MANU/NA/0091/1944

Equivalent/Neutral Citation: AIR1945Nag1, 1945NLJ17

IN THE HIGH COURT OF NAGPUR

Criminal Appeals Nos. 176, 209, 210, 211, 212, 213, 214, 215, 216, 217, 292 to 294,
295, 296, 297, 298, 369, 455 and 456 of 1943
Decided On: 02.11.1944
Appellants: Baliram Tikaram Marathe and Ors.
Vs.
Respondent: Emperor
Hon'ble Judges/Coram:
Niyogi and Hemeon, JJ.
Counsels:
For Appellant/Petitioner/Plaintiff: Y.V. Jakatdar, in 210 and V.T. Kedar, in 298
For Respondents/Defendant: W.B. Pendharkar, Additional Government Pleader
JUDGMENT
1. This case which arose in Maudha is one of the serious cases of disorders which flared
up in August 1942. The prosecution was launched against 29 person out of whom one
was discharged and 28 persons were tried in the Court of the Special Judge, Maudha
Station House Area at Nagpur, on the charges of offences punishable under ss.
307/149,147/149, 436/149, 395 and 353/149, Penal Code, and Rule 35(1)(a) (b) read
with sub-r. (4), Defence of India Rules. Eight persons were acquitted. Gajanand
accused 2, Suratsingh accused 4, Shamrao Sonar accused 10, Kundalik accused 11,
Ramji Chamar accused 28 and Sukhia Chamar accused 29 were each sentenced
concurrently to rigorous imprisonment for 10 years, 8 years and 6 years respectively for
the offences under Ss. 436/149, 307/149 and 395, Penal Code. Lachminarayan accused
5, Ramnath accused 6, Ghani Miya accused 7 and Shrawan accused 12 were each
sentenced con-currently to transportation for life, 8 years and 6 years rigorous
imprisonment respectively for offences under Ss. 436/149, 307/149 and 395, Penal
Code. Baliram accused 13 was sentenced concurrently to transportation for life, 10
years and 8 years rigorous imprisonment respectively for offences under Ss. 395,
436/149 and 307/149, Penal Code. Rama Mali accused 15, Budhgir accused 17, Laxman
accused 18, Ramchandgir accused 19, Bhayya accused 21 and Gulabshah accused 25
were each sentenced concurrently to 5 years' rigorous imprisonment for each of the
offences punishable under Ss. 307/149, 436/149 and 395, Penal Code, and
consecutively for 1 year's rigorous imprisonment for the offence under Section 353/149,
Penal Code. Shamrao Harbaji Kunbi accused 22 was sentenced concurrently to 5 years'
rigorous imprisonment for each of the offences under Ss. 307/149, 436/149 and 395,
Penal Code, and consecutively to 2 years' rigorous imprisonment for the offence under
ss. 353/149, Penal Code. Amrut accused 20 and Namdeo Sitaram Teli accused 23 were
each sentenced concurrently to 8 years rigorous imprisonment for each of the offences
under ss. 436/149, 307/149 and 395, Penal Code, and consecutively to 1 year's
rigorous imprisonment for the offence under Section 353/149, Penal Code. The twenty
convicted persons had their cases reviewed under ordinance 2 of 1942 by the Hon'ble R.
E. Pollock J, I. C. S., who confirmed all the convictions but reduced the sentence passed

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against Ramnath accused 6 from transportation for life for the offence under ss.
436/149, Penal Code, to 10 years rigorous imprisonment and the sentences passed
against Amrut accused 20 to 1 year's rigorous imprisonment on each count and those
against Namdeo Teli accused 23 to 18 months' rigorous imprisonment with a direction
that the sentences were to run concurrently.
2. The twenty prisoners have individually filed separate appeals (cr. Appeals Nos. 209-
217, 292-298, 369, 455 and 456 of 1943) and this appeal governs the disposal of all.
