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PETITIONER: NOOR KHAN

       Vs.

RESPONDENT: STATE OF RAJASTHAN

DATE OF JUDGMENT: 19/08/1963

BENCH: SHAH, J.C. BENCH: SHAH, J.C. SARKAR, A.K. HIDAYATULLAH, M.

CITATION:  1964 AIR  286            1964 SCR  (4) 521

ACT: Criminal  Trial-Murder-Asquittal by  Trial  Court-Conviction after  setting aside acquittal by the  High  Court-Validity- Provisions relating to the record of statements of witnesses by Police and failure to supply copies to the accused-If and when   vitiates   the   trial-Prejudice-Code   of   Criminal Procedure,  1898 (Act 5 of 1898). ss. 161(3), 162, 173  (b), 207A(3).

HEADNOTE: The appellant and nine others were tried before the Sessions Judge for offences of rioting and being members of an unlaw- ful  assembly  and causing in furtherance  of  their  common object  death  of one person and serious  injuries  to  four others.  The appellant was also charged for the  substantive offence of causing the death by gun-shot injuries.  All  the accused  persons  were acquitted at the  trial.   In  appeal against acquittal by the State, the High Court set aside the acquittal of the appellant and sentenced him to imprisonment for  life under s. 302 Indian Penal Code and  confirmed  the order  in  respect of the rest.  The appellant’s  main  con- tention  in this Court was that under s. 161 of the Code  of Criminal  Procedure it was obligatory upon an  investigating officer  to record the statements of witnesses  examined  by him  and if those statements were not made available to  the accused  at  the  trial, a valuable right was  lost  to  the accused,  and  the  trial  must on  that  account  alone  be regarded as vitiated. 34-2 S. C. India/64 522 Held  : (i) Where the circumstances are such that the  court may  reasonable  infer that prejudice has  resulted  to  the accused  from the failure to supply the statements  recorded under s. 161, the court would be justified in directing that the convict-on be set aside and a proper case to direct that the defect be rectified in such manner as the circumstances, may  warrant.   It  is only where the  court  is  satisfied, having  regard  to  the manner in which the  case  has  been conducted  and  the  attitude  adopted  by  the  accused  in relation  to the defect, that no prejudice has  resulted  to the accused that the court would, notwithstanding the breach

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of the statutory provisions, be justified in maintaining the conviction. On the facts of the present case no prejudice was caused  to the accused and the plea of prejudice was neither raised  in the  High Court, nor any substantial argument in support  of the same was advanced in this Court. Narayan Rao v. State of Andhra Pradesh, A. I. R. 1957 S.  C. 737  and  Pulukuri  Kotyya v. Emperor, L. R. 74  I.  A.  65, relied on. Baliram v. Emperor, I.L.R. [1945] Nag. 151, Maganlal v.  Em- peror, I.L.R. [1946] Nag. 126 and Maroti Mahagoo v. Emperor, I.L.R. [1948] Nag. 110, disapproved. (ii) In  the present case the Sessions Judge did  not  found his  conclusion upon the demeanour of the witnesses and  the High  Court rightly observed that the presence of  the  four injured  persons at the scene of offence was assured by  the evidence  of injuries, and must be regarded  as  established beyond reasonable doubt. Sheo  Swarup v. King Emperor, L. R. 61 I. A.  398,  referred to.

JUDGMENT: CRIMINAL  APPELLATE JURISDICTION: Criminal Appeal No.  9  of 1963.  Appeal  by special leave from the judgment and order  dated November 9, 1962 of the -Rajasthan High Court in D.    B. Criminal Appeal No. 407 of 1961. Purushottam  Trikamdas, C., L. Sarren and R. L.  Kohli,  for the appellant. S. K. Kapur and R. N. Sachthey, for the respondent. August 19, 1963.  The Judgment of the Court was delivered by SHAH  J.-Noor  Khan, resident of Kuchaman in  the  State  of Rajasthan, and nine others were tried before the  Additional Sessions  judge,  Sirohi  in  the  State  of  Rajasthan  for offences  of  rioting  and  being  members  of  an  unlawful assembly  and causing in furtherance of their common  object death  of one Pratap, at about 2-30 p. m. on  September  29, 1960 and serious injuries to four others on the same occa- 523 sion. Noor Khan was also charged for the substantive offence of  causing  the  death  of  Pratap  by  gunshot   injuries. The  .Sessions Judge acquitted all the persons  accused.  at the  trial.   In  appeal by the State,  the  High  Court  of Rajasthan set aside the order of acquittal in favour of Noor Khan and confirmed the order in respect of the rest.     There  were disputes between Noor Khan on the  one  hand and  Pratap  and his brothers on the other about a  well  in village Mundara.  Noor Khan claimed to have purchased a half share  in the well whereas Pratap and his  brothers  claimed the  well  to be their exclusive property,  and  there  were several  court proceedings about this dispute.  It  was  the case for the prosecution that on September 29, 1960 at about 2-00 p.m. Noor Khan accompanied by his father Samdu Khan and eight  others went to Pratap’s. field (in which there was  a farm,  a house, a stable and the disputed well)  and  called upon  Pratap  to deliver possession of the well and  on  the latter declining to do so, Samdu Khan fired a muzzle-loading gun  at Ganesh--brother of Pratap-but missed him. Noor  Khan then  fired at Pratap and killed him  instantaneously.   The other  members of the party of Noor Khan at the  instigation of  Samdu  Khan thereafter beat Ganesh,  Prabhu,  Mohan  and Gulab--brothers of Pratap-with sticks and other weapons  and caused  them injuries. After the assailants retired,  Ganesh

