Murphy, J.
1. This is an application to revise the order of the learned Sessions Judge of Poona dismissing the applicant's appeal from the decision of the Assistant Sessions Judge of Poona. The applicant and a second offender were tried by the Assistant Sessions Judge of Poona with the aid of a jury on a charge under a 376 of the Indian Penal Code. The jury's verdict was unanimous, and, in accordance with it, the accused were convicted of the offence with which they had been tried and sentenced to four years' rigorous imprisonment.
2. The facts which were alleged against the accused were that a woman named Chandrabhaga, who seems to have abandoned her husband and thereafter for sometime to have lived a wandering life, probably with prostitutes, complained to the Head Constable in charge of the police-station at Ghodnadi that she had been abducted and raped by a certain person. Her complaint was recorded and an investigation into it was begun by the Head Constable and was ultimately taken up by the Sub-Inspector of the Police station, on his return to his headquarters. Chandrabhaga was a young girl and had no home to go to, and she was consequently permitted to stay in the Sub-Inspector's Office at the police-station. Nothing is alleged to have occured there on the first night of her stay. On the second, it was said that, towards the middle of the night, after the office had been more or less closed and while Chandrabhaga was there, there being in the office at the same time, the two accused and the guest of accused No. 1, the accused each in turn went over to where Chandrabhaga was sleeping, and raped her. This is the charge on which the two accused were convicted.
3. Two points have been raised in this application. The first is that the joint trial was irregular, the rape by each of the accused being isolated acts not forming a single transaction, and, secondly, that inadmissible evidence has been admitted in the shape of statements to police-officers made in the course of the investigation, the admission of which is prohibited by Section 162 of the Criminal Procedure Code, and that the jury were so misdirected by the learned Assistant Sessions Judge, who invited them to consider these inadmissible pieces of evidence. We have consequently been asked to interfere with the judgment and sentence in revision.
4. Mr. O.Gorman's first point is the question of the illegality of the trial. The law relating to joint trials is to be found in Section 239 of the Criminal Procedure Code, which is to the following effect:-
The following persons may be charged and tried together, namely :-
(a) parsons accused of the same offence committed in the course of the same transaction ;
(b) persons accused of an offence and persons accused of abetment, or of an attempt to commit such offence ;
(c) persons accused of more than one offence of the same kind within the meaning of Section 234 committed by them jointly within the period of twelve months;
(d) persons accused of different offences committed in the course of the same transaction ;...
5. With the remainder of the section we are not now concerned. The facts here are covered by the section falling within sub-clause (d), i.e.-
persons accused of different offences committed in the course of the same transaction,
and the real point for decision is whether it can be said that these two independent acts of each of the accused were committed in the course of what may be called 'the same transaction.' There is an obvious difficulty in defining this expression as used in Section 239, and. in one of the cases to which we have been referred, Crump J. has remarked that the legislature has perhaps been wise in refraining from an attempt to do so.
6. The cases relied on by Mr. O'Gorman for the applicant are to be found in Queen-Empress v. Fakirapa I.L.R. (1890) Bom. 491 Emperor v. Jethalal I.L.R. (1905) Bom. 449 7 Bom. L.R. 527 Samiullah Sahib v. King-Emperor I.L.R. (1926) Mad. 735 and Emperor v. Ring : (1929)31BOMLR545 The facts all differ, and obviously the finding on the question of whether a particular state of facts is a single, or more than one, transaction, must depend on those in each case.
7. The first case I have quoted was where the accused, it was held, had all been concerned in a police investigation into a case of theft.
8. The second one, Emperor v. Jethalal, was concerned with a question of whether persons, who had received different portions of property which had been stolen at different times, could be tried together.
9. That reported in Samiullah Sahib v. King-Emperor was an instance of independent poachers all fishing at the same spot and accused of theft, and Emperor v. Ring was that of certain police-officers, who formed a conspiracy to receive bribes from the complainant and the accused in a certain matter, there being a conspiracy on the part of the complainants to bring a false case against the accused, and a similar one on the part of the accused to produce false evidence in their defence, all the parties to these various conspiracies having teen tried at one trial and the joint trial there being held to be regular,
10. As against these authorities the learned Government Pleader has relied especially on the cases of Emperor v. Datto Hanmant Shahapurkar I.L.R. (1905) Bom. 49 7 Bom. L.R. 633 Emperor v. Sejmal Poonamchand I.L.R. (1926) Bom. 310 29 Bom. L.R. 170 Emperor v. Rafi-uz-Zaman Khan I.L.R. (1923) All. 325 and Emperor v. Gopal Raghunath (1928) 31 Bom. L.R. 148 where Emperor v. Datto Hanmant Shahapurkar was followed.
11. The first of these involved a question of whether the Karbhari of the Chafal Mahant, who was tried along with the cashier of that foundation, had been properly tried at the same trial with his co-accused for misappropriating the trust funds, and it was held that the trial had been regular as each of the accused would there have been unable to act separately and without the other's connivance, though the acts of misappropriation alleged against them were separate in each case.
