1. The case for the prosecution against the accused appellants in this Court divulged a diabolical crime of murder, the occurrence having been traced after the dead body of one Abdul Rahaman was accidently discovered, after some time had elapsed from the date when the man was killed on 26th July 1931. An information to the police what is generally known as 'a missing information,' was lodged by one Makbul, nephew and son-in-law of the murdered man, on 27th July. The deceased Abdul Rahaman was last found going to the house of Abdul Gafur alias; Gauhar Ali, one of the appellants before us, and his dead body was found in a decomposed condition lying buried under earth on 2nd August, when dogs were found scratching the place, and a foul smell was coming through a hole made by the dogs.
2. The learned Additional Sessions Judge of Bakarganj, against whose order of conviction and sentences passed on the appellants, the appeal to this Court is directed, accepted the verdict of eight of the jurors before whom the trial of the-accused was held, and passed the sentence of transportation for life against each of the four accused persons put upon their trial, Under Section 302 (read with, Section 120-B), and Section 302 (read with Section 109),. I. PC. The case for the prosecution rested on evidence under two heads, referred to as direct and circumstantial, by the learned Additional Sessions Judge. The direct evidence consisted of the evidence of two witnesses Sabar Bhanu (wife of the accused Gauhar Ali), and Jalekha (the wife of a deceased brother of Gauhar Ali). As the main question raised in this appeal relates to this, that the Sessions Judge ought to have excluded the statements of Sabar, Bhanu and Jalekha recorded Under Section 164, Criminal PC. as inadmissible under the law, and that the Judge ought, to have directed the jury that the procedure followed on behalf of the prosecution in putting in these statements recorded Under Section 164 was unjustifiable and illegal, it is desirable to deal with the same first. It appears that statements made by these two girls, Sabar Bhanu and Jalekha, were recorded by a Magistrate Under Section 164, Criminal PC., on 5th August 1931. They were subsequently examined as witnesses on the side of the prosecution before the committing Magistrate on 25th September and 30th September 1931. The two girls were examined as witnesses for the prosecution at the trial before the Court of Session, after the accused had been committed to that Court for trial. It appears that the statements of Sabar Bhanu recorded Under Section 164, Criminal PC, were put in at the trial before the Sessions Court at the instance of the Public Prosecutor, Under Section 145, Evidence Act, and her depositions before the committing Magistrate were also put in at the instance of the Public Prosecutor, Under Section 288, Criminal PC, So far as the statement of Jalekha Under Section 164 and her depositions before the committing Magistrate were concerned, they were put in at the trial before the Sessions Court at the instance of the pleader for the defence. The Additional Sessions Judge referred to the statements made by Sabar Bhanu and Jalekha on the three different occasions mentioned above, in his charge to the jury, and stated as follows:
All these statements, three in the case of each of the witnesses are before you. The statements before the committing Magistrate are evidence as much as their statements in Court. But you should bear in mind that the statements Under Section 164 can be used only for the purpose of corroborating or contradicting their statements in Court. Sabar Bhanu, in this Court, denies all knowledge about the occurrence. There are certain unimportant variations in the details, but the account of the occurrence as given in these three statements is substantially the same, Which of the statements should you believe .... All that I can do is to place before you all that has been urged for and against the different statements. Sabar Bhanu states before you that she made her previous statements because she was tutored to make them..... Her previous statements implicated her brother Manar Ali, and went very near implicating her husband Gauhar Ali.
3. With reference to the Judge's charge to the jury as contained in his statements quoted above, it must be said that the learned Judge was right in telling the jury that the deposition of the witnesses Sabur Bhanu and Jalekha before the committing Magistrate put in Under Section 288, Criminal PC, was substantive evidence in the case: they were as much evidence in the case as their depositions before the Court of Session. In regard to the statement Under Section 164, Criminal PC, the correct view to take is, in our judgment, undoubtedly the view taken by the Madras High Court in the case of Villiah Kone v. Emperor AIR 1923 Mad 20, that a statement by a witness recorded by a Magistrate Under Section 164, Criminal PC, was admissible in evidence to corroborate the statement made by that witness before the committing Magistrate from which statement the witness resiled in the Sessions Court. In support of the above proposition the learned Judges of the Madras High Court gave reasons in their, judgments with which we express our agreement. The credibility of the statement in the committing Magistrate's Court which must be considered as substantive evidence before the Court of Session, must be tested in exactly the same way as one made in the Sessions Court, and it was of utmost importance to know how it compared with the statements made soon after the event, before a competent authority. The object and effect of Section 288, Criminal PC., was to place the deposition in the committal enquiry, on exactly the same footing as the deposition in the Sessions Court.
4. If that be a proposition sound in law, as we hold to be the case, the credibility of the statement in the committing Magistrate's Court must be considered and tested in exactly the same way as one made in the Sessions Court. This is the position with reference to the statements referred to by the Judge in his charge to the jury on the question of their admissibility and value as evidence. It has to be considered, in the next place, whether the statement Under Section 164, Criminal PC, could be put in Under Section 145, Evidence Act, as it was done by the Public Prosecutor without declaring the witness Sabar Bhanu a hostile witness, Under Section 154 of the Act. In the case before us the witness was not declared hostile by the Public Prosecutor, and there was no intention declared to cross-examine the witness with the permission of the Court.