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lodged  a complaint against 15 persons including  Noor  Khan an.d  Samdu  Khan at the police station, Bali.  Ten  out  of those  who  were named in the complaint  were  arrested  and tried  before  the Court of Session,  Sirohi.  The  Sessions Judge acquitted all the accused holding that the story  that there  was an unlawful assembly of ten or more  persons  who went  to  the well and caused the death of  Pratap  was  not reliable, for in his view the prosecution had failed to lead evidence of independent witnesses and alterations were  made in   the  story  of the prosecution from time  to  time  and certain  persons  were falsely involved.  He  observed  that there  was enmity between the two sides and the testimony of witnesses who claimed to be present at the scene of  assault was  not  corroborated by independent evidence  and  was  on that  .account  unworthy of credit, especially  because  the complainant Ganesh had named several persons who were proved not to have taken part in the assault. 524     In  appeal  by the State, the High  Court  of  Rajasthan convicted  Noor  Khan  for causing the death  of  Pratap  by firing a muzzle-loading gun and causing him fatal injury and thereby   committing  an offence  punishable  under  s.  302 Indian  Penal Gode and sentenced him to suffer  imprisonment for life.   With special leave,  Noor  Khan has appealed  to this court.     Pratap  died on September 29, 1960 as a result  of  gun- shot  injury. The testimony of Dr. Mehta who  performed  the post-mortem examination on the dead body of Pratap  disposes beside  the wound of entry that the left lung of the  victim was  lacerated with pieces of metal. Dr. Mehta found on  the body of witness Prabhu two contusions and an incised injury, on  the  body  of  Ganesh three  contusions,  on  Mohan  one contusion  and  on Gulab a swelling and in the view  of  Dr. Mehta  the injuries were, at the time when he  examined  the injured  persons  on October 1, 1960, about  48  hours  old. Prabhu,  Ganesh, Mohan and Gulab were examined as  witnesses for  the  prosecution, and they deposed that Noor  Khan  had caused the fatal injury to Pratap by firing a muzzle-loading gun at him, and that they were injured in the same  incident by  the members of Noor Khan’s party. The injuries on  these four  persons strongly corroborate their story that  at  the time  of  the assault made on Pratap at about 2-00  p.m.  on September 29, 1960 they were present. This story was further corroborated by two female witnesses, Bhanwari and Mathurn.     The  High  Court  in  appeal  by  the  State  held  that notwithstanding the infirmities in the prosecution case that in the first information, names of certain persons who  were not  present  at the scene of occurrence were given  by  the complainant Ganesh on account of enmity and that there  were discrepancies between the statements of the eye witnesses at the  trial and the first information on the question  as  to who,  out  of the two persons Samdu Khan and  the  appellant Noor  Khan,  fired  first,  the  substantial  case  of   the prosecution  remained  unaffected thereby, for each  of  the four eye-witnesses Ganesh, Prabhu, Mohan and Gulab had marks of injuries the duration of which when examined by Dr. Mehta tallied  with their story and the presence of  the  injuries lent assurance to their testimony that they were present  at the occurrence, and the 525 absence  of  independent  witnesses  was  not  by  itself  a sufficient  ground  for  discarding  the  testimony  of  the witnesses  who claimed to have seen the assault  on  Pratap. Relying  upon the testimony of Mst. Bhanwari  ’supported  by the  testimony  of Mohan Singh and Mst.  Mathura  the   High

