Emperor vs Tuti Babu

Imam, J.—There are seven appellants in this appeal. Jugeshwar Bux Rai has been sentenced to death by the Judicial Commissioner of Chota Nagpur who convicted him for an offence u/s 302/149, Penal Code. He was also convicted u/s 148, Penal Code and sentenced to three years'' rigorous imprisonment which was directed to come into effect in the event of his conviction u/s 302/149 being set aside. The appellants Inderdeo Singh son of Bhola Singh and Inderdeo Singh son of Padarath Singh were convicted u/s 302/34, Penal Code and sentenced to transportation for life. They were also convicted u/s 302/149 and Section 148, Penal Code, and u/s 148 they were sentenced to three years'' rigorous imprisonment which was to come into effect in case their sentence u/s 302/34 was set aside. The appellant Naga Kahar was also sentenced to transportation for life u/s 302/34 and to three years'' rigorous imprisonment u/s 148, Penal Code, this sentence to come into effect if the sentence u/s 302/34, were to be set aside. The appellants Farhat Hussain and Mohammad Hussain were sentenced to transportation for life u/s 302/149, Penal Code and they were also sentenced to two years'' rigorous imprisonment u/s 147, Penal Code. This sentence was to come into effect if the sentence of transportation for life u/s -302/149 were to be set aside. Along with the appeal the reference made by the learned Judicial Commissioner for the confirmation of the sentence of death on Jugeshwar Bux Rai has been heard.

According to the prosecution somewhere about 2-30 or 3 A.M. on 28th December 1944, a large mob led by the appellant Jugeshwar Bux Rai attacked the house of one Bissesswar Kahar. In that house were staying some 12 men belonging to one Ramautar Singh. Two men, Rajnarain Singh and Ram Ekbal Singh, were sleeping in an inner room of this house and ten men were sleeping in a verandah or dhaba according to the evidence. The rioters came with various weapons, such as swords, bhalas, lathis etc., and in the course of the attack on this house they murdered two men Maheshwar Dubey and Dasrath Singh. They also inflicted various injuries on Deonandan Sahu alias Pokhan Sahu, Mathura Singh, Raman Singh, Adbul Majid alias Dillu Khan, Ramji alias Uchit Pandey, Madan Singh, Rajdeo Singh and Dipan Dusadh. There was also an injury found on the person of Rajnarain Singh, but I think it is nobody''s case that that injury was caused as a result of any assault upon him. The medical evidence of the injuries on these persons indicates that some of them, at any rate, received slight injuries while some received severer injuries. As for the injuries on the two dead men, the description of these injuries given by the Civil Surgeon who held the post-mortem discloses that they were more or less butchered. Maheshwar Dubey had no less than ten incised injuries and it is noticeable that there does not appear to have been any injury inflicted by a blunt weapon. The injuries on Dasrath Singh were three incised wounds and having regard to the nature of these injuries, it is not surprising that the man died. Rajnarain Singh is the first informant in the case and according to him at about 2-30 in the morning some 300 persons armed with lathis, bhalas and garasas came to the house of Bissesswar Kahar which he had taken on rent. It may be mentioned that Rajnarain Singh is the tahsildar of Ramautar Singh. While he was inside the room which has been marked as No. 5 on the map, he was able to peep through a small opening in the door leaves and his case is that Jugeshwar Bux Rai alias Tuti Babu was ordering that the ''rascal Baboos'' also should be assaulted, whereupon some of the rioters began to push against the door of the room. He climbed on a machan and on removing the tiles of the roof he was able to get on top of it and from there saw some 300 men amongst whom he recognised Jugeshwar Bux Rai, Farhat Hussain, Inderdeo Singh, father''s name not indicated, Mohammad Mia, Bircha Singh and Rambadan Pahalwan and that these men were beating the people, while Tuti Babu was standing giving orders having some black article in his hand. According to Rajnarain at about 4 A.M. the mob went away. He got down from the roof and hid himself inside the room until about 5 A.M. He then came out of the room and found Maheshwar Dubey and Dasrath Singh lying dead in the verandah with injuries which according to him were caused by bhala. He stated in the first information that he could not proceed to the police station to lodge information out of fear. He then began to search for his people and at about 8 A. M. Pokhan Sahu of Mohullia came, with an injury above his eye, and told him that the other persons were alive, but injured and were at Jaipur. He then went to Jaipur and found Raman Singh, Dipan Majhi, Uchit Tewari, Mathura Singh, Madan Singh, Ragho Singh and Dillu Khan injured. In the first information he proceeds to give some description of the various articles said to have been removed by the rioters. He was not able to state in the first information as to who had assaulted whom and with what weapon. Just before ending his first information, he added that he had recognised Naga Kahar also as amongst the rioters. This occurrence took place in village Nawa within the jurisdiction of police station Patna.

