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iqbal Ahmad and ors. Vs. Emperor - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAllahabad
Decided On
Reported inAIR1943All49
Appellantiqbal Ahmad and ors.
RespondentEmperor
Excerpt:
- cantonments act[c.a. no. 41/2006]. section 346 & cantonment fund (servants rules, 1937, rules 13, 14 & 15: [h.l. gokhale, ag. cj, p.v. hardas, naresh h. patil, r.m. borde & r.m. savant, jj] jurisdiction of school tribunal constituted under maharashtra employees of private schools (conditions of service) regulations act, (3 of 1978) held, school run by the cantonment board is a primary school and it is not a school recognised by any such board comparable to the divisional board or the state board. the school tribunal constituted under section 8 of the maharashtra act cannot entertain appeals filed under section 9 by the employees working in schools which are established and administered by the cantonment board. teacher employed in the school run by cantonment board being covered under.....yorke, j.1. this is an appeal by iqbal ahmad, afzal ahmad, laiq ahmad and 13 others who have been convicted by the additional sessions judge of allahabad, of offences under sections 324, 325, 452 and 426, penal code (all these sections are to be read with section 149, penal code) and sentenced all of them under section 452, penal code to undergo three years' rigorous imprisonment and also to pay a fine of rs. 100 each with two months' further rigorous imprisonment in default and under section 426, penal code, to undergo each of them to one month's rigorous imprisonment. under section 324, penal code, the first three appellants have been sentenced each to undergo 21/2 years' rigorous imprisonment while the remaining appellants are sentenced to 11/2 years' rigorous imprisonment. under.....
Judgment:

Yorke, J.

1. This is an appeal by Iqbal Ahmad, Afzal Ahmad, Laiq Ahmad and 13 others who have been convicted by the Additional Sessions Judge of Allahabad, of offences under Sections 324, 325, 452 and 426, Penal Code (all these sections are to be read with Section 149, Penal Code) and sentenced all of them under Section 452, Penal Code to undergo three years' rigorous imprisonment and also to pay a fine of Rs. 100 each with two months' further rigorous imprisonment in default and under Section 426, Penal Code, to undergo each of them to one month's rigorous imprisonment. Under Section 324, Penal Code, the first three appellants have been sentenced each to undergo 21/2 years' rigorous imprisonment while the remaining appellants are sentenced to 11/2 years' rigorous imprisonment. Under Section 325 the first three appellants are sentenced to 41/2 years' rigorous imprisonment each with a fine of Rs. 150 or in default three months' rigorous imprisonment. The remaining appellants are sentenced each under this section to undergo 4 years' rigorous imprisonment and to pay each of them a fine of Rs. 50 with one month's rigorous imprisonment in default. The total amount of fines inflicted is said to be something over Rs. 3000. The appellants were committed for trial along with 13 others on two charges, the first under Sections 307 and 325 read with Section 149, Penal Code, being that they on 20th July 1939 at about 1-30 p. m. in village Syed Sara wan formed an unlawful assembly with the common object of beating the men of one Qabul Ahmad of Syed Sarawan and causing damage to his property and in pursuance of their common object Iqbal Ahmad fired a gun causing injuries to Ishwar Din (alias Barku), a servant of Qabul Ahmad and grievous hurt with lathis to Syed Uddin. The second charge under Sections 426 and 452 is that on the same day at about the same time in pursuance of the same common object they trespassed into Qabul Ahmad's house having made preparations to cause hurt to Qabul Ahmad and damaged his property.