As allegedly the prosecution, the unlawful assembly was composed of three groups of
people drawn from Nagpur City and two villages, Baroda and Maudha. The story starts
from 13th August 1942 the day following the disturbances in Nagpur. On that day at
about 6 P.M., there was a meeting at mouza Baroda which lies between Nagpur and
Maudha, being 14 miles from Nagpur and 6 miles from Maudha. The meeting was
attended by some residents of the village and was addressed by Budhgir and
Ramchandgir, Appellants in this Court, and one Sheluker Master. The speakers after
relating to the audience the story of incendiarism committed at Nagpur, told them that
the Nagpur people were going to Baroda and exhorted them to their directions. Next
morning the people from Baroda went to Maganlal Bagdi's bungalow which is situated in
a field which lies between the basti of Baroda and the great eastern road. At Maganlal's
bungalow there were collected some people from Nagpur and they together with the
Baroda people issued out and cut some big trees on the road side and laid them across
the road which runs from Nagpur to Maudha and caused some damage to a culvert and
the Kanhan bridge providing access to Maudha. Later, in the afternoon, the Nagpur and
Baroda people proceeded from Maganlal's bungalow to Maudha. At the Kanhan bridge
they posted mainly the Baroda people with instructions to interrupt communications
between Maudha and Nagpur. The rest of the party headed by Maganlal Bagdi passed to
Maudha. While the entire body of the people was at the Kanhan bridge, a constable by
name Sheikh Daud, who dressed in khaddar had started for Nagpur from Moudha
Station House with a confidential letter from the Sub-Inspector of Police, Maudha, was
stopped on the way and searched. The letter was seized from him and he was detained
at the bridge.
3 . About this time some volunteers of an organisation styled 'Nagar Saurakahak Dal'
were drilling as usual on Fridays in the market place of Maudha. Friday being the
weekly market day there was a large gathering of people in the market area. This
Saura-kshak Dal had been brought into existence by the residents of Maudha on 28th
July 19I2 to relieve the distress due to the wide spread devastation caused by a flood
which occurred on 12th July 1942. On some day in the last week of July, Maganlal
Bagdi had visited Maudha and when he learnt that a Saurakshak Dal had been
established he proposed that there should be organised a volunteer corps of about 100
persons who would mobilise at a whistle call in case of danger. Maganlal at the request
of Premlal agreed to send somebody from Nagpur to train the volunteers. Accordingly
he sent to Maudha one Surajnarayan who organised the volunteer corps under the
leadership of Premlal.
4. On the critical day while the volunteers were performing the drill at about 4-30 or 5
P. M. as usual under the command of Surajnarayan two strangers arrived there and had
some talk with Surajnarayan, which, as alleged, involved enquiries as to the strength of
police force at Maudha. At the instance of the two outsiders, an announcement was
made that there would be a public lecture and that attracted a large crowd of people. It
was addressed by someone who, announcing that the British Raj had ceased to exist
and that there was no need for the police in a free India exhorted the people to go and
burn the police station house. When the crowd became fidgety and was trying to

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disperse, it was surrounded by the volunteers and asked to proceed to the station
house. On the way near a culvert Maganlal Bagdi and one half masked man were found
standing, each with a gun. As soon as the crowd arrived at the place both of them
opened fire aiming at the station house with the result that the Police Officers at the
station house took fright and tried to run away, but the two Head Constables by name
Gaurishanker and Gajanand Prasad sustained gun shot wounds, one on his elbow and
the other on his knee. Then Maganlal Bagdi's group and the Maudha volunteers broke
open the doors and the windows of the station house and brought out the furniture and
the records which were burnt including the police station house. In the meanwhile
Maganlal Bagdi and his half-masked companion removed four muskets and 60
cartridges and police uniforms and took them away. Maganlal Bagdi and his group then
went into the village of Maudha collected Rs. 300 from Premlalsao and returned to the
village Baroda taking with them as captives two constables, Shankar (P. w. 9) and
Sheikh Daud (P. W. 10) the former from Maudha and the latter from the Kanhan bridge.
5 . Maganlal Bagdi, who apparently was the nucleus and motive force of the unlawful
assembly, and some other members thereof absconded. The trial proceeded jointly
against the people from Maudha and Baroda and one man from Nagpur. The evidence
bearing on the grave crimes which were committed consists of the testimony of Laxman
and Sahadeo, who were present in the mob throughout, and others including police
officers. On behalf of the accused persons, applications were made for the supply of
copies of the witnesses' statements reduced to writing by the investigating officer but as
there were no statements found to be separately recorded in the diary or elsewhere, no
copies could be supplied except those of four witnesses whose statements appeared to
the Special Judge answering the requirements of S. 162, Criminal P. C.
