Noor Khan Vs. State of Rajasthan
[1963] INSC 172 (19 August 1963)
19/08/1963 SHAH, J.C.
SHAH, J.C.
SARKAR, A.K.
HIDAYATULLAH, M.
CITATION: 1964 AIR 286 1964 SCR (4) 521
ACT:
Criminal Trial-Murder-Asquittal by Trial
Court-Conviction after setting aside acquittal by the High Court-ValidityProvisions
relating to the record of statements of witnesses by Police and failure to
supply copies to the accused-If and when vitiates the trial-Prejudice-Code of
Criminal Procedure, 1898 (Act 5 of 1898). ss. 161(3), 162, 173 (b), 207A(3).
HEADNOTE:
The appellant and nine others were tried
before the Sessions Judge for offences of rioting and being members of an unlawful
assembly and causing in furtherance of their common object death of one person
and serious injuries to four others. The appellant was also charged for the
substantive offence of causing the death by gun-shot injuries. All the accused
persons were acquitted at the trial. In appeal against acquittal by the State,
the High Court set aside the acquittal of the appellant and sentenced him to
imprisonment for life under s. 302 Indian Penal Code and confirmed the order in
respect of the rest. The appellant's main contention in this Court was that
under s. 161 of the Code of Criminal Procedure it was obligatory upon an
investigating officer to record the statements of witnesses examined by him and
if those statements were not made available to the accused at the trial, a
valuable right was lost to the accused, and the trial must on that account
alone be regarded as vitiated.
34-2 S. C. India/64 522 Held : (i) Where the
circumstances are such that the court may reasonable 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 convict-on be
set aside and 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.
On the facts of the present case no prejudice
was caused to the accused and the plea of prejudice was neither raised in the
High Court, nor any substantial argument in support of the same was advanced in
this Court.
Narayan Rao v. State of Andhra Pradesh, A. I.
R. 1957 S. C.
737 and Pulukuri Kotyya v. Emperor, L. R. 74
I. A. 65, relied on.
Baliram v. Emperor, I.L.R. [1945] Nag. 151,
Maganlal v. Emperor, I.L.R. [1946] Nag. 126 and Maroti Mahagoo v. Emperor,
I.L.R. [1948] Nag. 110, disapproved.
(ii) In the present case the Sessions Judge
did not found his conclusion upon the demeanour of the witnesses and the High
Court rightly observed that the presence of the four injured persons at the
scene of offence was assured by the evidence of injuries, and must be regarded
as established beyond reasonable doubt.
Sheo Swarup v. King Emperor, L. R. 61 I. A.
398, referred to.
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 9 of 1963.
Appeal by special leave from the judgment and
order dated November 9, 1962 of the -Rajasthan High Court in D. B. Criminal
Appeal No. 407 of 1961.
Purushottam Trikamdas, C., L. Sarren and R.
L. Kohli, for the appellant.
S. K. Kapur and R. N. Sachthey, for the
respondent.
August 19, 1963. The Judgment of the Court
was delivered by SHAH J.-Noor Khan, resident of Kuchaman in the State of
Rajasthan, and nine others were tried before the Additional Sessions judge,
Sirohi in the State of Rajasthan for offences of rioting and being members of
an unlawful assembly and causing in furtherance of their common object death of
one Pratap, at about 2-30 p. m. on September 29, 1960 and serious injuries to
four others on the same occasion. Noor Khan was also charged for the
substantive offence of causing the death of Pratap by gunshot injuries.
The .Sessions Judge acquitted all the persons
accused. at the trial. In appeal by the State, the High Court of Rajasthan set
aside the order of acquittal in favour of Noor Khan and confirmed the order in
respect of the rest.
There were disputes between Noor Khan on the
one hand and Pratap and his brothers on the other about a well in village
Mundara. Noor Khan claimed to have purchased a half share in the well whereas
Pratap and his 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 an.d 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 the well and caused the
death of Pratap was not reliable, for in his view the prosecution had failed to
lead evidence of independent witnesses and alterations were made in the story
of the prosecution from time to time and certain persons were falsely involved.
He observed that there was enmity between the two sides and the testimony of
witnesses who claimed to be present at the scene of assault was not
corroborated by independent evidence and was on that .account unworthy of
credit, especially because the complainant Ganesh had named several persons who
were proved not to have taken part in the assault.
