T.N. R. Tirumalpad, J.C.
1. The appellant Jabid Ali was convicted and sentenced to 7 years' R. I. Under Section 397 Indian Penal Code and the other two appellants Cherag Ali and Rakib Ali were convicted and sentenced to five years R. I. each Under Section 395 Indian Penal Code, by the Assistant Sessions Judge, Tripuri In sessions case No. ii of 1961. They have filed this appeal against the said convictions and sentences. There were six other with her other accused in the sessions case but they were aquited.
2. The prosecution case was as follows: At about 1 A. M. on 15-3-59 there was a dacoity in the house of Ahammad Ali, P.W. 5 in Bilthai village. The house consisted of 3 rooms. In the middle room Ahmmad Ali and'his little son Abdul Majid P.W. 3 aged 12 were sleeping with a kupi lamp burning in between their beds. On the northern and southern sides of the said room there were two other rooms divided by partitions of about 4f cubits in height and the said rooms had intercommunicating doors with the middle room. In the northern room Ahammad Ali's son Majid P.W. 7 was sleeping with his wife and children and the intercomputing door P.W. 4 Roop Jan Bibi the wiffe of Ahmad Ali's was sleeping with her other children and the intercommunicating door was said to have been kept open.
3. About 8 to 10 dacoits were said to have broken open the door of the middle room in the middle of the night and P.W. 5 Ahammad Ali saw in the light of the kupi lamp the appellant Jabid Ali entering the room with certain others following whom he did not recognize. Jabid Ali struck him with a wooden rod and pressed P.W. 5 to his bed throwing a quilt over him, evidently to prevent recognition. Roop Jan Bibi, P.W. 4 had got up hearing the commotion. But, according to her, she was prevented from entering the: middle room by the other two appellants Rakid Ali and Cherag Ali whom she recognized and they were said to have belaboured her. Some others among the dacoits were said to have been recognized by P.Ws. 3 and 7. But we are not concerns ed with them in this appeal. Some valuables were said to have been removed. Some articles were said to have been recovered from the house of appellant Cherag Ali and later identified by P.Ws. 4, 5 and 7. But the lower Court disbelieved this part of the prosecution, case, Ahammad Ali was said1 to have been injured by appellant Jabid Ali with a knife on the lower and upper part of his left eye-and the dacoits were said to have left the place.
4. Immediately, other people came to the place. Among them were P.Ws. 1 and 6; the sons-in-law of Ahammad Ali and P. Ws 10 and 11, two Sirdars of the village. To them Ahammad Ali was said to have mentioned the name of appellant Jabid Ali and Roop Jan Bibi those of appellants Rakib Ali and Cherag Ali. The first information report was lodged at Dharmanagar about 20 miles away by P.W. 1 Makbul Ali at about 3 P. M. on-the same day. In the F.I.R. the names of the-3 appellants are mentioned as among the dacoits: and Jabid Ali was said to have been recognized by Ahammad Ali and Rakib Ali and Cherag Ali by-Roop Jan Bibi. Eimal Das Gupta, P.W. 9, 'A. S. I. was then the officer-in-charge of the police station in the absence of H. P. Majumder, P.W. 12. P.W. 9 proceeded to the spot the same evening and took the statements of all the witnesses. Subsequently, H. P. Majumder, P.W. 12 returned' and he took up the investigation on 20-3-59 of it appears that on 23-3-59, he also took the statements of the prosecution witnesses, and after completing the investigation, he filed the charge-sheet against the 3 appellants and 6 others Under Sections 395 and 397 Indian Penal Code.
5. In the committing Court the statements of the prosecution witnesses recorded by P.W. 9 Under Section 161 Criminal Procedure Code on 15-3-59 were not given to the accused persons, but only the statements as recorded by P.W. 12 on 23-3-59. This fact was drawn to the attention of the Assistant Sessions Judge by a petition during the trial in the sessions court. But the Assistant Sessions Judge curiously enough passed an order that law prohibited the supplying of the copies of the statements to the accused persons at that stage and so he rejected' the prayer. Then a second petition was filed stating that after the Court rejected the prayer, the defence lawyer approached the public prosecutor with a request to show him the statements recorded by P.W. 9 in the case diary to enable him to cross-examine the witnesses and that the public prosecutor refused to show the statements. The Court directed that tie said petition should be posted for orders to the next day, but no further orders were passed thereon. It appears that one of the important witnesses who was examined in the sessions court and whose evidence was strongly relied upon by the Assistant Sessions Judge namely, Misir Khan P.W. 11 was not examined in the committing Court and that his statement recorded by P.W. 12 Under Section 161 had also not been made available to the accused for purpose of cross-examination and this was also brought to the notice of the Assistant Sessions Judge when the witness was sought to be examined in the Sessions Court. But no orders were passed by the Court on that petition and the witness was allowed to be examined.
