In Re: Bheemavarapu Subba Reddi and Another

Bell, J.—The appellants are a brother and a sister who were charged respectively with the murder and abetment of murder of one Guntaka

Somireddi in the village of Nunna on 13th May, 1946. They were both sentenced to death.

[His Lordship after discussing the facts and evidence proceeded to consider the objection as to the method of investigation.]

Mr. Jayarama Aiyar, however, has raised a point to which some attention must be given. He says that the method of investigation employed by

the police was such as to deprive the accused and his advisers of the assistance or opportunity which the Criminal Procedure Code provides for

scrutinising the evidence called for the prosecution. He based his contention in the main on the evidence of P.W. 14, the Circle Inspector, and on

that of P.W. 13 the Sub-Inspector, to a smaller extent. P.W. 13 in cross-examination said that he collected the witnesses and kept them ready for

investigation by his superior officer. He said that he did not examine any witness and that that was done by the Circle Inspector. The witnesses, he

said, were examined separately and they were asked to state what they knew. As they were being examined, the Circle Inspector took some

notes. The Circle Inspector, P.W. 14, says that he examined P. Ws. 1 and 6 to 9 and 11 besides five others.

I examined witnesses. From my case diary I cannot say whom I examined first and whom I examined second and so on. I cannot say from my

case diary as to what each witness stated. I cannot also state from my memory. I took down my own notes. I first asked one by one what the

witnesses knew of the offence and then took my own notes and questioned the witnesses again by way of verification of what notes of events I had

taken down. In my notes I took a summary of what all the witnesses stated. Those notes will also give an idea of what each witness stated if

carefully gone through. On the same day I elaborated it into the form I have in my case diary. I took into account all the reports, inquest report,

mediators report, first information report, etc. I have my rough notes with me. They are not required to be sent anywhere. There is no prescribed

rule under which these rough notes should be filed.... As it is not necessary to prepare individual statements, I did not prepare any.

On these words Mr. Jayarama Aiyar builds up the contention that the police failed in their duty in not taking individual statements from each

witness and preserving them so that they could have been available if required for the accused and his advisers to check the evidence given in the

witness box by the various witnesses.

He has referred us to Sections 160, 161, 162 and 172 of the Criminal Procedure Code. Section 160 provides that a police officer has power to

require the attendance of any person who appears to be acquainted with the circumstances of the case. Section 161 provides that when such a

person has been ordered to attend, the police officer may examine him orally as to the facts and circumstances of the case. Such person is bound

to answer any questions put to him by the police officer, unless they would tend to incriminate him. By a recent amendment, Act II of 1945, it is

provided that if the police officer thinks fit he may reduce into writing any statement made to him in the course of his investigation, and if he does

so, he must make a separate record of the statement of each person. If the police officer so decides, and a statement is taken from the individual

witness, then u/s 162 that may be used in the circumstances provided for in that section. u/s 172 there is a general direction that every police officer

making an investigation must compile a diary day by day. Whether he does so from memory or by means of notes taken by him at the time is not

provided and it would seem that the circumstances of each case must be considered if and when the conduct of the police in conducting an

investigation is questioned.

In this case on a plain reading, as it seems to us, of the Circle Inspector''s evidence, he interviewed various witnesses and asked them one by

one what they knew about the events. He then made some notes of what they said and asked them again as to whether the effect of his notes was

correct. He was in fact preparing the material for the case diary which he was bound to compile some time during the day. He says that he took no

individual statement from any witness although he says that his notes and the case diary would give some idea of what each witness had said. One

must not forget that P. Ws. 1, 2, 8 and 10 spoke about their own knowledge of the events which was not the evidence of the eye-witnesses.

P.Ws. 6 and 7 only spoke to the murder and their evidence is practically the same. It has been held recently in Guruva Vannan, In re (1944) 1

M.L.J. 253 that it is not the duty of the investigating officer to do more than record a gist of the statement made to him. To require otherwise would

paralyse any investigation of the kind which took place in this case. Mr. Jayarama Aiyar has urged that the police officer must deliberately have

refrained from taking individual statements and contented himself with rough notes in order to prejudice the accused at his trial. We can see no

basis for the contention. It is no doubt desirable as was pointed out in Baliram Tikaram v. Emperor ILR (1945) Nag. 151 that notes however and

whenever taken by the police officer should be preserved. In that case the rough notes taken by the police officer had been destroyed. In this case

the Circle Inspector in the witness-box in the Sessions Court said that he had his rough notes in his pocket. No request was made by Counsel for

the accused that they should be produced so that he might read them. If such a request had been made, it would unquestionably have been

granted. In fact, while the case was in the committing Court, an application was made by the legal advisers of the first accused for copies of the

