08 December 1955
Supreme Court


Case number: Appeal (crl.) 143 of 1954






DATE OF JUDGMENT: 08/12/1955


CITATION:  1956 AIR  238            1955 SCR  (2)1043

ACT: Evidence--Joint  recording of statements made  by  witnesses during investigation-Legality-Testimony of such witnesses in court-Admissibility-Substitution  of a charge under s.  149, I.P.C.  for one under s. 34, I.P.C.-Validity-Accused  filing statement  instead  of  being  examined  in  court-Legality- Prejudice-Code of Criminal Procedure, (Act V of 1898), ss. 1 61(3), 342-Indian Penal Code (Act XLV of 1860), ss. 34, 149.

HEADNOTE: Although the joint recording of statements made by witnesses during  an investigation is a contravention of s. 161(3)  of the Code of Criminal Procedure and must be disapproved, that by  itself  does  not render the  testimony  given  by  such witnesses  in court inadmissible.  It is, however,  for  the court  to decide whether it will rely on such  testimony  or attach any weight to it. Zahiruddin v. Emperor, (A.I.R. 1947 P.C. 75), applied. Baliram Tikaram v. Emperor, (A.I.R. 1945 Nag. 1) and  Magan- lal   Radhakishan  v.  Emperor,  (A.I.R.  1946  Nag.   173), disapproved. Bejoy Chand Patra v. The State, (A.I.R. 1950 Cal. 363),  ap- proved. The  court has power to substitute a charge under s. 149  of the Indian Penal Code for a charge under s. 34. Karnail  Singh  and others v. The State of  Punjab,  ([1954] S.C.R. 904)and Willie Slaney’s case, (Criminal Appeal No.  6 of 1955), referred  to. Although  s. 342 of the Code of Criminal  Procedure  contem- plates  oral examination of the accused in court and  though the   practice  of  filing  written  statements  is  to   be deprecated,  the  fact that the accused  filed  a  statement instead  of  being examined is no  ground  for  interference unless he is shown to have been prejudiced thereby. Consequently,  in a case where the accused were put  up  for trial under s. 302 read with s. 34 of the Indian Penal Code, and the Additional Sessions Judge relying on the evidence of three  of the prosecution witnesses whose statements  during the investigation were recorded jointly in contravention  of s.  161(3) of the Code of Criminal Procedure, convicted  and sentenced them to transportation for life and the High Court



in appeal agreed with the findings of fact, but altered  the conviction  to  one  under s. 326 read with s.  149  of  the Indian  Penal Code, as also the sentence,  their  conviction was not liable to be set aside. 1044

JUDGMENT: CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 143  of 1954. On appeal by special leave from the judgment and order dated the  12th  August 1953 of the Patna High Court  in  Criminal Appeal No. 345 of 1952 arising out of the judgment and order dated  the  20th  August 1952 of  the  Court  of  Additional Session Judge, Darbhanga in Session Case No. 12 of 1952. H.J. Umrigar and B. C. Prasad, for the appellant. B.K. Saran and M. M. Sinha, for the respondent.. 1955.   December 8. The Judgment of the Court was  delivered by VENKATARAMA AYYAR J.-The appellants were charged before  the Additional Sessions Judge, Darbhanga under section 302  read with  section 34 of the Indian Penal Code for the murder  of one  Balbbadra Narain Singh.  They were also  charged,  some under section 147 and the others under section 148, for  be- ing members of an unlawful assembly and for rioting. The case of the prosecution was as follows: The deceased and the appellants were pattidars in the village I of Mahe,  and there was ill-feeling between them on account of the village pattidari.   On 5-3-1951, at about 10 A.M. the deceased  was returning  from the river to his baithka. Oil the  way,  the appellants who were armed with bhalas, sword and lathi,  and some  others surrounded him at the courtyard of the  village school  and  attacked him.  One Harischandra Singh,  who  is still absconding, plunged his bhala into the abdomen of  the deceased,  and the appellants joined in the attack  on  him. The  deceased  ran to his baithka, and from  there,  he  was taken  to the police station at Singhia.  There, he  made  a complaint  which  has been filed as  the  first  information report, and therein beset out the incidents mentioned above, and  implicated the appellants as concerned in  the  attack. The deceased was then taken to the hospital, and in view  of his  precarious  condition  the doctor  recorded  his  dying declaration.  The deceased was then sent 1045 for treatment to the hospital at Samastipur, but on the  way he  died.  On the basis of the first information report  and on  the  enquiries  made by them,  the  police  charged  the appellants under section 302 read with section 34 for murder and under sections 147 and 148 for rioting.  The defence  of the  appellant  was that the deceased was attacked  by  some unknown  ,assailants  in his baithka in the early  hours  of 5-3-1951, and that they were not concerned in the offence. The  Additional  Sessions  Judge,  Darbbanga  accepted   the evidence  of the prosecution, and convicted  the  appellants under  section 302 read with section 34, and sentenced  them to  transportation for life.  He also convicted  them,  some under  section  147 and the others under  section  148,  but imposed  no  separate sentence under  those  sections.   The appellants  took the matter in appeal to the High  Court  of Patna., The learned Judges agreed with the Sessions Judge in his conclusions of fact, but altered the conviction from one under section 302 read with section 34 to one under ’section 326   read   with  section  149,  and  the   sentence   from transportation  for life to various terms  of  imprisonment.



