John Beaumont JUDGMENT
Sir John Beaumont, J.
1. This is an appeal by special leave against the judgment and order of the High Court of Judicature at Madras, dated 22-10-1945, dismissing an appeal against the judgment and order of the Court of Session, Guntur Division, dated 2-8-1945, whereby the appellants, who were accused 1 to 9, and nine others, were found guilty on charges of rioting and murder. Appellants 1, 2, 3, 4, 7 and 8 were sentenced to death, and appellants 3 to 9 were sentenced to transportation for life. There were other lesser concurrent sentences which need not be noticed. At the conclusion of the arguments their Lordships announced the advice which they would humbly tender to His Majesty, and they now give their reasons for that advice.
2. The offence charged was of a type common in many parts of India in which there are factions in a village, and the members of one faction are assaulted by members of the other faction, and, in the prosecution which results, 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 s. 162, Criminal P.C.
2. The alleged wrongful admission and use in evidence of confessions alleged to have been made whilst in police custody by appellants 3 and 6. This point involves an important question as to the construction of s. 27, Evidence Act upon which the opinions of High Courts in India are in conflict.
4. Their Lordships will deal first with the alleged infringement of S. 162, Criminal P.C. The relevant portions of that section are as follows:
163.(1) No statement made by any person to a police-officer in the course of an investigation under this Chapter shall, if reduced into writing, be signed by the person making it; nor shall any such statement or any record thereof, whether in a police-diary or otherwise, or any part of such statement or record, be used for any purpose (save as hereinafter provided) at any inquiry or trial in respect of any offence under investigation at the time when such statement was made:
Provided that, when any witness is called for the prosecution in such inquiry or trial whose statement has been reduced into writing as aforesaid, the Court shall on the request of the accused, refer to such writing and direct that the accused be furnished with a copy thereof, in order that any part of such statement, if duly proved, may be used to contradict such witness in the manner provided by S. 145, Evidence Act, 1872. When any pact of such statement is so used, any part thereof may also be used in the re-examination of such witness, but for the purpose only of explaining any matter referred to in his cross-examination.
5. The facts material upon this part of the case are these. The offence took place at about 6-30 p.m. on 29.12-1944, and at 7 a.m. on the 30th December, the police Sub-Inspector held an inquest on the body of one of the murdered men. He examined five of the prosecution Witnesses, including four of the alleged s........