Tilkeshwar Singh And Others vs The State Of Bihar

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Criminal Appeal No. 143 of 1954

Decision Date: 8 December 1955

Coram: Justice Vivian Bose, Justice T.L. Venkatarama Ayyar, Justice N. Chandrasekhara

In the case titled Tilkeswar Singh and others versus the State of Bihar, the judgment was delivered on 8 December 1955 by the Supreme Court of India. The opinion was authored by Justice Vivian Bose, with the bench comprising Justices Ayyar, T. L. Venkatarama, and N. Chandrasekhara. The petitioners were Tilkeswar Singh and several co‑accused, and the respondent was the State of Bihar. The case is reported in the 1956 All India Reporter at page 238 and in the Supreme Court Reporter (second series) at volume 1043, and it concerns provisions of the Evidence Act, the Code of Criminal Procedure of 1898, and sections 34 and 149 of the Indian Penal Code of 1860. The headnote of the judgment states that while the joint recording of witness statements during an investigation violates section 161(3) of the Code of Criminal Procedure and must be disapproved, such a violation does not automatically render the witnesses' testimony inadmissible at trial. The Court explained that it remains within the trial judge’s discretion whether to rely upon that testimony and what weight, if any, to give it. The Court cited Zahiruddin v. Emperor (AIR 1947 P.C. 75) as a precedent that was applied, whereas Baliram Tikaram v. Emperor (AIR 1945 Nag. 1) and Magan‑lal Radhakishan v. Emperor (AIR 1946 Nag. 173) were disapproved, and Bejoy Chand Patra v. the State (AIR 1950 Cal. 363) was approved. The judgment further observed that the court possesses the authority to substitute a charge under section 149 of the Indian Penal Code in place of a charge under section 34. In support of this view the Court referred to Karnail Singh and others v. the State of Punjab ([1954] S.C.R. 904) and the case known as Willie Slaney’s case (Criminal Appeal No. 6 of 1955). Regarding section 342 of the Code of Criminal Procedure, which provides for the oral examination of an accused in court, the Court noted that although filing written statements by the accused is discouraged, the mere fact that an accused furnished a written statement instead of being examined orally does not constitute a ground for overturning the conviction unless it can be shown that the accused suffered prejudice as a result. Consequently, the Court held that where the accused were tried under section 302 read with section 34 of the Indian Penal Code, and where the Additional Sessions Judge relying on the evidence of three prosecution witnesses—whose statements had been recorded jointly in violation of section 161(3) of the Code of Criminal Procedure—convicted them and sentenced them to transportation for life, the High Court on appeal, while agreeing with the factual findings, altered the conviction to one under section 326 read with section 149 of the Indian Penal Code and modified the sentence accordingly. The Supreme Court concluded that such a conviction could not be set aside. The judgment concerns Criminal Appeal No. 143 of 1954, which was filed by special leave from the Patna High Court’s order dated 12 August 1953 in Criminal Appeal No. 345 of 1952, itself arising from the Additional Sessions Judge, Darbhanga’s order dated 20 August 1952 in Session Case No. 12 of 1952.

The appellant was prosecuted before the Additional Sessions Judge at Darbhanga on charges of murder under section 302 read with section 34 of the Indian Penal Code, together with charges under section 147 for a portion of the accused and under section 148 for the rest, on the ground that they participated in an unlawful assembly and rioted. The prosecution stated that the deceased, Balbbadra Narain Singh, and the accused were both pattidars in the village of Mahe and that a long‑standing animosity existed between them concerning the village pattidari. On the morning of 5‑3‑1951, at approximately ten o’clock, the deceased was returning from the river to his residence, known as his baithka. While he was on the way, the accused, who were armed with bhalas, swords and lathis, together with other persons, surrounded him in the courtyard of the village school and assaulted him. One assailant, identified as Harischandra Singh, who remains at large, thrust a bhala into the deceased’s abdomen, after which the other accused joined the attack. The victim managed to reach his baithka, from where he was taken to the police station at Singhia. There he lodged a complaint that formed the basis of the first information report, which described the incident and named the accused as participants. The injured man was subsequently taken to a hospital where, owing to his critical condition, the attending doctor recorded his dying declaration. He was later transferred to the Samastipur hospital for further treatment, but he died en route. Relying on the first information report and the police investigation, the police framed charges against the accused under section 302 read with section 34 for murder and under sections 147 and 148 for rioting. The defence contended that the deceased had been attacked by unknown assailants at his baithka in the early hours of 5‑3‑1951 and that the accused were not involved in the offence. The Additional Sessions Judge accepted the prosecution’s evidence, convicted the accused under section 302 read with section 34, and sentenced them to transportation for life. He also convicted some of the accused under section 147 and the others under section 148, but imposed no separate sentence for those offences. Counsel for the appellant were H. J. Umrigar and B. C. Prasad, while counsel for the respondent were B. K. Saran and M. M. Sinha.

The appellants appealed the judgment to the Patna High Court. The learned judges of that court concurred with the findings of fact reached by the Sessions Judge, but they altered the murder conviction from section 302 read with section 34 to section 326 read with section 149, and they substituted the life transportation sentence with several terms of imprisonment. Although the High Court retained the conviction of the accused on the rioting charge, it likewise awarded no separate sentence for that conviction. The present appeal is directed against that judgment of the Patna High Court.