12. The facts in the Allahabad case related to some communal riots. Three witnesses (Mahomadans) gave false accounts as to how a Mahomedan had been killed by Hindus, and the identity of purpose running through the three different false depositions was held to be a sufficient ground to justify their joint trial.
13. The case in Emperor v. Sejmal Poonamchand was very similar, the false evidence in that matter having been given to further the same claim, and it was held that there was sufficient continuity of time and space in their actions to justify the joint trial.
14. Marten J. in Emperor v. Madhav Laxman I.L.R. (1918) Bom, 147 20 Bom, L.R. 607 remarked that a wide meaning ought to be given to the words 'the same transaction' which have been used in the section.
15. The case in Emperor v. Gopal Raghunath fallowed the ruling laid down in Emperor v. Datto Hanmant Shahapurkar.
16. There are remarks throughout the judgments in these cases to the effect that in fact a precise definition for the expression 'the same transaction 'cannot be formulated and that each case must depend on its own facts. It is for the Court in other words, to decide whether in each case there is sufficient continuity of purpose between the acts of the jointly tried accused, to justify it in finding that the transaction was in reality a single one though composed of separate acts by the different accused.
17. The facts alleged here, as has been already briefly stated, are that the accused, finding themselves alone in the Sub-Inspector's office at Ghodnadi at night, the fourth person present being asleep at the time, went in succession and raped the girl Chandrabhaga, and the argument has been that, rape being essentially an individual act, it cannot be said, in the absence of a charge of abetment in the proceedings, that the two separate rapes were a single transaction. There seems to us, however, to be a difficulty about holding that these separate acts do not form part of a single transaction. It is obvious in the circumstances that the separate acts of rape alleged could not have been severally committed unless they had been either tacitly agreed to or reciprocally connived at by each of the accused in his turn. It seems to us, on these facts, that, even in the absence of any evidence of an act of abetment on the part of each accused by the other, there was either a tacit agreement between them ; or, an acquiescence on the part of each in what the other did, which was an understanding that there would be no interference on the part of either of them against the other, if a similar degree of acquiescence was exercised, by the other in his turn. Though for different reasons, therefore, we think in fact that the learnned Sessions Judge, as also the trial Judge, before whom the objection was taken at the earliest moment, were right in finding that the transaction was essentially single, and that the joint trial was proper in the circumstances of the case.
18. The second point arises in the following manner. As already related, the offence was one committed within the precincts of the police-station, and one in which only policemen were concerned, both as accused and as witnesses, apart from the victim. It appears that two other policemen stationed there noticed that the light in the police office, which presumably is kept alight all night, had been put out and that there were suspicious sounds coming from the room. These men, called Dandawate and Shankar, thereupon went - and reported their suspicion to the Head Constable named Pathan, and these three policemen then came to the office. They entered and lighted the lamp and found Chandrabhaga in a corner of the room, and on their arrival she at once complained of the two accused's acts and of the pain which had been caused her. The Head Constable then went and called the Sub-Inspector, who was sleeping in the police-station at the time, and he, coming there, recorded the statement of the girl Chandrabhaga and started an investigation which ended in the prosecution in this case. Later, the same morning, the Deputy Superintendent of Police was sent for, and he also in his turn questioned Chandrabhaga and inquired into the circumstances of the case. All these policemen were examined at the accused's trial, and they gave evidence as to her complaining against the accused and her account of the events of that night. Their statements on this point were very clearly put to the jury by the learned Assistant Judge in his summing-up, Mr, O'Gorman's complaint as to this was that all these statements were inadmissible under Section 162 of the Criminal Procedure Code; and therefore, that inadmissible evidence had been allowed to be taken and had been put to the jury as material on which they should form their conclusion, and that the jury had consequently been prejudiced and the trial vitiated by the improper admission of irrelevant evidence and a misdirection on this point.
19. The provisions of the Criminal Procedure Code relating to investigations begin at Section 154. That section requires that every information relating to the commission of a cognizable offence, if given orally, to an officer in charge of a police station, shall be reduced to writing by him or under his direction and be read over to the informant; and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in a book to bo kept by such officer in such form as the Local Government may prescribe in this behalf. The subsequent procedure is under Sections 156 and 157, which require that a copy of the information should be sent to the Magistrate empowered to take cognizance of such offence. Then Section 162 is to the following effect:-
No statement made by any person to a police-officer in the course of an investigation undor 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, bo 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 :...
The manner of its use is thereafter provided, that is, it may be used with the permission of the Court to contradict a witness for the purpose of the defence. It will be noticed that the prohibition is against a statement made in the course of an investigation under this chapter.