6. After the trial, the Assistant Sessions Judge was satisfied that a dacoity by more than five persons had taken place in the house of P.W. g, but he was not satisfied that the other 6 persons whose names were not mentioned in the F.I.R. had taken part in the dacoity and so he acquitted them disbelieving the evidence of witnesses including P. Ws 3 and 7, the sons of Ahammad Ali, that they had recognized the said persons in the course of the dacoity. But the Assistant Sessions Judge was satisfied that the appellants had been recognized in the dacoity, Jabid Ali by P.W. 5 and Rakib Ali and Cherag Ali by P.W. 4 Roop Jan Bibi and he strongly relied on the fact that the names of the 3 appellants had been mentioned immediately thereafter by P. Ws 4 and 5 to P. Ws 10 and 11, the Sirdars of the village, who, according to the Assistant Sessions Judge, were disinterested witnesses. Thus the Assistant Sessions Judga accepted that the evidence of the recognition of the appellants by P. Ws 4 and 5 was corroborated by the fact that the said names had been immediately thereafter mentioned by them to P. Ws 10 and 11. He did not rely for this purpose on the evidence of P. Ws 1 and 6, the sons-in-law of Ahammad Ali because they were interested witnesses.
7. It was pointed out to the Assistant Sessions Judge that the defence was considerably handicapped because the statements of P. Ws recorded by P.W. 9 on the same day of the occurrence were not given to the accused, but only the statements recorded by P.W. 12, 8 days later and. that1 therefore the whole trial was vitiated. The public prosecutor contended that P.W. 9, as ark A. S, I., was not empowered with the power of investigation and that therefore any statement recorded by him will not come within Section 161 Criminal Procedure Code and that the prosecution was not therefore bound to give such statements. But the learned Assistant Sessions Judge rightly held that Sri Bimal Das Gupta, the A. S. I., was the officer-in-charge of the police station at the time, that Section 156 Criminal Procedure Code permitted him to investigate the offence and that the-statements recorded by him should have been given the accused persons. Having come to this finding, he however stated that the appellants have not been prejudiced by the statements not being, given to them.
8. I am unable to understand his curious reasoning. He has stated that P. Ws 4 and 5 had stated just after the occurrence that they recognized the appellants, that the F.I.R. mentioning the names of the appellants was lodged long before P.W. 9 recorded the statements, that the-charge has not been proved except against the appellants and that therefore no question of prejudice arose. The learned Judge failed to see that it is on account of the very fact that he treated the charges as proved against the appellants without the statements of the prosecution witnesses being made available for their defence that the prejudice arose and that the question of prejudice would not have-arisen if he was acquitting the appellants.
9. In the face of the serious complaint made-by the appellants that they were not supplied with the statements recorded by P.W. 9 on the same-day of the occurrence, I called for the case diary to satisfy myself on this point. We are concerned for the present only with P. Ws 4, 5, 10 and on whose evidence the learned Judge relied upon. I found from the case diary that P. Ws 4, 5 and II Misir Khan but not P.W. 10 Idris Khan were-examined by Bimal Das Gupta, P.W. 9 on 15-3-59. I next found that H. P. Majumder, P.W. is had examined P. Ws 4 and 5 again and also Idris; Khan, P.W. 10 but not Misir Khan, P.W. 11. From the charge-sheet, I find that only the nams of Misir Khan but not of Idris Khan is mentioned in the charge-sheet as a prosecution witness. But Misir Khan was not examined as a witness in the committing Court and no statement of Misir Khan recoided either by P.W. 9 or by P.W. 12 was given to the accused.
The position in the committing Court was that' the accused persons had been given the statements of P. Ws 4 and 5 recorded by P.W. 13 on 23-3-59, while no statement of P.Ws. 10 and 11 recorded by either P. W, 9 or P.W. 12 were given to them. Nor were the statements of P. Ws, 4 and 5 recorded by P.W. 9 given to them. I find from the records of the Sessions Court that, when, after the rejection of the prayer of the accused to give copies of the statements recorded from the-P. Ws by P.W. 9, Misir Khan was sought to be examined as P.W. 11 on 21-8-61, a petition was filed by the accused stating- that no copy of his statement was given to them and that they were therefore handicapped in cross-examining him and thus greatly prejudiced. But I find that the Assistant Sessions Judge did not pass any orders on this petition and proceeded with the trial. J have already pointed out that he strongly relied on the evidence of P. Ws 10 and 11 as disinterested witnesses.
10. It is' in this, light that we have to see whether the appellants have been prejudiced in their defence. I have no hesitation in saying that the appellants did not have a fair trial and that their conviction based on such a trial cannot be allowed to stand. Section 173 (4) Criminal Procedure Code provides that the accused should be given the statements, recorded Under Section 161 (3), of all the persons whom the prosecution proposes to examine as its witnesses. In the case of a trial Under Section 251-A Criminal Procedure Code, the Magistrate' has to satisfy himself that all documents referred to in Section 173 Criminal Procedure Code have been furnished to the accused. In the case of an enquiry under Chapter 18 Criminal Procedure Code, Section 207-A (3) Criminal Procedure Code makes a similar provision that the Magistrate shall satisfy himself that the documents referred to in Section 173 Criminal Procedure Code have been furnished to the accused.