6 . Before consideration of the case individually against each of the accused it is
necessary to dispose of some points of law of a general nature. It is urged in the first
instance that the joint trial of the two groups of accused, one from Baroda and another
from Maudha, was illegal inasmuch as it was found that there was no conspiracy as
alleged in the charge sheet. This contention must fail in view of MANU/PR/0023/1938 :
A. I. R. 1938 P. C. 130 ('38) 25 : A. I. R. 1938 P.C. 130: I.L.R. (1938) 2 Cal. 295 : 65
I. A. 158: 32 8. L. R. 476 : 174 I.C . 1 (P.C.), Babulal v. Emperor where it was held by
their Lordships of the Privy Council that the validity of joinder of charges must be
judged on the basis of what appears on the facts of the accusation and is not to be
made dependent on the eventual result of the trial. In the present case, all the accused
were tried on the same set of charges as being members of an unlawful assembly which
committed several offences in the course of the same transaction. The several accused
in the present case are linked together by the allegation of the common object which
each of them shared with the others and from that point of view there is hardly any
ground for challenging the validity of the trial.
7 . The next contention is that the trial was wholly invalidated in consequence of the
failure on the part of the Special Judge to grant copies of statements reduced to writing
by the investigating officer. An application for copies was made on 28th November 1942
before the witnesses were examined, and was repeated on 5th December. 1942 and 9th
December 1942. The Special Judge granted copies of what appeared to be the
statements of Gaurishankar (P. W. 4), Sheikh Daud (P.W.10) and Shriram (P.W. 15), P.
W. 9 Shankar (see para. 26 of this judgment) and a long extract from the diary under
date 17th September 1942 and offered the police diary to all the accused for inspection.
They returned the copies and declined to look into the diary. Of the witnesses examined
Laxman (P. W.1 ), Tukdya (P. W. 5) and Anandrao (P. W. 8) say that they were
questioned by the Sub-Inspector of Police but that their statements were not reduced to

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writing. On the other hand, Nilkanthrao (P. W. 2), Sahadeo (P. W. 3), Shankar (P.W. 9),
Sheikh Daud (P. W. 10) and Gajanand Prasad (P. W. 12) say that their statements were
reduced to writing either on some separate piece of paper or in the diary. The
investigating officer, Jamshed-khan (P. W. 14), averred as follows:
I took notes only of the statements of all the persons examined by me during
the investigation, and those notes were all destroyed after the matter was
incorporated in the case diary. Case diary was written at different places to
which the different witnesses belonged. The notes were destroyed from time to
time as the matter was incorporated in the case diary. With the help of the
notes I brought on the case diary the material that had come out in examination
of the witnesses. Case diary was written from day to day at night and the facts
gathered from the witnesses were brought in the case diary on the same day on
which they were examined. I adopted this method as there is no prohibition.
This is the method that I adopt in every investigation. Notes are not required to
be preserved and hence they were not preserved.
8. Section 162, Criminal P. C, as amended in 1923, indeed, does not make it imperative
on the investigating officer to record the statement of a person examined by him under
Section 161, Criminal P. C, but when such statement is recorded whether in the police
diary or otherwise, S. 162, Criminal P. C., requires the Court, on the request of the
accused, to grant a copy of such statement (recorded in the police diary or otherwise)
in order that any part of it if duly proved may be used to contradict the witness making
it, in the manner provided by S. 145, Evidence Act. It is clear that Section 162 requires
the recorded statements to be preserved. That is implicit in the very right accorded to
the accused to obtain copies thereof. In the Police Regulations also, it is laid down that
when it is necessary to record a statement this should be done on a separate piece of
paper and attached to the case diary (see para. 741, Police Regulations, 1937 Edition,
page 239).
