Authored By : Z.R. Zahid Suhrawardy, Panton

Z.R. Zahid Suhrawardy, J.

1. This appeal is by Bhagirathi Chowdhury and four otherswho have been convicted in accordance with the majority verdict of the Jury bythe Sessions Judge of Rajshahi. The first accused has been convicted underSections 147 and 325, Indian Penal Code, and sentenced under Section 325 tofive years rigorous imprisonment, no separate sentence having been passedunder Section 147. The other four accused persons have been convicted underSections 325/149, Indian Penal Code, and sentenced to three years rigorousimprisonment.

2. The riot alleged to have taken place was over a piece ofland, in course of which, it is said, one Mir Panchu was beaten to death.Several objections have been taken on behalf of the accused to the address bythe Judge to the Jury; but it is sufficient to refer to two of these, as in ouropinion, the others are not important.

3. The first objection is that certain statements have beenadmitted by the learned Sessions Judge which are inadmissible in evidence. Inthe course of the examination of Ananta Prosad Das (Sub Inspector of Police) hewas asked in examination-in-chief whether he examined daring the course of theinvestigation any witness on behalf of the accused and he said that he hadexamined only two witnesses Bartu Chowdhury and Daulot Ghose who were producedbefore him and both of them stated that they were not present at theoccurrence. This, it is said, is in contravention of the provisions of Section162, Cr.P.C. That Section says that no statement made by any person to a PoliceOfficer in the course of an investigation...shall be used for any purpose atany enquiry or trial.... It is not clear why the witness was made to make thisstatement; but it is suggested that one of the persons named by him at least,namely Daulot Ghose, was a witness, cited by the defence and therefore, inanticipation of the evidence which might be given by Daulat Ghose, thisstatement was made by the Inspector. In my opinion this statement by theSub-Inspector is not admissible. Section 162, Cr.P.C., is clear enough toexclude any statement made by any person and directs that such statement shallnot be used for any purpose. The way in which this evidence has been broughtout is objectionable in more ways than one. It is in direct contravention ofthe above provision of law and it is not justified by any other provision oflaw which makes evidence contradicting possible evidence of a, possible witnessadmissible against the accused. The mere fact that one of the persons so named bythe Sub-Inspector was cited by the defence did not justify the prosecution ingetting out a statement made by his in anticipation of what he might say. Thisstatement by the Sub-Inspector in the hearing of the Jury must have apparentlyprejudiced the case for the defence and left an impression in the mind of theJury that the accused produced witnesses in support of their case before theSub-Inspector and both of them denied any knowledge of the occurrence. Thisstatement is not, therefore admissible.

4. The second ground on which the legality of the trial isassailed is that the map prepared by the Sub-Inspector and placed before theJury contains statements of witnesses and hence the map should not have beenplaced before the Jury with those statements thereon. There are two veryimportant endorsements on the map. The first is against the point marked withan arrow and runs thus: "The deceased and Luddi Sheikh Peadas stood hereand the deceased received lathi blow from Bhagirathi chowkidar accused while standinghere." In another part of the map certain dotted lines were put and theremark against them is, "showing the route taken by the deceased on beingchased by the accused persons." These statements were not of theSub-Inspector from his personal knowledge but from what he had heard from otherpeople at the time of the investigation. Such statements are, therefore,inadmissible under Section 162, Cr.P.C., and as hearsay evidence. Theimpropriety of placing maps before the Jury containing statements of witnessesor of information received by the person preparing the map from other personshas been recently pointed out in several cases. In Emperor v. Abinash ChandraBose 84 Ind. Cas. 051 : 52 C. 172 : 28 C.W.N. 995 : A.I.R. (1924) (C.) 1029 :26 Cri.L.J. 310, the learned Chief Justice has fully dealt with this matter andit has been laid down that a person who makes a map in a criminal case oughtnot to put upon it anything more than what he sees himself. Particulars derivedfrom witnesses examined, on the spot should not be noted on the body of the mapbut on a separate sheet of paper annexed to the map as an index thereto."The direction given here may be inconvenient but the law seems to be clear. Thelearned Chief Justice in a very recent case to which my learned brother wasparty Emperor v. Mofizel Peada 89 Ind. Cas. 212 : 29 C.W.N. 842 : A.I.R. (1925)(C.) 909 : 20 Cr.L.J. 1298 decided on the 1st May 1925) referred to a map likethe one in the present case and remarked that the map placed before the Jurywas a clear instance of what should not be done, and observed as follows:"In my judgment, the map in its present state ought not to have beenallowed to be placed before the Jury. If it was necessary for the map to beplaced before the Jury, the proper thing to be done was to have a clean copymade with these entries omitted no that the Jury would have a map before themwhich would not have prejudiced their mind in any way." In my judgmentapart from the instruction in the Police Regulations and the High CourtCircular Orders, it is highly prejudicial in the interest of justice to allowstatements which may or may not be admissible in evidence to be introduced in acase by indirect means. For instance, the map prepared by the Sub-Inspectorfrom certain information received from another person introduces a statementmade by that person and it is possible that the person who gave the informationto the Sub-Inspector was not himself competent to make the statement hisinformation having been derived from others not before the Court. Apart fromSection 162, Cr.P.C., such statements under the general law ought not to bemade to go in in the shape of entries in maps. The trial accordingly has beenvitiated by the introduction of these pieces of evidence and, in my opinion,the conviction cannot stand.

5. In the result the conviction of and the sentences passedupon the appellants should be set aside and a re-trial ordered. The appellantsNos. 2 to 5 will remain on bail and the appellant No. 1 in custody until furtherorders by the Magistrate.

Panton, J.

6. I agree.

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Bhagirathi Chowdhury and Ors. vs. Emperor(24.06.1925 - CALHC)