Before dealing with the various submissions made before us, it is necessary to state briefly the personalities concerned. Jugeshwar Bux Rai is the uncle of one Gopal Bux Rai and although the latter is for the moment regarded as the owner of the Deogan estate, the real individual who manages the affairs of the estate is the appellant Jugeshwar Bux Rai.

According to the prosecution Jugeshwar Bux is the head of the party which favours the claim of Gopal Bux Rai. There was a dispute sometime back regarding the ownership of the Deogan estate, and after the Privy Council decision it must be accepted that for the present at any rate Gopal Bux is the owner of the estate. The dispute arose in the following way. One Surendra Bux Rai, the undisputed owner of the Deogan estate, some years ago committed suicide leaving behind a widow, a daughter and a mother. The mother''s name is Mt. Jamuna Kuar alias Rajmata. Throughout the case she is described as the Rajmata. She asserted that one Nand Kishore Bux Rai was the posthumous son of Surendra Bux Rai and therefore the real owner of the Deogan estate. Gopal Bux Rai''s contention, however, was that Surendra Bux Rai left no son and that Nand Kishore Bux Rai was not his son. In the litigation between Gopal Bux and the Rajmata the question as to what were the rights of the daughter of Surendra Bux Rai was specifically left open. We are really not very much concerned in this case as to what are the merits of the dispute concerning the ownership of the Deogan estate, for it is perfectly clear that the Rajmata was the holder of a tenure in some villages of the estate including the village Nawa where the occurrence took place. It may, however, be stated that the daughter of Surendra Bux Rai, Mt. Sham Sundari Kumari, did in fact file a suit in 1943 claiming the entire Deogan estate. This lady was married to Ramautar Singh sometime in 1948 and she was the second wife, Ramautar Singh having a wife by an earlier marriage by the name of Mt. Bedbati Debi. Gopal Bux Rai obtained a decree for costs against the Rajmata and in execution of it a Receiver was appointed with reference to the tenure held by her. She ultimately came into possession of her tenure in 1943.

In the suit which was filed by Mt. Sham Sundari Kumari, Ramautar Singh took steps to have a Receiver appointed in the suit on the allegations of mismanagement and waste on the part of Gopal Bux Rai. This application was dismissed and it is said that Ram Kripal Singh the manager of Ramautar Singh had gone to Patna to file a miscellaneous appeal against that decision. There was a Section 107, Criminal P.C. proceeding sometime in 1943 at the instance of Ramautar Singh against Gopal Bux Rai''s party with reference to dispute about the bakasht and zirat lands within the tenure of the Rajmata. The application, however, was dismissed and the proceedings ended by a refusal on the part of the Magistrate to bind the members of Gopal Bux Rai''s party.

