Chandra Reddy, J.
1. The petitioners, eight in number, have been convicted for various offences by the Stationary Sub-Magistrate, Pulivendla; arid sentenced to pay varing amounts of fines. All the accused have been convicted under Section 147, I.P.C. aCT cussed 1 is sentenced to pay a fine of Rs. 50 and the others to a fine of Rs. 30. In addition, accused 1 and 8 were convicted under Section 427 and sentence ed to pay a fine of Rs. 100 and Rs. 50 respectively. Accused 6 and 7 were also convicted under Section 342 and sentenced to pay a fine of Rs. 20 each under that section. Accused I was besides sentenced to imprisonment till the rising of the Court under Section 457, I. P. C. On appeal, these convictions and sentences were confirmed by the Sub-Divisional Magistrate of Cuddappah.
2. The prosecution case is that in pursuance of a common object of causing damage to an oil engine belonging to. P. W. 1, they trespassed into the shed wherein the engine was installed, and with the aid of a crow-bar smashed the engine removed some parts therefrom, after threatening, P. Ws. 2 and 3, who were watching the shed, with violence if they should raise an alarm. The plea of the accused was one of denial.
3. The prosecution case rests mainly on the evidence of P. Ws. 2 and 3 who were keeping watch that night at the shed. The Stationary Sub-Magistrate relied on the testimony of these two witnesses and found the petitioners guilty of the offences with which they were charged. This was confirmed on appeal by the Sub-Divisional Magistrate of Cuddapah. The accused have preferred this revision petition.
4. In support of this petition, it is urged by Mr. Chinnappa Reddy that the investigating officer who recorded the statements of the witnesses has violated the mandatory provisions of Section 161 (3), Cr. P. C., by not recording the statement of each of the witnesses separately and that has vitiated the whole trial. There seems to be substance in this contention of the learned counsel. Section 161(3) provides that 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 person whose statement he records. It is clear from this sub-section that a police officer is not obliged to reduce into writing the statement of every witness he examines, but when he does it he should make a separate record of the statement. This does not mean that he should take down the statement verbatim, but it seems to me that it is essential that he should make a separate record of the statement of every one of the witnesses and it is not sufficient for him to say that one witness corroborates the other.
5. As has been pointed out by a Bench of this court in -- 'Subba Reddi in re AIR 1948 Mad 22 (A) this sub-section which was introduced by an amendment in 1948 was designed to him at the practice of writing against the names of certain persons after the first that they corroborated the statements of earlier witnesses. The object of the amendment was to stop this practice. The investigating officers have to strictly follow the procedure laid down in that sub-section. Omission to conform to the provisions of this provision will result really in prejudice to the accused in that he would not have the advantage of having the statements of the witnesses made at the earliest opportunity in order to enable him to have the veracity of these witnesses tested and the evidence of such witnesses cannot form the basis Of conviction. The principle laid down in --'Venkataratnam v. State', 1951 MWN 82 (B), and -- 'Narayana Reddi V. State', : AIR1952Mad821 (C), is to the same effect. It follows that contravention of this section, which is a mandatory one, is a serious Irregularity which vitiates the whole trial. In this case, it is admitted by the Sub-Inspector of Police who held the Investigation that he has merely recorded that P. W. 3 corroborated P. W. 2. This admission has rendered the whole evidence a tainted one with the result that the convictions and sentences of the petitioners which We based on such evidence have to be set aside.
6. The result is, the petition is allowed, and the convictions and sentences of the petitioners are set aside. The fines, if paid, will be refunded to the petitioners.