Bangalore District Court
State By K.P. Agrahara vs Vijay Kumar on 2 July, 2022
IN THE COURT OF THE 30TH ADDL.CHIEF
METROPOLITAN MAGISTRATE, BENGALURU
Dated: This the 2nd day of July, 2022
:Present: Sri. I.P.Naik, B.A., LL.B.(Spl),
30th ACMM, Bengaluru
Judgment U/s.355 of Cr.P.C.
C.C.No. 1601/2018
Date of Offence 29.05.2017
Complainant State by K.P. Agrahara, Police
Station.
V/s.
Accused
1- Vijay Kumar,
S/o.Shekar,
Aged about 30 years,
R/at. No.29, Near
SM School, 3rd Cross,
Magadi Road,
Bengaluru City.
2-Jyothi,
S/o.Shekar,
Aged about 53 years,
R/at. No.29, Near
SM School, 3rd Cross,
Magadi Road,
Bengaluru City.
2 C.C.No.1601/2018
3- Shekar,
S/o.Armugam,
Aged about 60 years,
R/at. No.29, Near
SM School, 3rd Cross,
Magadi Road,
Bengaluru City.
Offences U/s.498-A r/w. 34 of IPC and
U/s. 3 & 4 of the DP Act.
Plea Recorded on 16.4.2018 and
accused persons Pleaded not
guilty.
313 Statement recorded On 7.5.2022
on:
Final Oder Accused No.1 to 3 are
Convicted
Date of Order 02-07-2022
*****
JUDGMENT
The PSI of K.P. Agrahara, Police Station has filed charge sheet against accused persons for the offences punishable U/s.498-A r/w. 34 of IPC and U/s. 3 & 4 of the DP Act.
2. The brief facts of the prosecution case are as follows:
3 C.C.No.1601/2018It is alleged that, on 29.5.2017, CW1-Smt. Kavitha married with accused No.1 at Muniwamappa Kalyana Mantapa situated at 6th Cross, Magadi Road, within the territorial limits of K.P Agrahara Police Station. At the time of marriage mother of the CW1 had given 8 gms of golden chain, 8 gms of bracelet, 4 gms of golden ring, as dowry and Rs.10,000/- to the accused No.1 for purchase of clothes.
After marriage CW1 went to house of accused No.1 situated at 5 th Cross, Magadi Road, Bengaluru. CW1 Smt. Kavitha lead happy matrimonial life with accused for few days only. Thereafter, in furtherance of the common intention, accused started demand of additional dowry in form of 100gms of golden ornaments and Rs.6/-
Lakhs cash for marriage expenses. Finally CW2 to 4 went to the house of the accused and advised them not to give any harassment or subject the CW1 for cruelty. Inspite of that, on 4.10.2017 at bout 9.30am accused have voluntarily assaulted on her with hands regarding to bring additional dowry and put her out of the matrimonial house. Hence, accused are charge sheeted.
4 C.C.No.1601/20183. In this regard, Smt.Kavitha lodged complaint before the CW9-PSI-Shivakumaraiah. Based on that Shivakumariah registered case against the accused persons, in Cr.No.176/2019 and forwarded the FIR to this court. On the same day, he has rushed to the spot and conducted SO Mahazar in the presence of CW7-Syed Yousuf and CW8-Harish in the alleged spot of incident. On the same day, IO has interrogated the CW2 to CW6 and recorded their statement U/s.161 of Cr.P.C. On 18.11.2017 CW10 Police inspector took up case for further investigation on same day, accused have appeared before him with anticipatory bail order. IO arrested and interrogated them. Thereafter, he has released on bail. After completing other formalities, IO filed charge sheet against the accused No.1 to 3.
4. In the course of investigation, accused No.1 to 3 have voluntarily appeared before this court with anticipatory bail order and got enlarged on regular bail. As per the order dated 5.1.2018 this court taken cognizance. By considering the charge sheet and 5 C.C.No.1601/2018 other materials and ordered for register the case against accused No.1 to 3 in Register-III and issued summons to accused. Accused No.1 to 3 appeared through their counsel. A copy of charge sheet and other material supplied to them.
5. On the next date of hearing, on 16.4.2018, charge is framed, contents of charge have been read over and explained to the accused persons in the language known to them, they pleaded not guilty and claimed to be tried, hence, the prosecution is called upon to prove its case. In the course of trial summons issued against the CW1 was not served due to she died on 28.4.2018. In this case, CW1/first informant/victim by name Kavitha dead before commencement of trial.
6. In order to prove the guilt of the accused persons, prosecution has examined 6 witnesses as PW1 to PW6 and 3 documents are got marked as Ex.P.1 to P.3. In order to secure CW2, 7 & 8, this court issued Summons, NBW and Proclamation.
But the concerned police failed to secure these witnesses. Finally 6 C.C.No.1601/2018 this court opined that there is no meaning in reissuing of Summons, NBW and Proclamation. Accordingly, prayer of learned Sr.APP is rejected and CW2, 7 & 8 are dropped and posted for examination of accused persons U/s.313 of Cr.P.C.
8. While accused No.1 to 3 are examined u/S.313 of Cr.P.C., they have denied the incriminating evidence of the prosecution case and not chosen to lead their side evidence. No documents are got marked on their behalf.
9. Heard both the side and perused the material evidence on record.
10. The following points would arise for my consideration:
1. Whether the prosecution proves beyond reasonable doubt that, on 29.5.2017, CW1-Smt. Kavitha married with accused No.1 at Muniwamappa kalyana mantapa situated at 6th Cross, Magadi Road, within the territorial limits of K.P Agrahara Police Station. At the time of marriage 7 C.C.No.1601/2018 mother of the CW1 had given 8 gms of golden chain, 8 gms of bracelet, 4 gms of golden ring, as dowry and Rs.10,000/- to the accused No.1 for purchase of of clothes. After marriage CW1 went to house of accused No.1 situated at 5th Cross, Magadi Road, Bengaluru. CW1 Smt.Kavitha lead happy matrimonial life with accused for few days only.
