1. There are four appellants in this Criminal ap-peal. All of them were convicted on two counts -- one under Section 148, I. P. C., and two under Section 302 read with Section 149, I. P. C. There were six accused originally in the Sessions Court of whom A-3 and A-4 were acquitted. The appellants are A-1, A-2, A-5 and A-6. The case arose out of the death of one Vippala Pamula Reddy, who was a resident of the village of Gummanampad in Guntur District.
The village was divided into two rival groups-- one led by the deceased and the other stated to be under the leadership of one Vajrala Peda Venkatareddy. On the morning of 4-5-1957 at about 6 a. m., the deceased was attacked while he went to ease himself into his yard, not far away from his house. A-1 and A-2 along with one China Venkatayya came to the yard carrying spears and proceeded towards the spot where Pamula Reddy was squatting.
Seeing them, the deceased got up and ran towards the east. But the pursuers cried 'Where are you going? Stop.' From the eastern side just then A-3, A-4, A-5, A-6 and one China Venkatareddy, also armed with spears, approached the deceased. So beset, the deceased tried to jump over the fencing on the southern side into the yard of Peda Appi-reddy but was caught in the fence.
Accused 3, 4, 5 and 6 and China Venkatareddy ran towards him and the last of them stabbed the deceased with a spear on the left side of the chest. As the deceased fell down, the 5th accused pierced him with the spear in his hand. Accused 1, 2 and China Venkatayya who by then reached the spot jumped over the fence and stabbed him too. Finally all surrounded the deceased and pierced him indiscriminately. One Mangamma is said to have intervened but was pushed aside by the 5th accused. This is in brief the prosecution account of the incident.
2. It may be mentioned that both China Venkatayya and China Venkatareddy were murdered and that A1 and A2 were manhandled on the very same day at about 11 a. m., it is said, by the members of the party of whom the deceased was the leader. Therefore there were only six accused before the Sessions Court and as already stated, A3 and A4 were acquitted.
The case against the appellants must stand or fall upon the evidence of P. Ws. 1 to 6. P. W. 1 is the brother of Lakshmidevemma, widow of the deceased and P. W. 7 in the case. He does not belong to the village but according to his version came there temporarily for medical treatment although he had not started taking any. P. W. 2 is a Harijan who is a farm-servant of the deceased. He also works at the residence of the deceased. P. W. 3 also a Harijan and is a cousin of P. W. 2, being his father's sister's son.
Further, P. W. 2's wife is his paternal uncle's daughter. He appears to be a farm-servant of Vajrala Venkata Reddy, an active member of Pamula Reddy's party, though at the trial he tried to deny that he was in Venkatareddy's service, and also the fact that he had informed the police that Venkatareddy is an active member of Pamulu Reddy's party. P. Ws. 4, 5 and 6 are members of the Yadava community and are related to one another.
P. W. 4 is the brother of P. W. 6 while P. W. 5 is the wife of Kotayya, another brother of theirs. They all admittedly reside in huts put up on a vacant site belonging to Venkatareddy who is a strong supporter of Pamula Reddy. They admit that they are in permissive occupation of the site and are liable to eviction, at the sweet will and pleasure of Venkatareddy.
3. Although the learned Sessions Judge was not prepared to act upon the evidence of these witnesses in so far as it concerned, A-3 and A-4 because they were not unanimous in implicating them, he felt however, that their evidence in so far as it related to the present appellants was acceptable.
4. Mr. Nagi Reddy for the appellants has not Only taken us through the evidence of these wit-nesses but has subjected it to searching criticism. In our opinion, there is considerable force in the contentions raised by him. Although it is true that there was a dastardly attack made upon the deceased at a time when he was unprotected and, perhaps by some of the accused, we have reached the conclusion that the prosecution has not proved beyond reasonable doubt that any of the appellants are guilty of the offences with which they are charged.
In the first place, as the statement above given indicates, all the principal witnesses are connected in some way or other with the group of whom the deceased was the leader; their evidence therefore cannot be free from trie suspicion that it is partisan. Then, the evidence of one of them i. e., P. W. 3 is to be altogether excluded from consideration, because the learned Sessions Judge himself was inclined to the view that the witness was not on the spot from the beginning Jo the end as claimed by him.
