JUDGMENT
S.S. Byas, J.
1. Since both the appeals are directed against one and the same judgment of the learned Additional Sessions Judge, Rajsamand dated July 16, 1986, they were heard together and are decided by a common . judgment. By the judgment aforesaid, the Additional Sessions Judge convicted the accused Dalla under Section 302 and accused Smt. Bhanwari under Section 302/34, I.P.C. and sentenced each of them to imprisonment for life and a fine of Rs. 1000/-, in default of the payment of fine to further undergo two years’ rigorous imprisonment. The Sessions Judge also convicted the accused Dalla under Section 201, I.P.C. and sentenced him to two years’ rigorous imprisonment and a fine of Rs. 500/- in default of the payment of fine to further undergo six months’ rigorous imprisonment. The accused have come up in appeals and challenge their conviction.
2. Succinctly stated, the prosecution case is that the deceased Kishan Singh Rajput was the father of P.W. 5 Raisingh, P.W. 6 Khemsing, P.W. 7 Khumansingh, D.W. 1 Kumari Sayari and husband of accused Smt. Bhanwari. He was living with them in his house in village Matri P. S. Nathdwara. Kishan Singh was a Compounder in the Government Hospital, Nathdwara. He used to take up and down journeys from his village to Nathdwara to attend his duty. On Friday preceding August 23, 1983, Kishan Singh came from the hospital and reached his house at about 10.00 P.M. He took his meals and retired to sleep. While he was asleep, accused Mst. Bhanwari and D.W. 1 Kumari Sayari went outside the house and came back with accused Dalla with them. Accused Dalla came with a big stone in his hand weighing nearly 20 kilograms. Accused Mst. Bhanwari sat on the chest of Kishan Singh and D.W. 1 Kumari Sayari caught his feet. Accused Dalla struck three blows with the stone on the head of Kishan Singh. He thereafter pressed his throat. DW 1 Kumari Sayari also struck a few blows with the stone on the head of Kishan Singh. Kishan Singh passed away instantaneously on the spot. The incident was seen by P.W. 5 Raisingh, P.W. 6 Khemsingh and P.W. 7 Khuman Singh. Accused Mst. Bhanwari threatened them with dire consequences in case they divulged the secret. The dead body of Kishan Singh was taken outside the house and was buried in a pit When the whereabouts of Kishan Singh could not be traced out for three or four days, P.W. 1 Devisingh went to Police Station, Nathdwara and lodged report Ex.P. 1 of the occurrence. It was mentioned therein that foul smell was emitting from the place situate near the house of Kishan Singh. The police registered a case under Sections 201 and 302, I.P.C. and proceeded with investigation. The Station House Officer Badami Lal (P.W. 17) arrived on the spot. The dead body of Kishan Singh was disinterred from the pit and inquest report was prepared. The post-mortem examination of the victim’s dead body was conducted by P.W. 16 Dr. S. K. Lodha the then Medical Officer Incharge, Government Hospital Nathdwara. He noticed some external injuries over the dead body. He was of the opinion that the cause of death of Kishsi Singh was asphyxia resulting from strangulation of throat. The duration of the death was stated to be three to six days preceding the post mortem examination conducted on August 23, 1983. The post-mortem report prepared by him is Ex. P. 8. Two persons Prithvisingh and Bhanwarsingh were arrested by the investigating officer on August 26, 1983. In consequence of the information furnished by Prithvisingh, blood-stained soil, stone, spade and getti were recovered from his house. The investigation thereafter changed hands and it was entrusted on Sept. 11, 1983 to the Deputy Superintendent of Police, Mr. Dulli Chand Sharma (P.W. 20). He once again recorded the statements of Raisingh, Khemsingh and Khumansingh, according to whom their father Kishan Singh was killed by their mother Mst. Bhanwari, sister Kumari Sayari (D.W.1) and appellant Dalla. These three persons were thereafter arrested by the Deputy Superintendent of Police. On the completion of investigation, the police presented a challan against the accused Dalla, Mst. Bhanwari and Kumari Sayari in the Court of Munsif and Judicial Magistrate, Nathdwara The police further prayed that Prithvisingh and Bhanwarsingh who were earlier arrested during investigation be released under Section 169, Cr. P.C. The learned Magistrate disallowed this prayer of the police and refused to release Prithvisingh and Bhanwarsingh. However, the case of Bhanwarsingh was referred to the Childrens’ Court as. he was found below 18 years in age. The learned Magistrate committed the case for trial to the Court of Session, who conducted the trial against accused Dalla, Mst. Bhanwari, Ku. Sayari and Prithvisingh. The learned Sessions Judge, by his order dated August 6, 1984 discharged Prithvisingh and framed charges under Sections 302 and 201, I.P.C. against accused Dalla, Smt. Bhanwari and Ku. Sayari, to which they pleaded not guilty and claimed to be tried. It was contended on behalf of Ku. Sayari that she was below 18 years of age and as such she could not be tried by the Sessions Judge and that her case should be referred to the Childrens’ Court. This prayer found favour with the Sessions Judge and he, by his order dated June 25, 1985 dropped the trial against Ku. Sayari and referred her case to the Childrens’ Court. There, thus, remained accused Dalla and Smt. Bhanwari to face the trial. In support of its case, the prosecution examined 20 witnesses and filed some documents. In defence, the appellants examined three witnesses including Ku. Sayari (DW1). According to the appellants, they were innocent and have been falsely implicated by Manoharsingh and others. The real culprits were Bhanwarsingh and Prithvisingh, who had committed the murder of Kishan Singh. On the conclusion of trial, the learned Sessions Judge found the prosecution case substantially true against the appellants and no worth in the defence raised by them. The appellants were consequently convicted and sentenced as mentioned at the very outset.
