Chandra Reddy, J.
1. The two appellants along with another were put up for trial before the Sessions Judge of Krishna on several counts in connection with an occurrence that took place at about 7 a.m. on 15-7-1954. The 1st appellant was found guilty of having inflicted a fatal wound on one Moses, an offence punishable under Section 302, I.P.C. and given a life sentence. Accused 2 was convicted under Section 323 and sentenced to six months rigorous imprisonment. The third accused was acquitted.
The accused as well as the members of the prosecution party are Harijan Christians living in Baptist Palem, Bezwada. The 1st accused is the father of the 2nd accused and the elder brother of the 3rd accused. P. W. 3 is the father of the deceased, P. Ws. 1, 2, 4, and 5,--P. Ws. 2 and 4 being the daughters. P. W. 1 is an employee in the Bezwada Railway Station. He developed illicit intimacy with P. W. 7 the wife of the 3rd accused, two years prior to the occurrence. Seven months before the offence, he took away P. W. 7 from her house and began to live at Inchpet one mile away from Baptist Palem.
Beyond reporting the matter to the authorities concerned, the third accused did not take any action. P. W. 1 speaks to his having been given a thrashing on 13-7-1954 by A-1 and A-2 while he was on his way to the station-yard to attend to his normal duties. He then went to the railway police-station and gave a report against A-1 and A-2 and a police constable P.C. 1500, The railway police sent him to the Government hospital for treatment and wound certificate.
The police did not take any further action in the matter as it was thought that it was a non-cognisable offence and directed him to file a complaint. Because of this assault, P. W. 1 thought that it was not quite safe to continue to live at Inch-pet. He, therefore, came to live with his mistress, P. W. 7 in the house of P. W. 2 a sister of his on the evening of 14-7-1954.
The next morning at about 7 a.m. while he was returning home after answering calls of nature, A-2 and A-3 caught hold of him and thrashed him. He raised an alarm and this attracted his sister, P. W. 2 to the scene and she beat A-2 and A-3 with a stick. He then saw A-1 coming with a spear from the direction of his house. So he got frightened and ran away and later went on duty. After P. W, 1 escaped, the 1st accused reached the scene. Just then, Moses his elder brother came there with no weapon in his hand. A-1 speared him on his right flank with the result that the injured man fell down.
Then P. W. 3 came and he was also stabbed by the same person on the left chest. The 1st accused exclaimed that the chief person escaped, hitting the spear against the ground and the spear was caught hold of by P. W. 3. By then, P. W. 4 also came to the scene and she beat with a stick on the head of A-1. While the fight was going on, P. W. 3 another son of P. W. 5 sent a telephone message to the concerned police station that his brothers were being attacked. On this, the Sub-Inspector attached to No. 4 Town Police Station proceeded to the scene of crime. Seeing the police, the three accused ran away from the place. P. Ws. 6 and 8 were also present at the time and place of occurrence.
2. The three accused immediately went to the police station in a rickshaw and gave a complaint, Ex. B-6, wherein their version of the occurrence was given. After the statement was taken down, they were sent to the hospital for treatment and wound certificate. The Sub-Inspector of Police who reached the place as the fight was coming to a close saw the deceased and P. W. 3 lying on the ground with the spear, M. O. 2 and two, sticks by their side.
The deceased and P. W. 3 were sent to the hospital where the doctor, P. W. 10, examined both of them. P. W. 9 the Taluk Magistrate who happened to visit the hospital recorded the dying declaration of the two injured persons. In Ex. P-3 recorded between 9-0 a.m. and 9-30 a.m., Moses made the following statement:
I belong to Baptist Palem. At about 7 a.m. to-day, I sat down in front of my house, passing urine. Bhuthapathi Aseervadam, with a spear in the hand, along with his son Anandrao, was then running towards the railway gate. As there was enmity between them and our younger brother, Aronu previously, I went to the railway gate, to see what it was. Then (they) were beating my younger brother, Aronu. When I interfered, Aseervadam speared me on the right side of my stomach. I fell down. Aseervadam and Anandarao and Balayya and others were there in the quarrel. When this quarrel took place, Jagrayya and Bennu and some others witnessed.