9 . Since the amendment of Section 162, Criminal P. C, in 1923, it was found that the
police officers began to record the statements of the persons whom they examined in
the form of indirect narration or compressed memoranda under the belief that the
accused, was not entitled to obtain copies thereof. But the Courts have consistently held
that the accused's right could not be defeated in that oblique way and quashed the
convictions in cases where copies of the notes were not furnished to the accused: see
MANU/WB/0225/1927 : 31 C. W. N. 940,('27) 14 : A.I.R. 1927 Cal. 644: 104 I. C. 245:
31 C. W. N. 940, Mafizaddi v. Emperor 53 ALL. 458,('31) 18 MANU/UP/0327/1930 : A.
I. R. 1931 All. 262 : 53 All. 458: 130 I. C. 625, Emperor v. Bansidhar 6 Rang. 672,('29)
16 A. I. R. 1929 Rang. 87: 6 Rang. 672: 115 I. C. 899, Sulaiman Mohamed v. Emperor
7 Pat. 205,('28)15 MANU/BH/0077/1927 : A. I. R. 1928 Pat. 215: 7 Pat. 205: 107 I. C.
817, Ramgulam Teli v. Emperor 17 Pat. 622,('39) 26 : A.I.R. 1939 Pat. 174: 17 Pat. 622
: 180 I. C. 845, Dinanath Sahay v. Emperor 13 Rang. 1,('35) 22 A.I.R. 1935 Rang. 98:
13 Rang. 1 : 155 I. C. 66, Nga U Khine v. Emperor MANU/NA/0011/1932 : 28 N. L. R.
291 ('33) 20 : A.I.R. 1933 Nag. 4: 28 N.L.R. 291: 140 I. C. 825, Hamd Khan v. Emperor
and I. L. R. (1937) Nag. 178.('36) 23 A. I. R. 1936 Nag. 249: I. L. R. (1937) Nag. 178 ;
170 I. C. 638, Emperor v. Vishwanath. In MANU/NA/0011/1932 : 28 N. L. R. 291 ('33)
20 : A.I.R. 1933 Nag. 4: 28 N.L.R. 291: 140 I. C. 825, Hamd Khan v. Emperor Grille J.
(now C. J.) observed that the refusal to supply copies of the "notes deprived the
accused of the privilege specially granted him by the Criminal Procedure Code, and that
"the refusal was based on an argument which would make S. 462 entirely of no effect."
In I. L. R. (1937) Nag. 178,('36) 23 A. I. R. 1936 Nag. 249: I. L. R. (1937) Nag. 178 ;
170 I. C. 638, Emperor v. Vishwanath Bose J. commented in severe terms on the

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practice of destroying such notes and conveyed a warning in no unmistakable terms that
any attempt to deprive the accused of the protection and privileges of a substantial
nature which the law confers on him must result in a quashing of the proceedings. Bose
J.'s judgment was published in the Indian Law Reports in the year 1937 and it was
expected that the strong observations made by the learned Judge would serve to rectify
the irregularities committed by the investigating officers with a view to defeat the legal
right of the accused. The police officer concerned in the investigation would not, in any
case, be unaware of the Police Regulations, and it is clear that he deliberately defied
them for reasons best known to himself. His conduct cannot escape reprobation. Again
in para. 742 (b), Police Regulations, it is impressed on the attention of the investigating
officer that in serious cases, it is, as a rule, desirable to take down the whole statement
of every person who gives important information - especially every person who, from
the circumstances of the case, ought to know something about it. It cannot be gainsaid
that the present case is of an exceptionally serious nature in which one would expect
the investigating officer to adhere to the requirements of the Police Regulations. The
alleged omission of the investigating officer to record separately the statements of the
persons examined by him during the investigation and destruction of the notes
admittedly taken by him constitute a flagrant attempt to circumvent the law and thereby
to defeat the right which the law bestows on a person under trial.
10. The question is what is the legal effect ? In A.I.R. 1936 P.C. 242 ('36) 23 A. I. R.
1936 P. C. 242: 163 I. C. 681 (P.C.), Mahadeo v. The King their Lordships held that the
exclusion of such statements was repugnant to " the fundamental rules of practice
necessary for the due protection of prisoners and the safe administration of criminal
justice." But as explained by their Lordships in 5 Rang. 53 ('27) 14
MANU/PR/0018/1926 : A. I. R. 1927 P. C. 44: 5 Rang. 53: 54 I. A. 96: 100 I. C. 227 (P.