2. It is not in dispute that on 20th July 1939 an occurrence in the nature of a riot took place between the parties of Iqbal Ahmad appellant, on the one hand, and Qabul Ahmad, the original complainant, on the other. It appears that in village Karaul, a hamlet of Junaidpur, there is a plot in which there are three cosharers, Aulad Ahmad, Mohammad Azim and one Moor Ahmad, a minor. This plot had been sublet to one Jagannath Murai and it was in connexion with this plot and the collection of its rent that a dispute arose between Qabul Ahmad, who claims to have been in charge of this and other cultivation in village Syed Sarawan on behalf of Aulad Ahmad and Mohammad Azim, and Iqbal Ahmad who in the year preceding this occurrence had made collections on behalf of the minor, Noor Ahmad. It is said and is scarcely free from dispute that only about a fortnight before this occurrence Qabul Ahmad entertained a number of servants who are the persons who for the most part sustained injuries in the occurrence of 20th July. For the defence it is said that these men were taken on to enable Qabul Ahmad to assert possession of the whole of the plots and make collections by force. For the prosecution, it is said that they were taken on for the protection of Qabul Ahmad against Iqbal Ahmad and it is not in doubt that previous disputes between these parties had led to serious outbreaks of violence which might suggest the necessity of taking on some sort of bodyguard.

3. These were the circumstances preceding the occurrence of 20th July. It is said that Iqbal Ahmad had approached his maternal uncle Ali Jawwad of village Mehgaon some two miles away from Syed Sarawan to arbitrate in this dispute. Mohammad Azim, one of the cosharers on whose behalf Qabul Ahmad was managing also lives in Mehgaon and on 20th July he sent for Qabul Ahmad and mentioned this intervention and the necessity of holding a panchayat. A panchayat was accordingly held and it was decided therein that Iqbal Ahmad and Mohammad Azim should approach a pleader to act as an arbitrator and that in the meantime neither party should interfere with the possession of the other. There is a dispute as to the time at which this panchayat took place. According to the prosecution it dispersed by midday, while according to the defence it finished an hour or two later. It is the prosecution case that Qabul Ahmad did not at once return to Syed Sarawan but remained at Mehgaon at the house of Mohammad Azim where late in the afternoon he received through Mt. Nasiban, a barber woman, information that in his absence a serious clash had taken place in Syed Sarawan.

4. As I have said earlier, there is no doubt that a serious clash did take place and about this two reports were made at police station. Puram-ufti at 7 P. M. and 7-15 P. M. on 20th July. The first of these reports No. 19 was made at 7 P. M. by Iqbal Ahmad appellant by a letter Ex. D-1. In this report, Iqbal Ahmad mentions the panchayat without saying anything about the time and goes on to say that on his return from Mehgaon after the panchayat he found Qabul Ahmad's men lying in ambush for him but he was able to make good his escape. He put the time of occurrence in his report as 5 P. M., referring presumably to what happened an our after of the attempted ambush when he says that Qabul Ahmad and Mohammad Azim with 80 men of different villages surrounded his house. Mohammad Azim and Qabul Ahmad alias Kabban he says fired gun shots, while the others threw brickbats in reply to which Iqbal Ahmad -himself fired a shot from a window. His assailants, however, dispersed when villagers and persons attending the bi-weekly market came on the scene. The report goes on to say:

Azim, Qabul Ahmad and Ahmaduddin went into the house of Qabul Ahmad and the rioters who were outside ran towards the south along the railway line. The village people chased them to a long distance. Some of the people who were dispersing have got injuries caused by brickbats.

5. I quote this last passage word for word because it is an interesting corroboration of the prosecution story in the present case. It indicates that it was the party of Qabul Ahmad alias Kabban which was defeated in. this affair and suggests the probability that the members of that party were not really the aggressors. In the report No. 20 made at 7-15 P. M. by Qabul Ahmad there is a mention of the panchayat and how after the panchayat was finished Qabul Ahmad went to the house of Mohammad Azim, while Iqbal Ahmad returned to Syed Sarawan on a bicycle. The report continues:

Iqbal Ahmad is a very influential man. As soon as he reached his house, he along with about 300 persons and a gun raided my house and caused injuries to my servants with the gun and broke my articles. It is not known what articles they have carried away. They inflicted serious injuries to one servant with lathis. He ran away. It is not known where he is lying. As I was not present at the house, my wife sent a barber woman to me at Mehgaon to inform me. Hence I, through fear of the accused, did not go to the village. I have come to the police station direct along with Mohammad Azim and I make this report.

