Skip to content

Queen-empress Vs. Sagal Samba Sajao and ors. - Court Judgment

LegalCrystal Citation
Decided On
Reported in(1894)ILR21Cal642
RespondentSagal Samba Sajao and ors.
Cases ReferredEmpress v. Dhunno Kazi I.L.R.
witness - examination of witnesses--cross-examination--right of accused to cross-examine witnesses for the prosecution before commitment--criminal procedure code (1861), sections 194; (x of 1872), section 191; (x of 1882), sections 207, 208, 210, 256, 257, 288--criminal procedure code, 1882, section 364--recording statement of accused by magistrate. - prinsep and ameer ali, jj.1. six manipuris and one goorkha have been convicted by the officiating sessions judge of cachar under section 396, indian penal code, of having jointly committed dacoity in which three persons were murdered. the assessors were for the acquittal of all the prisoners disbelieving the evidence of the approvers mukhta singh and mohan singh.2. on the night of tuesday, the 11th of april last, the house of mr. cockburn, a tea planter of balladhun, was attacked by a body of men, who first of all killed the chowkidar who was sleeping in the verandah, then killed cockburn, and afterwards pursued the cooly woman with whom he was cohabiting and mortally wounded her in an adjoining jungle so as to cause her death a few days afterwards, and finally they carried off a large.....

Prinsep and Ameer Ali, JJ.

1. Six Manipuris and one Goorkha have been convicted by the Officiating Sessions Judge of Cachar under Section 396, Indian Penal Code, of having jointly committed dacoity in which three persons were murdered. The assessors were for the acquittal of all the prisoners disbelieving the evidence of the approvers Mukhta Singh and Mohan Singh.

2. On the night of Tuesday, the 11th of April last, the house of Mr. Cockburn, a tea planter of Balladhun, was attacked by a body of men, who first of all killed the chowkidar who was sleeping in the verandah, then killed Cockburn, and afterwards pursued the cooly woman with whom he was cohabiting and mortally wounded her in an adjoining jungle so as to cause her death a few days afterwards, and finally they carried off a large sum of money and various articles from the house. About these facts there can be no reasonable doubt. On the 13th of April the depositions of certain witnesses produced before him by the Police were recorded by Mr. Howell, a Magistrate, at the place of investigation, and on the following day he recorded the dying declaration of the woman Sadi, who died soon afterwards. On the 8th of May the Police enquiry was taken up by Jay Chundar Bhadra, Inspector of Police of Sylhet, who was specially deputed for that purpose. The proceeding commenced before the Magistrate at Silchar on the 3rd of August, and the prisoners were committed for trial by the Sessions Court on the 7th of August.

3. Four of the prisoners, Sagal Samba Sajao, Chouba Singh, daffadar, Nasiba Nengthonba and Madan Hijapa, as having taken a prominent part in the offence, have been sentenced to death, and the other three, Chaubangbang Sajao, Amur Feberi and Sarba Singh, have been sentenced to transportation for life. The case is- before us on the appeal of all these persons and also on reference made by the Sessions Judge for confirmation of the sentences of death. The offence is one of the most atrocious character, the attack by a body of men having taken place about midnight for the purpose of robbing a European tea planter of money which had recently come into his possession, and all those in the house, the planter, his native woman and his chowkidar, were killed by sharp-cutting instruments, probably daos, in that attack.

4. The hearing before us has occupied several days, and we have the satisfaction of feeling that everything that could be said in the case has been said before us by Mr. Woodroffe who appeared for the appellants, and by Mr. Hill for the Government in support of the convictions. The case for the prosecution depends entirely on the evidence of two approvers, Mukhta and Mohan, and it becomes our duty to determine how far they can be believed and how far their evidence is corroborated. It is much to be regretted that the difficulties in this case have been increased by serious irregularities in the proceedings in every stage of it before the Police, before two Magistrates, who at various times interposed during the Police investigation, before the committing Magistrate, and at the trial in the Sessions Court.

