PULUKURI KOTAYYA Vs. KING-EMPEROR

JUDGEMENT

(1.) THIS is an appeal, by special leave, against the judgment and order of the High Court of Judicature at Madras, dated October 22, 1945, dismissing an appeal against the judgment and order of the Court of Sessions, Guntur Division, dated August 2, 1945, whereby the appellants, who were accused Nos. 1 to 9, and nine others, were found guilty on charges of rioting and murder. Appellants 1, 2, 3, 4, 7 and 8 were sentenced to death, and appellants '; to 9 were sentenced to transportation for life. There were other lesser concurrent sentences which need not be noticed. At the conclusion of the arguments their Lordships announced the advice which they would humbly tender to His Majesty and they now give their reasons for that advice.

(2.) THE offence charged was of a type common in many parts of India in which there are factions in a village, and the members of one faction are assaulted by members of the other faction, and, in the prosecution which results, the Crown witnesses belong to the party hostile to the accused; which involves that their evidence requires very careful scrutiny. In the present case the assessors were not prepared to accept the prosecution evidence, but the learned Sessions Judge, whilst taking careful note of the fact that the six eye-witnesses were all hostile to the accused, nevertheless considered that the story which they told was substantially true, and accordingly he convicted the accused. As already noted, this decision was upheld by the High Court on appeal. The grounds on which leave to appeal to His Majesty in Council was granted were two: 1. The failure of the prosecution to supply the defence at the proper time with copies of statements which had been made by important prosecution witnesses during the course of the preliminary police investigation, involving, it is alleged, a breach of the express provisions of Section 162 of the Code of Criminal Procedure. 2. The alleged wrongful admission and use in evidence of confessions alleged to have been made whilst in police custody by appellants Nos. 3 and 6. This point involves an important question as to the construction of Section 27 of the Indian Evidence Act, on which the opinions of High Courts in India are in conflict.

(3.) IT is clear from the facts narrated above that there was a breach of the proviso to Section 162 of the Code of Criminal Procedure, and that the entries in the police sub-inspector's note-book were not made available to the accused, as they should have been, for the cross-examination of the witnesses for the Crown. The right given to an accused person by this section is a very valuable one and often provides important material for cross-examination of the prosecution witnesses. However slender the material for cross-examination may seem to be, it is difficult to gauge its possible effect. Minor inconsistencies in his several statements may not embarrass a truthful witness, but may cause an untruthful witness to prevaricate, and may lead to the ultimate breakdown of the whole of his evidence; and in the present case it has to be remembered that the accuseds' contention was that the prosecution witnesses were false witnesses. Courts in India have always regarded any breach of the proviso to Section 162 as a matter of gravity. Baliram Tikaram v. King-Emperor (1945) A.I.R. (Nag.) 1, where the record of statements made by witnesses had been destroyed, and Emperor v. Bansidhar (1930) I.L.R. 53 A. 458, where the court had refused to supply to the accused copies of statements made by witnesses to the police, afford instances in which failure to comply with the provisions of Section 162 have led to the convictions being quashed. Their Lordships would, however, observe that where, as in those two cases, the statements were never made available to the accused, an inference, which is almost irresistible, arises of prejudice to the accused. In the present case, the statements of the witnesses were made available, though too late to be effective, and their contents are known. This by itself might not be decisive, but, as already noted, the circle inspector re-examined the witnesses whom the police sub-inspector had examined, and did so on the same day. The notes of the examination by the circle inspector were made available to the accused at the earliest opportunity, and when the note-book of the police sub-inspector was produced towards the end of the prosecution case, counsel for the accused was in a position to ascertain whether there was any inconsistency between the statements made to the police sub-inspector and those made later in the day to the circle inspector. If any such inconsistency had been discovered, this would have been a strong point for the accused in their appeal, but no such point was taken; indeed, the only complaint on this subject in the High Court was that the police sub-inspector ought to be presumed to have prepared a case diary which he was suppressing. The High Court rejected this contention, rightly, as their Lordships think. Nor has any such point been taken before this Board, and the entries from the circle inspector's diary are not on record. In the result, their Lordships are satisfied that, in the peculiar circumstances of this case, no prejudice was occasioned to the accused by the failure to produce in proper time the note-book of the police sub-inspector.