JUDGMENT Harries, C.J. - This is an appeal by nine persons, who were tried by a learned Sessions Judge sitting with a jury and found guilty of conspiracy to cause grievous hurt. The learned Sessions Judge accepted the verdict of the jury, convicted the Appellants and sentenced each of them to five years' rigorous imprisonment. From the conviction and sentences the present appeal has been preferred. 2. The nine Appellants were charged with three other persons for conspiring to cause grievous hurt to one Pramatha Nath Mukherji. The three persons accused with the Appellants were found not guilty and they were acquitted. The Appellants, however, were found to have agreed amongst themselves to attack Pramatha Nath Mukherji, who died as the result of a severe beating and attack by sharp-edged weapons. 3. The deceased man Pramatha Nath Mukherji was the President of the Union Board and was a man of some substance in the neighbourhood. On the night of Baishakh 19, 1355 B.S., corresponding to May 2, 1948, he was found lying dead with a large number of injuries on his person in a field between villages Upardangal and Gokulbati. His body was lying about forty cubits to the north-west of a tank known as Porey Gorey. 4. On the day in question, Pramatha Nath Mukherji had been to the village of Gokulbati to attend a school committee meeting. After that meeting, he went to the house of one Kalidas Mandal in that village. Later in the day, he was called to the village Parabad by one Balai to settle a dispute concerning a pathway. This dispute had arisen between Balai and one Baidyanath Mandal, who is one of the Appellants in this appeal. It appears that the deceased took Baidyanath to task for obstructing this path and directed him to remove the obstruction forthwith. Baidyanath, it is said, refused and heated words passed between the parties. Pramatha Nath Mukherji then returned to Gokulbati, saying that he would come again the following morning and remove the obstruction if that had not been done. On arriving at Gokulbati, Pramatha Nath Mukherji again went to Kalidas Mandal's house, where he had his midday meal. He remained at Kalidas Mandal's house till sometime after dusk, when he left for village Upardangal, where he proposed to stay the night, at the house of one Balai Mandal. On arriving at Gokulbati, Pramatha Nath Mukherji again went to Kalidas Mandal's house, where he had his midday meal. He remained at Kalidas Mandal's house till sometime after dusk, when he left for village Upardangal, where he proposed to stay the night, at the house of one Balai Mandal. It seems that Balai Mandal had a daughter, Adari, with whom Pramatha Nath had a liason and it is said that he frequently went to Adari's house for immoral purposes. It seems that Kalipada Mandal and two others accompanied him for some distance until they reached the river Kuye. Thereafter, Kalipada Mandal only accompanied Pramatha Mukherji. After crossing the river Kuye they proceeded on their way and came near the tank called Porey Gorey. Kalipada Mandal was leading the way carrying a lighted hurricane lantern and Pramatha Nath Mukherji was following. According to Kalipada Mandal, the hurricane lantern was suddenly hit by somebody and he found himself in total darkness. He turned round to see what was happening to Pramatha Nath Mukherji. He, however, received a blow on the face and was rendered unconscious and in fact, did not recover consciousness for some considerable time afterwards. Kalipada Mandal can give no account of what occurred after the hurricane lantern had been hit and put out. 5. Some villagers, hearing a noise, later went to investigate and found near the tank the dead body of Pramatha Nath Mukherji and from the appearance of the body, it was clear that he had been attacked by a number of assailants who had inflicted a very large number of serious injuries upon him. The son of the deceased was later informed and information was sent to the thana and early the following morning, the Sub-Inspector appeared on the scene and began investigation. In due course, twelve persons were arrested and put upon their trial upon this charge of conspiracy to inflict serious injuries upon Pramatha Nath Mukherji. 6. Although the injuries were inflicted on the deceased whilst Kalipada Mandal was on the scene, nevertheless Kalipada Mandal could not give the prosecution any real assistance. He frankly admitted that he did not know who struck the hurricane lantern and that immediately afterwards he was struck and was rendered unconscious. 6. Although the injuries were inflicted on the deceased whilst Kalipada Mandal was on the scene, nevertheless Kalipada Mandal could not give the prosecution any real assistance. He frankly admitted that he did not know who struck the hurricane lantern and that immediately afterwards he was struck and was rendered unconscious. The only assistance which the prosecution obtains from the evidence of Kalipada Mandal is to account for the presence of the deceased man at the spot when this attack took place. 7. The prosecution adduced evidence that all these twelve persons were inimical towards the deceased man. The learned Judge, in his charge to the jury, pointed out that all the accused persons might well have been inimical, but the jury could not infer from that that they had attacked the deceased man or had conspired to attack and inflict serious injuries upon him. There can be no objection to the summing up of the learned Judge upon this aspect of the case. The accused and the present nine Appellants clearly did not like the deceased man and to that extent, they had a motive. This was pointed out to the jury quite fairly. 