6. The report was actually made in writing. Investigation of the two cross-complaints was taken in hand and both cases were prosecuted to Court. The complainants of the present case were discharged and a revision application against that discharge was dismissed. The accused of the present case were also discharged but the order of discharge was set aside by the Additional District Magistrate, and 29 persons were in due course committed to the Sessions of whom 12 were acquitted, one died and 16 have been convicted as mentioned earlier. The question in this appeal is whether the Court below has taken a correct view of the facts of the occurrence or occurrences which took place at Syed Sarawan or near it on the afternoon of 20th July.

7. The prosecution story really divided up itself into four incidents, in respect of all of which the members of the unlawful assembly collected by Iqbal Ahmad at his house in Syed Sarawan have been held, to be responsible. The first incident relates to one Parmeshwar Din alias Chhotku, one of the servants of Qabul Ahmad. It is the prosecution case that he was sent to the bazaar to make some purchases and while so doing he was pursued by the members of the unlawful assembly but was able to escape and take refuge in a house in the bazaar. The house of Qabul Ahmad is situated to the north of that of Iqbal Ahmad and in order to reach the bazaar which is separated from this part of the village by a tank it is necessary to go southwards along the lane passing Iqbal Ahmad's house and many other houses as far as the railway line which passes to the south. Thence it is necessary to go to the east and then turn back to the north into the bazaar. It is said that Parmeshwar Din safely passed the house of Iqbal Ahmad where he saw a crowd collected but that while he was going along the line towards the east, he saw a number of other supporters of Iqbal Ahmad coming along and passed them when one of them made some sort of remark by way of challenge. Thereafter a number of them pursued him into the bazaar threatening to beat him. The evidence in respect of this occurrence consists of the statements of Parmeshwar Din alias Chhotku, Mohammad Azim and Khalil Uddin read with the statement of Mt. Masihunnissa, wife of Qabul Ahmad, who sent Chhotku to the bazaar at about 1.30 P. M. There is a certain amount of doubt about the exact time when Chhotku was sent but it is obviously to be expected that there should be some discrepancies on such a point when the evidence is given two years after the events took place. The incident hardly seems to be one which would be invented if it was not true and I can see no reason for rejecting the conclusions of the learned Additional Sessions Judge that the story of this occurrence is true and that by 1 O'clock Iqbal Ahmad had returned from Mehgaon and had a large number of persons collected at his house, while others were still arriving. The fact that Chhotku was able to pass Iqbal Ahmad's house safely when going out is no proof that the story is not true.

8. We come next to the second incident of the four which go to make up the transaction which is the subject of this case. This incident is really the most important incident of the whole case and upon the view taken of this incident the whole decision of the case has rested and, as I think, rightly. According to the prosecution, information reached the house of Qabul Ahmad that Chhotku had been pursued and beaten in the bazaar. There is a slight discrepancy in the evidence as to how this information was received. Most of the witnesses say that it was given by one man, while one witness says that it was given by two. One of the servants at the house of Qabul Ahmad when this news was received was Ishar Din alias Barku who is the own brother of Parmeshwar Din alias Chhotku. This man with six others, Chhedi, Rahman, Tahawwar, Buddhu, Syed Uddin and Parson started out to go to the bazaar to make inquiries about what had happened to Parmeshwar Din. To reach the bazaar, they had to pass the house of Iqbal Ahmad and as they approached the house from the north it is said that they saw Iqbal Ahmad pushing the barrel of his gun outside a window in the upper storey whereupon they naturally decided to go back to Qabul Ahmad's house. They had scarcely turned round when Iqbal Ahmad fired a shot with the result that Barku received a large number of pellets in his back and left shoulder. Two others also received a pellet each, namely, Rahman and Buddhu. The local inspection immediately after the occurrence showed that there were also marks of shots on the wall of the house of one Ali Amir which is to the north of Iqbal Ahmad's house but on the opposite side of the lane.