C), Abdul Rahman v. Emperor the mere breach of a provision even though mandatory,
cannot be said to be an illegality necessarily vitiating the proceedings and unless it is
accompanied by any probable suggestion of any failure of justice having been thereby
occasioned, it will not warrant the quashing of a conviction. Consequently the sole test
is whether there has been a failure of justice.
11. That involves the question whether there has been a fair trial. If a particular rule
has been prescribed for achieving a particular object and that object has been defeated
by reason of the breach of that rule, it cannot be said that the accused has had a fair
trial: see 61 cal. 399 ('34) 21 MANU/WB/0051/1934 : A. I. R. 1934 Cal. 636:61 Cal.
399: 152 I. C. 44, Nayeb Shahana v. Emperor at page 401. As pointed out by Page J. in
57 cal. 1228 ('30) 17 MANU/WB/0033/1930 : A. I. R. 1930 Cal. 212: 57 Cal. 1228: 123
I. C. 664 (F.B.), Emperor v. Erman Ali at p. 1243, if by reason of the breach of
procedure, there has in effect been substituted another mode of trial for that prescribed
by the Legislature, as affording the best means of obtaining a fair trial, it is presumed
that a fair trial has not been accorded to the accused, and in that case there has been a
failure of justice. Section 162, Criminal P. C, was amended so as to arm an accused
person with a right to call for the statements, if reduced to writing, whether in extenso
or in a compressed form, in direct or indirect narration, so as to enable him to use them
under Section 145, Evidence Act, for cross-examination of the witnesses concerned. The
object of the section is to protect the accused both against over-zealous police officers
and untruthful witnesses: see MANU/UP/0243/1939 : A. I. R. 1940 ALL. 291 ('40) 27 :
A. I. R. 1940 All. 291 : 188 I. C. 649, Emperor v, Aftab Mohd. Khan at p. 299. The
statements recorded under Section 162, Criminal P. C, cannot be used at the trial for
any purpose except the cross-examination by the accused. The denial to the accused of
the benefit of these statements is tantamount to a depar ture from the mode of trial
prescribed by law. It is these considerations which have compelled the Courts to quash

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the convictions in all those cases in which there was refusal to supply the copies of the
police statements.
12. It is contended for the Crown that this case is distinguishable from other cases for
the reason that the notes were destroyed and the Court could not supply copies. As
remarked by Bose J. in I.L.R. (1937) Nag. 178 ('36) 23 A. I. R. 1936 Nag. 249: I. L. R.
(1937) Nag. 178 ; 170 I. C. 638, Emperor v. Vishwanath at p. 180 that would make the
case still worse. If the effect of the Court's refusal to grant copies is to prejudice the
accused, one fails to see how that effect can be avoided where the investigating officer
destroys the notes and takes away from the Court the power to hold a fair trial.
Deprivation of the accused of his statutory right to obtain copies results in the exclusion
of evidence which could be used by him under Section 145, Evidence Act, and that
would be nothing short of interference with the due course of the trial. It would be
directly and deliberately encouraging the commission of a fraud on the Act, if the
investigating officer's infringement of the duty laid on him by Section 162, Criminal P.
C, and the Police Regulations were condoned. The investigating officer has simply to
say that he destroyed the notes or statements and by his mere word he can defeat the
law. That means that the trial is not to be under the control of the Court but of an
outside agency. Can there be a fair trial and real justice if such a flagrant breach of the
law is tolerated by this Court ? Is the police officer to dictate according to his caprice
the mode of trial ?
13. Then it is said that the absence of the copies would not affect the admissibility of
the evidence of the witnesses who were examined in the Court. This contention is
devoid of sub-stance. How can the evidence be admissible and proper for consideration
when the accused is robbed of his statutory means of cross-examination and thereby
denied the opportunity of effectively cross-examining his adverse witnesses? No
evidence recorded by the Court, unless it satisfies the requirement of Section 138,
Evidence Act, can become admissible and proper for consideration. It would indeed be
bold to say that the evidence of a witness is legally admissible against a party even
though he at the time it was given had not the full opportunity to cross-examine him:
see 41 Cal. 299 ('14) 1 MANU/WB/0031/1913 : A.I.R. 1914 Cal. 834 : 41 Cal. 299: 25
I. C. 348, Sadnshiv Singh v. Emperor and MANU/TN/0190/1928 : A. I. R. 1929 Mad.
236('29) 16 : A.I.R. 1929 Mad. 236: 52 Mad. 432: 116 I. C. 337, Peddabba Reddi v.
