QUEEN-EMPRESS Vs. DORASAMI AYYAR
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(1.) WE are unable to accede to the contention that Section 288 of the Criminal Procedure Code permits the production of the evidence given before the committing Magistrate only for the purpose of contradicting the witness at the Sessions trial. If that were all, the provision would he quite unnecessary and superfluous inasmuch as such evidence could be adduced for the purpose stated under the Evidence Act. There can be no doubt the provision was intended to enable the Court to read the previous evidence as substantive evidence in the case at the trial where, for the purposes of justice, the adoption of such a course is found necessary by the Judge. Such evidence may be used as much in favour of the defence as in support of the prosecution. In this case we think the Judge was well advised in adopting the course he took. The evidence of the first prosecution witness, even as it was given at the trial, is, in our opinion, sufficient to warrant the conviction of both prisoners. There never has been any doubt as to the commission of the offence charged, and the only question is whether the policemen who committed the offence were the two prisoners The woman was admittedly in the custody of the first prisoner during the period the hurt was caused and the second prisoner was present all the time, and as the superior officer engaged in the investigation of the case he was prima facie responsible for anything done to the woman while in police custody. It is impossible that the hurt could have been caused to the woman without the cognizance of these two men, if they did not themselves cause it, as the woman in her earlier deposition expressly stated they did, and in her present evidence implies the same, The conduct of the prisoners in not reporting in their report (exhibit N) the marks of injuries on the person of the woman, which were discovered two days afterwards, is a concealment on their part telling strongly against them. WE have therefore no hesitation in confirming the convictions and sentences and dismissing the appeals.;
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