1. This is an appeal from a sentence passed by the Sessions Judge of Patna upon three persons, Roghuni Sing, Ram Charan Singh, and Kanya Singh, who have been convicted, the first mentioned of murder, and the other two of abetment of murder, and have all three been sentenced to transportation for life. Two other persons, namely, Ram Lall and Bhoran, were tried, together with the appellants before us, and were acquitted by the unanimous verdict of the jury.
2. The prisoners, appellants, have been convicted by a majority of three out of five jurors.
3. It appears that the jury retired for eight minutes only, and in this case I desire to observe that this time was insufficient to enable the jury to consider the evidence, and deliberate thereupon amongst themselves.
4. The facts of the case for the prosecution are briefly these: Two persons, Radha Singh and Mewa Singh, were said to have taken a lease of some 10 bighas 13 cottahs of land from one Lakhon Mahton, ijaradar. On the morning of Monday, the 24th July 1882, these two persons, Radha Singh and Mewa Singh, went to a portion of the land consisting of some 10 cottahs, taking with them three labourers, namely, Sukun, Gania and Badhan Mahton for the purpose of transplanting paddy plants. There can be no doubt that between Radha and Mewa on the one side, and Ram Lall on the other side, there had been previous litigation and dissension. The story of the prosecution is that about mid day Ram Lall and Bhoran came and ordered Radha Singh and Mewa Singh and their workmen to desist and then went off, giving orders to the prisoners Roghuni Singh, Ram Charan Singh, Kanya Singh and others to beat Radha Singh and Mewa Singh, and their people, if they did not desist. There is no suggestion that Ram Lall and Bhoran were on the spot when the subsequent occurrence took place. It is then said that Gunia and Sukun desisted from work, but that Badhan Mahton still went on working, whereupon Roghuni Singh, Ram Charan Singh and Kanya Singh came over, and Roghuni Singh struck Badhan on the head with a lati. Ram Charan Singh then struck him on the side of the temple, and Kanya Singh struck him on the side. There can be no doubt that Badhan Mahton died from congestion of the brain in consequence of having been struck on the head with some hard substance.
5. Now the case for the prosecution is that this hard substance was a lati, and that this lati was in the hands of the prisoner Roghuni Singh. The case for the defence on the other hand is, that the injuries to Badhan's head were not, and could not have been, inflicted by a lati, but that they were inflicted by a wooden instrument called an Arhan, and that Radha Singh himself had struck Badhan Mahton with this wooden instrument while aiming a blow at one of the opposite party, which missed him, and came down on the head of Badhan Mahton who was sitting down working transplanting the paddy plants. No witnesses were called in the Court of Session to prove the case set up by the defence, and we have to consider only the evidence for the prosecution, and the manner in which that evidence has been dealt with by the Sessions Judge.
6. It is to be observed, however, that the prisoners, in their statements before the Court of Session, alleged that they seized Radha Singh, and took him to the Cutchery close by, where the jemadar of police was staying, and charged him, then and there, with having caused the death of Badhan. Now, although the jemadar examined most of the other persons who were present on the scene, he did not examine Radha, and this does seem to show that at that particular time Radha did not occupy the position of a witness.
7. A number of objections have been taken before us to the evidence produced, at the Sessions trial, and the manner in which that evidence was dealt with by the learned Judge in his summing up to the jury. I propose to deal only with two of these objections. The first is concerned with the observations which the Judge made to the jury as to the discrepancies between the account given by the witnesses in the Court of Session, and the previous account of the transaction given by them to the police jemadar.
8. I observe that the Sessions Judge read out to the jury the depositions or statements of the witnesses which were recorded by the police jemadar. I think that this was not a proper course. Section 119 1 of the Code of Criminal Procedure provides that these statements shall not be signed by the person making them, nor shall they be treated as part of the record or used as evidence. It is, therefore, perfectly clear that these statements are not depositions, do not prove themselves, and cannot be treated as evidence. They might have been used by the police officer to refresh his memory. But even if this were done, the evidence given by the police officer after so refreshing his memory from these statements, and not the contents of the statements themselves, would have been the relevant evidentiary matter. There can be no doubt that the account given by the witnesses to the jemadar, and the account given by them at the trial, very materially vary. The Sessions Judge with reference to this said to the jury:
Undoubtedly the discrepancies between the statements to the jemadar and those now made were a matter for serious consideration. The statements to the jemadar were recorded by him on the day of the occurrence, and if he had correctly taken them down they were more likely to be truthful than those made in Court a month afterwards. Now there were two suppositions which might be made as to the discrepancies. The first was that the jemadar had not accurately taken down the statements. The other was that the witnesses had really not mentioned Ram Lall and Bhoran as giving the orders, and that the present statement to that effect and other alterations from the former statements were subsequent inventions of the witnesses. As regards the first supposition it was no doubt the case that the police did not always record statements correctly. This might arise from dishonesty and collusion, and it was evident in this case that the wealth was on the side of the prisoners. Some of them were zamindars and mokuraridars, while Mewa Singh and Radha Singh were poor men who had been sold out of their lands and almost out of their houses: or there might be mere neglect or stupidity without dishonesty.
