MANAR ALI Vs. EMPEROR

JUDGEMENT

(1.) The case for the prosecution against the accused appellants in this Court divulged a diabolical crime of murder, the occurrence having been traced after the dead body of one Abdul Rahaman was accidently discovered, after some time had elapsed from the date when the man was killed on 26 July 1931. An information to the police what is generally known as "a missing information," was lodged by one Makbul, nephew and son-in-law of the murdered man, on 27 July. The deceased Abdul Rahaman was last found going to the house of Abdul Gafur alias; Gauhar Ali, one of the appellants before us, and his dead body was found in a decomposed condition lying buried under earth on 2nd August, when dogs were found scratching the place, and a foul smell was coming through a hole made by the dogs.

(2.) The learned Additional Sessions Judge of Bakarganj, against whose order of conviction and sentences passed on the appellants, the appeal to this Court is directed, accepted the verdict of eight of the jurors before whom the trial of the-accused was held, and passed the sentence of transportation for life against each of the four accused persons put upon their trial, Under Section 302 (read with, Section 120-B), and Section 302 (read with Section 109),. I. PC. The case for the prosecution rested on evidence under two heads, referred to as direct and circumstantial, by the learned Additional Sessions Judge. The direct evidence consisted of the evidence of two witnesses Sabar Bhanu (wife of the accused Gauhar Ali), and Jalekha (the wife of a deceased brother of Gauhar Ali). As the main question raised in this appeal relates to this, that the Sessions Judge ought to have excluded the statements of Sabar, Bhanu and Jalekha recorded Under Section 164, Criminal PC. as inadmissible under the law, and that the Judge ought, to have directed the jury that the procedure followed on behalf of the prosecution in putting in these statements recorded Under Section 164 was unjustifiable and illegal, it is desirable to deal with the same first. It appears that statements made by these two girls, Sabar Bhanu and Jalekha, were recorded by a Magistrate Under Section 164, Criminal PC., on 5 August 1931. They were subsequently examined as witnesses on the side of the prosecution before the committing Magistrate on 25 September and 30 September 1931. The two girls were examined as witnesses for the prosecution at the trial before the Court of Session, after the accused had been committed to that Court for trial. It appears that the statements of Sabar Bhanu recorded Under Section 164, Criminal PC, were put in at the trial before the Sessions Court at the instance of the Public Prosecutor, Under Section 145, Evidence Act, and her depositions before the committing Magistrate were also put in at the instance of the Public Prosecutor, Under Section 288, Criminal PC, So far as the statement of Jalekha Under Section 164 and her depositions before the committing Magistrate were concerned, they were put in at the trial before the Sessions Court at the instance of the pleader for the defence. The Additional Sessions Judge referred to the statements made by Sabar Bhanu and Jalekha on the three different occasions mentioned above, in his charge to the jury, and stated as follows: All these statements, three in the case of each of the witnesses are before you. The statements before the committing Magistrate are evidence as much as their statements in Court. But you should bear in mind that the statements Under Section 164 can be used only for the purpose of corroborating or contradicting their statements in Court. Sabar Bhanu, in this Court, denies all knowledge about the occurrence. There are certain unimportant variations in the details, but the account of the occurrence as given in these three statements is substantially the same, Which of the statements should you believe .... All that I can do is to place before you all that has been urged for and against the different statements. Sabar Bhanu states before you that she made her previous statements because she was tutored to make them..... Her previous statements implicated her brother Manar Ali, and went very near implicating her husband Gauhar Ali.

(3.) With reference to the Judge's charge to the jury as contained in his statements quoted above, it must be said that the learned Judge was right in telling the jury that the deposition of the witnesses Sabur Bhanu and Jalekha before the committing Magistrate put in Under Section 288, Criminal PC, was substantive evidence in the case: they were as much evidence in the case as their depositions before the Court of Session. In regard to the statement Under Section 164, Criminal PC, the correct view to take is, in our judgment, undoubtedly the view taken by the Madras High Court in the case of Villiah Kone V/s. Emperor AIR 1923 Mad 20, that a statement by a witness recorded by a Magistrate Under Section 164, Criminal PC, was admissible in evidence to corroborate the statement made by that witness before the committing Magistrate from which statement the witness resiled in the Sessions Court. In support of the above proposition the learned Judges of the Madras High Court gave reasons in their, judgments with which we express our agreement. The credibility of the statement in the committing Magistrate's Court which must be considered as substantive evidence before the Court of Session, must be tested in exactly the same way as one made in the Sessions Court, and it was of utmost importance to know how it compared with the statements made soon after the event, before a competent authority. The object and effect of Section 288, Criminal PC., was to place the deposition in the committal enquiry, on exactly the same footing as the deposition in the Sessions Court.