The State vs Hardial Singh

Gurnam Singh, J.—Hardial Singh accused respondent was challaned for the murder of Bhajan Singh. He was tried by S. Rajbir Singh Kang Sessions Judge of Sunam and acquitted. The State was not satisfied with the order of acquittal and have come up in appeal. to this Court.

The prosecution story as narrated during the trial briefly is as follows:- On 7-1-2004 (19-4-1947) in the afternoon, Hardial Singh respondeat was sitting on a platform in front of the house of one Gobinder Singh of his village. At that time, the deceased Bhajan Singh was seen going through the lane towards his threshing floor. Bhajan Singh was armed with a salang (an agricultural implement-fork with long handle). When the deceased reached dose to the respondent, the latter asked him if the gram corn was thrashed and ready for distribution. This inquiry related to the gram which were sown by Mota Singh in the field of the accused. The deceased who was occupancy tenant of the accused, had sublet this field to Mota Singh. On the inquiry of the accused about gram, the deceased used a filthy language in reply. The respondent objected to this. On this Bhajan Singh deceased attacked the respondent with his salang which he aimed at his head. The respondent had a Tir (a steel arrow) in his hand. He warded off the blow with that arrow. The deceased Bhajan Singh repeated the blow and, again aimed it towards his head. The accused respondent again warded it off. When the deceased Bhajan Singh was in the act of striking the third blow, the respondent hit him with the Tir which was already in his possession. The deceased on the receipt of this blow fell down. The accused-respondent left the place leaving his victim lying in the lane in from, of the house of Gobinder Singh. This occurrence was witnessed, according to prosecution, by Chand Singh P.W. 2, Phalli P.W. 3 and Bachan Singh P.W. 4. All these three prosecution witnesses have unanimously given the story narrated above. The learned Sessions Judge believing the story to be true, has acquitted the accused giving him the benefit of right of self defence.

Chand Singh P.W. after this occurrence left for Lehra Gaga where Gajja Singh the brother of the deceased, was employed. On reaching this place, Chand Singh told Gajja Singh about the death of Bhajan Singh. Gajja Singh then proceeded to the police station situate at the same place and made the F.I.R. Ex. P.A. at 6-30 P.M. This police station is situate at a distance of about two miles from the place of occurrence. After recording the report, the Sub-Inspector M. Inder Singh proceeded to the spot. On his arrival there, he found the dead body of Bhajan Singh lying at the spot. He prepared the injury statement of the deceased and also prepared the inquest report. He then sent for the respondent who was found at his own house. The respondent on getting the order of the investigating officer appeared before him. The Sub-Inspector recorded his statement. He also recorded the statements of witnesses and arrested the accused Hardial Singh. The respondent also produced the Tir Ex: P. 1 before the Sub-Inspector. The investigating officer then sent the dead body of Bhajan Singh for post mortem examination. Dr. Major Inder Singh held the post mortem examination on the dead body on 20-4-1947 at 10-30 A.M. He noted the following injury on his person:

Stab wound 11/2" x 1/2" deep into the chest cavity on the left side of chest 11/2" below the left nipple.

The cause of death in the opinion of the doctor appeared to be the stab wound of the heart and left lobe of the liver resulting in ''syncope'' due to sudden loss of blood. The injury was the result of sharp pointed weapon and was sufficient in the ordinary course of nature to cause death. As a result of this investigation, the accused was challaned by the police and was sentenced to death after trial by S. Kartar Singh Sessions Judge. He came up in appeal to the High Court where his conviction was set aside and retrial was ordered. It was during this trial that the accused was ordered to be acquitted by the learned Sessions Judge.

The respondent was examined by the trial Court where he gave the same version of the occurrence which is now given during the trial by the three prosecution witnesses.

The motive for this incident is said to be that the accused and the deceased were friends. A day before the occurrence the accused went to the house of the deceased and the deceased objected to his going there on account of trouble between the landlords and the tenants. According to the prosecution, the other tenants had asked the deceased not to allow the respondent to go to his house. It may be mentioned here that the respondent is one of the landlords in this village and the deceased was one of the tenants. It is admitted by the prosecution that an acute trouble was going on between the landlords and tenants in those days. In support of this motive, the prosecution produced two witnesses, namely, Gauri Shankar and Puran.

