1. The appellant has been convicted under Section 211 of the Indian Penal Code for bringing a false complaint against five persons that they committed dacoity. The case requires detailed scrutiny as the lower Court has in my opinion admitted much evidence which was not admissible in law.
2. The dacoity was said to be at 3 A. M. on 1st June, 1923. Accused's complaint was that six persons waylaid him, his daughter and his son-in-law (P. W. 17), P. W. 16 being also along with them carrying a luggage bundle and that they threatened them with violence and carried off the bundle.
3. Eighteen witnesses were examined for the prosecution to prove the falsity of this complaint. P. Ws. 1 and 18 are formal witnesses. P. W.s. 2 and 3 are investigating Police Officers. P. W. 4 is the Village Munsif to whom the accused gave his complaint (Ex. A). P. W. 5 is a Karnam. (I shall refer to these witnesses later). P. W. 6 is a general witness to prior enmity between the present accused and those whom he charged with dacoity. P. Ws. 7 to 11 appear as those who were accused in the accused's complaint, but there is some doubt as to P. W. 11.
4. P. Ws. 12 and 13 are to prove an alibi of P. W. 11 at the time of the alleged dacoity. P. Ws. 14 and 15 say that the accused complained to them that he was beaten by Collator Ayyavarisetti's men. They do not say that the accused, said that there was no dacoity. P. Ws. 16 and 17 deposed to the fact of there having been a dacoity and they were treated as hostile by the prosecution. They did not help the prosecution case.
5. It is clear that on the prosecution side there is no direct evidence of the falsity of the complaint except that of the persons actually accused of the dacoity who deposed to their innocence. Of these P. W. 11 claims to be the person charged in the accused's complaint, Ex. A, as Podamakala Oosavadu alias Chinniah of Obulampet. The accused says P. W. 11 is not the man he charged. P. W. 11 gives his name in the Sessions Court as Podamakala Golla Oosavadu alias Chinniah Vadu of Obulampet. But it appears from the evidence of P.Ws. 12 and 13 that he was an inpatient in Rajampet Hospital on 1st June 1923, the day of the alleged dacoity and that to the Medical Officer he gave his name as Chinnavadu tout seul French expression meaning 'simply,' 'without more.' of Ellampet. He explains now that he gave his village as Ellampet because it adjoins Obulampet but obviously that is no explanation at all. Ex. A itself clearly distinguishes between the two villages and four persons named in it are said to belong to Ellampet, and the fifth to Obulampet. If it was a wrong description of P. W. 11 to say that he was of Obulampet Ex. A would hardly have made such a distinction. It is very doubtful, to say the least, if P. W. 11 is the man named in Ex. A. The only reason he can suggest for the accused associating him with the dacoits, Ayyavarisetti's men, is that he sometimes does cooly work for Ayyavarisetti. This is hardly a sufficient reason. I am not prepared to accept this evidence as helping to prove that Ex. A was false. It is significant that this alibi of P. W. 11 was not put forward by the Police in any record filed in this case as a reason for referring the case to the Magistrate. Nor was it put forward by the Magistrate as a reason for dismissing the complaint.
6. I take up now the evidence of P. Ws. 2 to 5. P. W. 2 is the head constable who investigated the dacoity. His evidence was to the effect that he examined the accused's daughter and son-in-law, P. W. 17, and that both of them said that they did not go at all with the accused and knew nothing of any dacoity. P. W. 3 is the Circle Inspector who gives similar evidence. The defence objected that Section 162, Criminal Procedure Code, prohibited the admission of this evidence but the Sessions Judge overruled the objection and allowed the statements to go in. It will be observed that the accused's daughter has not been examined at the trial, while the evidence of P. Ws. 2 and 3 as to what P. W. 17 told them was put in chief examination, long before P. W. 17, the son-in-law, was examined, and therefore at a stage when it was impossible to say whether or not P. W. 17 would corroborate what the Police Officers had stated. As a matter of fact, he did not corroborate what they said. In cross-examination, P. W. 2 added to his previous statements that he enquired 'some persons' who stated that 'they did not hear that any dacoity took place' and that the accused told them that he had been beaten. P. W. 3 was also allowed by the Sessions Judge in chief examination to depose that he examined P. W. 16, who denied having gone with the accused. This again was elicited before P. W. 16 had been put into the witness-box. When he did go into the witness-box, he did not corroborate what the Police Officers had stated. P. Ws. 4 and 5 are examined only to corroborate the statements of P. Ws. 2 and 3 that the accused's daughter and son-in-law denied the dacoity. P. W. 5 added that they were saying that the accused was slippered.
