JUDGMENT
1. This is an appeal by 13 persons who have been convicted under Ss. 147, 302 and 302 read with S. 149, Penal Code, by Mr. V.B Sarwate, Sessions Judge, Nagpur, in sessions Trial No. 29 of 1946, decided on 3-10-1946.
2. Originally 31 persons were prosecuted but only 13 have been convicted and some have been sentenced to transportation for life while others have been sentenced only under S. 147, Penal Code. The incident is of 12-4-1946 when the election to the Trade Union Labour seat was in progress. The rival candidates were Messrs Ruikar and Meshram. The former was supported by the caste Hindus and the latter was a candidate set up by the Scheduled Castes Federation. The polling booth was situated at Indora, Indora, along with Laskari Bag, Bhankheda Eoad and Pachpaoli, is a strong-hold of the Scheduled Castes because they reside there in large numbers. On the day in question a procession supporting Mr. Ruikar started from Chitnis park at 9 A.M and going along Pachpaoli-Indora Road went up to the polling booth. From there it returned but on its return journey instead of passing Pachpaoli-Indora Road it turned into Laskari Bag. It is said that the processionists were not armed but carried only some flags in their hands. Nothing seems to turn upon this fact and it has not to be decided whether the accused had any right of self-defence against the processionists. When the procession reached Laskari Bag the Mahars, about two-three hundred strong, came out to stop it. It is said that the Mahars were armed with spears, pointed bamboos and lathis. For a time the two crowds faced each other and there was some stone, throwing but it is not clear as to whether any person was hit in the stone-throwing. It is also apparent from the record that the processionists also indulged in stone-throwing. The police arrangements on the day were very strong and the police immediately intervened and allowed the procession, to pass on. While the procession was going the Mahars attacked its rear and caused the procession to break up. The members of the procession ran all over the place for their lives but one boy who was in his teens, being about 15/20 years of age, was not so fortunate in getting away. He tried to pass through a barbed-wire fence and his clothes got entangled in it, he was caught and dragged by the feet and stabbed with a spear with the result that he died. Later the mob which had been attacking the processionists moved in a body to the neighbouring mohalla which is called Kurhalkar Peth where Rostis, who are rivals of the Mahars, reside, in this area the mob indulged in more stone-throwing upon the houses. The police in the meantime had got reinforcements and they managed to throw a cordon round the area and to start arresting persons. 44 persons were thus arrested and of these 31 were actually prosecuted with the result stated above.
3. The incident properly falls into three phases. The first phase is when the stone-throwing stops and the procession is allowed by the police to move on. The second phase involves the murder of the boy later identified to be one Govardhan Kirad. The third phase comprises the stone-throwing in the Koshti mohallas. The learned Sessions Judge has correctly remarked that the difficulty of the case lies really in finding out which of the accused formed part of the unlawful assembly and at what stage. The story as deposed to by the witnesses is clear and really admits of no-denial. That such events happened cannot be gainsaid. The only question is who are responsible and whether the accused are some of those persons thus responsible.
4. The investigation was mainly conducted by Hanuman Prasad, Sub-Inspector—Station officer, Pachpaoli—(P.W 55) and was completed on 14-5-1946 when the diary was closed. Many witnesses were examined by the police during the course of the investigation and the statements of these witnesses recorded under Section 161 of the Cr PC, were not incorporated in the diary but were kept separate, written on plain sheets of papers. These statements were filed with the diary and at the commencement of the trial the accused applied for certified copies under S. 162 of the Code. The diary along with the statements was handed over to the Reader concerned for making necessary copies. There is an acknowledgment by the Reader showing that he had received the statements: vide Ex. P. 24. Later on it was discovered that the statements had disappeared. The explanation of the Reader was that he had misplaced them and could not, therefore, trace them. We are not in a position to say who was responsible for this carelessness but the fact remains that the accused did not get copies of these statements and were thus hampered in their cross-examination because they could not contradict the witnesses.