It is said, however, that either in June or July 1944 Ramautar''s party had begun to cultivate the bakhast and zirat lands and this was opposed by Jdgeshwar Bux Rai''s faction. I should state here that in June 1944 the Rajmata gave a lease of village Nawa and another village at a rental of Rs. 1400 to Mt. Bedbati Debi wife of Ramautar. There was a Section 144 proceeding with reference to the bakasht and zirat lands, but it went against the lessees who were prohibited from cultivating the bakasht and zirat lands. It is asserted, however, on behalf of the prosecution that for the time being Ramautar Singh decided to give up cultivation of the bakasht and zirat lands and to abide by the order made u/s 144, Criminal P.C. It would appear that in November 1944 Ramautar Singh actually deposited a sum of Rs. 1200 u/s 83, T.P. Act, in order that Tuti Babu may be compelled to withdraw this sum of money and redeem the rehan which Tuti Babu claimed he had over the lands in question. It will be seen, therefore, that the Rajmata and Ramautar Singh were in very close association in opposing the claims of Gopal Bux Rai or his uncle Jugeshwar Bux Rai. Ramautar Singh is alleged to have extensive business in Assam and himself is a resident of Shahabad district. He has some houses in Daltongunj and it was not till early in December that any attempt was made by him or his servants to establish any headquarters in village Nawa, the place where Jugeshwar Bux Rai has his garh. Whatever the dispute may have been with reference to the bakasht and zirat lands, the right to collect rent, prima facie, would appear to be with the Rajmata and her lessee Mt. Bedbati Debi and when in October the time approached to collect rents with reference to the bhadai crop, Ramautar''s servants seem to have established their headquarters at village Jaipur in the dalan of the Jaipur Babus, namely, Rajkishore Bux Rai and his family. There would appear, however, to have been opposition on behalf of Gopal Bux Rai to Ram Kripal Singh the manager of Ramautar Singh collecting rents from tenants for it appears that Dharamjit Kahar a servant of Mt. Bedbati filed a complaint on 30th October 1944 with reference to an occurrence on the 28th of that month. According to Dharamjit Kahar he went to village Nawa to make collection of rent from tenants when the servants of Gopal Bux Rai forbade him from doing so and on his saying that they should speak to the manager, he was caught hold of and taken to the garh where he was wrongfully confined and assaulted and ultimately made to spit and lick up his spit. Whatever the merits of this complaint may be there is certainly an assertion by Dharamjit Kahar that Gopal Bux Rai''s servants were prohibiting him from collecting rents in village Nawa. As to Dharamjit Kahar it may be stated that he belongs to the family of Bissesswar Kahar father of Bhrigu Kahar and it is apparent from the record that Dharamjit and Bhrigu are unfriendly to Gopal Bux Rai and his family. It is also in the house of Bissesswar Kahar that ultimately Ramautar Singh established his manager Ram Kripal Singh, his tahshildar Rajnarain Singh and some ten peons. I have already mentioned the name of Rajkishore Bux Rai, He appears to be an agnate of Gopal Bux Rai, but the record indicates that he is unfriendly to Gopal Bux and his family. Details of the various proceedings and cases in connection with these various personalities that I have so far referred to will be given in due course; but it is important to remember that Ramautar Singh by virtue of his marriage to Mt. Sham Sundari Kumari and the lease of village Nawa in the name of his first wife Mt. Bedbati Debi has virtually become the individual who is putting up resistance to Gopal Bux and his uncle Jugeshwar Bux.

In the dispute between them, it would appear, that Dharamjit and Bhrigu Kahar have been siding with Ramautar Singh. It would also appear that Rajkishore Bux Rai was giving assistance to Ramautar Singh by allowing his dalan to be used as the headquarters of Ram Kripal Singh the manager, from where attempts were being made to realize rents from the tenants of Nawa. Rajkishore Bux also has a mulazim by the name of Jagarnath Singh. It is this man who accompanied Rajnarain Singh to the police station when the first information was lodged.

