U.L. Bhat, J.
1. The six accused persons in C.C. No. 522 of 1977 on the file of the Judicial Magistrate of the II Class, Alathur, who have been convicted under Sections 143, 447, 427 and 434, I.P.C. read with Sections 149 L. P.C. and sentenced to pay a fine of Rs. 25/- for each of the offences under Sections 143 and 447. I.P.C. and to pay a fine of Rs. 50/-for offence under Section 427 I. P. C, the conviction and sentence having been confirmed by the Chief Judicial Magistrate, Palghat, in Crl. A, No. 18 of 1978, are the revision petitioners herein. No separate sentence was imposed under Section 434. I.P.C.
2. The prosecution case may be summarised as follows: The de facto complainant (P. W. 1) is the owner in possession of properties comprised in R.S. No. 62 (A5) and (A6) and 64 (1) of Kan-nanoor village within the limits of Koyalmannam Panchayat, the same having been allotted to him under partition (Ext P. 1). A private cart-track belonging to P. W. 1 passes through this property. The cart-track adjoins the house and the appurtenant building touching threshing floor and a mango garden, tank, etc., be-longing to and in the possession of P.W. l and joins the National Highway. The 1st revision petitioner was then Executive Officer of the Koyaimannam Panchayat and the 2nd revision petitioner, then Bill Collector. The other revision petitioners are villagers. On 18-5-1977, all these persons came to the cart-track armed with deadly weapons and attempted to widen the cart-track and to remove the fences put up by and certain trees belonging to P. W. l. On the same day on three or four occasions P. W. 1 complained to the Koyalmannam police and on all occasions the police rushed to the scene and the miscreants withdrew. A case was registered as Crime No. 70 of 1977, as per Ext. P. 2 F.I.R. It was investigated by the S. I. of Police, D. W. 1, who reported it as false On 19-5-1977 P. W. 1 filed a suit O. S. No. 103 of 1977 before the High Court as per Ext. P3 plaint and obtained an order of injunction restraining the revision petitioners from entering the property etc. Copies of the order on the injunction petition were sent to the concerned persons under Ext. P5 acknowledgments. A commission was issued in the suit. Exts. P9 and Pll are the Commissioner's reports. On 22-5-1977 at about l p. m. the revision petitioners as well as 100 others, all armed with deadly weapons came to the pathway, having constituted themselves into an unlawful assembly with the common object of committing criminal trespass, mischief etc., entered the house com- pound of P. W. 1, destroyed the fence posts on either side of the cart-track, cut and removed branches of certain trees, removed the granite stones paved on the east of the cow-dung pit and the steps to the farm-yard, removed the steps put up between the cart-track and the cattle shed, uprooted the farm-yard gate and planted it about 4 feet inside removed five survey stones from the original places and replanted them nearby, and thereby caused a loss of about Rs. 10,000/- to P. W. 1. These acts were done in spite of the protests of P. W. 1. Though the cart-track was P. W, Vs private cart-track he had allowed the public to use it. He complained to the police, a case was registered as Crime No; 77 of 1977 under Ext. P6 F, I, R. Investigation was conducted, by the S.I. of Police, D, W. 1, who prepared Ext D6 scene mahazar. The case was referred under Ext. P7, as the case is of a civil nature. Thereafter a private complaint was filed by way of protest, in private complaint P. W. 1 alleged that the police did not conduct investigation properly and did not look into the documents and did not question the witnesses.
3. The revision petitioners pleaded not guilty before the trial Court. The prosecution examined four witnesses and the defence examined three witnesses. Exs. P. 1 to P. 11 and Dl to Dl0 series were marked.
4. The accused denied having participated in any occurrence as alleged by the prosecution. They contended that the cart-track is a public cart-track vested in the Panchayat and being maintained by the Panchayat and annual maintenance work was done by the Contractor D. W. 3 whose tender was accepted by the Panchayat and if in the course of the maintenance work anything wrong has been done, they cannot be held responsible. The two Courts below however accepted the prosecution case.
