Judgment :- 1. The revision petitioner was convicted by the First Class Magistrate at Alwaye, for an offence under S.326, I. P. C., and was sentenced to undergo rigorous imprisonment for one year. His appeal against the conviction and sentence, was dismissed by the Additional Sessions Judge at Parur. This petition is to revise the judgment of the learned judge. 2. The case against the revision petitioner, which has been accepted by the courts below was, that at about 7-15 P.M. on the 23rd September, 1957, he stabbed Pw. 2 on his abdomen, with a knife, on account of previous enmity, and that he then threw his knife and escaped. There were several eye-witnesses whose evidence has been accepted by the two courts. The evidence also showed that after the knife was thrown on the ground, Pw. 7 took it up, showed it to others, carried it home, and kept it in his house, and produced it before the police, only on the 29th September 1957, after his return from his house at Mullurkara, where he had gone on the 24th September. Pw. 7 testified, that he boarded the train for Mullurkara at Alwaye railway station on the 24th morning, purchasing two tickets, one for himself, and the other, probably for some one who accompanied him; but it was proved by the examination of the Station Master and by the production of the relevant register maintained at Alwaye railway station, that no ticket for Mullurkara had been issued on that day. At the time the Station Master was examined as a defence witness, the prosecutor suggested that Pw. 7 might have travelled without purchasing a ticket, a practice which was admitted to be prevalent on some scale. But Pw. 7 had no case, when he was examined, that he travelled ticketless on that day. It was therefore apparent, that all that Pw. 7 had stated could not be accepted at its face value, and therefore it was urged by the learned counsel for the revision petitioner, that the story of the knife being thrown away, which was spoken to by some of the other eye-witnesses, and of its recovery on production by Pw. 7 is unacceptable, and that this must vitiate the evidence as regards the actual occurrence. 3. It is quite true, that the evidence adduced by the prosecution suffers from this defect. 7 is unacceptable, and that this must vitiate the evidence as regards the actual occurrence. 3. It is quite true, that the evidence adduced by the prosecution suffers from this defect. But this notwithstanding, the two courts have believed the eye-witnesses and come to the conclusion, that the occurrence is true. The learned counsel argued, that the theory of the picking up of the knife from the ground, and its safe keeping with Pw. 7 for a number of days, forms an integral part of the case of the prosecution, that if the theory is found to be suspicious or unacceptable, the rest of the case must also be rejected. I readily grant, that a court of fact must certainly keep this defect in view, in weighing the evidence and in appreciating oral testimony, but I am not prepared to accept the argument as laying down a correct proposition of law. The courts below have adverted to the defect pointed out, and yet have chosen to accept the evidence of the other witnesses. If so, it is obvious, that the revisional court cannot interfere. 4. It was next contended, that the investigating officer had taken rough notes of the statements of the witnesses when they were interrogated by him, but had destroyed them after incorporating the statements, as stated by him, in the case diary. This, it was contended, constituted a violation of S.161 (3), Crl. P.C., which enjoins on the police officer to make a separate record of the statement of each of the persons interrogated by him, if at all he thinks fit to reduce his statement into writing, and of S.173 (4), Crl. P.C. For reasons set out in this order, it is unnecessary to cover the wide filed of case law, bearing on the scope and effect of the irregularity, if any, through which I was taken by the learned counsel. The view was no doubt taken in re K. Papaiah, A.I.R. 1956 Andhra 213, In re Ramachandran, AIR. 1957 Madras 505, In re Rangaswamy AIR. 1957 Madras 508, and Viswanath v. Emperor, AIR. 1936 Nagpur 249 that a contravention of S.161 (3), Crl. P.C., on account of which, an accused person is deprived of important material for the cross-examination of witnesses, is a grave defect in the trial, by reason of which, prejudice to the accused may be inferred. A violation of S.161 (3), Crl. 1957 Madras 508, and Viswanath v. Emperor, AIR. 1936 Nagpur 249 that a contravention of S.161 (3), Crl. P.C., on account of which, an accused person is deprived of important material for the cross-examination of witnesses, is a grave defect in the trial, by reason of which, prejudice to the accused may be inferred. A violation of S.161 (3), Crl. P.C., read with S.173 (4) Crl. P.C. which, after the amendment of 1955 has conferred an unqualified right or with S.162 (I), Crl. P.C. which, as it was before the amendment, had conferred a qualified right, on an accused to obtain copies of statements recorded under S.161 Crl. P.C., may take place in more ways than one. An accused person may be deprived of material for cross-examination, by the recording of statements of more than one witness, as a joint or composite statement, or in what is called, a "boiled" form as to -make it often impossible to ascribe any part of it to anyone of them in particular, or if he is entitled to copies of rough notes, of the statements of witnesses which the police officer may have made when examining them in addition to copies of statements as recorded in the case diary, by the destruction of the rough notes, so as to make him unable to check up and verify for himself, what exactly the witness had stated to the police officer earlier, or whether it has been faithfully or truly reproduced in form and spirit, in the case diary. The Madras High Court has ruled in two cases, In re Subbaratnam, AIR. 1949 Madras 663 and In re Subba Reddy, AIR. 1948 Madras 23, that there is no irregularity in a police officer taking rough notes for the preparation of his case diary from time to time. Though Mack J. expressed himself strongly in the former case, against the necessity or even the desirability of preserving for production in court or of producing the rough notes, which would perhaps be, to quote his words, "an untidy mass of scribbled matter which will serve very little purpose", the preponderance of view is, that they must be preserved and produced when called for. This conflict need not be resolved in this revision petition, in view of two pronouncements by the Supreme Court, to be referred to presently. 