The learned Sessions Judge has not believed the truthfulness of this motive. He has given various reasons for arriving at that conclusion. I am also of the same opinion. This version of the motive given by the prosecution cannot be believed. After discussion of the evidence the judgment proceeds in my opinion, the incident related to by the witnesses was hardly a cause of murder on the next day at 5 P.M. when the respondent was quietly sitting at a place away from the house of the deceased, I agree with the learned Sessions Judge that the incident of murder was not the result of the so-called motive given by the prosecution witnesses.

The prosecution in support of their case produced three eye-witnesses, namely, Chand'' Singh, Phalli and Bachan Singh. The learned Sessions Judge has believed their testimony to be true and believing it to be so, he has given the benefit of exception giving him the right of private defence of person. The prosecution story itself gives the right of private defence to the accused.

Section 96 Penal Code, reads as follows:

Nothing is an offence which is done in the exercise of the right of private defence.

Section 97 reads

Every person has a right, subject to the restrictions contained in Section 99, to defend first His own body, & the body of any other person, against any offence affecting the human body; ...

Then the restrictions are mentioned in Section 99, Penal Code. After this we are concerned with Section 100, Penal Code, which reads as follows :

The right of private defence of the body extends under the restrictions mentioned in the last preceding section, to the voluntary causing of death or of any other harm to the assailant, if the offence which occasions the exercise of the right be .of any of the descriptions hereinafter enumerated, namely:

First.- Such an assault as may reasonably cause the apprehension that death will otherwise be the consequence of such assault;

Secondly. -Such an assault as may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such assault;

It is unanimously stated by all the three P.Ws. that three attempts were actually made by the deceased to hit the accused on his head with a salang before the deceased was hit by the respondent. It may be mentioned here that Salang is a heavy weapon. The length of this weapon, according to the prosecution witnesses, was more than that of the Tir which was in the hand of the respondent. If this story of the prosecution is true as I have no reasons to doubt it there was at any rate an apprehension of grievous hurt to the respondent at the hands of the deceased. Under such circumstances, the respondent was perfectly justified in using the weapon which was already in his possession. The affair was so sudden that the respondent had no chance of escape unless he had used his weapon. The law in such a case gives the right to retaliate. Under such circumstances the accused was perfectly justified in causing the death of his opponent.

-''Bishan Singh v. Emperor'' AIR 1929 Lah 443 was a similar case in which it was held

According to Section 100 I.P.C, the right of private defence extends even to the causing of death, if there is reasonable apprehension of grievous hurt to the person attacked. A ''salang'' (fork with a long handle), I understand, is not less a formidable weapon than a dang and in the circumstances of the case Bishan Singh may have reasonably apprehended danger of ''grievous hurt'' being caused to him.

In -''Ata Mohd v. Emperor'' AIR 1934 Lah 995 it was held

The deceased lost his temper with his brother, the accused, and threatened him with a scythe. The accused apprehending that he was about to be hit on the head with the scythe, aimed a blow at the deceased in self-defence. In the absence of any other evidence to the contrary, it cannot be held that the accused exceeded the right ''of self-defence.

The appeal was accepted and the accused acquitted.

There are number of authorities on this point which I need not cite. I am quite clear in my mind that according to the prowl secution story as given during the trial, the accused was perfectly justified in killing thhe deceased in order to save his own life. I have no hesitation in giving him that right.

The learned A.A.G., who argued the case on behalf of the State, pointed out to us that these three witnesses, who have given the above narrated version of the case, gave a different version in the commitment proceedings. He therefore, wants us to ignore the evidence of the prosecution witnesses given during the trial and convict the respondent on the evidence given by them during commitment proceedings. In other words, the counsel for the State does not rely on the statements of these witnesses made during the trial. It has, therefore, become necessary to examine as to when and how these statements of witnesses made during commitment proceedings were transferred to the file of the Sessions Judge.