7. The Sessions Judge has in his reasons for conviction strongly relied on his conclusion that 'the three persons whom the accuesd stated as having been eye-witnesses to the dacoity denied all knowledge of it before the Police Officers.' As pointed out already, two of these, when examined in Court, supported the accused and the third, his daughter was not examined by the prosecution at all. As the Sessions Judge has thus used as substantive evidence against the accused statements of witnesses made to the Police in the course of the Police investigation, when these witnesses have either not been examined by the prosecution at all at the trial or have denied in their evidence at the trial that they made such statements at all, the legal question arises whether these statements taken in the course of the Police investigation are admissible for such a purpose.
8. It is necessary first of all to consider whether the learned Sessions Judge's ruling that Section 162 of the Criminal Procedure Code as amended is not an absolute bar to their admission is correct. These are oral statements taken from witnesses in the course of Police investigation. The old Section 162, Criminal Procedure Code, was not an absolute bar to the admissibility (for certain definite purposes) of such oral statements. It has first to be considered whether the amended Section 162 is such a bar, i. e. whether it prohibits the 'use' of such oral statements for any purpose at an inquiry or trial. I do not think it does, or that it goes any further in that direction than the section before amendment did, i. e., the amended section does not prohibit the use as evidence (for any purposes admissible under the Indian Evidence Act) of such oral statements. It may be answered that the words 'such statement' in Section 162 (1) are vague enough to include oral as well as written statements, but I think the whole design of the section implies otherwise. Both the provisos clearly apply only to written statements, so that if oral statements are wholly excluded from use by the first part of the section, the provisos do not affect that total exclusion. It would follow that on such a reading of the section an accused person would be prohibited from using in his favour oral statements favourable to himself, made in the course of Police investigation. I cannot reasonably suppose that the section was designed for such a purpose. When the sections uses the phrase 'such statement' I am clear that 'such' means 'if reduced into writing.' There are other indications to my mind that this must be so. The old Section 162 had nothing to do with statements not reduced to writing and was designed to prevent entries in police diaries from being used against an accused person. If the scope of the new section was to be so much wider than the old as to include any statement not reduced to writing, I should have expected considering the voluminous case-law that has been endeavoured to interpret the old section [see, e. g., King-Emperor v. Nilakanta : (1912)22MLJ490 , Muthukumaraswami Pillai v. Emperor ILR (1912) M 397, Fanindranath Banerjee v. Emperor ILR (1908) C 281 and Emperor v. Hanmaraddi Bin Ramaraddi ILR (1914) B 58 that the section, if it was to cover oral statements also, would have unequivocally stated so.
9. Again, the 2nd proviso uses the same words 'such statement' to mean only a written record, as it is dealing with the copy of a written record to be furnished to the accused, and obviously implies that there is a statement on the record which the Court may first examine for itself before the accused is allowed to look at it. The proviso is meaningless if 'such statement 'means' oral statement.'
10. Again if Section 162 had been designed now to prohibit the use of oral statements made to police officers in the course of police investigation, I should have expected an amendment of Section 27, Indian Evidence Act. That section has always been read as a proviso to both Sections 25 and 26. But if the above suggested reading of Section 162 is correct, clearly Section 27 can no longer have any application to Section 25, and Section 27 ought therefore, in view of the case-law on the subject, to have been amended by making it clear that it no longer applied to Section 25. I do not think this argument is met by saying that Section 27 will still allow oral statements of the nature contemplated by it to be proved, but Section 162, Criminal Procedure Code, will forbid them being used against the accused. There is no point in proving a fact unless it can be used after proof, and to allow facts against accused to be proved which cannot be used against him would be a procedure so fraught with danger to an accused person. Especially in a trial by jury I cannot imagine the legislature countenancing it in any way.
