Obul Reddi, J.
1. Criminal Appeal No. 731 of 70 preferred by A-2, A-3, A-4, A-5, A-6, and A-8 is directed against the judgment of the Additional Sessions Judge. Srikakulam in Sessions Case No. 44 of 1970 convicting them under Sections 147 and 323 I.P.C. and sentencing each of them to six months' rigorous imprisonment under each count and further convicting A-2 under Section 448 I.P.C. and sentencing him to six months' rigorous imprisonment. The sentences awarded to the accused are directed to run concurrently. The Criminal Revision Case No. 304 of 71 is preferred by P.W. 1 assailing the judgment of the Court below in acquitting A-1 and A-7 and in dismissing the petition filed on behalf of the prosecution to summon certain records from the Hospital for the purpose of cross-examining D.W. 1.
2. The relevant facts of the case are these: The case against the appellants and A-1 and A-7 and another was that they formed themselves into an unlawful assembly with the common object of causing the death of Tankala Ramanavva P.W. 1 and in furtherance thereof, committed rioting and caused hurt to P.W. 1 and. in the same course of the transaction, committed criminal trespass by entering the house of P.W. 1, A-2, A-3, A-4, A-5, A-6, A-7, A-8 and another (absconding) were further charged with having attempted to commit murder of P.W. 1.
3. The occurrence took place under the following circumstances. P.W. 1 is one of the partners of a lorry service A few months prior to the occurrence. A-5, A-7 and one of the brothers of A-1 opened a rival lorry supply office and employed A-2 in their office. The rivalry in the lorry transport business is said to have led to the incident on 10.1.1969. The first accused is stated to have instigated the other accused to beat P.W. 1 to death. At the instance of A-1 A-2 and the absconding accused went to the lorry service office of P.W. 1. dragged him out and fisted him on his back and neck. The 3rd accused hit him with a stick followed by A-2 and A-4 who beat him with sticks on his legs and other parts of the body. When P.W. 1 tried to escape. A-1 pushed him into the crowd and A-5 held his arm and fisted him on his back A-7 slapped him and A-2 pushed him down by neck. With that P.W. 1 fell down. After he fell down A-2 to A-9 beat P.W. 1 indiscriminately till he became unconscious. The accused went away being under the impression that P.W. 1 was dead. P.W. 1 was then removed by his brother to the local hospital. The medical officer found on P.W. I eighteen injuries out of which seventeen were contusions and one abrasion. P.W. 15 the Sub-Inspector who registered the crime laid the charge-sheet in the court of the Judicial First Class Magistrate, who committed the accused to be tried by the Court of Session.
4. The learned Additional Sessions Judge, on a consideration of the evidence, acquitted A-1 and A-7 and convicted and sentenced the other accused as stated above.
5. Mr. K.V. Ramasarma appearing for the appellants among other contentions out forth by him strenuously contended that the statements recorded by the investigating Officer from the witnesses in Telugu, except that of P.W. 3. under Section 161(3) Cr.P.C. were not made available to the accused that some typewritten statements in English said to be the translations of the original statements in Telugu were furnished to them and that this failure on the earth of the investigating Officer to make available the original statements recorded from the witnesses in Telugu has materially prejudiced the case of the defence, for there is nothing in the evidence of the investigating officer to indicate that, the type-written statements in English are the true translations from the originals, more so when the investigating officer has clearly admitted that he does not know typewriting and that he recorded the statements of the witnesses, except that of P.W. 3 in Telugu.
6. It is therefore, to be considered whether the failure on the Dart of the investigating officer to make available the original statement recorded by him in Telugu has occasioned prejudice to the accused so as to entitle them to an acquittal.
7. Sub-Section (4) of Section 173 Cr.P.C. enjoins upon the investigating officer, before the commencement of the trial, to furnish to the accused, free of cost, a copy of the report forwarded under Sub-Section (1) and of the first information report recorded under Section 154 and of all other documents or relevant extracts thereof, on which the prosecution proposes to rely. including the statements and confessions, if any recorded under Section 164 and the statements recorded under Sub-section (3) of the Section 161 of all the persons whom the prosecution proposes to examine as its witnesses. The object of this Sub-Section is to enable the accused persons to formulate their defence and cross examine the witnesses with reference to the statements recorded from them under Sub-Section (3) of Section 161 Cr.P.C. That is the reason why a statutory duty is cast upon the prosecution under Sub-Section (4) of Section 173 Cr.P.C. to furnish to the accused before the commencement of the inquiry or trial, copies of statements recorded under Sub-section (3) of Section 161 of all the persons whom the prosecution Proposes to Put in the witness box. This provision prohibits the prosecution to spring a surprise on the accused by bringing into the witness box a witness, bringing into the witness box a witness. whose statement has not been furnished and who has not been examined during the course of investigation.