The details of the circumstances disclosing unfriendly relations between Rajkishore Bux and the family of Gopal Bux Rai may be shortly stated. In the first place, the fact that he gave accommodation to Ramautar''s servants in his dalan at Jaipur when the dispute between Ramautar Singh and Gopal Bux Rai''s family was on must have been the result of some ill-feeling on the part of Rajkishore Bux against Gopal Bux Rai and his family. This act of Rajkishore must have been interpreted by Gopal Bux Rai and Jugeshwar Bux Rai as nothing short of encouragement to Ramautar Singh to collect rents from village Nawa. In the month of December there was a theft in the house of Rajkishore Bux at Jaipur and Jagarnath Singh alleged in the first information report, against unknown persons, that he suspected the servants of Jugeshwar Bux Rai, namely, Bircha Singh, Dhundh Kahar, Nagar Kahar, Baisakhia and others. Jaipur is about a mile from village Nawa. It appears that there are hats held in both the villages. At Nawa they are held on Tuesdays and at Jaipur on Saturdays. In either October or November Gopal Bux Rai''s party, however, began to start a market on Saturdays also and it would appear that an application on behalf of the Jaipur Babus u/s 144, Criminal P.C., was made but dropped. These incidents clearly indicate, to my mind, that for some reason or another Rajkishore was hostile to Gopal Bux and his uncle Jugeshwar Bux Rai, and was helping Ramautar against them.

I have referred to the complaint filed by Dharamjit Kahar on 30th October, namely, Ex. 4. Dharamjit had named Inderdeo Singh, Birchha Singh, Kirta Singh and Balkesh Singh as accused in that case and his witnesses were Ram Kripal Singh, Bhrigu Kahar and others. Bhrigu Kahar nephew of Dharamjit Kahar filed a complaint on 28th November 1944, Ex. 17, regarding assault upon him and the taking away of his paddy. He accused Jugeshwar Bux Rai, Muhammad Hussain, Ramju Mian, Inderdeo Singh, Birchha Singh, Farahat Hussain, Rambirich Singh, Lalji, Rambadan Singh and some 40 other persons as being responsible for the theft of his paddy and assault and riot. In this he named as one of his witnesses Pokhan Sah, a prosecution witness in the present trial, said to be a peon of Ramautar Singh. In December 1944, Bhrigu Kahar filed a petition Exhibit 15 against Jugeshwar Bux and several others. In this petition he sets out a number of matters on which he relies showing how helpless he was and how determined Jugeshwar Bux Rai was in acting in a highhanded manner towards him and he prays that the persons named may be called upon to execute a bond for keeping the peace. I think it is clear from these exhibits that Dharamjit and Bhrigu were certainly hostile to Jugeshwar Bux Rai and that at least Ram Kripal and Pokhan were witnesses for them against Jugeshwar Bux Rai and his men.

On 6th December 1944, Ram Kripal filed an application u/s 107, Criminal P.C., against Jugeshwar Bux Rai, his two sons Megha Bux Rai and Tipu Bux Rai, Balkesh Singh, Birchha Singh, Kirta Singh and Inderdeo Singh. It is quite beside the point for the purposes of this case to determine as to whether the various allegations made in these various complaints and petitions were true or not. It is patent, however, that the conduct of the complainants in these various cases indicates existence of enmity with the persons complained against.

I have already indicated that the headquarters of Ramautar Singh was in the dalan of the Jaipur Babus at Jaipur and that at that time the strength of Ramautar''s servants according to the evidence was not much more than five. Indeed the learned Judicial Commissioner refers to a petition of Ram Kripal Singh himself of 5th December where he speaks of having only five peons with him. In early December, date unknown, Ramautar''s manager Ram Kripal Singh transferred his headquarters to the house of Bissesswar Kahar in village Nawa and the strength of the peons of his master more than doubled itself. It is also clear from the evidence that most of these peons stationed at Nawa were men imported from other villages and some of them from other districts. The rapid strengthening of the number of peons employed by Ram Kripal when living in Nawa in the house of Bissesswar Kahar may have been either due to an apprehension that his presence in Nawa may be dangerous and that he should be prepared to defend himself or it may have been for the purpose of making collection of rents by means of force or it may have been that having advanced into Nawa itself Ramautar Singh may have still had an eye on the bakasht and zirat lands which he apparently seems to have given up so meekly so far as the criminal Courts are concerned. "Whatever the reason, it is a remarkable circumstance that the strength of Ramautar''s servants in village Nawa had more than doubled itself within a very short time and we cannot altogether overlook the allegation of Dharamjit Kahar in his complaint of 30th October 1944 while Ramautar''s headquarters were still at Jaipur that the servants of Gopal Bux Rai were prohibiting them from collecting rents from tenants of Nawa.

