Chandra Reddy, J.
1. On 23-3-1956, one Pedda Ranga Reddy of Chitrachedu village was murdered in his own house. Alleging that it was the eight appellants and nine others who committed the offence, the police of Teliki charge-sheeted them all for various offences. The Sessions Judge of Anantapur who tried them found only Accused 1 to 8 guilty of some offence and acquitted the Test.
Accused 1 to 8, the appellants before us, were convicted under Section 148 I. P. C., and sentenced to two years rigorous imprisonment. In addition, A-1 and A-2 were sentenced to death under Section 302 while the rest were found guilty under Section 302 read with Section 149 I. P. C., and given life imprisonment. The 3rd and 4th Accused were also convicted under Section 19 of the Indian Arms Act and sentenced to one year's rigorous imprisonment.
2. The facts of the case for the prosecution may be briefly stated ;
The village of Chitrachedu was torn by factions one headed by the deceased and his son P.W. 1 while A-l to A-S were the prominent members of other faction. In June, 1955, one Papireddy alias Papodu was murdered. In connection with that case, P.W. 1 and his paternal uncle China Ranga-reddy were put up for trial before the Sessions Judge of Anantapur. That case ended in acquittal. As a measure of retaliation, the murder in question was committed by the present accused.
On the fateful night the deceased and his son P.W. 1 were served food by their cook P.W.2 in the kitchen, after they walked into the hall adjoining the kitchen. The deceased was chewing betel leaves standing in front of an iron safe while his son P.W. 1, was getting up the stairs. P. W. 2 was standing at the door-way of the kitchen. A petromax light was burning in the hall. At that juncture, A-l to A-8 armed with deadly weapons rushed into the hall.
A-2 shouted 'What do you see still? Attack'. Immediately the 1st accused beat the deceased on the face with a sickle and A-2 struck him on the head, whereupon the deceased fell down and all the assailants surrounded the fallen man and began to beat him indiscriminately. After a while, the assailants looked at P.W. 1 who was standing on the stair-case. The latter became frightened, ran up the stairs, went into a room and bolted the door. Then he peeped into the hall through the sky-light and saw what was happening below. He found A-3 and A-4 standing with revolvers, and others attacking his father.
He also heard revolver shots and pelting of stones outside. After having accomplished their task, the assailants left the place. While going out, the second accused hurled the light at (he deceased saying 'You fellow Die,' and the light got broken. The inmates of the house were so terror-sticken that they did not stir out of the house. P. W. 15 the vil-lage-munsif of the place living 30 yards away from the scene of occurrence heard sounds of gun-shot from the direction of the deceased's house.
So, he got frightened and bolted himself inside. After two hours, ho sent for the 'talayari' and accompanied by the latter he went to the house of the deceased. P.W. 1 opened the door. The village mun sif saw the deceased lying dead with stab injuries all over the body and broken pieces of light. He recorded the statement of P.W. 1 in which accused 1 to 8 were named as the assailants. That statement is marked as Ex. P-l which is in these words:
'This night at about 8 : 00., my father, myself, Chinnappa and Boya Sanjappa took meals. When I ascended half of the stair case there was a cry 'What do you see still? Attack'. I turned back and saw (1) Jayarama Eeddy armed with a hand sickle (2) Bayanna with hand sickle (3) Musala Reddy with a revolver (5) Gaddain Adinarayana Reddy with a dagger (6) Ankala Reddy Garu Aswartha Reddy with a spear (7) China Hussain's son Girianpa with a spear and (8) Gerireddigaru Ramreddy with a spear. They all entered our house. My father L. Poddy Rauga-reddy was standing at the almyrah. All these persons came and stabbed and cut and killed him. When they all set upon me I put the bolt on the upstairs. There were shouts alround the house and shots of guns and revolvers were heard. I have read. It is correct.'
The village Murisif sent the report at about midnight to the police-station at Teliki and the S.S.M., at Gooty. The report to the police reached the station which is 8 miles from the village at about 3:00 A.M., on the 24th. while the Magistrate received it at about 1: 00 P.M.