We have to read the provision in Section 207-A (3), in conjunction with the provision in Section 207-A (4), -which says that the Magistrate shall take the evidence of such persons, if any, as may be produced by the prosecution as witnesses to the actual commission of the offence alleged. Thus Section 107-A (4) gives a discretion to the prosecution to restrict the examination of witnesses in enquiries under Chapter 18 and they need not examine all the witnesses mentioned in the charge-sheet. But since the Magistrate has to satisfy himself Under Section 2O7A (3) that the documents referred to in Section 173 have been furnished to the accused even before he commences the enquiry Under Section 207-A (4), we have to take it that the statements referred to in Section 173 (4) Criminal Procedure Code of persons whom the prosecution proposes to examine as its witnesses are the persons referred to as witnesses in the charge-sheet and not the persons whom the prosecution decides to produce before the Magistrate in the enquiry under Chapter 18. Thus there is a clear statutory duty on the part of the prosecution to supply all the statements of the witnesses referred to in the charge-sheet.
11. The next question is whether-it will be sufficient, as contended by the public prosecutor, if the prosecution gives the statements recorded by one of the investigating officers or whether they have to give all the statements recorded Under Section 161 Criminal Procedure Code by all the investigating officers if more than one statement has been recorded Under Section 161 Criminal Procedure Code. There can be no doubt that all such statements have to be;-given and the prosecution cannot be allowed to pick and. choose which statement they would give and which statement they would not give. In pur present, case, two investigating officers have recorded statements. If 'there are' contradictions or omissions in the two statements recorded, the accused would be entitled to, know of such contradictions and omissions. The statements recorded by P.W. 9 were on the same day on which the occurrence took place and such statements are likely to contain a truer picture of the occurrence than the statements recorded subsequently after deliberation.
I should think that the second statements recorded by P. W, 12, 8 days after the occurrence are bound to contain embellishments which will ha absent from the first statements recorded by P.W. 9. There can be little doubt that it is for this reason that the statements recorded by P.W. 9 were withheld in this case. The very fact that P.W. 12 found it necessary to take statements again shows that the earlier statements lacked the details which the prosecution wanted. The learned Government Advocate stated that the police were under the impression that it was sufficient to give the later statements recorded by P.W. 12. The sooner the police are disabused of such impression, it will be better for the ends of justice.
12. The Assistant Sessions Judge has stated in his order-sheet in rejecting the prayer of the accused for supply of statements recorded by P.W. 9 in the Sessions Court that there was prohibition in law at that stage for the statements to be supplied. He has not referred to the provision of law which prohibited it. I do not know wherefrom' he found that there was any such prohibition. On the other hand, there is a duty cast on every Judge to see that the accused persons brought before him have a fair trial. The provisions in the Criminal Procedure Code are intended to see that justice is meted out and that in meeting out justice, the accused persons are given opportunity for defence. If, therefore, a Court finds in the course of a trial that the accused persons have not been supplied with the statements referred to in Section 173 (4) Criminal Procedure Code before the case comes on for, hearing before him, the Court has a duty to see that such statements are given to. the accused persons before, he proceeds further with the trial. The prime consideration is that the accused persons are given every opportunity to meet the case brought against them. The prosecution may have a tendency to prevent the accused persons from having access to documents which they are entitled to have. It is therefore for the Judge to assure that the accused are protected in this respect.
I am sorry to say that the learned Assistant Sessions Judge in rejecting the prayer of the accused persons and in failing to pass orders on the petitions, filed by them for statements being supplied to them, has totally failed in this duty. The result has been that the appellants did not have these vital statements recorded by P.W. 9 from P.Ws. 41 5 and 11 and by P.W. 12 from P.W. 10 to enable them to cross-examine the said wit-nesses. They have been very seriously prejudiced by. this, particularly when the Assistant Sessions Judge has strongly relied on the so-called disinterested evidence of P. Ws 10 and n.' The convictions of the appellants have therefore to be set aside on the ground that they have been prejudiced and have not had a fair, trial.
13-16. The question now arises whether I should remand the case for a further trial after directing that the copies oft the statements should be given to the appellants. On perusing the evidence in the case, I do not find that a remand is necessary at all. (After considering the evidence on record the judgment proceeded:) Under all these circumstances, it is not necessary to remand the case for a fresh trial as the evidence already on record does not warrant a conviction of the appellants on the basis of so-called disinterested evidence of P. Ws 10 and II. I do not therefore propose to remand the case.
17. In the result therefore the appeal succeeds and the conviction and sentence of the appellants are set aside and they are acquitted. The bail bonds of the appellants will be discharged.