1. The accused in this case have been convicted by the learned Sessions Judge of Tinnevelly of an offence under Section 302, Indian Penal Code. It is alleged that they on the 23rd March, 1940, at Ottudanpatti, a village in the Koilpatti Taluk, murdered one Sangili Thevar. Prosecution evidence is that the deceased was attacked in the street at about 3 p.m., by the two accused, the first accused holding him while the second accused cut him, and that this was done in the presence of three eye witnesses--P.W. 3 a man of the village, one Sanga Reddiar who has not been examined by the Sessions Judge and is also a man of the village, and P.W. 4 a man who lives some four miles away and happened to be present. The deceased received a large number of injuries and died before the arrival of the Village Munsif. The Village Munsif heard of the occurrence when in a hamlet a mile and a half away and he is said to have been there by 4 p.m., and hearing that P.W. 3 was a witness he sent for him and took a complaint from him which is alleged to have been despatched at 6 p.m., and to have reached the police station, which we are told is 8 miles away, at 9-30 p.m. The two accused are alleged to have appeared before a constable at a police out post a mile away at 4-30 p.m., and to have handed over two weapons, an aruval and a knife, neither of which was found by the Chemical Examiner to be stained with blood. As we think it desirable to send this case back for retrial we do not propose to say anything which will affect the merits of the case. We will deal only with the two main criticisms of the trial by the learned Sessions Judge.
2. Firstly there is the fact that Sanga Reddiar, who was undoubtedly one of the three eye-witnesses, was not examined in the Sessions Court on the ground that he was treated as hostile by the Prosecution with the permission of the committing Magistrate. It is undoubtedly difficult to lay down any rule of universal application in such cases. It may be said that the Public Prosecutor should not be compelled to put forward as his own witness a man who has in the opinion of the Public Prosecutor committed perjury by giving evidence hostile to the prosecution in the lower Court. At the same time it does seem to us to be the duty of the Court, when there is an important eye witness whom the Public Prosecutor does not wish to examine because he has been treated as hostile in the committal enquiry, to record the evidence of this witness and that the accused should not be forced to examine him as a defence witness. The proper course to take in such circumstances seems to us to be for the Public Prosecutor to see that the witness is present in Court and for the Court, if the witness is really important, to examine that witness as a Court witness and allow both sides to cross examine the witness. We do feel in the present case, which depends on the evidence of the three eye witnesses, that those three eye witnesses should have been examined in the Sessions Court and, if the Public Prosecutor is reluctant in the circumstances of the case to put forward Sanga Reddiar as a witness on behalf of the prosecution, there seems to be no reason why he should not have been examined as a Court witness.
3. The other criticism relates to Ex. E. Ex. E purports to be a report by the constable on duty at the out-post at which the accused are alleged to have presented themselves shortly after the occurrence and handed over two weapons. This report contains what is alleged to be a summary of a joint statement made by both the accused to some extent implicating them in the crime. A portion of this statement has been treated as admissible by the Sub-Magistrate apparently under the impression that it falls under Section 27 of the Indian Evidence Act. So far as one can gather, the Sessions Judge has marked the whole of the report including this joint statement. It appears to us that Section 27 of the Indian Evidence Act has no application to a confessional statement made to a police officer before the deponent has come into the custody of that police officer. Moreover it seems to us improper to treat as the individual statements of two different persons a composite statement of this kind, which appears to have been made up of information gathered from the two persons it being impossible to say how much of the statement was made by one of them and how much was made by the other. No doubt Ex. E could properly have been used by the constable to refresh his memory as to the date and time when the two accused appeared before him and handed over the two weapons. We do not consider that it should have been used for any other purpose. In fact it has been mainly used by the learned Sessions Judge to throw light on the motive for this crime. In our opinion, it should have been excluded from evidence.
4. In view of these two defects in the trial, namely, the failure to examine Sanga Reddiar and the inclusion of this inadmissible document, Ex. E, we think it desirable to order a fresh trial. The convictions and sentences are therefore set aside and the case will be remanded for retrial by the Additional Sessions Judge of Tinnevelly.