9. I think that it was improper to suggest to the jury that the fact of wealth being on the side of the prisoners might have influenced the police jemadar in recording the statements made to him by the witnesses, there being no evidence on the record that the prisoners or any persons on their behalf attempted to tamper with the police jemadar.
10. The second objection is that the Sessions Judge was wrong in calling Dr. Shaw, the Civil Surgeon, to contradict the deposition of the Assistant Surgeon Moulvi Asder Ali Khan. It is further said that, even if Dr. Shaw's evidence could have been admissible, it ought not to have been admitted without calling the Assistant Surgeon, and giving him an opportunity of explaining more fully the reasons for the opinions expressed in his deposition. The essential part of the deposition of the Assistant Surgeon is as follows:
The skull was fractured from the left temporal bone across the parietal bone, and the fracture was terminated at the end of the sagittal suture. The fracture was about four inches long. There was also a superficial wound a little above the left temporal region about two inches above the ear. Underneath this wound there was no fracture. This was a slight superficial wound. There was also an abrasion below the right ear; this was very slight and superficial. Neither of the ears were hurt. On removal of the scalp I found a patch of extravasated blood about 4 inches long and 2 1/2 to 3 inches broad just above the fracture.' And further on: 'In my opinion one blow caused the fracture. Any flat substance would have caused that fracture. Under no circumstances would a lati cause such a fracture, because a lati would have cut open the scalp and would not have caused such a wide-spread extravasation of blood. Neither of these two latis in Court could have caused the fracture. I examined the body thoroughly, but found no other hurt. The hurt above the left temporal region and the abrasion below the right ear could not have been caused by these latis in Court, or any ordinary lati. The abrasion below the right oar may have been due to a fall, no lati whatever would have caused it.
11. Dr. Shaw was called as a witness, and the following question was put to him by the Sessions Judge:
Question-'The Assistant Surgeon of Barh has stated in his evidence that the skull was fractured from the left temporal bone across the parietal bone, and the fracture was terminated at the end of the sagittal suture. The fracture was about four inches long. He has also said that no latis could produce the said fracture, because a lati would have cut open the scalp, and would not have caused such a wide-spread extravasation of blood. Can you state if in your judgment this opinion of the Assistant Surgeon is correct?
Answer.-In my opinion, the opinion of the Assistant Surgeon is not correct. A blow from a lati might be given with sufficient force not to wound the scalp at all. Besides, the superficial wound described by the Assistant Surgeon in his report as half an inch long and a little above the left temporal region corresponds with the fracture, for he goes on to say that on removing the scalp the skull was found cracked running from about two inches above the left meatus across the temporal bone, the parietal, backwards and upwards, terminating at the sagittal suture. Judging from this the superficial wound corresponded to the upper third of the fracture. A fracture may extend further than the external wound. The Assistant Surgeon is also not correct in stating that there could not be an extravasation of blood, 4 inches long and 2 1/2 inches broad, caused by a round lati. Unless the wound has a particular appearance you cannot tell from a fracture whether it was caused by a flat board or a round lati. The latis in Court could have produced a wound like that described by the Assistant Surgeon.
12. There can be no doubt that Dr. Shaw in this deposition based his opinion in many important respects not upon the facts which the Assistant Surgeon stated, but upon facts somewhat, and in one respect essentially, different. The Assistant Surgeon stated in his evidence that underneath the wound, that is the superficial wound above the left temporal region, there was no fracture. Dr. Shaw by a course of reasoning arrived at a different fact, namely, that 'the superficial wound corresponds to the upper third of the fracture'; and upon this different fact in part bases his opinion. Then Dr. Shaw refers to the 'report,' that is the report of the post-mortem, written in the form usually filled up by Civil Surgeons at the time of making the postmortem examination. Now this report was not evidence, and, therefore no facts, could have been taken therefrom. The Assistant Surgeon might have used this report to refresh his memory when giving evidence; but the report itself was not admissible in evidence.
