R. K. SHUKIA, J. ( 1 ) APPELLANTS Bhola, Kailash, Deepchand, Rampa)at and Ambika have filed (his appeal against the judgment and order dated 127-1978, pased by the 5th Additional Sessions Judge, Azamgarh, where by he has convicted all the accused-appellants under section 148 Indian Penal Code and sentenced each of them to one year R. I. Kailash appellant is convicted under Section 307 Indian Penal Code and sentenced to five years R. I. and a fine of Rs. 500/ -. In case of default of payment of fine he shall further suffer three months R. I. Rampalat appellant is convicted under section 307 Indian Penal Code and sentenced to undergo four years R. I. Bhola, Deepchand and Ambika appellants are convicted under Section 307 Indian Penal Code and sentenced to three years R. I. each. Both the sentences have been directed to run concurrently. ( 2 ) BRIEFS facts of the prosecution case are that about a month prior to the occurrence in question Kailash appellant was digging Nali for his tube-well through the field of Chandrika Singh, complainant. Chandrika Singh stopped Kailash appellant from digging Nali through his field without paying any compensation or concession in irrigation charges from him. Kailash did not agree to pay any compensation or to make any concession. This caused ill-will between the parties. ( 3 ) THEREAFTER in the night between 17/18th June, 1973 at about 1. 30 A M. the complainant Chandrika Singh was sleeping in front of his house in village Gangapur, police station Kotwali, Azamgarh. His mother, Smt. Rachala and sister Sharda were also sleeping on one cot near by and his brothers son, Virendra (P. W. 2) aged about 5-7 years and sisters son Munim were sleeping on another cot. The mother of the complainant had boil trouble in her leg and, therefore, she was unable to sleep. His sister, Sharda was with her to look after her. A burning lantern was hung by the trunk of the Neem tree nearby. All the aforesaid appellants came there. Bhola, Deepchand and Ambika appellants were armed with Gandasi while Kailash and Rampajat appellants had country made pistols in their hands. It is said that when the complainant received Gandasi blow, he woke up, saw and recognised all the five appellants. All the appellants caused injuries with their respective weapons. All the aforesaid appellants came there. Bhola, Deepchand and Ambika appellants were armed with Gandasi while Kailash and Rampajat appellants had country made pistols in their hands. It is said that when the complainant received Gandasi blow, he woke up, saw and recognised all the five appellants. All the appellants caused injuries with their respective weapons. On the alarm being raised by him, his mother and his sister, villagers came there but in the mean time all the appellants escaped. ( 4 ) THEREAFTER injured complainant was brought to District Hospital, Azamgarh where his injuries were examined at 1. A. M. by Dr. R. N. Tiwari, who wound seven incised wounds, two linear abrasions and two multiple gun shot injuries on his body, and noted down these injuries in the injury report, Ex. Ka-3. After this Smt. Rachala went to the police station Kotwali and lodged an oral F. I. R. at 3. 15 A. M. case was registered under Sections 148/307 Indian Penal Code and investigation was entrusted to Sri Bhupendra Nath. SI. (P. W. 4 ). After completing the investigation he submitted the charge sheet in court. ( 5 ) AN the appellants pleaded not guilty and denied their participation in this crime. They have produced Banal (D. W. 1) in support or their defence. ( 6 ) PROSECUTION has examined four witnesses in support of its case, out of which Chandrika Singh (P. W. 1) is the injured. Virendra (P. W. 2) is his brothers son, who is a child witness. The statement of Dr. R. N. Tiwari bas been brought on the record as Ex. Ka-4. Abdul Rah (P. W. 4) is the Head Constable, who prepared the chik report. Bhupendra Nath, S. I. (P. W. 4) is the 1. 0. ( 7 ) AFTER discussing the evidence on the record in detail the learned Sessions Judge has doubted the presence of Virendra (P. W. 2) and has convicted all the appellants as aforesaid on the sole testimony of Chandrika Singh (P. W. 1 ). ( 8 ) THE aforesaid prosecution story bas been supported by the evidence of two eyewitnesses, namely, Chandrika Singh (P. W. 1) and Virendra (P. W. 2 ). Virendra is a child witness. The presence of Virendra (P. W. 2), who was then 5-6 years of age, has been doubted by the learned Sessions Judge. ( 8 ) THE aforesaid prosecution story bas been supported by the evidence of two eyewitnesses, namely, Chandrika Singh (P. W. 1) and Virendra (P. W. 2 ). Virendra is a child witness. The presence of Virendra (P. W. 2), who was then 5-6 years of age, has been doubted by the learned Sessions Judge. It cannot be said that his conclusion is entirely baseless. ( 9 ) SO far as the evidence of Chandrika Singh (P. W. 1) is concerned, the learned counsel for the appellants has vehemently argued that his statement was not recorded by the 1. 