ABDUL AZIZ Vs. EMPEROR

JUDGEMENT

(1.) Abdul Aziz, Chand Khan, Ghafur Khan, Yusuf, Wahid, Tahsin, Mustafa Khan and Shibdad Khan were charged before the Sessions Judge of Bulandshahr, the first six under Section 302, I.P.C. and the last two under Section 302 read with Section 109, I.P.C. The first six accused were found guilty of murder, and condemned to death by the learned Sessions Judge. The last two, Mustafa Khan and Shibdad Khan, were acquitted. Those condemned to death have appealed to this Court. They have been represented here by Mr. O Neill; he has addressed to us an able argument and has said everything for his clients which could possibly be said.

(2.) On the morning of 9 September 1930 between the hours of 9 and 10, Mahmud Ali Khan, a man aged 60 years, was assaulted, severely beaten, and subsequently died. The case for the prosecution is that in the mon May, 1900 a dacoity had taken place in a village called Mirpur. On 6 September Raza Ahmad, a police officer, was making investigation in the neighbouring village of Lohagara concerning this dacoity. A meeting of the villagers was called by the policeman and questions were put. Mustafa Khan denied that either he, or his brother, Yusuf Khan, one of the appellants or their partisans had taken part in the dacoity. But Mahmud Ali Khan, deceased, had stated publicly at this panchayat that certain of the people of Lohagara had taken part in the dacoity. Subsequently the Sub-Inspector took Mahmud Ali Khan aside and obtained a statement from him that Ghafur and Wahid, two of the appellants had certainly taken part in the dacoity along with some others The relationship between the deceased and Mustafa Khan and Yusuf Khan had clearly been strained in the past. Both sides had made accusations-against each other in reports to the police. It is suggested by the prosecution that this act of Mahmud Ali Khan made the party of Yusuf and Mustafa Khan make. up their minds to take action against Mahmud Ali Khan, and that that action took the form of murdering him. The learned Sessions Judge has found in his-judgment that there was no enmity between these two parties; but we are satisfied, on the evidence on the record that there clearly was enmity between the two, and we think it highly probable that the fact that Mahmud Ali Khan had given information to the police implicating certain of the accused had become known to the accused. In any event, there is the positive evidence of Mahomed Illyas that the party of the accused took the action of Mahmud Ali in this matter very ill. At any rate the one fact that is uncontested is that three days after this information was given to the police Mahmud Ali Khan was beaten and killed by some one. The evidence concerning the information to the police is contained mainly in the police diary. The Sub-Inspector who made the entries in the diary, which are Exs. H and J on the record was murdered a few days later. Mr. O Neill, on behalf of the accused appellants objects that the evidence of the police diary is inadmissible in evidence, and he relies upon Section 162,. Criminal P.C. That section reads as, follows: No statement made by any person to a police officer in the course of an investigation under this chapter shall, if reduced to writing, be signed by the person making it; nor shall any such statement or any record thereof, whether in a police diary or otherwise, or any part of such statement or record, be used for any purpose (save as hereinafter provided) at any inquiry or trial in respect of any offence under investigation at the time when such statement was made.

(3.) He lays stress upon the words in the section, "nor shall any such statement or any record thereof be used for any purpose." We are clearly of opinion that Section 162 does not apply in this case, The words after be used for any purpose" are at any inquiry or trial in respect of any offence under investigation at the time when such statement was made. Now it is obvious that this inquiry or trial, in which it is sought to use these records as evidence, was not under investigation at the time when these statements were made. In the Mirpurdacoity case if indeed that matter had ever come to urial, it is clear these statements would have been inadmissible. But when this trial or inquiry had never even been thought of Mahmud Ali Khan at that time never having been murdered-it is, in our opinion, perfectly clear that this section does not apply. When we look at the previous Section 162, Criminal P.C. (Act 5 of 1898), our present opinion is confirmed in the strongest possible manner. The section originally stood as follows: No statement made by any person to a police officer in the course of an investigation under this chapter shall, if taken down in writing, be signed by the person making it; nor shall such writing be used as evidence.