1. In this case six persons are being tried for rioting and murder of Shankar Sakharam and Narayan in prosecution of their common object. Narayan's dying declaration was recorded by a Magistrate in which he mentioned one of the accused as his assailant. Several eye-witnesses who were present at the scene of offence have been examined for the prosecution and they have stated which of the accused were seen by them taking part in the rioting. At the identification parade Narayan recognised his assailant and said to the panchas in the presence of the police what he had done to him. Similarly at other identification parades held by the police, the eyewitnesses identified some of the accused and said what they had seen them doing. The learned Counsel for the prosecution tenders those panchanamas in evidence and wants to prove the statements made by Narayan and other witnesses at the identification parades. The learned Counsel for the accused objects to the statements being proved as they were made to the police in the course of investigation. It is contended that under the proviso to Section 63(1) of the Bombay City Police Act, 1902, such statements can be used only by the accused with the permission of the Court for the purpose of, impeaching the credit of the witnesses who made them. Prosecution, however, wants to use those statements for corroborating the statements made by the witnesses in this Court.
2. As regards Narayan's statement at the identification parade, it is obviously admissible as his dying declaration under Section 32(1) of the Indian Evidence Act, 1872, since Section 63(2) of the Bombay City Police Act, 1902, excludes such dying declaration from the prohibition contained in Sub-section (1). Hence Narayan's statement at the identification parade regarding the cause of his death is admissible although made in the presence of the police.
3. As regards the statements of other witnesses, the cases decided under Section 162 of the Criminal Procedure Code after it was amended in 1923 have no application since this case is governed by Section 63 of the Bombay City Police Act, 1902, which is still in the same form as Section 162 of the Criminal Procedure Code which was amended in 1923. Section 63(2) of the Bombay City Police Act, 1902, says:
No statement made by any person to a Police officer in the course of an investigation under this Act shall, if taken down in writing, be signed by the person making it nor shall such writing be used as evidence.
4. Under the similarly worded Section 162 of the Criminal Procedure Code before its amendment there was some controversy as to whether the statements recorded by the police under that section could be used to corroborate the statements given by those witnesses at the trial under Section 157 of the Indian Evidence Act. The section only made the written document inadmissible and did not limit the operation of Section 157 of the Indian Evidence Act. Had it been intended to exclude even the oral statements from being used under Section 157 of the Indian Evidence Act, the language used would have been different. This was considered at great length by the Madras High Court (by a full bench of three Judges) in Emperor v. Nilakanta I.L.R (1912) Mad. 247, and (by a full bench of five Judges) in Muthukumaraswami Pillai, v. King-Emperor I.L.R (1912) Mad. 397. and it was held unanimously that although the written record of statements made to the police in the course of an investigation could not be used as evidence, Section 162 did not exclude oral evidence of the statements, whether they had been taken down in writing or not. The same view was taken by the Calcutta High Court in Fanindra Nath Banerjee v. Emperor I.L.R (1908) Cal. 281. This High Court too adopted the same view in Emperor v. Hanmaraddi I.L.R (1914) Bom. 58: 16 Bom. L.R. 603 and held that Section 162 of the Criminal Procedure Code did not override the general provisions of the Indian Evidence Act as to oral evidence of such statements to corroborate the evidence of a witness. In consequence of those decisions Section 162 of the Criminal Procedure Code was amended by the amending Act of 1923, prohibiting the use of even oral testimony of a statement made by a witness before the police in the course of investigation. But Section 63(2) of the Bombay City Police Act, 1902, has not been amended and its wording is still the same as the wording of Section 162 of the Criminal Procedure. Code before it was amended. Hence the principle laid down in the rulings cited by me govern similar cases arising in the City of Bombay. It, therefore, follows that although under Section 63(1) of the Bombay City Police Act, 1902, the documents containing statements of witnesses made before the police in the course of investigation cannot be tendered in evidence on behalf of the prosecution, yet the oral statements of witnesses recorded in the panchanama in the presence of the police at an identification parade in the course of investigation are admissible in evidence to corroborate the statements of those witnesses at the trial, under Section 157 of the Indian Evidence Act. This was the view taken by Kemp J. in Emperor v. Wahiduddin (No. 2) I.L.R (1929) Bom. 528: 32 Bom. L.R. 327 and I respectfully agree with it. Mr. Pardiwalla, the learned Counsel for some of the accused, relies upon the ruling in Emperor v. Kasamali Mirzalli  Bom. 384: 44 Bom. L.R. 27. and contends that even under Section 63 of the Bombay City Police Act, 1902, it was held there by a full bench that the right to make use of the statements of witnesses recorded by the police was a privilege conferred on the defence only. In that case certain witnesses, who were called by the prosecution, did not corroborate the complainant on certain material points and the counsel for the defence did not cross-examine them on their police statements. But the learned Judge himself called for the police statements, and put to the witnesses questions founded on those statements in spite of the protest of. the learned Counsel for the defence. The object of putting those questions to the witnesses was to show that they had made before the police statements which accorded with those made by the complainant. Thus the learned Judge wanted to contradict the statements made by the witnesses at the trial for the benefit of the prosecution and the full bench held that it was an error in law for the Judge to himself call for the statements and to put questions to the witnesses founded on the statements for such a purpose. The question whether such statements could be used by the prosecution to corroborate the statements made by the witnesses at the trial did not arise in that case, and the authority of the decision of Kemp J. in Emperor v. Wahiduddin is not shaken by it.
5. It is further urged by Mr. Pardiwalla that if a panchanama containing such a statement is not admissible in evidence, the panch witness cannot make use of the panchanama even for the purpose of refreshing his memory. But Section 159 of the Indian Evidence Act says that when a witness is under examination he may refresh his memory by referring to any writing made by himself at the time of the transaction concerning which he is questioned, or so soon afterwards that the Court considers it likely that the transaction was at that time fresh in his memory and that he may also refer to any such writing made by any other person, and read by the witness within the time aforesaid, if when he read it he knew it to be correct. The section does not require that the writing which is used to refresh his memory should itself be admissible in evidence. Here although the panchanama of identification was written by a police-officer, it was immediately read over to the panch and admitted by him to be correct, Hence the panch can make use of that document to refresh his memory. In Queen-Empress v. Sitaram Vithal I.L.R (1887) Bom. 657 it was held that although a statement reduced to writing by a police-officer in the course of an investigation could not be used as evidence under 3. 162 of the Criminal Procedure Code, yet the police-officer, by whom it was reduced to writing, might use it to refresh his memory under Section 159 of the Indian Evidence Act and might be cross-examined upon it by the party against whom the testimony aided by it was given.
6. I, therefore, allow the counsel for the prosecution to ask the panch witness to refresh his memory by referring to the panchanama and state what the witnesses said at the time of the identification, only so far as that statement corroborates what the witnesses have stated in this Court.