Judgment.- The twenty-two appellants in Criminal Appeal No. 136 of 1965, namely, A-1 to A-12 and A-14 to A-23 have preferred the appeal against the judgment of the Additional Sessions Judge, Srikakulam in Sessions Case No. 27 of 1964 convicting the appellants under various charges. A-1 to A-12 and A-14 to A-23 are convicted under section 147, Indian Penal Code and each of them is sentenced to rigorous imprisonment for one year. A-15 and A-17 are further convicted under section 325, Indian Penal Code, and sentenced to one year’s rigorous imprisonment in addition to a fine of Rs. 50 each; in default to two months’ rigorous imprisonmerit each. A-4 and A-8 are convicted under section 323, Indian Penal Code and sentenced to one year’s rigorous imprisonment. A-4 to A-12 and A-14 to A-a2 are sentenced under section 323, Indian Penal Code, to rigorous imprisonment for one year each for causing hurt to P.Ws. 1 to 9 and 11. A-13 was the only accused who had the benefit of acquittal on all the charges. The Criminal Revision is preferred by P.W. 1 on the ground that the acquittal of the accused persons of the charges framed against them under section 302, Indian Penal Code, read with sections 34 and 149, Indian Penal Code, is illegal and contrary to the evidence. In short, the revision is against the acquittal of the accused under some of the charges framed against them. The case of the prosecution briefly stated is this: The accused, the deceased and P.Ws. 1 to 9 and 11 belong to Dandemavalasa village in Srikakulam District. A-1 is the Village Karnam. A-9 is his son and A-2 is the Talayari. A-22 is the metemal uncle of A-2 and A-21 is the brother’s son of A-22. A-19 and A-20 are cousins and A-10 is the father of A-3 to A-6 and A-23. A-11 is the brother’s son of A-10 and A-12 and A-13 are brothers and are A-10’s nephews. A-8 and A-15 are A-14’ s sons and A-7 and A-16 are brothers. There was enmity in the village due to Panchayat Elections between the deceased, P.Ws. 1 to 10 on the one side and the accused on the other. P.W. 1 and A-10 who wanted to contest for the membership were shown separate wards with the result the contest was avoided. A-1 supported A-10 in that election. There was enmity in the village due to Panchayat Elections between the deceased, P.Ws. 1 to 10 on the one side and the accused on the other. P.W. 1 and A-10 who wanted to contest for the membership were shown separate wards with the result the contest was avoided. A-1 supported A-10 in that election. P.W. 20 contested for the presidentship with the support of P.W. 1, while A-1 and A-10 supported one Appanna and Appanna succeeded in the election. This accentuated the misunderstandings between both the parties. The prosecution party consists of members of Velama community and the accused party consists of patnaiks, yadavas, telagas, kalingas and harijans and others. All the villagers in the previous years used to join to celebrate a festival known as ‘Kommala Panduga’ but on account of the elections both sides celebrated the festival this year contrary to the local customs observed during the celebration of the festival. On the day of occurrence, that is, 16th October, 1964 at about 7 p.m. the deceased and P.W. 1 were returning home after ploughing their lands. A-1 had a groundnut heap in front of his house on the main road for the purpose of drying the nuts. The buffaloes of P.W. 1 and the deceased strayed into the groundnut heap and this made A-1 abuse the deceased and the deceased apologised for his cattle trampling the groundnut heap. A-1 was not satisfied with the apology expressed and sent his son A-9 to bring the ‘Seepana’ people, and his son A-2 to bring the harijans to teach P.W. 1 and the deceased a lesson. Then all the appellants came there, A-1 and A-7 armed with ‘Kathovas’, A-23 with a ‘boriga’ and the rest with sticks. A-1 also went into his shed, brought out a cross-staff (M.O. 1) and beat the deceased on his head and asked the other accused to kill him. A-2 beat the deceased with a stick and after he fell down, A-3 also beat him. When P.W. 1 intervened he was beaten by A-4, A-5, A-6 and A-8. Among those persons of the prosecution party present at the time of the occurrence, P.Ws. 1 to 11 were injured. Among the accused, A-2, A-3, A-4, A-5, A-6, A-8, A-11, A-12 and A-23 were injured. By about midnight time P.Ws. When P.W. 1 intervened he was beaten by A-4, A-5, A-6 and A-8. Among those persons of the prosecution party present at the time of the occurrence, P.Ws. 1 to 11 were injured. Among the accused, A-2, A-3, A-4, A-5, A-6, A-8, A-11, A-12 and A-23 were injured. By about midnight time P.Ws. 1 to 11 and the deceased who was then in a serious condition were removed in cots by P.W. 20 to