On 12-12-2004 (24-3-48) the three eye-witnesses named above were examined by the Sessions Judge during the trial. They were cross-examined by the learned Public Prosecutor as well as the counsel for the respondent. At that time no request was made by the Public Prosecutor for the purposes of transferring these statements u/s 288, Code of Criminal Procedure nor did the learned Sessions Judge exercise his own discretion for so doing. It is not known at what stage the Public Prosecutor put in an application asking the Court to transfer these statements. The application, no doubt, is dated 12-12-2004. This application, it appears, was then sent to the counsel for the defence. The counsel S. Kartar Singh Advocate, who argued the case of the respondent before us, has stated at the bar that the application was sent to him at his house. On the back of that application, S. Kartar Singh Advocate wrote the following objections: "Noted. There are no adequate grounds for the statements being transferred. Dated 12-12-2004. Then the order of the Court appears below this objection. This order is as follows: "Transferred. Dated 14-12-2004."

The statements of the prosecution witnesses made before the Committing Magistrate are open to various objections. Once they are admitted, they are no doubt substantive piece of evidence. No opportunity was given to the respondent to cross-examine these P.Ws. with reference to the statements made by them before the Committing Magistrate. In view of the fact that these statements, once they are admitted u/s 288, Code of Criminal Procedure, is substantive piece of evidence, the accused was entitled to an opportunity to test them by further cross-examination. This opportunity was denied to the respondent by the manner in which the statements were ordered to be transferred. In fact, the statements were ordered to be transferred at the time when the witnesses were not in the witness box and in fact had left the Court after making their depositions. The record shows that the witnesses were examined and discharged on 12-12-2004 and the statements were transferred on 14-12-2004. There is no doubt that during the arguments in appeal before us, we showed desire to summon the R.Ws. in order to afford an opportunity to the respondent to cross-examine them. This opportunity was declined by the learned Counsel for the respondent at this stage of the case. The learned Counsel gave reasons for so doing. According to him, these three P.Ws. were already examined five times. When examined sixth time they would not hesitate to alter their statements in the light of the arguments addressed to us. It appears to me that the fears of the .learned Counsel for the respondent were genuine. The past conduct of the witnesses supports him in this belief.

Another argument addressed to us, by learned Counsel was that calling the witnesses at this stage of the case was really filling the gaps left out by the prosecution. This according to him was not permissible and was open to serious objection. There is some force in this argument as well. It was really desirable for the trial Court to offer an opportunity to the respondent to test the veracity of the witnesses, once he had decided to admit those statements. This was not done. Even the learned Public Prosecutor did not suggest this course to the trial Court. He put in the application for getting the statements transferred after the witnesses had already made their deposition''s and were discharged by the Court. This fact also shows that it was not the trial Court who really felt the necessity of exer-Cising his discretion given to him by law for admitting these statements.

The transfer of the statements u/s 288, Code of Criminal Procedure, in my opinion, also suffers from another infirmity. As I read the section, the discretion by the Sessions Judge is to be exercised with reference to each witness individually. This section does not contemplate a general order transferring the statements with reference to the evidence of all the witnesses together. It implies that when the witness is in the witness-box and his statement made during the trial is a departure from the previous statement made during the inquiry, the Sessions Judge has full discretion to order its transfer. This power is not to be lightly used. It has to be judiciously exercised. In this case, the learned Sessions Judge did not exercise this discretion at the time the witnesses were under examination in his Court. Later at the instance of the learned Public Prosecutor he passed one word order ''transferred�. By this order he admitted the statements of all the three P. Ws. In my judgment, the learned Sessions Judge did not apply his mind properly at the proper stage in thus exercising his discretion in favour of transferring the statements. The discussion on this point has really become academic in view of the fact that the trial Court has fully believed the testimony of the P. Ws. during the trial, and believing this testimony to be true, ordered the acquittal of the respondent.

