1. The appellant Abdul Gani Bhuya has been convicted under Section 324, Indian Penal Code, and sentenced to six months' rigorous imprisonment. He was tried with one Abdul Razak for offences under Sections 324,323 and 325, Indian Penal Code. The Jury unanimously found Abdul Razak not guilty and found the appellant guilty under Section 324, Indian Penal Code.
2. On behalf of the appellant three points have been taken by the learned Vakil who appears for him relating to non-direction in the learned Judge's charge to the Jury. The first point is with regard to the admissibility of the depositions taken by the Magistrate. What happened in this case is that the case for the prosecution rested on the evidence of two alleged eye-witnesses to the occurrence Nawab-ud-Din and Wasiuddin and of another witness Madhu, a servant of the family, who had lodged the first information on hearing about the occurrence from one of the other witnesses. Before the Committing Magistrate they spoke of having seen the occurrence or part of it but in the Sessions Court they practically denied having seen it. Nawab-ud-Din had said before the Committing Magistrate that there was an exchange of abuse. Gani Mia (accused) then began to cut Abdul Jabbar with his sword and Kalarbap (Abdul Razak) beat Abdul Jabbar on the head. Abdul Jabbar fell down and was beaten further. In the Sessions Court he said that Abdul Gani gave a stab to Abdul Jabbar with a sword but he could not say where it landed, and Abdul Jabbar struck Abdul Gani a blow with a pointed lathi. On being questioned by the learned Judge as to whether he was right as to the statement he was making he answered 'I did not see' Wasiuddin had stated before the Committing Magistrate thus: 'I heard a cry and went upon the courtyard. I found Abdul Jabbar and Nawabuddin lying on the courtyard in front of Mamudjan's hut. There were many injuries on their persons. Abdul Razak had a lathi, Abdul Gani had a weapon made of iron which is called talwar'. In the Sessions Court he said as follows: 'I heard a shriek, not the words. I saw Nawabuddin and Jabbar lying in the yard. Razak, Gani and Karim were there. I did not clearly notice what was in their hands but Gani had something in his hand.' The servant Madhu had stated before the Magistrate that he saw the accused going out of Mamudjan's hut with a sword and he saw Abdul Jabbar lying unconscious in his hut. He was asked by Mamudjan to go to the thana and to lodge ejahar there and he did according to instruction. In the Sessions Court he had said 'I saw nothing in their hands. Then I went in Jabbar Mia's hut and found Jabbar lying, Nawab told me to go to thana. He told me what to say'. From the depositions of these witnesses before the Committing Magistrate and in the Sessions Court, it is clear that they were deliberately attempting to retract the evidence given by them before the Committing Magistrate. The learned Sessions Judge admitted their evidence before the Committing Magistrate under Section 288, Cr. P.C. and placed it before the Jury who apparently based their verdict upon it.
3. It is contended on behalf of the appellant that the evidence before the Committing Magistrate which was received by the learned Judge under Section 288, Cr. P.C. was not admissible under that section. It is pointed out that the Magistrate originally started the case with a view to try it himself but at a later stage decided to commit it to the Sessions; the evidence in this case was, therefore, not recorded under Ch XVIII. Section 283 as amended by the Act of 1923 stands thus: 'The evidence of a witness, duly recorded in the presence of the accused under Ch. XVIII, may, in the discretion of the presiding Judge, if such witness is produced and examined be treated as evidence in the case, for all purposes subject to the provisions of the Indian Evidence Act, 1872'. The words 'duly recorded in the presence of the accused under Ch. XVIII' have been substituted by the Act of 1923 for the words 'duly taken in the presence of the accused before the Committing Magistrate' and it is argued that the evidence in this case was not recorded by the Magistrate under Ch. XVIII and, therefore, it should not have been admitted by the learned Judge under Section 288, Cr. P.C. This contention has no substance. The amendment of the section by substituting the words 'duly recorded in the presence of the accused under Ch. XVIII' for the words 'duly taken in the presence of the accused before the Committing Magistrate,' is intended to cover cases where evidence may be recorded by the Committing Magistrate but not for the purpose of commitment, as under Section 219, Cr. P.C. Besides, there is no special procedure laid down in Ch. XVIII for recording evidence and any evidence recorded by a Magistrate before commitment whether recorded with a view to commitment or in the ordinary course of trial is evidence recorded in the presence of the accused under Ch. XVIII.
