 162 of the Cr PC, and his admission in evidence of certain statements made to the investigating officer in the course of the investigation under Chapter XIV of that enactment.

7. The effect of the amending Act of 1923, which is very great, has not yet been fully appreciated by the Subordinate Courts. Before that enactment came into operation, section 162 merely enjoined that the written record of a statement (not covered by section 32(1) of the Indian Evidence Act) made by any person to a police officer in the course of an investigation under Chapter XIV should not be used as evidence. The proviso permitted the statement itself to be used in certain circumstances to impeach the credit of the maker when examined as a witness? The new Act has substituted a section which prohibits the use of any such statement (not covered by section 32(1) of the Indian Evidence Act, 1872) or any record of it whether in a police diary or otherwise or any part of such statement or record for any purpose (subject to subsequent provisions of the Code) at any inquiry or trial in respect of any offence under investigation at the time when such statement was made. The expression “for any purpose” is very important and there is no sound reason why it should not be given its full value. If the legislature meant merely to prohibit the use of the writing as evidence there was no point in amending the section or substituting the present stringent sub-section (1). It is not merely use as evidence of the statement or of the record thereof that is prohibited by sub-section (1) but use of it for any purpose, unless such use comes within subsequent specific provisions of the Code in that regard. There is for all practical purposes no such provision except in the first proviso to sub-section (1) and in sub-section (2), for section 162 overs also section 172(2). Sub-section (2) excludes from the operation of the prohibition cases covered by section 32(1) of the Evidence Act, which do not require consideration in this appeal.

8. The first proviso to section 162(1) makes an exception in favour of the accused but it is an exception most jealously circumscribed under the proviso itself. “Any part of such statement” which has been reduced to writing may in certain limited circumstances be used to contradict the witness who made it. The limitations are strict: (1) only the statement of a prosecution witness can be used; and (2) only if it has been reduced to writing; (3) only a part of the statement recorded can be used; (4) such part must be duly proved; (5) it must be a contradiction of the evidence of the witness in Court; (6) it must be used as provided in section 145 of the Indian Evidence Act, that is, it can only be used after the attention of the witness has been drawn to it or to those parts of it which it is intended to use for the purpose of contradiction, and there are others. Such a statement which does not contradict the testimony of the witness cannot be proved in any circumstances and it is not permissible to use the recorded statement as a whole to show that the witness did not say something to the investigating officer. Unquestionably the new sub-section has greatly enhanced the difficulty of trials because it excludes much that was previously admissible as evidence on which the Courts were accustomed to rely. It is unfavourable to the prosecution and to a less, but still considerable, extent to the defence. Experience points to the conclusion that the Courts do apply the provisions against the prosecution but fail to do so against the defence. It is, however, not a sufficient ground for deviating from what is intended to be a rigid rule that such deviation will favour the accused. It is incumbent on a Court loyally to observe, the prohibition of the legislature in all cases where it is applicable. The legislature has employed firm language palpably intended to make a clean sweep of the use at a trial of any statement to the police during the investigation, not only in evidence but for any purpose not covered by subsequent provisions of the Code which provisions make but one exceedingly restricted exception. The danger of endeavouring to temper this provision in favour of the defence and to widen the exception is illustrated by the present case. In the cross-examination of the Head Constable, Bir Prasad, evidence has been admitted of statements to the witness of five prosecution witnesses who accompanied the deceased Sheikh Mazhar to the thana and who were examined by him at the outset of the police investigation. Among them are several statements which are not admissible under the proviso to section 162(1) or otherwise. Upon them the learned Sessions Judge founded the remark in his judgment:

“None of the ether witnesses told him that night as to who were the assailants of Mazhar”,

which on the record of the trial could only have been arrived at by an inadmissible use of the record of the examination under section 161. If the inadmissible evidence be eliminated from consideration, as it must be, there is no warrant in the record for the remark, which indeed substantially misrepresents the position. Learned Counsel has urged that the question of re-trial should be considered because of the improper, admission of such evidence. But under section 167 of the Indian Evidence Act the improper admission of evidence is not of itself a ground for a new trial or reversal of a decision in a case, if it appears to the Court that independently of that evidence there was sufficient evidence to justify the decision. In the present instance the evidence improperly admitted was favourable to the appellants and the elimination thereof only makes more inevitable the decision against them. In reaching this conclusion no use of the police diaries is made which is not warranted by section 172 of the Grim. Pro. Code or in accordance with the views expressed by the Judicial Committee in the case of Dal Singh v. King-Emperor(1). The only use to which these diaries can be put is to aid the Court in an inquiry or trial. Learned Counsel is aware of the contents of the record of the examination of the witnesses under section 161 and is unable to contend that a fuller utilisation of them in evidence within the limits of the law would at all improve the case for the appellants. [The rest of the judgment is not material for our report].

9. Appeal dismissed.