0. under Section 161 Criminal Procedure Code and, therefore, It has caused a great prejudice to them and it should be excluded from consideration. ( 10 ) CHANDRIKA Singh (P. W. 1) has stated as under: Darogaji aspatal me mere pas aye the unhone mera bayan nahin liya kyon ki mere me tanke lage the. Phir we mera bay an lene nahin aye. Ghatna ki bat adalat me pahli bar diya. Isse pahle mera bayan kahin nahin hua. Daroga Ji ne mera bayan kaise likh liya hai wah mai nahin janta. Chunki mere muh me tanke lag a diye gaye the isse mai bol nahin sakta tha. Isi se mera bayan aspatal me kisi ne nahin liya. Tanke karib ek mahine bad kate gaye. The learned Sessions Judge has also held that the statement of this witness recorded on 1k- 6-1976 under Section 161 Criminal Procedure Code running into over one page of the case diary is fictitious and was fabricated on the basis of the information given in the F. I. R. It is clear from the statement of Chandrika Singh, quoted above, that he was unable to speak due to stitches on his mouth. No attempt bas been made on behalf of the prosecution to clarify this position. Even the 1. 0. has not explained it. Although he has stated that he recorded the statement but he bas not explained how he did that. Under these circumstances I agree with the findings of the learned Sessions Judge on this point that the statement recorded by the 1. 0. under Section 161 Criminal Procedure Code was fictitious. ( 11 ) NOW the important question for consideration is what will be the effect of non examination of the complainant under Section 161 Criminal Procedure Code. Under these circumstances I agree with the findings of the learned Sessions Judge on this point that the statement recorded by the 1. 0. under Section 161 Criminal Procedure Code was fictitious. ( 11 ) NOW the important question for consideration is what will be the effect of non examination of the complainant under Section 161 Criminal Procedure Code. Section 161 (3) reads as under: The Police Officer may reduce into writing any -statement made to him in the course of examination under this section; and if he does so, he shall make a separate and true record of the statement of each such person whose statement he records. Section 164 (1) Criminal Procedure Code also provides as under: Any Metropolitan Magistrate or Judicial Magistrate may, whether or not he has jurisdiction in the case, record any confession or statement made to him in the course of an investigation under this Chapter or under any other law for the time being in force, or at any time afterwards before the commencement of the inquiry or trial The word may as used in Section 164 Criminal Procedure Code came up for interpretation before the Privy Council in the case of Nazir Ahmad v. King Emperor, and their Lordships were pleased to interpret it as under: It can hardly be doubted that a Magistrate would not be obliged to record any confession made to him if for example, it were that of a self-accusing mad man or for any other reasons the Magistrate thought it to be incredible or useless for the purposes of justice. Whether a Magistrate records any confession is a matter of duty and discretion and not of obligation. In the case of Pursottam Jethanand v. State of Kutch, it has been held as under: There can be no doubt that the right which the accused had got of obtaining the copies of the statements made by witnesses during investigation is a very valuable right and that the whole sale refusal to grant the same will be a serious irregularity which would vitiate the entire trial as held by the Privy Council in Kottaya v. Emperors. The interest of the appellants stands prejudiced in the same manner and to the same extent as where the statement has been recorded but its copy has not been supplied to him for the purposes of cross-examining the witnesses. The interest of the appellants stands prejudiced in the same manner and to the same extent as where the statement has been recorded but its copy has not been supplied to him for the purposes of cross-examining the witnesses. In both the cases the accused is deprived of the opportunity to confront the witnesses from their previous statements. In the case of Tilkeshwar Singh v. State of Bihar, it has been held that while the failure to comply with the requirements of Section 161 (3) Criminal Procedure Code might affect the weight to be attached to the evidence of the witnesses, it does not render it in admissible. ( 12 ) RELYING on these authorities it has been held in the case of Gopal Krishna v. State, as under: On the basis of these authorities, it is obvious that though the police are not bound to make a record of the statement of the witnesses under Section 161 as a