Noor Khan vs State of Rajasthan

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

Court: Supreme Court of India

Case Number: Criminal Appeal No. 9 of 1963

Decision Date: 19 August 1963

Coram: J.C. Shah, A.K. Sarkar, M. Hidayatullah

Noor Khan filed a criminal appeal before the Supreme Court of India against a judgment dated 19 August 1963 delivered by a bench consisting of Justices J.C. Shah, A.K. Sarkar and M. Hidayatullah. The petitioner, Noor Khan, was the appellant and the State of Rajasthan was the respondent. The case was reported in 1964 AIR 286 and 1964 SCR (4) 521. The matters arose under the provisions of the Code of Criminal Procedure of 1898, specifically sections 161(3), 162, 173(b) and 207A(3), relating to the recording of witness statements by police and the duty to furnish copies of those statements to the accused. The appellant together with nine other individuals had been tried before the Additional Sessions Judge at Sirohi for offences of rioting, membership of an unlawful assembly and, in furtherance of a common object, causing the death of one person and inflicting serious injuries on four others. In addition, the appellant faced a charge of causing death by gun‑shot injuries under section 302 of the Indian Penal Code. At the trial all of the accused were acquitted. The State of Rajasthan appealed the acquittals; the Rajasthan High Court set aside the acquittal of the appellant, imposed a term of life imprisonment on him under section 302, and affirmed the convictions of the remaining accused. Before the Supreme Court the appellant contended that section 161 of the Code of Criminal Procedure made it mandatory for the investigating officer to record the statements of every witness examined, and that the failure to supply those statements to the accused at trial deprived him of a valuable right, thereby vitiating the trial. The Court held that where the circumstances allowed a reasonable inference that the accused suffered prejudice because the statements recorded under section 161 were not supplied, the conviction could be set aside and the defect remedied in a manner appropriate to the circumstances. Conversely, if the Court, after considering the conduct of the trial and the accused’s attitude toward the defect, was satisfied that no prejudice resulted, it could uphold the conviction despite the breach of statutory duty. In the present case the Court found that no prejudice had been caused to the appellant; the allegation of prejudice had not been raised before the High Court, nor was any substantial argument advanced in the Supreme Court. The Court therefore affirmed the conviction, relying on the authority of Narayan Rao v. State of Andhra Pradesh (AIR 1957 SC 737) and Pulukuri Kotyya v. Emperor (LR 74 IA 65), while disapproving the earlier rulings in Baliram v. Emperor (ILR 1945 Nag 151), Maganlal v. Emperor and Maroti Mahagoo v. Emperor (ILR 1948 Nag 110).

I.L.R. [1946] Nag. 126 and Maroti Mahagoo v. Emperor, I.L.R. [1948] Nag. 110 were expressly disapproved. In the present matter the Sessions Judge did not base his conclusion on the demeanour of the witnesses, and the High Court correctly observed that the presence of the four injured persons at the scene of the offence was confirmed by the evidence of their injuries and therefore must be regarded as established beyond reasonable doubt. The High Court referred to the authority of Sheo Swarup v. King Emperor, L. R. 61 I. A. 398, in reaching that view. The case proceeded under criminal appellate jurisdiction as Criminal Appeal No. 9 of 1963, filed by special leave from the judgment and order dated 9 November 1962 of the Rajasthan High Court in D. B. Criminal Appeal No. 407 of 1961. Counsel for the appellant comprised Purushottam Trikamdas, C. L. Sarren and R. L. Kohli, while counsel for the respondent were S. K. Kapur and R. N. Sachthey. The judgment was delivered on 19 August 1963 by Justice Shah J. The factual background stated that Noor Khan, a resident of Kuchaman in Rajasthan, together with nine other persons, was tried before the Additional Sessions Judge, Sirohi, for the offences of rioting, being members of an unlawful assembly and, in furtherance of the common object, causing the death of one Pratap at about 2 30 p.m. on 29 September 1960, together with serious injuries to four other persons on the same occasion. Noor Khan was also charged with the substantive offence of causing Pratap’s death by gunshot injuries. The Sessions Judge acquitted all the accused persons at trial. On appeal by the State, the Rajasthan High Court set aside the order of acquittal in respect of Noor Khan while confirming the acquittal of the remaining accused.