8. The learned Judge in his charge then points out that the only real evidence against the accused persons was the evidence of two persons, Pratul Pal, P. W. 7 and Kamala Dasi, P. W. 9. There was certain evidence of association, but it is quite clear that this case could not possibly succeed unless the jury accepted the evidence of these two witnesses. It is frequently said that there is rarely direct evidence of conspiracy, because conspirators do not conspire in the presence of witnesses. However, if the evidence of P. W. 7 be accepted, the present is an exception to the general rule, because the conspirators were kind enough to make known to Pratul Pal, a passer by, that they were about to attack the deceased man. Pratul Pal's evidence was that he, in the "company of Aswini, P. W. 8, was proceeding to Golai Chandi for a music lesson. On the way, he saw the Appellant Sankar coming out of the house of Dhruba Mandal and saw the Appellants Gopal, Sudhir, Dwijapada Pal, Dwijapada Mandal, Gobinda Mandal, Harikinkar Hazra and Badi Moral inside the house of Dhruba Mandal. The house he described as being near the road. On the way, he saw the Appellant Sankar coming out of the house of Dhruba Mandal and saw the Appellants Gopal, Sudhir, Dwijapada Pal, Dwijapada Mandal, Gobinda Mandal, Harikinkar Hazra and Badi Moral inside the house of Dhruba Mandal. The house he described as being near the road. These persons, whom he saw, were either standing or sitting and he, when passing, heard the Appellant Sudhir say "Let us come out early. Pramatha Babu is in Gokulbati. I "have got the news that he will come to Upardangal in the "evening." It was apparently at this stage that the witness was joined by Aswini, who, it is said, asked the witness what these men were doing. Pratul Pal said that he told Aswini what he heard Sudhir say. 9. In his charge to the jury, the learned Judge did warn the jury to regard the evidence of Pratul Pal with some suspicion, because he was not an independent person and that is so. He also told the jury that Pratul Pal's evidence was not corroborated by the evidence of Aswini, P. W. 8, in the court of sessions. It was suggested that Aswini had resiled from his previous statements in the court of sessions and that witness' evidence before the court of the committing magistrate was brought on the record by the learned Sessions Judge u/s 288 of the Code of Criminal Procedure. The learned Judge pointed out to the jury that the evidence of Pratul Pal was corroborated by the deposition of Aswini in the court of the committing magistrate, but he generally warned the jury to be careful of this witness' evidence. He also warned the jury that the statement of Pratul Pal had not been taken by the police until a considerable lapse of time and he pointed out that that also was a circumstance which they could take into consideration. There is no doubt whatsoever that the learned Judge did warn the jury about the necessity of exercising caution in accepting Pratul's evidence; but Mr. Basu, who has appeared on behalf of the Appellants, has urged that the learned Judge ought to have said considerably more than he did. Mr. Basu complains that the learned Judge never pointed out to the jury the absurdity of Pratul's story and never made any reference whatsoever to very damaging admissions which Pratul made in his cross-examination. 10. Basu, who has appeared on behalf of the Appellants, has urged that the learned Judge ought to have said considerably more than he did. Mr. Basu complains that the learned Judge never pointed out to the jury the absurdity of Pratul's story and never made any reference whatsoever to very damaging admissions which Pratul made in his cross-examination. 10. Pratul's evidence is, to say the least of it, extraordinary. He, in evidence, admitted that the house of Dhruba Mandal was some little distance from the road. The witness was on the road and saw a number of persons in the house or on the veranda. In cross-examination he stated: All the seven accused were speaking in low voice amongst themselves and I could not as such understand what they were speaking about. 11. He then stated: The accused Sudhir made the statement spoken of by me before from where he and six others were. I distinctly understood what the accused Sudhir said. He said exactly these words "Pramatha Babu is in Gokulbati. I have got the news "that he will come to Upardangal in the evening. Rise up early all." 12. He admitted that, having heard this, he did not become suspicious. The learned Judge, I think, should have told the jury that this witness' evidence is practically unbelievable. He admitted that these men were speaking in a low voice and that he could not hear what they said. That is not strange, because the witness was on the roadway and the house was some little way away from the road. Having said that, he could not hear what these men were talking about; he then states that he heard Sudhir make an incriminating remark. In fact, all he heard was this one remark which would suggest that the persons in the house must have attacked Pramatha Nath Mukherji later. I think the learned Judge should have asked the jury whether, in the circumstances, they could ever believe this witness, as his story was so incredible. The learned Judge should have asked the jury to consider whether it was likely that this witness should have heard only one sentence and no more and that that sentence was such as to incriminate the accused persons. If the matter had been put that way to the jury and they had accepted the evidence, then nothing could have been said. If the matter had been put that way to the jury and they had accepted the evidence, then nothing could have been said. But, in my view, in failing to point out to the jury the incredible nature of Pratul Pal's evidence, the learned Judge was guilty of a misdirection. If these men could not be heard, then the learned Judge should have told the jury that Pratul could never have heard the remark which he attributed to Sudhir. 