1. The petitioner, Gouranga Mohapatra, has been convicted under Section 326, I. P. C. and sentenced to undergo rigorous imprisonment of six months and to pay a fine of Rs. 100/- in default, to undergo rigorous imprisonment of three months more.
2. The case against the petitioner was that he, was an employee in the M. & S. M. colliery at Talcher and that he bore a grudge against P. W. 1, Mr. N.K. Bhattacharya, the Assistant Manager of the colliery, as the latter refused to recommend him for promotion to the post of Munshi. It is said that on 20-11-49, at about 7-30 A.M. Mr. Bhattacharya (P. W. 1) was going round the colliery, as usual, and went to the Token Office in the course of his daily supervision work. It is said that at that time, the petitioner appeared with a pick-axe and gave him a violent stroke, on his left buttocks, resulting in a grievous injury.
3. The plea of the accused was that the whole prosecution case was foisted against him owing to differences between him and P. W. 1 and that he took no part at all in the assault against P. W. 1.
4. The prosecution examined sixteen witnesses in support of the complainant's version. The trying Magistrate accepted their version and found the petitioner guilty of the offence with which he was charged and sentenced him as above, on appeal, the learned Sessions Judge substantially agreed with the view taken by the trying Magistrate, of the evidence, and affirmed the conviction as well as the sentence. The petitioner came to this Court in revision, but at the time of admission the Court directed issue of notice calling upon the petitioner to show cause why the sentence passed by the trying Magistrate should not be enhanced. Learned counsel appearing for the petitioner has taken us through the evidence in great detail and has argued the case for the petitioner at great length.
5. Admittedly, the petitioner was having some grievance against the Assistant Manager (P. W. 1) on account of the fact that the latter refused to recommend him for the post of Munshi to which he was aspiring. It appears from Ext.-b, that P. W. 1 reported against the petitioner, complaining that he never did his work satisfactorily, that he had no knowledge of English, and that he never worked as a trolley-man. It was further pointed out therein that the petitioner was an agitator and that he used to figure as a witness for the Colliery Labour Union, This report was made to the Manager on 18-9-1949, about two months before the occurrence took place. According to the prosecution, when P. W. 1 was at a corner in front of the Token Office the petitioner assaulted him from behind with a pick-axe and struck him on his left buttock. P. W. 1 immediately turned round and saw that the petitioner had receded a few steps, holding a miner's pick, which has been exhibited as M. O. I.
It also appears that the petitioner while going away, was muttering to himself: 'oh, Oh'. P. W. 1 who turned round questioned him why he struck him, but the petitioner did not reply. He then called P. W. 4, Rama Sahoo Who was then standing at a distance of about 39 feet from the place of occurrence and asked him to see what happened, P. W. 4 immediately came running to the spot and noticed that blood was coming out of the site of the wound, inflicted on P. W. 1. Thereafter, P. W. 4, together with P. W. 6, Surendra Narayan Sinha, overman of the Colliery, carried P. W. 1 to the hospital where P. W. 13 treated him. A report was sent to the police (Ext. 4) and in due course the petitioner was charge-sheeted. On the advice of the local doctor, P. W. 1 left for Calcutta on the very same day, for treatment in the Kar Medical College Hospital, and was treated there by P. Ws. 15 and 16 till he was discharged on 20-12-49.
The direct eye-witnesses to the occurrence are P. W. 2 (Bauribandhu Padhan) and P. W. 3 (Rabi Sahu). They both speak to having witnessed the occurrence. P. W. 2 was at a distance of about35 feet near the railway line and saw the petitioner giving a blow with the pick-axe. He corroborates P. W. 1 in all the details as to how the assault took place. P. W. 3 was similarly standing very close to the spot and witnessed the Occurrence from a distance of 20 feet. He also corroborates P. W. 1 regarding the manner in which the assault was made.
6. Learned counsel for the petitioner complains that the statement of P. W. 3 under Section 162, Cr. p. c. was not recorded by the Investigating Officer in full and therefore his evidence should be ruled out from the case. The Investigating Officer examined P. W. 3, but merely, recorded in his diary that this witness fully corroborated the statement of p. W. 2 (Bauribandhu).
We were referred to the case reported in --'Baliram Tikaram v. Emperor', AIR 1945 Nag 1 (A), in support of the contention that in such a case the evidence of a witness whose statement, has not been fully recorded, under Section 162, should be left out of consideration. That was a case in which the police records had been destroyed and there was no evidence at all of any investigation or examination. But I am not prepared to accede to the contention that in all cases where a police Officer merely makes a record of his opinion of a witness examined by him under Section 132, without recording the statement in full, the evidence given by that witness at the trial should be altogether ignored, it is possible that in many cases the police Officer may have had no time to record the statements of a witness in extenso, but that by itself is no reason for ruling out the evidence of that witness. I am of course aware that there may be cases in which a Police Officer may deliberately refrain from recording statements if he is not quite sure of the material that he gets during investigation. But this is not a case of that kind, and we have not been shown any authority which goes to the extent of laying down that the evidence of a witness given at the trial should be altogether ruled out of consideration, merely because of insdequate recording of his statement under Section 162.
