SUPREJviE COURT REPORTS v. THE STATE OF BIHAR

2S.C.R. SUPREME COURT REPORTS 1045 treatment to the hospital at Samastipur, but on the way he died. On the basis of the first 1 nforma tion report and on the enquiries made by . them, appellants under section 302 read police charged with section 34 for murder and under sections 147 the appellant and 148 was that the deceased was attacked by some unknown assailants 1n his baithka in the early hours of 5-3-1951, and that they were not concerned in the offence. for rioting. The defence of 9!l!l r;/l:IJhwar Sinflt and others v. Tiu Stal• of Biliar Vmkatarama Ay_var J. sentenced transportation The Additional Sessions those sections. The appellants Judge, Darbhanga ac the evidence of the prosecution, and convicted cepted read with section 34, the appellants under section 302 for life. He also convicted them, some under section 147 and others under section 148, but imposed no separate sen tence under the High Court of Patna. The matter in appeal Judges agreed with the Sessions Judge in his learned conclusions of fact, but altered the conviction one under section 302 read with section 34 to one under read with section 149, and the sentence section 326 terms of impri to various from transportation also maintained sonment. The the charge of rioting, conviction of but awarded no against this 1s directed. Judges the appellants on separate It the present appeal judgment therefor. sentence learned for life it wa.s based on On behalf of the appellants, it was firstly contended finding of the courts below by Mr. Umrigar that that the incident took place at the school courtyard and not at the baithka of the deceased was bad, be inadmissible evidence, viz., testimony of P.Ws. 4, 7 and 12. Exhibit P-7 and the Exhibit P-7 is a statement of the deceased taken by to the lodging of the first the police officer subsequent investigation had begun, information and after the and its reception would be barred by section 162 of the Code of Criminal Procedure. But learned it would be admissible under thought Judges section 32(1) of Indian Evidence Act, and correctness of this view is disputed by the appellants. in evidence, IJut even if Exhibit P-7 is inadmissible 1955 Tilkeshwar Singh and ot!ur v. TM State o~f Bihar Venkatarama AY.,var J, 1046 SUPREME COURT REPORTS [1955] observed Then, we come that would not assist Judges they would have, on the decea,;ed was attac'.,_ed the appellants, as the learned that document, the other evidence, held that school courtyard. to the evidence of P.,Vs. 4, 7 c•.nd 12 in accepting on which the courts below have relied the prosecution. version of the incident as given by Mr. U mrigar contended that they were examined by the police admissible, because statements required by section were not 161(3) of what the investigating officer, P.W. 18, deposed with reference to this matter. recorded the Code of Criminal Procedure. This stage of investigation, and their evidence was separately as things. renders separate I examined record about in respect of common "The Daffadar produced Sita! Singh (P.W. 12), (P.\V. 4). recorded I idc!ltificatio:-i and recording of a joint statement of (P.'vV. 7) and Ramkinker them separately but Ram Karan Singh First of all, their joint statement made a the wcapo;15", The tion of P.vVs. •!, 7 and 12 is clearly of sect:on 161(3), and must be disapproved. But questio'.1 is whether P.'vV s. 4, 7 ~nd 12 in court 16i(3) does not say so, and indeed, seeing police are not bound to make a record of the ments o[ witnesses no bar be anomalous reduced section. The provisions elaborate witnesses and on 'Nhat matters admissible. And on 12 are neither evidence as to the incidents inadmissible. held by the Privy Council that with the provisions of (I A.I.R. 1947 P.C. 75. the exam11oa in contrQvention testimony of inadmi"ible. Section in which case there is admittedly it would testimony, their evidence to writing but not in the manner provided in Indian Evidence Act contains competent these prov1s10ns, P.Ws. 4, 7 and \Vitnesses, nor they deposed, it was ) to comply section 162(1) might greatly "' to the reception of their if we were because In Zahiruddin v. Emperor( 1 failure their evidence ·is statements were to hold inadmissible, incomnetent to which to who 1955 Tilke hwar Singh and others v. ThtSta!e of Bihm Venkatarama Ayyar ]. 2 S.C.R. SUPREME COURT REPORTS 1047 the value of the evidence of the witness, but impair its admissibility. On the same that would not affect the evidence of P.Ws. reasoning, 4, 7 and 12 their statements had been recorded by P.W. 18 jointly and not separately as required by section 161(3). it will follow inadmissible reason is not In support of his contention that their evidence the decisions inadmissible, Mr. Umrigar relied on Baliram Tikaram v. Emperor (' ) and Maganlal Radha In Baliram Tikaram v. Em- k_ishan v. Emperor(). peror( ), which was a decision under section 162 of the Code of Criminal Procedure the accused had not been furnished with copies of the statements recorded by the police officers under section 161, and it was held right, that deprived the accused of a valuable to them. That was and must have caused prejudice in Vi~wanath v. Emperor( 3), and no the view exception can be learned Judges taken to it. But that the evidence of the witnesses went on to obse.rve who gave itself this opinion was thus stated by them : statements at the investigation