5. What appears to have happened was that the statement of the witness Under Section 164, Criminal PC, was put in for purpose of corroborating the deposition of the witness before the committing Magistrate, treated as substantive evidence; there was no bar in law to such a procedure being adopted, and there was no illegality involved in the same. The witness Sabar Bhanu was examined before the Court of Session, with all her previous statements put in, and placed on record before that Court. The defence had the fullest opportunity of putting all question to the witness in support of its case. There is no question of prejudice involved, and none was or is suggested on behalf of the accused. The provision contained in Section 145, Evidence Act, relates to cross-examination as to previous statements in writing, but does not militate in any way against such previous statements being used by way of corroboration of statements put in Under Section 288, Criminal PC, which are substantive evidence in the case before the Court of Session. In our judgment it could not be said in the case before us that the statement Under Section 164, Criminal PC, was inadmissible in evidence inasmuch as they were not put in strictly Under Section 145, Evidence Act; and we are decidedly of opinion that the contentions urged in this behalf by the learned advocate for the appellants, cannot be sustained. The procedure followed in the matter of using the statement Under Section 164, Criminal PC, was not illegal. As indicated already, even on the assumption that there was any irregularity involved in the procedure the statements having been put in Under Section 145, Evidence Act, the appellants before us were not prejudiced in their trial in any way, by reason of the irregularity in the Public Prosecutor not having declared the witness hostile, and not having put any question to her which might have been put in cross-examination, with the permission of the Court. We desire however to make the position clear that the statements Under Section 164, Criminal PC, could not be put to the jury in their entirety, Under Section 145, Evidence Act, or under any other provision of law had there not been evidence susceptible of corroboration recorded Under Section 288 Criminal PC.
6. The point next raised before us was the one relating to the direction of the Judges to the jury so far as circumstantial evidence in the case was concerned. It was urged that the proper warning had not been given to the jury in this behalf: that it was not sufficient for the Judge to say that you must see whether the circumstances taken together lead reasonably to no other conclusion than the guilt of the accused; it was incumbent upon the Judge to tell the jury exactly in line with the decision of this Court in the case of Emperor v. Iman Ali (1904) 8 CWN 278 that it is a fundamental principle and one of universal application in cases dependent on circumstantial evidence, that in order to justify any inference of guilt, the incriminating facts must be incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis than that of his guilt; if the circumstances are found to be as consistent with the innocence or with the guilt of the accused, no inference of guilt should be drawn. It is only necessary to state in this connexion that although the words used in the decision to, which reference has been made above, had not been used by the learned Judge, the direction and the warning given by him are in consonance with that decision. We are unable therefore to hold that there was any misdirection in the matter of the circumstantial evidence in the case which was placed before the jury in detail. Furthermore, the decision in the case before us was not dependent on circumstantial evidence alone and the proposition laid down in the decision of this Court in Iman Ali Sircar's case (1904) 8 CWN 278, referred to above, cannot be held to be strictly applicable. There was the evidence of the crime directly given by witnesses before the Court and there was also the circumstantial evidence to which reference was made by the Judge in his charge to the jury; the jury were asked to give their verdict on evidence classed under two heads, direct and circumstantial.
7. In regard to the evidence of Jalekha whose previous statements were put in by the pleader for the defence, the complaint made before us on behalf of the appellants was, that her story incriminating the accused had gradually developed. This is a position on which stress was laid by the pleader for the defence in the Court below, and was clearly indicated by the Judge in his charge to the jury. The jury were asked, to come to their own conclusion regard being had to the previous statements made by the witness and her deposition before the Court of Session. No question of any illegality or irregularity in the matter of reception of Jalskha's previous statements nor any question of misdirection or non-direction in the matter of placing the witness's evidence before the jury could be seriously pressed for our consideration.
8. A point was made before us as to nonexamination of material witnesses in the case. It has not however been established to our satisfaction that there was any witness who could be described as a material witness in the case, was not examined on the side of the prosecution, excepting the investigating police officer. So far the non-examination of that officer, was concerned, there was in our opinion sufficient material before the Court to enable the Judge to say that the officer could not be examined in the case as was stated in the charge to the jury. Some other matters of detail were referred to during the course of the argument of the appeal before us, by the learned advocate for the appellants, but we are not in a position to hold that there was any material misdirection, or non-direction amounting to misdirection, which could vitiate the trial, or which could or had in any way prejudiced the appellants. The learned Judge's charge to the jury appears to us to be fair and complete and nothing was left out which could go in favour of the appellants. The case for the defence was fully laid before the jury, for their consideration, without any expression of opinion on the part of the Judge which could possibly be interpreted to go against the accused. The defence was substantially put to the jury: a mere omission to refer to this or that circumstance or suggestion is not non-direction, which amounts to misdirection. It is not the function of the Judge to repeat to the jury every argument or suggestion urged on behalf of the defence. In the above view of the case before us, regard being had to the conclusion we have arrived at, after giving our very best consideration to all the questions arising for determination in this appeal, the conviction of the appellants, and the sentences passed on them must be upheld. The appeal of all the appellants, Manar Ali, Makarali alias Mobarakali, Abdul Kadar and Abdul Gaffur alias Gauharali is accordingly dismissed.