1. This is an appeal against the conviction of the three appellants under Section 304, part II read with Section 34, Penal Code, and a sentence of eight years' rigorous imprisonment and further of the appellant Balabhadra Sow under Section 323, Penal Code, with rigorous imprisonment for three months, the sentences to run concurrently in his case. The verdict of the jury was unanimous and was accepted by the Additional Sessions Judge of Midnapore.
2. One Mahadeb Pal is said to have been attacked by the three appellants and others and such injuries were inflicted as subsequently resulted in his death. A first information report was made to the thana by a chowkidar which was entered in the general diary. Subsequently, another local man Janmanjay gave a further information and it appears that this was not rightly allowed to go in evidence in view of Section 162, Criminal P. C., as the police had already started investigation. It further appears that when the Sub-Inspector came to the locality none of the witnesses who ate alleged to have been eye-witnesses made any statement to him regarding any of these persons and it further appears that subsequently an explanation was asked for and obtained from them by the Sub Inspector. It appears that following the usual practice of a most objectionable nature these statements were taken down in what is called the 'boiled' form. There is absolutely no justification for this sort of statements being recorded together. It has been made clear by the amendment of Section 161, Criminal P.C., that the police may not record any statement at all bat if they choose to record any statement as important or necessary they are not to do so in a boiled form but separately under each such witness so that the defence may use it in accordance with Section 162 of the Code. This has been repeatedly pointed out by this Court and is still being pointed out without, it appears, much effect. There is absolutely no justification for flouting the Legislature and the Courts by the police authorities. The evidence of the Sub-Inspector Santosh Kumar Munshi, prosecution Witness No. 15, is that he has done this under instructions received from his superior officers. Nothing can be more astounding than this and one cannot but too severely condemn such instructions being given contrary to the latter and the spirit of the Code. It further appears that as these statements were said to have been in a boiled form and as it was considered that the defence would .not be entitled to such statements, proper materials could not be placed before the Judge and the jury. In view of the order we are going to pass it will not be at all proper for us to express any opinion on the merits of the case and so we refrain from doing so.
3. We think it is necessary in the interests of justice that this case should go back and copies of all the so called 'boiled' statements of the witnesses should be supplied to the defence from the Police Diary and the case should be retried under Section 304, Penal Code.
4. The question of bail of the accused persons will be at the discretion of the Sessions Judge.
5. The appeal is allowed. The conviction and the sentences are set aside and the case is sent back for retrial in the light of the observations made above.