524 In appeal by the State, the High Court of
Rajasthan convicted Noor Khan for causing the death of Pratap by firing a
muzzle-loading gun and causing him fatal injury and thereby committing an
offence punishable under s. 302 Indian Penal Gode and sentenced him to suffer
imprisonment for life. With special leave, Noor Khan has appealed to this
court.
Pratap died on September 29, 1960 as a result
of gunshot injury. The testimony of Dr. Mehta who performed the post-mortem
examination on the dead body of Pratap disposes beside the wound of entry that
the left lung of the victim was lacerated with pieces of metal. Dr. Mehta found
on the body of witness Prabhu two contusions and an incised injury, on the body
of Ganesh three contusions, on Mohan one contusion and on Gulab a swelling and
in the view of Dr.
Mehta the injuries were, at the time when he
examined the injured persons on October 1, 1960, about 48 hours old.
Prabhu, Ganesh, Mohan and Gulab were examined
as witnesses for the prosecution, and they deposed that Noor Khan had caused
the fatal injury to Pratap by firing a muzzle-loading gun at him, and that they
were injured in the same incident by the members of Noor Khan's party. The
injuries on these four persons strongly corroborate their story that at the
time of the assault made on Pratap at about 2-00 p.m. on September 29, 1960
they were present. This story was further corroborated by two female witnesses,
Bhanwari and Mathurn.
The High Court in appeal by the State held
that notwithstanding the infirmities in the prosecution case that in the first
information, names of certain persons who were not present at the scene of
occurrence were given by the complainant Ganesh on account of enmity and that
there were discrepancies between 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 525 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.
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(1) :"ss, 417,
418 and 423 of the Code give to the High Court full power to review at large
the evidence upon which the order of acquittal was rounded, and to reach the
conclusion that upon that evidence the order of acquittal should be reversed. *
* * * * But in exercising the power conferred by the Code and before reaching
its conclusions upon fact, the High Court should and will always give proper
weight and consideration to such matters as (1) the views of the trial Judge as
to the credibility of the witnesses; (2) the presumption of innocence in favour
of the accused, a presumption certainly not weakened by the fact that he has
been acquitted at his trial; (3) the right of the accused to the benefit of any
doubt; and (4) the slowness of an appellate Court in disturbing a finding of
fact arrived at by a Judge who had the advantage of seeing the
witnesses."It may be observed that. in declining to accept the testimony
of the witnesses who claim to have seen the assault, the Sessions Judge did not
appreciate the full significance of the very important circumstance that on the
person of the four eye-witnesses there were injuries which on the medical
evidence must have been caused at or about the time when the fatal assault was
made upon Pratap. It is highly improbable that all these witnesses who were
members of :the same family suffered injuries--some of which were severe--in
some other incident or incidents on the day and about the time when Pratap was
fatally injured, and then they conspired to bear false testimony that they were
present at the time of the assault upon Pratap. The presence of the four
injured persons Ganesh, Prabhu, Mohan and (1) I. L.R. 61 I.A. 398.
526 Gulab at the scene of offence is assured
by the evidence of injuries, and must, as the High Court observed, be regarded
as established beyond reasonable doubt.
The Sessions Judge did not found his
conclusion upon the demeanour of the witnesses, except possibly of Ganesh. He
entered upon a review of the evidence and rested his conclusion primarily upon
four circumstances:
(i) that the persons who were proved not to
be present at the time of the commission of the offence were sought to be
involved in the commission of the offence;
(ii) that the evidence showed that only one
shot was fired even though the witnesses deposed that both Samdu Khan and Noor
Khan were armed with muzzle-loading guns and had used them at the time of the
ass.ault;
(iii) that the distance from which the gun
which caused the fatal injury to Pratap was fired was estimated by the
witnesses at not, less than 20 ft, 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.
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 require 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 other
persons Kesia Choudhary and Sheonath Singh were also 527 named in the first
information though they were not' present at the scene of offence. Ganesh
admitted when cross-examined that these two persons arrived at the scene of
offence after the assault on Pratap and the other witnesses did not depose that
they had seen them at the time of the assault. The fact, that certain persons
who were on the admission made by Ganesh not present at the time when the party
of Noor Khan arrived at the scene, may raise a serious doubt about the
reliability of the testimony of Ganesh, but it would not by itself be a ground
for discarding the story of the other witnesses. It is true that the witness
Prabhu Singh s/o Guman Singh who was not a member of the family and who claimed
to be an eye-witness to the assault on Pratap and others was, found wholly
unreliable, and another person cited as a witness Sohan Singh who was also not
a member of the family was not examined at the trial. But the place and the
time at which the offence is alleged to be committed, were such that presence
of persons who were not near relations of Pratap may least be expected.
