A. D. DESAI, B. J. DIVAN, J. ( 1 ) 34 In our opinion it should be further noted at this stage that it was not for the first time before the Sessions Court that an allegation was made by Bai Sita and others that their statements had not been correctly recorded by the police. On the night of February 13/14 1964 a telegram was sent from Jambusar to the I. G. P. and also to the D. S. P. That telegram was over the signature of Khoda and is Ex. 41 in the present case. The original telegram as received in the office of the I. G. P. at Ahmedabad was produced by Vasant Shantaram Vaidyay P. W. 9 Ex. 40. Vaidya was a clerk working in the office of the I. G. P. and Ex. 41 the telegram which was received in the office of the I. G. P. on February 14 1964 The telegram runs as follows:- my father Zaver Desai murdered at Tankari by (1) Adesang Bava (2) Jitu Patel (3) Uncle of Jitu (4) Jesang Bhukhan (5) Shanker Khusal (6) Shana Khusal (7) Mohmed Ise Umar (Stop) Police not making proper inquiries abusing complainant and witnesses and asked to cancel names of murderers Jitu Patel and Jesang Bhukhan and trying to save them. Therefore request you to appoint special police officer in this inquiry. Khoda Zaver of Tankari. In connection with this telegram the prosecution also examined Advocate Jayvadan Shah of Jambusar P. W. 18 Ex. 69. This witness has stated in his deposition that he was a lawyer practising at Ahmedabad. On February 13 1964 he was at his house at Jambusar and at about 1-30 A. M. on February 14 1964 Badharsing came to his house. Badharsing shouted for Jayvadan and the witness came down. At that time Khoda was in the company of Badharsing. Some women were also with him. Badharsing told Jayvadan:-KHODAS father is murdered and in that connection we have to take your advice. Thereafter Jayvadan opened his office and Badharsing Khoda Amarsing and the women came inside the office. Khoda then told Jayvadan: My father is murdered. Seven persons have committed the murder. We have lodged the complaint. The police abused us and tell us that the names of all are not to be written. Thereafter Jayvadan opened his office and Badharsing Khoda Amarsing and the women came inside the office. Khoda then told Jayvadan: My father is murdered. Seven persons have committed the murder. We have lodged the complaint. The police abused us and tell us that the names of all are not to be written. Jayvadan asked Khoda as to who had witnessed the murder and Khoda called his mother who was Sitting outside. Khodas mother stated to Jayvadan the names of all the 7 persons who had committed the murder. Jayvadan did not remember those names. Khoda asked Jayvadan as to what they should do. Jayvadan advised them to inform the higher authorities by sending telegrams to three persons viz. D. S. P. D. I. G. and I. G. P. Amarsing wrote down the telegram in Gujarati as dictated by Jayvadan and the thumb-mark of Khoda was taken after Amarsing wrote it. Telegram Ex. 41 was shown to Jayvadan and he stated that it was the true translation of what he had dictated to Amarsing. In his cross-examination he stated that he had not questioned any other women except Bai Sita. He had talked to Bai Sita for about 5 or 7 minutes and these persons were with him for about half an hour. He had rendered this friendly service to Badharsing. He had not kept a copy of the telegram with him. He had not charged any fees for the advice that he gave; nor had he received any fees in this connection and in answer to a question put to him by the Court he said that Badharsing was an old client of his and his senior Mr. S. M. Nanavati and therefore this friendly advice was given. ( 2 ) IN view of the evidence of Jayvadan and in view of the telegram Ex. 41 it is clear that within 12 hours of the recording of their statements viz. of Bai Sita Bai Kushal and Bai Kashi it was complained that the police officer P. S. I. Patel was not writing down correctly all that the witnesses had stated and some twist was being given to the statements which these witnesses were making before the investigating officer. ( 3 ) IN view of the testimony of Vakhatsing and in view of the contents of Ex. ( 3 ) IN view of the testimony of Vakhatsing and in view of the contents of Ex. 15 it is clear that at the earliest opportunity Bai Sita had come out with the version that accused Nos. 1 to 6 had jointly assaulted her husband and had caused his death. It is true that Ex. 15 came to be written out because of what Khoda Zaver told Head Constable Takhatsing; but in view of the fact that Khoda had come to know of this information from Bai Sita in the presence of Takhatsing himself and also in view of the fact that even before the arrival of