4. The next ground raised by the appellant requires careful consideration. As I have already observed the conviction of the accused rests upon the evidence of three persons, who spoke of the occurrence before the Committing Magistrate but who in the Sessions Court declared that they knew nothing about it. The basis of the verdict of the Jury, therefore, in this case is the evidence of those witnesses recorded by the Committing Magistrate and admitted by the Judge under Section 288. It is argued that the conviction based solely upon evidence admitted under Section 288 is wrong and that the learned Judge should have directed the Jury that on the evidence as it stood in the trial there could be no conviction at all. It is necessary to note that there has been a substantial alternation in Section 288 by Act XVIII of 1923. The words 'for all purposes subject to the provisions of the Indian Evidence Act, 1872' have been added after the words 'be treated as evidence in the case'. Several decisions have been placed before us in support of the appellant's contention. In the case of Queen Empress v. Amanullah 21 W.R. Cr. 49 : 12 B.L.R. Ap. 15 it has been held that a conviction should not be based solely upon evidence admitted under Section 288, Cr. P.C. unless there is sufficient corroboration by other evidence. So far as this Court is concerned this case was followed in the case of Queen Empress v. Jadub Das 27 C. 295 : 4 C.W.N. 129 : 14 Ind. Dec. (N.S.) 194. The case in Queen Empress v. Amanullah 21 W.R. Cr. 49 : 12 B.L.R. Ap. 15 was a case in which the High Court had to confirm the sentence of death passed on the accused and, therefore, it had to go into the evidence to find out if the sentence could be upheld. The case of Queen-Empress v. Jadub Das 27 C. 295 : 4 C.W.N. 129 : 14 Ind. Dec. (N.S.) 194 was a reference under Section 307, Cr. P.C., and the Court had to look to the evidence to find if the verdict of the Jury could be upheld. In the case of Queen-Empress v. Nirmal Das 22 A. 445 : A.W.N. (1900) 169 : 9 Ind. Dec. (N.S.) 1334 the same view has been expressed. It does not appear that the trial in that case was held with the aid of a Jury. It would seem that the appeal was from the order of the Sessions Judge who acquitted some of the accused and convicted the appellant. These cases and others bearing on the point have been considered in a very recent case decided by the Patna High Court, namely, the case of Jehal Teli v. Emperor 84 Ind. Cas. 334 : 3 Pat. 781 : (1925) A.L.R. (Pat.) 51 6 P.L.T. 53 : 26 Cr. L.J. 270. Mr. Justice Bucknill in an elaborate judgment in which almost all the cases on this point were reviewed made the following observation on the conclusion reached by him. 'I think, therefore, that the principle is quite clearly settled by this line of cases that unless there is clearly present, besides the evidence given before the Magistrate, evidence which will show that the evidence given before the Magistrate should be preferred to and substituted for that given before the Sessions Judge, the evidence given before the Magistrate cannot be effectively utilized in support of a conviction.' This case was decided in 1924 and after the amendment of the section by the Act of 1923. I may add that this case was a reference under Section 374 Cr. P.C. The Allahabad High Court in a case decided under' the old Code had struck a somewhat dissentient note. In the case of Emperor v. Dwarka Kurmi 28 A. 683 : A.W.N. (1906) 187 : 4 Cr. L.J. 61 : 3 A.L.J. 852. Mr. Justice Aikman quoted with approval the observation of Plowden, J., in Umar v. Empress 51 P.R. 1887 Cr., which was to the effect that once the evidence is admitted under Section 288 it is on the same footing with all other evidence in the case, that is to say, 'it is to be considered by the Jury or by the assessors and the Judge, according to the nature of the trial, as part of the materials upon which the verdict or a finding is to be given.... Whether any portion or the whole of the evidence thus admitted is entitled to credit, and if so, to such a degree that a conviction may be based upon it wholly or in part, are very important questions for the Jury or assessors, or for the Judge, as the case may be, but they are in no way affected by the section.' I am of opinion that the view thus expressed is correct. Section 288 at any rate as it stands now, makes the evidence recorded by the Magistrate admissible at the discretion of the Trying Judge and it further enacts that it is to be treated as evidence in the case 'for all purposes subject to the provisions of the Indian evidence Act.' The only case decided after this amendment is, as I have observed, the case of Jehal Teli v. Emperor 84 Ind. Cas. 334 : 3 Pat. 781 : (1925) A.L.R. (Pat.) 51 6 P.L.T. 53 : 26 Cr. L.J. 270. But there the learned