The dispute that underlay the incident concerned a well in the village of Mundara. Noor Khan asserted that he had purchased a half share in the well, whereas Pratap and his brothers claimed exclusive ownership of the well, and the matter had been the subject of several earlier court proceedings. The prosecution alleged that on 29 September 1960 at about 2 p.m. Noor Khan, accompanied by his father Samdu Khan and eight other persons, went to Pratap’s field, which contained a farm, a house, a stable and the disputed well. The prosecution claimed that Noor Khan and his party called upon Pratap to surrender possession of the well; when Pratap refused, Samdu Khan discharged a muzzle‑loading gun at Ganesh, a brother of Pratap, but missed. Subsequently, Noor Khan fired at Pratap, causing Pratap’s instant death. The remaining members of Noor Khan’s party, acting on the instigation of Samdu Khan, then beat Ganesh, Prabhu, Mohan and Gulab—brothers of Pratap—using sticks and other weapons, inflicting serious injuries. After the assailants withdrew, Ganesh filed a complaint at the Bali police station naming fifteen persons, including Noor Khan and Samdu Khan. Ten of those named were arrested and tried before the Court of Session, Sirohi, where the Sessions Judge rendered his judgment.

In the trial court, all the accused were acquitted because the court found the allegation that an unlawful assembly of ten or more persons had gone to the well and caused Pratap’s death to be unreliable. The court observed that the prosecution had not produced any independent witnesses, that the prosecution’s narrative had been altered repeatedly, and that some persons had been falsely implicated. The court further noted that there was animosity between the two sides and that the testimony of those who claimed to have been present at the scene of the assault was not supported by any independent evidence, rendering it untrustworthy, especially since the complainant Ganesh had identified several individuals who were later proven not to have taken part in the assault.

On appeal by the State, the High Court of Rajasthan convicted Noor Khan for causing Pratap’s death by firing a muzzle‑loading gun, thereby committing an offence punishable under section 302 of the Indian Penal Code, and sentenced him to life imprisonment. With special leave, Noor Khan appealed to this Court. The record shows that Pratap died on 29 September 1960 as a result of a gun‑shot wound.

Dr. Mehta, who performed the post‑mortem on Pratap’s body, reported that, in addition to the entry wound, the victim’s left lung was lacerated by pieces of metal. The same medical expert examined the injured witnesses on 1 October 1960 and observed that the injuries were approximately forty‑eight hours old at that time. He recorded two contusions and an incised wound on Prabhu, three contusions on Ganesh, one contusion on Mohan and a swelling on Gulab. These four persons were examined as prosecution witnesses and they testified that Noor Khan had fired the muzzle‑loading gun that caused the fatal injury to Pratap and that they themselves had been injured by members of Noor Khan’s party during the same incident.

The presence of injuries on Prabhu, Ganesh, Mohan and Gulab strongly corroborated their claim that they were present at the assault on Pratap, which occurred at about two o’clock in the afternoon on 29 September 1960. Their version was further supported by the testimony of two female witnesses, Bhanwari and Mathurn.

The High Court, while considering the State’s appeal, held that despite certain infirmities in the prosecution case—such as the inclusion in the first‑information report of names of persons not present at the scene, apparently added by Ganesh because of personal enmity, and discrepancies between the eye‑witness statements at trial and the first‑information report regarding whether Samdu Khan or the appellant Noor Khan fired first—the substantive case of the prosecution remained intact. The Court emphasized that each of the four eye‑witnesses—Ganesh, Prabhu, Mohan and Gulab—had injuries whose age, as determined by Dr. Mehta, matched the timeline of the alleged assault, thereby supporting the prosecution’s core narrative.