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Court  held that the fatal injury to. Pratap was  caused  by the  appellant with a gun fired from a distance of  about  4 ft. from the body of Pratap.     The  appeal  before the High Court was  one  against  an order  of  acquittal.   But as  explained  by  the  Judicial Committee of the Privy Council in Sheo Swarup and others  v. King  Emperor(1) :"ss, 417, 418 and 423 of the Code give  to the  High Court full power to review at large  the  evidence upon which the order of acquittal was rounded, and to  reach the  conclusion  that  upon  that  evidence  the  order   of acquittal  should be reversed.    *    *    *    *    *  But in  exercising  the power conferred by the Code  and  before reaching its  conclusions upon fact,  the High Court  should and  will  always give proper weight  and  consideration  to such  matters as (1) the views of the trial Judge as to  the credibility  of  the  witnesses;  (2)   the  presumption  of innocence in favour of the accused, a presumption  certainly not  weakened by the fact that he has been acquitted at  his trial;  (3)  the right of the accused to the benefit of  any doubt;  and  (4)  the  slowness of  an  appellate  Court  in disturbing  a finding of fact arrived at by a Judge who  had the  advantage of seeing the witnesses."It may  be  observed that. in declining to accept the testimony of the  witnesses who  claim to have seen the assault, the Sessions Judge  did not  appreciate the full significance of the very  important circumstance  that on the person of the  four  eye-witnesses there were injuries which on the medical evidence must  have been caused at or about the time when the fatal assault  was made  upon Pratap.  It is highly improbable that  all  these witnesses  who  were members of :the  same  family  suffered injuries--some of which were severe--in some other  incident or  incidents on the day and about the time when Pratap  was fatally  injured,  and  then they conspired  to  bear  false testimony that they were present at the time of the  assault upon  Pratap.  The  presence of  the  four  injured  persons Ganesh, Prabhu, Mohan and (1) I. L.R. 61 I.A. 398. 526 Gulab at the scene of offence is assured by the evidence  of injuries,  and  must,  as  the   High   Court  observed,  be regarded as established beyond reasonable doubt.     The Sessions Judge did not found his conclusion upon the demeanour  of the witnesses, except possibly of Ganesh.   He entered  upon a  review of    the  evidence  and rested  his conclusion primarily upon  four circumstances:   (i) that the persons who were proved not to be present  at the time of the commission of the offence were sought to  be involved in the commission of the offence;   (ii) that the evidence showed that only one shot was fired even  though the witnesses deposed that both Samdu Khan  and Noor  Khan were armed with muzzle-loading guns and had  used them at the time of the ass.ault; (iii) that the distance from which the gun which caused  the fatal  injury  to  Pratap was fired  was  estimated  by  the witnesses at not, less than 20 ft, whereas Dr. Mehta deposed that the gun was fired from a distance of only 4 ft. and   (iv)  that the accused Noor Khan and others were  deprived of  the  benefit of having access to the  police  statements recorded under s. 161 Code of Criminal Procedure.     The  circumstance  that  two persons  Narpat  Singh  and Pratap  Singh  were alleged in the first information  to  be members  of the party which arrived at the scene of  offence in  company  of Noor Khan and Samdu Khan, is one  which  may require the  Court to scrutinize  the   testimony of  Ganesh the  informant  with  great care.  But the   High  Court  in

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arriving  at its conclusion did not rely upon the  testimony of Ganesh; that testimony was wholly discarded, and  nothing more  need be said about that testimony. Inclusion of  names of Narpat Singh and Pratap Singh as members of the party  of Noor  Khan  in the first information lodged  at  the  police station  does  not,  however,  throw  any  doubt  upon   the testimony of other witnesses who did not attempt to  involve them  in the commission of the offence. The  Sessions  Judge also  held  that  two  other  persons  Kesia  Choudhary  and Sheonath Singh were also 527 named in the first information though they were not’ present at the scene of offence. Ganesh admitted when cross-examined that these two persons arrived at the scene of offence after the assault on Pratap and the other witnesses did not depose that  they  had seen them at the time of  the  assault.  The fact, that certain persons who were on the admission made by Ganesh  not present at the time when the party of Noor  Khan arrived  at the scene, may raise a serious  doubt about  the reliability of the testimony of Ganesh, but it would not  by itself  be  a ground for discarding the story of  the  other witnesses.  It  is true that the witness  Prabhu  Singh  s/o Guman  Singh  who  was not a member of the  family  and  who claimed  to be an eye-witness to the assault on  Pratap  and others  was,  found wholly unreliable,  and  another  person cited as a witness Sohan Singh who was also not a member  of the family was not examined at the trial. But the place  and the  time at which the offence is alleged to  be  committed, were  such  that  presence  of persons  who  were  not  near relations of Pratap may least be expected.     All the eye-witnesses have consistently deposed that  it was Noor Khan who caused the fatal injury to Pratap. On  the evidence of the witnesses both Noor Khan and Samdu Khan were armed  with muzzle-loading guns at the time of the  assault, and only one gun-shot injury is found on the body of Pratap. It  was deposed by the witnesses that Samdu Khan  had  fired the gun carried by him at Ganesh but the shot missed Ganesh. But absence of gun-shot injury on the person of Ganesh  does not render the entire story so inherently improbable that it may on that account be discarded as unreliable.  Nor is  the discrepancy as to the sequence of firing, between the  first information   and   the  testimony  in  Court,   furnish   a justifiable ground in support of that course.     There  is  discrepancy between the  estimates  given  by witnesses  about the distance from which the fatal shot  was fired  by Noor Khan. Witnesses have estimated this  distance as varying between 8 and 15 poundas--each pounda being equal to  ’a  step’  or two feet.  It  appears  however  from  the appearance  of  the injury and especially the  charring  and blackening of the wound of entry that the barrel of the  gun could  not have been at a distance exceeding 3 or 4 ft.  But as we will presently point out, the estimate given 528 by  the witnesses, examined in the light of  the  topography and the circumstances in which the assault took place,  will not   warrant  undue  importance   being  attached  to   the estimates  of  illiterate and semi-literate  villagers.  The judgment  of the Sessions Judge suffers from  the  infirmity that without attempting to concentrate his attention on  the evidence  of  witnesses  in  the  light  of  certain   fixed positions on the scene of offence, and without attempting to secure a scale map, he discarded the story of the  witnesses because  of  the discrepancy in the  estimate  of  distances stated  in  terms  of poundas. There were at  the  scene  of offence, certain fixed objects such as the Peepal tree,  the

