1. This appeal is by Bhagirathi Chowdhury and four others who have been convicted in accordance with the majority verdict of the Jury by the Sessions Judge of Rajshahi. The first accused has been convicted under Sections 147 and 325, Indian Penal Code, and sentenced under Section 325 to five years' rigorous imprisonment, no separate sentence having been passed under Section 147. The other four accused persons have been convicted under Sections 325/149, Indian Penal Code, and sentenced to three years' rigorous imprisonment.
2. The riot alleged to have taken place was over a piece of land, in course of which, it is said, one Mir Panchu was beaten to death. Several objections have been taken on behalf of the accused to the address by the Judge to the Jury; but it is sufficient to refer to two of these, as in our opinion, the. others are not important.
3. The first objection is that certain statements have been admitted by the learned Sessions Judge which are inadmissible in evidence. In the course of the examination of Ananta Prosad Das (Sub Inspector of Police) he was asked in examination-in-chief whether he examined daring the course of the investigation any witness on behalf of the accused and he said that he had examined only two witnesses Bartu Chowdhury and Daulot Ghose who were produced before him and both of them stated that they were not present at the occurrence. This, it is said, is in contravention of the provisions of Section 162, Cr.P.C. That Section says that no statement made by any person to a Police Officer in the course of an investigation...shall be used for any purpose at any enquiry or trial.... It is not clear why the witness was made to make this statement; but it is suggested that one of the persons named by him at least, namely Daulot Ghose, was a witness, cited by the defence ands therefore, in anticipation of the evidence which might be given by Daulat Ghose, this statement was made by the Inspector. In my opinion this statement by the Sub-Inspector is not admissible. Section 162, Cr.P.C., is clear enough to exclude any statement made by any person and directs that such statement shall not be used for any purpose. The way in which this evidence has been brought out is objectionable in more ways than one. It is in direct contravention of the above provision of law and it is not justified by any other provision of law which makes evidence contradicting possible evidence of a, possible witness admissible against the accused. The mere fact that one of the persons so named by the Sub-Inspector was cited by the defence did not justify the prosecution in getting out a statement made by his in anticipation of what he might say. This statement by the Sub-Inspector in the hearing of the Jury must have apparently prejudiced the case for the defence and left an impression in the mind of the Jury that the accused produced witnesses in support of their case before the Sub-Inspector and both of them denied any knowledge of the occurrence. This statement is not, therefore admissible.
4. The second ground on which the legality of the trial is assailed is that the map prepared by the Sub-Inspector and placed before the Jury contains statements of witnesses and hence the map should not have been placed before the Jury with those statements thereon. There are two very important endorsements on the map. The first is against the point marked with an arrow and runs thus: 'The deceased and Luddi Sheikh Peadas stood here and the deceased received lathi blow from Bhagirathi chowkidar accused while standing here.' In another part of the map certain dotted lines were put and the remark against them is, 'showing the route taken by the deceased on being chased by the accused persons.' These statements were not of the Sub-Inspector from his personal knowledge but from what he had heard from other people at the time of the investigation. Such statements are, therefore, inadmissible under Section 162, Cr.P.C., and as hearsay evidence. The impropriety of placing maps before the Jury containing statements of witnesses or of information received by the person preparing the map from other persons has been recently pointed out in several cases. In Emperor v. Abinash Chandra Bose 84 Ind. Cas. 051 : 52 C. 172 : 28 C.W.N. 995 : (1924) A.I.R. (C.) 1029 : 26 Cr.L.J. 310, the learned Chief Justice has fully dealt with this matter and it has been laid down that a person who makes a map in a criminal case ought not to put upon it anything more than what he sees himself. Particulars derived from witnesses examined, on the spot should not be noted on the body of the map but on a separate sheet of paper annexed to the map as an index thereto.' The direction given here may be inconvenient but the law seems to be clear. The learned Chief Justice in a very recent case to which my learned brother was party Emperor v. Mofizel Peada 89 Ind. Cas. 212 : 29 C.W.N. 842 : (1925) A.I.R. (C.) 909 : 20 Cr.L.J. 1298 decided on the 1st May 1925) referred to a map like the one in the present case and remarked that the map placed before the Jury was a clear instance of what should not be done, and observed as follows: 'In my judgment, the map in its present state ought not to have been allowed to be placed before the Jury. If it was necessary for the map to be placed before the Jury, the proper thing to be done was to have a clean copy made with these entries omitted no that the Jury would have a map before them which would not have prejudiced their mind in any way.' In my judgment apart from the instruction in the Police Regulations and the High Court Circular Orders, it is highly prejudicial in the interest of justice to allow statements which may or may not be admissible in evidence to be introduced in a case by indirect means. For instance, the map prepared by the Sub-Inspector from certain information received from another person introduces a statement made by that person and it is possible that the person who gave the information to the Sub-Inspector was not himself competent to make the statement his information having been derived from others not before the Court. Apart from Section 162, Cr.P.C., such statements under the general law ought not to be made to go in in the shape of entries in maps. The trial accordingly has been vitiated by the introduction of these pieces of evidence and, in my opinion, the conviction cannot stand.
5. In the result the conviction of and the sentences passed upon the appellants should be set aside and a re-trial ordered. The appellants Nos. 2 to 5 will remain on bail and the appellant No. 1 in custody until further orders by the Magistrate.
6. I agree.