Khoda Bai Sita had mentioned the names of these six assailants to Head Constable Takhatsing we hold that the contents of Ex. 15 are nothing else but a statement made by Bai Sita through the mouth of Khoda and Khoda merely acted as a conduit pipe for conveying the message which Bai Sita had to convey to the P. S. I. The formal complainant was Khoda but the real person giving the information was Bai Sita. ( 4 ) IN view of the evidence of Head Constable Takhatsing and in view of the contents of Ex. 15 the first occurrence report written out at the spot according to Head Constable Takhatsing and sent by that Head Constable with P. C. Chhatrasing to Jambusar Police Station it is clear that the version of Bai Sita right from the beginning was that the six assailants had caused injuries to her husband resulting in his death and further in the light of the telegram Ex. 41. and in the light of the evidence of Jayvadan Shah it is clear that within a very short time after their statements were recorded by P. S. I. Patel a grievance was made that the statements were not being written down exactly as stated by the witnesses; P. S. I. Patel the Investigating Officer was changing the version with a view to make out a case against only one person and not against all persons who were named by Sita and other eye-witnesses. ( 5 ) APART from the evidence of Jayvadan Shah and the contents of the telegram Ex. 41 there are other factors which have emerged on the record of this case which go to show that the Police Officers viz. P. S. I. Patel and Dy. ( 5 ) APART from the evidence of Jayvadan Shah and the contents of the telegram Ex. 41 there are other factors which have emerged on the record of this case which go to show that the Police Officers viz. P. S. I. Patel and Dy. S. P. Mankad have not conducted the investigation in the manner that they should have done and have failed in their duty to say the least. The first occurrence report Ex. 15 and the first information report in the printed form recorded at Jambusar Police Station Ex. 87 clearly disclosed a cognizable case against accused Nos. 1 to 6 at least; and the seventh person amongst the accused was Shana. The cognizance of the offence appears to have been taken under sec. 154 Cr. P. C. and the investigation thereafter started. Under sec. 157 Cr. P. C. it is obligatory in such cases on the police officer in charge of the Police Station to send forthwith a report of the commission of the offence to the Magistrate concerned and thereafter send the report to the Magistrate under sec. 157 Cr. P. C. Under sec. 173 Cr. P. C every investigation under Chapter XIV of the Code has to be completed without unnecessary delay and as soon as it is completed the officer in charge of the Police Station has to forward to the Magistrate empowered to take cognizance of the offence a police report in the form prescribed by the State Government setting forth the names of the parties nature of the information and the names of the persons who appear to be acquainted with the circumstances of the case and stating whether the accused (if arrested) has been forwarded in custody or has been released on his bond and if so whether with or without sureties and to communicate in such manner as may be prescribed by the State Government the action taken by him to the person if any by whom the information relating to the commission of the offence was first given. ( 6 ) THE effect of this group of sections set out in Chapter XIV of the Code of Criminal Procedure has been considered by a recent Full Bench decision of this High Court in State v. Lakhamshi VI G. L. R. 130. ( 6 ) THE effect of this group of sections set out in Chapter XIV of the Code of Criminal Procedure has been considered by a recent Full Bench decision of this High Court in State v. Lakhamshi VI G. L. R. 130. At page 134 of the report Bhagwati J. delivering the judgment of the Full Bench has observed in para 4 as follows:-NOW if upon an investigation under Chapter XIV it appears to the officer in charge of the police station or to the officer making the investigation that there is not sufficient evidence of reasonable ground of suspicion to justify the forwarding of the accused to a Magistrate such officer shall says sec. 169 release the accused if in custody on his executing a bond to appear if and when required before a Magistrate empowered to take cognizance of the offence on a police report and to try the accused or commit him for trial. If on the other hand it appears to the officer in change of the police-station upon an investigation under Chapter XIV that there is sufficient evidence or reasonable ground to justify the forwarding of the accused to a