Varada Reddi. In view of what has been stated above, the Court is bound to assume
prejudice to the accused when they are denied the benefit of the statements of the
witnesses recorded by the police. In this connexion the Special Judge observed:
It is no doubt true that the accused have lost the chance of putting to the
witnesses their previous statements in case they happened to be contradictory.
But in the present case that could not be helped at all, because the notes had
been destroyed by the investigating officer. I do not think that any motive can
be imputed to him because he has deposed that during the whole of his service
this has been his practice. No doubt the practice was wrong and it is time that
he changed it and brought it into conformity with the directions in the Police
Manual.
14. Pollock J. also made adverse comments on the practice of destroying the notes of
witnesses' statements but he took the view that inasmuch as there was no refusal on the
part of the trying Judge to grant copies, the trial was not illegal and that the evidence of
the witnesses, even though not tested by their previous statements was admissible.
Pollock J. stressed the fact that the Special Judge offered the police diary to the accused
for inspection.

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15. The contents of the diary show that the investigating officer collected information
from Mendulal, Gaurishankar, Gajanand Prasad, Mangalsingh, Shankar, Bishan Lall,
Abdul Khaliq, Nilkanth, Bhoopnarain, R. G. Gade and Kashinath Sakharam Wankhede,
which he put in the form of a connected narrative. As regards the part of the diary
which describes the particulars of the offences under consideration the investigating
officer collected the information from Constable Shankar, Bhoopnarain, Nilkanth and
Namdeo who were sitting on one of the bazar otas. The reference to the names of
Laxman and Sahadeo occurs in the course of the narrative but not as the source of any
information. The record made of the names of the volunteers shown to be on parade in
the evening does not indicate that the information as regards the presence of 20
volunteers was derived from any of the several persons sitting on the ota. The
investigating officer admits that he took notes of the statements of all the persons
examined by him and that he knew that the accused persons usually ask for copies of
statements in the case diary and that this was a valuable right of the accused. The
fusion of their separate statements into one compact narrative afforded no scope to the
accused for confronting the witnesses with their statements originally noted down but
destroyed. The abstract prepared by the investigating officer was no more useful to the
accused than a statement of a witness abstracted in a judgment could be. As was
pointed out in 53 Mad. 952 ('31) 18 A. I. R. 1931 Mad. 201: 53 Mad. 952: 129 I. C.
463, Saradamba v. Pattabhiramayya at p. 958 a state ment of a witness abstracted in a
judgment cannot be made use of in lieu of his original statement for the obvious reason
that Section 145, Evidence Act, contemplates a previous statement made by a witness in
writing or reduced into writing.
16. As the diary contained no material which could be of any service to the accused so
far as the Maudha incident was concerned they were perfectly justified in refusing to
accept the Court's offer. No lawyer having any legal acumen could have accepted the
offer for the obvious reason that the diary, if it had been used, would so far from
serving any useful purpose would become a part of the evidence on the record: see 58
Cal. 96 ('30) 17 MANU/WB/0043/1930 : A.I.R. 1930 Cal. 370: 58 Cal. 96: 127 I. C.
657, Government of Bengal v. Santiram Mandal. The lawyers acted very rightly in
avoiding what would have turned out to be a trap. It is high time for the police officers
to realise that the statements recorded by them either in the diary or separately in the
course of the investigation are not their private property but constitute an unpublished
official record relating to an affair of State, see 17 Lah, 472 ('36)
23MANU/LA/0052/1935 : A. I. R. 1936 Lah. 359: 17 Lah. 472 166 I. C. 501, Baij Nath
v. Mohammad Din at p. 476, which is intended by law to be preserved for purposeS| of
a judicial trial. The destruction of the notes on the one hand and the fusion of the
statements on the other in the way that was done in the diary might be admirable as a
piece of strategy but was positively repugnant to the letter as well as the spirit of S.