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Ora   (room),  dhalia   (stable),phalsa   (’opening  in  the hedge), well and chabutra (platform). If the evidence of the witnesses  is  examined  in the  light  not  exclusively  of estimates of witnesses about the distance, which  especially in.  the  case of illiterate or semi-literate  witnesses  is notoriously   unreliable,  we  have  no,  doubt   that   the conclusion which the Sessions Judge was .persuaded to  reach cannot be accepted.     The  estimate of the witnesses about the  distance  from which the gun was stated to have been fired by Noor Khan has varied.   Ganesh deposed that the distance was about 20  ft. The other witnesses gave the estimate that the distance  was about  8 to 15 poundas. It has to be noticed that  according to  the prosecution witnesses there were about  ten  persons present.  Two of them were armed with guns, some  with  axes and  the  remaining  with  sticks.  They  must  have  spread themselves  over  the small area of the field in  which  the well,  Ora  and  dhalia are situate. It appears  to  be  the consistent  testimony of the witnesses that  the  assaulting party  were  at the time of the assault somewhere  near  the Peepal   tree,   the  situation  of  which   is   definitely established by reliable evidence, as being at a distance  of about 8 ft. from the western end of the wall of the Ora. The gun which was used by Noor Khan was a muzzle-loading gun and the   length  of  the  barrel  was  5  ft.    According   to the  .witnesses  the  party  of  the   assailants  ha.d  not advanced  beyond  the peepal tree and if as stated  by  Mst. Bhanwari  .  who  has  been  believed  by  the.  High  Court corroborated as she was by witnesses Mst. Mathura and  Mohan Singh,  it  .appears that  Noor  Khan was near  the   peepal tree, the 529 inference is inevitable that the distance between the end of the barrel and Pratap did not exceed 4 ft. The existence  of charring  and the lodging of the entire discharge  from  the gun  at a single point of entry does clearly establish  that the  gun  was fired from close range.  The evidence  of  the witnesses viewed in the light of the situation of the   Ora, dhalia  and  the peepal tree as  shown in the  rough  sketch Ext.  P-2(a), does also suggest that the estimate  given  by the  witnesses of the distance of the assailant from  Pratap cannot be accepted. Mst. Bhanwari has stated that Noor  Khan was at a distance of a pace from Samdu Khan, and that  Samdu Khan and Noor Khan had fired when they were near the  peepal tree. Prabhu has given the estimate of the distance  between Noor Khan and Pratap as 10 paces, but the evidence discloses that  Noor  Khan fired the shot from  a place  opposite  the Ora.  Gulab stated that Samdu Khan  stood at a  distance  of five poundas from him and Pratap  was near him sitting  near the.  Ora.   Mohan  deposed that the peepal  tree  is  at  a distance of 6 or 7 ft., and the accused persons were on  the east side of the peepal tree and "in front of the centre  of the  Dhalia."  Mst.   Mathura has stated  that  the  accused persons  ha.d come to the rear of ,the  peepal tree.   Every witness has deposed that Pratap was sitting at a distance of a pace from the Ora wail facing south in which direction the peepal tree stood. This analysis of the evidence shows  that Noor  Khan  fired  his gun from a point south  of  the  Ora, somewhere near the peepal tree, at Pratap who was sitting at a  distance  of about 2 ft. from the wail of the  Ora.   The High   Court  accepted  the  testimony  of   Mst.   Bhanwari corroborated  by  the testimony of Mst.  Mathura  and  Mohan Singh  and  has  come to the  conclusion  that  these  three witnesses  have  deposed  to a state  of  affairs  which  is consistent  with the medical testimony. This is not  to  say

