Tilkeshwar Singh & Ors Vs. The
State of Bihar  INSC 71 (8 December 1955)
AIYYAR, T.L. VENKATARAMA BOSE, VIVIAN AIYAR,
CITATION: 1956 AIR 238 1955 SCR (2)1043
Evidence--Joint recording of statements made
by witnesses during investigation-Legality-Testimony of such witnesses in
court-Admissibility-Substitution of a charge under s. 149, I.P.C. for one under
s. 34, I.P.C.-Validity-Accused filing statement instead of being examined in
court-LegalityPrejudice-Code of Criminal Procedure, (Act V of 1898), ss. 1
61(3), 342-Indian Penal Code (Act XLV of 1860), ss. 34, 149.
Although the joint recording of statements
made by witnesses during an investigation is a contravention of s. 161(3) of
the Code of Criminal Procedure and must be disapproved, that by itself does not
render the testimony given by such witnesses in court inadmissible. It is,
however, for the court to decide whether it will rely on such testimony or
attach any weight to it.
Zahiruddin v. Emperor, (A.I.R. 1947 P.C. 75),
Baliram Tikaram v. Emperor, (A.I.R. 1945 Nag.
1) and Maganlal Radhakishan v. Emperor, (A.I.R. 1946 Nag. 173), disapproved.
Bejoy Chand Patra v. The State, (A.I.R. 1950
Cal. 363), approved.
The court has power to substitute a charge
under s. 149 of the Indian Penal Code for a charge under s. 34.
Karnail Singh and others v. The State of
Punjab, ( S.C.R. 904)and Willie Slaney's case, (Criminal Appeal No. 6 of
1955), referred to.
Although s. 342 of the Code of Criminal
Procedure contemplates oral examination of the accused in court and though the
practice of filing written statements is to be deprecated, the fact that the
accused filed a statement instead of being examined is no ground for
interference unless he is shown to have been prejudiced thereby.
Consequently, in a case where the accused
were put up for trial under s. 302 read with s. 34 of the Indian Penal Code,
and the Additional Sessions Judge relying on the evidence of three of the
prosecution witnesses whose statements during the investigation were recorded
jointly in contravention of s. 161(3) of the Code of Criminal Procedure,
convicted and sentenced them to transportation for life and the High Court in
appeal agreed with the findings of fact, but altered the conviction to one
under s. 326 read with s. 149 of the Indian Penal Code, as also the sentence,
their conviction was not liable to be set aside.
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 143 of 1954.
On appeal by special leave from the judgment
and order dated the 12th August 1953 of the Patna High Court in Criminal Appeal
No. 345 of 1952 arising out of the judgment and order dated the 20th August
1952 of the Court of Additional Session Judge, Darbhanga in Session Case No. 12
H.J. Umrigar and B. C. Prasad, for the
B.K. Saran and M. M. Sinha, for the
1955. December 8. The Judgment of the Court
was delivered by VENKATARAMA AYYAR J.-The appellants were charged before the Additional
Sessions Judge, Darbhanga under section 302 read with section 34 of the Indian
Penal Code for the murder of one Balbbadra Narain Singh. They were also
charged, some under section 147 and the others under section 148, for being
members of an unlawful assembly and for rioting.
The case of the prosecution was as follows:
The deceased and the appellants were pattidars in the village I of Mahe, and
there was ill-feeling between them on account of the village pattidari. On
5-3-1951, at about 10 A.M. the deceased was returning from the river to his
baithka. Oil the way, the appellants who were armed with bhalas, sword and
lathi, and some others surrounded him at the courtyard of the village school
and attacked him. One Harischandra Singh, who is still absconding, plunged his
bhala into the abdomen of the deceased, and the appellants joined in the attack
The deceased ran to his baithka, and from
there, he was taken to the police station at Singhia. There, he made a
complaint which has been filed as the first information report, and therein
beset out the incidents mentioned above, and implicated the appellants as
concerned in the attack.
The deceased was then taken to the hospital,
and in view of his precarious condition the doctor recorded his dying
declaration. The deceased was then sent 1045 for treatment to the hospital at
Samastipur, but on the way he died. On the basis of the first information
report and on the enquiries made by them, the police charged the appellants
under section 302 read with section 34 for murder and under sections 147 and
148 for rioting. The defence of the appellant was that the deceased was
attacked by some unknown ,assailants in his baithka in the early hours of
5-3-1951, and that they were not concerned in the offence.
The Additional Sessions Judge, Darbbanga
accepted the evidence of the prosecution, and convicted the appellants under
section 302 read with section 34, and sentenced them to transportation for
life. He also convicted them, some under section 147 and the others under
section 148, but imposed no separate sentence under those sections. The
appellants took the matter in appeal to the High Court of Patna., The learned
Judges agreed with the Sessions Judge in his conclusions of fact, but altered
the conviction from one under section 302 read with section 34 to one under
'section 326 read with section 149, and the sentence from transportation for
life to various terms of imprisonment.
The learned Judges also maintained the
conviction of the appellants on the charge of rioting, but awarded no separate
sentence there for. It is against this judgment that the present appeal is
On behalf of the appellants, it was firstly
contended by Mr. Umrigar that the finding of the courts below that the incident
took place at the school courtyard and not at the baithka of the deceased was
bad, because it was based on inadmissible evidence, viz., Exhibit P-7 and the
testimony of P.Ws. 4, 7 and 12. Exhibit P-7 is a statement of the deceased
taken by the police officer subsequent to the lodging of the first information
and after the investigation had begun, and its reception would be barred by
section 162 of the Code of Criminal Procedure. But the learned Judges thought
that it would be admissible under section 32(1) of the Indian Evidence Act, and
the correctness of this view is disputed by the appellants. But even if Exhibit
P-7 is inadmissible in evidence, 1046 that would not assist the appellants, as
the learned Judges observed that apart from that document, they would have, on
the other evidence, held that the deceased was attacked at the school
Then, we come to the evidence of P.Ws. 4, 7
and 12 on which the courts below have relied in accepting the version of the
incident as given by the prosecution. Mr. Umrigar contended that their evidence
was inadmissible, because they were examined by the police at the stage of
investigation, and their statements were not recorded separately as required by
section 161(3) of the Code of Criminal Procedure. This is what the
investigating officer, P.W. 18, deposed with reference to this matter.
