SANMON TIWARI Vs. EMPEROR

JUDGEMENT

(1.) It is stated in para. 1 of the petition that the petitioner has been convicted under Section 323, I.P.C. and sentenced to rigorous imprisonment for three months. But a reference to the record shows that the conviction is under Section 223 and the sentence is simple imprisonment. The offence alleged consists of negligently-permitting the escape of two prisoners whom the petitioner as a public servant was legally bound to keep in confinement. He was a warder in the Patna City sub-jail who came on duty at 6 a.m. on 15 December 1935. The number of prisoners in the sub-jail according to the books was 19. At about 6.22 a.m., the petitioner raised an alarm that two prisoners had escaped. It is the prosecution case that these two prisoners were permitted by the petitioner to go to the latrine, and from there by scaling the wall they got away. His defence was a denial and the suggestion that the prisoners had in fact escaped before 6 a.m. and before he took over charge. Against this is the fact that his signature appears on the charge sheet acknowledging receipt of the custody of the 19 prisoners according to the books. Seven witnesses were examined for the prosecution and none for the defence, The majority of the witnesses are Government officers, but one was an under-trial prisoner, a gentleman of some education, who supports the prosecution case and was regarded by the Magistrate as an independent and reliable witness. Comment was made on behalf of the petitioner that this witness had not been examined by the Deputy Superintendent who came to the scene within a few minutes and questioned the jail staff. With reference to this the learned appellate Court has said in the judgment: I find from the police diaries in the case that what this witness stated in Court was stated by him to the Sub-Inspector (P.W. No. 6) at the time of his investigation at 7-20 a.m. on the morning of the occurrence.

(2.) The Magistrate was not entitled to use the police notes of what the witness said to the Sub-Inspector in this manner to corroborate the evidence given by the witness in Court. Section 162, Criminal P.C., is perfectly clear. Subject to exceptions which do not apply here, it is said: Any such statement or any record thereof, whether in a police diary or otherwise, shall not be used for any purpose.

(3.) The utmost that the Magistrate was entitled to say was that the witness had been examined by the Sub-Inspector at 7-20 that morning, that the accused had or could have had a copy of the statement and that no contradiction between that statement and his evidence in Court had been brought on the record. I may invite the Magistrate's attention to Sakal Ahir V/s. Palakdhari Ahir 1931 Pat 96. On the other hand, such improper admission of evidence will not in all cases compel interference by a superior Court. The question will be whether the error has led to substantial injustice or has materially prejudiced the accused: Dal Singh v. Emperor 1917 PC 25. In the present case I do not really feel that any doubt could arise on the materials on record that the two prisoners were in the Jail when the accused took charge and escaped shortly after. Mr. Nand keolyar appearing for the petitioner pressed me to hold that there might have been a miscarriage of justice having regard to a statement appearing in the evidence of the Sub-Inspector that he was told the prisoners had been seen at a certain eating-house some distance from the sub-jail before 6 a.m. But that statement of the Sub-Inspector is no evidence. To begin with it is hearsay. It refers to statements of persons who were not called as witnesses, and it is inadmissible under Section 162 of the Code. If it had been a fact that the prisoners had been seen at that place and that there was no error in the time the accused could have obtained from the Sub-Inspector the names of those persons and moved the Court for an adjournment to enable him to obtain their evidence: but this was not done.