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that the testimony of other eye-witnesses is untrue, but  it only  discloses a faulty estimate of the distance  given  by illiterate villagers.  But  the most important defect in the trial which,  it  was urged   by  Mr.  Purshottam  appearing  on  behalf  of   the appellant,  vitiates  the order of conviction  is  that  the accused persons were deprived of the right to obtain and use copies  of the statements made by the witnesses before  ;the investigating officer Hari  Singh who stated that he 530 had   made:  ’jottings’  or  notes  of  the  statements   of witnesses, and that he did not record detailed statements in the  course  of  the  investigation,  and  that  from  these ’jottings’ head-constable Kapuraram prepared the  statements of the witnesses (supplied at the trial to the accused) when the  witnesses were not present at the police  station.   In their  cross-examination the witnesses who claimed  to  have witnessed  the  assault, asserted  that  certain  statements attributed  by Kapuraram to them were not made by them.  The High  Court observed that as the statements were written  by Kapuraram from the ’jottings’, no value could be attached to those  statements  and the testimony of  the  witnesses  who denied having made certain  parts of the statements found in the  record   prepared  by Kapuraram  could  not  render  it unreliable.  On the evidence of Hari Singh the investigating Officer, the statements of which copies were supplied to the accused purporting to be copies of statements recorded under s.  161  Criminal  Procedure Code, were not  in  truth  such statements,  and the High Court was right in observing  that the discrepancies between those statements and the  evidence given  by the witnesses at the trial would  not  necessarily support   the plea of the defence that the version given  at the  trial was unreliable, as an afterthought.  But  it  was urged  that  under s.  161  Criminal Procedure  Code  it  is obligatory  upon  an  investigating officer  to  record  the statements  of  witnesses  examined  by  him  and  if  those statements  are  not made available to the  accused  at  the trial, a valuable right  which the  Legislature has  ensured in  the interest of a satisfactory trial of the case is lost to the accused, and the trial must on that account alone  be regarded as vitiated.     By  s. 161 of the Code of Criminal Procedure,  a  police officer making an investigation under Ch. XIV is  authorised to examine orally any person supposed to be acquainted  with the  facts  and  circumstances of the case.  The  person  so examined  is bound to answer all questions relating to  such case  put to him by such officer, other than  questions  the answers  to which would have a tendency to expose him  to  a criminal charge or to a penalty or forfeiture.   Sub-section (3)  of  s. 161 provides that  a police-officer  may  reduce into writing any statement made 531 to   him  in  the  course  of  an  examination  under   this section, .and if he does so he shall make a separate  record of  the  statement of each such person  whose  statement  he records. Section 162 of the Code as amended by the  Criminal Procedure Code (Amendment) Act 26 of 1955 provides: "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 anT/ inquiry or trial in respect of any offence under  investigation  at  the  time  when   such   statement

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was made :"     By  the  proviso it is enacted that when a  witness   is called  for the prosecution  in  such  inquiry   or   trial, whose statement has been reduced into writing as  aforesaid, any  part of his statement, if duly proved, may  be used  by the  accused, and with the permission of the Court,  by  the prosecution to contradict such witness.     Section 173 of the Code by sub-section (4) as amended by Act  26 of 1955 provides that the officer in charge  of  the police  station  shall,  ,before  the  commencement  of  the inquiry  or trial, furnish or cause to be furnished  to  the accused,  amongst  others, a copy of the  first  information report  recorded under s. 154 and of all other documents  or relevant extracts thereof, on which the prosecution proposes to rely, including the statements recorded under sub-section (3)  of  s.  161 of all the  persons  whom  the  prosecution proposes to examine  as  1rs  witnesses. Section 207A of the Code of Criminal Procedure which is added by Act 26 of  1955 by sub-section (3) provides: "At  the commencement of the inquiry, the Magistrate  shall, when  the accused appears or is brought before him,  satisfy himself  that the documents referred to in section 173  have been  furnished  to  the accused and if he  finds  that  the accused has not been furnished with such documents or any of them, he shall cause the same to be so furnished," and the Magistrate shall then proceed to record the evidence of the witnesses produced by the prosecution and 532 he  may  commit  the case to the Court of  Session  on  such evidence and after considering the documents referred to. in s. 173.     The  object of ss. 162, 173(4) and 207A(3) is to  enable the  accused to obtain a clear picture of the  case  against him   before   the   commencement   of   the   inquiry.  The sections impose an obligation upon the investigating officer to supply before the commencement of the inquiry ’copies  of the statements of witnesses who are intended to be  examined at  the  trial  so  that  the  accused  may  utilize   those statements  for cross-examining the witnesses  to  establish such  defence  as he desires to put up, and  also  to  shake their testimony.  Section 161(3) does not require a  police- officer  to  record in writing the statements  of  witnesses examined  by him in the course of the investigation, but  if he does record in writing any such statements, he is obliged to make copies of those statements available to the  accused before the commencement of proceedings in the Court so  that the accused may know the details and particulars of the case against  him and how the case is intended to be proved.  The object  of the provision is manifestly to give  the  accused the   fullest   information  in  the  possession   ’of   the prosecution,  on which the case of the State is  based,  and the  statements  made against him.  But failure  to  furnish statements   of   witnesses  recorded  in  the   course   of investigation may not vitiate the trial.  It does not affect the  jurisdiction  of the Court to try a case,  nor  is  the failure  by itself a ground which affects the power  of  the Court to record a conviction, if the evidence warrants  such a  course.  The provision relating .to the making of  copies of  statements recorded  in  the course of investigation  is undoubtedly of great importance, but the breach thereof must be  considered in the light of the prejudice caused  to  the accused by reason of its breach, for s. 537 Code of Criminal Procedure  provides, amongst other things, that  subject  to the provisions contained in the Code no finding, sentence or order passed by  a Court of competent jurisdiction shall  be