5. The learned Counsel for the revision petitioners contended before me that there is no dispute that something must have taken place oh 22-5-1977, as a result of which some damage might have occurred to the property of P. W.I, but that there is no convincing evidence to implicate the revision petitioners in the occurrence. He further contended that the testimony of P. W. 1 to P, W. 3 is the only evidence connecting the revision petitioners with the occurrence and the testimony is interested, discrepant, conflicting and unacceptable. According to him, the contradictions with reference to the statements recorded under Section 161 of the Crl. P.C. completely destroy the credibility of the witnesses and the two Courts below have ignored this vital circumstance in looking at the evidence. He also complained that the two Courts below have relied on inadmissible evidence and circumstances and also ignored important circumstances emerging from the evidence. On these grounds he seeks to quash the conviction and sentence,
6. There is no dispute now that something took place in and about the cart-track on 22-5-1977, as a result of which a part of P. W. I's land was dug up, branches of some trees were cut and other acts committed as claimed by P.W. 1. The result of these acts have been noted by P. W. 4, the Commissioner appointed in the civil suit in Ext. P9 report. These acts are also seen mentioned in Ext. D6 scene mahazar prepared by Sub-Inspector of Police, D. W. 1. Hence the finding that acts as alleged were done in and about the cart-track cannot be assailed now.
7. I may mention that though the trial Court held that the cart-track is a private property of P. W. 1, the appellate Court held that the cart-track vests in the Panchayat. In the opinion of the appellate Court the acts of damage were committed outside the cart-track and encroaching into the property of P.W. 1.
8. The main attack by the revision petitioners is against the evidence of P. Ws. 1 to 3 regarding the actual occurrence. Since the acts of trespass and damage alleged are fairly established, the more important question is the identity of persons responsible for these acts. The defence came out with a case that the acts were done only in the course of the maintenance work done by the Panchayat through the contractor D. W. 3. Neither of the courts below was prepared to accept the evidence of contractor D, W. 3 or of the present Executive Officer, D. W. 2 and the concerned records. But this cannot be used as a sufficient ground to accept the prosecution case, if the prosecution case cannot be supported by evidence adduced by the prosecution. !
9. P. W. 1 is certainly an interested witness inasmuch as he is seriously prejudiced by the alleged acts of the revision petitioners. His evidence must be subjected to careful and cautious scrutiny and accepted only to the extent it receives corroboration and the Court is satisfied that he is speaking the truth. Such corroboration is provided only by P. Ws. 2 and 3. The two Courts below proceeded on the basis that they are in-dependant witnesses. This is seriously challenged by the revision petitioners. P. W. 2 denies that she is a cook working in the house of P. W. 1, P. W. 3 denies that he is the car driver of P. W. 1. Their denial is sought to be falsified on the basis of certain contradictions brought out with reference to their statements recorded under Section 161 of the Code by the Sub-Inspector of Police, D.W. 1 in the course of his investigation into Crime No. 77 of 1977, relating to the same occurrence. The lower Court brushed aside these contradictions on the ground that the contradictions can be characterised as unsigned statements. The appellate Court brushed aside these contradictions on the ground that they will be important only if the defence adduced clinching evidence regarding defence version. These views are wholly unsustainable.
10. Section 161 of the Crl. P.C. authorises the Investigating Police Officer to examine orally any person supposed to be acquainted with the facts and circumstances of the case. The person examined has a duty to answer truthfully all relevant and non-incriminating questions. The Police Officer may reduce in writing any statement so made to him. If he does so he has a duty to make a separate and true record of statements of each such persons. Section 162(1) of the Code lays down that no such statement shall, if reduced into writing be signed by the person making it. It further states that such a statement or record thereof shall not be used at any enquiry or trial in respect of any offence under investigation at the time of making the statement, except as provided in the Section. The proviso permits use of the statement for the purpose of contradicting a witness by the defence under Section 145 of the Indian Evidence Act, in which case ft can be used in re-examination for the purpose of explaining any matter referred to in cross-examination. Section 162(2) states that the embargo on the use of the statement cannot be applied to a statement falling within the scope of Section 32(1) of the Evidence Act or affect the provisions of Section 27 of that Act.