Magistrate such officer is required under sec. 170 to forward the accused to a Magistrate empowered to take cognizance of the offence to try the accused or commit him for trial or if the offence is bailable take security from him for his appearance before such Magistrate on a day fixed and for his attendance from day to day before such Magistrate. In either case on the completion of the investigation; the officer in charge of the police station has to submit a report to the Magistrate under sec. 173 in the prescribed form furnishing various details. Sub- sec. (1) of that section provides that every investigation under the Chapter shall be completed without unnecessary delay and as soon as it is completed. 173 in the prescribed form furnishing various details. Sub- sec. (1) of that section provides that every investigation under the Chapter shall be completed without unnecessary delay and as soon as it is completed. the officer in charge of the police station shall : (A) forward to a Magistrate empowered to take cognizance of the offence on a police-report in the form prescribed by the State Government setting forth the names of the parties the nature of the information and the names of the persons who appear to be acquainted with the circumstances of the case and stating whether the accused (if arrested) has been forwarded in custody or has been released on his bond and if so whether with or without sureties and (B) communicate in such manner as may be prescribed by the State Government the action taken by him to the person if any by whom the information relating to the commission of the offence was first given. The final report of the completion of the investigation may according to this Full Bench decision take either of the two forms. If according to the Police Officer the investigation discloses that an offence has been committed by the accused he has to submit a charge-sheet against the accused persons. If on the other hand he comes to the conclusion that the investigation does not disclose any offence he has to submit a report in another form prescribed by the State Government asking for what is known as (A) or (B) or (C) summary as the case may be; but in any event the final report either in the form of a charge-sheet or in the form of a report asking for a particular type of summary has to be submitted by the Investigating Officer. In the instant case what has been done is that at the end of the investigation only the charge-sheet was filed as regards accused No. 1 and no summary appears to have been asked for so far as accused Nos. 2 to 7 were concerned. The scheme of the sections of the Cr. P. C. makes it clear that the judiciary viz. the Magistrate concerned with the ease should be kept informed about the commencement of the investigation and also about the completion of the investigation. 2 to 7 were concerned. The scheme of the sections of the Cr. P. C. makes it clear that the judiciary viz. the Magistrate concerned with the ease should be kept informed about the commencement of the investigation and also about the completion of the investigation. As the above mentioned Full Bench decision points out the Magistrate to whom the final report is made under see. 173 is not bound to accept the opinion of the Police Officer regarding the non-commission of the offence by the accused in question. It is open to the Magistrate to take cognizance of the offence himself under sec. 190 Cr. P. C. or to call for further report from the Investigating Officer; but the final word in such cases rests not with the Investigating Officer but with the Magistrate. Overlooking the provisions of sec. 173 Cr. P. C. and disregarding the provisions of the Police Manual no report asking for a particular type of summary regarding accused Nos. 2 to 7 was ever filed by the Investigating Officer and no summary was asked for as regards accused Nos. 2 to 7. ( 7 ) APART from this fact regarding the non-observance of the clear provisions of sec. 173 Cr. P. C. there are further factors which go to indicate that everything was not in order so far as the investigation was concerned. Bai Kushal even according to her statement before the police was an eye-witness but she was not cited as a witness in the charge-sheet which came to be filed in the ease against accused No. 1. Exhibit 100 on the record of this case is that charge-sheet and according to this charge-sheet it was accused Adesing accused No. 1 who had caused the murder of deceased Zaver Desai by causing injuries by sharp-edged instrument in the big khali situated on the way to village Chandpura from village Tankari. The decision to drop Bai Kushal and also to drop the other two women witnesses Bai Sita