9. The prosecution evidence as to these shot marks is corroborated by the evidence of the defence witnesses and those witnesses also confirmed the prosecution case that there were no shot marks anywhere on the house of Iqbal Ahmad. It is the defence case that this second occurrence took place in quite a different manner. It is said that Qabul Ahmad and Mohammad Azim, both armed with guns and accompanied by a large number of supporters, came to attack the house of Iqbal Ahmad and both of them fired shots when they approached the house, while some of their supporters climbed on to a dilapidated house on the north side of Iqbal Ahmad's house from which access could be obtained to Iqbal Ahmad's house. The most important distinction between the prosecution case and the defence case is that whereas there is no room for doubt that Iqbal Ahmad did fire a shot and did succeed in wounding Barku and in leaving shot marks on the house of Ali Amir in such a position as corroborates the prosecution story, there is no proof whatever, apart from oral evidence, that Qabul Ahmad and Mohammad Azim had fired shots. It seems impossible to suppose that those persons, if they fired any shots at all, would have fired them in the air or would have been unable to hit the house of Iqbal Ahmad at which, according to the defence evidence, they aimed their shots.

10. It is absolutely clear that no shot marks were caused on the house of Iqbal Ahmad and it is a reasonable inference that the defence story that shots were fired by Qabul Ahmad and Mohd. Azim is not a true story. In these circumstances, there seems to be no reason to reject the view of the learned Additional Sessions Judge that the prosecution story is substantially correct and that Iqbal Ahmad actually fired this shot in pursuance of the common object with which he had collected a crowd of men at his house, namely of causing hurt to the servants of Qabul Ahmad. I have been taken through the whole of the evidence in regard to this occurrence and although doubtless there are discrepancies and petty contradictions, these are only what is to be expected when evidence is being given of an occurrence which has taken place more than two years prior to the giving of evidence. My attention has been drawn to the fact that there are no marks of blood on the shirt or waistcoat worn by Barku, whereas Mt. Masihunnisa says that one of the servants who came running back was bleeding. But I note that Barku had one shot wound on the pinna of his left ear and even if there was no bleeding from the pellet wounds on his body, blood from his ear would not necessarily have fallen on the waistcoat or shirt. Stress has been laid on the fact that Buddhu and Rahman who are also proved to have received one pellet wound each were not produced, but I cannot attach any importance to this fact. It seems to me that the truth or falsehood of the prosecution story and the defence story is in the main to be judged by this second incident and that in regard to this incident it is impossible to doubt that the prosecution story is substantially true and the defence story is completely false. We come now to the third incident. It is said that soon after the servants of Qabul Ahmad turned back and returned to the house of Qabul Ahmad, Iqbal Ahmad carrying a gun and accompanied by Afzal Ahmad, Laiq Ahmad and 150 or 200 men followed them to the house of Qabul Ahmad which they entered and where they damaged and broke a number of miscellaneous articles, some of which they threw into the neighbouring tank. Meanwhile the servants who had taken refuge in the house slipped out of the back door or window on the west side, the main entrance of the house being from the north. Learned Counsel has pointed out that Azim who visited the house on the following day saw nothing broken and Wakil Ahmad who was examined two years later was not able to remember having seen anything broken. But, on the other hand, the Sub-Inspector who inspected the locality on the 21st with an observant eye noticed that articles were broken.

11. Stress has also been laid on the fact that there is some discrepancy in the statements of witnesses as to the interval between incident No. 2 and incident No. 3. Witnesses looking back on such incidents after a long interval would be likely to forget that any time had elapsed between them. Stress has also been laid on the fact that none of the seven servants of Qabul Ahmad were caught inside the house by Iqbal Ahmad and his followers and it is suggested that this is not a probable story. On the other hand, it can scarcely be doubted that Iqbal Ahmad and his men would have made plenty of noise and if they approached with shouts of 'maro maro' and the like, those servants of Qabul Ahmad would, I should suppose, have had time to make good their escape. I see no reason on the evidence on the record to doubt that the story of the prosecution witnesses in regard to this third incident is substatially true. We come now to the fourth incident. It is the prosecution ease that the servants of Qabul Ahmad, who left his house by the back door, went southwards along the west side of the village but were at a later stage noticed and pursued. They passed a village Kundapur in the direction of a hamlet known as Chilla Shahbari where they were caught up by their pursuers. Some of them were beaten on the spot, while others escaped. This story tallies exactly with the story told in Iqbal Ahmad's own report where he says: .the rioters who were outside ran towards the south along the railway line. The village people chased them to a long distance. Some of the people who were dispersing have got injuries caused by brickbats.

