Deo Lal Mahton and Others vs Emperor

Rowland, J.—The four petitioners have been convicted u/s 379, I.P.C. and were sentenced in the first instance each to undergo imprisonment for two months and on appeal the sentences were reduced each to fifteen days. The prosecution case in short was that the petitioners committed theft at night of plantains from the garden of Abdul Samad whose watchman, Tazamul Hussain, was the complainant in the case. The defence was that on account of enmity of one kind or another these accused have been falsely implicated, and that in fact there had been on the day before the night on which the prosecution alleged theft of plantains a quarrel between the accused Jothu and Muhammad Hanif, the son of Abdul Samad. Evidence was entered into both, by the prosecution and by the defence.

Hearing appears to have concluded on 31st January 1933. The accused on the same date put in a petition for a local inspection which was held on 5th February 1933. Orders were reserved for, 8th February and on 7th February a further petition was put in on behalf of the defence asking that the Court might call for and refer to the case diary of the Assistant Sub-Inspector to satisfy itself that the defence of a quarried between Hanif and Jothu was not an after-thought: but was stated by accused Mahabir to the Assistant Sub-Inspector on the very first day of the investigation.

The learned Magistrate referred to the diary, but did not realise that u/s 172 or Section 162, Criminal P.C., he was not entitled to use them as evidence. There is sometimes a little misunderstanding as to the correct procedure in using police diaries and statements of witnesses entered in them. u/s 172 a Court referring to such diaries is entitled to use them not as evidence in the case but to aid in such enquiry or trial. The meaning of this is that the Court may on finding some fact noted in the diary take advantage of this in order to put some necessary question to a witness in the box so as to elicit in evidence the fact which has been disclosed by the diary. Sometimes it has been argued and is apparently thought that mere referring to the diary is irregular.

This is not so but facts found in the diary, it must be emphasised, are not to be used unless or until they are properly brought on the record through the evidence of a witness. In the present case if the Sub-Deputy Magistrate found in the diary material to show that, the defence of the accused had been put forward at the earliest stage, it was open to him to recall the Assistant Sub-Inspector and have the necessary questions put to the officer. Though of course in the circumstances of this case the accused were not entitled to insist on this as they had themselves had the opportunity of putting such questions as they thought necessary in the cross-examination of the Assistant Sub-Inspector. If the Magistrate had confined himself to observing that there was mention of quarrel in the diary, which is the fact, no one, I think, could have complained of prejudice. But the Magistrate has gone further.

He has found that Mahabir''s statement referred to in the diary mentions a quarrel and mentions an assault on Jothu by Hanif, but does not mention assault by Jothu on Hanif in return but only abuse. The defence in Court was that there was both mutual abuse and mutual assault. This discrepancy between the statement as noted in the diary and the defence as led in Court is made by the Magistrate the foundation of an argument that:

the defence is improving their story at every step.

Entries of statements in the diary are notoriously very condensed and the omission of some detail in the note of a statement is not always a sure indication that such detail was absent from the statement; and certainly a Court should never use such an absence as a contradiction without taking the evidence to prove that no such thing was stated. The Magistrate might also with advantage have remembered that even if the quarrel was genuine, Mahabir as a partisan of Jothu might quite probably have thought it unsafe to admit in the first instance that Jothu had gone beyond abuse to blows even if this had been the case.

I cannot feel quite confident that in the present case there has not been prejudice to the accused with a possibility of a wrong decision arising out of it. The conduct of the accused in asking for a local enquiry and then asking for reference to the police diaries (though legally the latter petition was in wrong form) does rather suggest the conduct of persons who believe themselves to have a good case of which they hope to convince the Magistrate if the fullest possible enquiry is made. I do not wish to express any opinion whatever as to the merits off the case which might prejudice the further proceedings.

I think, I ought to allow this application and set aside the conviction and sentence and direct a retrial unless the District Magistrate considers the case not sufficiently important to press the prosecution.