Brij Mohan Lal, J.

[1] This is an appeal by four persons, viz., Shankar Lal, Narain, Ram Sarup and Tulshi, who have been convicted by the learned Addl. Sessions Judge of Kanpur under Section 302, Penal Code. They have been sentenced to undergo transportation, for life and to pay a fine of rupees one hundred each. The first three appellants are brothers while the fourth is their servant. They have been found guilty of having committed the murder of one Janki on 7-3-1952.

[2] The prosecution version is that about twenty days before the incident Janki's wife Shrimati Jai Devi was molested by Shankar Lal and Tulshi while she was in the 'Har'. She complained to her husband in the evening. The latter, accompanied by his brother Mewa Lal, went to Shankar Lal and Tulshi to protest against their misbehaviour towards his wife. Both Shankar Lal and Tulshi denied the charge. Narain and Ram Sarup, the other two appellants, also arrived and an altercation took place between the appellants on the one hand and Janki and Mewa on the other. Nothing serious happened at that time although the appellants are said to have held out a threat to Janki and Mewa Lal to deal with them in near future.

[3] The prosecution story goes on to say that on the 7-3-1952 Janki was returning home from his field with a bundle of Matar on his head and Mewa Lal was following him at a distance of 15 to 20 paces. It is alleged that the appellants were lying in ambush and as soon as Janki reached Raghubar's field they came out of their place of hiding and attacked him, Shankar Lal is said to have been armed with a 'Kanta' and the remaining three appellants with axes. Janki died on the spot.

[4] The incident is said to have taken place at about 5.30 in the evening. A report was lodged by Mewa Lal in police station Sikandra which is situate at a distance of five miles from the place of occurrence at 7 P. M. At that time the Station Officer Dhanpal Singh was absent from the police station. Ranjit Singh, the Second Officer, reached the place of occurrence at 9.30 P. M. and started investigation. Dhanpal Singh reached the village next day, i. e., on. 8-3-1952 at 8 P. M. and took up investigation himself. He examined a number of witnesses and later on got the statements of five witnesses, viz., Shrimati Jai Devi, Dharam Das, Dulare, Devi Prasad and Bachchi Lal recorded under Section 164, Cr. P. C., by one Mr. Bhatnagar, a Magistrate on 14-3-1952. On 30-3-1952 he submitted a charge-sheet.

[5] The appellants have denied having made the assault. Their learned counsel has argued not only that the prosecution has failed to establish its case on merits but has also raised a point of law, viz., that copies of statements recorded by Mr. Bhatnagar under Section 164, Cr. P. C., were not delivered to his clients and they were thus deprived of the very valuable right of cross-examining the prosecution witnesses with reference to their previous statements and of contradicting them, if possible.

[6] It appears that on two different occasions petitions were made by the accused for being supplied with copies of those statements but the statements could not be found. It is provided by Section 164 (2), Cr. P. C., that such statements shall after being recorded, "be forwarded to the Magistrate by whom the case is to be inquired into or tried." This statutory duty was not performed by Mr. Bhatnagar. Dhanpal Singh S. O. made a petition through S. M. Singh, Assistant Public Prosecutor, to the learned Magistrate (Mr. Bhatnagar) for copies of the statements made by the witnesses under Section 164, Cr. P. C. The Magistrate replied that copies would be given if found. As a matter of fact, they have not been traced to this day. Nobody knows what has happened to them. The fact, however remains that those statements never reached the Committing Magistrate's Court and the appellants have not been able to find out the contents thereof.

[7] In our opinion the learned counsel for the appellants is perfectly