Thereafter, in furtherance of the common intention, accused started demand of additional dowry in form of 100gms of golden ornaments and Rs.6/- Lakhs cash for marriage expenses, harassed CW1 physically and mentally and thereby committed an offence punishable U/s.498-A r/w. 34 of IPC., within my cognizance. ?
2. Whether the prosecution proves beyond reasonable doubt that, on the above said date, time, accused persons in furtherance of the common object, assaulted CW1 with hands regarding to bring additional dowry and put her out of the matrimonial house 8 C.C.No.1601/2018 and thereby accused committed the offence punishable U/s.3 & 4 of the DP Act, within my cognizance. ?
3. What order.?
12. My findings on the above points are as follows:
Point No.1 : IN THE AFFIRMATIVE
Point No.2 : IN THE AFFIRMATIVE
Point No.3 : As per final order
......................... for the following.., REASONS
13. Point No.1 and 2:- In this case the learned Sr.APP urged that, CW1 who is complainant and victim of this case, she is no more, other witnesses have supported the prosecution case. The prosecution proved the guilt of the accused persons. Based on hear say evidence, there is no scope for 2nd view. Under these circumstances, he prays to convict the accused in accordance with law.
9 C.C.No.1601/201814. As against this, the learned counsel for the accused urged his defence based on the following ground:-
I. In this case Investigation officer not followed the guidelines issued by the Hon'ble Apex Court in Arnesh Kumar Vs. State of Bihar:-
"All the State Governments is to ensure that police officers no to automatically arrest when a case under Section 498-A of the IPC is registered but to satisfy themselves about the necessity for arrest under the parameters laid down above flowing from Section 41, Cr.P.C.;"
II. Before registration of this case, IO has not conducted preliminary inquiry for the purpose of ascertaining the truth.
III. In this case, Ex.P.1 drafted and preferred by the Police only, it is not preferred and drafted by the deceased CW1, she is only signatory to said document.
IV. the mother of the CW1 was not able to pay such huge golden ornaments and cash as made in the allegations in Ex.P.1.(FIS) V. In this case, evidence of the victim is not available it is fatal to the prosecution case. The prosecution relied on only hear 10 C.C.No.1601/2018 say evidence to prove the guilt of the accused persons. But that hear say evidence is not substantive evidence without corroboration.
15. The prosecution launched false case against the accused persons. Hence, prays to acquit the accused persons from the alleged offence.
16. Before annalysing the merits of the case. I have relied on the Judgment of Hon'ble Apex Court rendered in Arnesh Kumar's Case (supra) and also Judgement of Hon'ble Supreme Court of India in Lalitha Kumari Vs. State of U.P reported in [(2014) 2 SCC 1], wherein their lordship held that, before registration of the criminal case in matrimonial dispute to hold preliminary inquiry fro ascertaining the truth. In this case, during cross-examination PW/IO the learned counsel for the accused specifically put suggestions regarding preliminary the inquiry conducted before registration of this case. But without denying this suggestions, PW1, he has registered the case, thereafter, went to the spot, it discloses that, IO has not conducted the preliminary inquiry.
11 C.C.No.1601/201817. Further, I have relied on the Judgment of Apex Court in State of Telangana Vs. Mamaji Pete Reddy in (Cr.A.No.1662/2019 dated 6.12.2019). In this case, their lordship held that, if investigation officer failed to conduct the preliminary inquiry to ascertain truth of the facts of the case, court has to ascertain truth.
18. Further, in Arnesh Kumar's case (supra) their lordship held that, there is no automatic arrest of the accused persons who have facing an alleged to have committed offence punishable U/s.498-A. Further, I have relied on the following decision of Hon'ble Supreme Court;
AIR 2018 Supreme Court 4273 Social Action Forum for Manav Adhikar & Anr Vs Union of India Para 1; Law, especially the criminal law, intends to control, if not altogether remove, the malady that gets into the spine of the society and gradually corrodes the marrows of the vertebrae of a large section of the society. A situation arise and the legislature, expressing its concern and responsibility, adds a new penal provision with the intention to achieve the requisite result. When a sensitive legal provision is brought into the statute book, the victims of the crime feel adequately safe, and if the said provision pertains to matrimonial sphere, both the parties, namely, wife and husband or any one from the side of the husband is booked for the offence and both the sides play 12 C.C.No.1601/2018 the victim card. The accused persons, while asserting as victims, exposit grave concern and the situation of harassment is built with enormous anxiety and accentuated vigour. It is propounded in a court of law that the penal provision is abused to an unimaginable extent, for in a cruel, ruthless and totally revengeful manner, the young, old and relatives residing at distant places having no involvement with the incident, if any, are roped in. Thus, the abuse of the penal provision has vertically risen. When the implementation of law is abused by the law enforcing agency, the legislature introduces a protective provision as regards arrest. Needless to say, the courts have ample power to grant pre-arrest bail or popularly called anticipatory bail and even to quash the criminal proceeding totally to stabilize the lawful balance because no court of law remotely conceives of a war between the two sexes. The courts remain constantly alive to the situation that though no war takes place, yet neither anger nor vendetta of the aggrieved section should take an advantage of the legal provision and harass the other side with influence or espousing the principle of sympathy. The role of the law enforcing agency or the prosecuting agency is sometimes coloured with superlative empathy being totally oblivious of the sensation to make maladroit efforts to compete with the game of super sensitivity. Such a situation brings in a social disaster that has the potentiality to vertically divide the society. The sense of sensitivity and the study of social phenomenon are required to be understood with objectivity. In such a situation, it is obligatory on the part of the legislature to bring in protective adjective law and the duty of the constitutional courts to perceive and scrutinize the protective measure so that the social menace is curbed. We are, in the instant matters, focussing on Section 498-A of the Indian Penal Code, 1860 (for short, „the IPC‟).