matter of obligation, it is their duty to do so when the witness is a material witness for unfolding the prosecution story. It is also clear that a failure on their part to comply with the requirements of Section 161 (3), though does not render the subsequent statement of the witness at the trial inadmissible, it does greatly impair the value of the evidence of that witness I am, therefore, of opinion that the statement of the Complaints Officer Bal Singh at the trial though admissible in evidence has lost much of its weight on account of the fact that his statement was not recorded under Section 164, Criminal Procedure Code. In the instant case there are-two eye-witnesses. Virendra (P. W. 2) is a child witness, and Chandrika Singh (P. W. 1) is the injured. There are material contradictions in the statement of these two witnesses. Virendra (P. W. 2) has stated that when he woke up all the assailants had run away. Under these circumstances his evidence is of no use. ( 13 ) NOW we left with the evidence of Chandrika Singh (P. W. 1) alone. His statement has not been recorded under Section 161 Criminal Procedure Code faithfully. A fictitious statement has been prepared on the basis of the F. I. R. Under these circumstances,. his statement lost much of its weight. ( 13 ) NOW we left with the evidence of Chandrika Singh (P. W. 1) alone. His statement has not been recorded under Section 161 Criminal Procedure Code faithfully. A fictitious statement has been prepared on the basis of the F. I. R. Under these circumstances,. his statement lost much of its weight. Not only this, it deprives the appellants of a valuable opportunity to get the earliest statement of the witness when his memory was fresh. If there was any difference between the statement recorded under Section 161 Criminal Procedure Code and stated otherwise in the Court, then the appellants could use that for contradiction. This opportunity has been denied to the appellants. Although the I. C. has stated that he recorded the statement of Chandrika Singh (PW. 1) but his statement does not observe credence. ( 14 ) LEARNED counsel for the appellants has placed reliance in this connection on a decision of a Division Bench of this Court in the case of Shankar Lal v. State. In that case the copies of the statements of witnesses recorded by the Magistrate under Section 161 Criminal Procedure Code were not delivered to the accused and they were thus deprived of the opportunity of cross- examining the prosecution witnesses with reference to their previous statements.-In the instant case there was practically only one witness, whose statement was to be recorded by the 1. 0. When the condition of that witness, just after the occurrence, was not such that he could speak due to stitches on his mouth, it was not expected from the 1. 0. to do impossible; but on the other hand it was also not expected from him to fabricate his statement. The evidence of this witness should have been recorded when he was in a position to speak. This has not been done and undesirable method has been adopted by the 1. 0, which creates grave doubt about the impartiality of the investigating agency. ( 15 ) IN view of the above discussions, the evidence of Chandrika Singh though on injured witness, lost its weight. His statement has not been recorded under Section 161 Criminal Procedure Code. This has not been done and undesirable method has been adopted by the 1. 0, which creates grave doubt about the impartiality of the investigating agency. ( 15 ) IN view of the above discussions, the evidence of Chandrika Singh though on injured witness, lost its weight. His statement has not been recorded under Section 161 Criminal Procedure Code. By denying the copy of his previous statement to appellants, their precious right, to cross- examine Chandrika Singh (P. W. 4) with reference to his previous statement, has been taken away from them and they are to a great extent handicapped in their defence. Therefore, it is not safe to convict the appellant on the testimony of Chandrika Singh (P. W. 1 ). The only other witness Virendra (P. W. 2) is a child, who has already been discarded by the learned Sessions Judge. He has admitted that when he woke up all the assailants had run away. Thus he is useless. There is no other evidence from which it can be held that the prosecution has proved its case beyond reasonable doubt. Under these circumstances, convictions and sentences passed against all the appellants by the learned Sessions Judge are not justified and they are liable to be set aside. ( 16 ) IN the result the appeal is allowed. Convictions and sentences awarded. by the learned Sessions Judge as against all the five appellants are set aside. They are acquitted of the charges levelled against them. They are on bail. They need not surrender. Their bail bonds are disharged. Appeal allowed. .