11. It is argued before me on behalf of the complainant that a case diary statement (as a statement or record under Section 161 of the Code is generally called) can be used for the purpose of contradiction only when the investigation ends in a police charge and it cannot be used in the course of a trial on a private complaint. This argument does not appear to be sound. Case diary statement is recorded by virtue of power vesting in the Investigator under Section 161 of the Code. In the absence of Section 162(1) of the Code, there is no embargo on using such a statement for any purpose, subject of course to the provisions of the Evidence Act. The embargo in Section 162(1) of the Code operates only to the use of the statement for any purpose 'at any inquiry or trial) in respect of any offence under investigation at the time when such statement was made'. The manner in which this clause is worded may be observed. The bar is limited to inquiry or trial in respect of an offence under investigation at the time when the statement was made. It does not speak of enquiry or trial 'arising from a police report following any investigation'. The trial or enquiry contemplated must relate to an offence which was being investigated. If the investigation ends in a refer report and trial is held on the basis of a protest complaint, nevertheless the trial is in respect of the offence under investigation when the witness made a statement under Section 161 of the Code. Therefore the bar under Section 162(1) of the Code applies not only to a trial held on the basis of a police charge resulting in investigation but also to trial held as. a result of a private complaint, provided the trial is held in respect of an offence under investigation when the statement was made. The enabling proviso to Section 162(1) of the Code contains an exception to the bar or embargo and, therefore, the proviso also must apply to all trials to which the bar or embargo relates. It must, therefore, follow that the proviso enables use of the case diary statement for the purpose of contradiction not only in a trial arising from a police charge, but also in a trial arising from a private complaint provided the trial relates to an offence under investigation when the case diary statement was made. I cannot agree with the argument that the case diary statements cannot be used in this case for purpose of contradicting P. W. 2 or 3.
12. The trial Court declined to attach any weight to the contradictions brought out with reference to the case diary statements on the ground that they are unsigned statements. This reasoning cannot be supported at all. Section 162(1) of the Code contains a mandate to an Investigating Police Officer not to get the signature of the person questioned when his statement is reduced into writing. In other words, every valid and lawful case diary statement recorded under Section 161 of the Code, could only be an 'unsigned statement. If unsigned statements as previous statements can have no value in the eye of law, it must necessarily follow that no case diary statement recorded under Section 161 of the Code can have any value at all. But the proviso to Section 162(1) as well as Section 162(2) specifically provide for use of such a statement for certain specific purposes. It cannot be imagined that the law provided for use of these statements even, though such statements cannot have any value. Weight to be attached to a contradiction does not depend on the question whether the previous statement; is signed or not.
13. Section 145 of the Indian Evidence Act premits cross-examination of witness as to previous statements made by him in writing or reduced to writing and relevant to matters in question, without such writing being shown to him of being proved. The second part of Section 145 of the Evidence Act states that if it is intended to contradict the witness by the writing his attention must, before the writing can be proved, to be called to those parts of it which are to be used for the purpose of contradicting him. A reading of Section 145 of the Evidence Act shows that it permits contradiction of witnesses with reference to a statement made by him in writing or reduced into writing. Section 145 does not require any such statement must be signed by him. In other words, the enabling power as regards Section 145 extends to statement in writing whether it is signed or not. Section 155 permits the credit of a witness to be impeached in certain ways. Clause (3) of Section 155 permits credit of a witness being impeached by proof of 'former statement' inconsistent with any part of his evidence which is liable to be contradicted. It does not appear that the former statement must be signed in order that it may fall under the scope of Section 155(3) of the Indian Evidence Act. Thus, it is clear that the trial court was in error in brushing aside the case diary contradictions on the ground that they are unsigned statements.
14. However, the previous statement and the contradiction must be proved. If no such proof is forthcoming or if proof forthcoming is not satisfactory, the result is that the former statement cannot be accepted as proved, in which case the question of contradiction does not arise. But if acceptable proof is forthcoming and the contradiction is properly proved as contemplated by law, to that extent, the credit of the witness is shaken. Then it is for the court to consider whether the contradictions are sufficient to discredit the evidence of witnesses.