27. Again, the Court in Joginder Kumar Vs State of U.P [(1994) 4 SCC 260], while voicing its concern regarding complaints of human rights pre and after arrest, observed thus:-
"9. A realistic approach should be made in this direction. The law of arrest is one of balancing individual rights, liberties and privileges, on the one hand, and individual duties, obligations and responsibilities on the other; of weighing and balancing the rights, liberties and privileges of the single individual and those of individuals collectively; of simply deciding what is wanted and where to put the weight and the emphasis; of deciding which comes first--the criminal or society, the law violator or the law abider...."13 C.C.No.1601/2018
28. In D.K. Basu v. State of W.B., after referring to the authorities in Joginder Kumar (supra), Nilabati Behera v. State of Orissa and others and State of M.P. v. Shyamsunder Trivedi and others, the Court laid down certain guidelines and we think it appropriate to reproduce the same:-
"(1) The police personnel carrying out the arrest and handling the interrogation of the arrestee should bear accurate, visible and clear identification and name tags with their designations. The particulars of all such police personnel who handle interrogation of the arrestee must be recorded in a register.
(2) That the police officer carrying out the arrest of the arrestee shall prepare a memo of arrest at the time of arrest and such memo shall be attested by at least one witness, who may either be a member of the family of the arrestee or a respectable person of the locality from where the arrest is made. It shall also be countersigned by the arrestee and shall contain the time and date of arrest.
(3) A person who has been arrested or detained and is being held in custody in a police station or interrogation centre or other lock-up, shall be entitled to have one friend or relative or other person known to him or having interest in his welfare being informed, as soon as practicable, that he has been arrested and is being detained at the particular place, unless the attesting witness of the memo of arrest is himself such a friend or a relative of the arrestee.
(4) The time, place of arrest and venue of custody of an arrestee must be notified by the police where the next friend or relative of the arrestee lives outside the district or town through the Legal Aid Organisation in the District and the (1997) 1 SCC 416 (1993) 2 SCC 746 (1995) 4 SCC 262 police station of the area concerned telegraphically within a period of 8 to 12 hours after the arrest.
(5) The person arrested must be made aware of this right to have someone informed of his arrest or detention as soon as he is put under arrest or is detained.
(6) An entry must be made in the diary at the place of detention regarding the arrest of the person which shall also disclose the name of the next friend of the person who has been informed of the arrest and the names and particulars of the police officials in whose custody the arrestee is. (7) The arrestee should, where he so requests, be also examined at the time of his arrest and major and minor injuries, if any, present on his/her body, must be recorded at that time. The "Inspection Memo" must be signed both by the arrestee and the police officer effecting the arrest and its copy provided to the arrestee.14 C.C.No.1601/2018
(8) The arrestee should be subjected to medical examination by a trained doctor every 48 hours during his detention in custody by a doctor on the panel of approved doctors appointed by Director, Health Services of the State or Union Territory concerned. Director, Health Services should prepare such a panel for all tehsils and districts as well. (9) Copies of all the documents including the memo of arrest, referred to above, should be sent to the Illaqa Magistrate for his record. (10) The arrestee may be permitted to meet his lawyer during interrogation, though not throughout the interrogation. (11) A police control room should be provided at all district and State headquarters, where information regarding the arrest and the place of custody of the arrestee shall be communicated by the officer causing the arrest, within 12 hours of effecting the arrest and at the police control room it should be displayed on a conspicuous notice board."
15. On the aforesaid bedrock, a prayer in Writ Petition (Civil) No. 73 of 2015 has been made to have a uniform policy of registration of FIR, arrest and bail in cases of Section 498-A IPC. It is worthy to note here that during the pendency of this Writ Petition, the judgment had been pronounced in Rajesh Sharma (supra). The Court in Rajesh Sharma (supra) issued the following guidelines:-
"19.i) (a) In every district one or more Family Welfare Committees be constituted by the District Legal Services Authorities preferably comprising of three members. The constitution and working of such committees may be reviewed from time to time and at least once in a year by the District and Sessions Judge of the district who is also the Chairman of the District Legal Services Authority.
(b) The Committees may be constituted out of para legal volunteers/social workers/retired persons/ wives of working officers/other citizens who may be found suitable and willing.
(c) The Committee members will not be called as witnesses.
(d) Every complaint under Section 498A received by the police or the Magistrate be referred to and looked into by such committee. Such committee may have interaction with the parties personally or by means of telephone or any other mode of communication including electronic communication.
(e) Report of such committee be given to the Authority by whom the complaint is referred to it latest within one month from the date of receipt of complaint.15 C.C.No.1601/2018
(f) The committee may give its brief report about the factual aspects and its opinion in the matter.
(g) Till report of the committee is received, no arrest should normally be effected.
(h) The report may be then considered by the Investigating Officer or the Magistrate on its own merit.
(i) Members of the committee may be given such basic minimum training as may be considered necessary by the Legal Services Authority from time to time.
(j) The Members of the committee may be given such honorarium as may be considered viable.