"The Daffadar produced Sital Singh
(P.W.'12), Ram Karan Singh (P.W. 7) and Ramkinker (P.W. 4). First of all, I
examined them separately but recorded their joint statement in respect of
common things. I made a separate record about the identification and the
The recording of a joint statement of the
examination of P.Ws. 4, 7 and 12 is clearly in contravention of section 161(3),
and must be disapproved. But the question is whether that renders the testimony
of P.Ws. 4, 7 and 12 in court inadmissible. Section 161(3) does not say so, and
indeed, seeing that the police are not bound to make a record of the statements
of witnesses in which case there is admittedly no bar to the reception of their
testimony, it would be anomalous if we were to hold that their evidence is
inadmissible, because the statements were also reduced to writing but not in
the manner provided in the section. The Indian Evidence Act contains elaborate
provisions as to who are competent witnesses and on what matters their evidence
is inadmissible. And on these provisions P.Ws. 4, 7 and 12 are neither
incompetent witnesses, nor is their evidence as to the incidents to which they
deposed, inadmissible. In Zahiruddin v. Emperor(1) it was held by the Privy
Council that the failure to comply with the provisions of section 162(1) might
greatly (1) A.I.R. 1947 P.C. 75.
1047 impair the value of the evidence of the
witness, but that would not affect its admissibility. On the same reasoning, it
will follow that the evidence of P.Ws. 4, 7 and 12 is not inadmissible for the
reason that their statements had been recorded by P.W. 18 jointly and not
separately as required by section 161(3).
In support of his contention that their
evidence is inadmissible, Mr. Umrigar relied on the decisions in Baliram
Tikaram v. Emperor(1) and Maganlal Radhakishan v. Emperor(2). In Baliram
Tikaram v. Emperor(1), which was a decision under section 162 of the Code of
Criminal Procedure the accused had not been furnished with copies of the
statements recorded by the police officers under section 161, and it was held
that that deprived the accused of a valuable right, and must have caused
prejudice to them.
That was the view taken in Viswanath v.
Emperor (3) , and no exception can be taken to it. But the learned Judges went
on to observe that the evidence of the witnesses who gave statements at the
investigation would itself be inadmissible. The reason for this opinion was
thus stated by them:
"How can the evidence be admissible and
proper for consideration when the accused is robbed of his statutory means of
cross-examination and thereby denied the opportunity of effectively
cross-examining his adverse witnesses? No evidence recorded by the Court,
unless it satisfies the requirement of section 138, Evidence Act, can become
admissible and proper for consideration. It would indeed be bold to say that
the evidence of a witness is legally admissible against a party even though he
at the time it was given had not the full opportunity to crossexamine
This view was reiterated by the same learned
Judges in Maganlal Radhakishan v. Emperor(2), but, for the reasons already
given, we are unable to accept this as a correct statement of the law. We are
of the opinion that while the failure to comply with the requirements of
section 161(3) might affect the weight to be (1) A.I.R. 1945 Nag. 1. (2) A.I.R.
1946 Nag. 173.
(3) I.L.R.  Nag. 178, 1048 attached to
the evidence of the witnesses, it does not render it inadmissible. That was so
held by Harries, C.J. and Bachawat, J. in Bejoy Chand Patra v. The State(1),
where this question arose directly for decision, and we are in agreement with
this view. In the present case, the attention of the learned Judges was drawn
to the infirmity in the evidence of P.Ws.4, 7 and 12, arising by reason of the
failure to observe section 161(3), but they were, nevertheless, prepared to
accept it as reliable. We must accordingly hold that the findings of the courts
below are not open to attack on the ground that they were based on inadmissible
It was next contended that the charge on
which the appellants were tried was one under section 302 read with section 34,
and that the learned Judges of the High Court erred in convicting them under
section 326 read with section 149. Before the learned Judges the contention
that was pressed was that there was no power in the court to substitute section
149 for section 34, but they declined to accept it. The question has since been
considered by this Court in Karnail Singh and others v. The State of Punjab(')
and Willie Slaney's case('). It is conceded by Mr. Umrigar that in view of
these decisions, the question is no longer open. It must be answered adversely
to the appellants.
It was finally contended that there had been
no proper examination of the appellants under section 342, and that the
conviction should accordingly be quashed. What happened was that when the court
commenced its examination under section 342, the appellants stated that they
would file written statements. Those statements were very elaborate and
furnished the answer of the appellants to all the points raised in the
prosecution evidence. Mr. Umrigar was unable to suggest any question which
could have been put, with reference to which the statements did not contain an
Clearly, the appellants have not been
prejudiced. It is no doubt true that (1) A.I.R. 1950 Cal. 363. (2) 
S.C.R. 904, (3) Criminal Appeal No. 6 of 1955, 1049 section 342 contemplates an
'examination in court) and the practice of filing statements is to be
deprecated. But that is not a ground for interference, unless prejudice is
established. And it is nothing unusual for the accused to prefer filing
statements instead of answering questions under section 342 lest they should
suffer by inadvertent admissions or by damaging statements. As no prejudice has
been shown, this contention also must be rejected.
In the result, the appeal is dismissed.