11. I conclude therefore that the application of the new Section 162 is confined, as that of the old one was, to the written record, that the new section was designed to confer on an accused person a legal right, which the old section did not give, of having a copy of such written statement for the purpose of using it to contradict the witness, and that, as regards proof and use of old statements, the law is unaltered and is as it was before. All oral statements which are previously admissible under the Indian Evidence Act, the use of which was not prohibited by the Criminal Procedure Code are still admissible and may be used.
12. The learned Sessions Judge was therefore, in my view, correct in holding that the amended Section 162, Criminal Procedure Code, was not a bar to the admissibility of these statements. But it appears to me that they are not admissible under the Indian Evidence Act at all, a point to which the learned Judge has not directed his attention. They are not admissible under Section 157, Indian Evidence Act, as they do not corroborate any evidence given by accused's daughter or P. Ws. 16 and 17 before the trying Court, or any evidence given by these witnesses outside the trying Court, but filed by the trying Court as evidence at the trial. Section 157, Indian Evidence Act, clearly says that the testimony to be corroborated must be testimony at the trial. [See also Emperor v. Akbar Badoo ILR (1901) B 599]. The Public' Prosecutor argues that the statements are admissible as part of the res gestae under Sections 6 and 7 of the Indian Evidence Act, but I am not prepared to accede to this contention. The offence in this trial is filing a false complaint. What happened at the subsequent Police investigation of the complaint forms no part of the res gestde. That investigation is an occurrence separate in time and place from the crime itself, and the remarks of witnesses at the investigation are not remarks occasioned by the crime and springing spontaneously out of it, but remarks made in answer to Police enquiries, which may be made long after the crime. If the investigation had ever been made, the remarks would never have been made either. All these statements by witnesses in the course of the Police investigation therefore are neither spontaneous nor simultaneous in time and place with the crime. Different considerations would arise if the statements had been made at or about the time and place of the crime, as for example, if, when the accused made his complaint, his daughter and son-in-law had been present and had then volunteered the information that the complaint was a false one. I am satisfied therefore that the Indian Evidence Act does not permit these statements to be proved or used as evidence against the accused.
13. I am quite clear on general principles also that these statements are not admissible as substantive evidence for the prosecution against the accused. If this case can be proved by the statements of the Police Officers that other people at a Police investigation told them that there was no dacoity, it would be equally open in another case to prove by similar statements that there was a dacoity or any other fact necessary for a conviction. Such a procedure, I am quite clear, is unwarranted either by the Indian Evidence Act or the Criminal Procedure Code. The fact that this is a case of a false complaint does not to my mind alter the general principle that criminal cases cannot be proved by reproducing the contents of the note-book of an investigating Police-officer.
14. I am satisfied therefore that these statements were wrongly admitted in evidence against the accused. As I have already pointed out, if they are. excluded, we are left only with the self-interested statements of the original accused in the complaint which are hardly a strong enough basis for a conviction. I would therefore reverse the conviction and sentence passed on the accused and direct him to be set at liberty and his bail-bond cancelled.
Madhavan Nair, J.
15. I have had the advantage of reading the judgment just now delivered by my learned brother. As I agree with that judgment, I propose to deal with the facts and the law arising in the case only very briefly.
16. The accused has been convicted by the learned Sessions Judge of Cuddapah for the offence of preferring a false charge of dacoity under Section 211 of the Indian Penal Code, and has been sentenced by him to suffer rigorous imprisonment for two years.
17. The accused made a complaint(Ex. A), that while he was proceeding on the 1st of June, 1923, from Obulampet to Vontimitta railway station accompanied by his daughter, son-in-law, and a servant, six persons assaulted him and carried away the bundle of cloths and jewels kept in the custody of his servant. As this complaint was on investigation found to be false, the case out of which this appeal arises was launched against him under Section 211, Indian Penal Code.