8. It is no doubt true that mere non-compliance with the requirements of Sub-section (4) of Section 173 Cr.P.C. does not vitiate the proceedings or trial or render them ineffective but it to be seen having regard to tine facts and circumstances of each case whether the failure on the part of the investigating officer to make available the original statements recorded even for the purposes of ascertainment of the correctness of the translations as in this case occasions prejudice to the accused. Ultimately the question is one of prejudice.
9. Sir John Beaumont, in the well known case of Pulukuri Kotavva v. Emperor AIR 1947 P.C. 67 = (1947) 48 Cri LJ 533. observed that where the statements were never made available to the accused an inference which is almost irresistible, arises of prejudice to the accused.
10. That was a case where the Sub-Inspector examined certain witnesses and on the same day the Circle Inspector re-examined the same witnesses. The notes of the examination by the Circle Inspector were made available to the accused at the earliest opportunity. The dote book of the Police Sub-Inspector which was produced at the end of the prosecution case was made available to the counsel for the accused to ascertain whether there was any inconsistency between the statements made to the Police Sub-Inspector and those made later in the day to the Circle Inspector. In the peculiar circumstances of that case, it was held that no prejudice was occasioned to the accused by the failure to produce in proper time the note book of the Sub-Inspector, But the instant case is one where the original statements recorded from the witnesses in Telugu were never made available to the accused to see if the typewritten translations furnished in English tallied with the statements recorded in the first instance in Telugu.
11. P.W. 15 was the investigating officer (Sub-Inspector of Police) at the relevant time at Ichapuram. He admitted that he does not know type-writing but yet the entire case diary is two written. He recorded the statements of all the witnesses, except that of P.W. 3 in Telugu. He admitted that they are not in the C.D. file. They will be available in the Police station. The copies of the statements recorded in Telugu are not furnished to the accused or to the court. The despatch register of the Police Station does not show that the C.D. statements recorded by me on 11.1.1969 were sent to the C.I. I filed III Form.
12. It is thus manifest, on his own showing, that the statements recorded by him (the Sub-Inspector) in Telugu never formed Part of the case diary filed into court nor is there anything to show from the despatch register of his Police station that the statements were sent to the Inspector of Police. The Inspector of Police has not been examined in this case nor has any person connected with the translation of the Telugu statements into English and typing them been examined. The investigating officer does not even seem to know who translated them into English and typed them. The Public Prosecutor was asked to find out even at this last stage, whether the statements recorded by the Sub-Inspector in Telugu under Sub-section (3) of Section 161 Cr.P.C could be made available to the Court for ascertaining whether the typewritten statements accord with the statements made by the witnesses in Telugu. The Public Prosecutor informed the Court that he has been instructed to say that at this distance of time, they are not available as they were destroyed after the conclusion of the trial. I am unable to understand how the case diary in Telugu which the Sub-Inspector could not even vouch having despatched from his police Station to the Inspector of Police, could be said to have been destroyed when an appeal is pending in this Court.
13. The evidence of the Sub-Inspector leads me to the conclusion that it is a case of deliberate suppression of the statements of the witnesses recorded by I him in the course of investigation and that this suppression of the statements has occasioned prejudice to the accused. The accused were denied the opportunity to property formulate their defence with reference to the statements and a valuable right to cross-examine the witnesses under Section 145 of the Evidence Act.
14. I am therefore, of the view that it is not a case of mere irregularity to say that it is curable under Section 537 Cr.P.C. but a case which has resulted in substantial prejudice to the accused. In this view, it is not necessary for me to so into the merits of the case, as on this ground alone the accused are entitled to acquittal. The appeal preferred by A-2 to A-6 and A-8 is allowed. For the same reasons, the revision preferred by P.W. 1 is dismissed.