162, Criminal P. C, and was wholly incompatible with the claims of justice.
1 7 . In cases of mass uprisings, such as the present there is always the danger of
certain interested persons implicating the people who are ordinarily known to be
connected with certain organisations in the hope that their evidence would pass muster
if only it accords with suspicion. In the present case itself such an attempt was made in
the case of eight persons who were acquitted by the learned Special Judge. Here there
is no dispute as to the unhappy events that occurred. As the learned Special Judge
notes in his judgment during the arguments it was conceded that all the acts except the
detention of Sheikh Daud might be taken as having been committed. The prejudice to
the accused was likely to arise only on the point of complicity of the accused persons in
the crime and there is nothing in the present case except the recitation of names by the
witnesses to inculpate them. It is to afford protection against the danger of false

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implication that Section 162, Criminal P. C, was amended in 1923 so as to arm the
accused with the right to call for copies of the previous statements of the witnesses
made to and recorded by the investigating officer.
18. There are two sets of accused persons: one consisting of those who directly took
part in the outrages at Maudha and the other consisting of people who were at the
Kanhan bridge. The former group comprised as alleged residents of Maudha and visitors
from Nagpur and the latter only the residents of Baroda. (Their Lordships then
discussed the case of Maudha accused and concluded.) It must be held that the Maudha
accused had not had a fair trial and that their convictions cannot be Sustained. The case
of Baliram stands on a different footing. Shriram (p. w. 15) proves that Baliram made
over a bundle to him for being carried in his lorry with instructions to stop the lorry
near Maharaj bagh gate for some passengers to board it. Baliram was arrested at that
place when he signalled the lorry driver (Shriram) to pull up. Baliram was supplied with
a copy of the note of Shriram's statement found in the diary. Baliram did not avail
himself of it evidently because it furnished him no material for contradicting Shriram.
The bundle which Shriram had received from Baliram, was opened and it was found to
contain a musket and police great coats. These were identified as belonging to Maudha
police station house by Shankar (P. W. 9) and Jam-shedkhan (P. W. 14). There is
evidence to show that Maganlal and his Nagpur party removed 4 muskets, some
cartridges and great coats from the station house (see Laxman P. W. 1, Sahadeo P. W.
3, Shankar P. W. 9, Sheikh Daud P. W. 10 and Jamshedkhan P. W. 14). Prima facie
Baliram was in possession of a part of the spoils of the dacoity, and he could well have
been alternatively charged with the offence under Section 412, Penal Code.
19. The question is whether Baliram was present in the mob at Maudha. Laxman (P. W.
1) and Sahadeo (P. W. 3) say that they identified him at a parade held in the Nagpur
City Kotwali as the man who was seen with Maganlal Bagdi at the culvert on the way to
the police station house. Baliram stated that the Sub-Inspector managed to show him to
the witnesses before the identification parade was held. The learned Special Judge
summarily rejected his plea with the remark that there was no evidence to support it.
One fails to see what evidence a man in the custody of the police could get to prove
such a plea. The matter has to be judged on the credibility of the witnesses. Laxman (P.
W. 1) and Sahadeo (P. W. 3) are, on their own evidence, accomplices. Their evidence is
suspicious and cannot be accepted without corroboration: see A. I. R. 1986 P. C. 242.
('36) 23 A. I. R. 1936 P. C. 242: 163 I. C. 681 (P.C.), Mahadeo v. The King Nor can the
corroboration of
2 0 . Jamshedkhan (P. W. 14) the investigating officer, be accepted in view of his
unwarranted conduct animadverted as above. There is no reason why the identification
parade should not have been held in the presence of a Magistrate. It is a moot question
whether a police officer can prove the statement made to him by the identifying
witnesses: see I.L.R. (l939) 2 cal. 569 ('40) 27 MANU/WB/0062/1939 : A. I. R. 1940
Cal. 182 ; I.L.R. (1939) 2 Cal. 569 : 187 I.C. 129, Krishna Kahar v. Emperor at p. 572.