the Government Head Quarters Hospital, Srikakulam. They reached the hospital at about 6 a.m. on 17th October, 1964 where they were examined and treated by the Medical Officers. The deceased was unconscious throughout till his death at 4 p.m. On 17th October, 1964 at 5 p.m. a report (Exhibit P-1) was given to the Head Constable of Srikakulam police station. At about 6-30 p.m. on the evening of 17th October, 1964, the accused, A-2, A-4, A-5, A-6, A-8, A-1 1, A-12 and A-23 also gave a report) Exhibit P-51 to the Head Constable of Amudalavalasa Police Station which is on the way to Srikakulam. The Civil Assistant Surgeon (P.W. 15) conducted the post-mortem on the body of the deceased and in his opinion the deceased died due to shock and h?emorrhage as a result of injuries (Nos. 2 and 3) to the skull and they were fatal. P.Ws. 21 and 22 are the Medical Officers of the Head Quarters Hospital, Srikakulam who examined the injured witnesses P.Ws. 1 to 11 from 7 a.m. onwards on the morning of 17th October, 1964. The learned Additional Sessions Judge, acquitted the accused persons A-1 to A-3 of the charges Nos. 3 and 4 framed against them under section 302, Indian Penal Code, and the rest for constructive liability under section 302 read with section 149, Indian Penal Code. The learned Counsel Mr. Ella Reddy appearing for the appellants contended that the learned Judge having acquitted the appellants of the major charge on the ground that the version given by the prosecution witnesses is inconsistent and artificial should have rejected their evidence in its entirety. It is also pointed out by him that the lower Court failed to notice that the names of A-9 to A-23 were not mentioned in the first information report (Exhibit P-1) which itself was giver after a delay of about 21 hours. It is further argued by Mr. It is also pointed out by him that the lower Court failed to notice that the names of A-9 to A-23 were not mentioned in the first information report (Exhibit P-1) which itself was giver after a delay of about 21 hours. It is further argued by Mr. Ella Reddy that A-1, the karnam of the village was not present at the time of the occurrence and that they have falsely implicated him as he happens to be the leader of the party and that Exhibit P-1 is the result of consultations and confabulations among the members of the prosecution party. In short, it is his case that the entire story of the prosecution is a fabrication to rope in the members of the opposite party and make them face serious charges. It is therefore necessary to see whether the evidence of the injured witnesses can be relied upon to sustain the convictions of the appellants. It may be pointed out at the outset that in a factious case, it will be difficult, if not almost impossible, to find witnesses who are unconnected with either faction. Therefore their evidence has to be scrutinised with care and caution in order to guage the veracity of the witnesses. In this case, A-2, A-4, A-5, A-6, A-8, A-11, A-12 and A-23 who gave the report Exhibit P-51 against the prosecution party have also pleaded the right of private defence to attack the prosecution party who according to them were the aggressors. It is the case of the defence Counsel that when the accused retaliated, P.Ws. 1, 2, 5, 7, 8, 9 and 11 received the injuries. To this extent, the accused who gave the report, Exhibit P-51 to the police at Amudalavalasa admit their presence and participation with this difference that they were not the aggressors. The learned Counsel Mr. Ella Reddy pointed out that the injured witnesses were not available for examination by the Head Constable on the morning of 17th October, 1964 and that Exhibit P-1 which was given at 4-40 p.m. on that day shows only the names of A-1 to A-9 as having participated in the occurrence and that there is no explanation forthcoming from the injured witnesses as to why they failed to give a report at Amudalavalasa which is on the route to Srikakulam or go to the hospital at Amudalavalasa for treatment. It may be necessary having regard to the criticism offered by the learned Counsel to see whether Exhibit P-1 could be treated as the first information report in this case. The Head Constable (P.W. 25) was in charge of the Srikakulum Town Police Station on 17th October, 1964. He received intimation from the Government Hospital to record the dying declaration of the deceased Buchanna in this case who was then in a precarious condition. He went to the hospital at 11-30 a.m. and found the deceased Buchanna in an unconscious state. The Magistrate was also present on that occasion and no statement could be recorded from the deceased person as he never regained consciousness. At 1 p.m. the Head