5. Madhab Baori, the bearer of the tea planter, was the first to give the alarm. He went early in the morning of the 12th of April, as usual, to attend to his master and found the body of the master lying at the entrance of the house from the western verandah. A milkman arrived about this time who has not been examined. The bearer at once went towards the cooly lines and met Bepin Behari Baori, the garden clerk, and Chunder Coomar Shome, the garden doctor, who ware going towards Cockburn's bungalow, because it had been arranged that the coolies were to be paid and Cockburn had not appeared. They went with the bearer to the bungalow, saw Cockburn's dead body as already described, then found the chowkidar's dead body covered by a blanket in a corner of the verandah, and lastly found the woman Sadi mortally wounded in an adjoining piece of jungle. She was removed to the cookhouse and attended to. On information given, Dr. Dundee and Mr. Murray, a tea planter, arrived. The safe in the bungalow was found to have been broken open, and its contents, a large sum of money, gone, and other articles were missing. Blood was also seen on one side of the mosquito curtain of the bed on which Cockburn had been sleeping. The local Police arrived soon after.

6. It is not quite clear, but it would seem that in the first instance it was suspected that some Cacharis had committed the offence, and that it was not until long after, probably not until the Sylhet Inspector had taken up the case, that Manipuris were proceeded against. The woman Sadi in her dying declaration made to Mr. Howell, Assistant Commissioner and Magistrate, on the 14th of April, stated that 'they were Manipuris who attacked the bungalow, and a Kabuli, some of the Mussulmans not belonging to the bungalow cut him, that is the Sahib, down. I saw twelve or thirteen men. There were Gacharis among them too. I could identify them on seeing them. I do not know the names of any. (She then described the clothes worn by the Kabuli.) There were no Manipuris, Kookies or Nagas among them that I saw.' We may here state in passing that in the Sessions Court objection on behalf of the prosecution was allowed to the reception of this statement as evidence, and that although an application was immediately made on behalf of the defence to summon the Magistrate who had recorded it so as to make it evidence, the Sessions Judge at first abstained from passing orders on this application and eventually refused it. The Sessions Judge, however, has himself considered and discussed the contents of the statement without laying it before the assessors who with him formed the Sessions Court, and he has dismissed it as unreliable. As it is undesirable to interrupt the narrative of the evidence it is sufficient here' to say that this was a material piece of evidence to which the defence was entitled, and which it was the duty of the prosecutor in the Sessions Court properly to place before the Court at the trial, and that it has not been properly considered by the Sessions Court. In taking objection to the admission of this statement, without doing his utmost to cure any technical defect, the public prosecutor has in our opinion failed in his duty, and we would direct his attention to the remarks of Wilson, J., in Empress v. Dhunno Kazi I.L.R. 8 Cal. 121, in respect of his duties. Mr. Hill who appears for the prosecution in this Court; very properly makes no objection to the statement being laid before us. We may further state that we cannot in any way concur in the reasons given by the Sessions Judge for holding that, if received, that statement is useless because it is incoherent, and on the face of it unreliable. The statements made by the bearer and others who spoke to Sadi do not show that she ever gave a contrary account of this matter. It is however material only to show how the case was started, and the impression made on the mind of the woman regarding the class of persons who attacked the bungalow.

7. The Sylhet Inspector took up the case on the 8th of May, but he did not send it up to the Magistrate until the 3rd of August. Meantime many persons, including the prisoners now before us, and the two approvers, were arrested, and many of these persons remained in police custody under special orders obtained from time to time from the District Magistrate for terms exceeding in some instances as much as one month. This will be again referred to.