(k) It will be open to the District and Sessions Judge to utilize the cost fund wherever considered necessary and proper.
ii) Complaints under Section 498A and other connected offences may be investigated only by a designated Investigating Officer of the area. Such designations may be made within one month from today. Such designated officer may be required to undergo training for such duration (not less than one week) as may be considered appropriate. The training may be completed within four months from today;
iii) In cases where a settlement is reached, it will be open to the District and Sessions Judge or any other senior Judicial Officer nominated by him in the district to dispose of the proceedings including closing of the criminal case if dispute primarily relates to matrimonial discord;
iv) If a bail application is filed with at least one clear day‟s notice to the Public Prosecutor/complainant, the same may be decided as far as possible on the same day. Recovery of disputed dowry items may not by itself be a ground for denial of bail if maintenance or other rights of wife/minor children can otherwise be protected. Needless to say that in dealing with bail matters, individual roles, prima facie truth of the allegations, requirement of further arrest/ custody and interest of justice must be carefully weighed;
v) In respect of persons ordinarily residing out of India impounding of passports or issuance of Red Corner Notice should not be a routine;
vi) It will be open to the District Judge or a designated senior judicial officer nominated by the District Judge to club all connected cases between the parties arising out of matrimonial disputes so that a holistic view is taken by the Court to whom all such cases are entrusted; and
vii) Personal appearance of all family members and particularly outstation members may not be required and the trial court ought to grant exemption from personal appearance or permit appearance by video conferencing without adversely affecting progress of the trial.16 C.C.No.1601/2018
viii) These directions will not apply to the offences involving tangible physical injuries or death."
38. In the aforesaid analysis, while declaring the directions pertaining to Family Welfare Committee and its constitution by the District Legal Services Authority and the power conferred on the Committee is impermissible. Therefore, we think it appropriate to direct that the investigating officers be careful and be guided by the principles stated in Joginder Kumar (supra), D.K. Basu (supra), Lalita Kumari (supra) and Arnesh Kumar (supra). It will also be appropriate to direct the Director General of Police of each State to ensure that investigating officers who are in charge of investigation of cases of offences under Section 498-A IPC should be imparted rigorous training with regard to the principles stated by this Court relating to arrest.
39. In view of the aforesaid premises, the direction contained in paragraph 19(i) as a whole is not in accord with the statutory framework and the direction issued in paragraph 19(ii) shall be read in conjunction with the direction given here-in-above.
40. Direction No. 19(iii) is modified to the extent that if a settlement is arrived at, the parties can approach the High Court under Section 482 of the Code of Criminal Procedure and the High Court, keeping in view the law laid down in Gian Singh (supra), shall dispose of the same.
41. As far as direction Nos. 19(iv), 19(v) and 19(vi) and 19(vii) are concerned, they shall be governed by what we have stated in paragraph."
19. In this case, investigating agency not arrested the ac sued persons at any point of time. The Investigating agency never tried to arrest the accused perosns, accused themselves got anticipatory bail. In this case, PW4-Police Inspector Manju categorically stated that, on 30.11.2017, accused No.1. to 3 have appeared before him along with anticipatory bail, he has formally 17 C.C.No.1601/2018 arrested them, interrogated and thereafter released them. As per the order to this court on 10.11.2017, accused No.1 to 3 have appeared through their counsel and to enlarged on regular bail. By considering the anticipatory bail order granted by the Hon'ble 44 th Additional City Civil and Sessions Court, Bengaluru City in Cr.No.8365/2017, dated 7.11.2017. So in this case, investigating officer did not conducted preliminary inquiry itself is not fatal to prosecution case. Because, there is no negligence on the part of the investigation agency in arresting of accused persons. In Arnesh Kumar's (supra's )case their lordship have taken care for arrest of the accused persons, in false cases and also avoid registration of the false case. But facts of the present case is totally different.
Further, accused have not challenged registration of FIR and cognizance taken by this court for alleged offence punishable U/s.498-A of IPC.
20. In this case, PW2 Smt.Amuda is mother of the deceased victim by name Smt. Kavitha she categorically deposed that, accused No.1 is her son in law and accused No.2 & 4 are in laws of 18 C.C.No.1601/2018 her daughter. Further she stated that, 10 months back, (PW2 examined on 5.2.2019) her daughter Smt. Kavitha committed suicide due to harassment of accused persons by pouring kerosene on her body and burn herself. Further, she stated that, marriage of her daughter was performed and solemnized with the accused No.1 on 28th and 29th of May at Muniswamappa Kalyana Mantapa at 6 th Cross, K.P Agrahara, within the limits of KP Agrahara Police Station.
21. PW2 further stated that, at the time of marriage she has given Rs.10,000/- cash, 8gms of golden chain, 8 gms of bracelet, 4 gms of golden ring. After marriage deceased CW1 went to her matrimonial house and accused have not looked after her in good manner. Accused have demanded for Rs.6/- Lakhs cash which is marriage expenses and also they have made quarrel with her daughter for the purpose of bringing 100gms of gold. This fact is informed by her daughter. Thereafter, she went the house of the accused persons advised them not to make quarrel with her daughter. Inspite of that, 3 years back, (PW2 examined on 5.2.2019) 19 C.C.No.1601/2018 accused have picked up quarrel with her daughter and have put her daughter to her matrimonial house.
22. PW3 Mohan Kumar who is cousin brother of the deceased Smt. Kavitha categorically stated that, marriage of her cousin sister deceased Smt.Kavitha was performed with accused No.1 on 29.8.2017 at Muniswamappa Kalyana Mantapa before marriage they have given Rs.10,000/- cash, 20 gms of golden to accused No.1 as dowry. After marriage accused insisted for bringing Rs.6/- Lakhs cash and 100 gms of gold. In this regard, accused have harassed the deceased Kavitha. On 4.10.17 at about 9.00am to 9.30am, he received phone call inrespect of making quarrel with deceased Kavitha. Immediately he went to spot at that time, accused have thrown out the CW1 from their house and insisted have bring 100gms gold. In this regard, they have picked up quarrel with deceased Kavitha and have thrown her out of the house. In this regard, they have assaulted on her and on 4.10.2017 at about 9.30pm accused picked up quarrel with CW1 and assaulted on her to bring gold.