Constable received Exhibit P-23 intimating that P.Ws. 2, 4, 9 and 10 had also received injuries and were in the hospital and at 4-30 P.M. he was informed about the death of the deceased. The Head Constable obviously was hoping for the recovery of the deceased so that his statement might be available. According to him at 1-15 p.m. when he learnt about the injured witnesses P.Ws. 1, 2, 4, 9 and 10, he again went to the hospital but could not find them till 4-40 P.M. that is, till the death of Buchanna. It is then that he recorded Exhibit P-1 from P.W. 1. Even at 4-40 p.m. he did not record the statements of the other injured persons on the ground that the statements of the other witnesses were not tallying with the version given by P.W. 1. There were 8 injure d persons and admittedly what they stated was not recorded by this Head Constable. It is no part of his duty to refuse to record or reduce into writing the statements made by the injured witnesses under section 161 (3) of the Criminal Procedure Code on the ground that the version, of one witness did not tally with the version of another, It is a mandatory provision and it is not for him to sit in judgment as to the truth or correctness of the statements made by the witnesses and his business is to faithfully record whatever is narrated by a witness. In this case the failure to comply with the requirements of section 161 (3) has given a handle to the defence to say that no weight should be attached to the evidence of the witnesses whose statements were not recorded by the Head Constable at the earliest point of time on the ground that the version of each witness varied from the other and did not tally with what was Stated by P.W. 1. The Supreme Court dealing with the scope of section 161 (3) in Tilkeshwar Singh v. Bihar State1, observed that while the failure to comply with the requirements of section 161 (3) might affect the weight to be attached to the evidence of the witnesses, it does not render it inadmissible. In that case what the Investigating officer did was to reduce into writing the examination of all the witnesses in a joint statement. Therefore, their Lordships proceeded to observe: “although the recording of a joint statement of the examination of witnesses by the Investigating officer is clearly in contravention of section 161 (3) and must be disapproved that would not render their testimony in Court inadmissible when neither those witnesses are incompetent witnesses nor is their evidence inadmissible because of the matters to which they relate”. A Division Bench of this Court dealing with a case of infringement of section 161 (3) In re, Asservadam2, observed that failure to observe the mandatory provisions of section 161 (3) would not ex hypothesi render the trial illegal unless and until substantial prejudice is disclosed and that the question whether it would vitiate the trial must depend on the facts of each case. In this case the Investigating officer has gone a step further and failed to reduce into writing the statements made to him in the first instance as the statements of the injured witnesses were not tallying with the version given by P.W. 1 the complainant in Exhibit P-1. The relevant portion of his evidence reads: “But none of those injured persons were available there. Doctor said that he does not know where they have gone. I searched for them but in vain. Again at 4 p.m. I went to the hospital for them. Even then they were not available. At 4-40 p.m. when I went to the hospital I found the injured persons at the corpse of Butchanna. Doctor said that he does not know where they have gone. I searched for them but in vain. Again at 4 p.m. I went to the hospital for them. Even then they were not available. At 4-40 p.m. when I went to the hospital I found the injured persons at the corpse of Butchanna. When I recorded the statement of P.W. 1 the other injured persons also were there. All of them stated about their injuries and who caused them while I was writing Exhibit P-1. I heard all of them write (sic) Exhibit P-1. I did not record their individual statements. What they said was not tallying with the version of P.W. 1. So I recorded what he said not what they said. Regarding the injuries of others P.W. 1 said which is contradictory to what they said. So I wrote what P.W. 1 only stated. They were all 8 injured persons present there then.” I may also mention that later in the night the Inspector of Police (P.W. 27) came and examined P.Ws. 1 to 11 the injured persons and there is nothing to show that what they stated before the Inspector is a verbatim repetition of what they told the Head Constable which the Head Constable failed to reduce into writing. The question is when such a course