and Bai Kashi appears to have been taken by the two Investigating Officers P. S. I. Patel and Dy. S. P. Mankad sometime on February 16 1964 In answer to a question put by the Court P. S. I. Patel stated that the decision not to include the names of the women in the charge-sheet was taken by P. S. I. Patel himself and Dy. S. P. Mankad sometime on February 16 1964 In answer to a question put by the Court P. S. I. Patel stated that the decision not to include the names of the women in the charge-sheet was taken by P. S. I. Patel himself and Dy. S. P. Mankad together. He had also stated in answer to a question put to him by the Court that he had recorded four statements of the women viz. Bai Sita Bai Kushal Bai Kashi and Bai Sona another daughter-in-law of Bai Sita on the Meda of Abhu Sheth; and we will come to that point in a short while. P. S. I. Patel has also stated that the decision to submit the charge-sheet against accused No. 1 only was taken by him and Dy. S. P. Mankad jointly on the evening of February 15 1964 at Jambusar and it was in pursuance of that decision that the P. S. I. submitted the charge-sheet Ex. 100 against accused No. 1 alone. After February 16 1964 P. S. I. Patel did not consult the Dy. S. P. again. So far as Dy. S. P. Mankad is concerned his version is slightly different as regards this question of filing the charge-sheet. In answer to certain questions put to him Dy. S. P. Mankad stated that in this case the decision to submit a charge-sheet against accused No. 1 was Mankads own decision and so was the decision not to include the names of the female witnesses in the charge-sheet. According to P. S. I. Patel on February 14 1964 he had come to learn at Tankari that telegrams had been sent to the I. G. P. and the D. S. P. but according to Mankad he had not learnt about the telegrams having been sent to the higher police authorities. Thus the decision not to include the female witnesses in the charge-sheet and also the decision to file the charge-sheet only against accused No. 1 was taken by Mankad and not by P. S. I. Patel and Mankad as stated by P. S. I. Patel. Thus the decision not to include the female witnesses in the charge-sheet and also the decision to file the charge-sheet only against accused No. 1 was taken by Mankad and not by P. S. I. Patel and Mankad as stated by P. S. I. Patel. We may also mention at this stage that Mankad has also stated in his deposition that in this particular case he had discussions with the Senior Police Prosecutor before taking the decision and he had discussed the matter with the D. S. P. after the decision; and we presume in the context in which this answer was given that by this decision he refers to the decision to file a charge-sheet only against accused No. 1 and secondly the decision not to include the names of the female witnesses in the charge-sheet. ( 8 ) THERE is one further fact which has to be borne in. mind and it is that though there was a Police Outpost at Tankari where the investigating Officer could have recorded the statements of different witnesses on February 13 as admitted by him P. S. I. Patel recorded the statements of different witnesses at the residence of a person known as Abhu Sheth. Why this decision to record the statements at Abhu Sheths bungalow was taken is not explained on the record of this case. It was also alleged by at least two of the prosecution witnesses viz. Khoda and Chhagan that Bhukhan Sheth father of accused No. 5 was actually present at the time when their statements were being recorded by P. S I. Patel. The P. S. I. has denied this allegation made by these two witnesses for the prosecution. We will not place any reliance on the allegation regarding Bhukhan Sheths presence but we merely note that such an allegation was made by at least two of the prosecution witnesses. ( 9 ) WE may also mention that the learned Government pleader appearing on behalf of the State urged before us that while considering this aspect about the fairness of the investigation we should also take into consideration the fact that the change in the version between the first information report Ex. 15 and the statements of the witnesses recorded by P. S. I. Patel and Dy. 15 and the statements of the witnesses recorded by P. S. I. Patel and Dy. S. P. Mankad was on three positive lines (1) to introduce grappling between accused No. 1 and the deceased; (2) to indicate that it was the deceased who was the aggressor; and (3) further that the eye-witnesses Bai Sita Bai Kashi and Bai Kushal were present in the Khali at the time of the incident and accused Nos. 2 to 7 were seen running away from the scene of the incident and were not seen participating in the