8. The Inspector has stated that Sagal Samba Sajao, one of those now under trial, was arrested on the 28th or 29th of June. What is described as his confession was recorded on the 3rd of July by Mr. Lees, Assistant Commissioner and Magistrate, at Balladhun, and Mr. Lees has stated that he went to Balladhun expressly for that purpose. No reason has been given why this man was not sent on to Silchar within 24 hours of his arrest as usual, and according to law, or why that statement should not have been made to a Magistrate at Silchar instead of to a Magistrate brought to Balladhun to take it while he remained in police custody. We may add that no reason is given for his being kept for another month in police custody except that one of the applications, dated the 11th of July, for a special order from the Magistrate for detention for a term of ten days is made for the completion of investigation.' In none of the orders passed by the District Magistrate is any special reason given for sanction to the detention of this man, although the law, Section 167, Code of Criminal Procedure, expressly requires this to be done. In the case of others, and notably the cases of the approvers, a similar course was taken, and similar irregularities are to be found, except that in the application made on the 7th of July by the police in respect of sanction to the detention of Mukhta Singh, one of the approvers, and others, the reason stated is that 'they are men of Manipur, have no houses here, and there is every likelihood of their absconding from here.' If any detention was under such circumstances necessary it should certainly not have been in police custody but in the Magistrate's lock-up. The Magistrate, however, sanctioned a detention for ten days without comment, and he extended that detention on similar applications, which expressed no reason at all for making them. We shall refer to this matter again. We mention it now to show how little confidence can be given to the statements made by Sagal Samba Sajao and the approvers, which have been obtained under such circumstances. It is also deserving of mention here that on the 5th of August, that is on the day after Mohun Singh had given his evidence on conditional pardon, it is recorded that Sagal Samba Sajao, prisoner, says (voluntarily) 'I was told by the Inspector that if I told the truth before the Magistrate I should be released, but I have been kept in hajut.' From this we understand that he desired to intimate to the Magistrate that his statement has been made under promise of pardon which had not been kept, and that he desired to protest against the preference shown to Mukhta and Mohan. This matter is deserving of consideration as there are complaints of pressure and misconduct by the police, to which the unusually prolonged detentions in their custody under authority of orders of a Magistrate very improperly and illegally passed, give weight. The record next shows that on the 1st of August Mukhta and Mohan Singh were examined at the Police Thanah on solemn affirmation by Mr. Lees. The Sylhet Inspector has stated that he cannot say on what day he first examined Mukhta Singh, and he declines to refresh his memory by referring to his diaries on the point. It is a matter of much regret that the Sessions Judge should not have insisted on full information of this. The examinations taken by Mr. Lees on the 1st of August were as incriminatory as the statements made by them as approvers. Consequently, if any statements were taken from them, they should not have been examined as witnesses but as persons confessing their participation in an offence then under police investigation. These men, moreover, had for some time previously been in police custody and were still under detention. Lastly, there is nothing on the record to show why these men should have been so examined on the 1st of August by Mr. Lees, a Magistrate not competent to deal with the case itself when the police investigation was practically completed, for the entire case was brought before the District Magistrate at Silchar on the 3rd of August.

9. The District Magistrate commenced his proceedings by examining Sagal Samba Sajao and the other accused, but he did not examine Mukhta Singh and Mohan Singh. The statement of Sagal Samba Sajao was really a cross-examination as to the statement recorded by Mr. Lees on the 3rd of July apparently to cure any irregularities in recording that statement, and to elicit the names of others which had not been mentioned. Mr. Woodroffe, for the appellants, very properly protested against the enquiry before the committing Magistrate being opened in this manner. If any of the accused desired to make a statement, the Magistrate was competent to record it, but he clearly went beyond the law in proceeding as he did. The law merely empowered the Magistrate to put such questions to any of the accused as he might consider necessary to enable such person to explain any circumstances appearing in evidence against him. We may add that it certainly did not warrant the course taken in respect of Sagal Samba Sajao. The pleader who defended these persons appears to have unsuccessfully objected to this procedure. An application was at the same time made on their behalf that they should be given an opportunity to instruct and consult their pleader. This also was refused, and we may here state that the prisoners were committed to the Sessions Court on evidence recorded on examination-in-chief and without any cross-examination being allowed. Mr. Hill has told us that this practice is not unusual, but it is one that has never yet come under the notice of either of us. The unfairness of such a course is so obvious that we cannot understand how it could be adopted or defended. The Magistrate then examined Mr. Murray and Dr. Dundee, and after tendering a conditional pardon to Mukhta, which was accepted, he examined that person also as a witness. On the same day the Magistrate offered a conditional pardon to Mohan Singh, but it was not accepted until the next day, when he also was examined as a witness. Bepin, the garden clerk, was also examined on the 4th of August. On the 5th, 7th. and 8th other witnesses were examined. A charge was drawn up on the 8th and on 9th of August the prisoners were committed to the Sessions Court for trial.

10. When the trial commenced the public prosecutor, as already stated, informed the Court that he did not intend to put in the dying declaration of the woman Sadi as recorded by the Assistant Magistrate Mr. Howell. It was on the Magistrate's record, but it was contended that it had not been attached thereto until after commitment. We are surprised that such an objection could have been taken by any one representing Government as a public prosecutor. Objections were also taken to the form and character of the document. This has already been noticed.

