John Beaumont, J. -
(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 Session, Guntur Division, dated August 2, 1945, thereby the appellants, who were accused Nos. 1 to 9, and nine others, were found guilty on charges of rioting and murder. Appellants Nos. 1, 2, 3, 4, 7 and 8 were sentenced to death, and appellants Nos. 3 and 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 in appeal.
The grounds upon 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. 8 and 6 . This point involves an important question as to the construction of Section 27 of the Indian Evidence Act upon which the opinions of High Courts in India are in conflict.
Their Lordships will deal first with the alleged infringement of Section 162 of the Code of Criminal Procedure. The relevant portions of that section are as follows : 162. (1) No statement made by any person to a police-officer in the course of an investigation under this Chapter shall, if reduced into writing, be signed by the person making it; nor shall any such statement or any record thereof, whether in a police-diary or otherwise, or any part of such statement or record, be used for any purpose (save as hereinafter provided) at any inquiry or trial in respect of any offence under investigation at the time when such statement was made: Provided that, when any witness is called for the prosecution in such inquiry or trial whose statement has been reduced into writing as aforesaid, the Court shall, on the request of the accused, refer to such writing and direct that the accused be furnished with a copy thereof, in order that any part of such statement, if duly proved, may be used to contradict such witness in the manner provided by Section 145 of the Indian Evidence Act, 1872. When any part of such statement is BO used, any part thereof may also be used in the re-examination of such witness, but for the purpose only of explaining any matter referred to in his cross-examination.
(3.)THE facts material upon this part of the case are these. THE offence took place at about 6-30 p. m. on December 29, 1944, and at 7 a. m. on December 30, the police sub-inspector held an inquest on the body of one of the murdered men. He examined live of the prosecution witnesses, including four of the alleged six eyewitnesses, and wrote down their statements in his note-book. After the conclusion of the inquest the Circle Inspector took over the investigation from the police sub-inspector and on the same day, that is December 30, he examined all the alleged eye-witnesses and others, including all the witnesses who had been examined by the police sub-inspector, and their statements were recorded in the case diary prepared by the Circle Inspector. It is the failure to produce the note-book of the police sub-inspector which constitutes the alleged infringement of the proviso to Section 162, and the facts as to this are stated in an affidavit of Gutlapally Venkata Appayya sworn on October 19, 1945, and are not challenged. Prior to the commencement of the preliminary inquiry before the Magistrate an application was made on behalf of the accused for grant of copies of statements under Section 162 of the Code of Criminal Procedure recorded by the sub-inspector and the Circle Inspector of Police from the prosecution witnesses in the case during investigation. THE accused were supplied with copies of statements made by witnesses before the Circle Inspector of Police and were informed that statements made to the Sub-inspector of Police were not available. During the Sessions trial, when prosecution witness No.2, who was the principal prosecution witness, was in the witness-box, counsel for the accused represented to the Court that he had not been supplied with copies of statements recorded by the sub-inspector at the first inquest, and requested the Court to make those statements available to enable him to cross-examine the important prosecution witnesses with reference to the earliest statements. THE learned Sessions Judge directed the public prosecutor to comply with the request. THE public prosecutor, after consulting the sub-inspector and Circle Inspector, who were present in Court, submitted to the Court that except what was recorded in the inquest report itself, no other statements were recorded by the sub-inspector, and the learned Judge directed the defence counsel to proceed. THE next day, when the cross-examination of prosecution witness 2 was continued, counsel for the accused submitted to the Court that he desired to file an application for copies of statements recorded by the sub-inspector at the first inquest so that it might be endorsed by the prosecution that no such record of statements existed. THEn the public prosecutor stated to the Court that he fully realized his responsibility in making the statements he had made on the previous day, but there was no record of any statement made at the inquest available. On the fourth day of the trial, after the principal prosecution witnesses had been discharged, the police sub-inspector gave evidence, and he then produced in the witness-box his notebook containing the statements of the five witnesses he had examined at the inquest, and a copy of such statements was then supplied to the accused. THEre are some discrepancies between the statements made to the police sub-inspector and the statements of the witnesses in the witness-box, but it is not suggested that such discrepancies are of a vital nature.
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 break-down of the whole of his evidence; and in the present case it has to be remembered that the accused's contention was that the prosecution witnesses were false witnesses. Courts in India have always regarded any breach of the proviso to Section 162 as matter of gravity. Baliram Tikaram v. Emperor  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 All. 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 upon 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 notebook of the police sub-inspector.