3. The sub Inspector-in-charge of the station registered the case and proceeded to the village, got there at 6:30 A.M., seized various articles and started investigation. He held the inquest between 8.00 A. M., over the body, examined P. Ws. 1, 2 and Sanjappa and recorded their statements. Afterwards he recorded some more statements. He left for Rampuram and Kandlagudur to which some of the accused belong, to continue his investigation. Meanwhile, the Inspector of Police arrived at the village at about 3 ; 30 P.M., and took over the investigation. He examined P.Ws. 1 to 3 and some others. The Sub Inspector P.W. 17, came there at about 9 : 00 P.M. After, the completion of the investigation, the final charge-sheet was laid on the 25th of May, 1956.
4. The Prosecution case rests mainly on the evidence of P.Ws. 1 to 3. P.W. 1 deposed that after eating his food in the kitchen he and his father adjourned into the hall. While his father was taking the betel leaves and the nuts that were placed on an iron safe in the hall he was going up the stairs. A petromax light was burning in the hall. Hardly had he gone half the way when he heard sounds of 'Gaba Gaba' as if some people were rushing into the house from outside.
He turned back to see A-l to A-8 in the hall, A-l and A-2 armed with sickles A-3 and A-4 with revolvers, A-5 a dagger and A-6 to A-8 with spears. They all entered the hall. A-2 shouted. 'What do you see? Attack'. Taking this as a signal A-1 cut the deceased with his sickle on his forehead. A-2 hit him with the sickle on his head. The deceased fell down on the ground. Then A-7 looked at him and placed his foot in the dirction of the witness and other culprits also started at him.
So, he went upstairs and bolted the door of the stair-case. From that room, he heard sounds of the revolvet shots. He then looked into the hall from the sky-light and saw A-3 and A-4 standing with revolvers in their hands and A-l, A-2 and A-5 to A-8 striking the deceased with their weapons, He heaid sound of revolver shots and pelting of stones from outside After the deceased was killed, A-2 threw the petromax light by the side of the deceased shouting 'you fellow, die.'
5. This witness is sought to be corroborated by P. Ws. 2 and 3. P. W. 2 said that after giving food to his masters, P. W. 1 the deceased and one Sanjappa the farm-servant were standing at the doorway of the kitchen. The deceased was standing near the iron ahnyrah and taking betel leaves from the basket. P. W. 1 was ascending the steps to go upstairs. He then heard a noise coming from the front side of the house, and saw seven or eight persons entering the house of whom he could identify A-l to A-4 and A-7.
A-I and A-2 were armed with sickles. A-3 and A-4 with revolvers and A-7 with a spear. On the instigation of the 2nd accused, the 1st accused cut the deceased with a sickle on the forehead and the second accused struck him with his sickle on the head. The deceased then fell on the groand, At once, A-3 and A-4 fired a shot at the witness with his revolver. He hid himself behind the pots in the kitchen. Two more shots were fired into the kitchen.
He also heard the sounds of firing of guns and stone-pelting from Outside the house. The accused left the house after a little while. Then P. W. 1 asked Sanjappa from the sky-light whe-ther the assailants had left the place and the door was bolted. It is only or, the assurance given by Sanjappa that they had left the place that P W. 1 came down. After sometime the village Munsif came on the scene and took down the statement of P. W. 1 and he was present then.
The story given by P. Ws. 1 and 2 was confirmed by P. W. 3 the mother-in-law of China Rangareddy, the elder brother of the deceased. According to her, she could see as to what was happening in the hull through the crevices of the bamboo 'thattis' that separated the portion in which she was living with her daughter and son-in-law from that occupied by the deceased and his family. The plea of the accused was one of denial. They also added that P. W. 1 had induced P. Ws. 2 and 3 to give false evidence.
6. The Sessions Judge had accepted the testimony of P. Ws. 1 to 3 and convicted the appellants of the offences mentioned avove.
7.-13. The question for consideration in these appeals is whether the pro ecution has established beyond reasonable doubt that all or any of these appellants had participated in the crime that was committed on the night of 23rd March. This in its turn depends upon whether the testimony of P. Ws. 1 to 3 could be safely acted upon. (His Lordship then examined the evidence of those witnesses and dismissing it as untrustworthy procceded to state:)
14. We now come to another aspect of the case, viz., the manner in which the investigation was carried on by R. W. 17. This police officer deposed that he examined P.Ws. 1 and 2 and San-jappa at the inquest and reduced their statements to writing. It is complained that he had suppressed the statements of P. Ws. 1 and 2 and then copied the case-diary that was supplied to the accused.