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reversed  or  altered on account of any error,  omission  or irregularity    in   the   complaint,   summons,    warrant, proclamation, order, judgment or other proceedings before or during  trial or in .any inquiry or other proceedings  under this Code, unless such       533 error,  omission, irregularity or misdirection has in   fact occasioned  a failure of justice.  By the explanation to  $. 537  it is provided that in determining whether  any  error, omission or irregularity in any proceeding  under  this Code has  occasioned a failure of justice, the Court  shall  have regard  to the fact whether the objection could  and  should have been raised at an earlier stage in the proceeding.     In  the  present case the statements  of  the  witnesses prepared  by Kapuraram were supplied to the  accused  before the committal proceedings were started.  Relying upon  those statements  as  duly  recorded  under   s.   161(3),  cross- examination of the witnesses was directed.  But in the Court of  Session  the  investigating  officer  admitted  that  on September  29,  1960  he did not record  the  statements  of witnesses  in  detail, but merely noted certain  points  and after  reaching Thana Bali on September 30, 1960 he had  got detailed  statements of the witnesses written out  by  head- constable Kapuraram in the absence of the witnesses, and had destroyed  the notes and jottings  thereafter.   Undoubtedly the   investigating   officer  acted  in   a   manner   both irresponsible and improper, and thereby was instrumental  in depriving  the  accused  of the benefit of  the  "notes  and jottings"  written  out  by  him.   He  destroyed  the  only documents  which  could be regarded as  statements  recorded under  s. 161 and which are permitted to be utilized by  the accused  under  s. 161.  Counsel for the  appellant  relying upon  the two judgments of the Nagpur High Court in  Baliram v.  Emperor(1)  and Maganlal v.  Emperor(2)  submitted  that omission  to supply copies of the statements recorded  under s.  161  is repugnant to the fundamental rules  of  practice necessary  for the due protection of prisoners and the  safe administration  of  justice,  and  where  the  accused   was deprived  of his statutory rights of  cross-examination  and thereby denied the opportunity of effectively destroying the testimony  of  prosecution witnesses the  evidence  of  such witnesses  whose  statements have not been supplied  to  the accused  is  inadmissible  at the trial. We  are  unable  to accept this contention for in our view the law stated by the Nagpur High Court does (1) I.L.R. [1945] Nag. 151. (2) I.L.R. [1946] Nag. 126. 534 not  correctly  interpret ss. 161 and 162 Code  of  Criminal Procedure.   In  a  later case, the Nagpur  High  Court   in Maroti  Mahagoo  v. Emperor(1) held that  though  the  right which is given to the accused under s. 162 Code of  Criminal Procedure to use the previous statements made to the  police for  the purpose of contradicting a witness  is  a  valuable right, and where the omission to give copies to the  accused is  proved  to  have caused prejudice to  the  accused,  the testimony  of  such witness must be  received  with  extreme caution and the Court would be entitled in  a suitable  case even to ignore altogether such evidence, but the evidence is not  inadmissible and every case must be decided on its  own facts.     These  cases  were decided before the Code  of  Criminal Procedure was amended by Act 26 of 1955, but on the question raised  by counsel there is no material difference  made  by the  amended provision.  After the amendment of the Code  in

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1955,  it is the duty of the investigating officer in  every case   where  investigation  has been held under Ch. XIV  to supply to the accused copies of the statements of  witnesses proposed to be examined at the trial. Under the Code  before it was amended, it was for the Court when a request was made in. that behalf to supply to the accused statements of  each witness  when he was called for examination.  The effect  of the  breach of the provisions of s. 207A and s. 173 Code  of Criminal  ProCedure was considered by this Court in  Narayan Rao  v.  State  of Andhra Pradesh(2) and it  was  held  that failure  to comply with the provisions of s. 173(4)  and  s. 207A(3) is merely an irregularity which does not affect  the validity of the trial.  It was observed, in dealing with the question  whether an omission to comply with the  provisions of   s.  173(4)  read  with  sub-section  (3)  of  s.   207A necessarily  renders   the entire proceeding and  the  trial null  and void:               "There  is nodoubt that those provisions  have               been  introduced by the amending Act of  1955,               in order to simplify the procedure in  respect               of  inquiries leading upto a  Sessions  trial,               and   at  the  same  time,  to   safeguard_the               interests of accused persons by enjoining                  (1) I.L.R. [1948] Nag. 110.               (2) A.I.R. 1957 S.C.737.               535               upon police officers concerned and Magistrates               before  whom such proceedings are brought,  to               see that all the documents, necessary to  give               the  accused persons all the  information  for               the  proper  conduct  of  their  defence,  are               furnished.                         .           .           .               But   we  are  not  prepared  to   hold   that               noncompliance   with  those  provisions   has,               necessarily,  the result  of  vitiating  those               proceedings  and subsequent trial.   The  word               "shall"  occurring both in sub-section (4)  of               s. 173 and sub-section (3) of s. 207A, is  not               mandatory  but  only  directory,  because   an               omission by a police officer, to fully  comply               with  the provisions of s. 173, should not  be               allowed to have such a  far-reaching effect as               to render the proceedings including the  trial               before   .the   Court   of   Session,   wholly               ineffective.                  .           .           .           .               Certainly,  if  it is shown, in  a  particular               case,  on behalf of the accused  persons  that               the  omission  on  the  part  of  the   police               officers concerned or of the Magistrate before               whom the committal proceedings had pended, has               caused  prejudice  to  the  accused,  in   the               interest of justice, the Court may re-open the               proceedings by insisting upon full  compliance               with the provisions of the Code.               In our opinion, the omission complained of  in               the               instant  case,  should not have  a  more  far-               reaching effect than the omission to carry out               the  provisions  of s. 162 or s.  360  of  the               Code." The Court in that case relied upon the observations made  by the  Judicial  Committee of the Privy Council   in  Pulukuri Kotayya  v.  Emperor(1) to the effect that when a  trial  is

