1. The appellants in this case were tried by the Sessions Judge at Khulna and a jury on various charges. The verdicts were not unanimous. By a majority of 5 to 4 the jury found Easin Sheikh and Karimuddi Sheikh guilty under Section 148, I.P.C. and Jonabali, Haran, Lalit and Gopal guilty under Section 147. On a charge under Section 302, I.P.C., against Easim, the jury, by a majority of 6 to 3 found him guilty under Section 326, I. P. C On the other charges some of which were under Section 302, read with Section 34, the jury by a majority of 6 to 3 found the accused Karimuddi, Jonahali, Haran, Lalit and Gopal not guilty. The learned Judge agreeing with the verdicts of the jury, sentenced all the appellants to various terms of imprisonment under Sections 147 and 148, and in addition he sentenced Easin to seven years rigorous imprisonment under Section 326, I'.'P. G.
2. On the facts alleged an attack was made by these appellants with weapons upon the complainant's party owing to a dispute about the reaping of certain paddy. The appellants attempted to reap paddy from lands in the possession of the complainant's party. Saizuddi and his brothers who were members of the complainant's party noticed that the appellants were cutting the ripe paddy which belonged to the complainants. They went to the land and protested. The members of the appellant's party carried arms of various kinds. Saizuddi and his brothers were completely unarmed. The quarrel seems to have started with a statement made by Sashi of the appellant's party to Easin. Thereupon Karimuddi, one of the appellants, struck Dalu on the left arm with an atar. When the accused Jona. bali struck Dalu, Dalu raised his right arm to protect himself whereupon Easin stabbed him in the breast below the right collar hone. Dalu then ran a little way and fell. down. The other members of his party carried him a little way off near to a tank and tried to bandage his wound but in spite of this Dalu died. It was proved by the doctor that Dalu died c the injury inflicted by Easin. An investigation was made by the daroga, an several of the accused were found absent from their homes, and they were no brought to trial for several months after wards. Some surrendered within a month Easin was not arrested until five month after.
3. Various points have been taken on be half of the appellants. The first is the medical evidence was not properly dealt with by the learned Judge. The point seems to be this: There was evidence of members of the complainant's' party to show that Dalu after being struck by Easin had run forward a certain distance. The estimates vary from over 100 cubits to something like 50 cubits. The doctor, on the other hand, was of opinion that from such a wound as this Dalu. would have fallen down almost immediately. In answer to the Judge he said that he might have run forward a certain distance possibly 29 ft. The argument therefore is that upon the evidence, Dalu could not have acted as is suggested by the witnesses for the prosecution. Their evidence is inconsistent with that of the doctor. In our opinion the learned Judge has dealt quite properly with this evidence. He dealt with it in detail and pointed out to the jury that all the measurements were simply rough estimates, that the evidence of the witnesses had been given nine months after the occurrence, that no witness had measured the distance, not even the daroga, and that merely because of such suggested contradiction it would be most unreasonable to acquit the accused, simply because the doctor's opinion did not coincide with these rough statements of distance given by the various witnesses. Not only was this not a misdirection, but it seems to us a reasonable and sensible way of discussing the evidence, and all the contentions in favour of the accused have been: placed before the jury by the Judge.
4. The next point taken is that, the Judge-referred to the fact that the accused absconded. He said that all the accused were not at their homes when the police went. Then he set out all the facts with regard to each of them and it appears that none of them were at homo when the daroga went to find them, that Karimuddi and Jonabali were not arrested for nearly a month, that Gopal, Haran and Lalit did not surrender for nearly two-months and that, as I have already said, Easin was not arrested until five or six months after. We think that the learned Judge was quite entitled to suggest that there was evidence before the jury that these accused had absconded.
5. The third point taken was that whereas the defence was a simple denial that any of the accused were present or knew anything about the occurrence, the learned Judge had dealt with the right of private defence and discounted any such right in favour of the appellants. It was necessary for him to do this because the charge was that of rioting with the common object of asserting a right to the land upon which the paddy was grown. That was the prosecution case and such a case having been set up by the prosecution it was necessary for the Judge to consider whether the accused had any right of de-fence. The accused had no evidence to adduce other than the defence of alibi which they had sot up.
6. The next point was that a number of suggestions had been made to the witnesses for the prosecution by the pleader for the appellants in cross examination and that the learned Judge had refused to admit these suggestions in evidence. That was perfectly correct as the suggestions had not been accepted by the witnesses for the prosecution. There was no evidence put before the Court or the jury. Mere suggestions by a pleader or advocate for the accused do not amount to evidence of the fact suggested, unless they are either partly or wholly accepted by the witnesses for the prosecution. But in spite of his right to exclude such suggestions the learned Judge has dealt at considerable length, with several suggestions made on behalf of the accused about which there was not a scrap of evidence before the jury. He has gone out of his way to admit even suggestions such as these to be used on behalf of the defence though not based upon any evidence.
7. The last point taken was that some of the witnesses had made statements to the police which the pleader for the de-fence suggested were inconsistent with the evidence which they gave in Court and he asked to be allowed to see those statements in order to use them to contradict the witnesses under the provisions of Section 162, Criminal P.C. The learned Judge called for the diaries and found that what was recorded was not a statement in the ordinary sense, but what ho called a joint statement made by the witnesses in question and other persons. No separate record had been made of the statements of the witnesses sought to be contradicted. The learned Judge held upon the authority of a Lahore case, Benta Singh v Emperor A.I.R. l930 Lah. 457, that such a joint statement does not come within the provisions of Section 162. Criminal P.C. This of course depends upon the form of the statement. It is a little difficult to say what a joint statement means. If it means that more than one statement is contained in one document or that a number of statements have been recorded seriatim then we see no objection to the defence being allowed to see and use the statement of the particular witness in spite of the fact that it is included in a record along with the statements of other persons. If on the other hand a joint statement means that the stories told by a number of witnesses have been, so to speak, boiled down by the Police Officer into a statement of his own, which is a kind of abstract of the statements made by the several witnesses then we agree that the learned Judge was right in refusing to allow the pleader for the defence to use such a statement. This point was not raised in the grounds of appeal nor did the pleader who appeared for the appellant in the Court below lay much stress upon it, otherwise he would have drawn the attention of the learned advocate to it and we could have called for the diaries in order to satisfy ourselves on this point. We cannot allow, at this stage any further adjournment for the purpose of deciding a point, which the learned advocate cannot suggest for certain must be in his favour. He is merely speculating upon the contents of the diary hoping to find contradiction there. If ho had any specific information that those witnesses had made contradictory statements to the police there would have been something in his argument. That being the position we are of opinion that there is no substance in the various points raised in this appeal. Therefore it is dismissed. The appellants must surrender to their bail and serve out the remainder of their sentences.
S.K. Ghose, J.
8. I agree.