All the eye-witnesses have consistently
deposed that it was Noor Khan who caused the fatal injury to Pratap. On the
evidence of the witnesses both Noor Khan and Samdu Khan were armed with
muzzle-loading guns at the time of the assault, and only one gun-shot injury is
found on the body of Pratap.
It was deposed by the witnesses that Samdu
Khan had fired the gun carried by him at Ganesh but the shot missed Ganesh.
But absence of gun-shot injury on the person
of Ganesh does not render the entire story so inherently improbable that it may
on that account be discarded as unreliable. Nor is the discrepancy as to the
sequence of firing, between the first information and the testimony in Court,
furnish a justifiable ground in support of that course.
There is discrepancy between the estimates
given by witnesses about the distance from which the fatal shot was fired by
Noor Khan. Witnesses have estimated this distance as varying between 8 and 15
poundas--each pounda being equal to 'a step' or two feet. It appears however
from the appearance of the injury and especially the charring and blackening of
the wound of entry that the barrel of the gun could not have been at a distance
exceeding 3 or 4 ft. But as we will presently point out, the estimate given 528
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 semi-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
Peepal 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 Sessions Judge was
.persuaded to reach cannot be accepted.
The estimate of the witnesses about the
distance from which the gun was stated to have been fired by Noor Khan has
varied. Ganesh deposed that the distance was about 20 ft.
The other witnesses gave the estimate that
the distance was about 8 to 15 poundas. It has to be noticed that according to
the prosecution witnesses there were about ten persons present. Two of them
were armed with guns, some with axes and the remaining with sticks. They must
have spread themselves over the small area of the field in which the well, Ora
and dhalia are situate. It appears to be the consistent testimony of the
witnesses that the assaulting party were at the time of the assault somewhere
near the Peepal tree, the situation of which is definitely established by
reliable evidence, as being at a distance of about 8 ft. from the western end
of the wall of the Ora. The gun which was used by Noor Khan was a
muzzle-loading gun and the length of the barrel was 5 ft. According to the
.witnesses the party of the assailants had not advanced beyond the peepal tree
and if as stated by Mst.
Bhanwari . who has been believed by the. High
Court corroborated as she was by witnesses Mst. Mathura and Mohan Singh, it
.appears that Noor Khan was near the peepal tree, the 529 inference is
inevitable that the distance between the end of the barrel and Pratap did not
exceed 4 ft. The existence of charring and the lodging of the entire discharge
from the gun at a single point of entry does clearly establish that the gun was
fired from close range. The evidence of the witnesses viewed in the light of
the situation of the Ora, dhalia and the peepal tree as shown in the rough
sketch Ext. P-2(a), does also suggest that the estimate given by the witnesses
of the distance of the assailant from Pratap cannot be accepted. Mst. Bhanwari
has stated that Noor Khan was at a distance of a pace from Samdu Khan, and that
Samdu Khan and Noor Khan had fired when they were near the peepal tree. Prabhu
has given the estimate of the distance between Noor Khan and Pratap as 10
paces, but the evidence discloses that Noor Khan fired the shot from a place
opposite the Ora. Gulab stated that Samdu Khan stood at a distance of five
poundas from him and Pratap was near him sitting near the. Ora. Mohan deposed
that the peepal tree is at a distance of 6 or 7 ft., and the accused persons
were on the east side of the peepal tree and "in front of the centre of
the Dhalia." Mst. Mathura has stated that the accused persons ha.d 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 wail facing south 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 wail 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 a 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.