3. We have heard Mr. M. C. Bhandari, learned Counsel for the accused Dalla, Mr. Mridul Jain, learned amicus curiae for the accused Smt. Bhanwari and the learned Public Prosecutor. We have also gone through the case file carefully.
4. At the forefront of their arguments. Mr. Bhandari and the learned amicus curiae contended strenuously that the trial was not fair and the accused have been materially prejudiced. It was argued that the earlier statements of P.W. 5 Raisingh and P.W. 6 Khemsingh were recorded by the investigating officer Badami Lal (PW 17) just after the case was registered at the Police Station. Thereafter their statements were recorded on September 12, 1983 by the Deputy Superintendent of Police Mr. Duli Chand Sharma (PW 20). The copies of the statements recorded by the Deputy Superintendent of Police, Duli Chand Sharma were furnished to the appellants, but the copies of the statements recorded just after the registration of the case by the investigating officer Badami Lal (PW 17) were not furnished to them. PW 5 Raisingh and PW 6 Khemsingh, in their cross-examination denied that their statements were recorded by PW 17 Badami Lal. However, when Badami Lal (PW 17) was examined during trial, the matter came to light. Badami Lal (PW 17), in his cross-examination, admitted that he had recorded the statements of Raisingh (PW 5) and Khemsingh (PW 6) during investigation after the case was registered at the Police Station. The appellants made a prayer to the Court below to make them available the copies of the statements of the aforesaid two witnesses recorded by PW 17 Badami Lal. This application was allowed and the copies of the statements of the aforesaid two witnesses were furnished to the appellants. When the copies were furnished to them, the appellants submitted another application in writing to recall PW 5 Raisingh and PW 6 Khemsingh for cross-examining and confronting them with their earlier statements, the copies of which were furnished to the accused during trial. This application was dismissed by the trial court by its order dated June 20,1986. It was argued that the accused must have been supplied the copies of the earlier statements of the witnesses recorded under Section 161, Cr. P.C. Had the copies been supplied to them when the challan was filed they would have cross-examined the witnesses Raisingh and Khemsingh and would have confronted them with reference to their earlier statements. The trial Court’s rejection of their application has resulted in the miscarriage of justice. The trial is not fair and stands vitiated as a whole. It was argued that the right to cross-examine with reference to the statements recorded under Section 161, Cr. P.C. and to confront the witnesses with the aid of it is a valuable right guaranteed to the accused by Section 161, Cr. P.C. and Sections 145, 146 and 155, Evidence Act. This right is well recognised and the denial of it casts serious prejudice to the accused. It was prayed that in these circumstances the only proper course would be to set aside the judgment of the trial court and to send back the case for retrial. In reply, the learned Public Prosecutor strived hard and made strenuous effort to sustain the conviction and the order of the trial court dated June 20, 1986. We have taken the respective submissions into consideration.
