Emperor vs Najibuddin and Others

Rowland, J.—This is a reference by the Sessions Judge of Patna who found himself unable to accept the verdict of a jury in respect of the five accused persons before us. The case originated in a riot which took place in village Khaira, P.S. Silao, at about sunset on Wednesday, 20th April 1932, which was the fourth day of Bakrid. It resulted in the death of two persons, Karu Singh, who expired within an hour or two, and Sham Lal Sonar who died in Behar hospital at 11-45 the following morning. Five other Hindus are said to have received injuries, namely Chhedi Hajjam, Ganga Singh, Chamari Singh, Mosafir Singh and Saudagar Chamar.

The prosecution case was that the Mahomedans of Khaira and other villages formed a mob of about 300 men having as their common object to assault or murder the Hindus of Khaira, and in pursuance of that common object several members of the mob committed the murder of Karu Singh and Sham Lal Sonar, caused grievous hurt with deadly weapons to Mosafir Singh, caused hurt with a sword and lathis to Saudagar Chamar and caused simple hurt to Chhedi Hajjam, Ganga Singh, and Chamari Singh. Nineteen persons, all Mahomedans, were charged before the Magistrate who committed 17 of them for trial by the Court of Session.

The jury, unanimously in some cases and by substantial majority in others, found all the accused not guilty. The Sessions Judge has accepted this verdict in respect of twelve of the accused, and has referred to the High Court the case as against the five persons before us, Najibuddin alias Naju, aged 45, Nurul Hasan, aged 48, Raju Shah, aged 42, Chhotan Shah, aged 46, and Nasir Mian, aged 50.

The accused individually each denied participation in the occurrence in which the Hindus named above came by death or injuries. A general defence was also propounded in a written statement that the Hindus of the locality resented the performance of kurbani by Musalmans of Khaira, and after making secret preparations made an armed attack on the Mahomedans, that some Musalmans of neighbouring villages came to the rescue of the Musalmans of Khaira and injuries were received on both sides.

In the course of cross-examination it was put to some of the prosecution witnesses that their earliest statements to the police contradicted their evidence in Court and to others that they came forward as witnesses not at the earliest opportunity but at a later stage. The witnesses repelled these suggestions and alleged that the first information had not been correctly recorded by the Sub-Inspector who is a Musalman and that he abused the informant and others who came forward as witnesses, and in consequence they did not give their statements until the arrival of superior officers. The learned Sessions Judge put questions to the jury to ascertain their opinion as to whether there was a Hindu mob who came to attack the Musalmans at Khaira.

The majority of 5 to 4 of the jury held that there was a Hindu mob as suggested. The learned Judge also asked the jury whether the witnesses, who spoke of having been abused by the investigating Sub-Inspector, were abused by the latter. A majority of 7 to 2 of the jury held that the Sub-Inspector did not abuse any of them. (After considering the facts and circumstances of the case, His Lordship discussed the case of each of the appellants and concluded) In conclusion, I would acquit Nurul Hasan of all the charges preferred against him, and convict Najibuddin, Chotan, Raju and Nasiruddin under-Ss. 147 and 326/149 of the Penal Code and would sentence them to six months'' rigorous imprisonment each and to pay a fine of Rs. 250 each, and, in default of payment, three months'' rigorous imprisonment each in addition to the sentence of six months'' rigorous imprisonment each. Out of the fines, if realised, Rs. 250 should be paid as compensation to the widow of Karu and Rs. 250 to the widow of Shamlal; Rs. 200 to Musafir Singh and Rs. 50 each to Saudagar Chamar, Chedi Hajam, Ganga Singh and Chamari Singh.

Agarwala, J.

I agree. The trial of this case lasted for rather more than six months, from 19th August 1932 to 21st February 1933, and it is not surprising that during that period the trial had to be adjourned on three occasions owing to the illness of jurymen. The examination of the witnesses for the prosecution commenced on 20th August and went on for three months, i.e., until 21st November. During that period 44 witnesses, including formal witnesses, were examined, The actual number of days employed in their examination was 55. For two of these days the foreman of the jury was ill. On the remaining days the Court was closed on account of holidays. The examination of defence witnesses occupied from 21st November until 3rd January during which period there was an interval for the Christmas holidays and another of five days because a juryman was ill. Counsel for the defence and the prosecution addressed the Court from 4th January until the 31st.