In this case, the Court observed that the injuries suffered by the four eyewitnesses supported their account that they were present at the incident, and the lack of independent witnesses did not by itself warrant rejecting their testimony. Relying on the testimony of Mst. Bhanwari, which was further supported by the statements of Mohan Singh and Mst. Mathura, the High Court concluded that the fatal injury to Pratap had been caused by the appellant who discharged a gun from a distance of about four feet from Pratap’s body. The appeal before the High Court was filed against an order of acquittal that had been delivered by the trial court. The Court then referred to the authority of the Judicial Committee of the Privy Council in Sheo Swarup and others v. King Emperor, noting that sections 417, 418 and 423 of the Code confer upon the High Court full power to re‑examine the evidence on which an acquittal was based and to reverse that acquittal where the evidence so warrants. While exercising this power, the Court emphasized that the High Court must always give proper weight to (1) the trial Judge’s assessment of the witnesses’ credibility, (2) the presumption of innocence that favours the accused and which is not weakened merely because the accused was previously acquitted, (3) the accused’s right to the benefit of any doubt, and (4) the general reluctance of an appellate Court to disturb a factual finding arrived at by a judge who had the advantage of directly observing the witnesses.

The Court further noted that, in declining to accept the testimony of those who claimed to have seen the assault, the Sessions Judge had failed to appreciate the significant circumstance that each of the four eyewitnesses bore injuries which medical evidence indicated were caused at or about the time of the fatal assault on Pratap. It was considered highly improbable that members of the same family could have suffered severe injuries in other incidents on the same day and then conspired to give false testimony that they were present at the time of the assault. Accordingly, the presence of the four injured persons—Ganesh, Prabhu, Mohan and Gulab—at the scene of the offence was confirmed by the injury evidence and, as the High Court observed, must be regarded as established beyond reasonable doubt. The Sessions Judge did not base his conclusion on the demeanor of the witnesses, except perhaps in relation to Ganesh, and he arrived at his findings after reviewing the evidence, resting his conclusion primarily on four circumstances: (i) that the persons who

In examining the material before it, the Court identified several matters that the Sessions Judge had relied upon in reaching his conclusion. First, the Judge noted that persons who had been proved not to be present at the time the offence was committed were nevertheless alleged to have participated in the assault. Second, the Judge observed that the evidence established that only a single shot had struck the victim even though the witnesses stated that both Samdu Khan and Noor Khan were carrying muzzle‑loading firearms and had discharged them during the incident. Third, the Judge recorded a discrepancy concerning the distance from which the fatal shot was fired: the witnesses estimated that the shot came from a range not less than twenty feet, whereas Dr Mehta testified that the shot originated from a distance of merely four feet. Fourth, the Judge pointed out that the accused Noor Khan and the other accused had been denied the benefit of accessing the police statements made under section 161 of the Code of Criminal Procedure. The Court further considered the fact that the first information report named two individuals, Narpat Singh and Pratap Singh, as members of the party that arrived at the scene together with Noor Khan and Samdu Khan. This circumstance, the Court said, might have required a careful scrutiny of the testimony of Ganesh, who was the informant. However, the High Court, in forming its opinion, chose not to rely on Ganesh’s evidence; that testimony was entirely excluded and no further comment on it was necessary. The inclusion of the names Narpat Singh and Pratap Singh in the first information report did not, according to the Court, undermine the credibility of other witnesses who did not seek to implicate those individuals in the commission of the crime. The Sessions Judge also observed that the first information report listed two additional persons, Kesia Choudhary and Sheonath Singh, although they were not present at the scene of the offence. Ganesh, when cross‑examined, admitted that those two persons arrived only after the assault on Pratap had taken place and that the other witnesses did not state that they had seen them at the time of the assault. The Court recognized that the admission by Ganesh regarding the absence of those individuals at the critical moment could raise serious doubts about Ganesh’s reliability, but it held that such doubts alone did not constitute sufficient grounds to reject the testimonies of the remaining witnesses. The Court also acknowledged that the witness Prabhu Singh, son of Guman Singh, who was not a member of the family and claimed to have witnessed the assault, was found to be wholly unreliable, and that another individual identified as Sohan Singh, also not a family member, was not examined at trial. Nevertheless, the Court noted that the location and timing of the alleged offence were such that the presence of persons who were not close relatives of Pratap could reasonably be expected. All the eyewitnesses consistently testified that