Another objection to those statements is that they were never put to the prosecution witnesses as required by Section 145, Evidence Act. In other words, their attention was not drawn to the departure made by them during the trial. Thus the prosecution witnesses were given no opportunity to explain the contradictions in the two depositions. In my judgment, this was absolutely necessary. The witnesses must be given opportunity to explain the departure from the previous statements made by them during commitment proceedings. In the absence of this procedure, the Court is only left to guess the reasons for the contradictions and is likely to fall in error. When cross-examined by the Public Prosecutor regarding his statement before S. Kartar Singh Sessions Judge, Bachan Singh P.W. stated that he did not make mention of the salang in the hand of the deceased as the Sub-Inspector had asked him not to make a mention of it. Now if the witnesses'' attention had been drawn similarly to the statements made before the Committing Court, they might have given some explanation for the departure. In the absence of adoption of such procedure, the Courts are left to guess the reasons for it.

Assuming that these statements are admissible in evidence it is, in my judgment, not safe to convict the accused on the testimony of these witnesses alone. Some independent corroboration, in my opinion, is essential to record conviction of the respondent. But in this case no such corroboration is available. When a witness makes two contradictory statements, one or the other must be untrue. It becomes very difficult for the Courts to decide in favour of one or the other. It is, therefore, that the Courts look for some sort of independent corroboration. It is no doubt a rule of caution, but it safeguards against the miscarriage of justice. In this particular case, there is no other evidence except the testimony of these three P.Ws. The matter regarding the application of Section 145, Evidence Act, has been frequently considered by various High Courts in several judgments. (22) In -'' Emperor Vs. Ajit Kumar Ghosh and Others, it was held "Where there is no compliance with Section 145, Evidence Act, the previous statements of the witnesses before the Committing Magistrate should not be admitted in evidence.

Although on a proper application of the provisions of Section 288 the prosecution might have been able to use as substantive evidence the statement before the committing Magistrate, it must nevertheless be remembered that this application of Section 288 is subject to the provisions of the Evidence Act. Further, the application of the provisions of Section 288 is a matter within the discretion of the presiding Judge. It is not a proper exercise of this discretion for the Judge to allow the deposition of a witness before the committing Magistrate to be used as substantive evidence in a case unless the party seeking to do so draws the attention of the witness to any part of the previous statement under the provisions of Section 145, Evidence Act, with regard to which any discrepancy may arise or unless the Judge himself puts the necessary questions for the purpose of observing this procedure.

22a. In - Nanhu Mahton Vs. Emperor, it was held

No doubt when depositions before the committing Magistrate are admitted in the Sessions Court u/s 288 they are on the same footing with any other evidence in the case. But Section 145, Evidence Act, governs the position in so far as these statements are used for contradicting the witness either mainly or incidentally. Depositions, therefore, taken in the committing Magistrate''s Court which contradict the evidence given in the Sessions Court cannot, however, be put in without putting them to the witness.

The learned A.A.G. relied upon - AIR 1937 119 (Privy Council) Their Lordships of the Privy Council held

The words ''subject to the provisions of the Evidence Act, 1872'', appearing in Section 288, Code of Criminal Procedure cannot, be read so as to limit the purposes for which the deposition may be used. It cannot be maintained that the deposition, when admitted u/s 288, could only be used for the purpose of cross-examination within the provisions of Section 155, Evidence Act in view of the express provisions of Section 288 of the Code, that it is to be treated as evidence in the case for all purposes.

I am in respectful agreement with their Lordships'' view. I have no doubt in my mind that once the deposition is admitted, it becomes a substantive piece of evidence. The contention raised before their Lordships was that the deposition could, only be used for the purposes of cross-examination within the provisions of Section 155, Evidence Act. This contention, no doubt, was not supported by the express provisions of Section 288, Code of Criminal Procedure At the same time I am of the opinion that it is necessary to draw the attention of the witness to the contradictions. This point was not specifically raised before their Lordships of the Privy Council.