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 530 had made:
'jottings' or notes of the statements of witnesses, and that he did not record
detailed statements in the course of the investigation, and that from these
'jottings' head-constable Kapuraram prepared the statements of the witnesses
(supplied at the trial to the accused) when the witnesses were not present at
the police station. In their cross-examination the witnesses who claimed to
have witnessed the assault, asserted that certain statements attributed by
Kapuraram to them were not made by them. The High Court observed that as the
statements were written by Kapuraram from the 'jottings', no value could be
attached to those statements and the testimony of the witnesses who denied
having made certain parts of the statements found in the record prepared by
Kapuraram could not render it unreliable. On the evidence of Hari Singh the
investigating Officer, the statements of which copies were supplied to the
accused purporting to be copies of statements recorded under s. 161 Criminal
Procedure Code, were not in truth such statements, and the High Court was right
in observing that the discrepancies between those statements and the evidence
given by the witnesses at the trial would not necessarily support the plea of
the defence that the version given at the trial was unreliable, as an
afterthought. But it was urged that under s. 161 Criminal Procedure Code it is
obligatory upon an investigating officer to record the statements of witnesses
examined by him and if those statements are not made available to the accused
at the trial, a valuable right which the Legislature has ensured in the
interest of a satisfactory trial of the case is lost to the accused, and the
trial must on that account alone be regarded as vitiated.
By s. 161 of the Code of Criminal Procedure,
a police officer making an investigation under Ch. XIV is authorised to examine
orally any person supposed to be acquainted with the facts and circumstances of
the case. The person so examined is bound to answer all questions relating to
such case put to him by such officer, other than questions the answers to which
would have a tendency to expose him to a criminal charge or to a penalty or
forfeiture. Sub-section (3) of s. 161 provides that a police-officer may reduce
into writing any statement made 531 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 such person whose statement he 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 signed 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 anT/ inquiry or trial in respect of any offence under
investigation at the time when such statement was made :" 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 witness.
Section 173 of the Code by sub-section (4) as
amended by Act 26 of 1955 provides that the officer in charge of the police
station shall, ,before the commencement of the inquiry or trial, furnish or
cause to be furnished to the accused, amongst others, a copy of the first
information report recorded under s. 154 and of all other documents or relevant
extracts thereof, on which the prosecution proposes to rely, including the
statements recorded under sub-section (3) of s. 161 of all the persons whom the
prosecution proposes to examine as 1rs witnesses. Section 207A of the Code of
Criminal Procedure which is added by Act 26 of 1955 by sub-section (3)
provides:
"At the commencement of the inquiry, the
Magistrate shall, when the accused appears or is brought before him, satisfy
himself that the documents referred to in section 173 have been furnished to
the accused and if he finds that the accused has not been furnished with such
documents or any of them, he shall cause the same to be so furnished," and
the Magistrate shall then proceed to record the evidence of the witnesses produced
by the prosecution and 532 he may commit the case to the Court of Session on
such evidence and after considering the documents referred to. in s. 173.
The object of ss. 162, 173(4) and 207A(3) is
to enable the accused to obtain a clear picture of the case against him before
the commencement of the inquiry. The sections impose an obligation upon the
investigating officer to supply before the commencement of the inquiry 'copies
of the statements of witnesses who are intended to be examined at the trial so
that the accused may utilize those statements for cross-examining the witnesses
to establish such defence as he desires to put up, and also to shake their
testimony. Section 161(3) does not require a policeofficer to record in writing
the statements of witnesses examined by him in the course of the investigation,
but if he does record in writing any such statements, he is obliged to make
copies of those statements available to the accused before the commencement of
proceedings in the Court so that the accused may know the details and
particulars of the case against him and how the case is intended to be proved.
The object of the provision is manifestly to give the accused the fullest
information in the possession 'of the prosecution, on which the case of the State
is based, and the statements made against him. But failure to furnish
statements of witnesses recorded in the course of investigation may not vitiate
the trial. It does not affect the jurisdiction of the Court to try a case, nor
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 copies 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 the provisions contained in the Code no finding, sentence
or order passed by a Court of competent jurisdiction shall be reversed or
altered on 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 533 error, omission, irregularity or misdirection has in fact occasioned a
failure of justice. By the explanation to $. 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 should have been raised at an earlier
stage in the proceeding.
In the present case the statements of the witnesses
prepared by Kapuraram were supplied to the accused before the committal
proceedings were started. Relying upon those statements as duly recorded under
s. 161(3), crossexamination of the witnesses was directed. But in the Court of
Session the investigating officer admitted that on September 29, 1960 he did
not record the statements of witnesses in detail, but merely noted certain
points and after reaching Thana Bali on September 30, 1960 he had got detailed
statements of the witnesses written out by headconstable Kapuraram in the
absence of the witnesses, and had destroyed the notes and jottings thereafter.
