DEO LAL MAHTON Vs. EMPEROR

JUDGEMENT

(1.) The four petitioners have been convicted under Section 379, I.P.C. and were sentenced in the first instance each to undergo imprisonment for two months and on appeal the sentences were reduced each to fifteen days. The prosecution case in short was that the petitioners committed theft at night of plantains from the garden of Abdul Samad whose watchman, Tazamul Hussain, was the complainant in the case. The defence was that on account of enmity of one kind or another these accused have been falsely implicated, and that in fact there had been on the day before the night on which the prosecution alleged theft of plantains a quarrel between the accused Jothu and Muhammad Hanif, the son of Abdul Samad. Evidence was entered into both, by the prosecution and by the defence.

(2.) Hearing appears to have concluded on 31 January 1933. The accused on the same date put in a petition for a local inspection which was held on 5 February 1933. Orders were reserved for, 8 February and on 7 February a further petition was put in on behalf of the defence asking that the Court might call for and refer to the case diary of the Assistant Sub-Inspector to satisfy itself that the defence of a quarried between Hanif and Jothu was not an after-thought: but was stated by accused Mahabir to the Assistant Sub-Inspector on the very first day of the investigation.

(3.) The learned Magistrate referred to the diary, but did not realise that under Section 172 or Section 162, Criminal P.C., he was not entitled to use them as evidence. There is sometimes a little misunderstanding as to the correct procedure in using police diaries and statements of witnesses entered in them. Under Section 172 a Court referring to such diaries is entitled to use them not as evidence in the case but to aid in such enquiry or trial. The meaning of this is that the Court may on finding some fact noted in the diary take advantage of this in order to put some necessary question to a witness in the box so as to elicit in evidence the fact which has been disclosed by the diary. Sometimes it has been argued and is apparently thought that mere referring to the diary is irregular.