1. This is a reference by the Sessions Judge at Surat under Section 307 of the Criminal Procedure Code. The trial was by a jury, and the jury convicted accused No. 1 under Section 326 of the Indian Penal Code, and they acquitted accused Nos. 2 and 3. With regard to accused No. 1, the learned Judge thinks that he should have been convicted under Section 304, Part I, of the Indian Penal Code, but inasmuch as the Court has power under Section 326 to impose a sentence of transportation for life or rigorous imprisonment for ten years, it seems to me that the question whether accused No. 1 ought to be convicted under Section 326 or Section 304 is in the nature of an academic one, and hardly worth a reference under Section 307 of the Criminal Procedure Code.
2. In the case of accused Nos. 2 and 3, the learned Judge thinks that the verdict was perverse, and has referred the matter to us on that ground.
3. Unfortunately, there have been a good many irregularities in the course of the trial. In the first place, the charge itself is plainly wrong. The accused are charged, in furtherance of common intention to do one Kasam to death, with having caused his death, and thereby committed culpable homicide not amounting to murder. It is quite plain that if there was a common intention to cause death, and death was caused, the charge should be culpable homicide amounting to murder under Section 302. It is for the jury to determine whether the case falls under one of the exceptions to Section 300, so as to reduce the offence from one of murder to one of culpable homicide not amounting to murder. The learned Judge ought not to have prejudged the question in framing the charge.
4. The prosecution case was that the man Kasam was killed on August 8, 1935, in a maramari which took place at a gambling house; and a considerable number of eye-witnesses were called to speak as to the circumstances in which Kasam met his death. If their evidence be accepted, then there is certainly a very strong cause against accused No. 1, and a good deal to be said against the other two accused. In the cross-examination of the witnesses, it was suggested to them that in their statements made before the Fouzdar, the investigating officer, they had admitted that they had in fact not seen anything of the offence, and they were not eye-witnesses at all. That was the general line of cross-examination. Now, statements of that sort can only be put to the witnesses under Section 162 of the Criminal Procedure Code; and I have noticed in a good many cases that Sessions Courts do not follow the procedure laid down by the section. The section provides that in all cases, -not falling under Section 32, Clause (I), of the Indian Evidence Act,-no statement, whether oral or written, made by any person to a police-officer in the course of an investigation, may be used for any purpose at an inquiry or trial in respect of any offence under investigation at the time when such statement was made. That is the general provision contained in the first paragraph of Section 162. The first proviso makes an exception which is strictly limited in its application. To bring the provisions of the proviso into operation, three conditions must be fulfilled; first, the statement of the witness in question must have been reduced into writing; secondly, the witnesses must have been called for the prosecution; and thirdly, the written statement must be proved. When those conditions exist, the proviso directs that 'the Court shall, on the request of the accused, refer to such writing, and direct that the accused be furnished with a copy thereof,' and then it can be used to contradict the witness. In actual practice, when the first two conditions are fulfilled, the written record of the witness' statement is generally put to him on an undertaking of the prosecution to call the investigating officer to prove the statement, because it is inconvenient to prove each statement separately. So that, the general practice is to call the investigating officer at a later stage of the trial, and he proves the written statements which have been put to the witnesses. In the present case, that procedure was ignored. The witnesses were cross-examined as to the statements,-apparently oral statements, which they had made to the investigating officer,-although oral statements to the police can never be used for any purpose. When the Fouzdar was called, he stated that the witnesses had made statements to him of the nature put to them in cross-examination; and towards the end of his evidence, he said that he had referred to a written record of 'the statements in order to refresh his memory. But the written statements were never put in, and were never proved; and inasmuch as the witnesses were alleging that they had not made the statements alleged, and that such statements as they had made had been wilfully altered by the Fouzdar, it was more than ever necessary in this case that the actual written statements should have been put in.
5. There is, moreover, a serious misdirection in the summing-up of the learned Judge. It appears that the prosecution case was that the Fouzdar had deliberately tampered with the statements of witnesses, that he had been actuated by a desire to save accused No. 3 from any prosecution, and in furtherance of that desire had not recorded correctly the statements made to him by the persons whom he was examining. Now it was essentially a matter for the jury to consider whether that was the correct view of the matter or not. They had to consider whether they would believe the alleged eye-witnesses,-that they had never told the Fouzdar that they were not eye-witnesses, or whether they would believe the Fouzdar in his statement that the witnesses had told him that they were not eye-witnesses,-in which case of course the jury could not have accepted the evidence of the witnesses as to what took place. Instead of leaving that question to the jury, the learned Judge told them in the most emphatic terms that the conduct of the Fouzdar had been rather surprising and antagonistic to the prosecution case, and therefore it was not safe to place much reliance on the statements taken down by him. The learned Judge should not have told the jury what the facts were; he. should have left the question to them.
6. Having regard to these serious irregularities, it appears to me quite impossible in this case that we should convict any of the accused; and the only question which we have to consider is whether we should direct a re-trial. A full bench of the Calcutta High Court in Emperor v. Rafique-ud-din Ahmad I.L.R. (1934) Cal. 572 have held that the High Court has power on a reference under Section 307 of the Criminal Procedure Code to direct a re-trial, though, as the Court points out, there are some difficulties arising from the language in which Section 307 is expressed. I think the view of the full bench of the Calcutta High Court is right, and that we have power in a case of this sort to direct a re-trial. The case was a serious one, in which a man was undoubtedly done to death. I think, therefore, that we ought to send the matter back to be re-tried.
7. In some respects it would have been better to send the case for re-trial to another Court; but there are practical difficulties in the way, because the accused are entitled to have a trial by jury, and there is no other Sessions Court in which trials take place by jury, and which is conveniently situated for the purpose of the present trial.
8. I think, therefore, that the only order we can properly make is to set aside the verdict of the jury as regards all the three accused, and send the case back to the Sessions Judge at Surat to be re-tried according to law.
9. I agree.