1. The six appellants were tried by the Sessions Judge of Chittor for offences under Sections 147, 148, 333, 342, 365, 307 and 302 read with Section 149 I. P. C. The first accused was charged directly with murder but was acquitted of the said offence but convicted under Section 304 I. P. C. Similarly, the second accused was acquitted under Section 307 L P. C. but convicted under Section 324, I. P. C. Accused 1 to 3 were also convicted under s. 148 I. P. C. and accused 4 to 6 under Section 147,1. P. C. Accused 1 to 5 were convicted under Section 365, I. P. C. and accused 1 to 6 were convicted under Section 342, I.P.C. such of the other accused who were not directly charged were convicted constructively for offences for which the other accused were convicted under the direct charge. They were sentenced to varying terms of imprisonment from six months to three years, the sentences were ordered to run concurrently.
2. On the 22nd of December 1949, at about 4 p. M., there was undoubtedly a rioting at Regulavaripalle, in the course of which one Kuntadu was shot dead. The rioting itself was in connection with the wrongful confinement of one Lingayya who has been examined as F. W. 6 in this case. On receipt of information the police went to the spot and there the Sub-Inspector held the inquest over the body of the deceased, He says in his evidence that he examined P.Ws. 6 to 9 and others as per the inquest report. I find the above witnesses and P. W. 10 who was also examined at the inquest are eye witnesses to the occurrence. The Sub-Inspector made short notes, to use his own words, 'of inquest evidence' and he says in evidence that the notes have bean destroyed by him by his own authority even before the Circle Inspector arrived. The result is that the earliest statements made by these important eye witnesses have not been made available to the accused. The learned Judge in paragraph 18 of his judgment says 'It is true that P. W. 13 (Sub-Inspector who held the inquest) destroyed the short notes of inquest evidence made by him. But the inquest report refers to that evidence and is attested by Panchayatdars who heard that evidence. The case diary maintained by P. W. 13 is intact and no portion of it has been destroyed.' The Circle Inspector came the day after the inquest was held by the Sub-Inspector. There is no doubt that he examined these witnesses and prepared the case diary. But there is nothing to show that these statements were the same that were made earlier at the inquest. The destruction of the notes by the Sub-Inspector has obviously rendered it impossible for the Circle Inspector to verify that what they stated before him was the same as they stated before Sub-Inspector.
3. The learned counsel for the appellants comments on this and contends that the deprivation of the earlier statements has resulted in prejudice to the accused and relied on the decision of the Privy Council reported in 'P. Kotayya v. Emperor' I.L.R. (1948) Mad 1 where their Lordships observed as follows:
'It is clear from the facts narrated above that there was a breach of the proviso to Section 162, Criminal P. C., and that the entries in the Police Sub-Inspector's note-book were not made available to the accused, as they should have been, for the cross-examination of the witnesses for the crown. 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 break down 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' I.L.R. (1945) Nag 151 where the record of statements made by witnesses had been destroyed, and 'Emperor v. Bansidhar', 53 All 458 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.'
In this case these statements were never made available to the accused and therefore an irresistible inference arises that prejudice has been caused to the accused. I have also pointed out in 'Chinna Lingappa v. State', 1951 Mad W N Cr. 15 how the denial of these statements to the accused results in the exclusion of evidence which could be used by him under Section 145 of the Evidence Act. The accused in this case cannot therefore be said to have had a fair trial and the convictions and sentences must be set aside. I would nave ordered a retrial if at least the statements could be made available; but as the Sub-Inspector says he has destroyed them, those statements will not be available. Therefore, no useful purpose will be served by ordering a retrial. The accused are therefore acquitted.
4. In this case if the accused are acquitted, Itis not because they have been found to be innocent but because of the 'destruction' of the notes of'inquest evidence', which constitutes a flagrantviolation of the mandatory provisions of Section 182, Criminal P. C. In the circumstances, it cannot besaid that the accused had a fair trial. It is necessary that the investigating officers should be warned against committing such breach of the provisionsof Section 162, Criminal P. C. This is the second or thirdcase in which I came across such violations of Section 162,Criminal P. C. It is high time that this is put anend to. A copy of this judgment will be forwardedto the T. G. of Police.