I have given these various details in order to present the background and the atmosphere prevailing in the locality at the time when the occurrence took place. No one can possibly doubt in this case that an occurrence of a very serious nature took place in village Nawa and that in course of it two men were brutally murdered without any excuse or justification whatever. The circumstances found by the police, namely, blood in the dhaba and the marks on the walls and the two dead bodies either in the dhaba or just outside it convince me that the place of occurrence was undoubtedly the house of Bissesswar and if I have understood the submissions of the learned Counsel for the appellants, I do not think he ever questioned that. I have also examined the circumstances to find out for myself as to whether the occurrence which took place at night after midnight of 27th December and the early hours of 28th December could possibly have been an attack by dacoits and unknown people and that the enemies of Jugeshwar Bux Rai took the opportunity to convert what was a dacoity into a determined attack to drive Ramautar''s men from village Nawa. There is, to my mind, nothing on the record to show that there was anything worth attacking or taking away so far as the dacoits were concerned. There is also nothing on the record to indicate that any one other than Jugeshwar and his party is on hostile terms with Ramautar and his party and it would seem to me that in all likelihood the attack on Bissesswar''s house was by persons who were interested in Jugeshwar. Indeed the most important question to be determined in this appeal is the question of identification. While determining as to how far the witnesses are to be relied, I think one cannot keep out of mind having regard to the enmity which existed in this case, the possibility of witnesses naming obvious names as persons who had taken part in the occurrence. (After considering the evidence and coming to the conclusion that it was unsafe to rely upon the evidence of identifying witnesses, and the test identification parade his Lordship proceeded.)

Having given the case my serious consideration and giving full weight to the arguments made on behalf of the prosecution, I feel that I must decline to uphold the convictions and I would accordingly allow the appeal, set aside the convictions and sentences passed on the appellants and discharge the reference.

Before I close this judgment I would like to say a few words on the procedure adopted by the defence in filing some documents along with the written statement. Section 256 (2), Criminal P.C., states that if the accused puts in any written statement the Magistrate shall file it with the record. I do think that when a written statement is put in on behalf of the defence a Court should give due consideration to it, but it does not necessarily follow that everything stated therein is necessarily legal evidence, and where documents which require to be specifically proved before they can be taken into evidence are filed along with such a written statement the danger is that much of what may otherwise be inadmissible is necessarily brought to the notice of the Court. In this particular case, however, it has not made any difference to the result whether it ended in the manner before the learned Judicial Commissioner or in this Court. Indeed learned Counsel for the appellants scarcely made any reference to those documents. My attention was drawn to a case reported in Muhammad Salia Rowther v. Emperor AIR 1928 Mad. 1135 where actually a conviction was set aside and a retrial ordered where the Court had declined to consider documents filed along with the written statement as they had not been exhibited in the case and remained unproved and with great respect to the learned Judge I do not think that one could go as far as he did in setting aside a conviction merely on the ground that the documents filed along with the written statement had not been considered. There may be circumstances where the documents are put in which require no formal proof or documents which may be admitted by both sides in which case the Court may be justified in referring to them; but documents which are undoubtedly inadmissible until formally proved need not, in my judgment, be considered by a Court whether filed with a written statement or otherwise unless duly proved.

Beevor, J.

I agree that this appeal should be allowed and the convictions and sentences set aside and the reference discharged.

