1. Accused Mohan and Gajanan residents of Kasrawad were prosecuted before the Sub-Divisional Magistrate, Mandleshwar for offences under Sections 325/109, 342 and under Sections 325, 342, I.P.C., respectively who found them guilty for these offences and sentenced both the accused to six months' rigorous imprisonment and a fine of Rs. 200/- each under Section 342, I.P.C. and sentenced accused No. 1 under Section 325/109, I.P.C. to twelve month's rigorous imprisonment and a fine of Rs. 200/- and accused No. 2 under Section 325/109 to eighteen months' rigorous imprisonment and a fine of Rs. 200/-. The trial court ordered the sentences to run consecutively.
2. In the appeal conviction and sentences of both were maintained with a variation that substantive sentences of rigorous imprisonment instead of being made to run consecutively he directed them to run concurrently.
3. Prosecution case is that on 22-8-1951 at about 3-4 P. M. complainant shobaram was proceeding to his field when both the accused assaulted him and dragged him to Parsuram's Osari and tied him with a rope and beat him. This resulted in causing seven injuries to the complainant, one of which was fracture of the right radius. He was medically examined by Dr. Joshi according to whose opinion the injuries could be caused with hard and blunt substance except injury No, 3 which was an abrasion.
4. Prosecution case was sought to be proved through the statements of P. W. 2 Gajanand, P. W. 4 Sitaram, P. W. 5 Ganpat, P. W. 3 Bhola and P. W. 7 Dwarka.
5. It is contended by Mr. Chalekar on behalf of the accused that an application Ex. 30 was submitted on behalf of the accused for being supplied with copies of the statements in the Police diary of the reserved witnesses-principal amongst whom were Sitaram, Ganpat and Dwarka who were said to be the eye witnesses,
6. This was rejected on the same date on the ground that no application was made from before for enabling the Police to keep copies ready,
7. The trial court relied on the statements of Sitaram, Ganpat and Dwarka as will appear from the discussion contained in Paras 6, 11 and 12 of his judgment.
8. Before the Sessions Judge these copies were produced for the first time. The learned Sessions Judge held that this failure on the part of the prosecution to furnish the accused with copies of statements of reserved witnesses particularly of Sitaram, Ganpat and Dwarka was contrary to law but he held that he was not satisfied that the same has prejudiced the accused. He therefore dismissed the appeal.
9. Accused have now preferred this revision application and the only question is whether production of copies in the court of Session in appeal was justified and whether it was legitimate to hold that no prejudice is caused.
10. In this connection it is apt to refer to the decision of their Lordships of the Privy Council in - 'Pulukuri Kottaya v. Emperor' AIR 1947 PC 67 (A), where it is remarked:
The right given to an accused person by this Section is a very valuable one and often provides important material for cross-examination of the prosecution witnesses. However slender the material for cross-examination may seem to be, it is difficult to gauge its possible effect.
11. In this case the statements made to the Police of important prosecution witnesses including eye witnesses were denied to the accused on illegal grounds when the stage at which these statements were demanded was proper. It is impossible to gauge the possible effect of the material which thus becomes available to the accused in the shape of these prior statements of the witnesses for the purpose of cross-examination.
12. The production of the copies of these statements in appeal can hardly serve any useful and effective purpose. Even the learned Sessions Judge refers in his judgment to some difference in the statement in the case diary and that before the Court at least in the case of one witness P. W. 1 Shobharam but considers this to be slender.
13. It was frankly conceded by the Deputy Government Advocate that the accused will have to be taken to have been materially prejudiced on account of the irregularity committed at the trial.
14. Since it appears from the medical certificate that the complainant had received seven injuries including a fracture I feel that it, is necessary to order a retrial after quashing the present convictions.
15. I therefore set aside the convictions of both the accused and order their retrial.