The appeal before the Court arose from the judgment that had been the subject of the earlier discussion. counsel for the appellants, identified as Mr. Umrigar, opened their case by arguing that the finding of the lower courts—that the incident occurred in the school courtyard rather than in the deceased’s baithka—was based on evidence that should not have been admitted. The first piece of contested material was Exhibit P‑7, which was a statement recorded by a police officer after the first information report had been lodged and after the investigation had begun. According to the counsel, the admission of this statement was barred by section 162 of the Code of Criminal Procedure. The learned Judges, however, had held that the statement could be admitted under section 32(1) of the Indian Evidence Act, a view that the appellants challenged. Even assuming that Exhibit P‑7 were inadmissible, the counsel contended that the lower Courts would still have concluded, on the basis of the remaining evidence, that the attack took place in the school courtyard.

The second ground of objection concerned the testimony of P.W. 4, P.W. 7 and P.W. 12, whose statements the courts below had relied upon to accept the prosecution’s version of events. The counsel argued that these witnesses’ statements were inadmissible because they had been examined by the police during the investigation and their statements had not been recorded separately as required by section 161(3) of the Code of Criminal Procedure. The investigating officer, identified as P.W. 18, testified on this point, stating: “The Daffadar produced Sital Singh (P.W.’12), Ram Karan Singh (P.W. 7) and Ramkinker (P.W. 4). First of all, I examined them separately but recorded their joint statement in respect of common things. I made a separate record about the identification and the weapons.” The joint recording of the witnesses’ statements was clearly contrary to the requirement of section 161(3). The counsel asked whether this breach should render the witnesses’ testimony inadmissible. The Court noted that section 161(3) did not expressly prohibit the later use of such testimony and that the police were not obligated to make a separate written record of every statement. To hold the testimony inadmissible would be anomalous, especially since the statements had nevertheless been reduced to writing, albeit not in the manner prescribed. The Indian Evidence Act contains detailed provisions governing who may testify and when evidence is excluded. Under those provisions, P.W. 4, P.W. 7 and P.W. 12 were competent witnesses, and their evidence regarding the incidents to which they had deposed was not inadmissible. The Court referred to the Privy Council decision in Zahiruddin v. Emperor, A.I.R. 1947 P.C. 75, which had held that a failure to comply with section 162(1) might affect the weight of evidence but did not automatically bar its admission.

The defect in the witness’s statement does not affect its admissibility. Accordingly, the Court concluded that the testimony of P.W. 4, P.W. 7 and P.W. 12 cannot be held inadmissible merely because their statements were recorded jointly by P.W. 18 rather than separately as mandated by section 161(3). Counsel for the appellant argued that the evidence should be excluded and relied on the decisions in Baliram Tikaram v. Emperor (1) and Maganlal Radhakishan v. Emperor (2). In Baliram Tikaram v. Emperor (1), a case decided under section 162 of the Code of Criminal Procedure, the accused had not been provided with copies of the statements taken by police under section 161. The Court held that this denial deprived the accused of a valuable right and likely caused prejudice. The same view was endorsed in Viswanath v. Emperor (3), and no exception was permitted. However, the learned Judges further observed that the evidence of witnesses who gave statements during the investigation would itself be inadmissible. They explained their reasoning as follows: “How can evidence be admissible and proper for consideration when the accused is robbed of his statutory means of cross‑examination and thereby denied the opportunity of effectively cross‑examining his adverse witnesses? No evidence recorded by the Court, unless it satisfies the requirement of section 138 of the Evidence Act, can become admissible and proper for consideration. It would indeed be bold to say that the evidence of a witness is legally admissible against a party even though he at the time it was given had not the full opportunity to cross‑examine him.” The same judges reiterated this view in Maganlal Radhakishan v. Emperor (2). The present Court, however, cannot accept that proposition as a correct statement of law. It is the view of this Court that non‑compliance with the requirements of section 161(3) may affect the weight attached to the witnesses’ evidence, but it does not render the evidence inadmissible. This principle was affirmed by Harries, C.J. and Bachawat, J. in Bejoy Chand Patra v. State (1), where the question arose directly for decision, and this Court agrees with that approach. In the case before us, the learned Judges noted the infirmity in the evidence of P.W. 4, P.W. 7 and P.W. 12 due to the failure to observe section 161(3), yet they were prepared to accept the testimony as reliable. Consequently, the Court must hold that the findings of the lower courts are not vulnerable to attack on the ground that they rested on inadmissible evidence. The next contention raised was that the charge on which the appellants were tried was under section 302 read with section 34, and that the learned Judges of

The High Court was held to have erred in convicting the appellants under section 326 read with section 149. Before the learned Judges the appellants’ counsel argued that the court possessed no authority to replace the application of section 34 with section 149, but the Judges rejected that argument. The issue of whether a court may substitute section 149 for section 34 has subsequently been examined by this Court in Karnail Singh and others v. The State of Punjab and in the case commonly referred to as Willie Slaney’s case. Counsel for the appellants conceded that, in light of those decisions, the question is no longer open and must be answered adversely to the appellants. The appellants also contended that they had not been properly examined under section 342 and that, because of this alleged defect, the conviction should be set aside. The record shows that when the trial court began the examination under section 342, the appellants informed the court that they would submit written statements. Those written statements were extensive and addressed every point raised by the prosecution evidence. Counsel for the appellants was unable to identify any question that could have been asked of the appellants for which the statements did not contain a response. Accordingly, it was held that the appellants suffered no prejudice from the procedure. It is true that section 342 envisions an examination in open court and that the practice of filing written statements in lieu of oral answers is generally discouraged, as noted in A.I.R. 1950 Cal. 363, the 1954 Supreme Court Reporter at page 904, and Criminal Appeal No. 6 of 1955. However, such procedural disapproval does not constitute a ground for interference unless a prejudice to the accused is demonstrated. Moreover, it is not unusual for an accused to prefer submitting written statements rather than responding to oral questions under section 342, in order to avoid unintended admissions or damaging remarks. Because no prejudice was shown, the contention regarding improper examination was rejected. Consequently, the appeal was dismissed.