Iltaf Khan vs Emperor

Ross, J.—Iltaf Khan and Shamsuddin Khan have been sentenced to death by the Judicial Commissioner of Chota Nagpur on conviction of a charge of murdering Ram Sawarath Dubey on the 2nd of May 1925 at Chandarpura. The sentence had been submitted to this Court for confirmation and the prisoners have appealed against their conviction.

The Judicial Commissioner was assisted at the trial by four assessors all of whom held that the accused were guilty Besides the two appellants, a third person Ali Karim was also put on his trial, and two of the assessors were of the opinion that he was guilty also, but he, has been acquitted. (His Lordship here gave the prosecution story and after discussing the evidence proceeded) There remain four witnesses, Jogeswar Dusadh, Mahabir Dhobi, Munshi and Bhajan, and their evidence is directed to prove the fact that the accused were seen running away shortly after the murder, Jogeswar is the brother-in-law of Munshi and Mahabir is a neighbour. They are both residents of Kamat and their evidence in Court is that on the evening of the day of occurrence, about 2 gharis before sunset they saw the two accused passing through the village and thereafter they did not see them at their home. The weak point about their evidence is that they did not make any such statement to the Police. Before the Sub-Inspector all that was said was that the accused had been found absent from the village after the occurrence. Jogeswar Dusadh admitted that he did not mention to the Sub-Inspector his having seen the accused in the lane, but Mahabir Dubey maintained that he did make that statement. The Sub-Inspector says that he examined these witnesses on the 9th and that they stated only that the accused were absent from the village from the day of occurrence and they did not, so far as he remembered, say that they had seen the accused fleeing on the date of the murder.

On this evidence a question of law arises in the view of the learned Judicial Commissioner. Plainly there is a very important discrepancy between the evidence of these witnesses in Court and their statements to the Police, and if their statements to the Police were in the form deposed to by the Sub-Inspector, the statements made subsequently at the trial cannot safely be acted upon. The learned Judge, however, considering himself bound by the decision of this Court in Badri Chaudhry and Others Vs. Emperor, held that such use of the notes of the witnesses "statements in Police diaries was not warranted by law and apparently rejected to Police statement, and, in consequence, believed the evidence at the trial. Now so far as Jogeswar is concerned, no question arises. He admitted that he did not make the statement to the Police that he had seen the accused that evening. Mahabir Dubey maintained that he did and the Sub-Inspector contradicted him. Why should this not be evidence? Apparently the learned Judicial Commissioner is referring to the observation by one of the learned Judges who decided that case (an observation which on the facts found must be regarded as obiter, because on the facts no question of the construction of Section 162 of the Criminal P.C., arose) that only a part of the recorded statement can be used and that:

it is not permissible to use the recorded statement as a whole to show that the witness did not say something to the Investigating Officer.

To construe Section 162 of the Criminal P.C., as meaning that while any part of the statement of a witness to the Police may be used to contradict him, yet if the contradiction consists in this that a statement made at the trial was not made in any part of the statement to the Police, such a contradiction cannot be proved, seems to be an artificial construction. I am unable to adopt it, and with respect, I must dissent from that view. I can find nothing in the language of Section 162 which would lead to such a conclusion. I would, therefore, hold that the evidence of the Sub-Inspector with regard to these witnesses is relevant and on the strength of that evidence I would discard their evidence in Court.

There remains, therefore, only the evidence of Munshi and Bhajan. (His Lordship then criticised the evidence of these two witnesses and held that they were unreliable.) I fail, therefore, to find the evidence which can be safely acted upon to show even that these two persons were seen in the neighbourhood of the place of occurrence shortly after the murder. (His Lordship then discussed the question whether there was motive and found that there was none).

On the whole, therefore, I feel convinced that in this case the evidence falls far short of proof to justify the conviction of the appellants. I would, therefore, allow the appeal and set aside that conviction and sentence and direct that the appellants be acquitted and set at liberty.

Foster, J.

I agree.