5. A perusal of the trial Court’s record shows that PW 5 Raisingh, in his cross-examination, denied that his statement was recorded more than once during investigation. He further denied that his statement was recorded during trial by the S.H.O. Badami Lal (PW 17). PW 6 Khemsingh, in his cross-examination, admitted that his statement was recorded earlier also in which he stated that his father was killed by Prithvisingh and Bhanwarsingh. PW 17 Badami Lal is the Station House Officer, who made the investigation before it was entrusted to the Deputy Superintendent of Police. Badamilal, in his cross-examination, admitted that he had recorded the statements of PW 5 Raisingh and PW 7 Khemsingh. When this fact was admitted by him, the appellants submitted an application on November 6, 1985 in the trial Court praying therein that the copies of the statements of Raisingh, Khemsingh and others, recorded under Section 161, Cr. P.C. during investigation be furnished to them. The learned Additional Sessions Judge, by his order, which he recorded on the back of the application on November 6, 1985, directed the Additional Public Prosecutor to furnish the copies of these statements to the appellants. The copies were, however, furnished to the appellants after the prosecution had adduced the full evidence. On June 19, 1985, the appellants moved an application in the Court below to recall the prosecution witnesses Raisingh, Khumansingh, Khemsingh and the Investigating Officer Badami Lal (PW 17) and to permit them to further cross-examine these witnesses with reference to their earlier statements recorded by the police, the copies of which were supplied to the appellants under the order of the Court. The learned Sessions Judge dismissed the application of the appellants by his order dated June 20, 1986. The Sessions Judge took the view that the accused should have applied for the copies as soon as the prosecution withnesses Raisingh and Khemsingh were examined by the prosecution. We are unable to appreciate the approach of the Sessions Judge. Raisingh (PW 6) had denied that his statement was recorded by the investigating officer Badami Lal during investigation. The fact that PW 5 Raisingh and PW 6 Khemsingh were examined during investigation and their statements were recorded under Section 161, Cr. P.C. came to the knowledge of the appellants only when the investigating officer Badami Lal was examined on November 6,1985 during trial. As soon as this fact came to the knowledge of the appellants, they moved the application on November 6, 1985 itself in the trial court to make the copies of the earlier statements of these witnesses available to them. There was, thus, no delay on the part of the appellants and they never remained sleeping over their right. Apart from that, when the fact had come to the notice of the trial Judge that the statements of the eye witnesses were recorded immediately after the registration of the case at the Police Station, it was his pious duty not to proceed further and to make the copies of those statements available to the appellants. The Court is meant to do justice and conducting a fair trial is a process to achieve that object. We may examine the legal position in this connection.
6. Section 161, Cr. P.C. speaks about the examination of the witnesses by the police during investigation. It empowers the investigating officer to reduce into writing any statement made to him in the course of investigation. Section 161, Cr. P.C. speaks about the use of the statement of a witness recorded under Section 161, Cr. P.C. Sub-section (1) of Section 162, Cr. P.C. reads as under:
162-Statement of Police not to be signed : Use of statement in evidence-
(1) No statement made by any person to a police officer in the course of an investigation under this Chapter, shall, if reduced to 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 any inquiry or trial in respect of any offence under investigation at the time when such statement was made.
Provided that when any 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 accused and with the permission of the Court, by the prosecution, to contradict such witness in the manner provided by Section 145, Evidence Act, 1872; and when any part of such statement is so used, any part thereof may also be used in ‘the re-examination of such witnesses but for, the purpose only of explaining any matter referred to in his cross-examination.
7. This sub-section came for judicial scrutiny before their Lordships of the Supreme Court more than once. In Noor Khan v. State of Rajasthan , it was observed:
The provisions of Section 162 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 statement of 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 Section 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.
In Badri v. State of Rajasthan , it was laid down that where a prosecution witness was not allowed to be cross-examined by the defence on a material point with reference to his earlier statement made before the police (recorded Under Section 161, Cr. P.C.), his evidence stands untested by cross-examination and cannot be accepted as corroborating the evidence of other witnesses.
8. In State v. Sardarsingh 1970 Cri LJ 558 (Raj), the matter was dealt with at length by a Division Bench of this Court. The provisions of Sections 173, 161, 162 and 207-A(3) of the old Code of Criminal Procedure, 1898 were scrutinized and it was laid down:
The provisions relating to recording of statement of witnesses and supplying of the copies provide a valuable safeguard to the accused so that they may be utilized at the trial for preparing effective defence. Such a request cannot be normally whittled down. Where the circumstances are such that the Court may reasonably infer that prejudice has resulted to the accused from the failure of supplying of the copies of the statements recorded under Section 161, Cr. P.C., the Court is justified in directing that the conviction should be set aside. The object of Sections 162, 173(4) and 207A(3), Cr. P.C. is to enable the accused to obtain a clear picture of the case against him. The sections impose an obligation upon the prosecution agency to supply copies of the statements of witnesses who are intended to be examined at the trial to enable the accused to utilise them in the course of cross-examination to establish such defence as may be desired to put up and also to shake the testimony of the witnesses. If in a case statements of witnesses were first recorded by the investigating officer and again by a senior officer, copies of both should be supplied to the accused.
Section 173(5)(b) Criminal P.C. reads as under:
173-Report of police officer on completion of investigation-
(5) When such report is in respect of a case to which Section 170 applies, the police officer shall forward to the Magistrate along with the report-
…(b) the statements recorded under Section 161 of all the persons whom the prosecution proposes to examine as its witnesses.