15. The case diary contradictions have been proved by D. W. 1. It is argued by the learned Counsel for the complainant that the complaint was a protest against the investigation and refer report made by D, W. 1 and, therefore, the testimony of D. W. 1 in proof of the case diary statements of P. Ws. 2 and 3 should not be accepted. I may notice that neither of the courts below declined to act on the contradictions for this reason. This reason is urged for the first time in this court In the F. I, statement., Ext. P6, P. W. 1 alleged that the Sub-Inspector of Police was trying to force him to compromise the matter. Ext. P6 does not contain any other allegation of partiality against the Sub-Inspector of Police. It contains only a general allegation against police. However, it is brought to my notice that the F.I. statement was sent to higher officers, of whom the Circle Inspector of Police sent it to D. W. 1 who thereupon registered the case. These circumstances may show that PW 1 may not have faith in DW 1, but it does not follow that D.W. 1 cannot be believed. The complaint made to court contains an allegation that witnesses were not questioned. This is falsified by the admission of P. W. 2 that she had been questioned by the police. Ext. D-8 is the scene mahazar prepared by DW 1. and it is attested by P. W. 3. The judgments of the two courts below show that the complainant placed very strong reliance on the contents of the scene mahazar. His counsel in this court also relied on the scene mahazar. There is no case before me that the contents of the scene mahazar were so manipulated to help revision petitioners or to twist the case against the complainant. The Circle Inspector who sent the F. I, statement to D. W. 1 also did not feel that D. W. 1 should not investigate the occurrence. I do not think it was open to the Sub-Inspector of Police to decline to conduct an investigation into an occurrence. D. W. 1 is a public servant who has investigated the case in the discharge of his duties. His investigation supports the complainant to the extent of pointing out that acts of damage were committed by some persons. It cannot be said that the investigation was devoid of bona fides and, therefore, the evidence of D.W. 1 must be suspect. Ext. P 2 shows that on 18-5-1977 the Coyalmannam police went to the property at the behest of P. W. 1 on not less than four different occasions. It is difficult to accept that D. W. 1 without questioning P. Ws. 2 and 3 has cooked up case diary statements. P. W. 2 herself has no such case. I hold that it cannot be said that the case diary statements are suspect.
16. Let me now consider the case diary contradictions relied on. P. W. 2 denied being the cook of P. W. 1. In her case diary statement proved by D. W. 1 she said that she saw the occurrence because at that time she was cooking in the kitchen of P. W. 1 and on hearing voices came out. Her version in court is that she is not the cook of P. W. 1 and she happened to see the occurrence because she was going to the temple along the pathway from her house which is one mile away. The importance of this contradiction cannot be over-stressed. If she is a cook working in the house of P. W. 1, she can be treated as a witness under his influence. The witness has been very careful to avoid the charge of being interested. She went to the extent of denying her own earlier statement. If she resides one mile away from the scene, she is not a natural witness to the occurrence. She explains her presence by saying that she happened to pass by on her way to the temple. That explanation is completely falsified by the case diary statement where she stated that she was working in the kitchen of P. W. 1 and happened to come out and saw the occurrence. I may also mention that it is admitted by P. W. 2 that she is a tenant of some property under P. W. 1. It is seen that she also filed a suit against the Panchayat and the Executive Officer etc. and others under Ext. D3 plaint. Apart from being a cook of P. W. 1, she is even otherwise interested in p. W. 1 and interested against at least some of the accused. The two courts below wrongly ignored these important circumstances.