assault on the deceased. Now our difficulty in the course of the investigation to a police officer can only be used for the purpose of contradicting the maker of that statement and not for any other purpose. The use that we would be making if we were to accept this submission of the learned Government Pleader would be for the purpose of finding out whether that record was correct or not and not for the purpose of contradicting the maker of the statement. In Baladin v. State of U. P. A. I. R. 1956 S. C. 181 the Supreme Court considered as to what should be done when the Court comes to the conclusion that the record maintained by the police officer is vitiated because of the mala fides of the Investigating Officer or of dishonestly of investigation. At page 187 of the report Sinha J. (as he then was) has observed :-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. 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. If the police record becomes suspect or unreliable as in the present case on the ground that it was deliberately perfunctory or dishonest it loses much of its value and 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. ( 10 ) IN Sheo Shanker v. The State A. I. R. 1953 Allahabad 652 a Division Bench of Allahabad High Court consisting of Raghubar Dayal and Hari Shanker JJ. also laid down the same principle and there Raghubar Dayal J. delivering the judgment of the Division Bench has observed in para 12 of the report as follows:-THE mala fide conduct of the investigating officer could certainly be urged on behalf of the State and the Court can consider it on the basis of circumstances other than the mere discrepant language of the recorded statement of the witness. After these two decisions one of the Allahabad High Court and the other of Supreme Court were delivered the precise scope and effect of the provisions of sec. 162 Cr. P. C. were considered by the Supreme Court in Tahsildar Singh v. State of Uttar Pradesh A. I. R. 1959 S. C. 1012 and there Subba Rao J. (as he then was) has observed:-IF one could guess the intention of the Legislature in framing the section in the manner it did in 1923 it would be apparent that it was to protect the accused against the user of the statement of witnesses made before the police during investigation at the trial presumably on the assumption that the said statements were not made under circumstances inspiring confidence. Both the section and the proviso are intended to serve primarily the same purpose i. e. the interest of the accused. . . . . . . . . . . . . . . . . . . . . . . . . The section was. Both the section and the proviso are intended to serve primarily the same purpose i. e. the interest of the accused. . . . . . . . . . . . . . . . . . . . . . . . . The section was. therefore conceived in an attempt to find a happy via media namely while it enables an absolute bar against the statement made before a police officer being used for any purpose whatsoever it enables the accused to rely upon it for a limited purpose of contradicting a witness in the manner provided by sec. 145 of the Evidence Act by drawing his attention to parts of the statement intended for contradiction. It cannot be used for corroboration of a prosecution or a defence witness or even a Court witness. Nor can it be used for contradicting a defence or a Court witness. Shortly stated there is a general bar against its use subject to a limited exception in the interest of the accused and the exception cannot obviously be used to cross the bar. In view of this decision in Tahsildar Singhs case (supra) it is clear that the police statements recorded by the two Investigating Officers P. S. I. Patel and Dy. S. P. Mankad cannot be looked at for the purpose of deciding whether the record was correctly maintained or not. We therefore reject the submission of the learned Government Pleader and hold that in view of the bar created by sec. 162 Cr. P. C. it is not open to us to take into consideration the statements recorded by these two officers even for the purpose of finding out whether the record was correctly maintained or not. ( 11 ) WE have come to the following conclusion regarding the investigation carried out by P. S. I. Patel and Dy. S. P. Mankad : (1) The provisions of sec. 173 Cr. P. C. were not complied with inasmuch as no summary was asked for as regards accused Nos. 2 to 7. (2) Bai Kushal was not mentioned as an eye-witness in the chargesheet Ex. S. P. Mankad : (1) The provisions of sec. 173 Cr. P. C. were not complied with inasmuch as no summary was asked for as regards accused Nos. 2 to 7. (2) Bai Kushal was not mentioned as an eye-witness in the chargesheet Ex. 100 against accused No. 1 even