11. Objection was next taken by the pleader for the defence to the commitment as invalid in law, and this was overruled by the Sessions Judge. In this respect it is sufficient to say that, however much we may regret the irregularities in the Magistrate's Court which have already been described, we are not disposed to disagree with the order of the Sessions Judge who overruled them as the case had come on for trial.

12. It now becomes our duty to describe and consider the evidence on which the Sessions Judge, differing from the assessors, has convicted all the accused.

13. The case for the prosecution is that the delay on the part of the planter Cockburn in paying the prisoners' money due to them for work connected with some houses, and the recent receipt of money by Cockburn, suggested to the prisoners the idea, of looting the bungalow so as to obtain what was due to them, and that from being employed on the premises they knew that this money had recently been received by Cockburn. There is, however, an entire, absence of proof that any money was due to these men. The statements of the approvers, Mukhta and Mohan, are not clear on this point.

14. The evidence of these approvers, on which the convictions entirely depend, has, as already stated, been obtained under circumstances of much irregularity tending to throw great suspicion on it. The assessors, we observe, disbelieved that evidence, holding that the approvers had been tutored, and one assessor has further stated that he noted that, when being examined for the prosecution, the approvers answered readily, but when cross-examined they had to think. The statements themselves are clearly not candid nor full. Neither of the approvers admits that he took any prominent part in the attack or plunder. They describe themselves as having accompanied the men who really committed the offence charged, and to have remained on guard so as to give warning of the approach of any interruption to the attack on the bungalow, and generally to have been at most spectators of what others did. They do not even describe what they say they saw correctly, for they both state that the chowkidar was cut down by two of the prisoners, whereas his body shows only one wound on the head, and as the medical evidence describes that wound it is impossible that two cuts should have been delivered on the same part of the head. One cut must have felled the chowkidar so as to make it impossible that a second cut should have been delivered on the same spot, so as to give the appearance of one wound. Mukhta alone describes how Cockburn was cut down. Then they both say that the money was taken out of the safe in a bag, but the garden clerk has stated that the money was kept in the safe and inside a wooden box and a broken wooden box was found on the premises, but neither of the approvers mentions any box. They also say that afterwards they stopped below the Haibang tree, and that they each received Rs. 10, and left. Whether the others, except Amoo, received anything they cannot say, and it does not appear that there was any further distribution, though there was ample opportunity for this. So far, therefore, the statements of the approvers are very unsatisfactory. They do not fully describe what took place, and in some respects their statements are contradicted on very material points.

15. In the next place there is absolutely no real corroboration. There is some evidence that some of the prisoners were seen together in consultation before the offence, and also that some were seen together shortly afterwards. As to the first we think that such evidence is of very little importance even if it be believed. The men are all Manipuris, and their being together may have been for a lawful and proper purpose. As to the second we think that the evidence is altogether unreliable. It was obtained, the Inspector admits, long after the commission of the offence, and it is impossible to believe that the witness Babu Singh should have recollected it as an extraordinary and unusual circumstance, seeing these prisoners going along on this particular night on which in consequence of a festival every one was moving about and keeping late hours. Then there is some evidence that shortly after the offence one of the prisoners was possessed of money and lent it on a bond. But there is nothing reliable to show that he was not honestly possessed of this money. That he had money before the commission of the offence now under trial is proved by one of the bonds on the record by which he on a previous date lent money. There is, therefore, not only an absence of all corroboration of the statements of the approvers, but those statements are in themselves very unsatisfactory, and in. some respects opposed to facts about which there can be no doubt. The assessors have disbelieved the evidence of the approvers, because it has the appearance of being tutored. The statements were, as already mentioned, first obtained after a detention in Police custody for nearly one month, if not longer. They were recorded after such detention, not by the committing Magistrate, but by a Magistrate of inferior grade and while these men were still in Police custody. They were recorded as made by these men as witnesses under solemn affirmation, and consequently without a certificate, such as would have been made by the Magistrate if they had been properly recorded, that the statements were voluntarily made. The Sessions Judge, however, accepts the evidence of the approvers as reliable, because the story told is 'a long and detailed one,' because it would be difficult to tutor these men who knew no Bengali, because they were kept apart, and because he does not consider that the Inspector was capable of such misconduct. The Sessions Judge, however, has overlooked the length of time that these men were in Police custody before they made any statement to a Magistrate or the details of those statements on points on which they might have been corroborated, and were contradicted, apart from the long detention in Police custody. We have no hesitation in agreeing with the assessors that the evidence of the approvers is not reliable. That long detention seems to us unmistakeably to show that those statements were obtained under pressure by the Police.