20 C.C.No.1601/201823. PW6 Smt. Amudha who is none other than neighbor of PW2. She stated that, the marriage of deceased Kavitha was solemnized with accused No.1 on 29.5.2017. At the time of marriage accused No.1 was given 8 gms of golden chain, 8 gms of golden bracelet, 4 gms of golden ring and Rs.10,000/- cash. After lapse of two to 3 months, accused has picked up quarrel with the deceased Kavitha and harassed her to bring additional dowry. This fact is informed to her by PW2 and deceased Kavitha.
24. In this case the learned counsel for the accused attacked on the prosecution case by relying on the Judgment of Hon'ble Apex Court in Krishna Kouser @ Sonam Vs. State of Bihar, in Cr.A.No.195/2022, dated 08.02.2022. By considering the entire facts of the case, their lordship held that, there is General Omini bus allegations against the in laws. Further, their lordship opined that, there is no prima-facie case made out against the in laws.
Accordingly, their lordship allowed the Appeal and quashed the FIR registered against the in laws.
21 C.C.No.1601/201825. Further, the learned counsel for the accused after posting for clarification on the point of death of the victim before commencement of trial, at that time, the learned counsel relied on the Judgment of Hon'ble High Court of Guwahati rendered in Kushal Kumar Tulaqdar Vs. Chandraprasad Goenka in (2008) Cri.L.J 599. In this case, their lordship held that in some case, when the complainant died his representative can prosecute the case by taking permission from the Magistrate U/s.302 of Cr.P.C, if the case is trial is summons cases. First informant cum injured/victim died before commencement of trial court need not stop the proceedings of warrant cases. It is regular trial. Therefore, I have relied on Judgment of Hon'ble High Court of Assam is as under:-
Crl Appeal No 167/2017 Dtd 12/07/2021 Sri Harekrishna Das Vs State of Assam & Anr
12. Typically in a criminal trial, the statements made by witnesses before the Investigating Officer (IO) recorded under Section 161 CrPC are pressed into service to bring out inconsistencies or contradictions or improvements as the case may be on the part of the defence, to discredit the evidence of the prosecution witnesses. Thus, what a witness had stated before IO recorded under Section 161 22 C.C.No.1601/2018 CrPC or a statement recorded under Section 164 CrPC before the Magistrate is generally compared with what the witness testified before the court to bring out the inconsistencies, contradictions in the evidence.
13. As regards use during the trial, of a statement made by a witness before IO during the investigation under Sections 161, the same is covered by the provisions of Section 162 CrPC read with Section 145 of Evidence Act. Important features of Section 162 CrPC are as follows:
(1) Statement made under Section 161 cannot be used for any purpose, except as provided in Section 162(1).
(2) The only permissible use of such statement is for the purpose of contradicting the witness who made the statement in the manner provided under Section 145 of the Evidence Act.
(3) Once used for contradiction, it can be used for the purpose of re-examination, but only for the purpose of explaining any matter referred to in the cross examination.
(4) Only such part of the statement which directly leads to the discovery of a new fact or evidence is admissible during the trial (videSection27 of the Evidence Act). As regards this aspect, we are not concerned in this case.
14. This brings into picture the provisions of Section 145 of the EvidenceAct,which provides that a witness may be cross-examined astoprevioustatementsmade by him in writing or reduced to writing, and relevant to matters in question, without such writing being shown to him, or being proved; but, if it isintendedtocontradict him by the writing, his attention must, before the writing canbeproved, be called to those parts of it, which are to be used for the purpose of contradicting him.
As we proceed further, it may be noted that Section 145 of the Evidence Act has been in the statute as it is now, though Section 162CrPC had undergone changes from time to time. Thus, Section 145 of the Evidence Act is of general nature applicable to both civil and criminal proceedings and cannot be restricted to the provisions of Section 162 CrPC.
23 C.C.No.1601/2018Section 145 of the Evidence Act contemplates two courses of action as regards use of previousstatementofawitness.
A. Such previous written statement can be used in the cross-examination of the witness. For this purpose, there is no requirement to show the witness such previous statement.
B. However, if such previous statement is to be used for the purpose of contradicting the witness, such portion of the previous statement must be brought to his notice. In other words, such portion must be shown to him before contradicting him.
It is to be noted that what Section 162(2) CrPC provides is for use of the previous statement for the purpose of contradiction only and not for any otherpurpose. Thus, what Section 162 CrPC permits is the use of the secondcourseofaction contemplated under Section 145 of the Evidence Actandnotthefirstcourse of action.
Had the intention of the Legislature been to allow the use of previous statements for any purpose other than contradiction, it would have been madevery clear in Section 162 of CrPC. However, as provided in the provisotosubclause (1) of Section 162 CrPC, the use of a statement recordedunderSection161CrPC is confined only for the purpose of contradictingthewitnessandnothingelse. Sub-section (1) of Section 162 CrPC in categorical terms has prevented the use of such statements for any purpose save as provided therein.
