TMI Blog1963 (8) TMI 70X X X X Extracts X X X X X X X X Extracts X X X X ..... s brothers claimed the well to be their exclusive property, and there were several court proceedings about this dispute. It was the case for the prosecution that on September 29, 1960 at about 2-00 p.m. Noor Khan accompanied by his father Samdu Khan and eight others went to Pratap's field (in which there was a farm, a house, a stable and the disputed well) and called upon Pratap to deliver possession of the well and on the latter declining to do so, Samdu Khan fired a muzzle-loading gun at Ganesh - brother of Pratap - but missed him. Noor Khan then fired at Pratap and killed him instantaneously. The other members of the party of Noor Khan at the instigation of Samdu Khan thereafter beat Ganesh, Prabhu, Mohan and Gulab - brothers of Pratap - with sticks and other weapons and caused them injuries. After the assailants retired, Ganesh lodged a complaint against 15 persons including Noor Khan and Samdu Khan at the police station, Bali. Ten out of those who were named in the complaint were arrested and tried before the Court of Session, Sirohi. The Sessions Judge acquitted all the accused holding that the story that there was an unlawful assembly of ten or more persons who went to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the statements of the eye witnesses at the trial and the first information on the question as to who, out of the two persons Samdu Khan and the appellant Noor Khan, fired first, the substantial case of the prosecution remained unaffected thereby, for each of the four eye-witnesses Ganesh, Prabhu, Mohan and Gulab had marks of injuries the duration of which when examined by Dr. Mehta tallied with their story and the presence of the injuries lent assurance to their testimony that they were present at the occurrence, and the absence of independent witnesses was not by itself a sufficient ground for discarding the testimony of the witnesses who claimed to have seen the assault on Pratap. Relying upon the testimony of Mst. Bhanwari supported by the testimony of Mohan Singh and Mst. Mathura the High Court held that the fatal injury to Pratap was caused by the appellant with a gun fired from a distance of about 4 ft. from the body of Pratap. 6. The appeal before the High Court was one against an order of acquittal. But as explained by the Judicial Committee of the Privy Council in Sheo Swarup and others v. King Emperor L.R. 61 IndAp 398. : Ss. 417, 418 and 423 of the Code give to the H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e from which the gun which caused the fatal injury to Pratap was fired was estimated by the witnesses at not less than 20 fit, whereas Dr. Mehta deposed that the gun was fired from a distance of only 4 ft. and (iv) that the accused Noor Khan and others were deprived of the benefit of having access to the police statements recorded under s. 161 Code of Criminal Procedure. 9. The circumstance that two persons Narpat Singh and Pratap Singh were alleged in the first information to be members of the party which arrived at the scene of offence in company of Noor Khan and Samdu Khan, is one which may required the Court to scrutinize the testimony of Ganesh the informant with great care. But the High Court in arriving at its conclusion did not rely upon the testimony of Ganesh; that testimony was wholly discarded, and nothing more need be said about that testimony. Inclusion of names of Narpat Singh and Pratap Singh as members of the party of Noor Khan in the first information lodged at the police station does not, however, throw any doubt upon the testimony of other witnesses who did not attempt to involve them in the commission of the offence. The Sessions Judge also held that two ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ently point out, the estimate given by the witnesses, examined in the light of the topography and the circumstances in which the assault took place, will not warrant undue importance being attached to the estimates of illiterate and seamy-literate villagers. The judgment of the Sessions Judge suffers from the infirmity that without attempting to concentrate his attention on the evidence of witnesses in the light of certain fixed positions on the scene of offence, and without attempting to secure a scale map, he discarded the story of the witnesses because of the discrepancy in the estimate of distances stated in terms of poundas. There were at the scene of offence, certain fixed objects such as the Peeple tree, the Ora (room), dhalia (stable), phalsa (opening in the hedge), well and chabutra (platform). If the evidence of the witnesses is examined in the light not exclusively of estimates of witnesses about the distance, which especially in the case of illiterate or semi-literate witnesses is notoriously unreliable, we have no doubt that the conclusion which the Session Judge was persuaded to reach cannon be accepted. 12. The estimate of the witnesses about the distance from whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he accused persons had come to the rear of the peepal tree. Every witness has deposed that Pratap was sitting at a distance of a pace from the Ora wall facing soul in which direction the peepal tree stood. This analysis of the evidence shows that Noor Khan fired, his gun from a point south of the Ora, somewhere near the peepal tree, at Pratap who was sitting at a distance of about 2 ft. from the wall of the Ora. The High Court accepted the testimony of Mst. Bhanwari corroborated by the testimony of Mst. Mathura and Mohan Singh and has come to the conclusion that these three witnesses have deposed to state of affairs which is consistent with the medical testimony. This is not to say that the testimony of other eye-witnesses is untrue, but it only discloses a faulty estimate of the distance given by illiterate villagers. 