Section 155, Evidence Act, refers to impeaching of the credit of a witness. Section 145, Evidence Act, relates to cross-examination of a witness with reference to his previous statements. It also makes incumbent to draw the attention of the witness to the contradiction.

The learned A.A.G. also relied upon - Mohammad Sarwar v. Emperor AIR 1942 Lah 215 which lays down

Section 288 makes evidence transferred under that section substantive evidence in the case for all purposes. The discretion is given to the Sessions Judge to transfer the statement made before a Committing Magistrate to his own record. Once he has done so, the evidence before the Committing Magistrate is as good as that recorded by himself and is usable for all purposes. The words "subject to the provisions of the Evidence Act" appearing in Section 288 cannot be read so as to limit the purpose for which the deposition may be used. The deposition is to be treated as evidence in the case for all purposes. It is incorrect to say that Section 145 or Section 155, Evidence Act, governs the position and that the depositions taken before a Committing Magistrate which contradict the evidence given in the Sessions Court, cannot be put in without putting to the witness portions of the statement with which it is sought to contradict the witness. u/s 288, Criminal P.C., a Sessions Judge has an absolute, discretion to allow the statement of a witness to be transferred. Once a statement has been transferred then the statement is evidence for all purposes without limitation.

This judgment is based on AIR 1937 119 (Privy Council) referred to by me above. I am in respectful agreement with the proposition that once the statement is transferred u/s 288, Code of Criminal Procedure, it becomes a substantive piece of evidence. In my opinion, Section 145, Evidence Act, governs the position and that the deposition made before the committing Magistrate roust be put to the witness in case there is departure from it in a statement made during the trial. Their Lordships of the Privy Council, as already mentioned, did not refer to Section 145, Evidence Act and it appears that the attention of their Lordships was not drawn specifically to this Section their Lordships were merely; considering the application of Section 155. Evidence Act. Be that as it may in the cases referred to above the statements of the witnesses were'' transferred when the witnesses were under examination. Also there was an independent corroboration of the witnesses who had resiled from their previous statements. Both these oases, in my opinion, are distinguishable from the one before us.

In my judgment, it is not possible to say whether these witnesses made true disclosures in the commitment proceedings or they made true disclosures during the trial, All the three witnesses have, according to the prosecution, taken a complete somersault. It is in such cases that independent corroboration of their testimony is required by way of rule of caution. It may be that these witnesses did not tell the truth in the committing Court and they reverted to truth during trial. These witnesses have made a mention of the presence of salang with the deceased at the time of the incident. The only contradiction is that they did not depose to the assault made by the deceased on the accused. In - ''In re: Muruga Goundan'' AIR 1910 Mad 028 it was held

It is unsafe to convict an accused only on the evidence of persons who gave one version in the Committing Magistrate''s Court, and totally different version before the Sessions Court unless there is other reliable evidence in support of the prosecution.

Again, in - ''Harnam Singh v. Emperor'' AIR 1937 Lah 597 it was held

Where every one of the witnesses has been demonstrated at the trial to have contradicted the statement that he made before the committing Magistrate, it is not safe to convict the accused.

In - ''Parita v. Emperor'' AIR 1946 Lah 48 (I) it was held

In a criminal trial, the mere fact that a witness resiles from his previous statement and completely exonerates the accused in the statement made by him at the trial, makes it incumbent upon the Court not to act upon his evidence unless it is corroborated by any other independent evidence.

This case was decided by my Lord the Chief Justice, who was one of the Judges of the Punjab High Court, along with Mohammad Sharif J. It may be mentioned here that opportunity was given to the witnesses in this case to explain the contradictions.

In - ''Jagar Singh v. Crown'' Cri. Appeal No. 49 of 2005 (J), my Lord the Chief Justice and G.L. Chopra J. held as follows :

But it must be remembered at the same time that when a witness makes two different statements and one is entirely contradictory to the other, in order that one of those statements should be implicitly relied upon, some sort of evidence corroborating that statement should be forthcoming. I do not mean to say that, this is an absolute rule, because much depends upon the circumstances of each case. But it is safe to observe it as a rule of caution.

