# TILKESHW AR SINGH AND OTHERS v. THE STATE OF BIHAR. :BtiSE, VnrKATARAMA AYYAR and

- **Citation:** [1955] 2 S.C.R. 1043
- **Court:** Supreme Court of India
- **Decided:** 1953-08-12
- **Case number:** Criminal Appeal No. 150 of 1954
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/tilkeshw-ar-singh-and-others-v-the-state-of-bihar-btise-vnrkatarama-ayyar-and-1231
- **Pages:** 7

## Headnote

.2s.C.R.
SUPREJviE COURT REPORTS
1043
TILKESHW AR SINGH AND OTHERS
v.
THE STATE OF BIHAR.
:BtiSE,
VnrKATARAMA
AYYAR
and
CHANDRASEKHARA AIY AR JJ.]
l:vidence-foi11t recording of statements made by witnesses during investigation--Legaiity-Testimony of such witnesses in courtAdmissibility-Sttbstitution of a charge under s. 149, I.P.C. for one
r'1lder s. 34, l.P.C.-Validity-Accused filing statement instead of being examined in
court-Legality-Prejudice--Cud.· of
Criminal
Procedure, (Act V of 1898), ss. 161(3), 342-lndian Penal Code (Act
XLV of 1860), ss. 34. 149.
·
Although the joint recording of statements made by witnesses
during an investigation is a contravention of s. 161(3) of the Code
of Criminal Procedure and must be disapprove<:!,
that by itself docs
not render the testimony given by such witnesses in court inadmissible. lt is, however, for the court to decide whether it will rely on
such testimony or atta·~h any weight to it.
/,ahirnddin v. Emperor, (A.LR. 1947 P.C. 75), applied.
Raliram Tik_aram v. Emperor, (A.LR. 1945 Nag. 1) and Maganlai Ra.f!:r.k_is!u>n v. Emp,·:or (A.LR. 1946 Nag. 173), disappro\cd.
Hejoy C/zand Pr.tra v. The State, (A.LR. 1950 Cal. '163),
approved.
The coui-1- has power to substitute a charge under s. 149 of the
Indian Penal Code for a charge under s. 34.
J(amaii Singh and others v. The State of Punjab, ([1954] S.C.R.
904) and Willie Slaney's case, (Criminal Appeal No. 6 of 1955), referred to.
Although s. 342 of the Code of Criminal Procedure contemplates oral examination of the accused in court and though the practice of filing written statements is to be deprecated, the fact that the
accused filed a statement instead of being examined is no ground for
interference unless he is shown to have been prejudiced thereby.
Consequently, in a case where the accused were put up for ::rial
under s. 302 read with s. 34 of the Indian Penal Code, and the Additional Sessions Judge relying on the evidence of three of the prosecution witnesses whose statements during the investigation were
recorded jointly in contravention of s. 161(3) of the Code of Criminal Procedure, convicted and sentenced them to transportation for
life and the High Court in appeal agreed with the findings of fact,
but altered the conviction to one under s. 326 read with s. 149 of
the
Indian Penal
Code, as
also
the
sentence, their conviction
was not liable to be set aside.
1955
Dtc1mber 8.
1955
Tilktshwar Singh
and others
v.
The Stal# of Bihar
1044
SUPREME COURT REPORTS
[1955]
CRIMINAL
APPELLATE
JURISDICTION :
Criminal
Appeal No. 150 of 1954.
On appeal by special
leave from
the judgment
and order dated the 12th August 1953 of the Patna
High Court in Criminal Appeal No. 345 of 1952 arising out of the judgment and order dated the 20th
August 1952 of the Court of Additional Session Judge,
Darbhanga in Session Case No. 12 of 19'.>2.
H. /. Umrigar and R. C. Prasad, for the appellant.
B. K. Saran and M. M. Sinha, for the respondent.
1955.
December 8. The Judgment of the Court
was delivered by
VENKATARAMA
AYYAR
J.-The
appellants
were
charged before the Additional Sessions Judge, Darbhanga under section 302 read with section 34 of the
Indian Penal Code for the murder of one
Balbhadra
Narain Singh. They were
also chargerl, some under
section 147 and the others under section 148, for
being members of an unlawful assembly and for rioting.
The case of the prosectuion was as follows : The
deceased and
the appellants
were
pattidars in the
village of Mahe, and there was ill-feeling between
them on account of the village pattidari. On 5-3-1951,
at about 10 A.M. the deceased was returning from
the
river to his baithka. On the way, the appellants who
were armed with bhalas, sword and lathi, and some
others surrounded him at the courtyard of the village
school and attacked him. One Harischandra Singh
who is still absconding, plunged his bhala into the
abdomen
of the
deceased, and the appellants
joined
in the attack on him. The deceased ran to his baithka.
and f

## Text

.2s.C.R.