15. In this regard, one may refer to the decision of the Supreme Court in Tahsildar Singh v. State of U.P.(AIR 1959 SC 1012), wherein it was held that, "13.......................................Section 145 of the Evidence Act is in two parts: the first part enables the accused to cross-examine a witness as to previous statement made by him in writing or reduced to writing without such writing being shown to him; the second part deals with a situation where the cross-examination assumes the shape of contradiction: in other words, both parts deal with cross examination; the first part with cross- examination other than by way of contradiction, and the second with cross- examination by way of contradiction only. The procedure prescribed is that, if it is intended to contradict a witness 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. The proviso to Section 162 of the Code of Criminal Procedure only enables the accused to make use of such statement to contradict a witness in the manner provided by Section 145 of the Evidence Act.It would be doing violence to the language of the 24 C.C.No.1601/2018 proviso if the said statement be allowed to be used for the purpose of cross-examining a witness within the meaning of the first part of Section 145 of the Evidence Act. Nor are we impressed by the argument that it would not be possible to invoke the second part of Section 145 of the Evidence Act without putting relevant questions under the first part thereof. The difficulty is more imaginary than real. The second part of Section 145 of the Evidence Act clearly indicates the simple procedure to be followed. To illustrate: A says in the witness box that B stabbed C; before the police he had stated that D stabbed C. His attention can be drawn to that part of the statement made before the police which contradicts his statement in the witness box. If he admits his previous statement, no further proof is necessary; if he does not admit, the practice generally followed is to admit it subject to proof by the police officer. On the other hand, the procedure suggested by the learned counsel may be illustrated thus: If the witness is asked "did you say before the police officer that you saw a gas light?" and he answers "yes", then the statement which does not contain such recital is put to him as contradiction. This procedure involves two fallacies: one is itenables the accused to elicit by a process of cross-examination what the witness stated before the police officer. If a police officer did not make a record of a witness's statement, his entire statement could not be used for any purpose, whereas if a police officer recorded a few sentences, by this process of cross-examination, the witness's oral statement could be brought on record. This procedure, therefore, contravenes the express provisionofSection 162 of the Code. The second fallacy is that by the illustrationgivenby the learned counsel for the appellants there is no self-contradictionofthe primary statement made in the witness box, for the witnesshasyetnotmade on the stand any assertion at all which can serve asthebasis.Thecontradiction, under the section, should be between what a witnessasserted in the witness box and what he stated before the police officer,and not between what he said he had stated before the police officerandwhat he actually made before him. In such a case the question couldnotbe put at all: only questions to contradict can be put and the questionhereposed does not contradict; it leads to an answer which is contradictedbythe police statement. This argument of the learned counsel baseduponSection 145 of the Evidence Act is, therefore, not of any relevanceinconsidering the express provisions of Section 162 of the Code ofCriminalProcedure.(emphasisadded) In that view of the matter, the previous statement of a witness recorded under Section 161 CrPC cannot be used for cross examination under the first part of Section 145 of Evidence Act except for the purpose of contradicting the witness during the cross examination under the second part. How a contradiction has to 25 C.C.No.1601/2018 be brought out, is to be done only in the manner mentioned in the second part of Section 145 of the Evidence Act, which will be discussed at a later stage.
16. An important corelated issue which arises is, whether such previous statement made under Section 161 CrPC could be used for the purpose of impeaching the credibility of the witness, as provided under Section 155 of the Evidence Act.
Section 155 (3) of the Evidence Act provides that the credit of the witness may be impeached by the adverse party, or with the consent of the court, by the party who calls him by proof of former statements inconsistent with any part of his evidence which is liable to be contradicted.
Though Section 155 of the Evidence Act provides for impeaching the credibility of the witness by using the former statement of the witness, since the use of any statement recorded under Section 161 CrPC has been prohibited except for the purpose of contradiction as mentioned above in Section 162 CrPC, such statement recorded under Section 161 CrPC cannot be used for impeaching the credit of the witness except by way of contradiction, as otherwise, the mandate of law in preventing the use of statement recorded under Section 161 CrPC will be defeated. Thus if there be no contradiction, there is no scope for impeachment under Section 155 of the Evidence Act.
Thus, it is very clear that the statement of a witness recorded under Section 161 CrPC cannot be used for any other purpose including for impeachment of the credit of the witness, except for the purpose of contradicting him. Impeachment by way of demonstrating contradictions will be permissible only by taking recourse to Section 145 of the Evidence Act.
17. The law relating to contradiction under proviso to subsection (1) of Section 161 was succinctly put by the Constitution Bench of the Hon‟ble Supreme Court as far back in 1959 in the aforesaid case of Tahsildar Singh v. State of U.P. (supra), wherein it was held that, "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 26 C.C.No.1601/2018 during the investigation from being made use of at the trial for any purpose, and the amendments made from time to 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."
(emphasis added)
18. It would be instructive to note that the Hon‟ble Supreme Court in Tahsildar Singh (supra) also discussed the change in the legislative policy of using such former statement for discrediting the witness by bringing about amendment to section 162 CrPC by an amendment Act 18 of 1923. Section 162 CrPC before the amendment in 1923 stood as follows:
"(1) No statement made by a person to a police officer in the course of an investigation under this Chapter shall, if taken down in writing, be signed by the person making it, no one shall such as rioting be used as evidence:
Provided that, when any witnesses called for the prosecution whose statement has been taken down in writing as aforesaid, the court shall, on the request of the accused, refer to such writing, and may then, if the court thinks expedient in the interests of justice, direct that the accused be furnished with a copy thereof; and such statement may be used to impeach the credit of such witness in the manner provided by the Indian Evidence Act, 1872."
The aforesaid proviso was subsequently amended by Act 18 of 1923 by which, instead of allowing such previous statement to be used for impeaching the credit of the witness, after amendment, such a statement can be used only for the 10 27 C.C.No.1601/2018 purpose of contradicting the witness in the manner provided under section 145 of the Evidence Act. Thus, it is notable that by the aforesaid amendment, only Section 145 of Evidence Act as specifically mentioned, as far as the permissible use of statement recorded under Section 161 CrPC is concerned.