17. P. W. 3 of course denied having been questioned by the police. He denied being present when the scene mahazar was prepared by the police though he admitted his signature in the scene mahazar, Ext, D6. D. W. 1 has sworn that he questioned P. W. 3 and recorded his statement and that the scene mahazar was prepared in the presence of P. W. 3. There is no reason to die-believe D. W. 1. P. W. 3 denied that he told the police that he is the car driver of P. W. 1. The evidence of D. W. 1 is that P. W. 3 did make such a statement to him. The relevant portion of the case diary statement has been marked. Thus it is seen that having made an admission at an early stage that he is an employee of P. W. 1 he deliberately went back on it. The reason is obvious. He also admitted that he did not tell the police about the occurrence at all. He also deposed till he entered the witness box he did not tell anyone about the occurrence. The two courts below wrongly ignored these contradictions and features in his evidence
18. The above discussion is sufficient to show the credit of P. Ws. 2 and 3 has been successfully impeached to a great extent. The two courts below did not consider these aspects seriously and properly. They also did not consider the other aspects of evidence of P. Ws. 2 and 3 which I shall refer to presently. In the F. I. statement Ext. P6 the allegation is that revision petitioner and a large number of others trespassed into the property and committed the offences. In the complaint what is alleged is that the revision petitioners and 100 other people did all these acts. That is the evidence of P. Ws. 2 and 3 also. But in evidence, P. W. 1 departed from his earlier statement and stated that the several acts of damage were committed by those 100 others who had not been identified and the only act committed by the revision petitioners is that the instigated, directing those 100 others to commit various unauthorised acts. This is a significant change in his story. P. Ws. 2 and 3 on the other hand stated that the acts were committed by the revision petitioners. The two courts below ignored these contradictions also. These contradictions have to be weighed in the light of the case diary contradictions with reference to P. Ws. 2 and 3. It is clear that the courts below arrived at a patently unsustainable conclusion regarding the participation of the revision petitioners in the occurrence by ignoring legal evidence and circumstances existing in the case. If the evidence of P. Ws. 1 and 3 regarding the participation of the revision petitioners in the occurrence cannot be accepted, there is no other evidence to connect them with the occurrence.
19. It is also seen that the trial court, relied on wholly inadmissible evidence in support of the prosecution case. I refer to paragraph 21 of the trial court's judgment:.the case diaries in Cr. No. 70/77 and 77/77 of Coyalmannam station relating to the incident on 18/5 and 22/5 are before the court. On perusing the statements of some of the accused and witnesses recorded by the police, I find that there was a mutual agreement, by the residents of that locality to widen the Puthucode-Pullupara road and most of them including the complainant agreed to that. But at a later stage that arrangement was fizzled out as far as the complainant is concerned for the reasons best known to him. These facts are revealed from the statement of D. W. 3 - Kandan also, who has taken up the work. (x x x)1
20. There can be no justification for the procedure adopted by the trial court. The statements of accused recorded by the investigating Police Officer are wholly inadmissible except to the limited extent permitted by Section 27 of the Evidence Act. The statements of witnesses under Section 161 of the Code are admissible only to the limited extent permitted under Section 162(1) proviso and Section 162(2) of the Code. The Court cannot rely on confessions of the accused and case diary statements of witnesses to come to a conclusion on disputed facts in support of the prosecution or the defence. Even if case diary statements are treated as part of police diaries, Section 172(2) of the Code authorises a criminal court to send for police diaries and use the diaries not as evidence in the case but to aid the enquiry or trial. In other words, even police diaries can be used only to the limited extent of aiding an enquiry or trial. In the course of taking aid from a police diary, a criminal court is not justified in reading confessions and statements found therein and using such material to disbelieve the prosecution case or the defence case. The procedure adopted by the trial Magistrate is wholly unjustified in Law.
21. The above discussion is sufficient to show that in accepting the testimony of P. Ws. 1 to 3, the two courts below have ignored legal evidence and circumstances existing in the case and also proceeded contrary to law in some respects. The conclusion based on the testimony of P. Ws. 1 to 3 cannot stand. Therefore, the conviction also cannot stand. In this view, it is unnecessary for me to consider the question whether sanction was necessary for the prosecution.
22. In the result, the conviction and sentence entered against the revision petitioners is set aside. They are acquitted of the charges against them. The bail bonds are cancelled. The revision petition is accordingly allowed.
1. Portion omitted being in vernacular, - Ed.