AHMED MIA Vs. EMPEROR

JUDGEMENT

(1.) Six persons, namely, Ahmed Mia, Abul Kashem, Nurus Safa alias Ahmed Sofa, Syedar Rahaman, Ali Mullah and Khalilur Rahaman were sent up for trial charged under various sections of the Indian Penal Code. They were tried by the Additional Sessions Judge of Chittagong and a jury and they were all convicted under various sections of the Indian Penal Code. Five of the appellants have appealed. They are the first five named above. The case against the appellants may, briefly, be stated thus: Amir Hossain and certain other persons claimed to have a right of way over a certain path leading to a tank. They alleged that the accused obstructed that pathway by erecting a bamboo fencing. When they went to remove that fencing, the accused and others assaulted them as a result of which one Ahmed Mia was killed. The defence taken broadly may be stated thus: Amir Hossain and his party were attempting to carve out a pathway over land belonging to the appellants. They trespassed into the homestead portion of the appellants land and there was a mutual fight in the course of which persons of both parties got injured.

(2.) It appears that the same investigating, officer conducted the enquiry with respect to the allegations of both parties and Amir Hossain and others were tried in a counter case. It is clear from this brief statement of the facts of the case that the investigating officer who went on the scene very shortly after the occurrence was perhaps the most important witness in the case. He gave evidence in the Sessions trial. The appellants requested the Court by a petition to direct the investigating officer to come with the police diary of the counter case, so that he may be contradicted, if necessary, as regards his statements as to what he saw at the time of his investigation by reference to his own record of what he saw in the police diary. The learned Judge rejected the petition stating that Section 162, Criminal P. C, rendered such a statement inadmissible in evidence.

(3.) In our judgment, the learned Judge was wrong in refusing this prayer of the accused. Section 162, Criminal P.C., has nothing whatsoever to do with this matter. That section relates to statements made by persons to police officers in the course of investigation. What the appellants were wanting to make use of was not a statement of a person to a police officer but a statement of the police officer recorded by himself in his diary. Not only was there no objection to the learned Judge calling for this police diary but we are of the opinion that in the particular circumstances of this case he should have called for this diary and satisfied himself by referring thereto that the evidence given by the investigating officer before him truly represented what the investigating officer saw. In the circumstances of this case, the investigating officer's evidence on this point was of vital importance and the learned Judge should have satisfied himself by looking into the diary that the investigating officer was relating accurately and truly what he saw at the place of occurrence. In this connexion, we would refer to Section 172, Criminal P. O. It is true that this section does not in terms apply, but it is useful because it indicates a principle which should guide the Courts in dealing with such police diaries. Section 172 (2) says: Any criminal Court may send for the police diaries of a case under inquiry or trial in such Court, and may use snob, diaries, not as evidence in the case, but to aid it in such inquiry or trial. It goes on to say that neither the accused nor his agents shall be entitled to call for such diaries, or to see them merely because they are referred to by the Court; but if the diaries are used by the police officer who made them, to refresh his memory, or if the Court uses them for the purpose of contradicting the police officer the diaries would become evidence under Section 161 or Section 145, Evidence Act. We would point out that Section 172 relates to the police diary made in respect of a case under enquiry or trial by the Court which calls for it. In the present case the diary related not to the case which was actually being tried by the Court but to the counter case. For this reason we stated before that Section 172 does not in terms apply, but the principles there set out apply. We are not aware of any section which would prevent the Court from looking into the diary of the counter case, or from using the diary in the counter case in the way laid down in subs. (2) of Section 172, Criminal P. C., and we are of opinion that in this ease the Court should have used the diary in that manner. True, this is a question of discretion but we are of opinion that the Court in failing to exercise its discretion properly committed a serious error and that by reason of this error the conviction of theappellants has been vitiated.