It was indeed easy for any one to say on 25th October that Baliram who was found with
the stolen goods on 20th October, had accompanied Maganlal to Maudha. It is
significant that neither Shankar (P. W. 9) nor Sheikh Daud (P. W. 10) who were both in
closer contact with the Nagpur group than Laxman and Sahadeo, was asked to identify
Baliram. Consequently no value can be attached to the evidence of identification . In the
absence of reliable evidence as to the presence of Baliram, at Maudha, he must be
acquitted of the offences with which he was charged.
21. That does not exonerate Baliram altogether in view of the evidence of his being in

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possession of the police great coats and musket. A separate charge could well have
been framed against him under Section 412, Penal Code, or Section 411, Penal Code.
The absence of such a charge cannot preclude his conviction of it, for the reason that
this offence was involved in the charge that was framed against him, viz., of the offence
under Section 395, Penal Code. The stolen property was found in his possession; on the
strength of that evidence and his identification it was sought to be proved that he was
constructively guilty of dacoity. His possession of the stolen property constituted a
minor offence which was comprised in the offence with which he was charged. Under S.
238, Criminal P. C, he can be convicted of the minor offence, if proved: see
MANU/LA/0362/1931 : A. I. R. 1931 Lah. 566 ('31) 18: A. I. R. 1931 Lah. 566 : 136 I.
C. 721, Jogindar Singh v. Emperor. The very nature of the articles that he was found in
possession of and the stealthy manner in which he tried to transport them clearly
establish his guilty knowledge. He had nothing to say against Shriram (P. W. 15), the
lorry driver. His possession of it can well be held to be recent as it was within 10 weeks
of the theft. No fixed time limit can be laid down to determine whether possession is
recent or otherwise; every case has to be judged on its own facts. The question as to
what amounts to recent possession sufficient to justify the presumption of guilt varies
according as the stolen Article 15 or is not calculated to pass readily from hand to
hand: see MANU/NA/0100/1928 : A.I.R. 1928 Nag. 213 ('28) 15: A. I. R. 1928 Nag.
213 : 109 I. C. 801, Necha v. Emperor. The stolen articles such as they are in the
present case are not likely to pass readily from hand to hand; hence, the period of ten
weeks cannot be said to be too long to attract the presumption. Of course no
presumption can be made that he had knowledge of the dacoity and therefore there can
be no conviction under Section 412, Penal Code, but there is nothing to preclude his
conviction under Section 411: see 62 cal. 956 ('35) 62 Ca).956, Istahar Khondkar v.
Emperor. The Special Judge's finding on the head of the charge under Section 395/149
is therefore altered to one of conviction under Section 411 and the sentence is reduced
to three years' rigorous imprisonment. (Their Lordships then discussed the case of
persons who were assembled at the Kanhan bridge and proceeded.) The convictions of
Budhgir, Rama Mali, Gulloomiya alias Gulabshah, Laxman Shamrao Kunbi, Namdeo,
Ramchandgir and Amrut are proper and must stand. As to the sentences, those passed
against Budhgir, Ram-chandgir and Shamrao Kunbi are proper as they took an active
and leading part in the events of the day. As against Rama Mali, Laxman and
Gulloomiya there is nothing proved except that they were in the assembly. The
sentences of five years in their case are excessive. They are reduced to three years'
rigorous imprisonment for each of the offences under Ss. 307/149, 436/149 and 395,
Penal Code; the sentences of one year's rigorous imprisonment against all except
Shamrao Kunbi and two years' rigorous imprisonment against Shamrao Kunbi will stand
but will run concurrently instead of consecutively. The sentences passed against
Namdeo and Amrut do not call for any interference and must stand.
2 2 . The convictions of Gajanand, Suratsingh, Lachmanarayan, Ramnath, Ghanimiya,
Shamrao Sonar, Kundalik, Shrawan, Ramji Chamar and Sukhia Chamar (all residents of
Maudha) are quashed and their sentences are set aside. They will be released forthwith.
Bali-ram is acquitted of the offences under Sections 307/149 and 436/149, Penal Code,
and his sentences are set aside; but his conviction is altered from one under Section
395, Penal Code, to one under Section 411, Penal Code, and his sentence is reduced to
three years' rigorous imprisonment. Bhaiyya is acquitted and his sentence is set aside.
He will be released forthwith. The appeals of Namdeo and Amrut are dismissed.

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