Trevelyan and Hill, JJ.
1. In this case the prisoners have been convicted by the Sessions Judge of Durbhangah, agreeing with one of the assessors, of offences under Section 304, read with Section 149, and under Section 147 of the Penal Code.
2. They have appealed to this Court, and Counsel on their behalf has urged that the evidence does not justify their conviction, and that even if the evidence, as given, would justify a conviction, the accused have been so prejudiced by the action of the Judge in excluding evidence which ought to have been admitted, that they are entitled to a new trial.
3. We consider that the Judge has wrongly excluded evidence which he ought to have admitted.
4. A Police officer in this case had, under the provisions of Section 161 of the Criminal Procedure Code, examined persons who were afterwards called as witnesses.
5. At the Sessions trial this Police officer was in Court, and had with him the statements which he had taken down.
6. There can be no doubt that these statements would be admissible in evidence. They are not a portion of the diary, and are not protected by any enactment.
7. The Judge refused to allow them to be used on the ground that the accused had not asked the committing Magistrate to allow them to be produced.
8. It appears from an affidavit, which has been used before us, that when the Sub-Inspector, who made the investigation, was being cross-examined, the Counsel for the accused asked the Judge to hand up the statements taken down by the witness to enable him to answer questions as to statements made by some of the persons who were called as witnesses for the prosecution. This the Judge refused to do.
9. We think that the Judge ought to have permitted Counsel to put the statements to the witness. There is no doubt that an accused person is entitled to call as his witness any person who is in Court, whether he has summoned him or not (see Section 291 of the Criminal Procedure Code), and there is, we think, equally no doubt that an accused may, so far as the law of evidence permits him to do so, make use of, as evidence, any document which is in Court at the trial. Before, however, we could order a new trial on this ground, we would have to be satisfied that injustice had been done to the accused by the exclusion of this evidence.
10. If it had appeared that there was a material difference between the statements made by the witnesses to the Sub-Inspector, and their statements made in Court, it would have been difficult to say that the accused had not been prejudiced by the Judge's decision on this question.
11. The Judge says that he has read the statements, and that there is practically no difference between what the persons examined stated and what the witnesses have deposed before both Courts. We see no reason to doubt the correctness of the Judge's statement, and if the legal advisers of the accused had seen any real ground for disputing it, they would have endeavoured to obtain the production of these statements, so that they might have been considered at the hearing of the appeal.
12. Taking all the circumstances into consideration, we do not think that the omission of the Judge to admit this evidence would justify us in ordering a new trial. On the mere speculation that these statements would disagree, and in face of the Judge's statement that they do not materially disagree, we could not order a new trial.
13. [Their Lordships then proceeded to determine the case on its merits, and ended in upholding the conviction and reducing some of the sentences.]