SUPREJviE COURT REPORTS
1043
TILKESHW AR SINGH AND OTHERS
v.
THE STATE OF BIHAR.
:BtiSE,
VnrKATARAMA
AYYAR
and
CHANDRASEKHARA AIY AR JJ.]
l:vidence-foi11t recording of statements made by witnesses during investigation--Legaiity-Testimony of such witnesses in courtAdmissibility-Sttbstitution of a charge under s. 149, I.P.C. for one
r'1lder s. 34, l.P.C.-Validity-Accused filing statement instead of being examined in
court-Legality-Prejudice--Cud.· of
Criminal
Procedure, (Act V of 1898), ss. 161(3), 342-lndian Penal Code (Act
XLV of 1860), ss. 34. 149.
·
Although the joint recording of statements made by witnesses
during an investigation is a contravention of s. 161(3) of the Code
of Criminal Procedure and must be disapprove<:!,
that by itself docs
not render the testimony given by such witnesses in court inadmissible. lt is, however, for the court to decide whether it will rely on
such testimony or atta·~h any weight to it.
/,ahirnddin v. Emperor, (A.LR. 1947 P.C. 75), applied.
Raliram Tik_aram v. Emperor, (A.LR. 1945 Nag. 1) and Maganlai Ra.f!:r.k_is!u>n v. Emp,·:or (A.LR. 1946 Nag. 173), disappro\cd.
Hejoy C/zand Pr.tra v. The State, (A.LR. 1950 Cal. '163),
approved.
The coui-1- has power to substitute a charge under s. 149 of the
Indian Penal Code for a charge under s. 34.
J(amaii Singh and others v. The State of Punjab, ([1954] S.C.R.
904) and Willie Slaney's case, (Criminal Appeal No. 6 of 1955), referred to.
Although s. 342 of the Code of Criminal Procedure contemplates oral examination of the accused in court and though the practice of filing written statements is to be deprecated, the fact that the
accused filed a statement instead of being examined is no ground for
interference unless he is shown to have been prejudiced thereby.
Consequently, in a case where the accused were put up for ::rial
under s. 302 read with s. 34 of the Indian Penal Code, and the Additional Sessions Judge relying on the evidence of three of the prosecution witnesses whose statements during the investigation were
recorded jointly in contravention of s. 161(3) of the Code of Criminal Procedure, convicted and sentenced them to transportation for
life and the High Court in appeal agreed with the findings of fact,
but altered the conviction to one under s. 326 read with s. 149 of
the
Indian Penal
Code, as
also
the
sentence, their conviction
was not liable to be set aside.
1955
Dtc1mber 8.
1955
Tilktshwar Singh
and others
v.
The Stal# of Bihar
1044
SUPREME COURT REPORTS
[1955]
CRIMINAL
APPELLATE
JURISDICTION :
Criminal
Appeal No. 150 of 1954.
On appeal by special
leave from
the judgment
and order dated the 12th August 1953 of the Patna
High Court in Criminal Appeal No. 345 of 1952 arising out of the judgment and order dated the 20th
August 1952 of the Court of Additional Session Judge,
Darbhanga in Session Case No. 12 of 19'.>2.
H. /. Umrigar and R. C. Prasad, for the appellant.
B. K. Saran and M. M. Sinha, for the respondent.
1955.
December 8. The Judgment of the Court
was delivered by
VENKATARAMA
AYYAR
J.-The
appellants
were
charged before the Additional Sessions Judge, Darbhanga under section 302 read with section 34 of the
Indian Penal Code for the murder of one
Balbhadra
Narain Singh. They were
also chargerl, some under
section 147 and the others under section 148, for
being members of an unlawful assembly and for rioting.
The case of the prosectuion was as follows : The
deceased and
the appellants
were
pattidars in the
village of Mahe, and there was ill-feeling between
them on account of the village pattidari. On 5-3-1951,
at about 10 A.M. the deceased was returning from
the
river to his baithka. On the way, the appellants who
were armed with bhalas, sword and lathi, and some
others surrounded him at the courtyard of the village
school and attacked him. One Harischandra Singh
who is still absconding, plunged his bhala into the
abdomen
of the
deceased, and the appellants
joined
in the attack on him. The deceased ran to his baithka.
and from there, he was taken to the police station at
Singhia.
There,
he made a complaint which has
been
filed
as
the
first
information
report,
and
therein he set out the incidents mentioned above, and
implicated the appellants as concerned in the attack.
The deceased was then taken to the hospital, and in
view of his precarious condition the doctor recorded
his dying declaration.
The deceased
was
then
sent
2S.C.R.
SUPREME COURT REPORTS
1045
for treatment to the hospital at Samastipur, but on
the way he died. On the basis of the first 1 nformation report and on the enquiries made by . them, the
police charged the
appellants under section 302 read
with section 34 for murder and under sections 147
and 148 for rioting.
The defence of the appellant
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.
The Additional Sessions
Judge, Darbhanga accepted the evidence of the prosecution, and convicted
the appellants under section 302 read with section 34,
and sentenced
them
to transportation for life.
He
also convicted them, some under section 147 and the
others under section 148, but imposed no separate sentence under those sections. The appellants took the
matter in appeal to the High Court of Patna. The
learned Judges agreed with the Sessions Judge in his
conclusions of fact,
but altered the
conviction
from
one under section 302 read with section 34 to one under
section 326 read with section 149, and the sentence
from transportation for life to various terms of imprisonment.
The
learned
Judges
also
maintained
the
conviction of the appellants on the charge of rioting,
but awarded
no
separate
sentence
therefor.
It is
against this
judgment
that the present
appeal
1s
directed.
On behalf of the appellants, it was firstly contended
by Mr. Umrigar that the finding of the courts below
that the incident took
place at the school
courtyard
and not at the baithka of the deceased
was
bad, because it wa.s
based on inadmissible evidence, viz.,
Exhibit P-7 and the testimony of P.Ws. 4, 7 and
12.
Exhibit P-7 is a statement of the deceased
taken
by
the police officer subsequent to the lodging of the first
information
and after the
investigation
had
begun,
and its reception would be barred by section
162 of
the Code of Criminal Procedure. But the learned
Judges thought that it would be admissible under
section 32(1) of the Indian Evidence Act, and the
correctness
of this view is disputed by the
appellants.
IJut even if Exhibit P-7 is inadmissible
in evidence,
9!l!l
r;/l:IJhwar Sinflt
and others
v.
Tiu Stal• of Biliar
Vmkatarama
Ay_var J.
1955
Tilkeshwar Singh
and ot!ur
v.
TM State o~f Bihar
Venkatarama
AY.,var J,
1046
SUPREME COURT REPORTS
[1955]
that would not assist the appellants,
as the learned
Judges
observed
that
apart from
that
document,
they would have, on
the
other evidence, held that
the decea,;ed
was attac'.,_ed
at
the
school courtyard.
Then, we come to the evidence of P.,Vs. 4, 7 c•.nd 12
on which the courts below have relied in accepting the
version of the incident
as given by
the prosecution.
Mr. U mrigar contended that their evidence was inadmissible, because they were examined by the police
at
the
stage
of investigation,
and
their
statements
were not recorded
separately
as
required by section
161(3) of the Code of Criminal Procedure. This is
what the investigating officer,
P.W. 18,
deposed with
reference to this matter.
"The Daffadar produced Sita! Singh
(P.W. 12),
Ram Karan Singh (P.'vV. 7) and Ramkinker (P.\V. 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 idc!ltificatio:-i
and
the wcapo;15",
The recording of a joint statement of
the
exam11oation of P.vVs. •!, 7 and
12 is clearly
in
contrQvention
of sect:on 161(3), and must be disapproved. But the
questio'.1 is
whether
that
renders
the testimony
of
P.'vV s. 4,
7 ~nd 12
in
court
inadmi"ible.
Section
16i(3) does not say so, and indeed, seeing that the
police
are not bound to make a record of the statements o[ witnesses in which case there is admittedly
no bar to the reception of their testimony, it would
be anomalous if we were to hold that their evidence
is
inadmissible,
because
the
statements
were
also
reduced to writing but not in the manner provided in
the
section.
The
Indian
Evidence Act
contains
elaborate
provisions
as
to
who
are
competent
witnesses
and on 'Nhat matters their evidence ·is
inadmissible.
And on these
prov1s10ns,
P.Ws. 4, 7 and
12
are
neither
incomnetent
\Vitnesses,
nor
is
their
evidence as to the incidents to which they deposed,
inadmissible.
In Zahiruddin
v.
Emperor( 1 )
it was
held by the Privy Council that the failure to comply
with the provisions of
section
162(1)
might
greatly
(I
A.I.R. 1947 P.C. 75.
"'
2 S.C.R.
SUPREME COURT REPORTS
1047
impair the value of the evidence of the witness, but
that would not affect
its
admissibility. On the same
reasoning, it will follow that the evidence of P.Ws.
4, 7 and 12 is not inadmissible for the reason that
their statements had been recorded by P.W. 18 jointly
and not separately as required by section 161(3).