18. It seems to me that the falsity of the complaint made by the accused depends mainly upon the evidence of P. Ws. 2 to 5. P. Ws. 7 to 11 are the persons said to have taken part in the dacoity. All of them state that they were absent from the village at the time of the occurrence. P. Ws. 12 and 13 seek to prove the plea of alibi set up by P. W. 11. I agree with my learned brother in holding that it is very doubtful if P. W. 11 is the man named in Ex. A. ,P. Ws. 16 and 17, the servant and the son-in-law of the accused, stated before the Sessions Judge that there was a dacoity and that the accused was beaten; and the Public Prosecutor was permitted to treat them as hostile witnesses and cross-examine them. In this connection I may point out that the accused's daughter has not been examined at the trial.
19. The evidence of P. Ws. 2 to 5 is to the following effect : P. W. 2, the Head-constable who investigated the dacoity case, stated that he examined the accused's daughter and son-in-law and that they told him that the alleged dacoity never took place, that they did not lose any jewels or cloths, and that they did not accompany the accused to Vontimitta. P. W. 3, the Circle Inspector who also carried on the investigation of the case, stated that the daughter and the son-in-law of the accused told him that no dacoity took place. P. Ws. 4 and 5 were examined to corroborate the evidence of P. Ws. 2 and 3 that the accused's son-in-law and daughter stated that there was no dacoity. As already pointed out, P. Ws. 17 and 16, the son-in-law and the servant of the accused, did not corroborate what the Police-officers stated.
20. It has been argued by the learned Counsel for the appellant (1) that the evidence of P. Ws. 2 and 3 as regards what they were told at the investigation by the daughter, the son-in-law and the servant of the accused should not have been admitted in view of the provisions of the amended Section 162 of the Code of Criminal Procedure, and (2) that, even if Section 162 is not a bar to the admissibility of their evidence, the learned Sessions Judge should have excluded the statements as inadmissible under the provisions of the Indian Evidence Act. The first objection was overruled by the learned Sessions Judge and the second was not considered by him.
21. The evidence of P. Ws. 2 and 3 consist of statements made to the Police by witnesses examined in the course of the investigation of the case. Section 162 of the Criminal Procedure Code before its amendment had nothing to do with statements not reduced to writing; the section did not prohibit 'the use of such statements' as evidence for any purpose admissible under the Indian Evidence Act. I think, even after the amendment, the application of the section should be considered to be limited to the use of statements reduced to writing as under the old section. If this interpretation is not accepted, it would mean that the legislature, by amending Section 162 of the Code of Criminal Procedure, has virtually repealed Section 27 of the Indian Evidence Act. As, in my opinion, such a result would never have been contemplated by the legislature, I hold that the amended Section 162, Criminal Procedure Code, is not a bar to the admissibility of statements made to P. Ws. 2 and 3 by the accused's daughter and P. Ws. 16 and 17.
22. Though Section 162, Criminal Procedure Code, does not prohibit the use of the oral statements in question, it seems to me that the statements are not admissible in evidence under the Indian Evidence Act. It has not been argued that these statements are admissible under Section 157 of the Evidence Act, as these do not corroborate the statement of the accused's daughter and the evidence of P. Ws. 16 and 17 given at the trial; but what is contended for by the learned Public Prosecutor is this, that these statements are admissible as part of the res gestae under Section 6 or Section 7 of the Indian Evidence Act. It will be observed that these statements were made to P. Ws. 2 and 3 during the Police investigation of the case. They were made long after the commission of the offence, viz., the filing of. the alleged false complaint. As the state-merits in question are not the necessary incidents of the offence itself and are not immediately associated with it, I do no think it can be said that they form part of the res gestae. I have, therefore, come to the conclusion that these statements cannot be proved or used as substantive evidence in support of the charge brought against the accused.
23. As the other evidence in the case is not of any value, I allow the appeal and set aside the conviction and sentence passed upon the appellant. The bail-bond of the accused will be cancelled.