In the case, the testimony indicated that Noor Khan was the person who inflicted the fatal wound on Pratap. The witnesses stated that at the time of the assault both Noor Khan and Samdu Khan were carrying muzzle‑loading firearms, and that only a single gun‑shot wound was discovered on Pratap’s body. According to the witnesses, Samdu Khan had discharged his own gun at Ganesh, but the bullet missed Ganesh. The Court observed that the lack of a gun‑shot injury on Ganesh did not make the entire narrative inherently improbable, nor did it justify discarding the account as unreliable. Likewise, the Court held that a disparity between the sequence of firing recorded in the initial police report and the testimony given in court did not provide a sufficient basis for rejecting the witnesses’ statements. The witnesses, however, differed in their estimates of the distance from which Noor Khan fired the fatal shot. Some witnesses placed the distance between eight and fifteen “poundas,” a pounda being defined as a step of approximately two feet. By contrast, the nature of the injury—particularly the charring and blackening observed at the entry wound—suggested that the barrel of the gun could not have been more than three or four feet away from Pratap at the moment of discharge. The Court noted that the estimates offered by the villagers, many of whom were illiterate or semi‑literate, should not be given excessive weight when evaluated against the topography and the circumstances of the assault. The judgment of the Sessions Judge was criticised for failing to focus on the witnesses’ evidence in relation to the fixed landmarks at the scene, and for not attempting to produce a scaled map of the area. The Court identified several permanent features at the site, including a Peepal tree, an Ora (room), a dhalia (stable), a phalsa (opening in a hedge), a well and a chabutra (platform). When the witnesses’ statements are considered in a context that does not rely solely on their distance estimates—especially given the known unreliability of such estimates from illiterate or semi‑literate persons—the Court concluded that the Sessions Judge’s finding could not be sustained. The Court further recorded that the witnesses gave varying distances: Ganesh testified that the distance was about twenty feet, while the other witnesses placed it at eight to fifteen poundas. According to the prosecution’s evidence, approximately ten persons were present at the scene, two of whom were armed with guns, several with axes, and the remainder with sticks. These individuals would have been dispersed over the limited area that contained the well, the Ora and the dhalia. The consistent testimony of the witnesses indicated that the attacking party was, at the time of the assault, positioned near the Peepal tree, a location that had been reliably established as being roughly eight feet from the western end of the wall of the Ora.

The Court noted that the witnesses uniformly testified that the group which carried out the assault was, at the moment of the attack, positioned in the vicinity of the Peepal tree. Reliable evidence had conclusively shown that this tree stood approximately eight feet from the western end of the wall that encloses the Ora. The weapon used by Noor Khan was identified as a muzzle‑loading gun whose barrel measured five feet in length. According to the witnesses, the party of assailants never moved beyond the Peepal tree during the incident. Mst. Bhanwari, whose testimony the High Court accepted and which was corroborated by Mst. Mathura and Mohan Singh, indicated that Noor Khan was positioned close to the Peepal tree. From that position, the logical inference was that the distance between the muzzle of the gun and the victim, Pratap, could not have been more than four feet. The presence of charring and the fact that the entire discharge entered through a single wound point clearly demonstrated that the shot had been fired at a very close range. When the witness statements were considered together with the layout of the Ora, the Dhalia and the Peepal tree as depicted in the rough sketch Ext. P‑2(a), the court examined the consistency of the distance estimates. It concluded that the various figures offered by the witnesses could not be trusted as reliable measurements. Mst. Bhanwari stated that Noor Khan was a single pace away from Samdu Khan, and that both Samdu Khan and Noor Khan discharged their weapons while they were near the Peepal tree. Prabhu gave an estimate that the distance between Noor Khan and Pratap was ten paces, but the overall evidence indicated that the shot was fired from a position opposite the Ora. Gulab testified that Samdu Khan stood five paces away from him and that Pratap was seated nearby, close to the Ora. Mohan deposed that the Peepal tree was situated six to seven feet from the site. He added that the accused persons were positioned on the east side of the tree, directly in front of the centre of the Dhalia. Mst. Mathura testified that the accused persons had approached from behind the Peepal tree. Every witness confirmed that Pratap was seated a single pace away from the wall of the Ora, facing south, the direction in which the Peepal tree stood. From this composite analysis, the Court concluded that Noor Khan discharged his firearm from a point situated south of the Ora, near the Peepal tree, striking Pratap who was seated approximately two feet from the Ora wall. The High Court accepted the testimony of Mst. Bhanwari, which was corroborated by the statements of Mst. Mathura and Mohan Singh. It held that the facts established by these three witnesses were consistent with the medical evidence presented. The Court clarified that this conclusion did not imply that the testimony of the other eye‑witnesses was false, but merely indicated that their distance estimates were inaccurate.