Judges did not consider the effect of the addition of the words 'for all purposes' to the section. They rightly decided the point strenuously pressed on their attention as to the meaning of the words 'subject to the provisions of the Indian Evidence Act,' holding that such deposition can be used as evidence so long as the evidence is an evidence within the meaning of the Indian Evidence Act; or, in other words, that the evidence may be used for all purposes if it is admissible under the Indian Evidence Act. As to the important question as to how far it is possible to have a conviction upon evidence before a Magistrate when the evidence given at the trial differs from it and is exculpatory of the accused, the learned Judge has considered all the cases which were decided under the section as it stood before the amendment and has endorsed without further consideration the decision in those cases in the words which I have already quoted. That decision, therefore, is of no help to us because the significance of the addition of the words 'for all purposes' was not considered in it. The section before the amendment said that 'such deposition is to be treated as evidence in the case.' The addition of the words 'for all purposes' must be with set design and for the purpose of attaining a definite object. It seems to me that these words have been added to remove the limitation to the value of that evidence as fixed by the cases referred to above. Under the present section it must be held that the evidence recorded by the Committing Magistrate if admitted under Section 288 must be treated as evidence for all purposes even as the basis of finding or verdict and on a par with any other evidence before the Sessions Court or as a substantive evidence on which the verdict of the Jury or judgment of the Judge can be based.
5. The third point taken by the learned Vakil for the appellant is, that in the circumstances of this particular case the Judge should have told the Jury not to take the evidence of witnesses who have retracted their statements before the Committing Magistrate into consideration and that it is not safe to rely upon a portion of their evidence as true and reject another portion as false; and for this view reliance has been placed on the case of Emperor v. Satyendra Kumar Dutt Chowdhury 71 Ind. Cas. 657 : 37 C.L.J. 173 : 24 Cr., L.J. 193 : (1923) A.L R. (C.)463. That case was a Jury Reference in which the learned Judges had to consider whether the verdict of the Jury could be supported on such evidence. It is dangerous to lay down as a general rule of law that in this country it is not proper to believe the evidence of a certain witness in part. Be that as it may, in my opinion the learned Judge's charge is not quite free from this blemish. The witnesses who have retracted their statements before the Committing Magistrate are no doubt lying witnesses and they must have spoken falsehood either before the Committing Magistrate or in the Sessions Court. The learned Judge ought to have told the Jury that they should be looked upon as witnesses who are not above suspicion and whose evidence should be regarded with great caution. The Jurors ordinarily are not men who are used to weighing evidence and it is, therefore, necessary that all help should be given to them in estimating the evidence in the light of the observations made by learned Judges in decided cases. Instead of doing that the learned Judge has expressed his opinion with a certain degree of assertion in these words: 'It seems clear to me that these persons have decided to go as far as they possibly can towards altering their evidence in such a way as shall secure the acquittal of the two men here on trial.' This is a suggestion to the Jury that the witnesses were speaking the truth when they were deposing before the Committing Magistrate but that before him they were attempting to screen the offender. Though the learned Judge has stated in his charge 'it is for you to say whether you feel convinced as to the truth of the three Magisterial depositions to an extent which would warrant you as prudent men in acting upon them,' I do not think that it can be said that the Jury were left with the option of accepting the evidence given before the Committing Magistrate or that given in the Court of Sessions. In this view I hold that the charge is vitiated by the defect pointed out.
6. It next remains to consider whether it is a fit case in which we should order a re-trial. The whole of the evidence has been placed before us and we do not think that it is so strong as to lead us to, hold that a re-trial would be in the interest of public justice. We accordingly set side the conviction of and the sentence passed upon the accused and order that he be acquitted and discharged from his bail bond.
7. I agree.