The  learned  Judges also maintained the conviction  of  the appellants on the charge of rioting, but awarded no separate sentence  therefor.   It is against this judgment  that  the present appeal is directed. On behalf of the appellants, it was firstly contended by Mr. Umrigar  that  the  finding of the  courts  below  that  the incident  took place at the school courtyard and not at  the baithka  of  the deceased was bad, because it was  based  on inadmissible  evidence, viz., Exhibit P-7 and the  testimony of  P.Ws.  4, 7 and 12.  Exhibit P-7 is a statement  of  the deceased  taken  by  the police officer  subsequent  to  the lodging of the first information and after the investigation had begun, and its reception would be barred by section  162 of  the Code of Criminal Procedure.  But the learned  Judges thought  that it would be admissible under section 32(1)  of the Indian Evidence Act, and the correctness of this view is disputed  by  the appellants.  But even if  Exhibit  P-7  is inadmissible in evidence, 1046 that would not assist the appellants, as the learned  Judges observed that apart from that document, they would have,  on the  other evidence, held that the deceased was attacked  at the school courtyard. Then, we come to the evidence of P.Ws. 4, 7 and 12 on  which the courts below have relied in accepting the version of the incident as given by the prosecution.  Mr. Umrigar contended that  their  evidence was inadmissible,  because  they  were examined  by the police at the stage of  investigation,  and their statements were not recorded separately as required by section  161(3) of the Code of Criminal Procedure.  This  is what  the  investigating  officer,  P.W.  18,  deposed  with reference to this matter. "The  Daffadar  produced Sital Singh  (P.W.’12),  Ram  Karan Singh  (P.W.  7) and Ramkinker (P.W. 4).  First  of  all,  I examined them separately but recorded their joint  statement in respect of common things.  I made a separate record about the identification and the weapons". The  recording  of a joint statement of the  examination  of P.Ws.  4,  7 and 12 is clearly in contravention  of  section 161(3),  and  must  be disapproved.   But  the  question  is whether  that renders the testimony of P.Ws. 4, 7 and 12  in court  inadmissible.   Section 161(3) does not say  so,  and indeed,  seeing  that  the police are not bound  to  make  a record of the statements of witnesses in which case there is admittedly  no bar to the reception of their  testimony,  it would be anomalous if we were to hold that their evidence is inadmissible,  because the statements were also  reduced  to writing but not in the manner provided in the section.   The Indian Evidence Act contains elaborate provisions as to  who are  competent witnesses and on what matters their  evidence is inadmissible.  And on these provisions P.Ws. 4, 7 and  12 are neither incompetent witnesses, nor is their evidence  as to  the incidents to which they deposed,  inadmissible.   In Zahiruddin  v. Emperor(1) it was held by the  Privy  Council that  the failure to comply with the provisions  of  section 162(1) might greatly (1)  A.I.R. 1947 P.C. 75. 1047 impair  the value of the evidence of the witness,  but  that would not affect its admissibility.  On the same  reasoning, it will follow that the evidence of P.Ws. 4, 7 and 12 is not inadmissible  for the reason that their statements had  been recorded  by P.W. 18 jointly and not separately as  required by section 161(3). In  support  of  his  contention  that  their  evidence   is