In - In Re: Kataru Chinna Papiah, it was held

Evidence of a witness, who in the Court of Sessions resiles from his statement before the committing Magistrate, though may be treated as substantive evidence u/s 288, should not be relied upon in the absence of corroboration.

In - AIR 1934 507 (Oudh) , it was held

It is quite unsafe, especially in a murder case, to rely upon the evidence of witnesses who have resiled from their previous statements.

There are several other authorities on the point. I need not refer to them any more. I am in respectful agreement with all these authorities referred to above. As already mentioned, it is really a rule of caution which requires the Courts to seek for independent corroboration when the witnesses have resiled from their previous statements. In the present case all the three P. Ws. have deposed contrary to the statements made by them before the committing Magistrate on the point of assault made by the deceased on the respondent. The respondent, however, ''had taken up the same position even in the committing Court and had cross-examined these witnesses regarding his self-defence. The prosecution witnesses, with the exception of Chand Singh had admitted in the Court of Committing Magistrate that the deceased was armed with a salang. At least the weapon in the hand of the deceased was admitted by these two witnesses. Even the Sub-Inspector, who investigated this case, admitted the presence of salang close to the dead body when he reached the spot. Chand Singh, P.W., however, totally denied the presence of salang with the deceased at the time of incident in his statement before the committing Magistrate. This fact alone demonstrates that Chand Singh was not telling the truth at the time he was denying the presence of salang with the deceased. It is under these circumstances that we are bound to look for some sort of independent corroboration to support the statements of witnesses made before the committing Court. But in this case there is no corroboration available. Under these circumstances it is not possible to rely upon the statements of these witnesses in order to convict the respondent for the murder of Bhajan Singh.

Besides the statements of these P.Ws. in support of the version of the accused, there are five defence witnesses produced by him in support of the same. They give exactly the same version as is given by the three eyewitnesses produced by the prosecution. They are P.Ws. Amrik Singh, Teja Singh, Dalip Singh, Jawala Singh and Santa Singh. The presence of all these defence witnesses is admitted by the three P.Ws. at the spot at the time of assault. We have been taken through their statements by the counsel for the parties I do not find anything in their statements to induce me to disbelieve them. Out of these D.Ws. Dalip Singh is the first cousin of the accused Hardial Singh, and Amrik Singh is his cousin in third or fourth degree. The rest of the witnesses have no relationship with the respondent and are not inimical to the deceased. I see no reason to disbelieve their evidence especially when it is supported by the prosecution evidence itself and also there are other indications in the case in support of their version. Santa Singh is a lambardar of a different village. His evidence, in my opinion, is straightforward and worthy of belief. Nothing has been pointed out to us by the learned Asst. to the Advocate General to disbelieve his statement.

In - ''Emperor v. U. Damapala'' AIR 1937 Rang 83 it was held

The phrase ''burden of proof is used in two distinct meanings in the law of evidence namely, the burden of establishing a case, and the burden of introducing evidence. In a criminal trial the burden of proving everything essential to the establishment of the guilt of the accused always lies upon the prosecution and that burden never shifts whatever the evidence may be during the progress of the case. But it would clearly impose an impossible task on the prosecution if the prosecution were required to anticipate every possible defence of the accused and to establish that each such defence could not be made out. Of this task the prosecution is relieved by the provisions of Section 105 and its closely allied Section 106. In Section 105 the phrase burden of proof is used in the sense of duty of introducing evidence. The duty of the accused u/s 105 is to introduce such evidence as will displace the presumption of the absence of circumstances bringing the case within an exception, and will suffice to satisfy the Court that such circumstances may have existed. The burden of the issue as to the non-existence of such circumstances is then shifted to the prosecution, which has still to discharge the major burden of proving the guilt of the accused beyond reasonable doubt.

If the Court, on a review of all the evidence, is left in reasonable doubt whether the circumstances bringing the case within general exceptions do exist or not, the accused in the case of a general exception is entitled to be acquitted, or, in the case of a special exception, can be convicted only of the minor offence.

