In Re: Boya Chinna Lingappa

Somasundaram, J.—The applt in this case was accused 1 in sessions case No. 18 of 1949 on the file of the Ct of Session, Anantapur. He &

another were tried for an offence u/s 307 I. P. C. Accused 2 was acquitted, but the applt alone was convicted & was sentenced to R. I. for two

years & to pay a fine of Rs. 100.

This appeal has to be allowed on a question of law. The occurrence is said to have -taken place at about 11 p.m. on 1-2-1949. Information

was given at about 1 a.m. on 2-2-1949. It was recorded by P. W. 7, who was the station writer of the police station, where the information was

given. He said in his evidence that he investigated into the case & recorded statements of witnesses. He examined P. W. 1 & he also examined P.

Ws. 3 to 6 & recorded their statements. These statements constitute statements u/s 162, Cr. P. C. The learned Ses. J. finds in para 6 of his

judgment that these statements were not made available to the accused for cross-examination; but he rests content with remarking that ""the police

in this case did not play the game well"". In my opinion the objection goes to the root of the case. It has been pointed out by the P. C, in ''Pulukuri

Kotayya v. Emperor'', 1947-1 MLJ 219 : AIR 1947 P C 67: 48 Cr L J 533 as follows :

The right given to an accused person by this section (referring to Section 162) is a very valuable one & 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, & may lead to the ultimate break down of the whole of his evidence; & in the present case it has to be remembered that the accused''s

contention was that the prosecution witnesses were false witnesses. Cts in India have always regarded any breach of the proviso to Section 162 as

matter of gravity. ''Baliram v. Emperor'', ILR 1945 Nag 151 : AIR 1945 Nag 1 : 46 Cr L J 448 where the record of statements made by

witnesses had been destroyed & Emperor Vs. Bansidhar and Others, , where the Ct 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 those 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 the statements were not made available to the accused, & as pointed out by the P. C., an irresistible inference arises that prejudice has

been caused to the accused. Denial of these statements to the accused has resulted in the exclusion of evidence which could be used by him u/s

145, Evidence Act. In the circumstances the accused cannot be said to have had a fair trial.

I, therefore, set aside the conviction & sentence & acquit the applt. The fine if paid will be refunded.

I must say that this is not the only case in which I have come across such conduct on the part of the police in the Dist of Anantapur. The police

in this Dist seem to adopt a peculiar technique of saying that they embody the statements in what is called a special report & refuse to give copies

of such statements to the accused. This is contrary to the provisions of Section 162 Cr. P. C. & this often results in conviction being quashed. I

would like to invite the attention of the Inspector General of Police to the conduct of the police in this case & in this Dist, so that such irregularities

may, not occur again in future.