In this case, the appellant’s counsel, Mr. Purshottam, argued that the most serious flaw in the trial was the denial of the accused’s right to obtain and use the witnesses’ statements. He maintained that this deprivation rendered the conviction order void because the accused could not examine the material evidence against them. The investigation was conducted by Officer Hari Singh, who testified that he made only brief “jottings” of the witnesses’ accounts and did not record full statements at the time of investigation. According to Hari Singh, the head‑constable Kapuraram later used those jottings to prepare complete statements, which were then supplied to the accused while the witnesses were absent from the police station. During cross‑examination, the witnesses who claimed to have seen the assault denied that certain portions of the written statements, as prepared by Kapuraram, were ever made by them. The High Court observed that because the statements were derived from Kapuraram’s jottings, they could not be given evidential weight, and the witnesses’ denial did not necessarily render the recorded statements unreliable. Relying on Hari Singh’s testimony, the Court noted that the documents supplied to the accused were presented as copies of statements recorded under section 161 of the Criminal Procedure Code, although they were in fact compiled from the jottings. The High Court correctly held that the inconsistencies between those compiled statements and the testimony given at trial did not, by themselves, establish that the trial version was unreliable. Nevertheless, the appellant argued that section 161 imposes a mandatory duty on the investigating officer to record the statements of examined witnesses and to make them available to the accused at trial. He contended that the failure to provide those statements deprived the accused of a statutory right designed by the Legislature to ensure a fair and satisfactory trial. Under section 161, a police officer conducting an investigation under Chapter XIV may examine orally any person who is believed to possess relevant knowledge of the facts. The examined person is bound to answer all questions except those whose answers might expose him to criminal liability, penalty, or forfeiture. Sub‑section three of section 161 provides that the officer may reduce any statement made during the examination to writing, and must keep a separate record for each witness. Section 162, as amended by the Criminal Procedure Code (Amendment) Act 26 of 1955, stipulates that no statement reduced to writing shall be signed by the declarant, nor used for any purpose other than that prescribed.

In this provision, any statement made by a person to a police officer during an investigation under the Chapter, if it is reduced to writing, must be signed by the person who made it. Moreover, such a written statement, as well as any record of it—whether kept in a police diary or any other form—and any part of that statement or record, may not be used for any purpose in an inquiry or trial concerning the offence that was under investigation at the time the statement was made, except as provided later in the statute. The proviso to the provision adds that when a witness whose written statement has been prepared is called by the prosecution in the inquiry or trial, any part of that statement, if it is properly proved, may be used by the accused. With the permission of the Court, the prosecution may also use that part of the statement to contradict the witness. Section 173, sub‑section (4), as amended by Act 26 of 1955, obliges the officer in charge of the police station, before the inquiry or trial begins, to provide the accused with a copy of the first information report recorded under section 154 and with copies or relevant extracts of all other documents on which the prosecution intends to rely. This includes the statements recorded under sub‑section (3) of section 161 of all persons whom the prosecution intends to examine as its witnesses. Section 207A, added by the same amendment, states in sub‑section (3) that at the start of the inquiry, when the accused appears before the Magistrate, the Magistrate must verify that the documents mentioned in section 173 have been furnished to the accused. If the Magistrate finds that any such document has not been given, he must cause it to be provided. After confirming that the accused has received the documents, the Magistrate records the evidence of the prosecution witnesses, and may commit the case to the Court of Session on the basis of that evidence after considering the documents referred to in section 173. The purpose of sections 162, 173(4) and 207A(3) is to allow the accused to obtain a clear understanding of the case against him before the inquiry begins. These provisions create a duty on the investigating officer to supply, before the inquiry starts, copies of the statements of witnesses who are to be examined at trial, so that the accused can use those statements for cross‑examination and to challenge the witnesses’ testimony. Although section 161(3) does not compel a police officer to record witnesses’ statements in writing during the investigation, if the officer does reduce a statement to writing, he is required to make copies of that written statement available to the accused before the commencement of the proceedings.