The learned Judge points out that his statement before the police compared with his evidence before the Court shows many omissions and discrepancies. The learned Judge seems to have been particularly impressed by the fact that although both China Venkatareddy and the 5th accused pierced the deceased in the presence of this witness, he did nothing to intervene or call for help.
The learned Public Prosecutor has also not seriously argued before us that this witness is worthy of credence. We are therefore left with the evidence of P. Ws. 1, 2, 4, 5 and 6. As regards P. Ws. 4, 5 and 6, too, the learned Judge has made the following remarks, although he eventually seems to have relied not only on P. Ws. 1 and 2 but also on P. Ws. 3, 4, 5 and 6.
'In regard to Accused-6, she (P. W. 4) had narrated that he was armed with a stout jungle-wood stick and had taken part in the beating with the same weapon (Exs. D-10 and D-11). It is difficult to reconcile her statement to the police with her statement before this Court. Similar is the case with P, Ws. 5 and 6 i. e., though they have deposed about the incident in some detail and in view of their residence in close vicinity, their presence on the spot can be presumed that their statement before the police have not tallied with the depositions before the Court.
The main items in divergence are in regard to the presence of certain accused, namely, accused 3 and 4. It has been hinted at the time of arguments that the fault lay somewhere else, namely, in the investigation agency, but nothing has been brought or record to substantiate it. In the absence of it, it is difficult to proceed on presumptions.'
In spite of these observations, the learned Judge summed up as follows:
'In the result, from the testimony of these six witnesses, the participation of the accused, barring accused 3 and 4, has been clearly established. I have a strong suspicion that accused 3 and 4 also were on the spot, but mere suspicion, however strong, can never be a ground for conviction.' Lower down in paragraph 13, the learned Judge observed thus:
'According to the First Information Report and the statements of P. Ws. 1 and 2, this man (Accused 3) was implicated in the commission of the crime and he was on the spot when the investigating officer arrived on the scene of offence. In spite of it, he did not take him into custody and subsequently he allowed him to abscond.
The explanation offered by him that he was not completely satisfied with his complicity lacks conviction. Anyhow, this is a matter, which will have to be looked into by his superior officers and as observed by me the result of the bungling on his part would naturally benefit the accused.'
It appears to us that it is not easy to reconcile the learned judge's earlier strong animadversions upon these witnesses with his final acceptance of their evidence against the appellants; nor does his criticism of the investigating officer's failure to arrest A-3 seem justified in view of his own earlier observations that 'nothing has been brought on record to substantiate any criticism of the investigation agency' in regard to the presence of A-3 and A-4 at the time of the incident. We shall refer to this matter again towards the end of our judgment.
5. (After discussing the evidence His Lordship concluded:) For the above reasons, we are clearly of the opinion that it would not be safe to act upon the evidence of these partisan witnesses, particularly when their evidence bristles with contradictions and improvements. In our opinion, the guilt of the appellants has not been established beyond all reasonable doubt.
6. Before we conclude, we would like to observe that there is no justification for the learned Sessions Judge's criticism of the conduct of P.W. 15 in regard to the 3rd accused. The learned Sessions Judge thought that the investigating officer's explanation for not arresting that accused although he was implicated in the commission of the crime by the statements of P. Ws. 1 and 2 and the first information report, is not satisfactory.
He wound up this discussion by observing that the witness 'allowed him to abscond' and concluded by observing that the 'matter ..... will have to be looked into by his superior Officers'. We think however that the officer is free from blame, It is true that the first information report and the statements of P. Ws. 1 and 2 implicate the 3rd Accused; but the police took also the statements of P. Ws. 3, 4, 5 and 6. P. W. 1, the police must have known, is a partisan witness and P. W. 2 is clearly a tool in the hands of P. W. 1 and P. W. 7, not to mention Nasara Reddy who, it is said, succeeded to the leadership of the party of Pamula Reddy after Pamula Reddy's death.
It must be remembered that Ex. P-l was given at the police station at Bommarajupalli which is stated to be 15 miles away at about 3 p. m. P. W. 1 admits that Nasarareddy followed him to the police station. China Venkatareddy and China Venkayya, two of the persons who are stated to have participated in the attack upon Pamula Reddy, were murdered, it is said, by about 11 a. m., that very day. Nasara Reddy was one of the accused in the Sessions Case which related to these murders.
