S.C. Ghose and C.H. Hill, JJ.

1. The appellant in this case, Alimuddin, has been convictedby the Sessions Judge of Noakhally of the offence of culpable homicide notamounting to murder under Section 304 of the Indian Penal Code. The case forthe prosecution is that one Habibulla and the appellant, on the 29th of Marchlast, severely assaulted the deceased Husseinuddin and carried him to a field,where they left him in a most helpless condition, the result being that heshortly afterwards died. It would appear that a prosecution was had againstHabibulla alone, Alimuddin being then not forthcoming; and in the course of theinquiry that was then held by the Committing Magistrate, two women, Ayesha andLatifa Banu, were examined as witnesses for the prosecution; and they deposedbefore that officer that both Habibulla and Alimuddin were implicated in thegrievous assault that was committed upon the deceased. In the Sessions Court,however (Habibulla having been committed to take his trial in that Court),these two women retracted the statements they had made before the CommittingOfficer; but notwithstanding this Habibulla was convicted of the crime ofculpable homicide not amounting to murder. The present prosecution was againstAlimuddin, and before the Committing Officer the same two women, Ayesha andLatifa Banu, were examined as witnesses, and they denied having seen anyassault being committed upon Husseinuddin by either Habibulla or Alimuddin.Their statements made in the course of the inquiry in the case againstHabibulla were, however, put to them, as we understand it, under theprovisionsof Section 145 of the Evidence Act, in order to contradict the statements madeby them upon the present occasion; and, though they admitted having made thosestatements, they said they had been compelled by the maltreatment which theyreceived at the hands of the police to make them, Then we have two otherwitnesses examined in this case, Yasin and Bunde Ali, who support to someextent the case for the prosecution.

2. The success of the prosecution in this case rests mainlyupon the statements of Ayesha and Latifa Banu made in the case of Habibullabefore the Committing Officer, and upon the evidence of Yasin and Bunde Ali.

3. As regards the statements of Ayesha and Latifa Banu itseems to us that, though no doubt they could be used for the purpose ofcontradicting the statements made by them in the present trial, they could notbe treated as independent evidence of the guilt or innocence of the accused,for the simple reason that they were not made in the presence of the accused.Mr. Donogh, however, on behalf of the prosecution has contended, referring toSection 288 of the Code of Criminal Procedure, that, inasmuch as the statementsof these two women made upon the former occasion were put to them and referredto in the course of the evidence that they gave before the Committing Officerin the present case, therefore those statements themselves could properly go inand be used as evidence establishing the guilt or innocence of the accused. Weare unable to accept this contention as correct. Section 288 provides asfollows: "The evidence of a witness, duly taken in the presence of theaccused before the Committing Magistrate, may, in the discretion of thepresiding Judge, if such witness is produced and examined, be treated asevidence in the case." Now, in the first place, the statements in questionwere not made in the presence of the accused; and, in the second place, itseems to us that the argument assumes that the said statements were evidenceagainst the accused; for if they were not, they could not be made evidenceagainst him, merely because they were put to the two women in the course oftheir evidence in this case.

4. Then, as regards the evidence of Yasin and Bunde Ali, itwould appear on a perusal of it that they took an active part in carrying awaythe deceased while he was in a most helpless condition, knowing full well, aswe take it, that a grievous assault had been committed on him, and then leavinghim in a field in that helpless condition, which resulted, as we gather fromthe evidence in this case, in his death. We cannot but regard the evidence ofthese two witnesses as no better than that of accomplices; at any rate, theytook such a part in this transaction as to make it most unsafe for the Court torely upon their evidence, unless corroborated in some material respects, inconvicting the accused. Mr. Donogh has called our attention to some of theincidents or facts in this case, which, according to his view of the matter, docorroborate the evidence of these two witnesses; but we are unable to accepthis view. We do not think that there is any real corroboration of thestatements made by them, nor do we consider it to be safe to proceed upon theirevidence in holding that the accused took any part in the grievous assault uponHusseinuddin.

5. Upon the whole, we are of opinion that the judgment ofthe lower Court, based as it is mainly upon the two classes of evidence towhich we have referred, cannot stand.

6. We accordingly set aside the conviction and sentence anddirect the release of the appellant.

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Alimuddin vs.Queen-Empress (11.10.1895 - CALHC)