In this matter the Court observed that the purpose of the statutory requirement is to enable the accused to understand fully the details and particulars of the case that the prosecution intends to prove. The provision is plainly intended to furnish the accused with the complete material that the State possesses, including all statements made against the accused. The Court further noted that the mere failure to provide the statements of witnesses that were recorded during the investigation does not, by itself, invalidate the trial. Such a failure does not deprive the Court of its jurisdiction to hear the case, nor does it automatically remove the Court’s authority to pronounce a conviction when the evidence on record supports such a conclusion. While the rule directing the making of copies of investigative statements is of considerable significance, the Court held that a breach of this rule must be examined in light of any prejudice that the accused suffered because of the breach. Section 537 of the Code of Criminal Procedure, as the Court explained, provides that, subject to the other provisions of the Code, no finding, sentence or order of a competent court may be set aside or altered on the ground of any error, omission or irregularity in the complaint, summons, warrant, proclamation, order, judgment or any other proceeding before or during trial, unless that error, omission, irregularity or misdirection actually caused a failure of justice. The explanatory note to section 537 further directs that, in assessing whether a failure of justice has occurred, the Court must consider whether the objection could and should have been raised at an earlier stage of the proceedings. In the present case, the statements of the witnesses that had been prepared by Head Constable Kapuraram were provided to the accused before the committal proceedings commenced, and on the basis of those statements, which were asserted to be properly recorded under section 161(3), the Court directed that the witnesses be cross‑examined. However, during the Session Court hearing, the investigating officer admitted that on 29 September 1960 he had not taken detailed statements from the witnesses; instead he had only noted certain points. After arriving at Thana Bali on 30 September 1960, he obtained from Head Constable Kapuraram full written statements prepared in the absence of the witnesses and subsequently destroyed his original notes and jottings. The Court characterised the investigating officer’s conduct as both irresponsible and improper, noting that it deprived the accused of the benefit of the original “notes and jottings” that could be regarded as statements recorded under section 161 and that the accused was entitled to use under that provision. Counsel for the appellant, relying on the Nagpur High Court decisions in Baliram v. Emperor and Maganlal v. Emperor, submitted that the failure to supply copies of the statements recorded under section 161 violated fundamental procedural safeguards and, by denying the accused the statutory right to cross‑examine, rendered the witness evidence inadmissible at trial.

The Court observed that the argument that refusing to provide copies of statements recorded under section 161 of the Code of Criminal Procedure violated fundamental rules of practice and the protection owed to prisoners, thereby rendering such witness testimony inadmissible, could not be accepted. The Court explained that the rulings of the Nagpur High Court in Baliram v. Emperor (1) I.L.R. [1945] Nag. 151 and Maganlal v. Emperor (2) I.L.R. [1946] Nag. 126 did not give a correct interpretation of sections 161 and 162 of the Code. In a later decision, the Nagpur High Court in Maroti Mahagoo v. Emperor (1) I.L.R. [1948] Nag. 110 held that although the right granted to an accused under section 162 to use earlier police statements for the purpose of contradicting a witness is a valuable right, the omission of providing copies to the accused, if it caused prejudice, required the trial court to treat such witness testimony with extreme caution and, in suitable cases, to disregard it altogether. However, the Court clarified that the testimony was not automatically inadmissible and that each case must be decided on its own facts. The Court noted that these earlier decisions were rendered before the Code of Criminal Procedure was amended by Act 26 of 1955, but that the amendment did not create a material difference for the question at hand. After the 1955 amendment, the duty of the investigating officer in every investigation conducted under Chapter XIV became to supply the accused with copies of the statements of witnesses who were proposed to be examined at trial. Prior to the amendment, the obligation rested on the Court to provide such statements to the accused when a request was made at the time of the witness’s examination. The Court further referred to its earlier decision in Narayan Rao v. State of Andhra Pradesh (2) A.I.R. 1957 S.C.737, which held that a breach of the provisions of section 173(4) and section 207A(3) of the Code constituted merely an irregularity and did not affect the validity of the trial. The Court explained that the use of the word “shall” in section 173(4) and section 207A(3) is directory rather than mandatory, and that an omission by a police officer to fully comply with the statutory requirements should not, by itself, render the proceeding or the subsequent trial wholly ineffective.