So, a statement with which P.W. 1 and Nasara Reddy are associated after the police became aware of the retaliatory murders would naturally be liable to suspicion. In the circumstances, the police officers rightly wanted to have independent evidence about the names of the accused. The persons who claim to have been present at the scene i.e. P. Ws. 3, 4, 5 and 6 did not implicate A-3 although they were expressly asked by the police whether A-3 was there and even though P. Ws. 4, 5 and 6 are at the mercy of Venkatareddy who is also a permanent member of Pamula Reddy's party and who was accused in the other case.
The Police need not take into custody every person against whom allegations are made of complicity in a cognizable offence but are bound to be satisfied by their investigation as to whether there is any foundation for the allegation. In these circumstances, when the presence of A-3 was definitely denied by all the independent witnesses, the investigating officer cannot be said to have acted wrongly in not arresting A-3. In fact, P. W. 15 swears that the 3rd accused in his capacity as the village mun-sif was in the village all the time and was assisting him in the investigation of this offence for nearly 10 days. It is only from 14th May, 1957 that he is said to have been absconding. P. W. 15 says:
'I did not arrest him as I was not completely satisfied as to his complicity'.
The investigating officer further seems to have examined some witnesses in connection with the alibi pleaded by A-3. In these circumstances, the observations of the learned Sessions Judge relating to the investigating officer's inaction in regard to Accused No. 3 seems to us to be uncalled for.
7. Before leaving this case there is another point which we would like to mention for the guidance of police officers. We have found that in this case statements made by witnesses under Section 161 of the Criminal procedure Code were not recorded in the direct form of speech. To give an illustration, a statement of P. W. 4 is recorded thus:
'She did not observe the presence of P. Ws. 1 and 2 at the scene ..... She was definite that the V. M., and his brother-in-law Pulla Reddy were not at the scene'.
Now, Section 161(3) of the Code of Criminal Procedure requires that the police-officer who reduces into writing any statement made to him in the course of an examination under that section 'shall make a separate record of the statement of each such person whose statement he records'. Such a statement, if duly proved, may be used by the accused and under the amended Code by the prosecution for the purposes specified in these words in the proviso to Section 162 of the Criminal Procedure Code:
'When any witness is called for the prosecution in such enquiry or trial whose statement has been reduced into writing as aforesaid, any part of his statement ..... may be used ... to contradict such witness in the manner provided by Section 145 of the Indian Evidence Act, 1872 (I of 1872) and when any part of such statement is so used, any part thereof may also be used in the re-examination of such witness, but for the purpose only of explaining any matter referred to in his cross-examination'.
Now under Section 145 of the Indian Evidence Act,
'a witness may be cross-examined as to previous statements made by him in writing or reduced into writing ..... without such writing being shown to him, or being proved; but if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him.'
The cross-examination contemplated under Section 145 of the Evidence Act is with reference to previous statements of a witness contained in a record prepared by the witness himself or by another and the proviso to Section 162 of the Criminal Procedure Code uses the words 'whose statement has been reduced into writing' and 'any part 'of his statement'. It seems to us that there is clear indication in the language of these sections that the writing should be describable as a statement of the witness himself and further that it should be as nearly as possible a complete record of what he has said.
The writing should therefore be a record in the first person of the whole of the account he gives. If the statement is not in the first person, it would be scarcely appropriate to call it the statement of the witness himself. If it is not taken down as a whole, then a contradiction by way of omission may be wrongly established because the omission may have been made in recording it or an apparent contradiction capable of explanation by reference to another part may be rendered incapable of such explanation because that other part of the statement has been omitted in reducing it into writing.
8. It has no doubt been said in Bheemavarapu Subba Reddi v. Emperor, 1947 Mad WN Cri 37: (AIR 1948 Mad 23) that even after the amendment of Section 161(3) of the Criminal Procedure Code 'it is not the duty of the investigating officer to do more than record a gist of the statements made to him' and Bell J., proceeded to state :
'To require otherwise would paralyse any investigation of the kind which took place in this case'.