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conducted in a manner different from that prescribed by  the Code,  the  trial  is  bad, and no  question  of  curing  an irregularity   arises,  but  if  the  trial   is   conducted substantially in the manner prescribed by the Code, but some irregularity  occurs  in  the course of  such  conduct,  the irregularity can be cured under s. 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 (1) L.R, 74 I.A. 65. 536 comprehensive  provisions  of  the Code.   In  dealing  with result  of failure to supply copies of  statements  recorded under  s.  161  Code of Criminal  Procedure,  the   Judicial Committee observed in Pulukuri Kotayya’s case(1):               "The right given to an accused person by  this               section  is  a  very valuable  one  and  often               provides   important   material   for    cross               examination  of  the  prosecution   witnesses.               However   slender  the  material  for   cross-               examination  may seem to be, it  is  difficult               to   guage   its   possible   effect.    Minor               inconsistencies in his several statements  may               not  embarrass  a truthful  witness,  but  may               cause  an untruthful witness  to  prevaricate,               and  may lead to the ultimate  break-down   of               the  whole of his evidence and in the  present               case   it  has  to  be  remembered  that   the               accused’s contention was that the  prosecution               witnesses  were false witnesses.   Courts   in               India   have  always  regarded  any breach  of               the  proviso to s. 162 as matter  of  gravity.               A.I.R.  1945  Nag.  1  where  the  record   of               statements   made   by  witnesses   had   been               destroyed,  and 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 s. 162 have led to  the               conviction  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." However  strong  the  inference may be,  failure  to  supply copies  will  not by itself render the trial  illegal.   The Court  must in each case consider the nature of the  defect, the  objection raised at the trial, and  the   circumstances which  lead to an inference of prejudice.  The  strength  of the  inference of prejudice must always be  adjudged  having regard to the circumstances of each particular case. Narayan Rao’s  Case(2)  related  to  failure  to  comply  with   the provisions  of  ss. 173 and 207A.  It appears that  in  that case the statements of witnesses recorded under s. 161  were supplied  to  the  accused  in the  Court  of  Session,  and irregularity in the proceeding to that  extent  was (1) L.R. 74 I.A. 65.    (2) A.I.R. 1957 S.C. 737.    537 mitigated.   In the present case what could be  regarded  as statements  recorded under s. 161(3) were never supplied  to the  accused.  But on that account the principle  applicable to  the consequences of deprivation of the  statutory  right ’is not different. The  Trial Court observed that the copies of the  statements which were handed over to the accused were not the record of