though it is clear from the materials on the record of this case that according to the statements as recorded by P. S. I. Patel Bai Kushal was an eyewitness who had seen the infliction of injuries by accused No. 1 on the deceased. (3) The evidence of Advocate Jayvadan and the contents of the telegram Ex. 41 show that the allegation that the record was not being correctly made in the course of the investigation was not an afterthought but was made within a very short time after the recording of the statements of the different prosecution witnesses. (4) The statements were recorded in Abhu Sheths bungalow and not in the premises of the Police Outpost. Looking to all these four factors and particularly in the light of the evidence of Head Constable Takhatsing corroborated as it is by the first occurrence report Ex. 15 it is clear that the earliest version which was given out by the eye-witnesses Bai Sita was not recorded and pursued in her statement before the police and we have come to the conclusion after a great deal of deliberation that the record of the statements made before the police in the course of the investigation was not the correct record and that the testimony of Bai Sita Bai Kushal and Bai Kashi is not shaken in any manner by the contradictions emerging between the record of the statements before the police and the record of the depositions before the Sessions Court. ( 12 ) IN State v. Bechar Punjaji VII G. L. R. 227 a Division Bench of this High Court to which one of us was a party considered the two decisions in Sheo Shankers case and Baladins case (supra) and held as follows :if in any particular case the Court can come to the conclusion that the record maintained by the Investigating Officer was deliberately perfunctory or dishonest or was due to some reason or other not the accurate record of what the witnesses did state to the Investigating Officer the Court can hold that what the Investigating Officer has purported to record is not in fact the statement which the witness made to that Officer at the time when the statement was made and therefore in fact there is no contradiction between the testimony of the witness in Court and what he is alleged to have stated on an earlier occasion. . . . . . . . . . . . . . . . . . . . . . But there must be circumstances on record to justify an inference of mala fide conduct and as observed by the learned Judges of the Allahabad High Court usually a contention about the mala fide conduct of the Investigating Officer is not put forward on behalf of the State when discrepancies between the police statement and deposition in Court from the same witness are brought to the notice of the Court. ( 13 ) IN the instant case from the materials available on the record of the case we are satisfied that the investigation was mala fide and dishonest and the Investigating Officers did not record correctly what the witnesses did state to them. In Bechar Punjajis case (supra) it was also pointed out that there should be a challenge to the testimony of the police officer on the part of the prosecution in order to show that the record was not maintained properly by him; and an opportunity should be given to the Investigating Officer to give an explanation. In the instant case according to P. S. I. Patel on February 14 1964 he had come to learn that a complaint had been made to the superior officers that he was not maintaining the record correctly. Not only that when an application Ex. In the instant case according to P. S. I. Patel on February 14 1964 he had come to learn that a complaint had been made to the superior officers that he was not maintaining the record correctly. Not only that when an application Ex. 16 was made to the I. G. P. a copy of that application was sent to P. S. I. Patel for his explanation. That is also deposed to by P. S. I. Patel. The learned trial Judge himself put questions to the two Investigating Officers Patel and Mankad to give them opportunities to give any explanation regarding the manner in which they carried out the investigation; and in our opinion sufficient opportunities were given both by the Department concerned as well as by the learned Judge before whom the Sessions case went on to these two Police Officers to give their explanation regarding the manner in which they had carried on their investigation. In our opinion therefore no contradiction between the depositions of Bai Sita Bai Kushal and Bai Kashi emerges on the record of this case so far as their depositions before the Court are concerned in contrast to earlier statements alleged to have been made by them. All the accused convicted of the offence under sec. 304 (1) read with sec. 149 I. P. C. .