In the matter before the Court, it was observed that the purpose of the provisions of section 173(4) and section 207A(3) of the Criminal Procedure Code is to ensure that all documents necessary for the accused to prepare their defence are provided, but the Court was not prepared to hold that failure to comply with those provisions automatically invalidates the proceedings or the subsequent trial. The Court explained that the word “shall” appearing in both subsection (4) of section 173 and subsection (3) of section 207A is not absolute but merely directory, and that an omission by a police officer to fully comply with section 173 should not be permitted to have a sweeping effect that would render the committal proceedings and the trial before the Session Court wholly ineffective. The Court further stated that if, in a particular case, it is shown on behalf of the accused that the omission by the police officer or the magistrate presiding over the committal proceeding has caused prejudice, then, in the interest of justice, the Court may reopen the proceedings and require full compliance with the Code. In the instant case, the Court held that the omission complained of should not be treated as more serious than an omission to comply with section 162 or section 360 of the Code.

The Court relied on observations of the Judicial Committee of the Privy Council in Pulukuri Kotayya v. Emperor, which held that when a trial is conducted in a manner different from that prescribed by the Code, the trial is defective and cannot be cured, whereas if the trial follows the Code substantially but a minor irregularity occurs, that irregularity can be remedied under section 537, even though it may involve a breach of one or more comprehensive provisions of the Code. Regarding the failure to supply copies of statements recorded under section 161, the Judicial Committee observed that the right granted to an accused by that section is highly valuable because it often provides important material for cross‑examination of prosecution witnesses. The Committee noted that even seemingly small inconsistencies in an accused’s statements may not embarrass a truthful witness but can cause an untruthful witness to falter, potentially leading to the collapse of that witness’s evidence, particularly when the accused alleges that the prosecution witnesses are false. Indian courts have consistently treated any breach of the proviso to section 162 as a matter of serious gravity, as illustrated in earlier decisions where convictions were set aside because copies of witness statements were not made available to the accused, thereby giving rise to a strong inference of prejudice.

In the cases cited, the record of statements made by witnesses had been destroyed, and the decision reported at 53 All. 458 illustrated a situation where the Court refused to provide the accused with copies of statements taken by the police, resulting in convictions that were later set aside because of non‑compliance with the provisions of section 162. The judges noted that when, as in those two authorities, the statements were never made available to the accused, an inference that is nearly irresistible of prejudice to the accused arose. Nevertheless, they observed that even a strong inference of prejudice does not, by itself, render a trial illegal. Each case, they explained, required an assessment of the nature of the defect, the specific objection raised at trial, and the surrounding circumstances that might lead to an inference of prejudice. The courts were instructed to gauge the strength of any prejudice inference in light of the facts of the individual case.

The judgment then referred to Narayan Rao’s Case(2), which involved failure to comply with sections 173 and 207A. In that matter, it appeared that statements of witnesses recorded under section 161 had been supplied to the accused in the Court of Session, and the irregularity was therefore mitigated, as noted in (1) L.R. 74 I.A. 65 and (2) A.I.R. 1957 S.C. 737. By contrast, in the present appeal, statements that could be classified as recorded under section 161(3) had never been supplied to the accused. The principle governing the consequences of depriving a person of a statutory right, however, was not deemed to change because of that fact.

The Trial Court had observed that the copies of statements handed to the accused were not the original records of the witnesses’ statements. Instead, they were dictated by Sub‑Inspector Hari Singh from his own “jottings,” and the actual written statements were prepared by Head Constable Kapuraram. The Court further pointed out that Head Constable Kapuraram had not been present at the place of occurrence when the investigating officer examined the witnesses on 29‑9‑60. Consequently, statements in Kapuraram’s handwriting could not have been written and read to the witnesses at the village Mundara station, Bali, meaning that the statements relied upon by the prosecution had never been read to, nor affirmed by, the witnesses. The defense counsel had introduced several portions of the witnesses’ statements that showed a complete contradiction between the eye‑witness accounts and the investigation officer’s version.

However, those contradictions, according to the record, primarily concerned the alleged presence of Harpat Singh and Pratap Singh—names mentioned in the first information report by witness Ganesh, against whom no charge‑sheet had been filed—as well as matters of relatively minor importance, such as the conduct of individuals other than the appellant, Noor Khan. For example, the witness Prabhu denied that he had stated that Prabhu Singh and Sohan Singh were eye‑witnesses to the assault.

