PULUKURI KOTTAYA Vs. KING-EMPEROR

JUDGEMENT

(1.) THIS is an appeal by special leave against the judgment and order of the High Court of Judicature at Madras, dated October 22, 1945, dismissing an appeal against the judgment and order of the Court of Session, Guntur Division, dated August 2, 1945, thereby the appellants, who were accused Nos. 1 to 9, and nine others, were found guilty on charges of rioting and murder. Appellants Nos. 1, 2, 3, 4, 7 and 8 were sentenced to death, and appellants Nos. 3 and 9 were sentenced to transportation for life. There were other lesser concurrent sentences which need not be noticed. At the conclusion of the arguments their Lordships announced the advice which they would humbly tender to His Majesty, and they now give their reasons for that advice.

(2.) THE offence charged was of a type common in many parts of India in which there are factions in a village, and the members of one faction are assaulted by members of the other faction, and, in the prosecution which results, the Crown witnesses belong to the party hostile to the accused; which involves that their evidence requires very careful scrutiny. In the present case the assessors were not prepared to accept the prosecution evidence, but the learned Sessions Judge, whilst taking careful note of the fact that the six eye-witnesses were all hostile to the accused, nevertheless considered that the story which they told was substantially true, and accordingly he convicted the accused. As already noted, this decision was upheld by the High Court in appeal.

(3.) THE facts material upon this part of the case are these. THE offence took place at about 6-30 p. m. on December 29, 1944, and at 7 a. m. on December 30, the police sub-inspector held an inquest on the body of one of the murdered men. He examined live of the prosecution witnesses, including four of the alleged six eyewitnesses, and wrote down their statements in his note-book. After the conclusion of the inquest the Circle Inspector took over the investigation from the police sub-inspector and on the same day, that is December 30, he examined all the alleged eye-witnesses and others, including all the witnesses who had been examined by the police sub-inspector, and their statements were recorded in the case diary prepared by the Circle Inspector. It is the failure to produce the note-book of the police sub-inspector which constitutes the alleged infringement of the proviso to Section 162, and the facts as to this are stated in an affidavit of Gutlapally Venkata Appayya sworn on October 19, 1945, and are not challenged. Prior to the commencement of the preliminary inquiry before the Magistrate an application was made on behalf of the accused for grant of copies of statements under Section 162 of the Code of Criminal Procedure recorded by the sub-inspector and the Circle Inspector of Police from the prosecution witnesses in the case during investigation. THE accused were supplied with copies of statements made by witnesses before the Circle Inspector of Police and were informed that statements made to the Sub-inspector of Police were not available. During the Sessions trial, when prosecution witness No.2, who was the principal prosecution witness, was in the witness-box, counsel for the accused represented to the Court that he had not been supplied with copies of statements recorded by the sub-inspector at the first inquest, and requested the Court to make those statements available to enable him to cross-examine the important prosecution witnesses with reference to the earliest statements. THE learned Sessions Judge directed the public prosecutor to comply with the request. THE public prosecutor, after consulting the sub-inspector and Circle Inspector, who were present in Court, submitted to the Court that except what was recorded in the inquest report itself, no other statements were recorded by the sub-inspector, and the learned Judge directed the defence counsel to proceed. THE next day, when the cross-examination of prosecution witness 2 was continued, counsel for the accused submitted to the Court that he desired to file an application for copies of statements recorded by the sub-inspector at the first inquest so that it might be endorsed by the prosecution that no such record of statements existed. THEn the public prosecutor stated to the Court that he fully realized his responsibility in making the statements he had made on the previous day, but there was no record of any statement made at the inquest available. On the fourth day of the trial, after the principal prosecution witnesses had been discharged, the police sub-inspector gave evidence, and he then produced in the witness-box his notebook containing the statements of the five witnesses he had examined at the inquest, and a copy of such statements was then supplied to the accused. THEre are some discrepancies between the statements made to the police sub-inspector and the statements of the witnesses in the witness-box, but it is not suggested that such discrepancies are of a vital nature.