5. The learned Sessions Judge in paras. 29 and 80 of his judgment has discussed this matter and holds that the accused were not prejudiced by the loss of these statements. His reasons are that they could not have shown anything more than the fact that the witnesses were present at the spot and in what capacity. He thinks that it was most unlikely that a description of the accused was given in them, and as there are two identification parades the accused have not been prejudiced because they can use these identification parades. The learned Sessions Judge, therefore, concludes thus:
“I do not, therefore, see what advantage the accused were likely to derive if the copies of the statements had been made available to them and how they can be said to have been prejudiced by the failure to give them copies. Since no prejudice has been caused to the accused persons, there cannot be said to have been any failure of justice in this case and the trial cannot be said to be vitiated for the reason that the accused did act have the copies of the case diary statements under Section 162 of the Cr PC”
6. The right which is given to the accused under Section 162 of the Cr PC, to use the previous statement made to the police for the purpose of contradicting a witness is a valuable right. In a case of this type where there are considerable possibilities of mistakes the only check is the earliest version. The statements of these witnesses would have shown what was their exact position at the time they observed the riot, how they themselves behaved and how many persons they named or were able to identify. It is useless speculating as to the contents of these statements without having them before us. It is also clear that the statements would have been useful to the accused in many ways. We are not in a position to say what those statements were and the learned Sessions Judge does not say what his source of information was. Sub-Inspector Hanuman Prasad, P.W 5, who investigated the case said that some witnesses did give some description. If these statements did not name the accused persons or give any description, there would be grave prejudice to the accused because they would lose thereby a right which in a trial of this character cannot but be described as of very great importance. This matter was discussed by one of us (Bose, J.) in I.L.R (1937) Nag. 1781 and it was pointed out that in such cases it is difficult to gauge the extent of prejudice which might have been caused to the accused. Similarly, a Divisional Bench of this Court in I.L.R (1945) Nag. 1512 held that the omission to give copies of such statements to the accused is repugnant to the fundamental rules of practice necessary for the due protection of prisoners and the safe administration of justice. It was held in that case that where an accused was robbed of his statutory rights of cross-examination and thereby denied the opportunity of effectively destroying the testimony of prosecution witnesses the evidence of such witnesses was not admissible. This rule was repeated by the same Divisional Bench in I.L.R (1946) Nag. 1263 and the law laid down in I.L.R (1945) Nag. 151 was re-affirmed. While, with due respect, we doubt whether the evidence of witnesses in Court becomes inadmissible as a result of the deprivation of the right of cross-examination inherent in Section 162 of the Cr PC, we are in agreement with the Divisional Bench that where there is prejudice to the accused the testimony of such witnesses must be received with extreme caution, and the Court would be entitled in a suitable case even to ignore altogether such evidence. Every case will have to be decided on its own facts. While in the present case we do not propose to base our conclusion on the inadmissibility of the evidence of these witnesses, we are satisfied, however, that the evidence of witnesses whose statements were recorded by the police suffers a great deal because of the loss of the statements. We consider that we should not act upon the evidence of these witnesses. This is what was laid down in three cases of this Court and is the only reasonable course to follow. In a case where 200/300 persons are alleged to have committed a riot there is no guarantee that false names have not been introduced by partisan witnesses especially when feelings run high.
7. The learned Sessions Judge has gone by a rule of thumb and be decides the guilt or otherwise of an accused according to the number of witnesses identifying him. This is a rule which, though satisfactory in ordinary cases, is fraught with considerable difficulties and dangers in a case of this type. We are, therefore, convinced that we should not act on the evidence of these koshti witnesses particularly as they were not questioned at the earliest stage and as probably their statements were deliberately not taken by the police. Their unanimity about the same accused itself makes their evidence worthless because it is inconceivable that they could have seen the same accused at different moments of time in a mob consisting of over two to three hundred persons. If the police had recorded proper statements on 12-4-1946, when they had known that these persons were potential witnesses there would have been some check upon subsequent concoction which is now impossible. Further these Kuralkar Peth witnesses cannot be used to corroborate the witnesses who saw the assault on Goverdhan Kirad because that assault had already taken place before the mob entered their mohalla. It is the membership of the unlawful assembly at the time of the assault that is vital in connection with S. 302, Penal Code, and on that point these witnesses are silent. In fact the police witnesses and these witnesses speak of two separate phases and there would be no real corroboration except as to the identity of the accused. For this purpose we regard the Kuralkar Peth witnesses as useless and consider it unsafe to act upon their evidence even though we do not reject their evidence as inadmissible on any other ground.
8. The result is that there is no sufficient or cogent corroboration of the testimony of Ibrahim Khan P.W 2, Rampal P.W 48 and Daud Khan P.W 15. We must, therefore, give the benefit of the doubt to the accused named by them as there is the evidence of but one witness against every such accused. In the end we must say that this unfortunate result has been occasioned mainly because of slack investigation and failure to record proper statements in time and the loss of such statements, as had been recorded, through the carelessness of somebody. But if such things happen it is obvious that the last person to suffer should be the accused and the Courts should in such circumstances be anxious to see that no prejudice is caused to them. We allow the appeal of the appellants before us. We set aside their convictions and the sentences passed against them and order that they be released.
9. Appeal allowed.