1. The appellants have been convicted of offences under Sections 326 and 397, Indian Penal Code. They are said to have waylaid a Revenue Inspector, Prosecution Witness No. 1, and to have wounded and robbed him of his property, causing injuries amounting to grievous hurt. The main offence is, of course, under Section 397, Indian Penal Code.
2. The grievous hurt which constitutes the offence under Section 326, is an integral part of the offence under Section 397, Indian Penal Code, and need not have been made the subject of a separate charge. The first clause of Section 71, Indian Penal Code, precludes the imposition of separate sentences for the two offences and if we were able to uphold the conviction, we should have to consider what reduction should be made in the joint sentences which the Sessions Judge has imposed for the two offences.
3. We are, however, unable to uphold the conviction. On the one hand, the procedure of the learned Sessions Judge is illegal as regards the evidence of an important witness (Prosecution 'Witness No. 11) and on the other, his direction to the Jury appears to us to be materially defective and calculated to prejudice the defence.
4. Prosecution Witness No. 11 is or should be a very important witness. He was a peon in attendance on the Revenue Inspector at the time of the alleged offence, and was himself beaten and driven away. Before the committing Magistrate he gave a deposition supporting the Revenue Inspector as to the commission of the offences but expressing inability to identify his assailants. In the Sessions Court he was simply tendered for cross-examination while at the same time his deposition in the Magistrate's Court was put in and marked as Exhibit J. Admittedly the only section which could be cited to cover, this procedure is Section 238 Criminal Procedure Code, and this is inapplicable for the simple reason that the witness was not produced and examined' as required therein. The same point has been exhaustively dealt with by a Bench of this Court in Subba v. Queen-Empress 9 M.K 83 Kernan Officiating Chief Justice, says: 'The provision is not that the evidence before the Magistrate may be put in as the evidence of the witness if he is tendered for cross-examination, but it is that such evidence before the Magistrate may be treated as evidence in the case, if the witness is examined; that is, examined as a witness, not if lie is cross-examined or tendered for cross-examination.' The course adopted by the Sessions Judge in that case was taken at the instance of the defence: but the learned Chief Justice proceeds to say that had it not been so (and it is not the case here) he would have felt it his duty, apparently on this ground alone, to set aside the conviction.
5. In our opinion the Sessions Judge should have caused Prosecution Witness No. 11 to be examined before him under Section 280, Criminal Procedure Code; and his admission of Exhibit J was illegal.
6. As regards the charge to the Jury, we think the learned Sessions Judge has erred in his presentation of the evidence regarding the discovery of the knife stick', on which he lays stress as corroboration of prosecution 1st witness' evidence (vide paragraph 7 of the charge). The Judge says, you have the second fact that the weapon which, Syfuddin (Prosecution Witness No. 1) says, was used to cause the injuries on his head, was found in the house of the 1st accused's father.' The house in which the article was found was not that of the 1st accused but of his father. The 1st accused says he lives, not there, but in the house of his mother-in-law and has adduced some evidence to prove this. If this be so, no inference adverse to the 1st accused can be drawn from the discovery, at any rate, none worthy of consideration. The Sessions Judge has made no reference to this: nor has he directed the attention of the Jury to the common nature of the article or to the extreme difficulty, not to say impossibility, of Prosecution Witness No. 1 being able to identify the weapon used. On the other hand, he has commented on the fact that the weapon was stained with mammalian (not necessarily human) blood; and has instructed the Jury that it was the duty of the defence to explain how mammalian blood came there. In view of the circumstances alluded to above, we certainly do not think that the defence was under any obligation to adduce evidence on the point: and we think that the Sessions Judge's presentment of this portion of the evidence can hardly have failed to prejudice the appellants.
7. In contrast to the stress laid on the circumstances, the Sessions Judge has not referred to the failure of the prosecution to trace the dagger (the principal weapon employed) and the property named in Exhibit II; and has not properly left it to the Jury to draw what inference they would from the failure of the prosecution to examine a number of witnesses originally named in the charge-sheet (vide paragraph 12 of his charge).
8. We must set aside the convictions and sentences and direct the re-trial of the appellants. There-trial will take place before the Sessions Judge of Chingleput.