The Judge''s charge to the jury commenced on 1st February 1933, but could not be continued until the 19th on account of the illness of another juror. The charge to the jury occupied about; four days. In the circumstances it would have been surprising if the jury had succeeded in obtaining and retaining a correct view of the issues, the evidence and arguments placed before them by the Crown and the defence.

Almost all the witnesses were cross-examined at inordinate length, e.g., the first informant Jangi Singh (P.W. 20), whose examination-in-chief took place on the 19th, was cross examined on that day and on the 21st, 22nd and 23rd. His examination-in-chief occupies two pages of the printed brief.

The cross-examination occupies 13 pages. The other witnesses were examined at corresponding length, much of the cross-examination being devoted to showing either that some of their statements in Court differed from their previous statements or contained additional matter. Most of the prosecution witnesses had, during the course of the investigation by the police, been examined by the Sub-Inspector and the Deputy Superintendent of Police. Some of them had, in addition, been examined by the Superintendent of Police, and all of them had again been examined during the magisterial inquiry prior to the accused being committed to the Sessions.

Much of the cross-examination was directed to ascertaining the differences between the statements made to these various officers and to the Court. When a witness''s statement differed from his statement to the Magistrate the method adopted was the usual one of calling the attention of the witness to the discrepancy between the two statements and then exhibiting the deposition recorded by the Magistrate to prove the discrepancy. This is in accordance with the procedure prescribed by Section 145, Evidence Act. It enables an appellate Court, when it is contended that at the trial a witness had made a statement different from what he had previously made during the magisterial inquiry, to read the two depositions, see the alleged discrepancy in its context and estimate its effect on the value of the deponent''s testimony.

Unfortunately this is not the method usually employed in trials in this province in cases where it is sought to prove that a witness has made, at the trial, a statement different from what he had previously made during the police investigation. The practice in such oases is to ask the witness, with respect to a statement made in Court, whether he made the same statement to the police; and if he answers in the affirmative the investigating officer is then asked whether the witness did in fact make that statement. The investigating officer replies, of course, by reference to what is recorded in his diary. When the question is fairly framed, and when the diary contains the witness''s full statement, the procedure outlined above probably suffices to establish the existence of the discrepancy, if any. But in my view the Court is not entitled to act merely on the oral evidence of the police officer as to what was stated to him. Nor does the fact that a witness''s deposition contains a more detailed account of his evidence than the statement in the police diary lead to the inference that the witness has developed his story. In many instances, particularly in rioting cases where there are many accused persons, the entries in the diary often merely show:

So and so identified so and so, or so and sO identified so and so in the mob and saw so and so armed with such and such weapon and so and so striking so and so.

When such a witness is examined at the trial and the Public Prosecutor, for the purpose of showing that the witness is a person likely to have seen what he claims to have seen, questions him as to where he was at the time of the occurrence and what he was doing, the defence almost invariably ask the witness whether he told the police that he was at such and such a place or was occupied in the manner deposed to. Cross-examination on these lines is invariably a waste of time, for the mere fact that the police diary does not show that the witness made a particular statement does not prove that the witness did not make it. Much of the cross-examination in the present case merely establishes that the deposition of witnesses have been more fully recorded by the Sessions Judge than their statements to the investigating officer.

The cross-examination of the various police officers, occupying pages and pages of the brief, consists largely of statements in this form, "I have no note that P.W. .... said so and so." Whether in the context the omission is of any significance we have, in the majority of instances, no means of knowing, for what the witnesses actually said to the investigating officer has not been proved.

The present practice also leads to the putting of unfair questions. There are examples of it in the brief of this case. The following is an instance of what is meant: A witness deposes "I saw X, Y, Z in the mob. The mob attacked A, X struck him with a bhala." The witness is asked: "Did you tell the Sub-Inspector that X struck A with a bhala?" and he answers "yes." The Sub-Inspector is asked: "Did the witness tell you that X struck A with a bhala?" The witness replies: "I have no note of it." But what is important to know --and what we do not know, because the statement made by the witness to the investigating officer is not on the record--is this. Did the witness in the course of his statement, say that X was armed with a bhala and did he say that X struck A? The answer of the Sub-Inspector in the example given above is of no assistance. It may mean that the witness did not say anything about X having struck A, or it may be that the witness merely said X struck A but did not mention the weapon used. In the latter case there is no discrepancy at all if the witness''s statement contained two allegations, viz., that X was armed with a bhala and that he struck A; for if X was armed with a bhala and struck A, the inference is that the witnesses meant that X struck with the bhala, unless the context shows otherwise.