The statement of P. W. 3 embodied in Ex. P-1 is as follows:
I belong to Baptist Palem, This morning when Bhuthapati Aseervadam, his younger brother Joseph, and Anandarao, son of Aseervadam, together, were beating my third son Aronu, on this side of the railway gate in our Peta, I went there. Aseervadam speared me on the left side of my chest. Afterwards, they beat on my head. When I was first speared, I also fell down. The spear-blade bent. The fellows that beat us are the above three (persons). Still some more were there. There were spears and sticks with them. I was stabbed with that spear. Anandarao had knife. At the time of the quarrel, Jakrayya and Bennu and still some more witnessed it.
These two statements were treated as constituting the F. I. R. and investigation started. Moses died on the 18th at about 6 a.m. The same day, inquest was held at about 10 a.m. and the body was sent for post-mortem examination,
3 The defence was that the accused were innocent victims of assault by the prosecution party. According to them, on the fateful morning when the 2nd accused was returning home, P. Ws. 1, 3, 5, 6, 8 and the deceased attacked him. Hearing the cries raised by the 2nd accused, the 1st and the 3rd accused rushed to the place and when they intervened to rescue A-2 they were also wounded by the prosecution party.
4. The Sessions Judge acting on the testimony of the prosecution witnesses convicted and sentenced the appellants as mentioned supra.
5. That there was a fight between the two parties in the course of which Moses was wounded fatally and P. W. 3 and A-3 received injuries does not admit any doubt. What the prosecution sought to establish was that the trouble started* when the accused 2 and 3 began to give a thrashing to P. W. 1 and that the deceased and P. W. 3 who went there as mere spectators were stabbed by the 1st accused with a spear he brought from his house, while the defence hat) it that they were the victims of aggression by the prosecution party.
6. The main point for decision is which of the two versions is acceptable. The judgment under appeal is assailed by Mr. Satyanarayana on various grounds. It is first contended by him that trie investigating officer instead of recording the statements of each of the witnesses separately had stated that P. W. 6 had corroborated P. W. 8 and this has vitiated the trial, and has cited to us a decision of one of us in--'Chanchu Gangi Reddy v. State of Andhra' : AIR1955Mad303 , in support of it.
On the other hand, the Public Prosecutor argues that the case relied on does not lay down the proposition as stated by the counsel for the appellants and also has drawn our attention to the judgment of Balakrishna Ayyar J. in--'Royappan v. State' : AIR1955Mad512 . In view of the alleged conflict Krishna Rao J. ordered a matter raising the same question to be posted before, a Bench of two Judges.
Now, the point for our consideration is whether there is any basis for the contention that the procedure adopted by the investigating officer in this case has lead to the trial being illegal and whether there is any conflict between the two rulings referred to above. To appreciate the merits of the relative contentions, it is necessary to notice the relevant provisions of the Criminal Procedure Code. Section 161 of the Code in so far as it is material runs as follows:
161. XX XX XX3. The police officer may reduce into writing any statement made 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.
This amendment was necessitated by the practice of the investigating officers in recording statements of one or two witnesses and saying that the rest of the witnesses had corroborated the earlier ones. By this amendment, the Legislature sought to put an end to it. In--'In re Subbareddi, 1948 Mad 23 (AIR V 35) (C), Horwill J. observed:
This new sub-section seems to hit at the practice of writing against the names of certain witnesses after the first that they corroborated the statements of the earlier witness.
These observations were referred to in 'Gangireddy v. State of Andhra (A)'. The provision in sub-section 3 of Section of the relative contentions, it is necessary to notice the relevant directing the police officer to make a separate record is a mandatory one. We have now to decide what the effect of the breach of the mandatory provision is. The question as to how the violation of the provision of Section 162 which provides the accused with a right to cross-examine witnesses with reference to the statements made by witnesses during the investigation affects the trial has been the subject-matter of judicial decisions.