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the statements made by the witnesses but they were  dictated by the sub-Inspector Hari Singh from the ’jottings’ made  by him of  some  points,  the statements having been written by head-constable Kapuraram. The Court then observed:               "It  is  to  be  noted  that  head   constable               Kapuraram  was  not  present at the  place  of               occurrence  when  the  investigating   officer               examined   the  witnesses  on   29-9-60.   The               statements  of  witnesses  which  are  in  the               handwriting   of  head  constable   Kapuraram,               therefore,  could  not have been  written  and               read over to witnesses  in the village Mundara               station, Bali, and, therefore, the  statements               on which the prosecution rely were never  read               over to and admitted correct by the witnesses.               There  are several portions in the  statements               witnesses which have been brought on record by               the defence counsel on which there is complete               contradiction  between the statements  of  eye               witnesses and the investigating officer." But the contradictions were, it appears, primarily as to the presence of Harpat Singh and Pratap  Singh  whose names were mentioned  in the first information by witness  Ganesh,  and against  whom  no  charge-sheet was filed  and  as  to  some matters not of much importance, such as the acts and conduct of  persons  other  than Noor Khan  the  appellant  in  this appeal. For instance, Prabhu denied that he had stated  that Prabhu  Singh  and  Sohan Singh were eye  witnesses  to  the assault.   Mst. Mathura denied that she had stated that  the accused  had  ’indecently abused and threatened  Ganesh  and Pratap to leave the well otherwise they would kill them, and a   similar   denial  was  made  by  Mst.   Bhanwari.    The contradiction  in  the statement of Prabhu related  to  some proceedings in Court arising out of the disputes relating to the  well.   It is of course very  unsatisfactory  that  the notes, or .the ’jottings’ as they are 35--2 8. C.India/64 538 called, of the statements made by the witnesses before  Hari Singh  were not available to the accused because  they  were destroyed by him and what were made available to the accused were  not  in truth the statements which could  be  utilized under   s.  162  Code  of  Criminal  Procedure.   For   this unsatisfactory   state  of  affairs,  sub.  inspector   Hari Singh  must  be  held  responsible.   But  solely  on   that account, as we have already observed, we are unable to  hold that  the  trial was illegal.  No attempt appears  to   have been made by the Trial Court to scrutinize the diary of sub- inspector  Hari Singh, nor was any objection raised  in  the High  Court that by reason of the failure to make the  notes or  the jottings available to the accused any prejudice  was caused. Not a single question was asked to Hari Singh  about the  nature of those jottings, or notes--whether  they  were mere  memoranda which the writer alone could understand,  or were  detailed notes of statements made to him,  which  were arranged into proper shape when dictated to Kapuraram.   The High Court in dealing with this objection observed:               "Having  regard  to the manner  in  which  the               police  statements  are alleged to  have  been               prepared   by  Kapuraram,  no  value  can   be               attached  to them and if the witness  disowned               certain  portions  of  those  statements,  his               evidence  at  the  trial  cannot  be  rendered               unreliable on that account."     The High Court has carefully analysed and considered the

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evidence of the witnesses who deposed that they had seen the assault  and it was assured that four out of  the  witnesses who  had received injuries on their person must   have  been present  on the scene of offence and the testimony of  three out of those witnesses was acceptable viewed in the light of the  evidence  of  Mst. Bhanwari and Mst. Mathura.  We  have gone  through  the  material parts of the  evidence  of  the witnesses  to  which our attention was directed,  and  after carefully  scrutinising  the evidence in the  light  of  the infirmities pointed out, especially the denial of the copies of  the notes or jottings made by Hari Singh, we are  unable to disagree with the High Court. The   Sessions  Judge  discarded  the  testimony    of   the witnesses, in view of discrepancies on matters of compara- 539 tively  minor  importance  and because  the  witnesses  were relatives  of the deceased, and they made statements  as  to the distance from which the assault was made which could not be  true in the  light of the medical  evidence.   The  High Court  did  not accept this view of the Trial Court.  In  an appeal  with special leave we do not think that we would  be justified  in  interfering with the conclusion of  the  High Court especially when our attention has not been invited  to any substantial infirmity in the reasoning of that Court. We may repeat that the provisions of s. 162 Code of Criminal Procedure  provide a valuable safeguard to the  accused  and denial   thereof  may  be  justified  only  in   exceptional circumstances.  The provisions relating to the record of the statements of the witnesses and the supply of copies to  the accused  so  that  they may be utilised  at  the  trial  for effectively  defending himself cannot normally be  permitted to  be whittled down, and where the circumstances  are  such that  the  Court  may reasonably infer  that  prejudice  has resulted  to the accused from  the  failure  to  supply  the statements  recorded  under  s.  161  the   Court  would  be justified in directing that the conviction be set aside  and in  a proper case to direct that the defect be rectified  in such  manner  as the circumstances may warrant. It  is  only where the Court is satisfied, having regard to the manner in which the case has been conducted and  the attitude  adopted by the accused in relation to the defect, that no  prejudice has   resulted  to  the  accused  that  the   Court   would, notwithstanding  the breach of the statutory provisions,  be justified  in  maintaining  the  conviction.  This,  in  our judgment,  is one of those cases in which such  a course  is warranted.     The action of the sub-inspector Hari Singh in destroying the  notes cannot but be deplored.  But the  destruction  of the  notes  recorded  by him appears to  be  the  result  of ignorance, not of any dishonesty.  Even so, if on a  careful scrutiny  of the evidence we felt that there was  reasonable ground  for  holding  that  the  appellant   Noor  Khan  was prejudiced  because he was deprived of the right  which  the Legislature had ensured him in making his defence, we  would have  set aside the conviction.. We have however  considered the evidence of the  witnesses 540 carefully  and  examined it in the light  of  the  criticism offered  by  counsel  for Noor Khan, and  after  giving  due weight to the opinion of the High Court and the Trial  Court have  come to the conclusion on the facts of this case  that no prejudice appears to have been caused.     As  we have already pointed out, the plea  of  prejudice caused to_the accused does not appear to have been raised in the  High  Court,  and  apart  from  the  general  plea  ’of

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illegality  of  the trial because of the failure  to  supply the  copies  of the record of the statements  made  to  Hari Singh,  no  substantial argument in support of the  plea  of prejudice has been advanced.     On  the  view we have taken, this appeal fails  and   is dismissed. Appeal dismissed.