13. But the most important defect in the trial which, it was urged by Mr. Purshottam appearing on behalf of the appellant, vitiates the order of conviction is that the accused persons were deprived of the right to obtain and use copies of the statements made by the witnesses before the investigating officer Hari Singh who stated that he had made 'jottings' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate record of the statements of each such person whose statement the records. Section 162 of the Code as amended by the Criminal Procedure Code (Amendment) Act 26 of 1955 provides : No statement made by any person to a police officer in the course of an investigation under this Chapter shall, if reduced into writing, be singed by the person making it; nor shall any such statement or any record thereof, whether in a police diary or otherwise, or any part of such statement or record, be used for any purpose (save as hereinafter provided) at any inquiry or trial in respect of any offence under investigation at the time when such statement was made : 15. By the proviso it is enacted that when a witness is called for the prosecution in such inquiry or trial, whose statement has been reduced into writing as aforesaid, any part of his statement, if duly proved, may be used by the accused, and with the permission of the Court, by the prosecution to contradict such witnesses. 16. Section 173 of the Code by sub-section (4) as amended by Act 26, 1955 provides that the officer in charge of the police station shall, before the commencement of the inquiry or trial, furnish or cause to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... try a case, not is the failure by itself a ground which affects the power of the Court to record a conviction, if the evidence warrants such a course. The provision relating to the making of copes of statements recorded in the course of investigation is undoubtedly of great importance, but the breach thereof must be considered in the light of the prejudice caused to the accused by reason of its breach. for s. 537 Code of Criminal Procedure provides, amongst other things, that subject to he provisions contained in the Code no finding, sentence or order passed by a Court of competence jurisdiction shall be reversed or altered an account of any error, omission or irregularity in the complaint, summons, warrant proclamation, order judgment or other proceedings before or during trial or in any inquiry or other proceedings under this Code, unless such error, omission, irregularity or misdirection has in fact occasioned a failure of justice. By the explanation to s. 537 it is provided that in determining whether any error, omission or irregularity in any proceeding under this Code has occasioned a failure of justice, the Court shall have regard to the fact whether the objection could and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be received with extreme caution and the Court would be entitled in a suitable case even to ignore altogether such evidence, but the evidence is not inadmissible and every case must be decided on its own facts. 20. These cases were decided before the Code of Criminal Procedure was amended by Act 26 of 1955, but on the question raised by counsel there is no material difference made by the amended provision. After the amendment of the Code in 1955, it is the duty of the investigating officer in every case where investigation has been held under Ch. XIV to supply to the accused copies of the statement of witnesses proposed to be examined at the trial. Under the Code before it was amended, it was for the Court when a request was made in that behalf to supply to the accused statement of each witnesses when he was called for examination. The effect of the breach of the provisions of s. 207A and s. 173 Code of Criminal Procedure was considered by this Court in Narayan Rao v. State of Andhra Pradesh 1957CriLJ1320 and it was held that failure to comply with the provisions of s. 173(4) and s. 207A(3) is merely an irregularity which does not affect the validity of the trial. It was observe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t nearly always be the case, a breach of one or more of the very comprehensive provisions of the Code. In dealing with result of failure to supply copies of statements recorded under s. 161 Code of Criminal Procedure, the Judicial Committee observed in Pulukuri Kotayya's case L.R. 74 IndAp 65. : 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 s. 162 as matter of gravity A.I.R. 1945 Nag. 1 where the record of statements made by witnesses had been destroyed, and 53 All 458, where the Court had refused to supply to the accused copies of statement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contradictions, were, it appears, primarily as to the presence of Harpat Singh and Pratap Singh whose names were mentioned in the first information by witness Ganesh, and against whom no charge-sheet was filed and as to some matters not of much importance, such as the acts and conduct of persons other than Noor Khan the appellant in this appeal. For instance, Prabhu denied that he had stated that Prabhu Singh and Sohan Singh were eye witnesses to the assault. Mst. Mathura denied that she had stated that the accused had 'indecently abused and threatened Ganesh and Pratap to leave the well otherwise they would kill them,' and a similar denial was made by Mst. Bhanwari. The contradiction in the statement of Prabhu related to some proceedings in Court arising out of the disputes relating to the well. It is of course very unsatisfactory that the notes, or the 'jottings' as they are called, of the statements made by the witnesses before Hari Singh were not available to the accused because they were destroyed by him and what were made available to the accused were not in truth the statements which could be utilized under s. 162 Code of Criminal Procedure. For this unsatisf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al infirmity in the reasoning of that court. 27. We may repeat that the provisions of s. 162 Code of Criminal Procedure provide valuable safeguard to the accused and denial thereof may be justified only in exceptional circumstances. The provisions relating to the record of the statements of the witnesses and the supply of copes to the accused so that they may be utilised at the trial for effectively defending himself cannot normally be permitted to be whittled down, and where the circumstances are such that the Court may reasonably infer that prejudice has resulted to the accused from the failure to supply the statements recorded under s. 161 the Court would be justified in directing that the conviction be set aside and in a proper case to direct that the defect be rectified in such manner as the circumstances may warrant. It is only where the Court is satisfied, having regard to the manner in which the case has been conducted and the attitude adopted by the accused in relation to the defect, that no prejudice has resulted to the accused that the Court would, notwithstanding the breach of the statutory provisions, be justified in maintaining the conviction. This, in our judgment ..... 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