In making the observation the learned Judge however based himself upon the opinion of Mockett, J. in Guruva Vannan, In re, 1944 Mad WN 213: 1944 Mad WN Cr. 51: (AIR 1944 Mad 385) which was a decision rendered before Section 161 of the Criminal procedure Code was amended (as it now stands). Horwill J. who was also a party to the decision in 1947 Mad WN Cr. 37: (AIR 1948 Mad 23) pointed this out.
'Since that Judgment was pronounced, however, there has been an amendment of Section 161 Cr. P. C. and Mr. Jayarama Ayyar argues that it is now incumbent upon the police if they write anything at all during the course of their investigation, to record a verbatim statement'.
In turning down the argument so raised, the learned Judge opined that
'it does not seem that Section 161(3) was intended to make it incumbent upon the investigating officer to record a statement in greater detail than was the practice prior to the amendment'.
The learned Judge however does not make it clear whether the record so far as it goes is to be in the first or the third person.
9. A later decision of the Madras High Court of Govindarajachari and Mack JJ. in Subbarathnam, In re., 1949 Mad WN Cr. 9: (AIR 1949 Mad 663) has also been referred to in this connection. There Mack J., pointed out that 'if the case diary contains, as it should, the substance recorded separately of the statement by each witness to the police officer, the latter is under no obligation to preserve or produce any other record, rough or otherwise of such a statement'. The learned Judge did not discuss the question as to the form in which statements taken under Section 161(3) of the Criminal Procedure Code should be recorded. Govindarajachari J., observed as follows:
'It is no doubt not imperative on the investigating officer to record the statement of a person examined by him under Section 161. But if he records the statement, it is clear that it must be preserved. This is implicit in the right accorded to the accused of obtaining a copy of it. The statement need not be taken down verbatim. The investigating officer need do no more than record a gist of the statements made to him (See 1944 Mad WN 213: 1944 Mad WN Cr. 51: (AIR 1944 Mad 385)). But on the clear language of Section 161(3) itself the statement of each person must be separately recorded.
The reason is obvious. For the purpose of contradicting a witness by a previous statement of his, a condensation of what he and others said will be of little practical value. It is also extremely doubtful whether such an abstract can be described as a previous statement of the witness reduced to writing within the language of Section 145 of the Evidence Act'.
It would seem that the attention of Govindaraja-chari J., was not drawn to the fact that there was a change in the language of the Code effected since the decision in 1944 Mad WN 213: 1944 Mad WN Cr. 51: (AIR 1944 Mad 385).
10. We are in agreement with the view of Horwill J., that 'it is difficult to believe that the Legislature intended by this amendment that an investigating officer should record a statement of every person examined with the same meticulous care as a court records a deposition; for that would be losing sight of the principal purposes of an investigation, which are to detect the offence, arrest the accused and to file a chargesheet before a competent Court'.
But, we however think that there is a difference between mere information which a police officer may receive in the course of his investigation such as, for instance, relating to the movements of the accused person, the addresses of the persons likely to be acquainted with the facts and circumstances of the case etc., and statements made to him by persons who are almost certain later to figure as witnesses for the prosecution.
While it would not be proper that the Investigating Officer should be saddled with the responsibility of noting down every statement made to him during the course of the investigation, it would not he equally proper, in our opinion, that he should fail to take down the statements of persons who are bound to appear as important witnesses for the prosecution. The discretion vested in the investigating officer to record or not to record is in aid of this legislative purpose viz., that while there should be no obligation upon him to note down everything, he should, in the bona fide discharge of his duties, record statements of persons who are likely to be examined as principal witnesses for the prosecution.
The word 'may' is used in order to enable him to exercise this very necessary discretion. It is not to he understood as conferring on the officer a sort of privilege which may run to the length of absolving him from the task of recording any statement of any witness. It is only a discretion, and properly exercised by an honest investigating officer, it should lead to no difficulty. It is calculated to help both the prosecution as well as the accused, that is to say, to ensure that a criminal trial is fair alike to both the parties.
11. We think that the procedure adopted in the present case is rot warranted by the Code and one likely to affect the usefulness of Section 162 of the Criminal Procedure Code. We trust that appropriate directions will be given to the officers investigating into crimes that, as far as possible, the very words of the persons examined by them under Section 161 Cr. P. C., must be taken down when such statements are considered important enough to be reduced into writing.
12. In the result, the appeal is allowed andthe appellants are acquitted and they are directedto be set at liberty forthwith.