Khundkar , J.
1. This is an appeal by eleven persons against their convictions and sentences in a trial held by an Assistant Sessions Judge with the aid of a jury. They were found guilty of offences under the following Sections of the Penal Code : the appellant Mobarak Ali under Section 148 and the second part of Section 304; the appellant Oresh Ali under Sections 148 and 324, and the remaining appellants under Section 148.
2. The case for the prosecution was that there had been a long standing feud between two parties, one headed by the appellant Mobarak Ali, and the other by one Khairuddin, and that in consequence of this an occurrence took place in which Mobarak Ali's party were the aggressors. It is alleged that early in the morning of 22nd December Khairuddin was sitting in his baithakkhana in company with the deceased Barshed, one Himmat Ali and. certain others, when the appellants came up armed with weapons which included spears. One Mohamed Ali, who was in the appellant's party, urged his associates to do away with Khairuddin. The deceased Barshed intervened, whereupon Mohamed Ali ordered his companions to assault him. The appellant Mobarak hurled a spear which struck Barshed in the throat causing almost instantaneous death. The appellants attacked the men of Khairuddin'a party causing injuries to a number of them. One of these was Himmat Ali who was struck on the arm with a fishing spear thrown by Oresh Ali. The appellants then fled. One Borhan, who was an eyewitness, was deputed to lay information with the police. He proceeded to the Uluberia than where he arrived at about 9-30 A.M. But the Assistant Sub-Inspector who was in charge of the station, refused to record his in formation and drove him away. Borhan then sought the assistance of a Muktear who drafted an account of the occurrence. Armed with this, Borhan went again to the police station, where after some delay the document was accepted as a first information report. It would appear that earlier that morning at about 8 O'clock, the appellant Mobarak Ali had also made a complaint which was recorded in the general diary and which was to the effect that people of the complainant's party were contemplating some mischief. The case for the defence was that an occurrence took place, not at the baithakkhana of Khairuddin, but at the houses of Oresh Ali and one Ainuddin where an attack was launched by people of the complainant's party, and that a spear thrown by one of them, a man called Pada Nausher, struck the deceased accidentally. As regards Mobarak it was contended that he -was not there at all, he having gone to the police station to make his complaint.
3. The charge to the jury is not very happily constructed. It is disjointed in expression, and is marked by unnecessary repetition of the evidence. But whether it contains misdirections, such as would necessitate a new trial, is another matter. On behalf of the appellants several points have been taken. It was contended that the learned Judge had failed to draw the jury's attention to materials which would show, firstly, that the injury to the deceased could not have been caused by the spear which was produced at the trial, and secondly that the affray took place at the homesteads of Oresh AH and Ainuddin. Upon examining the summing up we find that the learned Judge has reminded the jury of the medical evidence and has asked them to consider whether the injury on Barshed was caused by the spear which was exhibited, or by another of a different size. The learned Judge has also drawn the jury's attention to what the investigating officer saw for himself when he arrived at the spot, including the condition and appearances of things in the homesteads of Oresh Ali and Ainuddin. It was next urged that the Judge should have pointed out to the jury, that although the common object of the unlawful assembly was stated to be to assault Khairuddin, that witness himself in his statement to the committing Magistrate omitted to say that the primary object of the accused was to attack him. This fact is however specifically referred to, and in our judgment the learned Judge's comment with regard to it was quite sufficient. It was next contended that certain discrepancies in the evidence regarding the position in which Barshed's dead body was lying were not pointed out. The Judge has however adverted to these discrepancies, and we do not think the jury could possibly have lost sight of them.
4. The point most strenuously argued on behalf of the appellants concerns the learned Judge's refusal to allow the defence pleader to cross-examine the Investigating Officer and P.W. 16 upon certain statements made to the former during the investigation. It is contended that the learned Judge disallowed questions which the defence had a right to put under the proviso to Section 162, Criminal P.C. In Mafizaddi v. Emperor : AIR1927Cal644 and Sadhu Shaik v. Emperor : AIR1928Cal260 it was held that the fact that statements made during police investigation were recorded in the diary kept under Section 172 of the Code, would not take them out of the operation of the proviso to Section 162. These decisions are an authority for the proposition that once a statement made by a witness to a police officer is reduced to writing, no matter where, it becomes a statement recorded under Section 161. In Emperor v. Karimuddi : AIR1932Cal375 it was laid down however, that where what was recorded was not a statement in the ordinary sense, but an abstract of statements made by several witnesses which the police officer had boiled down into a statement of his own, the defence would not be entitled to use it in the manner provided by Section 162. In this case we have considered it desirable to call for the police diaries in order to see for ourselves what was actually recorded. Upon inspecting them we find that they purport to be diaries kept under Section 172, and that they do not contain any statement by any witness, but are only brief records of what the investigating officer saw when he arrived at the spot, and of information which he ascertained as a result of questioning several people. In our judgment the rule enunciated in Emperor v. Karimuddi : AIR1932Cal375 applies to the circumstances of the present case, and we must hold that the learned Judge was right in disallowing the questions which the defence pleader desired to put.
5. It remains to consider one other question which relates to the defence of the appellant Mobarak Ali. The learned Judge in dealing with the contention that Mobarak Ali was at the police station at 8 o'clock that morning has put the matter as follows:
The incriminating circumstance about the suspicious and significant diary he made at the thana at 8-5 a.m. in the morning of 7th Pous about allegation without any overt act against Khairuddin's threat to him in the morning of 21st December ruthlessly points to his participation in the occurrence and according to the prosecution the Sub-Inspector, Nilmoni Maitra who has for mysterious reasons taken Mobarak under the wing o his beneficent protection and against whom the prosecution makes grave allegations of befriending Mobarak's party and refusing to do the needful in bringing the offenders to justice antetimed the diary to concoct a plea of alibi on his behalf and the prosecution urges that this tell-tale diary is a significant point for the acceptance of evidence of the prosecution as trustworthy.
6. The phraseology of this observation is not of the best, and the sentence in which it appears is rather involved. But on behalf of the Crown it is contended that the words 'and the prosecution urges that this telltale diary is a significant point for the acceptance of evidence of the prosecution as trustworthy' show that the learned Judge was here merely repeating an argument advanced by the prosecution. That may be so, but the jury may well have been misled by this observation, in view of the fact that the learned Judge has nowhere clearly explained the evidence in support of Mobarak Ali's alibi. In the absence of such explanation we think the passage quoted was a clear misdirection. In the result the appeal, in so far as it relates to the appellant other, than Mobarak Ali, must be dismissed. The appeal in so far as it concerns Mobarak Ali is allowed, and it is directed that he be retried according to law. The appellants who are on bail will surrender to their bail and serve out their sentence. Mobarak Ali will be treated as an under-trial prisoner until the completion of the retrial which we have directed.
7. I agree.