12. The evidence in regard to this fourth incident consists of the statements of those servants who were thus pursued, namely, Barku, Chhedi, and Syed Uddin, and other-persons, Mohammad Uddin alias Phullu, Ram Sarup, Earn Bharose, Mahadeo and Misbaul Haq, of whom Ram Sarup, Ram Bharose and Mahadeo were all eye-witnesses to the actual beating of four of the Qabul Ahmad's men at Chilla Shahbari. Learned Counsel has been able to point to some discrepancies about the distance of Chilla Shahbari from Syed Sarawan and some possible discrepancies about the actual beating, which took place near a grove. The actual beating, it seems, took place in a paddy field, but Barku says that he hid in a grove and it is clear from a number of references that there is a grove in Chilla Shahbari quite close to the scene of the beating. Chilla Shahbari appears to be about a mile or a little less from Syed Sarawan and in a state of excitement at these occurrences it is not unlikely that villagers would follow the pursuit of Qabul Ahmad's men. There is also evidence that this pursuit was instigated by Iqbal Ahmad and others who had returned from Qabul Ahmad's house and again taken up a position on the upper storey of Iqbal Ahmad's house. I can see no reason, bearing in mind the support afforded by the defence report itself, to doubt the substantial truth of the prosecution story of: this pursuit and beating of Qabul Ahmad's men at Chilla Shahbari.

13. Learned Counsel sought to throw doubt on the prosecution story by referring to the fact that on 3rd August 1939 an application was made against the Sub-Inspector on behalf of the appellants. I do not think that such an application indicates anything beyond this that by that date the appellants had begun to see that the general tendency of the investigation was unfavourable to them. It may well be that it was as a result of this application that the Sub-Inspector prosecuted both cases to Court instead of prosecuting only one. Learned Counsel has also in the same connexion suggested that there was some delay in the submission to headquarters of the special diaries of the investigation. The evidence on this point is not satisfactory. The diary of 20th July purports to have been closed at 11-30 P. M. on that date and in theory it should have been sent off to headquarters on 21st July by post and should have been received in Allahabad on the 22nd. It is true that that diary bears the stamp of the office of the Superintendent of Police of the 26th, but the defence evidence itself proves that that diary was received in the office of the Circle Officer of the Duaba, that is the police circles situated in the Ganges-Jumna Duab, on the 25th. It was brought to my notice on a former occasion with reference to Allahabad itself that special diaries go first to the office of the Superintendent of Police himself and from him to the Circle Officer, who would ordinarily be either the Assistant Superintendent of Police or the Deputy Superintendent of Police. It would seem therefore that this diary must have been received in the office of the Superintendent of Police somewhere about the 24th. Bearing in mind the uncertainty of postal arrangements in the rural areas, it does not seem to me to be established that there was any delay in the submission of the special diaries in this case.

14. Taking all the above facts into consideration, I am satisfied that the findings of the learned Additional Sessions Judge in regard to these occurrences at Syed Sarawan on 20th July are correct. Learned Counsel for the appellants in supporting the appeals of four persons, Gharib Das, Mahadeo, Dhani Pasi and Munir, has put forward the contention that these persons should not have been convicted because although there is evidence of their presence in the crowd of persons evidently collected by Iqbal Ahmad, the evidence that they took part in the fourth incident which is the only incident about which there is evidence of individual participation is somewhat weak. The point sounds plausible at first sight but once it is established by evidence that these persons were members of an unlawful assembly, that is to say, that they were among the crowd of persons collected by Iqbal Ahmad at his house, which crowd (or members of it) took part in the pursuit of Chhotku, in the firing at Barku and others, in the attack on the house of Iqbal Ahmad and in the pursuit of the seven servants of Qabul Ahmad who escaped, I think it is not necessary to establish precisely what part each of these persons took in all or any of these incidents. Mr. David for the Crown has referred to the case in Emperor v. Sheo Dayal : AIR1933All535 , in which it was held by a Bench of this Court that Section 142, Penal Code, shows that it is sufficient for the offence of riot to he proved against an individual that that individual should remain in an unlawful assembly as soon as he is aware that the assembly is unlawful. The learned Judges said in that case that the word 'continues' in the section merely meant physical presence as a member of the unlawful assembly, that is to be physically present in the crowd. They held that in the particular case (riot in Cawnpore) there could be no doubt that anybody who was present in the crowd was at once aware that the crowd constituted an unlawful assembly and that the crowd were committing the offence of murder, arson and looting. Similarly, in the present case, there could be no doubt in the mind of any member of the crowd collected by Iqbal Ahmad that he was present there for the purpose of causing hurt to members of Qabul Ahmad's party. It follows that their mere presence in the riotous crowd of supporters of Iqbal Ahmad who committed these various acts is sufficient to support conviction of the appellants. In my opinion, all the appellants have been rightly convicted of offences under Sections 324, 325, 452 and 426, Penal Code.