In this case, Mst. Mathura refused to confirm that she had alleged the accused to have indecently abused and threatened Ganesh and Pratap, demanding that they leave the well or face death, and Mst. Bhanwari made an identical denial of such a statement. A further inconsistency arose from the testimony of Prabhu, whose statement related to certain court proceedings that stemmed from disputes concerning the well. The Court found it especially troubling that the notes, referred to as “jottings,” of the statements recorded by Sub‑Inspector Hari Singh were not made available to the accused because they had been destroyed by the officer, and that the documents subsequently produced were not the kind of statements that could be employed under section 162 of the Code of Criminal Procedure. Consequently, Sub‑Inspector Hari Singh was assigned responsibility for this unsatisfactory circumstance. Nevertheless, the Court reiterated that this failure alone did not render the trial illegal. It observed that neither the Trial Court nor the High Court had examined the diary kept by Sub‑Inspector Hari Singh, nor had any party raised an objection in the High Court that the unavailability of the notes or jottings had caused prejudice to the accused. Moreover, no enquiry was directed to Hari Singh concerning the character of those jottings—whether they were merely personal memoranda understandable only to the writer or detailed records of statements that had been formally arranged when dictated to the head constable Kapuraram. The High Court, addressing this objection, held that given the manner in which the police statements were alleged to have been prepared by Kapuraram, no evidential value could be attached to them, and that a witness’s repudiation of certain portions of those statements did not, by itself, make his testimony at trial unreliable. The High Court carefully analysed the evidence of the witnesses who claimed to have observed the assault and concluded that four witnesses who sustained injuries must have been present at the scene, and that the testimony of three of those witnesses was credible when considered alongside the evidence of Mst. Bhanwari and Mst. Mathura. After reviewing the essential parts of the witnesses’ evidence, and after scrutinising the material in view of the highlighted deficiencies—particularly the denial of any copies of Hari Singh’s notes or jottings—the Court could not find grounds to disagree with the High Court’s assessment. The Sessions Judge had, however, excluded the witnesses’ testimony on the basis of discrepancies concerning matters of relatively minor importance, and because the witnesses were relatives of the deceased; the Judge also questioned statements regarding the distance from which the assault was alleged to have been carried out, deeming them inconsistent with the medical evidence. The High Court did not accept this reasoning of the Trial Court.

In reviewing the appeal that was granted special leave, the Court observed that it would not be appropriate to disturb the findings of the High Court because the appeal did not present any significant error in the reasoning of that Court. The Court reiterated that section 162 of the Code of Criminal Procedure serves as an important protection for an accused person, and a denial of its benefits may be justified only in rare and exceptional situations. The statutory provisions that require the statements of witnesses to be recorded and copies of those statements to be supplied to the accused are intended to enable the accused to mount an effective defence at trial; consequently, such requirements cannot ordinarily be reduced or ignored. However, if the circumstances of a case lead the Court to reasonably conclude that the accused suffered prejudice because the statements recorded under section 161 were not provided, the Court would be empowered to set aside the conviction and, where appropriate, to order that the defect be remedied in a manner suitable to the facts. Conversely, if after considering how the trial was conducted and the accused’s attitude toward the defect, the Court is satisfied that no prejudice resulted to the accused, then despite a breach of the statutory provision, the conviction may be upheld. The Court determined that the present case fell within the latter category, where no prejudice was shown. The Court expressed disapproval of the sub‑inspector Hari Singh’s act of destroying his notes, noting that the destruction appeared to stem from ignorance rather than dishonesty. Nevertheless, the Court affirmed that if, upon a careful examination of the evidence, there had been reasonable grounds to find that the appellant Noor Khan had been prejudiced by being denied the statutory right to use the statements in his defence, the conviction would have been set aside. After a thorough review of the witness evidence, consideration of the criticisms raised by counsel for Noor Khan, and deference to the opinions of both the High Court and the Trial Court, the Court concluded that no prejudice had been caused to the appellant. The Court also observed that the issue of prejudice had not been raised before the High Court, and apart from a generic allegation of illegality of the trial for not providing copies of the statements made to Hari Singh, no substantive argument supporting a claim of prejudice had been advanced. On this basis, the appeal was found to lack merit and was dismissed.