In this regard, it would be notable to reproduce the relevant parts of para10 of the aforesaid judgement in Tahsildar Singh (supra) as follows;
"........................................................Presumably, in view of the aforesaid conflict, to make the legislative intention clear the section was amended by Act 18 of 1923.
Section 162 as amended by the aforesaid Act reads:
"(1) No statement made by any person to a police officer in the course of an investigation under this Chapter shall, if reduced into 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, the court shall, on the request of the accused, refer to such writing and direct that the accused be furnished with a copy thereof, 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. 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:
Provided, further that, if the court is of opinion that any part of any such statement is not relevant to the subject-matter of the inquiry or trial or that its disclosure to the accused is not essential in the interests of justice and is inexpedient in the public interests, it shall record such opinion (but not the reasons therefor) and shall exclude such part from the copy of the statement furnished to the accused."
Sub-section (1) of the substituted section attempted to steer clear of the aforesaid conflicts and avoid other difficulties by the following ways: (a) Prohibited the use, of the statement, both oral and that reduced into writing, from being used for any purpose at any inquiry or trial in respect of any offence under investigation; (b) while the earlier section enabled the accused to make use of it to impeach the credit of a witness in the manner provided by the Indian Evidence Act, 1872, the new section enabled him 28 C.C.No.1601/2018 only to use it to contradict the witness in the manner provided by Section 145 of the said Act; (c) the said statement could also be used for the purpose of only explaining any matter referred to in his cross-examination; and (d) while under the old section a discretion vas vested in the court in the matter of furnishing the accused with a copy of an earlier statement of a prosecution witness, under the amended section, subject to the second proviso, a duty was cast upon the court, if a request was made to it by the accused, to direct that the accused be furnished with a copy thereof. The effect of the amendment was that the loopholes which enabled the use of the statement made before the police in a trial were plugged and the only exception made was to enable the accused to use the statement of a witness reduced into writing for a limited purpose, namely, in the manner provided by Section 145 of the Indian Evidence Act, 1872, and the prosecution only for explaining the matter referred to in his cross- examination. The scope of the limited use also was clarified. Under the old section the statement was permitted to be used to impeach the credit of a witness in the manner provided by the Indian Evidence Act; under the said Act, the credit of a witness could be impeached either under Section 145 or under Section 155(3). While the former section enables a witness to be cross-examined as to a previous statement made by him in writing without such writing being shown to him, the latter section permits the discrediting of the witness by proof of his previous statement by independent evidence. If a statement in writing could be used to discredit a witness in the manner provided by those two sections, the purpose of the legislature would be defeated. Presumably in realisation of this unexpected consequence, the legislature in the amendment made it clear that the said statement can only be used to contradict a witness in the manner provided by Section 145 of the Evidence Act. By Act 2 of 1945, the following sub-section (3) was added to Section 161:
"The police officer may reduce into writing any statement made to him in the course of an examination under this section, and if he does so, he shall make a separate record of the statement of each such person whose statement he records."
.....................................................................................................................
...................................................................................................."
19. Thus, the mandate of law, thus, has been succinctly put in Tahsildar Singh (supra) in the following words:
29 C.C.No.1601/2018"16. The object of the main section as the history of its legislation shows and the decided cases indicate is to impose a general bar against the use of statement made before the police and the enacting clause in clear terms says that no statement made by any person to a police officer or any record thereof, or any part of such statement or record, be used for any purpose. The words are clear and unambiguous. The proviso engrafts an exception on the general prohibition and that is, the said statement in writing may be used to contradict a witness in the manner provided by Section 145 of the Evidence Act. .................."
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."
(emphasisadded)
20. The Hon‟ble Supreme Court further went on to explainthe words "statement in writing" and "to contradict" found in the aforesaid section, by clarifying that statement cannot include which he has not stated. A statement, therefore, is only what had been expressly stated therein and also what is necessarily implied therefrom but not what is not specifically stated. As a corollary, there cannot be contradiction with what had not been stated in the previous statement under Section 161 CrPC with the deposition before the Court except for certain significant omission, as will be discussed below. This is clear from the observations made in para 18 of the aforesaid decision, which is reproduced hereinbelow:
"18. If the provisions of the section are construed in the aforesaid background, much of the difficulty raised disappears. Looking at the express words used in the section, two sets of words stand out prominently which afford the key to the intention of the legislature. They are: "statement in writing", and "to contradict". "Statement" in its dictionary meaning is the act of stating or reciting. Prima facie a statement cannot take in an omission. A statement cannot include that which is not stated. But very often to make a statement sensible or self-consistent, it becomes necessary to imply words which are not actually in the statement. Though something is not expressly stated, it is necessarily implied from what is directly or expressly stated. To illustrate:
„A‟ made a statement previously that he saw „B‟ stabbing „C‟ to death; but before the court he deposed that he saw „B‟ and „D‟ stabbing „C‟ to death: the court can 30 C.C.No.1601/2018 imply the word "only" after „B‟ in the statement before the police. Sometimes a positive statement may have a negative aspect and a negative one a positive aspect. Take an extreme example: if a witness states that a man is dark, it also means that he is not fair. Though the statement made describes positively the colour of a skin, it is implicit in that statement itself that it is not of any other colour. Further, there are occasions when we come across two statements made by the same person at different times and both of them cannot stand or co exist. There is an inherent repugnancy between the two and, therefore, if one is true, the other must be false. On one occasion a person says that when he entered the room, he saw „A‟ shooting „B‟ dead with a gun; on another occasion the same person says that when he entered the room he saw „C‟ stabbing „B‟ dead: both the statements obviously cannot stand together, for, if the first statement is true, the second is false and vice versa. The doctrine of recital by necessary implication, the concept of the negative or the positive aspect of the same recital, and the principle of inherent repugnancy, may in one sense rest on omissions, but, by construction, the said omissions must be deemed to be part of the statement in writing. Such omissions are not really omissions strictly so called and the statement must be deemed to contain them by implication. A statement, therefore, in our view, not only includes what is expressly stated therein, but also what is necessarily implied therefrom.