I have no doubt that on the night of occurrence an attack was made by a number of men on behalf of Jugeshwar Bux Rai alias Tuti Babu against the house in which Rajnarain Singh and Ram Ekbal Singh were sleeping. The fact that no serious attempt seems to have been made to break open the door of the room in which they were sleeping, and the fact that the two peons, who were the stoutest and strongest, were killed receiving a number of incised wounds while the remaining peons escaped with comparatively minor injuries, including not more than one incised wound, suggests to my mind that the primary object of the attack was not to kill, or even to cause serious injury to any person, but to produce a demonstration, and cause the representatives of Ram Kripal Singh such a fright that they would abandon all intention of living longer in this village. It seems to my mind probable that the two peons who met their death put up a somewhat unexpected resistance, and it was only then that sharp weapons were brought into action.

The mere fact, however, that serious riot occurred in which two men were killed does not justify the conviction of any person. In this case I agree with my learned brother that the evidence on record is not of a character which could establish beyond reasonable doubt that any one of the appellants took part in that occurrence. If Rajnarain Singh could be regarded as an honest witness I should hesitate long before holding that what he claimed to have seen either through the slit in the door or from the top of the roof was physically impossible. I doubt whether much advantage would have accrued from a careful measurement of the slit in the door by the Inspector. In my experience arguments drawn from such measurements to the possibility of seeing or recognising persons or objects in any given position outside usually prove fallacious.

It would, I think, perhaps have been more useful had the Inspector made a careful note and stated in evidence how far and in what direction it was possible to see through that slit in the door. I would also not like to lay down any general rule as to the possibility of any man recognising some person at night by his voice. But in the present case I cannot regard Rajnarain Singh as an honest witness at all. In my opinion the whole of his evidence, when taken in conjunction with the evidence of other witnesses and the surrounding circumstances, shows that from the time of the occurrence to the time he lodged the first information report at the police station at noon on the day following the occurrence he was making no genuine attempt to ensure that those who had really taken part in the occurrence were brought quickly and effectively to justice. In my opinion his whole conduct shows that he was leaving the door open as wide as possible for later manipulation of the evidence, with a view to securing freedom of action for any witnesses who sought to implicate any persons whom it was thought desirable, irrespective of the truth of such accusations.

The conduct of Ram Ekbal Singh also appears to me to call for condemnation. He was the cousin of Ram Kripal Singh, the manager, who was away on the night of occurrence, and even if his story that Raj Narain Singh told him nothing that night about the identity of the attackers is true, I think it is quite clear that he was making no attempt to see that justice followed the crime which had been committed but was disassociating himself from all responsibility in that connection. Such witnesses as Bhrigu Ram and the peons can hardly be expected to make a stand for truth if men like Raj Narain Singh and Ram Ekbal Singh, who are their superiors in education and social status, if not in moral worth, were setting a bad example. In my opinion it is largely owing to the dishonest and tricky conduct of Rajnarain Singh and Ram Ekbal Singh that it has been impossible to secure justice against the murderers of Maheshwar Dubey and Dasrath Singh, and I wish I could believe that they are capable of recognising even partially the extent of the shame which attaches to them for such conduct.

As regards the documents which were filed with the written statements in this case, I should like to add a few words. Such documents were filed with more than one written statement, but I will confine myself to the written statement filed on behalf of Jugeshwar Bux Rai alias Tuti Babu and two others. In para. 5 of that written statement it is stated:

That Biseswar, Dharamjit and Bhirgu have been hostile to these accused as Jagdish Kahar their relative sold his share of the ancestral lands to Dhundh Kahar and the latter sold the same to the daughter-in-law of accused 1 (Tuti Babu) who took possession of the land. Bhirgu and others have been bringing false oases against these accused and their servants due to enmity. The two sale deeds are attached with this petition as a part of written statement for reference.

