Venkatarama Ayyar, J.

1. The appellants were charged before the Additional Sessions Judge, Darbhanga under S. 302 read with S. 34 of the Penal Code for the murder of one Balbhadra Narain Singh. They were also charged, some under S. 147 and the others under S. 148 for being members of an unlawful assembly and for rioting.

2. The case of the prosecution was as follows : The deceased and the appellants were pattidars in the village of Mahe, and there was ill-feeling between them on account of the village pattidari. On 5-3-1951, at about 10 a. m. the deceased was returning from the river to his baithka. On the way the appellants who were armed with bhalas, sword and lathi, and some others surrounded him at the courtyard of the village school and attacked him. One Harischandra Singh, who is still absconding, plunged his bhala into the abdomen of the deceased and the appellants joined in the attack on him. The deceased ran to his baithka and from there, he was taken to the police station at Singhia. There he made a complaint which has been filed as the first information report, and therein he set out the incidents mentioned above, and implicated the appellants as concerned in the attack.

The deceased was then taken to hospital, and in view of his precarious condition the doctor recorded his dying declaration. The deceased was then sent for treatment to the hospital at Samastipur, but on the way he died. On the basis of the first information report and on the enquiries made by them the police charged the appellants under S. 302 read with S. 34 for murder and under Ss. 147 and 148 for rioting. The defence of the appellants was that the deceased was attacked by some unknown assailants in his baithka in the early hours of 5-3-1951, and that they were not concerned with the offence.

3. The Additional Sessions Judge, Darbhanga accepted the evidence of the prosecution; and convicted the appellants under S. 302 read with S. 34, and sentenced them to transportation for life. He also convicted them, some under S. 147 and the others under S. 148, but imposed no separate sentence under those sections. The appellants took the matter in appeal to the High Court of Patna.

The learned Judges agreed with the Sessions Judge in his conclusions of fact, but altered the conviction from one under S. 302 read with S. 34 to one under S. 326 read with S. 149, and the sentence from transportation for life to various terms of imprisonment. The learned Judges also maintained the conviction of the appellants on the charge of rioting, but awarded no separate sentence therefor. It is against this judgement that the present appeal is directed.

4. On behalf of the appellants, it was firstly contended by Mr. Umrigar that the finding of the courts below that the incident took place at the school courtyard and not at the baithka of the deceased was bad, because it was based on inadmissible evidence, viz. Exhibit P-7 and the testimony of P. Ws. 4, 7 and12. Exhibit P-7 is a statement of the deceased taken by the police officer subsequent to the lodging of the first information and after the investigation had begun, and its reception would be barred by Section 162 of the Code of Criminal Procedure.

But the learned Judges thought that it would be admissible under S. 32(1) of the Ind. Evidence Act, and the correctness of this view is disputed by the appellants. But even if Ex. P-7 is inadmissible in evidence, that would not assist the appellants, as the learned Judges observed that apart from that document, they would have on the other evidence, held that the deceased was attacked at the school courtyard.

5. Then, we come to the evidence of P. Ws. 4, 7 and 12 on which the courts below have relied in accepting the version of the incident as given by the prosecution. Mr. Umrigar contended that their evidence was inadmissible, because they were examined by the police at the stage of investigation, and their statements were not recorded separately as required by Section 161(3) of the Code of Criminal Procedure. This is what the investigating officer, P. W. 18 deposed with reference to this matter.

"The Daffadar produced Sital Singh (P. W. 12), Ram Karan Singh (P. W. 7) and Ramkinker (P. W. 4). First of all, I examined them separately but recorded their joint statement in respect of common things. I made a separate record about the identification and the weapons".

The recording of joint statement of the examination of P. Ws. 4, 7 and 12 is clearly in contravention of S. 161 (S), and must be disapproved.But the question is whether that renders the testimony of P. Ws. 4, 7 and 12 in court inadmissible. Sections 161(3) does not say so, and indeed, seeing that the police are not bound to make a record of the statement of witnesses in which case there is admittedly no bar to the reception of their testimony, it would be anomalous if we were to hold that their evidence is inadmissible, because the statements were also reduced to writing but not in the manner provided in the section.

