(1.) This appeal is by Bhagirathi Chowdhury and four others who have been convicted in accordance with the majority verdict of the Jury by the Sessions Judge of Rajshahi. The first accused has been convicted under Secs.147 and 325, Indian Penal Code, and sentenced under Section 325 to five years rigorous imprisonment, no separate sentence having been passed under Section 147. The other four accused persons have been convicted under Secs.325/149, Indian Penal Code, and sentenced to three years rigorous imprisonment.
(2.) The riot alleged to have taken place was over a piece of land, in course of which, it is said, one Mir Panchu was beaten to death. Several objections have been taken on behalf of the accused to the address by the Judge to the Jury; but it is sufficient to refer to two of these, as in our opinion, the. others are not important.
(3.) The first objection is that certain statements have been admitted by the learned Sessions Judge which are inadmissible in evidence. In the course of the examination of Ananta Prosad Das (Sub Inspector of Police) he was asked in examination-in-chief whether he examined daring the course of the investigation any witness on behalf of the accused and he said that he had examined only two witnesses Bartu Chowdhury and Daulot Ghose who were produced before him and both of them stated that they were not present at the occurrence. This, it is said, is in contravention of the provisions of Section 162, Cr.P.C. That Section says that no statement made by any person to a Police Officer in the course of an investigation...shall be used for any purpose at any enquiry or trial.... It is not clear why the witness was made to make this statement; but it is suggested that one of the persons named by him at least, namely Daulot Ghose, was a witness, cited by the defence ands therefore, in anticipation of the evidence which might be given by Daulat Ghose, this statement was made by the Inspector. In my opinion this statement by the Sub-Inspector is not admissible. Section 162, Cr.P.C., is clear enough to exclude any statement made by any person and directs that such statement shall not be used for any purpose. The way in which this evidence has been brought out is objectionable in more ways than one. It is in direct contravention of the above provision of law and it is not justified by any other provision of law which makes evidence contradicting possible evidence of a, possible witness admissible against the accused. The mere fact that one of the persons so named by the Sub-Inspector was cited by the defence did not justify the prosecution in getting out a statement made by his in anticipation of what he might say. This statement by the Sub-Inspector in the hearing of the Jury must have apparently prejudiced the case for the defence and left an impression in the mind of the Jury that the accused produced witnesses in support of their case before the Sub-Inspector and both of them denied any knowledge of the occurrence. This statement is not, therefore admissible.