Again, in - Parbhoo and Others Vs. Emperor, it was held

In a case in which any general exception in the Penal Code is pleaded by an accused person and evidence is adduced to support such plea, but such evidence fails to satisfy the Court affirmatively of the existence of circumstances bringing the case within the general exception pleaded, the accused person is entitled to be acquitted if upon a consideration of the evidence as a whole (including the evidence given in support of the plea of the said general exception) a reasonable doubt is created in the mind of the Court whether the accused person is or is not entitled to the benefit of the said exception.

In the present case it is not merely the evidence of the defence witnesses which supports the version of the accused, in addition to this, the evidence of the P.Ws. also gives exactly the same story which led to the death of Bhajan Singh. It must be remembered in this case that the accused was acquitted by the trial Court who believed the evidence of the P.Ws. given during the trial to be true. The accused, therefore, starts with the double presumption of innocence in his favour. Firstly, it is for the prosecution to make out their case beyond reasonable doubt, and the accused must be presumed to be innocent, and secondly, the accused having succeeded in securing his acquittal, we should not interfere until the State can conclusively prove the guilt of the accused.

Another factor worthy of consideration in this case is that the investigating officer did not record the statements of Bachan Singh and Phalli, the two prosecution eye-witnesses, separately u/s 161, Code of Criminal Procedure Under the circumstances the statements made at the earliest by the witnesses to the investigating officer were not available to the respondent to test their credibility through cross-examination by reference to those statements.

We summoned the investigating officer M. Inder Singh in our Court and examined him. He stated that he had recorded the statement of Chand Singh P.W. in detail, but did not record the statements of Bachan and Phalli in such details and merely recorded a brief gist of their statements. He was unable to explain why he failed to record their statements. In - Bejoy Chand Patra Vs. The State, it was held

An investigating officer is not bound to record the statements of a witness. If he does reduce statements into writing he must make a separate record of the statement of each of the persons whose statements he records. He cannot record a condensed version of the examination of all of them or a precis of what the witnesses are supposed to have said.

Non-compliance with the provisions of Section 161(3), however, does not make the evidence of the witnesses inadmissible though it is a matter which the Court is entitled to consider when dealing with credibility.

Again, in - AIR 1949 260 (Nagpur) it was held

Where a police officer making investigation examines a number of persons and records not what each of them had said but contents himself by recording the fact that he had questioned them and by making a digest of what he had learnt from them, there is a contravention of the provision of the sub-section.

It was further held

Where in a trial witnesses are called for the prosecution whose statements to the police have been reduced into writing but are not produced for the defence or if produced are of no value because what is recorded is merely the digest of what the police officer making investigation learnt from such witnesses the Court should disregard the evidence of such witnesses.

I am in respectful agreement with the view, expressed in Bejoy Chand Patra Vs. The State, The contravention of the provisions of the Criminal Procedure Code referred to above does affect the credibility of the witnesses. If their earliest statements made to the police had been recorded separately and were available to the defence, the witnesses could have been crosr-examined with reference to those statements. But unfortunately, in this case the investigating officer did not separately record their detailed statements. In my opinion, therefore, no conviction of the respondent can be recorded merely on the statements made by them before the Committing Magistrate under the circumstances of this case,

The next point urged by the learned defence counsel was to consider the type of eye-witnesses produced by the prosecution in support of their case. He urged that all these prosecution witnesses were chance witnesses and none of them was resident of the vicinity where the occurrence took place. There is no doubt that all these witnesses happened to be there on account of one or the other pretence. On the other hand, we find that some of the defence witnesses actually reside in the vicinity of the place of occurrence. There is some force in this argument of the learned defence counsel. (After discussion of the evidence the judgment proceeds:) The above discussion clearly shows that all the three eye-witnesses are interested in the deceased and are inimical to the respondent. Under the circumstances it is not safe to rely explicitly on their statements made before the Committing'' Magistrate unless they are corroborated by other independent evidence. As already mentioned, there is no independent evidence present in this case to corroborate their statements made before the Committing Magistrate.