20. A police investigation begins with the proceedings taken under Section 154, that is the recording of the complaint, and the power to record such a complaint rests in an officer in charge of a police-station. On the facts here, constables Daudawate, Shanker and Pathan were not officers in charge of a police station and had no power at the time to begin an investigation. This was begun by the Sub-Inspector on his arrival, and the statement of the complainant that he took, is the complaint in the case. The first three statements by the complainant having been made not in the course of an investigation, but before it, it seems to us that as regards these three police officers, the evidence that they gave does not come within the prohibition of Section 162. The fourth person to whom she made a statement was the Sab-Inspector, and that statement being the complaint is clearly admissible. Later, however, the Deputy Superintendent of Police came and recorded, or rather verified, her statement. He has endorsed on the complaint that it had been read over to the complainant and that she had stated that it was correct and he added some answers to questions which he thereupon put to her. As to this statement we think that it was in fact inadmissible. The Officer might have been allowed to say that he had questioned the complainant, but what she had stated was barred by Section 162, and so far this piece of inadmissible evidence has been admitted against the accused and has been referred to in the learned Judge's charge to the jury.
21. Mr. Shingne has argued that oral statements as distinguished from written ones are admissible for certain purposes and relied in the first instance on the Madras case of Venkatasubbiah v. King-Emperor I.L.R. (1924) Mad. 640 but this has been overruled by a full bench of that Court, and in any event a bench of this Court has decided in the case of Emperor v. Vithu Balu : AIR1924Bom510 that no such use can bo made of police statements and that their admission is confined to the provisions of Section 162, that is for contradicting a prosecution witness on behalf of the defence.
22. Our findings on this matter, therefore, are that as regards the evidence of Dandawate, Shanker and Pathan, what they said was admissible and was correctly put to the jury; but that the repetition of the statement of the complainant to the Deputy Superintendent of Police was inadmissible and should not have been put to the jury. We have, therefore, to consider whether this fact is such as to cause us to interfere with the trial in view of Section 167 of the Indian Evidence Act. That section provides that the improper admission or rejection of evidence shall not be ground of itself for a new trial or reversal of any decision in any case, if it shall appear to the Court before which such objection is raised, that, independently of the evidence objected to and admitted, there was sufficient evidence to justify the decision, or that, if the rejected evidence has been received, it ought not to have varied the decision. In this case there was a good deal of evidence, apart from that of the Deputy Superintendent of Police, who in fact only verified the complaint, to justify the verdict to which the jury had come to. Although it is not possible to say with absolute certainty that any specific piece of evidence may not have influenced one or more members of the jury, yet, in view of the facts and the Judge's charge which, apart from this one Haw, was admittedly a fair one, we think that the admission of the evidence, which has been rejected by us, and the reference to it in the learned Judge's charge are not facts which, in view of Section 167 of the Indian Evidence Act, would justify us in interfering with the decision. There was clearly much other and stronger evidence in the case against the accused.
23. The rule will, therefore, be dischargad.
Broomfield, J.
24. I agree and have very little to add.
25. It was pointed out in Emperor v. Madhav Laxman I.L.R. (1918) Bom. 147 20 Bom, L.R. 607 and it has been pointed out in many other cases, that a wide meaning has to be given to the words 'the same transaction' in Section 239 of the Criminal Procedure Code and that each case must be decided on its own facts. A definition of the words has been attempted in several cases which have been cited by my learned brother. The gist of these decisions may, I think, be said to be that there must be a common intention or purpose and continuity of action.
26. Mr. O'Gorman who appears for the applicant has argued that in this case there was no common purpose and that his client and the police constable who is accused No. 2 in the case acted quite independently in what they did. With this, however, I cannot agree. The two accused were associated together in their daily intercourse. The applicant was a head constable, the other accused his subordinate, and under the circumstances in which this crime has been held to have been committed some degree of concert between the two accused may, I think, be fairly assumed. It would hardly be possible that they could have raped this woman one after the other, as they did, without some sort of tacit conspiracy. Each of them may reasonably be said to have encouraged or connived at the act of the other. They had the same object, viz., taking advantage of a defenceless woman, and they old it as nearly simultaneously as physical considerations permitted. There was obviously proximity of time and space. Mr. O'Gorman drew our attention to the fact that the accused were not charged with abetment. But it was pointed out by Mr, Justice Fawcett in Emperor v. Sejmal Poonamchand I.L.R. (1926) Bom. 310 29 Bom. L.R. 170 that abetment may be a connecting link sufficient to include the acts of different persons in the same transaction, although abetment has not been made part of the charge. I think, therefore, that there has been no misjoinder in this case and accused were legally tried together.
27. As to the alleged admission of irrelevant statements to the Police, I agree with my learned brother that the only statement that can be said to be barred by Section 162 of the Criminal Procedure Code is the one made to the Deputy Superintendent of Police, after the investigation had commenced with the recording of Chandrabhaga's complaint under Section 154 of the Code. But this was very little more than a verification of the complaint itself, and, though the Judge was wrong in referring to the statement at all, I cannot believe that this error on his part really affected the decision of the case in the least.
28. For these reasons I agree with my learned brother that the rule should be discharged.