The learned Sessions Judge slurred over this matter by observing that it might be that the Sub-Inspector copied the ca e-diary of the Inspector-in-charge so far as this witness was concerned, but no prejudice had really been occasioned to the accused for the reason that he had not reduced to writing the statements of P. Ws. 1 and 2. We cannot agree with the trial Court. There is no scope for the statement that the Sub-Inspector had not recorded the earlier statements of P. Ws. 1 and 2 in view of what the witness had said:
'In the ca e diary what the witnesses stated at the inquest. I wrote it as and when they stated at the inquest. I wrote it in English. The copies supplied to the accused are those of the statements recorded at the inquest.' The witness has testified to his having reduced to writing the statements of P. Ws, 1 and 2 in unmistakable terns. It is also clear as foun I by the Sessions Judge that the copies of statements supplied to the accuied were those which he copi d from the Inspector's case-diary. This has not been questioned even by the Public Prosecutor. There could be no doubt that he did so.
There is a reference to A-10 in the statement although admittedly at the time he recorded their statements only A-l to A-8 were said to have par-ticipated in the crime. There was no possibility of Kattubadi Girappa being referred to as A-10 in the statements recorded by P. W. 17 as at that time only eight persons were implicated in the crime. This Sub-Inspector also could not have written the statements now attributed to him having regard to his knowledge of English. For instance when he was asked to say what is the meaning of the word 'simultaneously' he said 'one after another'.
These various considerations lead us to the conclusion that he suppressed the statements of P. Ws. 1 and 2. There can be little doubt in this case that this has resulted in great prejudice to the accused, The accused were deprived of effective means of testing the truth of the statements of P, Ws. 1 and 2 with reference to their earlier statements. It is a valuable right which the legislature has chosen to center on the accused by enacting Section 162, Cr. P. C. If the earlier statements of the witnesses are not made available to the accused, they lose the opportunity of cross-examining the two witnesses in the light of what was stated, at the earliest opportunity.
14a. It is urged by the learned Public Prosecutor on the basis of W. Slaney v. State of Mudhya Pradesh, (S) : 1956CriLJ291 that a breach ot the provision of Section 162 does not necessarily involve prejudice to the accused and that prejudice cannot be assumed even in cases of denial of copies of statements under Section 162 or destruction thereof and it should be established that as a matter of fact prejudice has been caused by it. We cannot accept the proposition so stated. (S) AIR 1956 SC 116 (supra) has not belittled the consequences of the refusal of copies of those statements to the accused or destruction of them. The subject of inquiry there was the effect of the omission to an alternative charge under Section 302, I, P. C. i.e. whether such an omission is an illegality that cus at the root of conviction or a culpable irregularity. In dealing with that question Justice Bose made the following remarks on which reliance was placed by the Public Prosecutor:
'Except where there is something so vital as to cut at the root of jurisdiction or so abhorrent to what one might term natural justice, the matter resolves itself to a question of prejudice. Some violations of the Code will bo so obvious that they will speak for themselves as for example, a refusal to allow him to defend himself, a refusal to explain the nature of the charge to him and so forth.
These go to the foundations of natural justice and would be struck down as illegal forthwith. It hardly matters whether this is because prejudice ist then patent or because it is so abhorrent to well-established notions of natural justice that a trial of that kind is only a mockery of a trial and not of the kind envisaged by the laws of our land, because either way they would be struck down at once.
Other violations will not be so obvious and it may he possible to show that having regard to all that occurred no prejudice was occasioned or that there was no reasonable probability of prejudice, In still another class of case, the matter may be so near the border line that every slight evidence of a reasonable possibility of prejudice would swing the balance in favour of the accused.'
This passage has not the effect attributed to it. On the other hand, Chandrasekhara lyer J., who spoke for himself and Jagamiadha Das, J., with whom Bose J., agreed has observed referring to Pulukuri Kottayya v. Emperor, AIR 1947 PC 67, the defect was recognised to be a matter of gravity and if the statements had been completely destroyed or if there had been a total refusal to supply conies to the accused, the convictions were liable to be quashed. Thus even here the importance of the granting of copies of the . record made under Section 162 and the preservation thereof has been stressed.