13. But there is a still further and a more important consideration. The Assistant Surgeon had actually seen the dead body, and had performed the post-mortem examination; and his evidence, as that of a medical expert was, therefore, admissible, first, to prove the nature of the injuries which he observed on the dead body; and, secondly, as opinion-evidence with respect to the manner in which those injuries were inflicted, and the cause of death. Now Dr. Shaw had not seen the dead body, and had not made the post-mortem examination, and the difficulty in which he felt himself placed appears from what he says in a subsequent part of his deposition, namely:
It is difficult for me, without having seen the fracture, to form any definite conclusion about it. Reading a description would not help me so much as actually seeing the thing.
14. Dr. Shaw was in the position of an expert witness who could give nothing but opinion-evidence. The general rule as to evidence of this kind is that the questions must be put to the witness hypothetically, put in this way:
Assuming such and such facts to be true, what is your opinion on the matter?' 'Assuming such and such an injury, an injury of such and such a kind to have been inflicted, what is your opinion as to the nature of the weapon by which it was possibly or probably inflicted
15. The facts thus hypothetically stated to the witness would of course be the facts which the evidence of the other witnesses in the case attempted to prove, and as to which it was for the jury to find whether they had been proved or not. If in this particular case the Sessions Judge of Patna had put the question to Dr. Shaw, assuming the injuries deposed to by the Assistant Surgeon, and had asked Dr. Shaw his opinion as to the weapon by which these injuries might' or could have been inflicted, there might perhaps have been no valid objection to the evidence. But even if this course had been pursued, I think that having regard to the importance of the question at issue, it would have been only fair to the prisoners to put the Assistant Surgeon into the witness box, and give him an opportunity of stating his reasons for the positive assertions contained in his deposition. I may observe that although Section 323 of the Code of Criminal Procedure allows the examination of a Civil Surgeon, taken and duly attested by a Magistrate, to be given in evidence in the Court of Session, it does not in any way preclude the Sessions Judge from calling the Civil Surgeon and examining him. And this course ought to be. pursued in every case in which the deposition taken by the Magistrate is essentially deficient or requires further explanation or elucidation. Unfortunately, however, Dr. Shaw was not questioned in the manner just indicated; and he was asked to sit in judgment upon the Assistant Surgeon; asked substantially to exercise the functions of the jury in forming an opinion upon the credibility of the Assistant Surgeon's evidence. I think that this course was essentially an erroneous one. If the Assistant Surgeon had been placed in the witness box, and allowed to give his reasons for the views contained in his deposition, he might have stated further facts, observed upon the post-mortem, which would strongly support the correctness of his views, or under further examination he might himself have seen reason to modify the positive opinion expressed by him before the Magistrate, and if Dr. Shaw had been questioned, assuming the facts to be as stated by the Assistant Surgeon, this gentleman also might have stated the reasons for his views. If as the result there was any substantial difference of opinion between the Civil Surgeon and the Assistant Surgeon, the jury would have been in a position to judge for themselves which view appeared to them most likely to be correct. I think that having regard to the great materiality of the question as to the weapon used, it is impossible to say otherwise than that the prisoners have been prejudiced by the manner in which the medical evidence was dealt with by the Judge and placed before the jury. Under these circumstances I think that this conviction must be set aside.
16. I have carefully considered the further order which ought to be passed in this matter, and I think that there ought to be a new trial. The prisoners called no witnesses to support the case set up by them; and, this being so, I cannot feel satisfied that their defence is so extremely probable as to make it undesirable in the interests of justice that they should, a second time undergo a trial upon the serious charges preferred against them. I think I ought to point out that while two of the prisoners Ram Charan and Kanya have been convicted of abetting murder, there is nothing to be found in the Judge's charge explanatory of the law of abetment, and it does not appear what particular conduct on their part was considered to amount to abetment within the definition under Section 107 of the Indian Penal Code.
1[Section 119-An officer in charge of a Police-Station, or other Police officer making an investigation, may examine orally any person supposed to be acquainted with the facts and circumstances of the case, and may reduce into writing any statement made by the person so examined. Such person shall be bound to answer all questions relating to such case put him by such officer other than questions criminating himself.
No statement so reduced into writing shall be signed by the person making it, nor shall it be treated as part of the record or used as evidence.]
Oral examination of witnesses by Police.