Undoubtedly the investigating officer acted in a manner both irresponsible and
improper, and thereby was instrumental in depriving the accused of the benefit
of the "notes and jottings" written out by him. He destroyed the only
documents which could be regarded as statements recorded under s. 161 and which
are permitted to be utilized by the accused under s. 161. Counsel for the appellant
relying upon the two judgments of the Nagpur High Court in Baliram v.
Emperor(1) and Maganlal v. Emperor(2) submitted that omission to supply copies
of the statements recorded under s. 161 is repugnant to the fundamental rules
of practice necessary for the due protection of prisoners and the safe
administration of justice, and where the accused was deprived of his statutory
rights of cross-examination and thereby denied the opportunity of effectively
destroying the testimony of prosecution witnesses the evidence of such
witnesses whose statements have not been supplied to the accused is
inadmissible at the trial. We are unable to accept this contention for in our
view the law stated by the Nagpur High Court does (1) I.L.R. [1945] Nag. 151.
(2) I.L.R. [1946] Nag. 126.
534 not correctly interpret ss. 161 and 162
Code of Criminal Procedure. In a later case, the Nagpur High Court in Maroti
Mahagoo v. Emperor(1) held that though the right which is given to the accused
under s. 162 Code of Criminal Procedure to use the previous statements made to
the police for the purpose of contradicting a witness is a valuable right, and
where the omission to give copies to the accused is proved to have caused
prejudice to the accused, the testimony of such witness must 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.
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 statements 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 statements of each
witness 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(2) 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 observed,
in dealing with the question whether an omission to comply with the provisions
of s. 173(4) read with sub-section (3) of s. 207A necessarily renders the
entire proceeding and the trial null and void:
"There is no doubt that those provisions
have been introduced by the amending Act of 1955, in order to simplify the
procedure in respect of inquiries leading upto a Sessions trial, and at the
same time, to safeguard the interests of accused persons by enjoining (1)
I.L.R. [1948] Nag. 110.
(2) A.I.R. 1957 S.C.737.
535 upon police officers concerned and
Magistrates before whom such proceedings are brought, to see that all the
documents, necessary to give the accused persons all the information for the
proper conduct of their defence, are furnished.
. . .
But we are not prepared to hold that
noncompliance with those provisions has, necessarily, the result of vitiating
those proceedings and subsequent trial. The word "shall" occurring
both in sub-section (4) of s. 173 and sub-section (3) of s. 207A, is not
mandatory but only directory, because an omission by a police officer, to fully
comply with the provisions of s. 173, should not be allowed to have such a
far-reaching effect as to render the proceedings including the trial before
.the Court of Session, wholly ineffective.
. . . .
Certainly, if it is shown, in a particular
case, on behalf of the accused persons that the omission on the part of the
police officers concerned or of the Magistrate before whom the committal
proceedings had pended, has caused prejudice to the accused, in the interest of
justice, the Court may re-open the proceedings by insisting upon full
compliance with the provisions of the Code.
In our opinion, the omission complained of in
the instant case, should not have a more farreaching effect than the omission
to carry out the provisions of s. 162 or s. 360 of the Code." The Court in
that case relied upon the observations made by the Judicial Committee of the
Privy Council in Pulukuri Kotayya v. Emperor(1) to the effect that when a trial
is conducted in a manner different from that prescribed by the Code, the trial
is bad, and no question of curing an irregularity arises, but if the trial is
conducted substantially in the manner prescribed by the Code, but some
irregularity occurs in the course of such conduct, the irregularity can be
cured under s. 537, and none the less so because the irregularity involves, as
must nearly always be the case, a breach of one or more of the very (1) L.R, 74
I.A. 65.
536 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(1):
"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 guage 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 statements made by
witnesses to the police, afford instances in which failure to comply with the
provisions of s. 162 have led to the conviction being quashed. Their Lordships
would, however, observe that where, as in those two cases, the statements were
never made available to the accused, an inference, which is almost
irresistible, arises of prejudice to the accused." However strong the
inference may be, failure to supply copies will not by itself render the trial
illegal. The Court must in each case consider the nature of the defect, the
objection raised at the trial, and the circumstances which lead to an inference
of prejudice. The strength of the inference of prejudice must always be
adjudged having regard to the circumstances of each particular case. Narayan
Rao's Case(2) related to failure to comply with the provisions of ss. 173 and
207A. It appears that in that case the statements of witnesses recorded under
s. 161 were supplied to the accused in the Court of Session, and irregularity
in the proceeding to that extent was (1) L.R. 74 I.A. 65. (2) A.I.R. 1957 S.C.
