Ramyad Dusadh and Others vs King-Emperor

Macpherson, J.—This application in revision is made by six petitioners against their conviction u/s 147. I.P.C. by the Deputy Magistrate of Patna and their sentence of eight months'' rigorous imprisonment, with an order u/s 106, Criminal P.C. which have been affirmed on appeal by the Sessions Judge.

The prosecution case was briefly as follows: Jaglal Mahto of Niamatpur, whose barahil is Ramyad Dusadh, the first petitioner, has had civil and criminal litigation with Bislal Mahto, son of Rameshwar Mahto of Dhanauti. On 31st May 1924, about 12-30 a.m., while neighbours and relatives of Ramashwar were sleeping in the open space outside his house and Bisal on the osara, a mob of 30 or 40 men including petitioners, who, except Komal are related, came armed with lathis (Nabha with a garasa) in search of Bislal and his father. Before the invaders were driven, off by the villagers of Dhanauti they inflicted serious, and in some cases dangerous, injuries upon six of the Mahtos of Dhanauti, most of which ware due to lathi blows, but some of which were probably caused by a garasa, as in the case of Pati, Bala and perhaps Lochan, from all three of whom a "dying declaration" was recorded, as they appeared to be in a critical state.

A charge u/s 147 with common object to cause hurt to the men injured and also a charge u/s 326 read with Section 149, wore framed against all the accused except Nabha who was separately charged under Sections 148 and 326.

Various defences were raised, such as, that the case was falsely brought from ill feeling, that the injuries were really caused by Mahadeo, Chedi and others in the daytime at some other place and that Komal was ill at Koilwar. The Magistrate negatived these defences, and as stated, convicted the petitioners of rioting, giving Nabha the benefit of the doubt as to whether he carried and wielded a garasa.

Before us Sir Ali Imam claims: (1) an acquittal because so much of the evidence has been disbelieved that it is unsafe to convict at all and, failing an acquittal, (2) a remand for the re-hearing of the appeal on the ground that evidence has been used against the petitioners which the law enjoins shall not be used.

As regards the first of these pleas a perusal of the judgments forthwith places it a invalidity beyond all doubt. The Magistrate merely found the evidence inconclusive as to whether Nabha had a garasa and injured Pati and Bala with that weapon and gave him the benefit of the doubt, while he refrained from convicting the other accused u/s 326 read with Section 149 for the reason, an unsound one, that the actual person "who had committed the offence u/s 326 had not been traced." These conclusions are not at all fundamental to the whole prosecution case, and they do not vitiate or indeed affect the findings of the trial Court in respect of the charge of rioting, which has been sustained on appeal.

The basis of the second plea is the following paragraph in the judgment of the appellate Court:

Next, as to the suggestion that the prosecution witnesses were really beaten only by Mahadeo, Chedi and others, who are mentioned by a few of the witnesses along with the accused persons in the statements made before the police, it rests on no evidence whatsoever. It would be quite different if the accused had not been mentioned at all before the police, but She cross-examination by the defence has made it clear that they were so mentioned. The question whether Mahadeo and others should have been sent for trial along with the accused is one with which it is not necessary to deal. Two defence witnesses, D. Ws. 2 and 3, say that Kalicharan and Rameshwar, accused, cultivate land of Husaini, but mention no quarrel in this connexion.

It is urged that the provisions of Section 162, Criminal P.C., have here been ignored by the appellate Court and that the folly of the counsel appearing on behalf of the defence in bringing out in cross-examination that the accused has in fact bean mentioned by the prosecution witnesses before the police, would make no difference to its inadmissibility in evidence under that provision.

Now, as has been indicated in the decision in Badri Chaudhry and Others Vs. Emperor, , the provisions of the new Section 162(1), Criminal P.C., stringently exclude from use for any purpose in a criminal trial any statement to the police whether recorded or not recorded except to contradict within very strict limitations a statement made at the trial by a prosecution witness. It must be considered first whether this provision has been infringed, and if it has, it must further be considered what the effect of the infringement is.

As regards the first point, it is contended that the statement of the witnesses that the petitioners were mentioned by the prosecution witnesses to the police is entirely inadmissible in evidence but nevertheless has been used by the Sessions Judge as an answer to the defence case that persons not sent up by the police alone beat the prosecution witnesses. The contention cannot be gainsaid. A statement by a person to the police in the course of the investigation of an offence cannot be used for any purpose at the trial of that offence except to contradict the evidence given at the trial_ by_ that person. In particular it cannot, even if admitted to contradict, be used to corroborate the evidence of that person or for the purpose to which it has been put in the present instance, namely, to meet a suggestion of the defence. Prima facie therefore it would seem that the provisions of Section 162(1), Criminal P.C., have been infringed.

In the present case, however, the infringement appears to have had no effect. The sentence in the judgment of the appellate Court in which it occurs is unnecessary for the argument. It has justly been pointed out by the learned Sessions Judge that the suggestion that only persons not on trial who had been mentioned during the investigation in addition to the petitioners were the assailants, had no evidence in support of it, and immediately after it is pointed out that it is necessary to consider whether the said persons should have also been placed on trial. The passage objected to simply sets out the truism that if petitioners had not been mentioned before the police the suggestion which has already been found to be based on no evidence, would have been weighty. Now if the petitioners desired to rely upon the fact that a prosecution witness had not mentioned the names of petitioners to the police as showing that his testimony in Court was unworthy of credit, it was upon them to prove that he had in fact not done so. The record shows that they failed to adduce such proof. There is thus no basis for the suggestion in the appellate Court that the appellants were not among the assailants and it was superfluous for the Sessions Judge to refer in that connexion to the inadmissible item of evidence which went much further than was necessary for the rejection of the suggestion. The suggestion moreover had been dealt with by the trial Court and negatived on grounds which cannot be questioned in point of law or of fact. In my judgment the infringement had no effect on the decision.

The matter has, however, practically no significance in the present case. The judgment of the appellate Court deals at length with the case of each of the petitioners; and, independently of the evidence objected to and admitted, there is overwhelming direct and positive evidence against each which is admissible, has not been in the slightest measure rebutted and is entirely reliable. The petitioners have also not been prejudiced in any way. Under the circumstances the improper admission of the evidence objected to is, u/s 167, Evidence Act, 1872, not a ground for a new trial or for the reversal of the decision of the appellate Court and there is no ground for interference in revision.

I would, therefore, discharge the rule and dismiss this application.

Sen, J.

I agree.