1. Abdul Aziz, Chand Khan, Ghafur Khan, Yusuf, Wahid, Tahsin, Mustafa Khan and Shibdad Khan were charged before the Sessions Judge of Bulandshahr, the first six under Section 302, I.P.C. and the last two under Section 302 read with Section 109, I.P.C. The first six accused were found guilty of murder, and condemned to death by the learned Sessions Judge. The last two, Mustafa Khan and Shibdad Khan, were acquitted. Those condemned to death have appealed to this Court. They have been represented here by Mr. O'Neill; he has addressed to us an able argument and has said everything for his clients which could possibly be said.
2. On the morning of 9th September 1930 between the hours of 9 and 10, Mahmud Ali Khan, a man aged 60 years, was assaulted, severely beaten, and subsequently died. The case for the prosecution is that in the month of May 1900 a dacoity had taken place in a village called Mirpur. On 6th September Raza Ahmad, a police officer, was making investigation in the neighbouring village of Lohagara concerning this dacoity. A meeting of the villagers was called by the policeman and questions were put. Mustafa Khan denied that either he, or his brother, Yusuf Khan, one of the appellants or their partisans had taken part in the dacoity. But Mahmud Ali Khan, deceased, had stated publicly at this panchayat that certain of the people of Lohagara had taken part in the dacoity. Subsequently the Sub-Inspector took Mahmud Ali Khan aside and obtained a statement from him that Ghafur and Wahid, two of the appellants had certainly taken part in the dacoity along with some others The relationship between the deceased and Mustafa Khan and Yusuf Khan had clearly been strained in the past. Both sides had made accusations-against each other in reports to the police. It is suggested by the prosecution that this act of Mahmud Ali Khan made the party of Yusuf and Mustafa Khan make* up their minds to take action against Mahmud Ali Khan, and that that action took the form of murdering him. The learned Sessions Judge has found in his-judgment that there was no enmity between these two parties; but we are satisfied, on the evidence on the record that there clearly was enmity between the two, and we think it highly probable that the fact that Mahmud Ali Khan had given information to the police implicating certain of the accused had become known to the accused. In any event, there is the positive evidence of Mahomed Illyas that the party of the accused took the action of Mahmud Ali in this matter very ill. At any rate the one fact that is uncontested is that three days after this information was given to the police Mahmud Ali Khan was beaten and killed by some one. The evidence concerning the information to the police is contained mainly in the police diary. The Sub-Inspector who made the entries in the diary, which are Exs. H and J on the record was murdered a few days later. Mr. O'Neill, on behalf of the accused appellants objects that the evidence of the police diary is inadmissible in evidence, and he relies upon Section 162,. Criminal P.C. That section reads as, follows:
No statement made by any person to a police officer in the course of an investigation under this chapter shall, if reduced to writing, be signed by the person making it; nor shall any such statement or any record thereof, whether in a police diary or otherwise, or any part of such statement or record, be used for any purpose (save as hereinafter provided) at any inquiry or trial in respect of any offence under investigation at the time when such statement was made.
3. He lays stress upon the words in the section, 'nor shall any such statement or any record thereof be used for any purpose.' We are clearly of opinion that Section 162 does not apply in this case, The words after be used for any purpose' are at any inquiry or trial in respect of any offence under investigation at the time when such statement was made. Now it is obvious that this inquiry or trial, in which it is sought to use these records as evidence, was not under investigation at the time when these statements were made. In the Mirpurdacoity case if indeed that matter had ever come to urial, it is clear these statements would have been inadmissible. But when this trial or inquiry had never even been thought of Mahmud Ali Khan at that time never having been murdered-it is, in our opinion, perfectly clear that this section does not apply. When we look at the previous Section 162, Criminal P.C. (Act 5 of 1898), our present opinion is confirmed in the strongest possible manner. The section originally stood as follows:
No statement made by any person to a police officer in the course of an investigation under this chapter shall, if taken down in writing, be signed by the person making it; nor shall such writing be used as evidence.
4. As the section originally stood, it was open to be argued that such statement could not be admitted as evidence at any time or in any trial. The words 'be used as evidence' have deliberately been omitted from the present Section 162, and the words recorded above have been substituted. The view that we take of the effect of the present Section 162 has also been taken by the High Court of Rangoon in U. Htin Gyaw v. King-Emperor A.I.R. 1927 Rang. 113. Section 162 therefore not prohibiting the use of this evidence we must fall back upon Section 32(2), Evidence Act, which in our opinion, makes these statements admissible in evidence, in this case. We think these statements come under the words:
When the statement was made by such person in the ordinary course of business, and in particular when it consists of any entry or memorandum made by him in books kept in the ordinary course of business, or in the discharge of professional duty.
5. There can, in our opinion, be no doubt that the Sub-Inspector, who is now dead, made these entries in the discharge of his professional duties.
6. We are of the opinion that the prosecution has proved strong motive for the accused to commit this crime, and that the evidence called for the Crown does establish the fact that these appellants did commit the murder. (After fully discussing the evidence, the judgment proceeded.) We are satisfied therefore beyond doubt that the learned Sessions Judge came to a proper and correct conclusion when he found the six appellants guilty of the offence with which they were charged. It is also worthy of note that there were six assessors in this case, two of them being Mahomedans and four of them Hindus, and they were unanimous a very unusual thing in the murder case- in their opinion as to the guilt of the accused. The evidence called for the defence is of a negligible character and cannot influence our decision.
7. As to the sentence, the learned Sessions Judge has condemned all of the accused to death. We have anxiously considered whether it is possible to differentiate the case on the merits of any of these accused from any of the others, in order that we might pass the lesser sentence of transportation for life. On the merits we are unable to do this. Each and every one of them was engaged in a cowardly attack upon an old man. Each and every one had the common purpose, in our opinion, of murdering the old man, and each and every one contributed to that end. If the matter were left there, we would not seek to alter the sentence. We however notice that Chand Khan is 17 years of age, and on that ground we are prepared to alter the sentence in his case to one of transportation for life. We also notice that Abdul Aziz is 22 years of age, Ghafur Khan is 23, Wahid is 21 and Tahsin 22, whereas Yusuf, who, all the witnesses agree, attacked the accused with a knife, and was undoubtedly a leader of the party, is aged 40 years. While we do not feel that we should reduce the sentence of death in the case of Abdul Aziz, Ghafur Khan, Wahid and Tahsin we direct that the record in this case and our judgment be placed before the Local Government for consideration as to whether, in view of the age of these four accused, and the possibility that they were under the influence of the very much older man Yusuf, clemency ought to be exercised, and the sentence in these, cases too, reduced to one of transportation for life. The result is that we confirm the conviction of all the accused. We confirm the sentence of death passed upon Yusuf, Abdul Aziz, Ghafur Khan, Wahid and Tahsin, and direct that sentence be carried out in due process of law after the matter has been laid before the Local Government. With regard to Ghand Khan, we confirm the conviction, but alter his sentence from that of death to one of transportation for life.