737.
537 mitigated. In the present case what could
be regarded as statements recorded under s. 161(3) were never supplied to the
accused. But on that account the principle applicable to the consequences of
deprivation of the statutory right 'is not different.
The Trial Court observed that the copies of
the statements which were handed over to the accused were not the record of the
statements made by the witnesses but they were dictated by the sub-Inspector
Hari Singh from the 'jottings' made by him of some points, the statements
having been written by head-constable Kapuraram. The Court then observed:
"It is to be noted that head constable
Kapuraram was not present at the place of occurrence when the investigating
officer examined the witnesses on 29-9-60. The statements of witnesses which
are in the handwriting of head constable Kapuraram, therefore, could not have
been written and read over to witnesses in the village Mundara station, Bali,
and, therefore, the statements on which the prosecution rely were never read
over to and admitted correct by the witnesses.
There are several portions in the statements
witnesses which have been brought on record by the defence counsel on which
there is complete contradiction between the statements of eye witnesses and the
investigating officer." But the 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 35--2
8. C.India/64 538 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
unsatisfactory state of affairs, sub. inspector Hari Singh must be held
responsible. But solely on that account, as we have already observed, we are
unable to hold that the trial was illegal. No attempt appears to have been made
by the Trial Court to scrutinize the diary of subinspector Hari Singh, nor was
any objection raised in the High Court that by reason of the failure to make
the notes or the jottings available to the accused any prejudice was caused.
Not a single question was asked to Hari Singh about the nature of those
jottings, or notes--whether they were mere memoranda which the writer alone
could understand, or were detailed notes of statements made to him, which were
arranged into proper shape when dictated to Kapuraram. The High Court in
dealing with this objection observed:
"Having regard to the manner in which
the police statements are alleged to have been prepared by Kapuraram, no value
can be attached to them and if the witness disowned certain portions of those
statements, his evidence at the trial cannot be rendered unreliable on that
account." The High Court has carefully analysed and considered the
evidence of the witnesses who deposed that they had seen the assault and it was
assured that four out of the witnesses who had received injuries on their
person must have been present on the scene of offence and the testimony of
three out of those witnesses was acceptable viewed in the light of the evidence
of Mst. Bhanwari and Mst. Mathura. We have gone through the material parts of
the evidence of the witnesses to which our attention was directed, and after
carefully scrutinising the evidence in the light of the infirmities pointed
out, especially the denial of the copies of the notes or jottings made by Hari
Singh, we are unable to disagree with the High Court.
The Sessions Judge discarded the testimony of
the witnesses, in view of discrepancies on matters of compara539 tively minor
importance and because the witnesses were relatives of the deceased, and they
made statements as to the distance from which the assault was made which could
not be true in the light of the medical evidence. The High Court did not accept
this view of the Trial Court. In an appeal with special leave we do not think
that we would be justified in interfering with the conclusion of the High Court
especially when our attention has not been invited to any substantial infirmity
in the reasoning of that Court.
We may repeat that the provisions of s. 162
Code of Criminal Procedure provide a 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 copies 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, is one of those cases in which such a course is
warranted.
The action of the sub-inspector Hari Singh in
destroying the notes cannot but be deplored. But the destruction of the notes
recorded by him appears to be the result of ignorance, not of any dishonesty.
Even so, if on a careful scrutiny of the evidence we felt that there was
reasonable ground for holding that the appellant Noor Khan was prejudiced
because he was deprived of the right which the Legislature had ensured him in
making his defence, we would have set aside the conviction.. We have however
considered the evidence of the witnesses 540 carefully and examined it in the
light of the criticism offered by counsel for Noor Khan, and after giving due
weight to the opinion of the High Court and the Trial Court have come to the
conclusion on the facts of this case that no prejudice appears to have been
caused.
As we have already pointed out, the plea of
prejudice caused to the accused does not appear to have been raised in the High
Court, and apart from the general plea 'of illegality of the trial because of
the failure to supply the copies of the record of the statements made to Hari
Singh, no substantial argument in support of the plea of prejudice has been
advanced.
On the view we have taken, this appeal fails
and is dismissed.
Appeal dismissed.
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