Sakal Ahir and Others vs Palakdhari Ahir

Dhavle, J.—The petitioners have been convicted of theft of crops and sentenced u/s 379, I.P.C., to fines of Rs. 30, with one month''s rigorous imprisonment in default, each. The complainant claimed to have grown the crops on the lands on the basis of two mortgage deeds, while the petitioners'' case was that they had taken a prior shikmi settlement of the lands from the original tenant Ramnaresh Singh. There was a motion in revision to the learned Sessions Judge who refused to interfere.

The point on which intervention is now sought is the improper use of the police diaries by the trying Magistrate. In this connexion, the learned advocate has referred to the following observation in the judgment of the trying Magistrate:

Some discrepancies in the statements of some witnesses examined in Court have been pointed out from what they stated before the investigating officer. I have gone through the case diary. Those discrepancies are not material to facts in issue.

The contention is that the trying Magistrate apparently went into the case diaries as a whole, and in coming to the conclusion that the discrepancies were not material, was presumably influenced by the corroborative portion of the police diaries. This contention was raised before the learned Sessions Judge, who held that there was nothing to show that the trying Magistrate had acted on what he found in the diary, and that it would not therefore be said that he had relied on the police diary in deciding the case. I do not think that that really meets the case. When the trying Magistrate says that he has been through the case diary and follows up this observation with the remark that those discrepancies are not material to the facts in issue, it seems to be a perfectly fair inference that he was presumably influenced by other parts of the diary corroborating the witnesses in Court, though such use of the diaries is forbidden by law. In Dal Singh v. Emperor AIR 1917 P.C. 25 their Lordships of the Judicial Committee pointed out that it was inconsistent with the provisions of Section 172, Criminal P.C., to use police diaries for the purpose of testing the evidence of defence witnesses given in Court. It is at least equally contrary to law to make use of the police diary for the purpose of corroborating the evidence of prosecution witnesses as given in Court, especially having regard to Section 162 of the Code.

The result is that the conviction of the petitioners must be set aside. The fines, if already paid by them, must be refunded.