is adopted by the Investigating Officer whether it would result in substantial prejudice to the accused persons and if so whether it vitiates the trial. The plea taken by the accused is that they were not the aggressors, that it is the prosecution party that attacked them and that the occurrence did not take place in the manner stated by the prosecution witnesses. What has to be looked into is, whether there is substantial compliance of section 161 (3) of the Code or whether the compliance is in any manner substantially different from what has been prescribed. The question in such cases as has been pointed out by the Supreme Court in W. Slaney v. State of Madhya Pradesh3 is “Whether the departure is so violent as to strike at the root of the trial and make it no trial at all or is of a less vital character. It is impossible to lay down any hard and fast rule but taken by and large the question usually narrows down to one of prejudice. It is impossible to lay down any hard and fast rule but taken by and large the question usually narrows down to one of prejudice. In any case, the Courts must be guided by the plain povisions of the Code without straining at its language wherever there is an express provision.” The question that arises now is whether non-compliance of this provision is curable under section 537 of the Criminal Procedure Code. In determining whether it is curable or not, it has to be borne in mind whether the violations are opposed to the principles of natural justice or whether they are mere irregularities which do not occasion any prejudice or injustice to the accused persons, I am unable to say so far as this case is concerned that the violation of the provision by the Head Constable is a mere irregularity curable under section 537, Criminal Procedure Code. If the statements of the eye-witnesses were not recorded by the Head Constable on the ground that they were not tallying with the statement of the complainant and if the Inspector of Police subsequently recorded the statements from the same witnesses, it is patent and obvious that the Head Constable was willing to record the statements only if they accorded with the earlier statement made by the complainant. The question therefore is whether any weight should be attached to the subsequent version given by the eye-witnesses whose statements in the first instance were not recorded by the Investigating officer. The provision in sub-section (3) of section 161 is mandatory and there is no escape from it and the Head Constable was bound to faithfully record the statement of each of the persons. This violation has deprived the accused persons of the earliest version and thus a valuable right is lost to cross-examine the witnesses with reference to the earliest statements which were not recorded and hence could not be furnished. The right given to accused persons under section 162, Criminal Procedure Code is a very valuable one and provides material important from the point of viewof the accused for the cross-examination of the prosecution witnesses. Dealing with the breach of the proviso to section 162, Criminal Procedure Code in Pulikuri Kotayya’s case1, Itwas observed by the Privy Council. The right given to accused persons under section 162, Criminal Procedure Code is a very valuable one and provides material important from the point of viewof the accused for the cross-examination of the prosecution witnesses. Dealing with the breach of the proviso to section 162, Criminal Procedure Code in Pulikuri Kotayya’s case1, Itwas observed by the Privy Council. “The right given to an accused person by this section is a very valuable one and often provides important material for cross-examination of the prosecution witnesses. However slender the material for cross-examination may seem to be, it is difficult to gauge its possible effect. Minor inconsistencies in his several statements may not embarrass a truthful witness, but may cause an untruthful, witness to prevaricate and may lead to the ultimate break-down of the whole of his evidence; and in the present case it has to be remembered that accused’s contention was that the prosecution witnesses were false witnesses. Courts in India have always regarded any breach of the proviso to section 162 as matter of gravity.” These observations are apposite and are on all fours with the facts of this case. The Head Constable’s perfunctory investigation and the procedure adopted by him has undoubtedly resulted in grave and substantial prejudice to the accused for the reason that they were kept in the dark as to the earliest statements made by the witnesses, thus making it impossible for them to cross-examine, the witnesses on the basis of the earliest version. The