13. Much the same observations can be made with respect to the evidence of Kamala Dasi, P. W. 9. She apparently lived near the house of Gobinda and she stated that just before dusk of the day on which Pramatha Nath Mukherji was murdered she saw Harikinkar Thakur coming to the shop of Gobinda. Harikinkar is supposed to have asked Gobinda "Have you got barley"? On hearing this it is said Gobinda came out of the shop and both went to the house of Gobinda. The lady said that, at the time she was going to fetch water in the tank and as she was proceeding on her way, she saw Harikinkar and Sudhir talking with Gobinda. Again she heard only one sentence and that an incriminating one. Harikinkar is supposed to have told Sudhir, "I am proceeding, you come too. It is almost time for "Pramatha Babu to come." This woman had been watching these people for sometime from a little distance. She does not pretend to have heard anything else. I think it should have been put to the jury whether it was likely that she heard this sentence and this sentence alone. The learned Judge did warn the jury that they should accept this lady's evidence with caution. She had not been examined by the police soon after the occurrence and there were other reasons for treating her evidence with care. The learned Judge, however, never pointed out to the jury that the version of the lady was so improbable that it should never be accepted. It is strange if one person only heard one sentence out of a conversation and that sentence is incriminating. But it becomes stranger still when two persons, listening to two conversations, each hear only one sentence and in each case that sentence incriminates the accused. It is strange if one person only heard one sentence out of a conversation and that sentence is incriminating. But it becomes stranger still when two persons, listening to two conversations, each hear only one sentence and in each case that sentence incriminates the accused. If the matter had been put that way to the jury they might well have considered that the evidence of these two witnesses should not have been accepted. The failure to put this aspect of the case was, to my mind, a serious misdirection. 14. Mr. Basu has urged that there was also another serious misdirection. It is common ground that the statement of these two witnesses, together with the statement of certain other witnesses, were recorded by the police, though after a considerable lapse of time. The police, however, did not record the statements as made, but merely recorded a kind of precis, and therefore, it was impossible for lawyers for the defence to cross-examine the witnesses in court with regard to their earlier statements to the police. 15. It was always the law that, if the police took the statements of witnesses u/s 161, they should take down the statements as made. But the matter was put beyond all doubt by the recent addition to Section 161 of the Code of Criminal Procedure. Sub-section (3) was added to that section and it is in these terms: (3) The police officer may reduce into writing any statement made to him in the course of an examination under this section and if he does so he shall make a separate record of the statement, of each such person whose statement he records. 16. This sub-section prohibits making precis of a statement or merely recording that witness B corroborates witness A. The statement must be recorded fully if recorded at all. The law had, therefore, been amended and this amendment to the Code was made by Act II of 1945 and such was the law when the investigation was made in this case. It was suggested that this amendment is no longer in force, because the Act, namely, Act II of 1945, was repealed by the Repealing and Amending Act, Act II of 1948. That Repealing and Amending Act did in fact repeal Act II of 1945 as that Act had become a mere piece of paper. It was suggested that this amendment is no longer in force, because the Act, namely, Act II of 1945, was repealed by the Repealing and Amending Act, Act II of 1948. That Repealing and Amending Act did in fact repeal Act II of 1945 as that Act had become a mere piece of paper. By Act II of 1945, a third sub-section had been added to Section 161 of the Code of Criminal Procedure. The repealing of Act II of 1945 does not mean that the newly added third sub-section to Section 161 of the Code of Criminal Procedure is also repealed. Once that sub-section was added to Section 161 of the Code, Act II of 1945 had performed its function and was, thereafter, a useless piece of paper. Its repeal in no way affected the new sub-section added to Section 161. 17. Though the police are bound to record the statement as made, nevertheless if such is not done, the evidence of the witness does not become inadmissible. This has been laid down by two recent cases of their Lordships of the Privy Council, namely, Pulukuri Kotayya v. King-Emperor (1946) L.R. 74 IndAp 65 and Zahiruddin v. Emperor ILR (1948) Cal. 179 : L.R. IndAp 80. Both these cases lay down that the evidence of a witness is admissible though the previous statement of the witness was not recorded by the police in accordance with law. Their Lordships of the Privy Council, however, point out that the failure to comply with the provisions of Section 161 may throw very grave, doubt upon that evidence and it is a matter which the court is entitled to consider when dealing with the credibility of the witnesses. The matter has been very recently considered by a Bench, of this Court in the case of Lakshman Chandra Ghosh v. King ILR (1948) Cal. 364, in which it was held that failure to supply copies of statements of witnesses recorded u/s 161 of the Code of Criminal Procedure, 1898, either because the statements were lost, destroyed or were recorded in a boiled form in contravention of Sub-section (3) of that section, does not make the evidence of those witnesses inadmissible. 