Section 162 statements, if any, and the-reply was given not only then, but again in the Sessions Court that there were no such statements. The

authorities however at once tendered the case diary in order to assist the accused in every way that was possible. We have looked at the case

diary and also at the rough notes which we caused to be sent here, and it is clear to us that the case diary is merely an amplification of the rough

notes taken by the investigating officer. The officer has sworn that he took no other statements, and we think that no criticism can be made of his

conduct. Whatever there was in the way of documents was made available to the advisers of the accused at the earliest possible opportunity. The

learned Sessions Judge has observed that the defence has been given an opportunity of perusing all the statements recorded in the diary and the

learned Public Prosecutor has discharged his duties on behalf of the Crown in an exceptionally impartial manner and has given all the co-operation

to the defence Counsel necessary to make Section 162, Criminal Procedure Code work smoothly, with the consent of this Court. He adds that he

is unable to find any ground for complaint by the Counsel for the defence and we agree with his conclusion. It cannot, we think, be the law that a

police officer investigating a crime has only two alternatives, viz, to record nothing, or to take a separate statement from each witness. It is not the

law, we think, that the police must record individual statements u/s 161 which specifically says that he may and not that he must reduce the

statement of a witness into writing. To expect the police officer to compile his case diary from memory is also, we think, absurd; and indeed might

in certain circumstances be most undesirable. Nothing is more natural than that he should make rough notes of information which later he would set

out in proper form in the case diary for the scrutiny of his superior officers in whose hands, after all, lies the subsequent control of the matter.

We think therefore that there is no substance in the point raised by Mr. Jayarama Aiyar. Apart from that, the evidence, we think, is more than

adequate to support the prosecution case against A-1. This was a brutal murder, the deceased being killed while he was asleep. There appears to

be no extenuating circumstances. In our opinion the conviction of A-1 and the sentence imposed upon him should be confirmed and his appeal

dismissed.

Horwill, J.

I would like to add a word or two on the objection taken by Mr. Jayarama Aiyar to the form of the police records and to the procedure

adopted during the trial.

Two questions arise: (1) whether the investigating officer committed any irregularity which vitiated the proceedings, and (2) whether the defence

was in any way prejudiced by the manner in which the proceedings took place in the lower Court and the police records examined.

It has been generally held by all the High Courts of India that it is not necessary for the Investigating Officer to record Verbatim what the

various witnesses tell them. For example Mockett, J., said in Guruva Vannan, In re (1944) 1 M.L.J. 253 :

It is not the duty of the Investigating Officer to do more than record a gist of the statements made to him.

Since that judgment was pronounced, however, there has been an amendment of Section 161, Criminal Procedure Code; and Mr. Jayarama Aiyar

argues that it is now incumbent upon the police, if they write anything at all during the course-of their investigation, to record a verbatim statement.

The new sub-section runs:

The Police officer may reduce into writing any statement made to him in the course of an examination under the section, and if he does so, he shall

make a separate record of the statement of each such person whose statement he records.

It is difficult to believe that the Legislature intended by. this amendment that an Investigating Officer should record a statement of every person

examined with the same mericulous care as a court records a deposition; for that would be losing sight of the principal purposes of an investigation,

which are to detect the offence, arrest the accused, and to file a charge-sheet before the competent Court. There may be circumstances in which

an investigation can proceed at leisure; but it may often be the case that an Investigating Officer hat, time only to record the outlines of what has

been said, and then to proceed to something more urgent, such as the arresting of the accused or the recovery of property. Undue delay in

examining witnesses might make it much more difficult, if not impossible, to complete an investigation successfully; and it does not seem that

Section 161(3) was intended to make it incumbent upon the Investigating Officer to record a statement in greater detail than was the practice prior

to the amendment. This new sub-section seems to hit at the practice of writing against the names of certain witnesses after the first that they

corroborated the statements of the earlier witness.

If the notes in the present case had been in the form of summaries of statements made by the individual witnesses, then those notes should have

been made available to the defence. It is noteworthy that although the notes were on the person of the Inspector daring his examination in the

Sessions Court, he was not asked to show them. We have examined them in this Court to see if they are mere summaries of statements; and we

find that they are not. The entries in the case diary are in the form of a detailed narrative, in which the actions or presence of various witnesses are

frequently referred to; so that it is possible to infer from the particulars of the narrative that certain things were seen by certain witnesses, and that

they gave certain information. We find that the notes give a very brief summary of the narrative found in the case diary, and do not take the form of

summaries of individual statements made by the various witnesses; so that if the police officer had objected to the production of his notes--which

he did not--he would have been fully justified in doing so.

The learned Sessions Judge felt-as indeed did the Public Prosecutor�that every concession should be given to the defence, so that they

might know what was said and done during the investigation; and so the defence were allowed to examine the case, diary. Even if the notes had

been inspected, no more information would have been available to the defence. Mr. Jayarama Aiyar has seen the notes and concedes that they are

unintelligible to one unacquainted with the records.

Although no irregularity was committed by the taking of notes for the preparation of the case, diary instead of recording statements, it seems

desirable that statements should be recorded where reasons of urgency do not preclude this course. It can easily be seen that if the practice

adopted in this case were generally followed and statements never produced, the discretion given to the Police u/s 161, Criminal Procedure Code,

might be much abused. An unscrupulous Investigating Officer might record statements, draw up notes suitable for the preparation of the case diary

and then suppress the statements, denying their existence. It is often of great assistance to the Court to know what the earlier statements of

witnesses were and an accused who cannot point to contrary statements made by witnesses when first examined, because those statements were

not recorded, labours under a disadvantage that should be avoided unless the exigencies of the investigation make the recording of statements

undesirable.