next question is whether Exhibit P-1 is admissible in evidence or whether it is hit by section 162, Criminal Procedure Code as one made to a poli:e officer in the course of the investigation. The evidence of the Medical Officer, P.Ws. 21 and 22 shows that the injured persons including the deceased Buchanna came to the Hospital at 7 a.m. on 17th October, 1964 and that they examined the deceased and the other injured witnesses. P.W. 22 sent a requisition to the Magistrate to record the dying declaration of the deceased in the case and also sent intimation to the police under Exhibit P-26. The dying declaration of the deceased could not be recorded, although the Magistrate came to the hospital, as the deceased never regained consciousness. It is pursuant to this intimation Exhibit P-26 that the Head Constable, P.W. 25 came to the hospital for investigation. The dying declaration of the deceased could not be recorded, although the Magistrate came to the hospital, as the deceased never regained consciousness. It is pursuant to this intimation Exhibit P-26 that the Head Constable, P.W. 25 came to the hospital for investigation. He had also intimation of the death of the deceased and it is only after that that he was able to find the injured witnesses and later recorded Exhibit P-1 from P.W. 1 after questioning all the injured witnesses. Therefore there could be little doubt that this statement is inadmissible, for it was one recorded by the police officer in the course of the investigation of a grave crime. Mr. Ella Reddy next pointed out that the accused had elicited from P.W. 1 in cross-examination that he had mentioned only nine names A-1 to A-9 and not the other names when he first gave the report to the Head Constable. The answers of P.W. 1 are: “By the time of my giving Exhibit P-1, I know all the names of these accused. But 1 said therein the names of accused 1 to 9 only and not others.” This statement the Head Constable could secure only after great efforts by running after the injured witnesses in the hospital and it is significant that till the death of the deceased on the evening of 24th October, 1964 no injured witness appeared before any police officer for examination. While the prosecution case was confined only to A-1 to A-9 at 4-40 p.m. on 24th October, 1964 it was enlarged so as to bring within its fold 14 more accused by the time the Inspector of Police P.W. 27 came to the hospital at 8 p.m. on 17th October, 1964. The question is whether the evidence of these witnesses P.Ws. 1 to 11 can be accepted more so when it has its source in the bitter faction which tore the village into two parties. Exhibit P-51 which was also given on 17th October, 1964 unfolds the defence of the accused and it is the accused’s case that P.Ws. 1, 2, 5, 7, 8, 9 and 11 and others attacked them and caused bleeding injuries. A-2, A-4, A-5, A-6, A-8, A-11, A-12 and A-23 are the signatories of Exhibit P-51 and they are all injured accused. 1, 2, 5, 7, 8, 9 and 11 and others attacked them and caused bleeding injuries. A-2, A-4, A-5, A-6, A-8, A-11, A-12 and A-23 are the signatories of Exhibit P-51 and they are all injured accused. It is unnecessary for the purpose of this case to detail the evidence of each of the prosecution witnesses as each speaks about the attack on himself and not the attack on the other injured persons or the deceased. One other significant factor to be borne in mind in this case is that no report was given to the Village Munsif of the village by any one of the injured persons P.Ws. 1 to 11. The defence of A-1, the Karnam of the Village is that he has been falsely implicated as he happened to be the leader of the accused party and that he was not in the village on that date. The evidence of the V.M. (P.W. 12) is to the effect that ‘A-1 was absent from the village’. It is also elicited from P.Ws. 2 and 5 that they were on inimical terms with A-1 as he refused to help them in a dispute regarding the palmyrah trees. The learned Judge dealing with the prosecution evidence relating to the incident of murder was of the opinion that the evidence was very artificial and was not worthy of acceptance. He also found that there is no evidence against A-1 and A-2 that they beat any of the injured persons P.Ws. 1 to 11 and that the evidence against them pertains to their (A-1 and A-2’s) attack on the deceased which the learned Judge has disbelieved. It is highly doubtful, if A-1, the leader of the party was present and participated in the attack on the deceased, or attacked P.Ws. 1 to 11, he could have escaped without a single injury. The finding of the learned Judge is that these witnesses, P.Ws. 1 to 11 are interrelated and they cannot be termed as independent or