7. The leading case on the subject is,--'Pulukuri Kotayya v. Emperor' 1947 PC 67 (AIR V 34) (D). Dealing with a breach of the proviso to Section 162 of the Criminal Procedure Code, Sir John Beaumont who delivered the opinion of the Judicial Committee in the case remarked:
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 gauge 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 breakdown 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 Section 162 as matter of gravity.
'Baliram v. Emperor' 1945 Nag 1 (AIR V 32) (E), where the record of statements made by witnesses had been destroyed, and--'Emperor v. Bansidar' 1931 All 262 (AIR V 18) (F), 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 Section 162 have led to the convictions being quashed. Their Lordships would, however, observe that where, as in these two cases, the statements were never made available to the accused, an inference, which is almost irresistible, arises of prejudice to the accused.
Their Lordships in that case were not prepared to quash the conviction for the reason that there was really no prejudice though the statements were made available to the accused only at a very late stage.
In 'Baliram v. Emperor (E)' which was approved by their Lordships a Bench of Nagpur High Court observed in the course of the discussion on the topic dealing with Section 162, Cr. P.C. that the denial to the accused of the benefit of the statements under Section 162, Cr. P.C. was tantamount to a departure from the mode of trial prescribed by law. According to the learned Judges, the result of refusal to grant copies would be to deny the accused the right to contradict a witness under Section 145 of the Evidence Act. Such being the case, there could be no fair trial and real justice.
8. Subsequent to the ruling of the Judicial Committee in 1947 PC 67 (AIR V 34) (D), the effect of disregard of Section 161(3), Cr. P.C. fell to be considered by various High Courts in several decisions. The trend of these decisions seems to be that the evidence of eye-witnesses whose statements were not recorded by the investigating officer is not inadmissible but should be disregarded. In this context, we may usefully refer to certain passages in-- 'W. Slaney v. State of M. P.' : 1956CriLJ291 , which furnishes the test to be adopted in cases of this type. At page 122 Bose J. observed as follows:
The real question is not whether a matter is expressed positively or is stated in negative terms but whether disregard of a particular provision amounts to 'substantial' denial of a trial as contemplated by the Code and understood by the comprehensive expression 'natural justice.
Again at page 123 it is pointed out by His Lordship that in cases where the Code had expressly indicated the result of the infringement of a mandatory provision the court is bound to give effect to the express commands of the Legislature and that the only class of cases in which the courts are free to reach a decision is for which no express provision is made.
9. At page 125 Chandrasekhasa Ayyar, J. has stated as to when the disregard or disobedience of a particular provision would be illegal, thus,-
Of course, lack of competency of jurisdiction, absence of a complaint by the proper person or authority specified, want of sanction prescribed as a condition precedent for a prosecution, in short, defects that strike at the very root of jurisdiction stand on a separate footing, and the proceedings taken in disregard or disobedience would be illegal.
The difficulty arises only when we have to consider the other provisions in the Code which regulate procedure and which are found in a mandatory form, positive or negative. It is in this class of cases that the distinction becomes important and material.
10. The present case falls under the second category of cases described by the learned Judge in the above passage. Undoubtedly, the provision of law which has been violated in this case is a mandatory one. What we have therefore to see is how far the infringement of Section 161(3), Cr. P.C. affects the trial in a case.
It is true the earlier view seems to have been that a breach of the provisions of Section 162, Cr. P.C. leads to the result contended for by the counsel for the appellants, as illustrated in--'Vishwanadh v, Emperor', 1936 Nag 249 (AIR V 23) (H) where Bose J. pointed out that the denial to the accused of his right to production of statements made by the prosecution witnesses to the police and reduced to writing ordinarily constituted an incurable illegality as the extent of the prejudice caused could not be gauged.