would inadmissible. The reason it satisfies It would the evidence of a witne'ss the accused cross-examination "How can the evidence be admissible and proper robbed of hrs for consideration when thereby statutory means or cross-examining denied the opportunity of effectively his adverse witnesses ? No evidence recorded by Court, unless requirement of section 138, Evidence Act, can· become admissible and proper for consideration. is legally admissibl~ against a party even it was given had not to cross-examine him". This view was in M aganltd Radhakishan v. Emperor( 2 reasons already given, we are unable as a correct statement of the law. that while the failure ments· ,of section 161(3) might affect reiterated by the same learned Judges to accept this \Ve are of the opinion require the weight to be though he at the full opportunity indeed be bold to to comply with ), but, for (I) A.I.R. I 945 Nag. I. (2) A.LR. 1946 Nag. 173. (3) I.LR. [1937] Nag. 178. 1955 Tilkeshwar Singh and others " Tiu State of Bihar V1nkatarama Ayyar J. 1048 SUPREME COURT REPORTS [1955] it does not attached to the evidwce of the witnes!es, render it inadmissible. That was so held by Harries, C.J. and Bachawat, J. in Bejoy Chand Patra v. The State('), where this question arose directly for decision, and we In the present case, are in agreement with this view. the attention of the learned Judges was drawn to the in the evidence of P.W s. 4, 7 and 12, arising infirmity section 161(3), to observe it as but they . were, nevertheless, prepared reliable. We must accordingly hold that the findings to attack on of the courts . below are not open ground inadmissible evi they were based on dence. reason of to accept failure the contention It was next contended read with section 149. Before the charge on which tried was one under section 302 the appellants were learned Judges of read with section 34, and that the High Court erred in convicting them under sec learned tion 326 Judges there was no power in the court to substitute section 149 for sectior> 34, but they declined to accept it. The question has since been considered by this Court in Kamai! Singh and others v. The State of Punjab(') and It is conceded by Mr. Umri Willie Slaney's case( ). no longer open. the appellants .• the question It must be answered adversely that was pressed was that in view of these decisions, the conv1ct1on the appellants under It was finally contended its examination under they would that there had been no section proper examination of should accordingly be 342, and that the court quashed. What happened was that when commenced appellants stated file written state elaborate and ments. Tbose· statemer~ts \Vere furnished to all the the answer of the appellants points raised in the prosecution evidence. Mr. Umri gar was unable to suggest any question which could have been put, with reference to which the statements the appellants did not contain an answer. Clearly, have not been prejudiced. section 342, It is no doubt true (2) [1954] S.C.R. 904. (I) A.LR. 1950 CaL 363. (3) Crin1inal Appeal No. 6 of 1955. 2S.C.R. · SUPREME COURT REPORTS 1049 the practice of filing statements court, section 342 contemplates an examination is to be depre cated. But thar_ is not a ground for interference, un less prejudice is nothing un is established. And it to prefer filing statements m usual for stead of answering questions under section 342, they should suffer by inadvertent admissions or by damaging statements. As no prejudice has been shown, this contention also must be rejected. the accused 1955 T ilkeshwar Sin:h and others v. Th• Stale of Bihar Venkatarama Ayyar J. In the result, the appeal is dismissed. JAYARAM VITHOBA AND ANOTHER ti. THE STATE OF BOMBAY. 1955 Dec em/Hr 13, [V1v1AN BosF.. VENKATARAMA AYYAR and CttANDRA SEKHARA AIYAR JJ.l Code of Criminal Procedure (Act V of 1898), s. 423(1)(b) and (J), s. 439-Powers of Appellate Court-High Court's powers of revi sion-Conviction by the trial Court but no sentence-High Court CM ftrming conviction and awarding sentence-Legality-Bombay Preven tion of Gambling Act (Bombay Act IV of 11)87), ss. 4(a), 5. (Bombay Act IV of 1887) The first appellant was prosecut."-1 under s. 5 of the Bombay for being Prevention of Gambling Act for the purposes of gaming and was, in present in a gaming house addition, charged under s. 4( a) of the Act for keeping a gaming house. The Presidency Magistrate, ':"ho tried the case, found him guilty under s. 4(a) and sentenced him to three months' rigorous imprison ment. He also tound him guilty under s. 5 but awarded no sepa the High Court set rate sentence under that section. aside the conviction under s. 4(a), but confirmed that under s. 5 and awarded a sentence of th.-ee months' rigorous imprisonment under that section. It was contended for the first appellant that the High Court had no power under s. 423( I) (b) of the Code of Criminal Pro cedure to impose any sentence under s. 5 of the Act when no such sentence had been awarded by the Magistrate and that, in any event, the award of such a sentence amounted to an enhancement and was, in con~equence, ille,;al, as no notice had been issued there for, a< rrquired by law. In revision, Held, that though s. 423(l)(b) of the Code of Criminal Proce the High Court had power to dure w:is not applicable to the case, pass ~he sentence under s. 423(I)(d). The law does not envhage a person being convicted for an