16. In regard to Sagal Samba Sajao we think that he cannot properly be convicted on his own statements. His first statement to Mr. Lees, which was made in Manipuri, was obtained through an interpreter, who translated it into Bengali, and thence it was retranslated and recorded by the Magistrate in English. It was also recorded in Manipuri. That record, however, is very different from the English record. The Manipuri document must be regarded as the proper record and the only evidence in this case, and on that he cannot be convicted. It is not improbable that he may have made the statement as recorded by Mr. Lees in English. But even on that statement he cannot properly be convicted. There are, however, serious objections to accepting that statement apart from the objections to its being inadmissible as contradicted by the Manipuri document. Moreover, the manner in which that statement was obtained after several days of Police custody, and at the Police station, would raise serious doubts in our minds whether it was really voluntarily made. The statements obtained by the Magistrate on the 3rd of August, by what cannot be regarded except as a cross-examination of the prisoner, so as to substantiate and supplement the statement recorded by Mr. Lees in English, are also open to serious objection, In addition to what has already been said on this subject we think that there is every reason to believe that the statements were made in consequence of inducements or promises within the terms of Section 241 of the Evidence Act. For all these reasons we cannot convict Sagal Samba Sajao on his own statements. We may add that if the Manipuri statement, which in our opinion is the proper record, had not been made, the Magistrate would not have strictly complied with the spirit and intention of Section 364 of the Code of Criminal Procedure in recording that statement in English. The statement was made in Manipuri, and communicated in Bengali to the Magistrate through a sworn interpreter, and again translated by the Magistrate into English and so recorded. The law requires that ordinarily such a statement should be recorded in the language of the person malting it, the object being to represent the vary words and expressions used so as to ensure accuracy, and prevent misrepresentation or misconstruction of what was said. If such a record is not practicable the law directs that the statement shall be recorded in the language of the Court or in English. If, however, as in this case, a second translation be made, and the statement be recorded as so understood, the accuracy which the law contemplates is made more remote. This we may observe was done in the present case without any reason, since there must have been ample means at hand to render into Bengali the statement as recorded by the Inspector from the prisoner's words in Manipuri. We must not be understood to hold in this case that it the Manipuri document had not existed we should have held the English record to be inadmissible as evidence. We would merely caution the Magistrate against a repetition of such procedure as tending unnecessarily to affect the weight which might be attached to the accuracy of a statement so recorded.

17. Reference has already been made to the circumstances under which the statement of Sagal Samba Sajao was recorded by Mr. Lees on 3rd July. He had at that time been in Police custody since the 28th or 29th of June. We can find no reason on the record why he was so detained by the Police beyond the term allowed by Section 167 of the Code of Criminal Procedure. Mr. Lees has stated that he went to the place of investigation for the express purpose of recording that statement, so that it must have been known that the prisoner was inclined to make some statement. If such intimation could be made to the Magistrate so as to bring him to the spot there was ample time to send him on to the Magistrate. This is the course usually taken, and it should, in the present instance, have been specially observed, seeing that the man had already been for several days in Police custody. The statement was recorded at the Police station, but we do not find that beyond this, and the prolonged and illegal detention in Police custody, and the conclusions necessarily arising from these circumstances, and the objectionable course taken in sending for a Magistrate instead of sending the prisoner to a Magistrate, there was any reason to suppose that the statement when made, whatever it was, was not properly made. Still in drawing attention to all these points we must strongly condemn the proceedings taken. Others were similarly detained in Police custody for a very long term, but under authority of various orders of the District Magistrate improperly given and without any regard to the law which requires that before detention in Police custody is sanctioned special reasons should be recorded by the Magistrate. Not only were no special reasons recorded, but so far as the record shows none could have been assigned. We observe too that in one instance the Police asked for permission for a further detention of some men for eight days, and the Magistrate sanctioned a detention of ten days. It is, we trust, sufficient to mention these facts, for no doubt they will receive proper notice from the local Government.