5. This conflict need not be resolved in this revision petition, in view of two pronouncements by the Supreme Court, to be referred to presently. 5. The view taken in the cases referred to above, that prejudice to an accused person may be inferred from a mere non-compliance with S.161 (3), Crl. P. C., has not been endorsed by the Supreme Court in such broad terms. In Baladin v. State of U.P., A.I.R. 1956 S.C.181, the police records were found to be suspect or unreliable and deliberately perfunctory or dishonest; yet Their Lordships observed as follows: "Ordinarily accused persons are entitled to challenge the testimony of witnesses examined in court with reference to the statements said to have been made by them before the investigating police officer. Statements made by prosecution witnesses before the investigating police officer being the earliest statements made by them with reference to the facts of the occurrence are valuable material for testing the veracity of the witnesses examined in court, with particular reference to those statements which happen to be at variance with their earlier statements; but the statements made during police investigation are not substantive evidence." "Hence the record made by a police investigating officer has to be considered by the court only with a view to weighing the evidence actually adduced in court the court in judging the case of a particular accused has to weigh the evidence given against him in court, keeping in view, the fact that the earlier statements of witnesses as recorded by the police is tainted record and has not as great a value as it otherwise would have in weighing all the material on the record as against each individual accused." This passage has been extracted by the learned judge below in his judgment. Tilkeshwar Singh v. Bihar State, A I.R. 1956 S.C. 238 is a later pronouncement by the Supreme Court, and dealt specifically with the failure to comply with S.161 (3), Crl. P.C. in which it was ruled, that such failure, while it might affect the weight to be attached to the evidence of the witnesses, does not reader it inadmissible. Their Lordships then proceeded to state: "In the present case, the attention of the learned judges was drawn to the infirmity in the evidence of Pws. 4, 7 & 12, arising by reason of the failure to observe S.161 [3], Crl. Their Lordships then proceeded to state: "In the present case, the attention of the learned judges was drawn to the infirmity in the evidence of Pws. 4, 7 & 12, arising by reason of the failure to observe S.161 [3], Crl. P. C., 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 may be mentioned, that in Laxman Chandra v. Emperor, A.I.R. 1947 Calcutta 278, Chakravarthi J., as he then was, treated the violation of S.161 (3), as but affording scope for a presumption to be raised in proper cases, in terms of illustration (g) of S. 114 of the Evidence Act, "that evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it," the weight of the presumption varying according to the circumstances of each case. 6. In this case, this defect in the evidence was present in the minds of both the courts below; they adverted to the defect and yet considered, that the witnesses ought to be believed. On the rule laid down by the Supreme Court, it was perfectly open to the courts below to do so in the appreciation of evidence, and it is not for me, sitting in revision, to say, that they ought not to have done so. 7. The third point in revision is, that no offence under S.326, I.P.C. has been made out; the conviction under S.326, I.P.C. was on the ground, that Pw. 2, the injured, was discharged from the hospital only 30 days after his admission. The testimony of Pw. 1, the Assistant Surgeon, supported by the entry in the wound certificate shows, that though the injury was 6" long, 1" broad and 11/2" deep, it only "divided the muscles" and there is no indication that the abdomen was penetrated. Pw.1 testified, that during the period of his detention in the hospital, Pw. 2 was unable to follow his ordinary pursuits; but in cross-examination it was elicited, that the sutures were removed on the eighth day after admission. To a suggestion made in cross-examination, Pw.1 replied, that he was detained in the hospital, because his condition needed detention, and that there is no record in the hospital, except his chart to prove this. 2 was unable to follow his ordinary pursuits; but in cross-examination it was elicited, that the sutures were removed on the eighth day after admission. To a suggestion made in cross-examination, Pw.1 replied, that he was detained in the hospital, because his condition needed detention, and that there is no record in the hospital, except his chart to prove this. While I am not prepared to make an inference either way, from the mere fact that the sutures were removed after eight days, it has to be admitted, that materials are wanting from which it may be held, that Pw. 2 was unable to follow his ordinary pursuits for more than twenty days. The opinion of the Surgeon is relevant and is valuable, but is not conclusive. After all that was elicited by cross-examining Pw. 1, in my opinion, it behoved the prosecutor in the court of first instance, to elicit further particulars from Pw. 1, in re-examination, which, I take it he would have furnished had he been questioned, as to why he thought, that Pw. 2 was unable to follow his ordinary pursuits, during the period he was in the hospital. The benefit of doubt on this point must enure to the revision petitioner with the result, that his conviction under S.326, I.P.C. has to be altered to a conviction under S.324 I.P.C. 8. The learned counsel then urged, that if the conviction is under S.324, I. P. C., no imprisonment need be ordered. The courts below have found, that the petitioner has committed the crime on account of previous enmity towards Pw. 2. It was stated, that the petitioner being a student, his case may be considered more leniently; I cannot agree. As a student, I take it, that he ought to have known more than the ignorant or the illiterate offender, that he cannot take such liberties with the person of another. In view of the altered conviction under S.324 I.P.C., I think it proper to reduce the sentence, but only nominally, to a period of rigorous imprisonment for nine months. 9. Accordingly, the conviction of the petitioner is altered to one under S.324 I.P.C. and he is sentenced to undergo rigorous imprisonment for nine months. The revision petition is decided accordingly.