inadmissible, Mr. Umrigar relied on the decisions in Baliram Tikaram   v.   Emperor(1)  and   Maganlal   Radhakishan   v. Emperor(2).   In Baliram Tikaram v. Emperor(1), which was  a decision under section 162 of the Code of Criminal Procedure the  accused  had  not been furnished  with  copies  of  the statements  recorded  by the police officers  under  section 161,  and  it was held that that deprived the accused  of  a valuable  right,  and must have caused  prejudice  to  them. That was the view taken in Viswanath v. Emperor (3) , and no exception  can be taken to it.  But the learned Judges  went on  to observe that the evidence of the witnesses  who  gave statements   at   the   investigation   would   itself    be inadmissible.   The reason for this opinion was thus  stated by them: "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". This  view  was  reiterated by the same  learned  Judges  in Maganlal  Radhakishan  v. Emperor(2), but, for  the  reasons already  given,  we are unable to accept this as  a  correct statement of the law.  We are of the opinion that while  the failure  to comply with the requirements of  section  161(3) might affect the weight to be (1) A.I.R. 1945 Nag. 1.       (2) A.I.R. 1946 Nag. 173. (3) I.L.R. [1937] Nag. 178, 1048 attached  to  the  evidence of the witnesses,  it  does  not render  it inadmissible.  That was so held by Harries,  C.J. and Bachawat, J. in Bejoy Chand Patra v. The State(1), where this  question  arose directly for decision, and we  are  in agreement  with  this  view.   In  the  present  case,   the attention  of the learned Judges was drawn to the  infirmity in  the evidence of P.Ws.4, 7 and 12, arising by  reason  of the  failure  to  observe section  161(3),  but  they  were, nevertheless,  prepared to accept it as reliable.   We  must accordingly  hold that the findings of the courts below  are not  open  to attack on the ground that they were  based  on inadmissible evidence. It  was  next  contended  that  the  charge  on  which   the appellants  were tried was one under section 302  read  with section  34, and that the learned Judges of the  High  Court erred in convicting them under section 326 read with section 149.   Before  the learned Judges the  contention  that  was pressed  was  that  there  was no  power  in  the  court  to substitute section 149 for section 34, but they declined  to accept  it.  The question has since been considered by  this Court in Karnail Singh and others v. The State of  Punjab(’) and Willie Slaney’s case(’).  It is conceded by Mr.  Umrigar that  in view of these decisions, the question is no  longer open.  It must be answered adversely to the appellants. It  was  finally  contended that there had  been  no  proper examination  of the appellants under section 342,  and  that the conviction should accordingly be quashed.  What happened was  that  when the court commenced  its  examination  under section  342,  the appellants stated that  they  would  file written  statements.  Those statements were  very  elaborate and furnished the answer of the appellants to all the points



raised in the prosecution evidence.  Mr. Umrigar was  unable to  suggest  any question which could have  been  put,  with reference to which the statements did not contain an answer. Clearly, the appellants have not been prejudiced.  It is  no doubt true that (1) A.I.R. 1950 Cal. 363.       (2) [1954] S.C.R. 904, (3)  Criminal Appeal No. 6 of 1955, 1049 section  342 contemplates an ’examination in court) and  the practice of filing statements is to be deprecated.  But that is  not  a  ground for  interference,  unless  prejudice  is established.   And it is nothing unusual for the accused  to prefer  filing  statements instead  of  answering  questions under  section  342 lest they should suffer  by  inadvertent admissions  or by damaging statements.  As no prejudice  has been shown, this contention also must be rejected. In the result, the appeal is dismissed.