18. The refusal of the District Magistrate to allow the prisoner, when brought before him, to communicate with their pleader so as to properly instruct him as to their defence was also most arbitrary and improper, and his refusal to allow any cross-examination during the judicial inquiry in his Court before commitment is open to the same condemnation.

19. Mr. Hill for the prosecution, without attempting to support the refusal to cross-examine, has endeavoured to show that the Magistrate may have been misled by the terms of the Code of 1882, when contrasted with those of the Codes of 1861 and 1872. Mr. Hill pointed out that, although the Evidence Act, 1872, provides for cross-examination after an examination-in-chief, the Code of 1872 passed simultaneously expressly allowed cross-examination by the accused during an enquiry previous to commitment, but that the Code of 1882 omitted this, and that thus the Legislature has given some reason for believing that it was intended to deprive an accused of such a right before commitment. Mr. Hill has also drawn our attention to the terms of Section 2102 of the Code of 1882, which directs a Magistrate to frame a charge if, upon taking the evidence for the prosecution and such examination of the accused as may be thought necessary, he finds that there are sufficient grounds for committing the accused for trial, and that Section 256 of the Code of 1882 gives an accused, in a warrant case, the right to recall and cross examine a witness for a prosecution only after a charge has been drawn. Mr. Hill, therefore, contends that the Magistrate may not unreasonably have understood the Legislature to have intended to restrict the right of cross-examination by an accused until after a charge has been drawn, or until it has been found that prima facie an offence has been proved against the accused. We cannot, however, accept this view of the law or agree in holding that it is in accordance with our experience of the practice of Magistrates or reasonable. If the law (Section 342) allows a Magistrate to examine an accused in the course of an inquiry or trial so as to enable him to explain any circumstances appearing in evidence before him before a charge has been drawn, surely he has a right by cross-examination to show that those circumstances have been improperly made to appear in the evidence given. The express provision made in the Code of 1872 for a cross-examination in any enquiry and its subsequent repeal, in our opinion, are of little significance, seeing that the Evidence Act provides for a cross- examination as part of the record of evidence taken in a judicial proceeding. The fact that the Code of 1872 and the Evidence Act of the same year both simultaneously expressed the same thing was no doubt considered by the Legislature in revising the Code as a redundancy. The reference made by Mr. Hill to Section 256 as to cross-examination after charge has been drawn in a warrant case does not really affect this point, for it does not prohibit cross-examination before a charge. As we understand the law it permits a further cross-examination expressly directed to the case found and embodied in the charge, and would enable an accused person, if he has reserved his cross-examination, to exercise his right at that time subject to a discretion given to the Magistrate by Section 257. We are surprised to find that in this case the Magistrate should have deprived the accused of a right which is in accordance with elementary principles of judicial procedure. It should have been allowed if only to avoid any appearance of unfairness in his proceedings. The prejudice to the accused has, in this case, been aggravated by the fact that the Sessions Judge has under Section 288 thought proper to treat the evidence so taken by the Magistrate without cross-examination as evidence on the trial, because some of the witnesses have in his opinion made contradictory or inconsistent statements to him. We do not at present refer further to this matter because we are now pointing out irregularities only in the Magistrate's proceedings.

20. The proceedings of the Magistrate in respect of the witness Jamra Singh also appear to us to be arbitrary and illegal. Because this witness did not depose, as the Police Inspector said he had spoken to him he was declared to be a hostile witness, and was cross-examined by the Inspector for the prosecution, and finally he was ordered to give Rs. 200 bail to appear when called for. This witness too, like the other witnesses examined by the Magistrate, was not tendered for cross-examination by the accused during the enquiry.

21. The Magistrate too readily accepted the statement of the Police Inspector on this point, and before he allowed this witness to be treated as a hostile witness he should have had something substantial to contradist him. The Magistrate's order regarding bail for this witness to appear when called for is, in our opinion, unauthorized by law. It does not appear that the witness himself was in any way disinclined to appear when called for by the Magistrate and, therefore, an ordinary recognizance should have been sufficient. We observe too that the consequence of this order has been that the witness has remained in confinement for more than a month and a half, that is until the Sessions trial. We are compelled, therefore, to come to the conclusion that the proceedings of the Magistrate have very materially prejudiced the accused.

