TMI Blog1946 (12) TMI 4X X X X Extracts X X X X X X X X Extracts X X X X ..... s, 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. 3. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctober 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r [1945] 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no question of curing an irregularity arises; but if the trial is conducted substantially in the mariner prescribed by the Code, but some irregularity occurs in the course of such conduct, the irregularity can be cured under Section 537, and none the less so because the irregularity involves, as must nearly always be the case, a breach of one or more of the very comprehensive provisions of the Code. The distinction drawn in many of the cases in India between an illegality and an irregularity is one of degree rather than of kind. This view finds support in the decision of their Lordships' Board in Abdul Rahman v. The King-Emperor (1926) I.L.R. 5 Ran. 53, s.c. 29 Bom. L.R. 813, P.C. where failure to comply with Section 360 of the Code of Criminal Procedure was held to be cured by Sections 535 and 537. The present case falls under Section 537, and their Lordships hold the trial valid notwithstanding the breach of Section 162. 8. The second question, which involves the construction of Section 27 of the Indian Evidence Act, will now be considered. That section and the two preceding sections, with which it must be read, are in these terms:- 25. No confession made to a Police o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s made to the police, or by persons in police custody. That ban was presumably inspired by the fear of the legislature that a person under police influence might be induced to confess by the exercise of undue pressure. But if all that is required to lift the ban be the inclusion in the confession of information relating to an object subsequently produced, it seems reasonable to suppose that the persuasive powers of the police will prove equal to the occasion, and that in practice the ban will lose its effect. On normal principles of construction their Lordships think that the proviso to Section 26, added by Section 27, should not be held to nullify the substance of the section. In their Lordships' view it is fallacious to treat the fact discovered within the section as equivalent to the object produced; the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate distinctly to this fact. Information as to past user, or the past history, of the object produced is not related to its discovery in the setting in which it is discovered. Information supplied by a person in custody that I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by Section 26. Except in cases in which the possession, or concealment, of an object constitutes the gist of the offence charged, it can seldom happen that information relating to the discovery of a fact forms the foundation of the prosecution case. It is only one link in the chain of proof, and the other links must be forged in manner allowed by law. 11. In their Lordships' opinion Athappa Goundar's case was wrongly decided, and it no doubt influenced the decision now under appeal. 12. The statements to which exception is taken in this case are first a statement by accused No. 6 which he made to the police sub-inspector and which was reduced into writing, and is Exhibit P. It is in these terms:- The mediatornama written at 9 a.m. on 12th January, 1945, in front of Maddineni Verrayya's choultry and in the presence of the undersigned mediator. Statement made by the accused Inala Sydayya on being arrested. About 14 days ago, I Kotayya and people of my party lay in wait for Sivayya and others at about sunset time at the corner of Pulipad tank. We, all beat Boddupati China Sivayya and Subayya, to death. The remaining persons, Pullayya, Kotayya and Narayana r ..... X X X X Extracts X X X X X X X X Extracts X X X X
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