disinterested witnesses. He has also commented on the non-examination of a person who was an eye-witness to the whole occurrence from the beginning by the Circle Inspector of Police. This comment is the outcome of the evidence of P.W. 10, a child witness aged about 11 years who was not even in a position to understand the significance of the oath. He has also commented on the non-examination of a person who was an eye-witness to the whole occurrence from the beginning by the Circle Inspector of Police. This comment is the outcome of the evidence of P.W. 10, a child witness aged about 11 years who was not even in a position to understand the significance of the oath. According to this witness, P.W. 10, he heard from a person of Thurakapeta who was then going to Dandemvalasa that the prosecution party and some of the accused persons were participating in a rioting and that he came along with him for some distance during which that person told him that the deceased and P.Ws. 1 to 9 and 11 were beaten by ‘Seepana’ people (some of the accused) as the deceased’s buffaloes trampled on the groundnuts of A-1. The learned Judge’s observations are: ‘that shows that he is a person who must have been an eye-witness to the whole occurrence from the beginning and the prosecution cannot afford to omit from summoning and examining him. But the Circle Inspector of Police has not cared to investigate in that respect. This child witness says that even now he can recognise the person. But from a consideration of the whole evidence of this child witness, I feel that he is a tutored witness not speaking the truth.‘The learned Judge has similarly discredited the evidence of the other eye-witnesses in para. 39 of his judgment on the ground that there are exaggerations in the prosecution evidence regarding the weapons used by the assailants and the injuries inflicted by them on the prosecution party. The lower Court was also of the opinion that there was no corroboration of the evidence of P.Ws. 3 to 11 regarding the injuries found on them. In para. 35 of the judgment it is observed: “The learned Counsel for the defence has also argued that there is no corroboration of the evidence of P.Ws. 3 to 11 regarding their injuries. No doubt, it is true. But we have to note in this case that more than one witness among these injured witnesses was not present when they were being beaten because as and when each of them happened to approach the scene of offence they were beaten and they ran away. 3 to 11 regarding their injuries. No doubt, it is true. But we have to note in this case that more than one witness among these injured witnesses was not present when they were being beaten because as and when each of them happened to approach the scene of offence they were beaten and they ran away. So there is no scope, for another witness to see them being beaten.” If this finding is to hold good, it looks as though that each witness cane upon the scene in his own turn, received a beating at the hands of the accused and then retired or ran away from the scene of occurrence. The injured witnesses want us to believe that all of them were not together and that each went by himself, got a beating and one did not know the fate of the other. This part of the story apart from the fact that it is artificial, is also inconceivable that the prosecution party were only waiting to receive the beating at the hands of the accused persons by sending one after another. It is for this reason that the learned Judge felt, regarding the charge against them under section 302, Indian Penal Code, that the evidence of the eye-witnesses was inconsistent, casting a cloud of suspicion about the beating of the deceased persons. The evidence of P.Ws. 1 to 11 regarding injuries on them is not fully corroborated by the medical evidence. Therefore having regard to the foregoing discussion it is difficult to hold that the prosecution has made out a case against these appellants. It is regrettable that the Head Constable did not realise the importance of conforming to the mandatory provisions of section 161 (3), Criminal Procedure Code and the disregard of the important provision of the law has proved fatal to the charges brought against these appellants. I am therefore unable to hold that the prosecution has established that the occurrence took place in the manner alleged by them, more so when as many as eight accused were injured and pleaded the right of private defence. In the result, the judgment under appeal is reversed, the convictions and sentences are set aside and the appellants are acquitted. Bail bonds, if any, will be cancelled. For the same reasons, the revision is also dismissed. G.S.M. ----- Appeal allowed; Revision dismissed.