Karnataka High Court
K N Kiran Kumar vs State By Mandya Rural on 25 November, 2016
Equivalent citations: 2017 (2) AKR 226, (2017) 1 CRIMES 308 (2017) 1 CURCRIR 266, (2017) 1 CURCRIR 266
Author: K.N. Phaneendra
Bench: K.N.Phaneendra
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Crl.A.Nos.52/2013 & 108/2013
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 25TH DAY OF NOVEMBER, 2016
PRESENT
®
THE HON'BLE MR. JUSTICE H.G.RAMESH
AND
THE HON'BLE MR. JUSTICE K.N.PHANEENDRA
CRIMINAL APPEAL NO.1402/2012
C/W
CRIMINAL APPEAL NOS.52/2013 & 108/2013
IN CRIMINAL APPEAL NO.1402/2012
BETWEEN:
K N KIRAN KUMAR
S/O LATE NAGARAJU, 32 YEARS
AGRICULTURIST, KILARA VILLAGE,
MANDYA TALUK,
MANDYA DISTRICT-571 450. ... APPELLANT
(BY SRI C N RAJU, ADVOCATE)
AND:
STATE BY MANDYA RURAL POLICE
REP. BY SPP, HIGH COURT OF
KARNATAKA AT BENGALURU - 560 001 ... RESPONDENT
(BY SRI P M NAWAZ, SPP-1)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION
374(2) OF CR.P.C PRAYING TO SET ASIDE THE ORDER
DATED 05.12.2012 PASSED BY THE ADDITIONAL DISTRICT
AND SESSIONS JUDGE, MANDYA IN S.C.NO.114/08 -
CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCE
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Crl.A.Nos.52/2013 & 108/2013
PUNISHABLE UNDER SECTION 143, 147, 148, 341, 302
AND 307 R/W 149 OF IPC. AND ETC.,
*******
IN CRIMINAL APPEAL NO.52/2013
BETWEEN:
1. CHETAN
S/O SIDDARAMU
AGED ABOUT 28 YEARS
R/AT ANEKERE ROAD
MANDYA - 571401
2. SHIVANNA @ MANU
S/O MANCHEGOWDA @ RAMEGOWDA
AGED ABOUT 24 YEARS,
R/AT ANEKERE BEEDI
MANDYA - 571 401
3. S MANJUNATHA @ DIL MANJA
S/O SONNEGOWDA
AGED ABOUT 32 YEARS,
R/AT 4TH CROSS, KALLAHALLI
MANDYA 571401
4. J.CHETHAN @ K.R.S. CHETHU @ SHEKHAR
S/O GANGADHAR
AGED ABOUT 25 YEARS
R/AT 2ND CROSS, NALABANDAVADI
MANDYA 571401
5. BOREGOWDA @ BORA
S/O SIDDARAMEGOWDA
AGED ABOUT 32 YEARS
R/AT ANEKERI BEEDI
MANDYA 571401
6. CHETHAN @ GANDHINAGAR CHETHU
S/O GURUPRASAD, AGED ABOUT 27 YEARS
R/AT 10TH CROSS, GANDHINAGAR
MANDYA 571401
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Crl.A.Nos.52/2013 & 108/2013
7. CHEERANAHALLI KUMAR
S/O SIDDAIAH
AGED ABOUT 29 YEARS
R/AT CHEERANAHALLI
MANDYA 571401
8. HAMPAPURADA MAHESHA @ MAHESH
S/O GHAT NINGAIAH
AGED ABOUT 30 YEARS, HAMPAPURA
R/AT KERGODU HOBLI
MANDYA TALUK 571401 ... APPELLANTS
(BY SRI HASHMATH PASHA, ADV. )
AND:
STATE OF KARNATAKA
MANDYA WEST POLICE STATION
MANDYA 571201
(REP. BY STATE PUBLIC PROSECUTOR) ... RESPONDENT
(BY SRI P.M. NAWAZ, SPP-1)
THIS CRL.A. IS FILED U/S.374(2) CR.P.C PRAYING TO
SET ASIDE THE JUDGMENT AND ORDER OF CONVICTION
AND SENTENCE DATED 05.12.2012 PASSED BY THE ADDL.
DIST. & S.J., MANDYA IN S.C.NO.114/2008 - CONVICTING
THE APPELLANTS/ACCUSED FOR THE OFFENCES P/U/SS
143,147,148,341,302 AND 307 R/W SEC.149 OF IPC AND
27 OF INDIAN ARMS ACT. AND ETC.,
********
IN CRIMINAL APPEAL NO.108/2013
BETWEEN
1. ASHOKA @ PAI
AGED ABOUT 40 YEARS
SON OF MADEGOWDA
RESIDING AT 6TH CROSS
V V NAGAR, KALLAHALLI MANDYA
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2. KUMARA @ DON KUMARA
AGED ABOUT 31 YEARS
S/O MARGOWDA
RESIDING AT 6TH CROSS
V V NAGAR, KALLAHALLI MANDYA
3. SUNIL KUMAR @ KARATE SUNIL
AGED ABOUT 24 YEARS
SON OF LATE JAYARAM
RESIDING AT 6TH CROSS
V V NAGAR, KALLAHALLI MANDYA. ... APPELLANTS
(BY SRI C. H. JADHAV, SR. COUNSEL FOR
SRI P PRASANNA KUMAR, ADV.)
AND:
THE STATE OF KARNATAKA BY
MANDYA RURAL POLICE STATION
MANDYA DISTRICT
REPRESENTED BY S.P.P.
HIGH COURT OF KARNATAKA
BANGALORE 560 001. ... RESPONDENT
(BY SRI P. M. NAWAZ, SPP-1)
THIS CRIMINAL APPEAL IS FILED U/S.374(2) CR.P.C
PRAYING TO SET ASIDE THE JUDGMENT AND ORDER OF
CONVICTION AND SENTENCE DATED 05.12.2012 PASSED
BY THE ADDL. DIST. & S.J., MANDYA IN S.C.NO.114/2008 -
CONVICTING THE APPELLANTS/ACCUSED FOR THE
OFFENCES P/U/S 143,147,148,341,302 AND 307 R/W
SEC.149 OF IPC AND U/S 27 OF INDIAN ARMS ACT R/W
SEC.34 OF IPC.
**********
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THESE CRIMINAL APPEALS HAVING BEEN HEARD
AND RESERVED FOR JUDGMENT ON 27.09.2016 BEFORE
THE DIVISION BENCH CONSISTING OF HGRJ AND KNPJ,
COMING ON FOR 'PRONOUNCEMENT OF JUDGMENT',
THIS DAY, K.N.PHANEENDRA.J., DELIVERED THE
FOLLOWING:
JUDGMENT
K.N. PHANEENDRA, J.
We would like to begin this judgment with a quote that -
"A SANER THOUGHT WILL ALWAYS THROW LIGHT EVEN ON THE SAME SUBJECT".
2. The important moot question that arises for our consideration apart from the merits of this case is:-
'as to how the courts have to understand and appreciate the contradictions and omissions in a criminal case'.
Though laudable decisions of the Hon'ble Apex Court facilitate us to understand the legal effect of the expressions, "contradictions and omissions", but still the courts are unable to comprehend the said expressions in a proper perspective. Therefore, it is just and necessary for all of us to be innovative every day. It is said that yesterday is not ours, whatever happened has happened.
But tomorrow is ours. Hence, we have to be very
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innovative in order to achieve excellence in our day to day work. Therefore, we would like to discuss the above said aspects i.e., contradictions and omissions in a detailed manner supported by earlier and latest decisions of the Hon'ble Apex Court. Though the courts cannot make a judgment of Zero Defective, in our opinion, we can march towards to make our judgments minimum defective as far as possible. The innovative thoughts always to be towards such remedial measures and to rectify the defects in our judicial endeavours. With these observations, we feel it is just and necessary to proceed with this case.
3. These connected three appeals are preferred by the accused persons (appellants herein) calling in question the judgment dated 5.12.2012 passed in SC No.114/2008 by the Addl. Sessions Judge at Mandya, wherein the appellants are convicted for the offence punishable under Sections 143, 147, 148, 341, 302, 307 of IPC and also u/s.27 of the Indian Arms Act.