The two documents filed with this written statement consist of two registered documents, one purporting to be a sale deed by one Jagdish Ram in favour of Dhundh Ram dated 23rd May 1941 and the other purporting to be a sale deed by Dhundh Ram to Sm. Mundranath Kuer dated 18th January 1944. Now, it seems to me clear that these documents could, in no circumstances, whatsoever be treated as any part of any statement of any of these accused whether written or otherwise. The documents are statements of the persons who executed them, if of any body. The only relevance of such documents in the present case would be to establish the truth of the statements made in para. 5 of the written statement to which I have just referred. That is the function of evidence.

u/s 3, Evidence Act, "evidence" means and includes (1) all statements which the Court permits or requires to be made before it by witnesses in relation to matters of fact under enquiry; such statements are called oral evidence, and (2) all documents produced for the inspection of the Court; such documents are called documentary evidence. A written statement filed on behalf of an accused is not a statement made by a witness nor I think can it be treated as a document produced for the inspection of the Court. u/s 61, Evidence Act, the contents of documents may be proved either by primary or secondary evidence and u/s 62 primary evidence means documents themselves produced for the inspection of the Court. Section 67, however, requires that if a document is alleged to have been signed or to have been written wholly or in part by any person the signature or handwriting of so much of the document as is alleged to be in that person''s handwriting must be proved to be in his handwriting. The two sale deeds now in question were alleged to be signed or executed by Jagdish Ram and Dhundh Ram respectively and, therefore, before those documents could be taken in evidence it was necessary to prove their execution by those persons. There was no evidence to prove such execution. I do not think it is necessary to decide whether in any circumstances it is possible to regard the statements of an accused in his written statement as proving the handwriting or the signature of any document tendered in evidence for the defence. I think it is sufficient to note that in my opinion it would be only in exceptional circumstances that the Court would be justified in adopting such a course; because ordinarily evidence would be available to prove such signature or execution, and the statement of the accused, even though the Court may consider it, is not strictly evidence, and it would be open to the Court, if the defence failed to produce the evidence which was available to prove execution of such documents, to draw the presumption that such evidence, if produced, would have been unfavourable to the defence.

As regards the decision of Devadoss J. of the Madras High Court reported in Muhammad Salia Rowther v. Emperor AIR 1928 Mad. 1135, it is unfortunate that the judgment reported is very brief so that it does not show what were the facts in issue in that case. It is therefore, impossible to know from the report how the documents which were filed with the written statement in that case would have been relevant. There were four documents. One of them was a telegram which purported to have been sent by accused 1 to accused 2 on 1st April 1926; another is a receipt for 12 annas for the cost of the telegram; the third was a post-card said to have been written by accused 2 to accused 1 in reply to the telegram on 1st April 1926 from Madura; and the fourth was a railway ticket from Egmore to Madura, dated 4th April 1926. Items 2 and 4 would appear to have been documents which required no evidence to prove them, and even document No. 1 might perhaps have been admissible for a limited purpose without proof though Section 88, Evidence Act, would prohibit the Court from drawing any presumption as to the person by whom that telegram was sent. I think that there is a certain confusion in the use of the word "consider" in the judgment of Devadoss J. where he says: "The Court is bound to consider the document along with, his statement." In one sense the Court is bound to consider any document which is tendered before the Court for the purpose of being admitted in evidence, but that is a different thing from considering it as evidence. If that distinction is kept in mind I think it will be clear that documents should not be tendered with the written statement, but should be tendered separately for admission in evidence and it will then be open to the Court to decide whether such documents require proof before they can be admitted in evidence, but the Court should not accept other documents as part of the written statement.

I notice that Section 256(2), Criminal P.C., which directs that if the accused puts in any written statement the Magistrate shall file it with the record, appears in the chapter relating to the trial of warrant cases, but I have no doubt that this provision is actually applicable in sessions cases, as such written statements have always been admitted so far as I know. But I notice that Section 292, which appears in the chapter dealing with proceedings in trials before High Courts and the Courts of Session, lays down that the prosecutor shall be entitled to reply in certain cases including "(c) with the permission of the Court when any document which does not need to be proved is produced by any accused person after he enters in his defence." This, I think, clearly shows that documents which do require proof are not to be admitted until they have been proved, that is to say, normally proved by evidence.

Although I have stated that in my opinion, it is quite improper for any Magistrate or Sessions Judge to admit extraneous documents as part of the accused''s written statement, I do not intend to lay down any rules as to when he is justified in accepting documents in evidence for the defence with or without separate evidence to prove them.