But having regard to tile later decisions of the same court and of the pronouncement of the Privy Council in 1947 PC 67 (AIR V 34) (D) and also of the latest ruling of the Supreme Court in : 1956CriLJ291 , the criterion seems to be whether substantial prejudice has been occasioned to the accused. If the breach of the mandatory provision is such as to occasion real and substantial prejudice to the accused, the trial could be said to be affected. If, on the other hand, that has not in any way resulted in prejudice to the accused, the trial could not be said to be vitiated.
In other words, the infringement of Section 161(3) could not be regarded as per se fatal to the trial. Supposing witnesses whose statements were not separately recorded during the investigation did not say anything that is quite material to the prosecution case and the exclusion of their testimony would not in any way affect the merits of the case, the breach of the provisions of Section 161(3) would not lead to the quashing of the conviction as it could not be said that the accused was in any way prejudiced or that the principles of natural justice were in any way| violated.
11. We will now turn to the two rulings which are supposed to embody conflicting views. In : AIR1955Mad303 the prosecution case rested mainly on the evidence of two witnesses and the conviction was based on their testimony. The investigating officer did not record the statement of each of them separately.
In that situation, it was pointed out by one of us that this omission to conform to the provisions of the section had resulted in great prejudice to the accused in that he had not the advantage of having the statement of the witness made at the earliest opportunity to test the veracity of these witnesses by cross-examining them with reference to the earlier statements.
The observation that it follows that the contravention of the section which is mandatory one is a serious irregularity which vitiates the trial must be understood in the light of the facts of that case. It was not meant to be laid down as a rigid and invariable rule that in every case of a breach of the provisions of Section 161(3) that the trial should be held to have been vitiated and that the decision was invalid and illegal.
One or two expressions in the judgment might lend colour to the supposition that the principle was stated widely. Bala Krishna Ayyar J. in : AIR1955Mad512 has stated that whether the failure to conform to the provisions of Section 161(3) would vitiate the trial or not must depend on the facts of each case. We are in agreement with this proposition.
We are not now concerned with the conclusions of the learned Judge in that case. In our opinion, the failure to observe the mandatory provisions of Section 161(3) would not ex hypothesi render the trial illegal unless and until substantial prejudice is disclosed.
12. It is most regrettable that in spite of courts stressing upon the necessity to conform to the mandatory provisions of Sections 161 and 162 of the Criminal Procedure Code, the investigating officers should persist in disregarding the important provisions of law and the warnings given by courts. As a result of the omission to conform to the provisions, very often, the guilty go unpunished and it leads often to waste of judicial time.
In several cases, this has been pointed out and yet no heed is paid by the investigating officers to this and they persist in violating the relevant provisions of law. We hope, the Government will take the necessary action and see that at least in future the investigating officers would act in accordance with the terms of Sections 161 and 162, Cr. P.C. and avoid much of waste of judicial time and also the acquittal of persons who, but for such violations complained of, would have been found guilty of one or other of the offences. A copy of this judgment will be communicated to Government for necessary action.
13. Applying the principles thus evolved to the present case, it is difficult to hold that the trial has been vitiated because the violation of the rule stated in Section 161(3), Cr. P.C. related only to one witness, namely, P. W. 6. The evidence of this witness has therefore to be excluded and that will not have any bearing, on a consideration of the testimony of other witnesses. There are also reasons why the evidence of this witness has to be rejected and that will be dealt with presently. We are then left with P. Ws. 2 and 8.
14-15. (After discussing the evidence of these witnesses their Lordships concluded as follows :) We have therefore reached the conclusion that the prosecution has not established that the occurrence took place in the manner alleged by them, and that they have not proved beyond a reasonable and substantial doubt that the 1st accused had stabbed the deceased and caused the injury to P. W. 3 and the 2nd accused hit P. W. 3 on the head with a stick. If some of the culprits escaped in this case, it is entirely due to the prosecution not coming forward with the real version of the occurrence on that morning.
16. In the result, the judgment under appeal is reversed and the appellants are acquitted and directed to be set at liberty. Their bail-bonds, if any, are cancelled.