The Indian Evidence Act contains elaborate provisions as to who are competent witnesses and on what matters their evidence is inadmissible. And on these provisions, P. Ws. 4, 7 and 12 are neither incompetent witnesses, nor is their evidence as to the incidents to which they deposed inadmissible.In Zahiruddin v. Emperor, AIR 1947 PC 75 [LQ/PC/1947/10] , (A) it was held by the Privy Council that the failure to comply with the provisions of S. 162(1) might greatly impair the value of the evidence of the witness, but that would not affect its admissibility. On the same reasoning, it will follow that the evidence of P. Ws. 4, 7 and 12 is not inadmissible for the reason that their statements had been recorded by P. W. 18 jointly and not separately as required by S. 161 (3).

6. In support of his contention that their evidence is inadmissible, Mr. Umrigar relied on the decisions in Baliram Tikaram v. Emperor, AIR 1945 Nag 1(B) and Maganlal Radhakishan v. Emperor, AIR 1946, Nag 173 (C). In Baliram Tikaram v. Emperor, (B), which was a decision under S. 162 of the Code of Criminal Procedure, the accused had not been furnished with copies of the statements recorded by the police officers under S. 161 and it was held that that deprived the accused of a valuable right, and must have caused prejudice to them.

That was the view taken in Viswanath v. Emperor, AIR 1936 Nag 249(D), and no exception can be taken to it. But the learned Judges went on to observe that the evidence of the witnesses who gave statements at the investigation would itself be inadmissible. The reason for this opinion was thus stated by them :

"How can the evidence be admissible and proper for consideration when the accused is robbed of his statutory means of cross-examination and thereby denied the opportunity of effectively cross-examining his adverse witnesses No evidence recorded by the Court, unless it satisfies the requirement of S. 138 Evidence Act, can become admissible and proper for consideration. It would indeed be bold to say that the evidence of witnesses is legally admissible against a party even though he at the time it was given had not the full opportunity to cross-examine him."

This view was reiterated by the same learned Judges in AIR 1946 Nag 173 (C), but, for the reasons already given, we are unable to accept this as a correct statement of the law.We are of the opinion that while the failure to comply with the requirements of S. 161 (3) might affect the weight to be attached to the evidence of the witnesses, it does not render it inadmissible. That was so held by Harries C. J. and Bachawat J., in - Bejoy Chand V. The State, AIR 1950 Cal 363 [LQ/CalHC/1950/53] (E), where this question arose directly for decision, and we are in agreement with this view.

In the present case, the attention of the learned Judge was drawn to the infirmity in the evidence of P. Ws. 4, 7 and 12, arising by reason of the failure to observe S. 161 (3), 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.

7. It was next contended that the charge on which the appellants were tried was one under S. 302 read with S. 34, and that the learned Judges of the High Court erred in convicting them under S. 326 read with S. 149. Before the learned Judges the contention that was pressed was that there was no power in the court to substitute S. 149 for S. 34, but they declined to accept it.

The question has since been considered by this Court in - Karnail Singh v. State of Punjab, AIR 1954 SC 204 [LQ/SC/1954/15] (F); and - Willie (William) Salney v. State of Madhya Pradesh, (S) AIR 1956 SC 116 [LQ/SC/1955/93] (G). It is conceded by Mr. Umrigar that in view of these decisions, the question is no longer open. It must be answered adversely to the appellants.

8. It was finally contended that there had been no proper examination of the appellants under S. 342, and that the conviction should accordingly be quashed. What happened was that when the court commenced its examination under S. 342, the appellants stated that they would file written statements. Those statements were very elaborate and furnished the answer of the appellants to all the points raised in the prosecution evidence.

9. Mr. Umrigar was unable to suggest any question which could have been put, with reference to which the statements did not contain an answer. Clearly, the appellants have not been prejudiced. It is no doubt true that S. 342 contemplates as examination in court, and the practice of filing statements is to be deprecated.But that is not a ground for interference, unless prejudice is established.

10. And it is nothing unusual for the accused to prefer filing statements instead of answering question under S. 342, lest they should suffer by inadvertent admissions or by damaging statements. As no prejudice has been shown, this contention also must be rejected.

11. In the result, the appeal is dismissed.

12. Appeal dismissed.