15. Learned Counsel has asked me to consider favourably the question of sentences and, on the whole, it does seem to me that despite the fact that a shot was fired, the standard of sentences applied in the present case is rather severe. There is no doubt less reason for showing consideration to Iqbal Ahmad than there is for showing it to the rest of the appellants, and it cannot be disputed that the offence committed by Iqbal Ahmad in firing a gun at a comparatively short range at Barku is a serious offence. I would accordingly dismiss the appeal of Iqbal Ahmad against his conviction under Section 324, Penal Code, outright and there is no reason to interfere with the substantive sentences inflicted on others under this section as the sentences run concurrently except in the cases of Afzal Ahmad and Laiq Ahmad whose substantive sentences under this section are reduced to two years' rigorous imprisonment each. Iqbal Ahmad is clearly the person mainly responsible for the offences under Sections 325 and 452, but I think that a sentence of three years' rigorous imprisonment under each of these sections will be sufficient to meet the ends of justice. In the case of the other appellants, I reduce the sentences inflicted under Sections 325 and 452 to two years' rigorous imprisonment each.

16. Turning now to the question of fines, I am not prepared to interfere with the fines inflicted in the case of Iqbal Ahmad, appellant. In the case of other appellants, I reduce the fines to Rs. 25 each under each of the two Sections 325 and 452, Penal Code, with two months' further rigorous imprisonment in default of payment of either fine. Subject to the above modifications of sentences, this appeal fails and is dismissed. The appellants, Iqbal Ahmad, Afzal Ahmad and Laiq Ahmad are on bail. They shall surrender to their bail without delay to undergo the un-expired portion of their sentences. Before I leave this case, it is necessary to make some remarks about certain mistakes made by the learned Additional Sessions Judge in the admission of copies of statements made by certain witnesses to the police under Section 162, Criminal P. C. Section 162, Criminal P. C., provides that:

When any witness is called for the prosecution in such inquiry or trial whose statement has been reduced into writing as aforesaid (that is, as described in para. 1), the Court shall, on the request of the accused, refer to such writing and direct that the accused be furnished with a copy thereof, in order that any part of such statement, if duly proved, may be used to contradict such witness in the manner provided by Section 145, Evidence Act, 1872.

17. In a very large number of cases recently I have found that Sessions Judges do not apparently understand or at any rate do not adopt the proper procedure for the admission and proof of statements made by witnesses to the police in the course of an investigation. In the present case the learned Additional Sessions Judge allowed the statement of Mt. Masihunnisa, p. W. 5 to be proved by Sub-Inspector, Bijai Bahadur Singh P. W. 2 (and brought on the record) before this lady had been examined as a witness at all. Strictly speaking, there is no room for proof of a presumably contradictory statement of a witness before that witness has been called and has made a statement which it is necessary to contradict by proof of a statement made to the investigating officer. What renders the proof of this document and its admission to the record even more improper and renders it even more impossible for me to take into consideration at all, is, the fact that when Mt. Masihunnisa was examined as a witness no portion of her statement to the Sub-Inspector was ever put to her at all, from which it is to be assumed that the defence did not desire to contradict any statement of the witness by showing that she had oil a previous occasion made a different statement. In any case, a Court should not take any notice of a previous statement made by a witness which is in contradiction of the statement which he or she makes before that Court unless the previous statement alleged to be contradictory is put to the witness for admission or denial and he or she is given an opportunity of offering an explanation of how it is that on a previous occasion he or she made this contradictory statement. It may well be that statements apparently contradictory are reconcilable and the witness must be given an opportunity to reconcile them if such reconciliation is possible.