22. In the Sessions trial too, the prisoners have much reason to complain. They were suddenly deprived of the benefit of the dying declaration made by the woman and recorded by Mr. Howell, and when they asked to have the evidence of Mr. Howell taken to make that statement admissible as evidence, the Sessions Judge abstained from issuing process so as to obtain the attendance of Mr. Howell, and finally he refused to do so for reasons which are altogether untenable. He then proceeded himself to consider Sadi's dying declaration, and rejected it as unreliable, forgetting that the assessors with him formed the Sessions Court, and that they equally with him were entitled to express an opinion on the weight to be given to any matter in the case affecting the result.

23. As to the witness Sajao Singh the procedure of the Sessions Judge is also open to objection. Before the Magistrate this witness stated that two of the prisoners left his house at about 10 A.M. Before the Sessions Court he said that they remained all night. He accounted for this contradiction as being due to a mistake. This contradiction was not itself sufficient ground for treating this witness as a hostile witness. The Sessions Judge, however, allowed the prosecution to cross-examine him because, 'I find on enquiry from the prosecution that they believe that they can prove facts which tend to show that the witness has probably been got up, apart from the difference in his evidence.' (The italics are those of the Sessions Judge). The prosecution have not attemped to do this, and to act on such a ground was clearly improper.

24. The deposition of this witness to the Magistrate, as well as those of other witnesses given before the Magistrate, were under Section 288,3 treated as evidence at the Sessions trial. We have already stated that, as those depositions were without any cross-examination by the accused, they should not have been so admitted in evidence. They were incomplete as they were without any cross-examination, inasmuch as the accused had not been allowed to cross-examine the witnesses. Section 288 permits a Sessions Judge to act in this manner if the evidence of a witness has been 'duly taken.' The evidence of these witnesses, in our opinion, was not duly taken since the accused had not been allowed to cross-examine them. Section 288 requires that the evidence must have bean 'duly taken' in the presence of the accused before the committing Magistrate. To require the presence of the accused merely to hear the ex parte statements of a witness without allowing him to show by cross-examination that the statements are untrue or unreliable defeats the real object of the law, for it deprives the accused of any substantial benefit from being present. In the course of the Sessions trial serious charges of misconduct were made against Khedan Singh and one Gossain, who apparently were employed by the Inspector Bboirub Chunder Deb during the Police investigation. Khedan was also employed as an interpreter to the Magistrates Mr. Howell and Mr. Lees. It appears to us that these charges have not received sufficient attention. How far after this interval of time they can be substantiated (supposing that they are true) may be doubtful, but that they should be made the subject of proper enquiry is very necessary.

25. We much regret to find such numerous and serious irregularities in the course of the proceedings before and during this trial, all of which must have seriously prejudiced the prisoner. On the evidence too we think that none of the prisoners can properly be convicted. The convictions depend entirely on the weight to be given to the evidence of the approvers, and we have no hesitation in agreeing with the assessors that that evidence is altogether unreliable.

26. All the prisoners are accordingly acquitted.

1 Confession caused by inducement, threat or promise irrelevant.

[Section 24 : A confession made by an accused person is irrelevant in a criminal proceeding if the making of the confession appears to the Court to have been caused by any inducement threat or promise) having reference to the charge against the accuse person, proceeding from a person in authority and sufficient, in the opinion of the Court, to give the accused person grounds, which would appear to him reasonable, for supposing that by making it he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him.]

2 When charge is to be framed.

(Section 210: When, upon such evidence being taken and such examination (if any) being made, the Magistrate finds that there are sufficient grounds for committing the accused for trial, he shall frame a charge under his hand, declaring with what offence the accused is charged.

Charge to be explained, and copy furnished to accused.

As soon as the charge has been framed, it shall be read and explained to the accused and a copy thereof shall, if he so requires, be given to him free of cost.]

3 Evidence given at preliminary inquiry admissible.

[Section 288 : The evidence of a witness duly taken in the presence of the accused before the committing Magistrate may, in the discretion of the presiding the if such witness is produced and examined be treated as evidence in the case.]

Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //