Madras High Court
R.Murugesan vs State Rep By on 5 February, 2014
Author: P.N.Prakash
Bench: S.Rajeswaran, P.N.Prakash
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 05..02.2014 CORAM: THE HONOURABLE MR . JUSTICE S.RAJESWARAN AND THE HONOURABLE MR. JUSTICE P.N.PRAKASH Criminal Appeal Nos.393 and 396 of 2012 R.Murugesan ... Appellant in Crl.A.No.393/2012 M.Selvam ... Appellant in Crl.A.No.396/2012 -Vs- State rep by The Inspector of Police Mecheri Police Station Mecheri Crime No.169/2008 ... Respondent in both appeals These Criminal Appeals have been preferred against the order of conviction dated 28.03.2012 made in S.C.No.215 of 2008 on the file of the Additional District & Sessions Judge cum Fast Track Court No1, Salem. For Appellants : Mr.V.Gopinath, Senior Counsel for Mr.R.John Sathyan [For appellant in Crl.A.No.393/2012] Mr.Sankara Subbu [For appellant in Crl.A.No.396/2012] For Respondent : Mr.V.M.R.Rajendran Additional Public Prosecutor C O M M O N J U D G M E N T
(Judgment of the Court was delivered by P.N.PRAKASH, J.] The accused 1 and 2 who were tried and convicted for the offence under Sections 341, 302, 394 r/w 34 IPC by the Additional District & Sessions Court- cum-Fast Track Court No.1, Salem in S.C.No.215/2008 on 28.03.2012, are the appellants before us.
2. It is the case of the prosecution that on 20.03.2008 at around 4.00 p.m. when Dhanakodi [deceased] was returning from his sister Mallika's [P.W.1] house, he was wrongfully restrained by the appellants and A1 attacked him with a cricket stump on his head and both the appellants took away his motor cycle TVS Max 100 and went away.
(a) According to the prosecution, this incident was witnessed by Sundaramurthy [P.W.3] and Thangam [P.W.4] and that they chased the accused in their motor cycle upto a certain distance. Thereafter, they both returned to the place of occurrence and when they made enquiries with the local people, they were told that the injured person was carried away to the hospital by his relatives. They went back to their house. Selvam [P.W.2], a passer by, found a crowd at the place of occurrence and when he made enquiries, he learnt that the injured person was one Dhanakodi. He volunteered to elicit information from Dhanakodi about his residence and contacted Dhanakodi's sister, Mallika [P.W.1], who came to the place of occurrence soon. Thereafter, Mallika [P.W.1] and Selvam [P.W.2] took Dhanakodi in an omnivan to Naveen Nursing Home where Dr.Nandini [P.W.11] gave first aid around 5.00 p.m. Dhanakodi was conscious at that time. When P.W.11 found that he had serious head injuries, she referred him to the Salem Government Hospital, for further treatment. Dhanakodi was taken by Mallika [P.W.1] and Selvam [P.W.2] to Sri Gokulam Hospital, Salem, where Dr.Sreedhar [P.W.14] admitted Dhanakodi and gave him treatment. The copy of the Accident Register of Sri Gokulam Hospital was marked as Ex.P.23. Dhanakodi was found to be unconscious and it is stated in the Accident Report [Ex.P23] that, he was brought by Selvam [P.W.2]. It is further stated in Ex.P23 that, " patient is alleged to have sustained head injuries due to RTA [Road Traffic Accident] while he was riding a two wheeler hit by another two wheeler opposite SISCOL, Nangavalli Road, Mecheri on 20.03.2008 at around 3.30 p.m." He was admitted in Sri Gokulam Hospital on 20.03.2008 at 6.40 p.m. Intimation was sent by Sri Gokulam Hospital to the jurisdictional police on 21.03.2008 at around 11.15 a.m.
(b) Thereupon, Arjunan, Sub Inspector of Police [P.W.13] went to Sri Gokulam Hospital at around 12.15 noon and recorded the statement of Mallika [P.W.1], which is the complaint [Ex.P21] in this case. Ex.P21 contains the motor cycle make number and colour. He obtained that complaint and registered a case in Mecheri Police Station Cr.No.169/2008 for offence under Section 307 IPC r/w 394 IPC on 21.03.2008 at 2.30 p.m. The printed copy of the FIR is Ex.P22. From the endorsement made by the learned Magistrate it is evident that the complaint and the FIR reached the Magistrate at 6.45 p.m. on 21.03.2008. Investigation was taken over by Muniappan [P.W.16] Inspector of Police, who went to the place of occurrence and in the presence of witnesses Sundaramurthy and Sudhakar, he prepared the Observation Mahazar and Rough Sketch [Ex.P27]. The observation Mahazar was not marked in the Court. The Inspector of Police [P.W.16] further examined other witnesses and on 22.03.2008 at around 7.00 a.m. he apprehended both the accused while he was doing vehicle check near the railway gate. According to the prosecution, the appellants were coming by the TVS MAXI vehicle bearing Registration No.TN 34B 9844. The Inspector of Police, [P.W.16] examined the accused in the presence of one Selvaraj [P.W.5] and recorded his confession statement. Thereupon, he seized the motor cycle [M.O.2] and a coca cola water bottled [M.O17] under the cover of Mahazar [Ex.P2] in the presence of Selvaraj [P.W.5]. Based on the disclosure statement of the accused, the Inspector of Police, recovered the cricket stump [M.O.1] allegedly used by the accused under the cover of Mahazar [Ex.P3] in the presence of Selvaraj [P.W.5] He despatched the seized properties to the jurisdictional Court and went about with the examination of other witnesses. On 23.03.2008, he received information from the Government Hospital, Salem that Dhanakoi had died around 12.00 noon. The death intimation was given by Dr.Balamurugan [P.W.12], who was working at the Government Hospital, Salem, on 23.03.2008. According to Dr.Balamurugan [P.W.12], Dhanakodi was referred to Government Hospital, Salem by Sri Gokulam Hospital and at the time of his admission, he found that Dhanakodi had died. Ex.P20 is the copy of the Accident Register, wherein it is noted that Dhanakodi was brought dead to the hospital at 12 noon on 23.03.2008.
(c) The Inspector of Police [P.W.16] sent a report praying for altering the offence from 307 IPC r/w 394 IPC to 394 IPC to the learned Judicial Magistrate 2, Mettur. The Inspector of Police [P.W.16] proceeded to the mortuary of the Government Hospital, Salem around 2.45 p.m. and examined witnesses and in their presence conducted the inquest. The Inquest Report is Ex.P30. He despatched the body through Rajendran, Head Constable [P.W.9] for conducting postmortem.
(d) The autopsy over the body of deceased Dhanakodi was performed by Dr.Panneer Selvam [P.W.15]. On noting several injuries on the head of the deceased, in his opinion, he stated thus:
"OPINION :DIED OF EFFECS OF HEAD INJURIES SUSTAINED."
(e) The body was thereafter handed over to the relatives of the deceased by Rajendran, Head Constable [P.W.9]. The Inspector of Police [P.W.19] made a request to the Chief Judicial Magistrate, Salem for appointing a Magistrate to record the 164(3) Cr.P.C. statements of witnesses Sundaramurthy [P.W.3], Sudhakar [not examined] and Thangam [P.W.4]. Accordingly, their statements were recorded by the learned Judicial Magistrate, Omalur. On 04.04.2008, the Inspector of Police [P.W.16] made a request to the Chief Judicial Magistrate, to depute a Magistrate for conducting Test Identification Parade to enable the witnesses Sundaramurthy [P.W.3], Sudhakar and Thangam [P.W.4] to identify the accused.
(f) Mr.V.Sampathkumar [P.W.7] learned Judicial Magistrate, Omalur conducted Test Identification Parade on 10.04.2008, in which Sundaramurthy [P.W.3], Sudhakar [not examined] and Thangam [P.W.4] participated and they seem to have identified the appellants therein. The Test Identification Parade report is Ex.P13. The Inspector of Police [P.W.16] requested the jurisdictional Magistrate to send the seized material objects for chemical analysis. He examined Dr.Nandini [P.W.11], Dr.Balamurugam [P.W.12], Dr.Sridhar [P.W.14] and Dr.Panneerselvam [P.W.15]. After completing investigation, he filed a final report on 30.04.2008 against the accused for offences under Section 341, 393, 394, 398 and 302 IPC r/w 34 IPC. The final report was taken on file as PRC No.12/2008 by the learned Judicial Magistrate 2, Mettur.
(g) On appearance of the accused, copies were furnished to them under Section 207 Cr.P.C. and the case was committed to the Court of Sessions. The Sessions Court framed the following charges against the appellants:
(1) Against A1 and A2 for an offence under Section 341 IPC for having wrongfully restrained the deceased at 4.00 p.m. on 20.03.2008;
(2) Against A1 for the offence under Section 394 IPC for attacking Dhanakodi [deceased] and robbing him of his motor cycle;
(3) Against A2 for an offence under Section 394 r/w 34 IPC;
(4) Against A1 and A2 for the offence under Section 398 r/w 34 IPC;
(5) Against A1 for offence under Section 302 IPC for having caused injuries on the deceased Dhanakodi;
(6) Against A2 for an offence under Section 302 IPC r/w 34 IPC.
(h) The accused pleaded not guilty to the charges and the prosecution examined 16 witnesses, marked 31 exhibits and 3 material objects. When the accused were questioned under Section 313 Cr.P.C. against the incriminating circumstances, they refuted the same. Three witnesses were examined on behalf of the accused.
(i) After considering the case of the prosecution, the trial Court convicted and sentenced the accused as follows:
ACCUSED CONVICTION SENTENCE A1 341 IPC 1 month imprisonment A1 394 IPC 10 years imprisonment and fine Rs.1,000/- i/d one year rigorous imprisonment A2 394 r/w 34 IPC 10 years imprisonment and fine Rs.1,000/- , i/d one year rigorous imprisonment A1 & A2 392 r/w 34 IPC 10 years imprisonment and fine Rs.1,000/-, i/d one year rigorous imprisonment A1 302 IPC Life imprisonment and fine Rs.1,000/-, i/d one year rigorous imprisonment A2 302 r/w 34 IPC Life imprisonment and fine Rs.1,000/-, i/d one year rigorous imprisonment
3. The entire prosecution case hinges on the testimony of the alleged eyewitnesses Sundaramurthy [P.W.3] and Thangam [P.W.4]. Before discussing the evidence of these two witnesses, it may be appropriate to discuss certain other aspects in this case. From the evidence of Selvam [P.W.2] it can be seen that he saw a crowd at the place of occurrence and out of curiosity, when he went there, he saw that Dhanakodi was made to sit in the road margin. He also joined the crowd in questioning Dhanakodi. Admittedly, Dhanakodi was not known to P.W.2. P.W.2 instead of asking Dhanakodi about the manner in which he sustained the injuries, appears to have asked him about his relatives and friends and stated that he contacted the sister of Dhanakodi through the neighbour of hers in her village, which is far away. It is strange as to how it did not occur to Selvam [P.W.2] to ask Dhanakodi as to how he sustained these injuries for that could have been construed as a dying declaration.
4. It is the case of Mallika [P.W.1] and Selvam [P.W.2] that they took Dhanakodi to the nearby Naveen Hospital for giving treatment. The fact that Dhanakodi was taken to Naveen Hospital at around 5 p.m. on 20.03.2008 has been established through the evidence of Dr.Nandini [P.W.11]. Dr.Nandini [P.W.11] has given first aid to Dhanakodi and has referred him to Salem Government Hospital for further treatment and scan. In the cross examination of Dr.Nandini [P.W.11], initially she stated that Dhanakodi did not tell her as to how he sustained the injuries. According to Dr.Nandini [P.W.11], Dhanakodi was conscious. The doctor who treats a patient will first ask him as to how he sustained the injuries so as to get an idea as to what sort of treatment that can be given to him. This enquiry can be used only for that purpose, but strangely, that was also not asked to Dhanakodi by Dr.Nandini [P.W.11]. In the course of cross examination, she admitted that she told the police that Dhanakodi told her that he was attacked by some known persons. This is a serious omission which amounts to a contradiction and is not hit by the bar contemplated by Section 162 Cr.P.C. The Inspector of Police [P.W.16] has also stated that Dr.Nandini [P.W.11] told him that Dhanakodi told her that he was assaulted by known persons. Mallika [P.W.1] and Selvam [P.W.2] did not take Dhanakodi to Government Hospital, Salem and instead took him to Sri Gokulam Hospital, Salem, where Dr.Sridhar [P.W.14] examined him and recorded in the Accident Register [Ex.P23] that, "Pt alleged to have H/o sustained Head Injury due to RTA, while he riding a two wheeler hit by an another two wheeler at opp. SISCOL, Nangavalli Road, Mecheri on 20.03.2008 at around 3.30 p.m. Patient initially treated at Naveen Nursing Home, Mecheri."
5. From the evidence of Dr.Sridar [P.W.14] and from the Accident Register [Ex.P23], it can be seen that Dhanakodi was not conscious when he came to Sri Gokulam Hospital. In Ex.P23, the Accident Register, it is stated that he was brought to Sri Gokulam Hospital by Selvam [P.W.2], which Selvam [P.W.2] also admits. In the Accident Register [Ex.P23], a different version is given, which we have already extracted above, namely that the injuries were sustained in a road accident. The authorities in the Sri Gokulam Hospital also did not inform the Police immediately, though he was admitted at 6.40 p.m. on 20.03.2008.
6. The intimation to the Police Station was sent only on 21.03.2008 at 11.45 p.m. On receiving the intimation, Arjunan, Sub Inspector of Police, [P.W.13] proceeded to Sri Gokulam Hopsital and recorded the statement of Mallika [P.W.1], which is treated as complaint and marked as Ex.P21. Only there for the first time it was disclosed that Dhanakodi told Mallika that two persons attacked him with a cricket stump and took away his motor cycle. In the complaint Ex.P.21, there is no reference to the age or any description of the alleged attackers/assailants. The Sub Inspector of Police [P.W.13], who registered the case has stated in column 7 of the printed FIR relating to details of suspects, two persons of around 20 years age. He was not able to give any satisfactory explanation when he was confronted about this in the cross examination. He merely stated that though Mallika [P.W.1] has not stated anything about the age in the complaint, yet he remembered that she told him of the age and that is why he has recorded the same in column 7. This explanation does not convince us and appears strained.
7. In this background, we propose to analyse the evidence of Sundaramurthy [P.W.3] and Thangam [P.W.4]. P.W.3 in his evidence has stated that Thangam [P.W.4] was working under him. He was returning from his field by his motor cycle along with Thangam [P.W.4] and one Kumar [not examined] and at that time, he saw a dark person and a fair person attacking a motor cyclist with a cricket stump and snatching away his motor cycle and fleeing. He has further stated that Thangam [P.W.4] and he gave them a chase upto a certain distance and thereafter, returned to the place of occurrence. They did not find the victim there and on enquiry with the local people they were told that the victim was taken to the hospital. Thangam [P.W.4] also in his examination-in-chief stated the same facts. What is surprising to us is, according to Selvam [P.W.2], the victim was sitting in the road margin with injuries and he sent word to his sister, who thereafter came to the place of occurrence from another village and only thereafter they had taken the victim to Naveen Hospital at 5.00 p.m. on that day. Therefore, the evidence of P.Ws.3 and 4 that on their return they did not find the victim there, appears to be improbable.
8. Yet another improbability is, when P.Ws.3 and 4 had taken so much of strain to chase the assailants upto a certain point of time, it is strange as to how they did not choose to inform the police of this incident. There is no evidence from the Inspector of Police as to how he came to know that Sundaramurthy [P.W.3] and Thangam [P.W.4] were eyewitnesses. The FIR in the case itself is registered only on the next day after intimation from the Sri Gokulam Hospital. Sundaramurthy [P.W.3] and Thangam [P.W.4] admittedly did not know who the victim was and from which village he hails. According to the Inspector of Police, he went to the place of occurrence on 21.03.2008 and prepared an Observation Mahazar in the presence of witnesses Sundaramurthy and Sudhakar [not examined] and Rough Sketch [Ex.P27]. The Observation Mahazar has not been filed in the Court. Sundaramurthy [P.W.3] did not speak anything about the fact that he was a witness to the Observation Mahazar on 21.03.2008. According to the Inspector of Police, he recorded the statement of Sundaramurthy [P.W.3] and Thangam [P.W.4] and Sudhakar [not examined] on 21.03.2008, but there is no evidence to show how the police knew that Sundaramurthy [P.W.3] and Thangam [P.W.4] had witnessed the offence. Neither Sundaramurthy [P.W.3] nor Thangam [P.W.4] in their evidence stated that they had voluntarily gone and told the police that they were eyewitnesses to the incident.
9. The statements of Sundaramurthy [P.W.3] and Thangam [P.W.4] were recorded by the learned Judicial Magistrate on 04.04.2008 under Section 164 Cr.P.C. '73. Both of them did not state in the witness box that they gave a statement before the Magistrate earlier. Their statements recorded under Section 164 Cr.P.C. was not proved through them. They were later on marked as Ex.P6 and Ex.P8 only through the Magistrate [P.W.7]. This sort of practise in the trial Courts deserves to be exhaustively dealt with by us.
10. A statement u/s 164 Cr.P.C is not substantive evidence. What is the meaning of the expression "Substantive Evidence"? The Evidence Act does not define this. It is the creature of Judiciary and its meaning is traceable to the definition of the word Evidence in Section 3 of the Evidence Act.
""Evidence" means and includes __ (1) all statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry;
such statements are called oral evidence;
(2) all documents including electronic records produced for the inspection of the Court;
such documents are called documentary evidence."
11. Oral evidence means statements made by a witness in the witness stand on oath in the Court which conducts the inquiry or trial in connection with matters of fact. This is called Substantive evidence. It should not be confused with the expression Substantial evidence. Substantial evidence falls within the province of appreciation of evidence. Statements of witnesses in the trial Court about facts they have perceived by senses is Substantive evidence.
12. A statement u/s 164 Cr.P.C. '73 is recorded by a Magistrate during the investigation of a case under Chapter XII of the Code of Criminal Procedure. The Magistrate is not conducting an inquiry in relation to matters of fact like a trial Court. He merely records the statement of the persons on a request made by the Investigating Officer.
13. The witness who gave the statement under Section 164 Cr.P.C., should tell the facts known to him again as evidence before the trial Court. After narrating the facts, he should depose that he had already stated the same thing earlier before the Magistrate. Then the trial Court Prosecutor should show him the 164 statement and prove it as an exhibit through him.
14. The narration of the events by the witness in the trial Court is Substantive evidence. Then his further statement before the trial Court that he told the same facts earlier to the Magistrate is also a Substantive piece of evidence. To corroborate and prove that he in fact gave a statement to the Magistrate, his 164 statement should be shown and marked and proved through him. Why should it be shown and marked through him? Because Section 157 Evidence Act states:
"157. Former statements of witness may be proved to corroborate later testimony as to same fact.-- In order to corroborate the testimony of a witness, any former statement made by such witness relating to the same fact, at or about the time when the fact took place, or before any authority legally competent to investigate the fact, may be proved."
15. A statement recorded under Section 164 Cr.P.C.'73 is a former statement given before an authority, namely a Magistrate who is legally competent to record the statement by virtue of the power conferred upon him by Section 164 Cr.P.C.'73 in order to aid the investigation conducted under Chapter XII of the Code. Section 157 Evidence Act says that the former statement must be proved. Therefore the witness who gave the 164 statement should be made to prove it while marking the statement through him. If the witness admits in his evidence before the Court that he gave a former statement to the Magistrate and the statement shown to him is that, then the 164 statement stands proved. In that case the Magistrate who recorded the 164 statement need not be examined.
16. If the witness completely denies that he gave a former statement before the Magistrate, then the Prosecutor should dispute it and suggestions should be put to him that he did give a statement and his signature in the statement should be marked. If he denies the signature also, then that also should be disputed and suggestions that the signature found in the 164 statement is that of his should be put to him. Thereafter the Magistrate should be examined and the 164 statement should be marked and proved. The Investigating Officer should also say that on his request the Magistrate recorded the statement of that witness on such and such date. Only this will complete the circle in a case where the witness denies everything. Even if this process is completed and the 164 statement is proved, then also the 164 statement cannot be treated as substantive evidence and the accused be convicted based on it. The Court can only give a finding that the witness who gave the 164 statement is a liar and take action against him for giving false evidence. In State of Delhi vs. Shri Ram [AIR 1960 SC 490] it has been held:
"Statements recorded under S.164 of the Code are not substantive evidence in a case and cannot be made use of except to corroborate or contradict the witness. An admission by a witness that a statement of his was recorded under S.164 of the Code and that what he had stated there was true would not make the entire statement admissible; much less could any part of it be used as substantive evidence in the case.
A Judge commits an error of law in using the statement of a witness under S.164 as a substantive evidence in coming to the conclusion that he had been won over."
17. A statement u/s 164 is a corroborative piece of evidence. It corroborates the substantive piece of evidence in the Court, namely the evidence of the witness that he told the same facts earlier to a Magistrate. A corroborative piece of evidence can only corroborate a substantive piece of evidence and not another corroborative piece of evidence. In other words the 164 statement of 'A' cannot corroborate the complaint given by 'A' to the Police that formed the basis for registering the FIR.
18. The credit of a witness can be impeached under Section 155(3) of the Evidence Act by proof of former statements which are inconsistent with any part of his evidence. The procedure to bring on record the contradictions is provided by Section 145 of the Evidence Act.
"145. Cross-examination as to previous statements in writing---A witness may be cross-examined as to previous statements made by him in writing or reduced into writing, and relevant to matters in question, without such writing being shown to him, or being proved; but if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him."
19. For example, if the witness has stated in the complaint and 164 statement that 'A' gave the lethal blow on the head but in the witness box, if he says that 'B' gave the lethal blow on the head, then there is contradiction between the complaint and 164 statement on one hand and the substantive evidence in the witness stand on the other hand. Many a time defence counsels remain silent in the fond hope that they can highlight the contradiction by simply reading to the Judge and comparing the former statements [Complaint and 164 statement] and the deposition of the witness. This is impermissible. The corroborative evidence namely the former statement should be put to him and his attention should be drawn to the contradiction between what he stated in the former statement and the substantive evidence. In the above example he should be asked, you have stated in the Court that B inflicted the lethal blow, but in your complaint and 164 statement you have stated A has inflicted the lethal blow, is it not? Defence counsels will get scared to ask this question because of fear that he may explain away. For that sake mandates of Section 145 Evidence Act cannot be jettisoned. If it wants to contradict the witness with a former statement there is no escape route other than Section 145 of the Evidence Act. Only contradictions between two substantive evidences can be read out to the judge. For example, in a case, if P.W.1 says in his evidence that 'A' gave the lethal blow and P.W.2 says that 'B' gave the lethal blow, then there are two contradictory substantive pieces of evidences. Then the defence counsel can read P.W.1 and P.W.2's evidence and show the contradictions.
20. In some Courts, the Prosecution, at the commencement of the examination itself would show the 164 statement to the witness and ask him;
Is this your statement?; Answer : Yes; Then mark it through him without anything more and argue that the prosecution has proved the facts stated in the 164 statement. This procedure is incorrect because Section 164 statement is not substantive evidence. Proving the factum of having given a statement to the Magistrate is different from proving the facts contained in the statement.
21. Why do Police have the statement of a witness recorded under Section 164? A Full Bench of this Court in State of Madras vs. G.Krishnan [AIR 1961 Mad 92] has succinctly answered this question in the following words:
18. .........The object of recording a statement under Sec.164 Crl.P.C. Are: (1) to use them as confession in case the person making them is ultimately charged with an offence, and (2) to deter a witness from changing his version later by sucumbing to temptations, influences, or blandishments."
In the same judgment the Full Bench has held that a 164 statement is a Public Document within the meaning of Section 74(iii) of the Evidence Act. Section 80 of the Evidence Act raises a presumption that a Statement or Confession by any prisoner or accused person, taken in accordance with law and purporting to be signed by any Judge or Magistrate is genuine. A confession duly recorded by a Magistrate in accordance with Section 164 Cr.P.C. will come under the protective umbrella of the presumption under Section 80 of the Evidence Act. We see no reason as to why the protection of Section 80 Evidence Act be denied to a statement of a witness recorded under Section 164 Cr.P.C. The presumption under Section 80 Evidence Act can by no stretch of imagination extend to the statement of facts contained in the 164 statement. Presumption under Section 80 is only for the genuineness of the document and not to its contents.
22. Judicial time of Magistrates can be saved substantially if the practise of examining them in the trial Court to prove the recording of 164 statement is given up. We hold that trial Courts should summon the Magistrate who recorded the 164 statement only when the witness denies or disowns the statement. The Andhra Pradesh High Court in Bashapaka Laxmiah and another vs. State of Andhra Pradesh [2001 Crl LJ 4066] has lamented thus:
18. Repeatedly, we have issued instructions that statement under S.164, Cr.P.C. is not a substantive piece of evidence. It is not necessary to call the Magistrate to give evidence to prove S.164 statement. Statements under S.164 Cr.P.C. are available to the defence for contradiction by obtaining the certified copies. The S.164 statement recorded by the Magistrate is a public document. Such practice, hereinafter, be stopped."
Of course, we do not agree with the observation in the judgment that the defence can obtain certified copies of it because under Section 207(iv) Cr.P.C.'73, Court is bound to supply the 164 statements to the accused.
23. Now coming to the case on hand, Sundaramurthy [P.W.3] and Thangam [P.W.4] did not state in their evidence that they appeared before a Magistrate and gave a statement. If the prosecution had marked the 164 statements through P.W.3 and P.W.4, then if there are contradictions in the statements vis-a-vis their evidence in Court, the defence would have had the opportunity to impeach the credibility of P.W.3 and P.W.4 as provided under Section 155(3) and Section 145 of the Evidence Act. Therefore, we hold that the two 164 statements, Ex.P6 and Ex.P8 of P.W.3 and P.W.4 respectively cannot be used as a corroborative piece of evidence to corroborate their substantive evidence in the witness box.
24. Now coming to the Test Identification Parade Report [Ex.P13] done by the Magistrate [P.W.7], we have to state the following. Identification of the accused by P.W.3 and P.W.4 in the parade is not substantive evidence. They identified the appellants in their substantive evidence in Court. The prosecution failed to elicit answers from them with regard to their participation in the Test Identification Parade. A witness should say in the witness box that he identified the accused in the Identification Parade conducted by a Magistrate earlier. Thereafter, if the Identification Parade proceedings and the Identification Parade Report is proved by examining the Magistrate who conducted the parade, then the substantive evidence of the witness in the Court that he had earlier participated in an Identification Parade and identified the same accused will stand corroborated by the evidence of the Magistrate and his Identification Parade Report. When a Magistrate gives evidence with regard to the Test Identification Parade conducted by him, he will only give the name of the witness who participated in the parade. He cannot say that the witness who participated in the parade is prosecution witness so and so before the trial Court.
25. In this case Sundaramurthy [P.W.3] and Thangam [P.W.4] did not even state in their evidence before the trial Court that they took part in an identification parade earlier. But they identified the accused in the dock as the persons who attacked the deceased. Hence we hold that the evidence of the Magistrate [P.W.7] and his Report [Ex.P13] cannot be used to corroborate the testimony of P.W.3 and P.W.4 on the aspect of identification of the accused.
26. The alleged arrest of the appellant was on 22.03.2008 and the requisition for identification parade was given on 31.03.2008 and the Test Identification Parade was conducted only on 10.04.2008.
27. To cap it all, Thangam [P.W.4] in the course of his cross examination categorically admitted that Sundaramurthy [P.W.3] and he saw the accused in the police station and identified them. This means that the police had shown the appellants much before Test Identification Parade and hence, we hold that the Identification Parade was a farce. We are aware of the legal proposition that identification parade is not sine-qua-non in every case and that Courts can act on the identification of the accused in the trial even if it is for the first time. On account of the categorical evidence of P.W.4 that, Sundaramurthy [P.W.3] and he were shown the accused in the Police Station, we are unable to persuade ourselves to act on the identification of the accused by these witnesses in the dock.
28. Now coming to the recovery of cricket stump [M.O.1], Thangam [P.W.4] in the cross examination has stated that the accused dropped the stump [M.O.1] at the place of occurrence. According to the Inspector of Police [P.W.16], the stump was recovered from a ditch underneath a bridge as could be seen from the Recovery Mahazar [Ex.P3]. The recovery witness Selvaraj [P.W.5] in his evidence stated that the stump was recovered from a bush near the place of incident. Whom should we believe?
29. As regards the recovery of motor cycle [M.O.2], the defence contended that the prosecution has not produced even a shred of evidence to show as to who is the owner of the motor cycle. It is the consistent case of the defence as could be seen from the suggestions put to various witnesses including the Investigating Officer, that the motor cycle [M.O.2] was recovered by the police in a theft case and the same was planted in this case. In order to establish this aspect, the 2nd appellant before us filed an application u/s 391 Cr.P.C.'73, M.P.No.2/2013 for adducing additional evidence with regard to the ownership of the motor cycle. They appear to have obtained information under the R.T.I.Act from the concerned RTO Office that the said motor cycle [M.O.2] stands in the name of one Kadirvelu and was under hypothecation with a financier. When notice in this application was ordered on the respondent-police, the present Inspector of Police filed a counter enclosing a copy of the Registration Certificate duly authenticated by the R.T.O., Thiruchengode.
30. It shows that the TVS Motorcycle, Registration No.TN-34-B-9844 was registered on 08.02.2004 in the name of one K.Kathirvel, S/o Karuppana Mudaliar and the registration is valid upto 17.02.2019. The vehicle brand, registration number, engine number and chasis number in the R.C.Book tallies with the description in the Recovery Mahazar [Ex.P2]. The certified copy of the R.C.Book submitted by the Police is admissible under Section 76 of the Evidence Act as it has been issued by the R.T.O., Thiruchengode under his hand and seal. The proof of it is by production in this Court of the certified copy under Section 77 of the Evidence Act. Since the genuineness of this has been accepted by the learned counsel for the appellants and State we take this on record and mark it as Ex.P32. We have passed separate orders in M.P.No.2 of 2013 filed by the 2nd appellant under Section 391 Cr.P.C.73 for admitting this document in evidence.
31. The contentions of the defence that the deceased was not the owner of the motorcycle [M.O.2] TN-34-B-9844 assumes significance in the light of Ex.P32 now marked. It is relevant to state here that even before we passed any order in M.P.No.2/2013 under Section 391 Cr.P.C., Mr.R.Suresh Kumar, the present Inspector of Police, Mecheri Police Station has obtained this certified copy from the R.T.O.and has filed it with his counter affidavit. We record our appreciation for the efforts of Mr.R.Suresh Kumar for acting fairly in the cause of fostering justice. Under Section 2(30) of the Motor Vehicles Act, "owner" means a person in whose name a motor vehicle stands registered.
32. In the light of this statutory position, the owner of the vehicle [M.O.2] is one Kathirvelu and not the deceased Dhanakodi. The Investigating Officer [P.W.16] failed to conduct even the minimum enquiry to ascertain the ownership of the motor cyle [M.O.2]. Mallika [P.W.1] the sister of the deceased, Sundaramurthy [P.W.3] and Thangam [P.W.4] were not even shown the motorcycle [M.O.2] . The motorcycle was marked through the recovery witness Selvaraj [P.W.5]. The eye witnesses namely P.W.3 and P.W.4 who identified the cricket stump [M.O.1] were not shown the motorcycle [M.O.2] while they were examined as witnesses.
33. To sum up, we are recapitulating the reasons for acquitting the accused.
(1) The prosecution has not proved as to what the deceased told P.W.2 who was the first person to talk to him;
(2) The prosecution had not proved what the deceased told Dr.Nandini [P.W.11]. Whereas the defence has established that P.W.11 told the Police that the deceased told her that she was attacked by known person;
(3) The evidence of Dr.Sridhar of Sri Gokulam Hospital and the Accident Register Copy [Ex.P23] shows that the deceased is alleged to have sustained head injuries in a Road Accident. Selvam [P.W.2] was present with the deceased at that time;
(4) The evidence of Sundaramurthy [P.W.3] and Thangam [P.W.4] , the alleged eyewitnesses, does not inspire our confidence for the reasons set out in the body of this judgment;
(5) The recovery of the cricket stump [M.O.1] has not been satisfactorily proved;
(6) No investigation was done so as to find out the ownership of the motorcyle [M.O.2] ;
(7) Defence, through Ex.P32, has established that the motorcycle is in the name of Kathirvelu.
For the aforesaid reasons, we find that the prosecution has not proved the case beyond reasonable doubt and the appeals stand allowed. The conviction and sentence imposed on the the accused 1 and 2 by the Additional District & Sessions Court- cum-Fast Track Court No.1, Salem in S.C.No.215/2008 on 28.03.2012 are hereby set aside. The appellants are acquitted of all the charges levelled against them and they are directed to be set at liberty forthwith unless their presence is required in connection with any other case.
[S.R.,J.] [P.N.P.,J.] 05..02.2014 Index : Yes/No Internet : Yes/No gms S.RAJESWARAN, J. AND P.N.PRAKASH, J. gms To 1. The Inspector of Police Mecheri Police Station Mecheri. 2. The Additional District & Sessions Judge-cum- Fast Track Court No1, Salem. 3.The Public Prosecutor High Court, Madras. Pre-delivery judgment in Crl.A.Nos.393 and 396 of 2012 05..02..2014