In support of his contention that their evidence is
inadmissible, Mr. Umrigar relied on the decisions in
Baliram Tikaram v. Emperor (' ) and Maganlal Radhak_ishan v. Emperor(). In Baliram Tikaram
v. Emperor( ), 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
that
that
deprived the accused
of a valuable
right,
and must have caused
prejudice to them. That was
the view taken in
Vi~wanath v. Emperor( 3), and no
exception can be taken to it. But the learned Judges
went on to obse.rve that the evidence of the witnesses
who gave
statements at the investigation would itself
be
inadmissible.
The reason
for
this opinion was
thus stated by them :
"How can the evidence be admissible
and proper
for consideration when the accused is robbed of hrs
statutory
means
or
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, Evidence Act, can· become admissible and proper
for consideration. It would indeed be bold to sav
that the evidence
of a witne'ss
is legally
admissibl~
against a party even though he at the time it was
given had not the full opportunity to cross-examine
him".
This view was reiterated by the same learned Judges
in M aganltd Radhakishan v. Emperor( 2 ), but, for the
reasons already given, we are unable to accept this
as a correct statement of the law. \Ve are of the opinion
that while the failure
to comply with the requirements· ,of section 161(3) might affect the weight to be
(I) A.I.R. I 945 Nag. I.
(2) A.LR. 1946 Nag. 173.
(3) I.LR. [1937] Nag. 178.
1955
Tilke hwar Singh
and others
v.
ThtSta!e of Bihm
Venkatarama
Ayyar ].
1955
Tilkeshwar Singh
and others
"
Tiu State of Bihar
V1nkatarama
Ayyar J.
1048
SUPREME COURT REPORTS
[1955]
attached to the evidwce of the witnes!es, it does
not
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
are in agreement with this view. In the present case,
the attention
of the learned Judges was drawn to the
infirmity in the evidence of P.W s. 4, 7 and 12, arising
by reason of the failure to observe section 161(3),
but they . were, nevertheless, prepared to accept it as
reliable. We must accordingly
hold that the findings
of the courts . below are not open to attack on the
ground
that they were
based
on inadmissible evidence.
It was next contended that the charge on which
the appellants were tried was one under section 302
read with section 34, and that the
learned Judges of
the High Court erred in convicting them under section 326 read with section 149. Before the learned
Judges
the
contention
that was
pressed
was
that
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
Willie Slaney's case( ). It is
conceded
by Mr. Umrigar that in view of these decisions, the question is
no longer open. It must be answered
adversely to
the appellants .•
It
was finally contended that there had been no
proper
examination of
the
appellants
under
section
342,
and that
the
conv1ct1on
should accordingly
be
quashed.
What happened was that when the court
commenced
its
examination under
section 342,
the
appellants stated that they would file written statements.
Tbose·
statemer~ts \Vere
very
elaborate
and
furnished
the
answer
of the
appellants
to
all the
points raised in the prosecution evidence.
Mr. Umrigar was unable to suggest any question which could
have been put, with reference to which the statements
did not contain
an
answer.
Clearly, the appellants
have not
been
prejudiced.
It is no doubt true
that
(I) A.LR. 1950 CaL 363.
(2) [1954] S.C.R. 904.
(3) Crin1inal Appeal No. 6 of 1955.
2S.C.R. ·
SUPREME COURT REPORTS
1049
section 342
contemplates
an examination
in
court,
and the practice of filing statements is to be deprecated. But thar_ is not a ground for interference,
unless prejudice
is
established.
And it
is nothing unusual for the accused to prefer filing statements mstead of answering questions under section 342, lest
they should suffer by
inadvertent admissions
or by
damaging
statements.
As
no prejudice
has
been
shown, this contention also must be rejected.
In the result, the appeal is dismissed.
JAYARAM VITHOBA AND ANOTHER
ti.
THE STATE OF BOMBAY.
[V1v1AN BosF.. VENKATARAMA AYYAR and CttANDRASEKHARA 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 revision-Conviction by the trial Court but no sentence-High Court CMftrming conviction and awarding sentence-Legality-Bombay Prevention of Gambling Act (Bombay Act IV of 11)87), ss. 4(a), 5.
The first appellant was
prosecut."-1 under s. 5 of the
Bombay
Prevention of Gambling Act (Bombay Act IV of 1887) for being
present in a gaming house for the purposes of gaming and was, in
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 imprisonment.
He also tound him guilty under s. 5 but awarded no separate sentence under that section.
In revision,
the High Court set
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 Procedure 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 therefor, a< rrquired by law.
Held, that though s. 423(l)(b) of the Code of Criminal Procedure w:is not applicable to the case, the High Court had power to
pass ~he sentence under s. 423(I)(d).
The law
does not
envhage a person being convicted for an
1955
T ilkeshwar Sin:h
and others
v.
Th• Stale of Bihar
Venkatarama
Ayyar J.
1955
Dec em/Hr 13,