It is said however that the practice is in conformity with the law and that the written record of the statement made by a witness to the investigating officer is inadmissible even for the purpose of contradicting the witness. It is therefore necessary to examine the law on the subject and particularly Section 162, Criminal P.C. For the purposes of this discussion Clause 1 of that section may be taken to read as follows:

No statement made by any person to a police officer, nor ''any record thereof . . . . . or any part of such statement or record'' shall be used for any purpose . . . . . . . at any inquiry or trial....

Thus stated, it will be perceived that Section 162(1), Criminal P.C., is an application of the rule against hearsay evidence contained in Section 60, Evidence Act, that "oral evidence must in all cases whatever be direct," i.e., if the prosecution seek to prove a fact which could be seen, the evidence in proof of the fact must be of a person who says he saw it, and not the evidence of a police officer who says the witness told him he saw it. Section 162(1), Criminal P.C., however does more than re-state the rule contained in Section 60, Evidence Act, because by enacting that no statement made to a police officer, nor any record thereof, shall be used for any purpose at any inquiry or trial," repeals, by implication Section 157, Evidence Act, so far as concerns statements made to a police officer in the course of an investigation. Section 157 enacts that:

In order to corroborate the testimony of a witness any former statement made by such witness relating to the same fact at or about the time when the fact took place, or before any authority legally competent to investigate the fact, may be proved.

Section 162(1) prevents a statement made to an investigating police officer, or any record thereof, from being used either by the prosecution or the defence for the purpose of corroborating the testimony given at the trial by the person who made the statement to the investigating officer. 8. 162(1), Criminal P.C., has the further effect of modifying Section 155, Evidence Act. The latter section enacts:

The credit of a witness may be impeached in the following ways by the adverse party or, with the the consent of the Court, by the party who calls him:

(1) ...

(2) ....

(3) by proof of former statements inconsistent with any part of his evidence which is liable to be contradicted.

So far as this section permits the prosecution to impeach the credit of its own witness by proof of a former statement made to an investigating officer, and inconsistent with the testimony of the witness given at the trial, it is by implication repealed by Section 162(1), Criminal P.C. But the right of the defence to prove, for the purpose of impeaching the credit of prosecution witness, a statement by the witness to the investigating officer, and inconsistent with the testimony of the witness given at the trial, is saved by the proviso to Section 162(1), Criminal P.C. The material works of that proviso are as follows:

When any witness is called for the prosecution in such inquiry or trial whose statement has been reduced to writing ... the Court shall ... direct that the accused be furnished with a copy thereof, in order that any part of such statement, if duly proved, may be used to contradict such witness in the manner provided by Section 145, Evidence Act, 1872.

It will be observed: (1) That the proviso does not apply if the statement made by the witness to the investigating officer has not been "reduced into writing"; (2) that the part of the statement relied on must be "duly proved"; (3) that the only purpose for which the statement is admissible is "to contradict" the witness; and (4) that the statement must be used "in the manner provided by Section 145," Evidence Act.

It has long been accepted that a statement to an investigating officer has been "reduced into writing" even when the officer has not recorded the statement in full, but has merely noted, the gist of what was stated to him. The value of such a note for the purpose of contradicting testimony given on oath at a subsequent trial Varies with the nature of the testimony and of the officer''s note. Ordinarily such a note contains only such excerpts from the statement as appear to the officer, at the time, to be important. Further investigation and subsequent developments may, and often do, show that points of great materiality have been omitted. When therefore the only record of a witness''s statement to the investigating officer is a brief note, it follows that omissions from that note are of practically no value for the purpose of proving that the witness did not state to the officer matters to which he deposes at the trial. As I have already said the value of the officer''s note necessarily varies, and, for the purpose of deciding what weight should be given to an omission from the police record, it appears to me to be essential to see what exactly was recorded and therefore that the written note should be duly proved as required by the proviso.