On the other side of the line there is a decision of the Madras High Court reported in -- 'In re, B. subbar Reddi', AIR 1948 Mad 23 (B), where it was held by a Division Bench of that Court, that the new provision introduced by Section 161(3) does not justify the view that the evidence of the witness should be altogether rejected. That provision was introduced only to stop the mischief of certain investigating officers, who prepared their Case Diary in such a way that no assistance could be obtained either by the Court or the accused from the record. In this case, however, we are satisfied that the record is not open to any such objection, so as to give room for thinking that it would vitiate the trial.
7.-9. (His Lordship then referred to the evidence adduced by the parties and proceeded as follows:) We do not see any reason to differ from the view taken by the Court below about the reliability of the prosecution witnesses and are satisfied that the offence, with which the petitioner has been charged, has been brought home to him to the hilt. WP are also satisfied that there is no reason whatever to suspect the bona fides of P. W. 1 so as to incline us to believe that the case has been fabricated against the accused on account of alleged ill-feeling between him and P. W. 1. We would accordingly confirm the conviction of the petitioner under Section 326, I. P. C. as the injury has been proved to be grievous and was caused by a deadly weapon.
10. Regarding the sentence to be awarded in this case we are definitely of opinion that a sentence of six months' rigorous imprisonment is far too inadequate in the circumstances of the case. When this petition came up for admission, the Court issued notice of enhancement of sentence. It was a dastardly attack made on the Assistant Manager, by a labourer who happened to be an active member of the Labour Union, the reason for the attack being that he did not get the post he wanted. Unless such acts are put down no colliery can work, particularly as such attacks may too often be made in the pits when absolutely no evidence will be available. We therefore think that a deterrent sentence is called for and we would accordingly enhance the sentence to one and a half year's rigorous imprisonment. But we do not think there is any justification for imposing a fine in addition to the sentence of imprisonment as the petitioner is said to be a poor man. Subject to these modifications in the sentence the revision is dismissed.
11. I agree with the order proposed by my learned brother but wish to say a few words regarding non-compliance with, the provisions of Sub-section (3) of Section 161, Cr. P. C.
12. It appears from the evidence of the Sub Inspector of Police (P. W. 14) that during Police investigation he questioned the two principal eyewitnesses, namely Bauribandhu (P. W. 2) and Rabi Sahu (P. W. 3). He recorded the statement of Bauribandhu fully, but failed to record the statement of Rabi Sahu and merely made a note in the diary to the effect that he 'fully corroborated' the statement of Bauribandhu. Mr. Misra, learned counsel for the petitioner, argued that a record of this type contravenes the express provisions of Sub-section (3) of Section 161, Cr. P. C. as inserted by the amendment made in 1945, and that, consequently, the entire evidence in Court of Rabi Sahu (P. W. 3) should be ignored inasmuch as the petitioner was denied an opportunity to cross-examine this witness, with special reference to his statement made before the Police, as permitted by Section 162, Cr. P. C.
13. I ana however not satisfied that any material prejudice has been caused to the petitionerin his cross-examination of P. W. 3. Though theactual statement made by P. W. 3 before the Investigating Officer was not in the Case diary, thepetitioner had before him the statement of Bauribandhu Padhan (P. W. 2) made before the policeand he was also aware of the fact that, according to the police diary, Rabi Sahu (P. W. 3) fullycorroborated Bauribandhu Padhan (P. W. 2). Hewas therefore entitled to assume that the statement of Rabi Sahu before the Police was identicalwith that of Bauribandhu, and, on that assumption, to cross-examine Rabi Sahu as well and tocontradict him by his previous statement beforethe Police. There can thus be no question of anyprejudice to the petitioner in cross-examiningRabi Sahu for the purpose of eliciting contradictions if any as permitted by Section 162, Cr. p. c. Thecross-examination of Bauribandhu and Rabi Sahushows that practically no questions were put tothem as regards their previous statements to thePolice, during investigation, with a view to bringout any contradictions. Consequently no prejudicehas been caused to the petitioner by the failureof the Police to record their statements separately, as required by Sub-section (3) 'of Section 161, Cr. P. C. Itis at best a mere irregularity, as pointed out bymy learned brother, which is clearly curable under Section 537, Cr. P. C.