BHUPENDRA CHANDULAL PATEL Vs. STATE OF GUJARAT

JUDGEMENT

(1.) * * * *

(2.) Two-fold criticism was levelled against the investigation in the cas. The first was that from the evidence of Bharwad witnesses read with that of Police Patel Somabhai Ex. 11 it appears that the statements of witnesses were recorded more than once and that subsequent statements recorded were not supplied to the accused. That had therefore caused prejudice to the accused. In that respect even If for a moment we were to take it that such statements were recorded more than once it cannot be said to have prejudiced the accused in any manner for the simple reason that they had not asked for many such statements and the P.S.I. Mr. Rai has not been put any question in that respect while he was In the witness box. The other point has however some importance and it also affects in a measure the evidence of those prosecution witnesses. That relates to the P.S.I. having obtained thumb-impressions on their statements recorded during the investigation in contravention of the mandatory provisions of sec. 162 of the Criminal Procedure Code. In this connection we may first refer to the evidence of Somabhai Ex. 11 in the case. According to him the P.S.I. Mr. Rai happened to come with him to the scene of offence and he was even helping him in the investigation of the case. He has stated that the thumb impressions on the statements of Bhura and Joga were obtained by the P.S.I. Then comes the evidence of witness Bhura who has tried to explain away by saying that his thumb impressions were taken on some paper and not on the statements and that paper was for securing his presence. To the same effect is averred by Joga Ex. 19 in the case. They were however contradicted by their previous evidence recorded in the Court of the committing Magistrate where they had admitted about their thumb impressions having been obtained by the P.S.I. on their own statements. They even went to the length of denying the same but a note by the learned Sessions Judge has been made to the effect that they had so stated. On the strength of this evidence it would not be unreasonable to hold that the P.S.I. had obtained the thumb impressions of the witnesses on the statements which were recorded during the course of investigation of the case. It was pointed out by Mr. Chhaya the learned Assistant Government Pleader that no question has been asked to the P.S.I. in that respect while he was in the witness box. But once the prosecution evidence itself shows and at any rate when from the evidence of witnesses whose statements were recorded It appears that the thumb impressions were obtained on their statements It would be obviously necessary for the prosecution to examine the P.S.I. In that respect and explain as to whether he had in fact obtained the thumb impressions of the witnesses thereon or the circumstances in which he had so taken. Not having questioned him in any manner in his examination-in-chief it was not necessary for the defence to examine the P.S.I. in that respect. In other words the evidence of the P.S.I. would in those circumstances show want of any challenge in respect of that evidence which we have referred to here above. The Police Patel was with the P.S.I. during the investigation and he had no reason to say so unless it had so happened. In our view it is clear that he had obtained the thumb impressions on the statements of witnesses Bhura and Joga recorded during the course of investigation of this case.

(3.) Now sec. 162(1) provides that no statement made by any person to a police-officer in the course of an investigation shall If reduced into writing be signed by the person making it. That being so the P. S. I. Mr. Rai bad clearly violated the mandatory provision in that regard in obtaining the thumb impressions on the statements of the witnesses in the course of an investigation of this case. But that may not make the evidence of those witnesses inadmissible but the value of the evidence may be seriously impaired as a consequence of such contravention In Zahiruddin v. Ring-Emperor 49 Bom. L. R. 521 (P.C.) it has been held as under :-