This indeed appears to be the practice in Courts, under the jurisdiction of the Allahabad; Bombay, Calcutta, Lahore and Rangoon High Courts, but not in this province. In Kashi Ram and Others Vs. Emperor, a number of Hindus were convicted of rioting and murdering Mahomedans. The investigating officers were asked by counsel for the defence whether certain witnesses had made certain statements during the investigation. With respect to this the Court observed:

In the circumstances the written record made by the police is the only proper and right thing to prove to discredit the witness.

In the case of Nurmahomed Kadarbhai v. Emperor AIR 1980 Bom 596 a number of persons were tried on charges of dacoity and other offences. The trial Court convicted only those who had been named by witnesses during the police investigation, and it was contended in revision on their behalf that the Court had made an improper use of the police diaries. Beaumont, C.J., observed, with regard to this argument:

It appears clear from the record that it was the defence themselves who made use of the statements before the police for the purpose of cross-examining various witnesses. It may be that that was not justified and that the Magistrate ought to have prevented the defence from so doing, and I think that if the defence had used the statements at all, the Magistrate ought to have required them to put them in evidence and place them on the record, and he did not do that.

The Court also held that if there was any irregularity it was cured by Section 537, Criminal P.C. In Jasimuddin Sarkar and Others Vs. Emperor, , while discussing the manner in which statements made during the investigation may be used to contradict a witness at a trial, the Court said:

If, however, it is desired to clinch the matter before the Sessions Judge and jury and to show in an affirmative manner that the witnesses for the prosecution cannot be relied upon, it is obviously the duty of the defence to prove, through the investigating officer when he is in the box, the record of the statements made to the police by the witnesses for the prosecution during the stage of investigation, and for that purpose, it is necessary to get on the record a true copy of what is known as the case diary, and there are well-known ways of proving the document and of getting the document on the record.

In Labh Singh v. Emperor AIR 1925 Lah 337, a case of dacoity, the defence sought to discredit the evidence of certain prosecution witnesses by showing that during the investigation they had stated that a certain person was present at the dacoity although, as a matter of fact that person was, at the time, in custody. The method adopted was to ask the investigating officer whether the witnesses had named the person in question and then place on the record a copy of statements purporting to be the statements of those witnesses recorded by the officer. The officer did not depose that the statements of which copies were placed on the record were the statements which he recorded.

It was held that as there is no presumption as to the genuineness of the statements of witnesses entered in the police diaries they cannot be used to contradict the evidence given in Court unless they are duly proved. The correct application of the law has been fully stated in Gopi Chand v. Emperor AIR 1930 Lah 491, as follows:

The proper procedure would, therefore, be to ask a witness whether he made such and such a statement before the police officer. If the witness returns the answer in the affirmative, the previous statement in writing need not be proved, and the cross-examiner, may, if he so chooses, leave it to the party who called the witness to have the discrepancy, if any, explained in the course of re-examination. If, on the other hand, the witness denies having made the previous statement attributed to him, or states that he does not remember having made any such statement, and it is desired to contradict him by the record of the previous statement, the cross-examiner must read out to the witness the relevant portion or portions of the record which are alleged to be contradictory to his statement in Court and give him an opportunity to reconcile the same if he can. It is only when the cross-examiner has done so that the record of the previous statement becomes admissible for the purpose of contradicting the witness and can then be proved in any manner permitted by law.

To the same effect is the decision in Emperor v. Ibrahim AIR 1928 Lah 17. When the record of the statement has been proved then those parts of it which have been put to the witness may be used to contradict his evidence. The remainder of the statement is inadmissible for any purpose: see Mt. Sabhai v. Emperor AIR 1930 Lah 449. Similarly, in Bana Singh v. Emperor AIR 1928 Rang 150 it was pointed out that the record of the statement made during the investigation must be proved before it can be used to contradict a witness and that the attention of the witness must be drawn to the particular points in which his evidence differs from the record of his statement made by the police. The only decision on this subject to which we have been referred by learned Counsel for the accused is Bihari Mahton Vs. Emperor, .