15. In the context of this inquiry Baladin V. State of U. P. : 1956CriLJ345 , is relevant. This is what is stated by Sinha J., who delivered the opinion of the Court:
'Hence the lecord made bv a police investigating officer has to be considered by the Court only with a view to weighing the evidence actually adduced in Court. If the police record becomes suspect or unreliable as in the present case, on the ground that it was deliberately perfunctory or dishonest. It loses much of its value and the Court in judging the case of a particular accused has to weigh the evidence given against him in' Court keeping in view the fact that the earlier statements of witnesses as recorded by the police is tainted record and has not as great a value as it otherwise would have in weighing all the material on the record as against each individual accused.'
This principle enunciated in the passage does not in any way conflict with the rule embodied in Kotiah's' case, AIR 1947 PC 67 namely that where statements are not made available an inference which is almost irresistible arises of prejudice to the accused. His Lordship has pointed out earlier in the judgment that such statements are very valuable material for testing the veracity of the witnesses examined in Court, The circumstances in which the observations extracted above have been made should be remembered.
It was found that the officers concerned did not carry on the investigation honestly with a view to help the accused and the Sub-Inspector had not faithfully recorded the statements of the witnesses and purposely distorted their versions. There is no Indication in the report that their Lordships meant to strike a different note from Pulukuri Kotiah's case, AIR 1947 PC 67, the doctrine of which has been accepted by the Supreme Court also.
In Purushottam Jethanand v. State of Kutch, : AIR1954SC700 , it is laid down that the wholesale refusal to grant copies of statements made during investigation is a serious irregularity which would vitiate the entire trial as held by the Privy Council in AIR 1947 PC 67 at p. 69. Thus a deliberate destruction of -statements of witnesses made during investigation or wholesale refusal to furnish copies of such statements leads to the inference that prejudice was occasioned to the accused.
Even otherwise 'a slight evidence of a reasonable possibility of prejudice would swing the balance in favour of the accused', (in the words of Boso J., in Slancy's case, : 1956CriLJ291 . According to the accused P.Ws. 1 and 2 among others are false witnesses. P.W. 1 is a factionist and P.W. 2 his servant and they would be anxious to rope in as many of their enemies as possible and to ascribe a leading role to the prominent members of the opposite faction. It is therefore of utmost importance to know their earliest versions especially when the first information report is silent about P.W. 2.
It would have offered the accused with very valuable material to cross-examine those witnesses. Why were these documents suppressed? The obvious answer is that they were not favourable to the prosecution. In circumstances like this, it is open to a Court to presume that statements withheld would be unfavourable to prosecution if produced. At any rate, much value does not attach to the testimony of these witnesses in such a situation.
16. It is regrettable that in spite of repeated warnings against such practices and emphasising the need to carry on investigation honestly some or the investigating officers should still persist in such dubious methods. It is high time these officers realise that by destroying the recorded statements they are interfering with a fair trial. Such destruction is utterly repugnant to the principle underlying Section 162, Cr. P. C., and is incompatible with the claims of justice.
17. In this connection, we will do well to refer to the remarks of Nagpur High Court in Baliram Tikaram v. Emperor, AIR 1945 Nag 1, that the statements recorded by them either in the diary or separately in the course of investigation are not their property but constitute an important official record relating to an affair of State (Sea Baij Nath v. Mahomed Din, ILR 17 Lah 472 at p. 476: (AIR 1936 Lah 359 at pp. 360-361)), which is intended by law to be preserved for purposes of judicial trial. More often than not this strategy enables even guilty persons to escape.
18. There is another factor which cannot be overlooked, namely, the presence of a hat at the scene of occurrence. This seems to lend colour to the suggestion that the culprits disguised themselves so as to make their identity unknown to the inmates of the house and therefore the story of P.Ws. 1 to 3 that they could identify the assailants could not be acceptecf. Be that as it may, the infirmities pointed out in the evidence of the prosecution witnesses render it very unsafe for us to base a conviction thereon. We have, therefore, to hold that the appellants have not been established to be the persons that participated in the crime. Their appeals are allowed and they are directed to bo set at liberty.