The last point worthy of consideration is the presence of salang with the deceased at the time, of the incident. There is clear evidence present on the record to show an attempt on behalf of the prosecution to suppress the presence of this weapon. There is a column in the printed form of the inquest report provided to mention articles found lying close to the dead body. The investigating officer did not show the presence of this salang in that column. When cross-examined by the learned defence counsel, he did not give any satisfactory explanation for this omission. On the other hand, P.W. 4. Bachan Singh stated that the investigating officer had asked him not to disclose the presence of salang with the deceased. This appears to be a true statement in view of the fact that the Sub-Inspector himself omitted to mention it in the inquest report when he was required so to do. On the other hand, the defence of the respondent from the very start is that the deceased was armed with this salang and attempted to hit him with it. The prosecution witnesses have unanimously stated that this salang was damaged during the scuffle between the accused and the deceased. If the Sub-Inspector had taken the salang into possession instead of suppressing its presence, the Court would have been in a position to verify this fact as stated by the prosecution witnesses. The only other witness to verify this fact was Sahib Singh lambardar who had guarded the salang and the dead body at the spot till the arrival of the investigating officer. For reason best known to the prosecution, this Sahib Singh was withheld. He was examined during the previous trial before the Sessions Judge. The learned Counsel for the respondent has urged before us that according to the prosecution witnesses Sahib Singh was another eye-witness of this incident. He further urged that ho had supported the defence version before the Sessions Judge during the previous trial. I cannot take his testimony into consideration in the previous trial as it is not evidence in this case, but I am justified in drawing presumption against the prosecution for his non-production in this trial. Had he been produced, he would not have supported the prosecution case. The investigating officer, when questioned before us, stated that he had'' examined this salang and did not find any dints present on it. He was then asked by us to refer to Zimni on this point. After looking at the Zimni he admitted that he had made no mention of this fact in the Zimni. In my opinion, the mere examination of the salang by him shows that salang had played some part during the incident. Further examined the Sub-Inspector stated that the accused had made no mention of this salang to him when the respondent was examined by him before his arrest. We again asked Mm to refer to the Zimni on this point. After looking at the Zimni, the investigating officer had to admit that the accused did make a mention of the salang in his statement. The Sub-Inspector further stated that the accused did not make a mention of assault on him by the deceased. This statement of the Sub-Inspector is firstly inadmissible, and secondly, the way this investigating officer had made contradictory statements, he cannot be relied upon. It is settled law now that no statement made by an accused person during investigation to the police officer can be brought on the record. But in this case, it is difficult for me to accept the statement of the investigating officer in view of the fact that he attempted to make statements against the facts noted in Zimni. The investigating officer further stated that it was not brought to his notice that some other persons had also witnessed the occurrence. He himself admits that he completed the investigation of the case that very night. It appears to me that he either did not care to record the statements of other witnesses who had seen the occurrence, or he was in such a desperate hurry that he did not have ample opportunity to know the existence of such witnesses. On the other hand, the prosecution witnesses have unanimously admitted the presence of other persons at the spot at the time of the incident. Against this, the evidence of the investigating officer cannot be relied upon. Moreover, the Zimnis, as admitted by the investigating officer are not paged. There is no note to the effect on these as to when they were sent to the headquarters. Even otherwise, it is settled law that no accused can be convicted on the basis of the facts noted in the Zimnis, that is to say, the Zimnis cannot be used to the prejudice of the accused person.

For the reasons given, in my judgment, the State has failed to prove the guilt of the respondent. I, therefore, dismiss the appeal filed by the State against the respondent and maintain the order of acquittal. The accused is on bail and is discharged from his bail bond,

Teja Singh, C.J.

In my opinion the prosecution was not able to prove beyond doubt that the respondent was guilty of the offence of murder and that, the Court below was wrong in acquitting him. Accordingly I hold in agreement with my learned brother that the appeal must stand dismissed and the respondent''s bail shall stand discharged.