ABDUL GANI BHUYA Vs. EMPEROR

JUDGEMENT

(1.) The appellant Abdul Gani Bhuya has been convicted under Section 324, Indian Penal Code, and sentenced to six months rigorous imprisonment. He was tried with one Abdul Razak for offences under Secs.324,323 and 325, Indian Penal Code. The Jury unanimously found Abdul Razak not guilty and found the appellant guilty under Section 324, Indian Penal Code.

(2.) On behalf of the appellant three points have been taken by the learned Vakil who appears for him relating to non-direction in the learned Judge's charge to the Jury. The first point is with regard to the admissibility of the depositions taken by the Magistrate. What happened in this case is that the case for the prosecution rested on the evidence of two alleged eye- witnesses to the occurrence Nawab-ud-Din and Wasiuddin and of another witness Madhu, a servant of the family, who had lodged the first information on hearing about the occurrence from one of the other witnesses. Before the Committing Magistrate they spoke of having seen the occurrence or part of it but in the Sessions Court they practically denied having seen it. Nawab-ud-Din had said before the Committing Magistrate that there was an exchange of abuse. Gani Mia (accused) then began to cut Abdul Jabbar with his sword and Kalarbap (Abdul Razak) beat Abdul Jabbar on the head. Abdul Jabbar fell down and was beaten further. In the Sessions Court he said that Abdul Gani gave a stab to Abdul Jabbar with a sword but he could not say where it landed, and Abdul Jabbar struck Abdul Gani a blow with a pointed lathi. On being questioned by the learned Judge as to whether he was right as to the statement he was making he answered "I did not see" Wasiuddin had stated before the Committing Magistrate thus: "I heard a cry and went upon the courtyard. I found Abdul Jabbar and Nawabuddin lying on the courtyard in front of Mamudjan's hut. There were many injuries on their persons. Abdul Razak had a lathi, Abdul Gani had a weapon made of iron which is called talwar". In the Sessions Court he said as follows: "I heard a shriek, not the words. I saw Nawabuddin and Jabbar lying in the yard. Razak, Gani and Karim were there. I did not clearly notice what was in their hands but Gani had something in his hand." The servant Madhu had stated before the Magistrate that he saw the accused going out of Mamudjan's hut with a sword and he saw Abdul Jabbar lying unconscious in his hut. He was asked by Mamudjan to go to the thana and to lodge ejahar there and he did according to instruction. In the Sessions Court he had said "I saw nothing in their hands. Then I went in Jabbar Mia's hut and found Jabbar lying, Nawab told me to go to thana. He told me what to say". From the depositions of these witnesses before the Committing Magistrate and in the Sessions Court, it is clear that they were deliberately attempting to retract the evidence given by them before the Committing Magistrate. The learned Sessions Judge admitted their evidence before the Committing Magistrate under Section 288, Cr. P.C. and placed it before the Jury who apparently based their verdict upon it.

(3.) It is contended on behalf of the appellant that the evidence before the Committing Magistrate which was received by the learned Judge under Section 288, Cr. P.C. was not admissible under that section. It is pointed out that the Magistrate originally started the case with a view to try it himself but at a later stage decided to commit it to the Sessions; the evidence in this case was, therefore, not recorded under Ch XVIII. Section 283 as amended by the Act of 1923 stands thus: "The evidence of a witness, duly recorded in the presence of the accused under Ch. XVIII, may, in the discretion of the presiding Judge, if such witness is produced and examined be treated as evidence in the case, for all purposes subject to the provisions of the Indian Evidence Act, 1872". The words "duly recorded in the presence of the accused under Ch. XVIII" have been substituted by the Act of 1923 for the words "duly taken in the presence of the accused before the Committing Magistrate" and it is argued that the evidence in this case was not recorded by the Magistrate under Ch. XVIII and, therefore, it should not have been admitted by the learned Judge under Section 288, Cr. P.C. This contention has no substance. The amendment of the section by substituting the words "duly recorded in the presence of the accused under Ch. XVIII" for the words "duly taken in the presence of the accused before the Committing Magistrate," is intended to cover cases where evidence may be recorded by the Committing Magistrate but not for the purpose of commitment, as under Section 219, Cr. P.C. Besides, there is no special procedure laid down in Ch. XVIII for recording evidence and any evidence recorded by a Magistrate before commitment whether recorded with a view to commitment or in the ordinary course of trial is evidence recorded in the presence of the accused under Ch. XVIII.