4. Criminal Appeal No.1402/2012 is preferred by A19, whereas Criminal Appeal No.52/2013 is preferred by
-7- Crl.A.1402/2012 C/W Crl.A.Nos.52/2013 & 108/2013 A2 to A6, 9, 10 and 16 and Criminal Appeal No.108/2013, is preferred by A1, A12 and A18 against the judgment of conviction and sentence passed against them as noted above. The appellants (accused Nos.1 to 6, 9, 10, 12, 16, 18 and 19 as noted in the cause title) are sentenced to undergo rigorous imprisonment for six months and to pay a fine of Rs.1,000/- each and in default to undergo one month rigorous imprisonment for the offence punishable under section 143 of IPC; further sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs.1,000/- each and in default to undergo two months rigorous imprisonment for the offence punishable under section 147 of IPC; further sentenced to undergo rigorous imprisonment for three years with fine of Rs.1,000/- each and in default to undergo seven months rigorous imprisonment for the offence punishable under section 148 of IPC; further sentenced to undergo rigorous imprisonment for one month with fine of Rs.5,000/- each with default clause of one week rigorous imprisonment for the offence punishable under section 341 of IPC; they are further sentenced to undergo rigorous imprisonment for seven
-8- Crl.A.1402/2012 C/W Crl.A.Nos.52/2013 & 108/2013 years and to pay fine of Rs.2,000/- each with default clause of one year rigorous imprisonment for the offence punishable under section 307 of IPC; and to undergo imprisonment for life and to pay a fine of Rs.5,000/- each with default clause of one year rigorous imprisonment for the offence punishable under section 302 of IPC.
4.1 The appellants 1 to 5 in Criminal Appeal No.52/2013 (A2 to A6) and the appellants in Criminal Appeal No.108/2013 (A1 to A12 and 18) are also sentenced to undergo rigorous imprisonment for three months and to pay a fine of Rs.1,000/- with default clause of 7 months rigorous imprisonment for the offence punishable under section 27 of the Indian Arms Act. The appellants are also ordered to pay compensation of Rs.5, 000/- each to the legal heirs of the deceased u/s.357 (3) of Cr.P.C.
5. As all the appeals are arising out of a common judgment of conviction and sentence, they are taken up together for disposal.
6. The brief factual matrix of the case that emanates from the records is as follows:
-9- Crl.A.1402/2012 C/W Crl.A.Nos.52/2013 & 108/2013 Totally 34 accused persons were charge sheeted by Mandya West Police, Mandya District on the allegations that, on 7.12.2007 at about 11.15 a.m., near Yeliyur Circle on the way to Mayannana Koppalu Road near Hanumaiah's land in Mandya, PWs.1 to 3 Madhu, Prabha and M.S. Madhusudhan @ Cable Madhu (injured witnesses) and deceased Jadeja Ravi along with others were proceeding in a Scorpio car bearing No.KA-32/N-4374 in order to attend a death ceremony at Yeliyur. PW-1 was actually driving the vehicle. At about 11.15 a.m., when they reached Yeliyur circle, a Tata Sumo vehicle bearing No.KA-06/1715 came from the opposite direction and dashed against the Scorpio vehicle in which the deceased and PWs.1 to 3 and others were traveling. It is also the case that a Tata Indica car bearing No.KA-02/B-823, came from backside. Some unknown persons holding iron longs and deadly weapons got down from the said vehicles. All of them started assaulting PWs.1 to 3 and 9 and the deceased, Jadeja Ravi. PWs.1 to 3 and 9 have suffered some injuries. The assailants mercilessly assaulted Jadeja Ravi on his head and other parts of the body with choppers and iron longs.
-10- Crl.A.1402/2012 C/W Crl.A.Nos.52/2013 & 108/2013 Due to the assault, Jadeja Ravi succumbed to the injuries on the spot itself. The assailants have also cut off the left hand of the said deceased Jadeja Ravi and carried away the same with them.
7. On receiving the information about the incident, PW-37 M.N. Manjunath, SHO attached to Mandya West Police Station, went to the General Hospital, Mandya and recorded the statement of PW-1 Madhu as per Ex.P1 and thereafter registered a case in Crime No.492/2007 against 10 - 15 unknown persons and dispatched the FIR as per Ex.P-55. Subsequently, PW-39 B.B. Lakshmegowda took over the investigation and after completion of the investigation submitted a charge sheet against 34 accused persons for the offence punishable under section 143, 147, 148, 341, 302, 307, 212, 120B read with Section 149 of IPC and also u/s.27 of the Indian Arms Act read with Section 149 of IPC. Out of them, A-13 Puttaraju was shown to be absconding, A-22 Ravi @ Ravindra was not sent up for trial and A-34 Reddy @ Vinaya @ Vini was split up from the charge sheet. Totally 31 accused persons were
-11- Crl.A.1402/2012 C/W Crl.A.Nos.52/2013 & 108/2013 tried by the learned Sessions Judge after securing their presence before it. The learned Sessions Judge framed charges against 31 accused persons for the above said offences. As they pleaded not guilty, they were put on the trial.
8. The prosecution in order to bring home the guilt of the accused persons examined as many as 39 witnesses i.e., PWs.1 to 39 and got marked Exhibits P-l to P-100 and Material Objects MOs.1 to 36. After completion of the prosecution evidence, the Court also recorded the statement of the accused persons u/s.313 of Cr.P.C. The accused persons did not choose to lead any evidence, as such. After hearing the arguments and appreciating the oral and documentary evidence on record, the trial Court has acquitted the other accused persons, however, convicted the appellants who are arrayed as A1 to A6, 9, 10, 12, 16, 18 and 19 and sentenced them accordingly as noted supra.
9. We have heard the detailed arguments addressed by the learned counsel for the appellants respectively in the above said appeals, as well the learned SPP-1 for the State.
-12- Crl.A.1402/2012 C/W Crl.A.Nos.52/2013 & 108/2013 We have also carefully examined the oral and documentary evidence on record. On overall analysis of the entire materials on record, the only point that would arise for consideration of this Court is:-
"Whether the appellants have made out any reasonable or substantial ground to interfere with the judgment of conviction and sentence passed by the learned Trial Judge on them and that, the prosecution has proved the case against them beyond reasonable doubt?
10. Before adverting to appreciate the evidence on record with reference to the judgment rendered by the trial Court, we would like to have a brief cursory look at the evidence adduced by the prosecution through its witnesses.
10.1 PWs.1 to 4 and PW-9 are the eye-witnesses to the incident. They all turned hostile. PW-5 Basavaraju is a witness to connect A-9 and A-25 in order to show that the chopped off left hand of the deceased was placed on the grave of a person by name Cheeranahalli Shankara. But this witness has also turned hostile to the prosecution. PW- 7 Sudhamani W/o.A-14 (acquitted accused) in whose name, the vehicle Tata Sumo bearing No.KA-06/M-1715 stood and
-13- Crl.A.1402/2012 C/W Crl.A.Nos.52/2013 & 108/2013 which was alleged to have been used for the commission of the offence, has also not supported the case of the prosecution.
10.2 PW-8 Eranna, Warden in a Hostel at Ganjam, who allowed A2 and A28 to take shelter in the Hostel and helped A2 and A28 to stay in the said hostel, he has also turned hostile. PW-10 is Siddaraj, who gave shelter to A3, A5 and A6 in connection with this case. PW- 11 Mahesh and PW-12 Ranjeeth were the persons who were examined in order to establish the conspiracy between the accused persons, but they all turned hostile. PW-13 Krishna, was a member of Chit transaction along with A1. He has also not supported the case. PW-14 Guru, PW-15 Shankar and PW-16 Manchegowda are the panch witnesses to the inquest proceedings (Ex.P-18 drawn in Mandya General Hospital Mortuary) conducted on the dead body of the deceased. They also did not support the case of the prosecution. PW-17 Raja is the panch witness with regard to the seizure of a Tata Sumo vehicle. PW-18 T. Jayaramu, is also a panch witness for the seizure of chopped left hand
-14- Crl.A.1402/2012 C/W Crl.A.Nos.52/2013 & 108/2013 of deceased which was found on the grave of Cheeranahalli Shankara under Ex.P20. PW-19 A.P. Bharathish is the panch witness for seizure of Scorpio car bearing No.KA- 32/M-4374 seized under a mahazar Ex.P-22. PW-20 Y.K. Nagaraju, PW-21 Mallaiah, PW-23 Srinivasa, PW-24 Rudresh and PW-25 Ramesh are the panch witnesses to Ex.P-26, P-28, Ex.P-30, Ex.P-32 and Exs.P34 to 36 mahazars with regard to the recovery of the incriminating articles at the instance of some of the accused persons, but they have not supported the case of the prosecution. PW- 26 Dr. S.J. Swamy is the Casualty Medical Officer in General Hospital, Mandya, who examined the injured eye- witnesses, PW-1 Madhu, PW-2 Prabha, PW-9 Ravi and issued wound certificates as per Exs.Ex.P-39 to P-43. He has supported the case of the prosecution. PW-27 Suma wife of A-23 is examined to show that some of the accused persons were staying in her house. PW-28 T.S. Annegowda, is a panch witness for seizure of three mobiles and Pulsar bike under Ex.P-45. They also not supported the case. PW-29 Dr. Puttaswamy, is the doctor who conducted Post Mortem examination on the dead body of
-15- Crl.A.1402/2012 C/W Crl.A.Nos.52/2013 & 108/2013 the deceased as per Ex.P-47 Post Mortem report. PW-30 M.C. Krishnegowda is the Junior Engineer, who has prepared the sketch of scene of offence, as per Ex.P-48. PW-31 Jayaramegowda, is an Advocate and Notary who attested the sale agreement to sell Tata Sumo vehicle marked at Ex.P-49. PW-32 L. Mahadevaswamy, Motor Vehicle Inspector, who inspected the Motor vehicles involved in this case and issued report as per Ex.P-50 and P-51. PW-33 S.K. Umesh, Police Inspector and SHO of Kalasipalyam Police Station, apprehended A-9, A-25 and A- 28 on 10.12.2007 and he has deposed with regard to the seizure of some weapons. PW-34 Sathishkumar, PW-36 Asundi, PW-37 M.N. Manjunath and PW-38 Srikantamurthy are the police personnel who have assisted the investigation. PW-39 Lakshmegowda, CPI and the IO has filed the charge sheet against the accused persons.
11. As could be seen from the evidence of these witnesses, except Investigating Officers PWs.33 to 39 and Motor Vehicle Inspector PW-32, the doctors PW-26 & 29, who had conducted the examination of the injured eye-
-16- Crl.A.1402/2012 C/W Crl.A.Nos.52/2013 & 108/2013 witnesses and conducted the Post Mortem examination, no other material witnesses have supported the case of the prosecution. All the panch witnesses including eye- witnesses have turned totally volte-face to the prosecution. There is no worth or incriminating evidence in their examination in chief in order to implicate any of the accused persons to the crime. In this background, we have to consider whether the trial Court has properly appreciated, and considered the evidence of these witnesses to draw the inference of guilt of the accused/appellants.
12. Before adverting to the injured eye-witnesses version, we would like to refer to the contents of FIR Ex-P1, to ascertain as to how the investigation began.
13. We have already referred to the story of the prosecution regarding the incident that happened on 7.12.2007 at about 11.15 a.m., as depicted in Ex.P1. After the incident, PWs.1 to 3 and 9 injured eye-witnesses were admitted to the hospital. Ex.P1 is the complaint lodged by Madhu PW-1, wherein it is complained that on that day
-17- Crl.A.1402/2012 C/W Crl.A.Nos.52/2013 & 108/2013 PWs.1 to 3 and deceased Jadeja Ravi along with others were proceeding in a Scorpio vehicle bearing registration No.KA-32/M-4374 driven by PW-1, and when they reachedr Yeliyur circle at about 11.15 a.m., a Tata sumo vehicle bearing No.KA-06/M-1715 came from the opposite direction and dashed against their vehicle. At that time, A Tata indica car came from behind and about 15 persons got down from those two cars who were armed with deadly weapons like choppers and iron longs, assaulted PWs.1 to 3 and 9 and the deceased, made attempts to kill PWs.1 to 3 and 9 and in fact killed Jadeja Ravi by assaulting him with longs. In the FIR there is absolutely no description of any accused persons nor the name of any one of the accused persons is forthcoming and the complaint is against some unknown persons.
14. In the evidence the doctor who treated the injured at the first instance PW-26 Dr.S.J. Swamy has only stated that the injured PWs.1 to 3 and 9 had come to the Hospital on 7.12.2007 with a history that on that day at about 11.30 a.m., about 15 persons who were not known to
-18- Crl.A.1402/2012 C/W Crl.A.Nos.52/2013 & 108/2013 the witnesses had attacked and assaulted them. Even the documents Ex.P-38, P-40 and P-42 which are the wound certificates of PWs.1 to 3 and 9, do not disclose the names and identity of any of the assailants. Even the witnesses PWs.1 to 3 and 9 at the earliest stage, have never disclosed the names of any of the accused persons as their assailants. In this background, the Court has to analyse the materials on record to come to the conclusion that the evidence placed before and relied upon by the Trial Court is substantive in nature and that can be relied upon undoubtedly for the purpose of laying conviction against the accused persons.
15. In the above said background, it is also a relevant point to be taken note of is, that out of 31 accused persons tried, 19 accused persons are acquitted. The learned SPP-1 has fairly submitted before the Court that the State has not preferred any appeal against the judgment of acquittal rendered by the trial Court against 19 acquitted accused persons in this case.
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16. The trial Court has framed charges against all the accused persons for the above said offences not only invoking the provisions under the IPC but also under the Indian Arms Act read with Section 149 of IPC. However, while rendering the judgment, the trial Court has segregated 19 accused persons, on the ground that they were not having any weapons or no overt acts have been alleged against them though they were found to be in the place, to acquit them. The appellants are convicted on the ground that they were the persons who were holding deadly weapons and also specific overt acts have been attributed against these accused persons. This is also an important factor that should be borne in mind by the Court before analyzing the evidence on record as to where the trial Court has found the evidence to draw such inference.
17. HOMICIDAL DEATH The case of the prosecution is that the deceased Jadeja Ravi died a homicidal death and PWs.1 to 3 and 9 have suffered injuries at the hands of the accused persons. In order to establish the homicidal death of the deceased
-20- Crl.A.1402/2012 C/W Crl.A.Nos.52/2013 & 108/2013 which is not much disputed by the accused persons, the prosecution has relied upon the evidence of the Investigating Officers as well as the evidence of the eye- witnesses such as PWs.1 to 4, 9, 15 and 16. PWs.15 and 16 Shankar and Manchegowda have also turned hostile to the prosecution. However, PW-15 has admitted his signature to the inquest proceedings which is marked at Ex. 18(b). PW-16 has also admitted his signature as per Ex.P- 18(c). The Investigating Officer PW-39 Sri B.B. Lakshmegowda has stated that he conducted inquest proceedings on the dead body of the deceased and he observed the dead body which suffered injuries inflicted by sharp weapons and the left hand of the deceased was also missing which was chopped and removed. He conducted the inquest as per Ex.P-18 in the presence of the panch witnesses and also collected the blood stained earth and un-stained earth from the scene of offence. This portion of the evidence of the Investigating Officer is not much disputed in the course of cross examination except putting a suggestion that the whole investigation done by this witness is a farse.
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17.1 Apart from the above, PW-29 Dr. Puttaswamy,
who conducted the Post Mortem examination on the dead body of Jadeja Ravi, has specifically stated about the injuries sustained by the deceased which tallies with the inquest proceedings and also the evidence of the Investigating Officer. Ultimately after dissection of the dead body, noting down the external and internal injuries, the doctor has opined that the death had occurred approximately within 12 hours prior to the time of Post Mortem examination and the death was due to the cumulative effect of the injuries sustained by the deceased. The doctor has not been subjected to any cross examination. Therefore, there is no doubt with regard to the homicidal death of the deceased. The question remains as to who is responsible for the death of the deceased. Whether in that regard the prosecution has placed any material, has to be looked into by this Court.
18. RECOVERY:
The prosecution has relied mainly upon recovery of some of the incriminating articles at the instance of the
-22- Crl.A.1402/2012 C/W Crl.A.Nos.52/2013 & 108/2013 appellants/accused persons. As per the evidence of the Investigating Officer PW-39, A1 was arrested on 21.12.2007 and his voluntary statement was recorded as per Ex.P-62 and a Tata Indica Car bearing registration No.KA-03/B-823 and a long chopper which was inside the said car, marked at MO-13 were seized under mahazar Ex.P-30. PW-23 Srinivas, who was examined to prove this panchanama has turned hostile to the prosecution and his contradicted statement is recorded as per Ex.P-31 and P-
31(a).
18.1. A2 Chethan, A3 Shivanna, A6 Boregowda, A10 Cheeranahalli Kumara, A16 Hampapurada Mahesha and A19 K.N. Kiran Kumar were arrested by the Investigating Officer PW-39 on different dates. It is stated that A2 has showed a place where the accused persons had conspired and stayed together in a Hostel called Students Boys Hostel, Ganjam. Except that there were no recoveries as such at the instance of these accused. Mahazar which was drawn at the said place is marked at Ex.P-9, is insignificant in this case. PW-8 Eranna is a panch witness to the
-23- Crl.A.1402/2012 C/W Crl.A.Nos.52/2013 & 108/2013 mahazar. He has also not supported the case of the prosecution and turned hostile.
18.2 A-4 S. Manjunatha @ Dil Manja, A-12 kumar and A-18 Sunil Kumar were arrested on 15.12.2007 and their voluntary statements were recorded. It is alleged that on 16.12.2007 all the above accused persons led the police to a particular place near Ambabavani temple, a vacant place. All of them produced 3 iron longs which were recovered under mahazar Ex.P-26 and the said longs are marked at MOs.10, 11 and 12. PW-21 is the panch witness. He has also turned totally hostile to the prosecution, except admitting his signature as per Ex.P-26(a).
18.3 A5 J.Chethan @ K.R.S. Chethan was arrested on 11.12.2007 and his voluntary statement was recorded as per Ex.P-57. It is said that he led the police and the panch witness to a place called Tubbanakere and produced four iron longs from a bush which are marked at MOs.6 to
9. PW-20 Y.K. Nagaraj who is a panch witness examined in order to prove this mahazar. But the said witness has also
-24- Crl.A.1402/2012 C/W Crl.A.Nos.52/2013 & 108/2013 not supported the case of the prosecution except admitting his signature in the mahazar as per Ex.P24(a).
18.4 A9 Chethan @ Gandhinagar Chethu was secured under a body warrant on 24.12.2007 and at his instance MO-9 one black pant is alleged to have been seized.
18.5 Looking to the above said recovery of incriminating articles at the instance of some the accused (who are some of the appellants herein), all the panch witnesses have turned totally hostile. The trial Court has believed the version of the Investigating Officer so far as recovery of these incriminating articles are concerned. Though the panch witnesses have turned hostile, of course, there is no legal impediment in believing the Investigating Officer but what has to be seen by the Court is whether the evidence of the Investigating Officer is so trustworthy and creditworthy for acceptance. Even assuming that such recoveries have been made at the instance of the accused persons whether those incriminating articles in any manner connect the appellants to the commission of any offence is
-25- Crl.A.1402/2012 C/W Crl.A.Nos.52/2013 & 108/2013 to be examined. In this background, the connectivity of the incriminating articles with that of the crime play a dominant role.
18.6 It is the evidence of the Investigating Officer that at the time of conducting the inquest proceedings, he has collected the blood stained earth, unstained earth and seized a chopper from the spot which are marked at MOs.3 to 5 before the Court. He has also stated that under mahazar Ex.P-20 he recovered a cut/chopped left hand of the deceased in the presence of panch witness CW-35 Basavaraju who turned hostile to the prosecution. Nevertheless, it is the case of the prosecution that the said hand was recovered later. It is further deposed by Investigating Officer that he has also seized the blood stained clothes of the deceased i.e., shirt, Banian, Kerchief, pant and knicker which are marked at MO-29, MO-30, MO- 31, MO-32 and MO-33 and also silver waist thread MO-34.
18.7. As admitted by the learned SPP, these items were not sent to the FSL for examination so as to ascertain whether the blood stains on the dead body and on the
-26- Crl.A.1402/2012 C/W Crl.A.Nos.52/2013 & 108/2013 injured persons PWs.1 to 3 and 9 could have been caused with the help of the said incriminating articles like choppers and longs recovered at the instance of the above said accused persons. The documents marked before the Court do not show the report of FSL being marked, in order to connect these incriminating articles alleged to have been seized at the instance of some of the accused persons to the crime. Therefore, we are of the opinion that except the evidence of the Investigating Officer that he made such seizures at the spot and recovered certain weapons at the instance of the accused, nothing is available to connect or corroborate these materials to the crime. Therefore, in our opinion, these articles even if we assume that they were recovered at the instance of the appellants will not take us anywhere, to connect the appellants to the crime, to hold that they are the perpetrators.
18.8 The Investigating Officer has also not spoken anything with regard to the sending of the incriminating articles which are seized at the spot and also recovered at the instance of the accused persons, to the Forensic
-27- Crl.A.1402/2012 C/W Crl.A.Nos.52/2013 & 108/2013 Science Laboratory, to obtain any report as such. Therefore, we are of the opinion that mere recovery of any incriminating articles at the instance of any of the accused is of no avail to the prosecution.
18.9 The learned Sessions Judge while dealing with the recovery of the incriminating articles at the instance of the accused, has not discussed anything about these important aspects with reference to the connectivity of the incriminating articles with that of the crime. The injured eye-witnesses are the proper persons to identify the weapons and say about the use of such weapons by any of the accused persons. Such evidence is conspicuously absent in this case. Therefore, the trial Court is not right in holding that the prosecution has proved the case against the accused that they have used the said incriminating articles for the purpose of committing the offences alleged against them.
19. CONSPIRACY:
The trial Court at paragraphs 104 and 105 has discussed with regard to the conspiracy amongst the
-28- Crl.A.1402/2012 C/W Crl.A.Nos.52/2013 & 108/2013 accused to do away with the life of the deceased.
Considering the case of the prosecution that the accused persons had hatched a conspiracy assembling themselves at Madegowda Kalyana Mantap, then at the house situated in Bidi Karmikara Colony at Kallalli APMC Yard, at Pre-Metric Hostel, Ganjam and in the house of accused No.23, found that, there was no sufficient evidence. The trial Court after considering the evidence of the witnesses has come to the conclusion that the prosecution has not proved the said conspiracy as the witnesses examined to that effect have been turned totally hostile to the prosecution. The motive factor has also been considered by the Court and has given its opinion that the motive has also not been proved by the prosecution as the witnesses examined have also turned hostile to the prosecution. We have no occasion to differ from the said opinion, particularly when State itself has not chosen to question the same.
20. EYE-WITNESSES EVIDENCE:
In this backdrop, we would like to examine the evidence of the eye-witnesses. PWs.1 to 3 and 9 though
-29- Crl.A.1402/2012 C/W Crl.A.Nos.52/2013 & 108/2013 cited as eye-witnesses as we have examined, all of them have turned totally hostile to the prosecution. They in fact have not even identified any of the accused persons before the Court and not even a semblance of material is available to say that, any of the accused persons were present on that particular date, time and place and assaulted any of the injured persons or the deceased. Even they have gone to the extent of saying that, the accused who were absconding i.e., A-13, A-22 and A-34 if shown they cannot identify them. Therefore, looking to the evidence of these witnesses, they have given a total go by to the case of the prosecution and absolved all these accused persons from the complicity of the crime. However, these witnesses have admitted in their evidence, the happening of the incident to the effect that when PWs.1 to 3 and 9 and others along with the deceased Jadeja Ravi were proceeding in their Scorpio vehicle at about 11.30 a.m., when the car reached Yeliyur circle, a Tata sumo vehicle came from opposite direction and one Indica car came from behind and some unknown persons got down from the said vehicles and assaulted PWs.1 to 3 and 9 as well as the deceased Jadeja
-30- Crl.A.1402/2012 C/W Crl.A.Nos.52/2013 & 108/2013 Ravi mercilessly. They have specifically stated that, those persons are not before the Court. Except this, nothing has been stated in their evidence in order to implicate any of the accused persons to the crime.
20.1 The learned Public Prosecutor before the trial Court has treated the eye-witnesses hostile and cross examined them in detail. As could be seen from the cross examination, the entire statement of these witnesses recorded u/s.161 of Cr.P.C. were put to their month and got marked the contradicted portion in their statement as per Ex.P2, P3, P4, P5 and P11. Through PW-1, Ex.P1 was also marked which the First Information is given by him. Even he has gone to the extent of denying the contents of Ex.P-1 stating that he has not given such statement before police.
However, his thumb impression was marked at Ex.P1(a). Except eliciting the contradictions in Ex.P1 and in the 161 Cr.PC statements of the witnesses, no other worth evidence is forth coming from the evidence of these witnesses. Therefore, as could be seen from the evidence of these witnesses, there is absolutely no substantive evidence
-31- Crl.A.1402/2012 C/W Crl.A.Nos.52/2013 & 108/2013 attributable against any of the accused persons. However, the trial Court considered the contradicted portions elicited during the course of cross examination of these witnesses as substantive evidence, which are nothing but the denial of such statement being made before police. The Trial Court persuaded itself to convict the accused believing the said contradicted version as truth of the prosecution case. We would like to discuss this particular method of analyzing the evidence by the trial Court little later which requires a detailed and meticulous discussion. Before doing that, we would like to consider the other materials on record relied on by the prosecution to implicate the appellants to the crime. We make it clear that we do not want to venture upon to discuss any materials on record so far as the acquitted accused persons are concerned as there is no appeal as such preferred by the State.
21. Now what remains for consideration by this Court is with reference to the believing of the eye witnesses by the trial Court though they turned hostile to the prosecution. As we have observed above, PWs.1 to 4 and 9
-32- Crl.A.1402/2012 C/W Crl.A.Nos.52/2013 & 108/2013 have totally turned hostile to the prosecution. However, their statement made u/s.161 of Cr.P.C. have been confronted to them and they denied the said statements and the contradicted portion of the statements have been marked before the Court as exhibits and those portions have been used as substantive evidence and in fact believed as truth.
22. The learned Sessions Judge has appreciated the evidence in such a manner relying upon a passage in a decision of the Hon'ble Apex Court which is reported in (2010) 2 SCC 583 between Aftab Ahmad Anasari Vs. State of Uttaranchal, which reads thus -
"We are of the opinion that the statement before police can be taken into consideration in view of the proviso to Section 162 (2) of Cr.P.C. and subsequent denial in Court is not believed because she obviously had afterthoughts and wanted to save her son(accused) from punishment. In fact, in her statement to the police, she has stated that the dead body of Seena was removed from the pit and placed on floor when she confronted in the statement before the Court, she has denied that she made such statement before police. Hence, we are of the opinion that her statement before police can be taken into consideration in view of the proviso to Section 162 of Cr.P.C. No doubt, Smt. Dillon
-33- Crl.A.1402/2012 C/W Crl.A.Nos.52/2013 & 108/2013 after the incident she resile from her earlier statement to the police. However, the evidence of the hostile witness could not be totally rejected but it can be subjected to and portion of the evidence which is consistent with the case of the prosecution or defence may be accepted."
23. The trial Court has relied upon many number of decisions, in order to substantiate itself, to believe the contradicted portions of the statement of eye witnesses. Which supported the case of the prosecution. We have to now consider whether such appreciation by the trial Court on the basis of the above said decision is proper and correct. In this background, a detailed discussion is required by us. Therefore, we proceed from the fundamental basic provisions of Cr.P.C. as well as the Indian Evidence Act which speak about, as to how the courts have to consider the previous statement of a witness and also as to how the contradictions and omissions have to be proved and what is the evidentiary value and how the courts have to appreciate the evidence on record, with reference to such contradictions or omissions.
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24. CONTRADICTIONS, OMISSIONS & ITS
PROOF:
We would like to gainfully extract the relevant provisions of the Cr.P.C. which deals with the consideration of the previous statement of a witness made before the police u/s.161 of Cr.P.C. Section 162 of Cr.P.C. is the relevant provision which reads as follows:
"162. STATEMENTS TO POLICE NOT TO BE SIGNED - USE OF STATEMENTS IN EVIDENCE. -
(1) No statement made by any person to a police officer in the course of an investigation under this Chapter, shall, if reduced to writing, be signed by the person making it; nor shall any such statement or any record thereof, whether in a police diary or otherwise, or any part of such statement or record, be used for any purpose, save as hereinafter provided, at any inquiry or trial in respect of any offence under investigation at the time when such statement was made:
Provided that when any witness is called for the prosecution in such inquiry or trial whose statement has been reduced into writing as aforesaid, any part of his statement, if duly proved, may be used by the accused, and with the permission of the Court, by the prosecution, to contradict such witness in the manner provided by section 145 of the Indian Evidence Act, 1872 (1 of 1872); and when any part of such statement is so used, any part thereof may also be used in the re- examination of such witness, but for the purpose only of explaining any matter referred to in his cross- examination.
(2) Nothing in this section shall be deemed to apply to any statement falling within the provisions of clause (1) of section 32 of the Indian Evidence Act, 1872 (1 of 1872), or to affect the provisions of section 27 of the Act.
-35- Crl.A.1402/2012 C/W Crl.A.Nos.52/2013 & 108/2013 Explanation - An omission to state a fact or circumstance in the statement referred to in sub-section (1) may amount to contradiction if the same appears to be significant and otherwise relevant having regard to the context in which such omission occurs and whether any omission amounts to a contradiction in the particular context shall be a question of fact."
From a plain reading and understanding of the provision it can be understood that, if the previous statements of the witnesses that too relevant materials are "duly proved,"
then only the provision under Section 145 of the Indian Evidence Act is applicable, which says for what purpose, the said statement can be used. Section 145 and 155 of the Indian Evidence Act are the relevant provisions under the Indian Evidence Act which read as follows:
"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.
155. Impeaching credit of witness.- The credit of a witness may be impeached in the following ways by the adverse partly, or with the consent of the Court, by the party who calls him:-
(1) By the evidence of persons who testify that they, from their knowledge of the witness believe him to be unworthy of credit;
(2) By proof that the witness has been bribed, or has [accepted] the offer of a bribe, or has received any other corrupt inducement to give his evidence;
-36- Crl.A.1402/2012 C/W
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(3) By proof of former statements
inconsistent with any part of his evidence which is liable to be contradicted;"
(Emphasis supplied) On meaningful reading of Section 162 of Cr.P.C., the proviso discloses as to how and in what manner, the previous statement of a witness can be used. This refers to a statement which was reduced into writing and recorded during the course of investigation and if duly proved, may be used by the accused and with the permission of the Court by the prosecution only to contradict the witness in the manner provided u/s.145 of the Indian Evidence Act. When such part of the statement is so used and proved, it may be used in the re-examination of such witness, but for the purpose of only explaining any contradicted matter referred to in his cross examination. As per the explanation to this provision, omission to state a fact or a circumstance in the statement referred to in sub-Section (1) of Section 161 of the Cr.P.C may amount to contradiction only in the event such omission appears to be significant and otherwise relevant in the context when such omission is also duly proved. Therefore, the law has left it to the discretion of the Court to consider whether such omission is significant
-37- Crl.A.1402/2012 C/W Crl.A.Nos.52/2013 & 108/2013 or not or whether it amounts to material contradiction or not based on the facts and circumstances of a particular case.
25. What is contradiction and omission is nowhere defined either in the Code of Criminal Procedure or in the Indian Evidence Act. Therefore, for limited purpose, we have to fall back upon the dictionary meaning of the said words.
Chambers 21st Century Dictionary describes the meaning of the word contradiction as -
"to assert the opposite of or deny (a statement, etc.,) made by (a person) or to disagree or be inconsistent with another" and the word omission as - "something that has been left out or neglected, the act of leaving something out or neglecting".
In P.Ramanath Aiyar's the LAW LEXICON, the encyclopaedic law dictionary edited/written by Justice Y.V. Chandrachud - Second Edition 1997, the word omission as contradiction is described as -
-38- Crl.A.1402/2012 C/W Crl.A.Nos.52/2013 & 108/2013 "An omission is not a contradiction unless what is actually said contradicts what is omitted to be said. The test to find out whether an omission is a contradiction or not is to see whether one can point to any sentence or assertion which is irreconcilable with the deposition in Court"
In another dictionary which is titled as Advanced Law Lexicon of P.Ramanath Aiyar's 3rd Edition 2005, the word contradiction is described as "setting of one statement against another and not the setting up of a statement against nothing at all" and the word omission as - "a failure to do something, a neglect of duty (the complaint alleged that the driver had committed various negligent acts and omissions), the act of leaving something out, the state of having been left out or of not having been done, something that is left out, left undone, or otherwise neglected".
In Wharton's Law Lexicon 16th Edition, the meaning of the word contradiction in terms is described as -
"a phrase of which the parts are expressly inconsistent".
26. Therefore, a meaningful understanding of the phrase 'Contradiction' which is used in a wise manner would show that, the evidence before the Court by the witness is something against the one stated by him in his previous
-39- Crl.A.1402/2012 C/W Crl.A.Nos.52/2013 & 108/2013 statement during the course of investigation. That precisely we can say that the witness has not stated certain facts before the Court, would have been stated by him before the Investigation officer in his earlier statement or portion of his earlier statement and has given different inconsistent version in the evidence before the Court. That portion of the statement of the witness as stated by him before the police and not stated in his evidence, amounts to contradiction. On the other hand, omission means the witness has stated significant and relevant facts before the Court which was not stated in his previous statement, before the investigating agency during the course of investigation. The omissions are also some times called as improvement by the witness during the course of evidence before the Court.
27. The contradictions and omissions are to be duly proved as contemplated u/s.162 of Cr.P.C. What is to be duly proved and how it is to be proved, in our opinion is very well enunciated by the latest ruling of the Hon'ble Supreme Court reported in (2016) 3 SCC 108 between
-40- Crl.A.1402/2012 C/W Crl.A.Nos.52/2013 & 108/2013 Krishna Chander Vs. State of Delhi. In this ruling, considering all the earlier rulings in detail, what is meant by 'duly proved' contradiction and how the statement has to be appreciated by the Court has been dealt with. The Hon'ble Apex Court has observed that the words in Section 162 of Cr.P.C. "if duly proved" clearly show that the previous statement of the witnesses cannot be proved simply by the oral evidence of the witness or the Investigating police officer. The relevant portion of the judgment reported in (2016)3 SCC 108 cited supra between KRISHAN CHANDER v. STATE OF DELHI reads thus -
"The Court cannot suo motu make use of statements to police not proved and ask questions with reference to them which are inconsistent with the testimony of the witness in Court. The words in Section 162 CrPC "if duly proved" clearly show that the record of the statement of witnesses under Section 161 Cr.P.C cannot be admitted in evidence straightaway nor can be looked into but they must be duly proved for the purpose of contradiction by eliciting admission from the witness during cross-examination and also during the cross-examination of the investigating officer. The statement before the investigating officer can be used for contradiction but only after strict compliance with Section 145 of the Evidence Act that is, by drawing attention to the parts intended for contradiction.
Under Section 145 of the Evidence Act when it is intended to contradict the witness by his previous statement reduced into writing, the attention of such witness must be called to those parts of it which are to be used for the purpose of contradicting him, before the writing can be used. While recording the deposition of a witness, it becomes the duty of the trial Court to ensure
-41- Crl.A.1402/2012 C/W Crl.A.Nos.52/2013 & 108/2013 that the part of the police statement with which it is intended to contradict the witness is brought to the notice of the witness in his cross-examination. The attention of the witness is drawn to that part and this must reflect in his cross-examination by reproducing it. If the witness admits the part intended to contradict him, it stands proved and there is no need of further proof of contradiction and it will be read while appreciating the evidence. If he denies having made that part of the statement, his attention must be drawn to that statement and must be mentioned in the deposition. By this process the contradiction is merely brought on record, but it is yet to be proved. Thereafter when the investigating officer is examined in the Court, his attention should be drawn to the passage marked for the purpose of contradiction, it will then be proved in the deposition of the investigating officer who again by referring to the police statement will depose about the witness having made that statement. The process again involves referring to the police statement and culling out that part with which the maker of the statement was intended to be contradicted. If the witness was not confronted with that part of the statement with which the defence wanted to contradict him, then the Court cannot suo motu make use of statements to police not proved in compliance with Section 145 of the Evidence Act, that is, by drawing attention to the parts intended for contradiction."
28. It is crystal clear from the above said decisions and also from Section 162 of Cr.P.C. and 145 and 155 of the Indian Evidence Act, that if a person either the accused or the prosecutor wants to contradict the witnesses with reference to his previous statement, the said portion of the statement should be brought to the notice of the said witness in order to refresh his memory and give him an opportunity to explain and then such portion of the
-42- Crl.A.1402/2012 C/W Crl.A.Nos.52/2013 & 108/2013 statement should be in fact, re-iterated in the evidence by means of recording sentence by sentence and the same portions shall be marked in the statement as Exhibits. This itself will not be sufficient to say that they are "duly proved"
as stated in Section 162 of Cr.P.C. The said contradicted portions should be tested during the course of examination of the Investigating Officer or the person who is capable of giving evidence before the Court in respect of such previous statement of the witnesses. The marked contradicted portions should be brought to the notice of the Investigating Officer and it must be elicited in his evidence, whether the said witness had stated before him during the course of investigation, the portion marked in the statement of the witness. Then only it can be said that the said portion i.e., called as contradiction is said to have been 'duly proved'.
29. Likewise, if a witness has deposed to some facts in his evidence, which are not at all stated by him before the Investigating Officer, in his previous statement, but he gives such evidence before the Court which materially and
-43- Crl.A.1402/2012 C/W Crl.A.Nos.52/2013 & 108/2013 significantly affect the case of the prosecution or the accused, such facts are called as omissions which inturn may amount to a material contradictions. This portion of the evidence also should be brought to the notice of the witness and elicited as to whether he has stated such portion of his evidence, before the investigating agency during the investigation. If he says no, then there is no question of proving it once again because of his admission. If he says that the witness has stated the same facts during the course of investigation, the said portion has to be put to the Investigating Officer to elicit whether such evidence given by the witness before the Court had been stated during the course of investigation. If the answer is no, by the Investigating Officer that will become an omission or an improvement before the Court. If this procedure is strictly followed in order to prove the contradictions and omissions, then only such portion will be available to the Court for appreciation in the case, to contradict or to test the veracity of such witness.
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30. Quite often, we have come across many number of judgments of the trial Court, wherein we have found that some of the Judicial Officers are in the habit of marking the entire 161 of Cr.PC statement of the witness as a whole, as contradiction, though a portion of the statement has been contradicted by the witness. Such practice of marking entire 161 of Cr.P.C. statement is deprecated. Only the portions which are contradicted by the witnesses have to be marked as Exhibit. Added to the above, some of the Officers are also in the habit of marking the contradicted portion in dotted lines by dictating the opening and ending word of the contradicted portion and putting dotted lines in between those words and marking the same in the evidence. This type of practice is also not recognized by any standard of law. The entire contradicted portion of the witness marked in 161 Cr.PC statement has to be completely 'word by word', 'sentence by sentence' re- iterated and thereafter that should be placed within the inverted commas ("...."). Then only that portion will become evidence for consideration and available for appreciation by the Court. For whatever purpose it may be,
-45- Crl.A.1402/2012 C/W Crl.A.Nos.52/2013 & 108/2013 the Court should understand that, marking of the entire 161 Cr.P.C. statement as an Exhibit, sometimes may take away the admitted facts by the witness during the course of evidence. Therefore, to avoid such contingencies, the Court shall mark only such contradicted portion as exhibits, in the manner noted above.
31. HOW TO APPRECIATE CONTRADICTIONS AND OMISSIONS:
Now coming to another important segment, as to how this marked portion of contradictions and omissions have to be appreciated by the Court. It is worth to note here a pretty good old decision of a Six Judge Bench of the Hon'ble Apex Court comprising of six Judges as early in the year 1959, in the famous case of Tahsildar Singh and another Vs. State of Utter Pradesh reported in AIR 1959 SC 1012. At paragraphs 11 and 17 of the said judgment, the Hon'ble Apex Court has enunciated some valuable guidelines in the following manner:
"11. It is, therefore, seen that the object of the legislature throughout has been to exclude the statement of a witness made before the police during the investigation from being made use of at the trial for any purpose, and the amendments made from time to
-46- Crl.A.1402/2012 C/W Crl.A.Nos.52/2013 & 108/2013 time were only intended to make clear the said object and to dispel the cloud cast on such intention. The Act of 1898 for the first time introduced an exception enabling the said statement reduced to writing to be used for impeaching the credit of the witness in the manner provided by the Evidence Act. As the phraseology of the exception lent scope to defeat the purpose of the legislature, by the Amendment Act of 1923, the section was redrafted defining the limits of the exception with precision so as to confine it only to contradict the witness in the manner provided under Section 145 of the Evidence Act. If one could guess the intention of the legislature in framing the section in the manner it did in 1923, it would be apparent that it was to protect the accused against the user of the statements of witnesses made before the police during investigation at the trial presumably on the assumption that the said statements were not made under circumstances inspiring confidence. Both the section and the proviso intended to serve primarily the same purpose i.e., the interest of the accused.
17. At the same time, it being the earliest record of the statement of a witness soon after the incident, any contradiction found therein would be of immense help to an accused to discredit the testimony of a witness making the statement. The section was, therefore, conceived in an attempt to find a happy via media, namely, while it enacts an absolute bar against the statement made before a police officer being used for any purpose whatsoever, it enables the accused to rely upon it for a limited purpose of contradicting a witness in the manner provided by Section 145 of the Evidence Act by drawing his attention to parts of the statement intended for contradiction. It cannot be used for corroboration of a prosecution or a defence witness or even a Court witness. Nor can it be used for contradicting a defence or a Court witness. Shortly stated, there is a general bar against its use subject to a limited exception in the interest of the accused, and the exception cannot obviously be used to cross the bar."
(Emphasis Supplied) In fact, this ruling has been consistently followed by the Hon'ble Apex Court in almost all subsequent rulings
-47- Crl.A.1402/2012 C/W Crl.A.Nos.52/2013 & 108/2013 including the latest decision reported in (2016) 3 SCC 108 cited supra.
32. In another ruling reported in AIR 1999 SC 2161 between State of Kerala Vs. Babu and others, the Hon'ble Supreme Court has explained as to, for what purpose Section 145 of the Indian Evidence Act permits the parties to cross examine the witness as to the statement in writing in any trial with reference to his previous statement in which such contradictions can be established. The relevant portion of the Judgment reads thus:
"Section 162 of the Code of Criminal Procedure, where it is Provided: "in order that any part of such statement, if duly proved, may be used to contradict such witness in the manner provided by Section 145 of the Indian Evidence Act, 1872."
"The fact that the accused can use the previous statement for the purpose of contradicting shows that the previous statement cannot be used for corroborating the witness. Also there must be some basis for contradicting. This may arise, because, there being a contrary statement, irreconcilable statement or even material omissions. The accused can establish a contradiction by cross-examining the witness but only so as to bring out a contradiction and no more. We regret we cannot agree (and we say this with profound respect) that the accused is not entitled to cross- examine but only to contradict. In our opinion, the reference to Section 148 of the Indian Evidence Act brings in the whole of the manner and machinery of Section 145 and not merely the second part. In this process, of course, the accused cannot go beyond Section 162 or ignore what the section prohibits but cross-examination to establish a contradiction between one statement and another is certainly permissible.
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50. What Section 145 of the Indian Evidence Act provides is that a witness may be contradicted by a statement reduced into writing and that is also the use to which the earlier statement can be put under Section 162 of the Code of Criminal Procedure. When some omissions occur, there is contradiction in one sense but not necessarily on a relevant matter. The statements of witnesses may and do comprise numerous facts and circumstances, and it happens that when they are asked to narrate their version over again, they omit some and add others. What use can be made of such omissions or additions is for the accused to decide, but it cannot be doubted that some of the omissions or additions may have a vital bearing upon the truth of the story given. We do not think that by enacting Section 162 in the words used, the legislature intended a prohibition of cross-examination to establish which of the two versions is an authentic one of the events as seen by the witness. The use of the words "re-examination" and "cross- examination" in the same proviso shows that cross- examination is contemplated or in other words, that the manner of contradiction under Section 145 of the Indian Evidence Act comprises both cross-examination and contradiction. Indeed, the second part is only the final stage of the contradiction, which includes the earlier stages. Re-examination is only permissible where there is cross-examination."
(Emphasis supplied)
33. On perusal of the above said rulings of the Hon'ble Apex Court, it is clear that the purpose of contradicting a witness is only to contradict and attack the veracity of a witness. The duty of the Court is to find out if a witness, who had made a contradictory statement earlier is telling the truth before the Court or whether he is a trustworthy witness. However, it should be borne in mind that it is not the duty of the Court to find out whether the
-49- Crl.A.1402/2012 C/W Crl.A.Nos.52/2013 & 108/2013 previous statement made by the witness was true or not. Where the previous statement and the evidence before the Court are so inconsistent and irreconcilable with each other that both of them cannot co-exist, therefore, it can be said that the previous statement contradicts the witness with the evidence given by him before the Court.
34. Section 145 of the Indian Evidence Act makes it further abundantly clear as to how the said statement can be used by the courts. If the previous statement and the evidence of the witnesses are intended to contradict the witness, it can only be used for the purpose of contradicting him and not for any other purpose. This in fact clearly indicates that, such previous statement though marked as an exhibit cannot be used as a substantive piece of evidence in view of the bar under proviso to Section 162 of Cr.P.C. Though the duly proved statement is admissible in evidence that can only be used for contradicting, discrediting or testing the veracity or for impeaching the witness, but should not be used as substantive piece of evidence. Therefore, it is clear that the proved statement
-50- Crl.A.1402/2012 C/W Crl.A.Nos.52/2013 & 108/2013 only shows before the Court that the witness has stated or made such statement before the police, if he admits the same. Then it becomes the duty of the prosecutor to drill the witness to elicit the truth by cross examining the witnesses. The prosecution has to prove which version of the witness is a true version. If the contradicted statement is denied, that portion itself will not become the substantive piece of evidence before the Court but it only clarifies that this witness has stated before police as per such contradicted portion, but at any stretch of imagination, such portion cannot be taken as the evidence of the witnesses before the Court, but, it remains as a statement made before police. Therefore, it is wisely said that it can only be used for contradicting, discrediting or for testing the veracity and for impeaching the said witness and that said portion cannot be used as substantive evidence.
35. Section 155 of the Indian Evidence Act also as quoted above clears the doubt that the contradicted portion in the statement and evidence can also be used either by the prosecution or by the defence for the purpose of
-51- Crl.A.1402/2012 C/W Crl.A.Nos.52/2013 & 108/2013 impeaching the credit of witness. The words "impeaching the credit", themselves disclose that such witness cannot be relied if he is not corroborated by other material evidence on record. This legal ground norm also goes without saying that the contradicted portion, even cannot be used for the purpose of corroborating the other evidence on record.
36. From the above discussion, it can be further simplified that, apart from the contradicted portion, if the other portion of the evidence given by the witness is corroborated and trustworthy for acceptance, then the Court has to examine whether such portion which is not contradicted can be relied upon by the Court and that portion can be used for the purpose of corroborating the other materials on record.
37. The Hon'ble Apex Court in a decision already quoted and reported in (2016) 3 SCC 108 has observed at paragraph 20 as follows: -
"Even in a criminal prosecution when a witness is cross examined, by the party calling him, his evidence cannot, as a matter of law, be treated as washed off from the record altogether. It is for the Judge of fact to consider in each case whether as a result of such cross -examination and contradiction, the witness stands thoroughly discredited or can still be
-52- Crl.A.1402/2012 C/W Crl.A.Nos.52/2013 & 108/2013 believed in regard to a part of his testimony. If the Judge finds that in the process, the credit of the witness has not been completely shaken, he may, after reading and considering the evidence of the witness, as a whole, with due caution and care, accept, in the light of the other evidence on the record, that part of his testimony which he finds to be creditworthy and act upon it. If in a given case, the whole of the testimony of the witness is impugned, and in the process, the witness stands squarely and totally discredited, the Judge should, as a matter of prudence, discard his evidence in Toto."
38. With the assistance of the above said decision, we may also say that the contradictions and omissions assume importance for the purpose of not only contradicting the witness but also to test the veracity of the witness. It is also to be borne in mind that, another equally important object of cross examination is to bring it to the notice of the witness as to what he has stated before police, before the court and where exactly he has deviated from his earlier statement, before the Court and further the portion of the evidence which he improvised during the course of evidence which amounts to omission. While doing this exercise, the witness gets an opportunity to explain the inconsistencies in his evidence and on understanding the differences or inconsistencies; he may give proper explanation to the Court in order to appreciate his evidence
-53- Crl.A.1402/2012 C/W Crl.A.Nos.52/2013 & 108/2013 in proper perspective. He may revert back and say that, whatever he has stated before police in his earlier statement may be the true version of the case. If there is any departure from his prior statement, if he gives explanation as to why he is departing from the previous statement and what exactly is the truth of the factual aspects in the case, then also the Court can appreciate such witness whether really the witness is telling the truth before the Court or his evidence can to be out rightly rejected or can partly rejected and partly accepted. Therefore, it clearly goes to show that the above said exercise would definitely show, if there is the witnes needs the refreshing of his memory, he would be cautioned and guarded by confronting his earlier statement and the evidence deposed before the Court or any improvement made by him before the Court compared to his earlier statement. This also enables the Court to take appropriate action against the witness if the witness deliberately deposes falsehood as against the truth before the Court. If both the truth and falsehood deposed by the witness, is available to the Court in his same deposition, then the Court can also pass
-54- Crl.A.1402/2012 C/W Crl.A.Nos.52/2013 & 108/2013 appropriate orders for initiation of proceedings against such witness for giving false evidence before the Court.
39. ROLE OF THE PROSECUTORS:
The prosecutors also play a dominant role and have onerous responsibility, when the witnesses, particularly material witnesses, which we consider to be the backbones of the prosecution case turn hostile to the case of the prosecution. If they turn hostile to the prosecution and if any contradictions and omissions are elicited during the course of cross examination of those witnesses, it is the duty of the prosecutors to effectively and meticulously cross examine the witnesses in order to ascertain why actually the said witnesses have turned hostile to the prosecution and what exactly, the reason for the witnesses to depose against the prosecution. As we have said, even if the witness accepts that he has stated before the police some facts in his earlier statement, that itself will not become a substantive evidence unless the same is proved to be the truth. Otherwise it will be a mere statement before police.
Therefore, in order to bring out the truth before the Court,
-55- Crl.A.1402/2012 C/W Crl.A.Nos.52/2013 & 108/2013 the prosecutors have to bear in mind the above said principles laid down by the Hon'ble Apex Court as well as by this Court in this judgment and they have to take care of the prosecution case in order to bring out the truth before the Court. If really the witnesses deliberately turn hostile for various reasons, those reasons have to be brought out in the cross examination so as to enable the Court to take appropriate action against such witnesses for perjury or for giving false evidence before the Court. Often we come across in certain cases; the prosecutors have mechanically acted upon by only eliciting contradictions and suggesting the whole case of the prosecution to the witnesses and taking denials. Except this, nothing more effectively done by the Public Prosecutors. Therefore, we trust and hope that the prosecutors would do their duty in a proper, effective and efficient manner whenever they have to cross examine the material prosecution witnesses.
40. Contradictions and omissions which are minor and not affecting the core of the prosecution case deserve to be ignored. However material contradictions or
-56- Crl.A.1402/2012 C/W Crl.A.Nos.52/2013 & 108/2013 omissions are necessarily considered so as to ascertain whether they create a serious doubt regarding the genesis of the prosecution or existence of a fact in issue or a relevant fact, or the trustworthiness of a witness with reference to a fact in issue or a relevant fact.
41. Having discussed in the above manner with regard to the omissions and contradictions, now we will resort to the facts of this particular case. The trial Court has in fact relied upon the contradicted portions of PWs.1 to 4 and 9 (which are denied) and the trial Court has lost sight of the legal proposition that the said contradictory portions cannot be used as substantive evidence before the Court. Of course, the trial Court has also relied upon some of the decisions already quoted. But in view of the constitution bench decision of the Hon'ble Apex Court earlier in the year 1959 in Tahsildar Singh's case, has laid down the law with regard to contradictions and how they have to be proved and appreciated. Further, in the decision rendered in the year 2016, the same principles laid down in Tahsildar Singh's case have been re-iterated. Therefore, the law
-57- Crl.A.1402/2012 C/W Crl.A.Nos.52/2013 & 108/2013 which has been laid down by the Constitution Bench has been consistently followed even to this day. Accordingly, contradictions and material and significant omissions cannot be used as a substantive evidence but only for contradicting and ascertaining the veracity of the witness. Therefore, we are of the opinion that the trial Court has committed a serious error in relying upon such portion of the evidence of PWs.1 to 4 and 9, who are the alleged eye-witnesses and turned totally hostile to the prosecution and created a death knell to the case of the prosecution.
42. The trial Court while appreciating the evidence of these witnesses has also observed that in the statement of the witnesses before the police which are the contradicted portions (denied) before the Court, the witnesses have admitted the case of the prosecution. The trial Court believed that as a gospel truth of the case. The said observation of the trial Court is not based on sound legal principles. Further, the trial Court has also made an observation that the witnesses once have stated that, some 15 persons had gathered there and assaulted and
-58- Crl.A.1402/2012 C/W Crl.A.Nos.52/2013 & 108/2013 when they say that the accused who are before the Court are not the persons who are the assailants, they are suppressing the material before the Court and that, they could have stated who actually assaulted them. Therefore, the Court has drawn inference that the witnesses must have been threatened by the accused persons to turn hostile and not to give any evidence against them. This observation of the trial Court is wholly untenable and the same is not supported by any evidence on record. None of the witnesses have admitted anywhere that there was any threat by the accused persons. More over it should be borne in mind that these witnesses have never stated the names or the physical features of any of the accused persons at the first instance when Ex.P-1 emanated in the hospital. Further, in their earlier statements also, they never disclosed the names of any of the accused persons. It is seen from the records that after arrest of the accused persons, the police have recorded the names of the accused persons, by recording further statements of the witnesses.
-59- Crl.A.1402/2012 C/W Crl.A.Nos.52/2013 & 108/2013
43. Considering the above said factual aspects as well as the evidence of the eye-witnesses, in our opinion, there is absolutely no legal evidence available against the accused persons. The courts should not on the basis of conjectures and surmises draw any inferences against the accused persons in the absence of legal evidence. The legal evidence is the harbinger in a criminal case, moral convictions or acquittals at no point of time in our criminal jurisprudence are recognized. For all the above said reasons, we are of the opinion that, the judgment of the trial Court suffers from serious incurable defects and the prosecution in fact has not at all proved the case against the accused beyond reasonable doubt. Hence, these appellants are also entitled for the same benefit which was extended to other accused persons who are acquitted.
44. For the above said reasons, we are of the opinion, that the judgment of conviction and sentence passed by the learned Sessions Judge against the appellants deserves to be set aside. Hence, we proceed to pass the following:
-60- Crl.A.1402/2012 C/W
Crl.A.Nos.52/2013 & 108/2013
ORDER
Criminal Appeal No.1402/2012 filed by A-19, Criminal Appeal No.52/2013 filed by A-2, A-3, A4, A5, A-6, A-9, A- 10, and A-16 and Criminal Appeal No.108/2013 filed by A-1, A-12 and A-18 in SC No.114/2008 dated 5.12.2012 on the file of the Addl. Sessions Judge, Mandya, are hereby allowed. Consequently, the appellants are acquitted of the charges leveled against them for the offences punishable under Sections 143, 147, 148, 341, 307, 302 read with Section 149 of IPC, and also under Section 27 of the Indian Arms Act.
The appellants/accused shall be released forthwith if they are not required in any other case. If they have deposited any fine amount, the same shall be refunded.
Sd/-
JUDGE Sd/-
JUDGE PL