9. The position which, thus, emerges out is that the investigating agency is bound to produce the statements recorded under Section 161, Cr. P.C. along with its report and the accused is entitled to get copies of such statements in order to confront the witnesses. When more than one statement of a witness has been recorded, the accused is entitled to get copies of all such statements. This right cannot be whittled down merely by supplying the copy of only one statement. When the copies of the statements of witnesses recorded more than once are withheld and not supplied to the accused, it cannot be said to be a proper compliance of the provisions of Section 173(5)(b) or Section 162, Cr. P.C. The right to cross-examine and confront a witness with reference to his statement recorded under Section 161, Cr. P.C. is an undefeasible right and cannot be circumvented in any manner. No doubt, Section 162, Cr. P.C. by inserting the words “may be used by the accused” gives a choice to the accused to contradict or confront witnesses by their earlier statements in the manner provided by Section 145, Evidence Act. It is for the accused to make the choice, or not. But once he has made the choice, his choice remains unfettered and cannot be restricted by the trial Court. The provisions of Section 162 Cr. P.C. cannot be defeated merely by supplying the copy of only one statement of a witness when in fact his statement has been course of cross-recorded more than once during investigation. The prosecution must supply him the copy of all such statements of a witness, and failure to do so on the part of the prosecution invariably results in a material prejudice to the accused. Failure to supply copies of the statements recorded under Section 161 is bound to entail in prejudice to the accused and the extent of that prejudice cannot be properly imagined or measured or gauged. The right guaranteed to an accused under Section 162, Cr. P.C. is total and absolute. No exception can be taken to it by the prosecution.
10. In the instant case, as discussed earlier, the appellants were not supplied with the copies of the earlier statements of P.W. 5 Raisingh and P. W. 6 Khemsingh, recorded by the investigating officer Badami Lal (P. W. 17) when the case was committed for trial. These copies were also not filed along with the challan. The copies were not supplied to the appellants even at the time of the examination of the aforesaid two witnesses during trial. The appellants could not know of the earlier statements of these two witnesses till the fact was admitted by the investigating officer Badami Lal (P. W. 17). When the fact of recording the earlier statements came to their notice from the testimony of the investigating officer Badami Lal (P. W. 17), they immediately made a request to supply the copies of their statements to them. The trial Court accepted their request and copies were furnished to them. It is interesting that despite copies being supplied to the appellants, their request for recalling the witnesses (P. W. 5 Raisingh and P. W. 6 Khemsingh) was turned down by the trial Court. Turning down their request for recalling the witnesses for further cross-examination was not proper. If the witnesses were not to be recalled for further cross-examination to confront them with their earlier statements recorded under Section 161, Cr. P.C., supply of the copies of such statements to the appellants was meaningless because the earlier statements could not be put to the proper use. We are, therefore, unable to maintain the order of the learned Sessions Judge dated June 20,1986, by which he turned down the request of the appellants to recall the aforesaid two witnesses for further cross-examination in the light of their earlier statements recorded by the investigating officer Badami Lal (P. W. 17). The trial was, thus, not conducted in a proper manner. Suffice it to say that it was not a fair trial which the appellants faced in the Court below.
11. When the irregularity is illegal, the only proper course is to set aside the conviction and order for a retrial.
12. Mohinder Singh v. State it was laid down by their Lordships that where there has been no fair and proper trial, the case should be sent back for fresh trial. In Noor Khan’s case (1964(1) Cri LJ 167) (supra), the failure to supply the copies of statements of witnesses recorded under Section 161, Cr. P.C. was taken to be a sufficient reason to set aside the conviction and to hold a trial afresh.
13. Reverting to the case in hand, we have held that to failure of the prosecution to supply the copies of the statements of witnesses recorded under Section 161, Cr. P.C. the appellants is a serious irregularity resulting in material prejudice to the accused. This illegality goes to the root of the trial. This illegality in trial cannot be cured under Section 465, Cr. P.C. The aforesaid illegality in itself is sufficient to vitiate the trial. The conviction, should therefore, be quashed and a new trial should be ordered.
14. It was submitted by Mr, Bhandari and the learned amicus curiae that the appellants were on bail during trial. The fresh trial is to take time. In these circumstances the appellants should be released on bail. There is a justification in this request. The appellants were on bail during trial and are now in custody. The fresh trial is to take some time. In these circumstances it would not be improper to release them on bail.
15. In the result, the impugned judgment of the learned Additional Sessions Judge dated July 16, 1986 convicting the appellants is set aside and the case is sent back to the Court below with directions to conduct the trial afresh in the light of the observations made in this judgment. The request of accused Dalla and Smt. Bhanwari for bail is allowed. They shall be enlarged on bail on their furnishing a personal bond in the amount of Rs. 3000/- each, together with a surety in the like amount to the satisfaction of the learned Additional Sessions Judge, Rajsamand to put appearance in that Court on the next date of hearing and subsequently on all the dates of hearing till the trial lasts.