364, in which it was held that failure to supply copies of statements of witnesses recorded u/s 161 of the Code of Criminal Procedure, 1898, either because the statements were lost, destroyed or were recorded in a boiled form in contravention of Sub-section (3) of that section, does not make the evidence of those witnesses inadmissible. The Court, however, held that, in such circumstances, if the trial is by a jury, the Judge should give proper directions to the jury as regards the weight to be given to such evidence, which the accused had no opportunity to test by cross-examination in some particulars. If such statements were deliberately destroyed or were recorded in a boiled form in contravention of law, that would be, tantamount to withholding of evidence by the prosecution and a presumption might be raised u/s 114 of the Evidence Act, 1872, that the evidence if produced would have gone against the prosecution. If the trial is by jury, the Judge must direct the jury fully and properly on the bearing of the omission, on the credibility of the evidence and on their right to raise an adverse presumption if they think fit to do so. The Court held that a failure to direct the jury properly as above was a misdirection which would entitle the appellate court to interfere, if the verdict was erroneous or there had been a failure of justice. 18. In the present case, the learned Judge did tell the jury that the investigating officer was at fault in not recording the statements as made and he reminded them of the contention of the advocate for the defence that this might have been done deliberately, so that the prosecution would have a free field to add or alter the evidence at a later stage. The learned Judge pointed out to the jury that that suggestion of the defence advocate was not unreasonable, but he left the matter there He never directed the jury, as required by the case of Lakshman Chandra Ghosh v. King (supra), to which I have already made reference. The learned Judge should have told the jury that the jury could infer that this failure to record the evidence properly was done deliberately and done to deprive the accused of their right to cross-examine the witnesses upon these earlier statements. The learned Judge should have told the jury that the jury could infer that this failure to record the evidence properly was done deliberately and done to deprive the accused of their right to cross-examine the witnesses upon these earlier statements. The jury should have been warned that they could have drawn an adverse inference against the prosecution from this conduct of the police, but no such warning was given to them. All that the learned Judge said was that, having regard to the failure to record the earlier statements in the manner required by law, the jury should be careful and cautious in accepting the evidence. That, to my mind, is not a direction consistent with the law as laid down by this Court and therefore, I am bound to hold that the failure of the learned Judge to deal with this question of non-compliance with Sub-section (3) of Section 161 also amounted to a misdirection and a serious misdirection. 19. It appears to me that we are bound to hold that these misdirections inevitably resulted in a failure of justice. There was no evidence at all worth the name, except the evidence of these two witnesses and the failure to warn the jury sufficiently against accepting the evidence of these witnesses has in all probability led to a serious miscarriage of justice. It appears to me that, having regard to these misdirections, the verdict of the jury was vitiated and must be set side. 20. The question now arises whether this Court should order a new trial or not. This Court can certainly order a new trial, but, in my view, this is not a case in which a new trial should be ordered. There is really no evidence at all against these nine Appellants and the whole case is one of suspicion. No judge sitting alone could possibly accept the evidence of Pratul Pal or kamala Dasi and I do not think that any jury, properly directed, would accept their evidence. Their evidence on the face of it shows that it has been concocted for this case. Conspirators admittedly whispering to each other are not likely to raise their voices to enable a passer-by to hear just one sentence, which is the most incriminating one, which they could have uttered throughout the whole of the conversation. Their evidence on the face of it shows that it has been concocted for this case. Conspirators admittedly whispering to each other are not likely to raise their voices to enable a passer-by to hear just one sentence, which is the most incriminating one, which they could have uttered throughout the whole of the conversation. The jury have got to believe that such is likely to convict the Appellants in this case. In the case of Abdul Rahim v. King-Emperor (1946) L.R. 73 IndAp 77 the Privy Council have laid down that where an appellate court comes to the conclusion that*there has been a misdirection, which has resulted in a failure of justice, the court may set aside the verdict of the jury and consider the matter itself upon the evidence on the record. It appears to me that it would be perfectly useless granting a new trial in this case and the only course to be followed is to acquit the Appellants upon this charge. 21. In the result, therefore, I would allow this appeal, set aside the verdict of the jury and the convictions and sentences passed by the learned Sessions Judge and acquit the Appellants. They need not surrender to their bail and their bail bonds are cancelled. J.P. Mitter J. 22. I agree.