That was a case in which the procedure indicated above had been followed at the trial. In appeal it was contended that the procedure was wrong in law and that it might have had on the minds of the jurors an effect prejudicial to the accused. The learned Judges who decided that case appear to have been under the impression that the practice with regard to the application of the provisions of Section 162, Criminal P.C., was the same in Bengal as in this province. Their attention however does act appear to have been invited to the Calcutta case of Jasimuddin Sarkar and Others Vs. Emperor, , ubi. sup. Even so their Lordships were not prepared to hold that:

the view taken by the Lahore High Court is necessarily incorrect or is such as is not warranted by the language of Section 162 .... The fact that. Section 145, Evidence Act, has been specifically mentioned in that section is an argument in favour of that view,

With great respect, the fact that the section expressly provides that a statement made by a witness recorded by a police officer, if duly proved, may be used to contradict such witness in the manner provided by Section 145, Evidence Act, appears to me to be the crux of the whole matter. The reference to Section 145 cannot be ignored. The object of Section 162, Criminal P.C., is plainly to exclude altogether the hearsay evidence of police officers except for the purpose of contradicting a witness in the manner provided by Section 145, Evidence Act, and if the exception thus made is to be applied it must be applied in the manner provided in the section. The only objection to this course which has been pointed out in the Patna case is that when the whole statement recorded by the police is proved, the result is to have on the judicial record not only the parts of the statement used to contradict the witness but also the parts not so used. The same objection is true of much documentary evidence, e.g., a judgment is sometimes admissible for limited purpose of showing the nature of the dispute between the parties although it may not be admissible for any other purpose.

Furthermore, the omission to prove the record of a statement made in the course of an investigation does not preclude the Court from seeing the statement, for Section 172(2) provides that:

Any criminal Court may send for the police diaries of a case under inquiry or trial in such Court, and may use such diaries, not as evidence in the case, but to aid it in such inquiry or trial

Whether the record of a statement be proved and used u/s 162, or used u/s 172(2) without being proved, it is necessary for the Court to be astute to avoid using it otherwise than as provided by law. Even if the question could be decided merely by referring to the balance of convenience, the convenience is all on the side of having the record of the statement properly proved, and exhibited for, as has already been pointed out, the existence or non-existence of an omission relied on as a contradiction, and the weight to be attached to a discrepancy between the police and the judicial record of a witness''s statement frequently depends on the context and on the nature of the police record.

In riot cases, the case diary often runs into hundreds and sometimes into thousands of pages. Notes of the statements of witnesses are interspersed with the record of the investigating officer''s own movements and his soliloquies. When the officer is cross-examined regarding the statement of a particular witness time is necessarily occupied in a search for the particular statement. After the cross-examination is over--and it frequently lasts for days; in the present case it was five days--the same search has to be gone through again if the public prosecutor re-examines on the answers elicited in cross-examination. This double search would be avoided if each statement were properly proved in cross-examination, and, in addition, the statement would be easily accessible to the Court of appeal or reference which finally deals with the case. The inconvenience of the present practice has been manifest in the present case. One example will suffice to demonstrate this. The Sub-Inspector is recorded as having deposed:

I drew up the inquiry reports of Musaffir Singh, Saudagar Chamar and Shamlal Sonar. None of them identified any of their assailants, and said they were outsiders.

The importance of this evidence lies in the fact that the accused are men of Khaira and their defence was that the rioters were all men from other villages. The evidence, as recorded, might mean that the three injured persons stated that their assailants were outsiders whom they did not recognise, or it might mean that they merely stated that they did not recognize their assailants but did not say they were outsiders. We have had to check this evidence and also the evidence of many other witnesses by reference to the bulky police diaries in the case. The three injured persons did not say that their assailants were outsiders. With respect to the decision in Bihari Mahton Vs. Emperor, it is only necessary to say that the learned Judges did not hold that the practice prevailing in other provinces with regard to the application of Section 162 is wrong in law.

In my opinion, when it is sought to contradict a witness for the prosecution by reference to a previous statement recorded by the police, it is essential that the attention of the witness should first be drawn to the alleged discrepancy by showing or reading to him the record of the statement, and affording him an opportunity to explain it. When this has been done the written record of the statement must be proved before the discrepancy, if any, can be relied upon as a contradiction