LexTILKESHWAR SINGH AND OTHERS versus THE STATE OF BIHAR.
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.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 dur- ing investigation--Legaiity-Testimony of such witnesses in court- Admissibility-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 be- ing 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 inadmis- sible. 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 Magan- lai 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), ap- proved. 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), refer- red to. Although s. 342 of the Code of Criminal Procedure contem- plates oral examination of the accused in court and though the prac- tice 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 Ad- ditional Sessions Judge relying on the evidence of three of the pro- secution witnesses whose statements during the investigation were recorded jointly in contravention of s. 161(3) of the Code of Crimi- nal 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 aris- ing 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 appel- lant. 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, Dar- bhanga 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 be- ing 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 r
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