18. In the case of a whole series of witnesses, Wakil Ahmad, Mohammad Azim, Ishwar Din, Parmeshwar Din, Syed Uddin, Chhedi and Buddu, copies of their statements made in the course of investigation were allowed to be proved by the investigating officer, Sub-Inspector Kabir Ahmad, as Exs. D-8 to D-14, although an examination of the record shows that not a single one of these witnesses was cross-examined in regard to any portion of those statements with a view thereby to contradicting any statements made by them in the course of examination or cross-examination. In these circumstances, none of these statements can be looked into and it was the duty of the learned Additional Sessions Judge not to permit the Sub-Inspector to prove the record of these statements. The learned Additional Sessions Judge will do well to consider the wording of Section 145, Evidence Act. That section provides:

A witness may be cross-examined as to previous statements made by him in writing or reduced into writing, and relevant to matters in question, without such writing being shown to him, or being proved ; but, if it is intended to contradict him by the writing his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him.

19. This section clearly indicates the correct procedure. It is not sufficient to ask a witness whether he did or did not make a certain statement to the Sub-Inspector unless the witness in answer to that question admits that he made such a statement. In that lease if the statement is contradictory of something else which the witness had said, it is the duty of the cross-examiner to give the witness an opportunity of reconciling his statement. But if the cross-examiner does not do so, the counsel for the prosecution may, on re-examination, give that opportunity or the Court itself should do so. If the witness denies having made such a statement the defence cannot make any use of the statement which he is alleged to have made unless they take steps to bring the former statement on to the record. In that case the actual words recorded in the former writing (in this case the special diary) must be put to the witness if only to make him fully aware of the fact that those words are on record and that it is open to the side which is cross-examining him to have those words proved.

20. In the light of the provisions of Section 145, it is not open to the defence to prove any statements recorded by a Sub-Inspector in order to contradict the witnesses who made them unless the defence has first called the attention of the witnesses to those parts of their statements which are to be used for the purpose of contradicting them. The proper procedure in the light of these provisions is first of all, when counsel asks for them, to furnish to the defence copies of the statements made by the witnesses to the investigating officer. In many cases this will have been done in the Court of the inquiring Magistrate, if then a defence counsel wishes to make use of those statements in cross-examination, he should ordinarily, when he gets a reply which he thinks is inconsistent with a statement made by the witness in the course of investigation ask the witness whether he made such and such statement. If the witness admits having made that statement, the most convenient method for the Court is to include the actual words found in the diary as part of the admission which has to be recorded. If the witness denies having made such a statement, the actual words which are to be subsequently proved must be shown to the witness and the passage which will ultimately have to be proved should be marked and given a number. When in due course the Sub-Inspector is called as a witness, he may be asked to refer to his diary, compare the statement recorded there with the copy and prove that the statement which has been put to the witness was made by that witness in the course of the investigation. If this procedure is not followed, contradictory statements in a diary cannot be referred to in argument by counsel or relied upon by a Court.

21. I notice that a similar difficulty seems to be felt in dealing with contradictory statements made by a witness before the inquiring Magistrate. Properly speaking, the provisions of Section 145, Evidence Act, are just as applicable in the case of such statements as in the case of statements made to the investigating officer and here also the actual statement made by the witness in the Court below which is sought to be used in contradiction of the statement made in the sessions Court must be put to the witness. I do not however think it is necessary to call witnesses to prove such statements in the same way as it is necessary to call the Sub-Inspector. The whole statement of the witness can be treated as evidence under the provisions of Section 288, Criminal P. C., but the Judge should record a note to that effect and the whole statement should, in my opinion, be read over to the witness. A little trouble taken by Sessions Judges in dealing with statements of this kind and seeing that they are properly proved will save a great deal of waste of time in argument in this Court.


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