RAHIJADDI Vs. EMPEROR

JUDGEMENT

(1.) These seven appellants were tried before the learned Sessions Judge of Tippera on charges under Secs.302/149 and 148, I. P. C, and the appellant Afsar was further charged under Section 302/114, I.P.C. The jury by a majority of 7 to 2 returned a verdict of guilty on these charges and the learned Judge agreeing sentenced the appellants to undergo transportation for life. I need not now set forth all the facts alleged by the prosecution, and they have been clearly detailed by the learned Judge in his charge to the jury. It is alleged that on 17 October last at about 11-30 P. M. these appellants and others entered the house of one Sultanarma and killed her and her husband Nabi Newaz by hacking them with cutting instruments. The occurrence is alleged to have been witnessed by two persons, Majid and Sadagar, and the other witnesses came afterwards. The learned Judge in his charge to the jury dealt with the evidence of all witnesses in its various aspects and explained that the decision must rest mainly on the evidence of the two eyewitnesses, Majid and Sadagar. He plainly told the jury that if they accepted his view, they would rule out the evidence of Sadagar, so that they would be left with the evidence of Majid alone. I may say here that in his judgment accepting the verdict of the jury the learned Judge remarks that he does not believe that Sadagar witnessed the murder at all, and that, had he been sitting singly, he would have held it unsafe to convict on thy evidence of Abdul Majid alone. Now, one of the witnesses, Ramju Ali who is witness 5, says something which touches very closely the evidence of Abdul Majid. The evidence of witness 5, goes against the prosecution particularly on two points. First, he says that he did not see Abdul Majid at the village the previous evening, the case for prosecution being that Abdul Majid had come to the village the previous evening with the deceased Nabi Newaz. Secondly, the witness says that, on hearing the shrieks of Sadagar and Sadagar's wife, he got up and went so far as the-bank of Sultanerma's tank and, feeling frightened, he came . back and called some neighbours; that then he went to Sadagar's house and found Sadagar, Sobhan and Majid; and that by that time the sun had risen; thereby implying that the occurrence had taken place at about sunrise. The defence case apparently was that Majid had come in the-morning after the occurrence, on being sent for. The learned Judge at the end of the cross-examination of this witness put certain questions to him with reference to statements made by him before the police and which were inconsistent with his present deposition. In his-answer the witness said that ho did not remember making those statements before the police. In his charge the-learned Judge dealt with the witness in this way;, be discussed the evidence and pointed out how it did not support the-prosecution version. He then told the jury what statements the witness had made to the police, as if all that was substantive evidence, and by reason of those discrepancies the learned Judge sought to discredit the witness in so far as he did not support the prosecution case. In my judgment the learned Judge misdirected the jury in thus referring to statements alleged to have been made before the police. No doubt under Section 165, Evidence Act a Judge has power to ask any question he pleases in order to discover or to obtain proper proof of relevant facts but, as the section itself shows, that power has its limitations. I quote From Ameer Ali and Woodroffe's Law of Evidence 1925, p. 1002. The Judge may ask any question in any form and at any stage of the cause, and to a certain extent even allow parties or their advocates to do so. This however, does not mean that he can receive illegal evidence at pleasure, or if such be left to the jury, a new trial may be granted, even though the evidence were extracted by questions put from Bench, but it is a power necessary to prevent justice being defeated by technicality, to secure indicative evidence and in criminal cases to assist in fixing the amount of punishment.

(2.) In the present ease the alleged statements before the police were not properly put in evidence under Section 162, Criminal P.C., they were not even proved as substantive evidence. Yet the learned Judge made use of them in order to discredit the witness in so far as he did not support the prosecution case. This {he was not entitled to do. I am supported in this by the case of Keramat Mandal V/s. Emperor A.I.R. 1926 Cal, 147 where in similar circumstances it was pointed out that Section 2, Evidence Act, left the provisions of Criminal Procedure Code unaffected, and it was held that the power conferred on a Judge :under Section 165, Evidence Act, could not be exercised for the purpose of introducing [evidence in contravention of the law viz. Section 162, Criminal P.C. In that case the statements in question were not important. In the present case however the charge shows that the learned Judge laid stress on the evidence of P. W. 5 Ramju Ali, and it was important, as it concerned the credibility of the eyewitnesses Abdul Majid. The misdirection is therefore material. I may further point out that in dealing with Ramju Ali the learned Judge at one place of his charge said that he was of the opposite camp. But he omitted to bring to the notice of the jury that this was the same witness who had given evidence for Nabi Newaz in a case under Section 110, Criminal P.C., against the appellant Afsaraddi and others.

(3.) We think therefore that the order of conviction and sentence passed by the learned Judge must be set aside and the case must be retried according to law. Williams, J.