21. As to what amounts to "contradiction" has been explained in para 19 of the judgment which is reproduced herein below:
"19. "Contradict" according to the Oxford Dictionary means to affirm to the contrary. Section 145 of the Evidence Act indicates the manner in which contradiction is brought out. The cross-examining counsel shall put the part or parts of the statement which affirms the contrary to what is stated in evidence. This indicates that there is something in writing which can be set against another statement made in evidence. If the statement before the police officer - in the sense we have indicated --
and the statement in the evidence before the court are so inconsistent or irreconcilable with each other that both of them cannot coexist, it may be said that one contradicts the other."
In Para 20 it has been made very categorically clear that this contradiction is to be applied to the recorded statement and unrecorded statement is completely excluded in the following words, "20. It is broadly contended that a statement includes all omissions which are material and are such as a witness is expected to say in the normal course. This contention ignores the intention of the legislature expressed in Section 162 of the Code and the nature of the non-evidentiary value of such a statement, except for the limited purpose of contradiction. Unrecorded statement is completely excluded. But recorded one is used for a specified purpose. The record of a statement, however perfunctory, is assumed to give a sufficient guarantee to the correctness of the statement made, but if words not recorded are brought in by some fiction, the object of the section would be defeated. By that process, if a part of a statement is recorded, what was not stated could go in on the sly in the name of contradiction, whereas if the entire statement was not recorded, it would be excluded.
31 C.C.No.1601/2018By doing so, we would be circumventing the section by ignoring the only safeguard imposed by the legislature viz. that the statement should have been recorded."
22. In what manner the contradiction has to be brought out has been explained in para 13 of the aforesaid judgment.
(i) First, the relevant portion of the previous statement which is apparently contradictory to the evidence must be shown to the witness by asking him whether he had made such a statement before the IO.
(ii) If the witness admits it, no further action is required as it would be an admission and the said statement stands proved and can be used to discredit his evidence.
(iii) However, if the witness denies having made it, the portion in the evidence must be brought to his notice so that he can explain the apparent contradiction.
(iv) Thereafter, the said portion of the previous statement must be proved by examining the investigating officer who again by referring to the previous statement has to testify that the witness had indeed made such a statement before him.
(v) By doing so that portion of the previous statement stands "duly proved", in which case, this contradiction can be used against the witness.
23. This procedure to be followed for contradicting a witness under Section 145 of Evidence Act, was explained in Emperor v. Najibuddin2, as follows:
"16. In Labh Singh v. Emperor [AIR 1925 Lah 337 : 88 IC 513 : 26 Cr LJ 1153 : 6 Lah
24.] , a case of dacoity, the defence sought to discredit the evidence of certain prosecution witnesses by showing that during the investigation they had stated that a certain person was present at the dacoity although, as a matter of fact that person was, at the time, in custody. The method adopted was to ask the investigating officer whether the witnesses had named the person in question and then place on the record a copy of statements purporting to be the statements of those witnesses recorded by the officer. The officer did not depose that the statements of which copies were placed on the record were the statements which be recorded. It was held that as there is no presumption as to the genuineness of the statements of witnesses entered in the police diaries they cannot be used to contradict the evidence given in Court unless they are duly proved. The correct application of the law has been fully stated in Gopi Chand v. Emperor [AIR 1930 Lah 491 : 1930 Cr C 603 : 31 Cr LJ 1071 : 126 IC 573 32 C.C.No.1601/2018 : 11 Lah 460.] , as follows:
"The proper procedure would, therefore, be to-ask a witness whether he made such and such a statement before the police officer. If the witness-returns the answer in the affirmative, the previous statement in writing need not be proved, and the cross- examiner, may, if he so chooses, leave it to the party who called the witness to have the discrepancy, if any, explained in the course of reexamination. If, on the other hand, the witness denies having made the previous-statement attributed to him, or states that he does not remember having made any such statement, and it is desired to contradict him by the record of the previous statement, the cross-examiner must readout to the witness the relevant portion or portions of the record which are alleged to be contradictory to his statement in-Court and give him an opportunity to reconcile? the same if he can. It is only when the cross-examiner has done so that the record of the previous statement becomes admissible for the purpose of contradicting the witness and can, then be proved in any manner permitted by law."
24. The Hon‟ble Supreme Court in Tahsildar Singh (supra) also explained the aforesaid procedure in paragraph no. 13 as follows;
"13. The learned counsel's first argument is based upon the words "in the manner provided by Section 145 of the Indian Evidence Act, 1872" found in Section 162 of the Code of Criminal Procedure. Section 145 of the Evidence AIR 1933 Pat 589 Act, it is said, empowers the accused to put all relevant questions to a witness before his attention is called to those parts of the writing with a view to contradict him. In support of this contention reliance is placed upon the judgment of this Court in Shyam Singh v. State of Punjab [(1952) SCR 812]. Bose, J. describes the procedure to be followed to contradict a witness under Section 145 of the Evidence Act thus at p. 819:
Resort to Section 145 would only be necessary if the witness denies that he made the former statement. In that event, it would be necessary to prove that he did, and if the former statement was reduced to writing, then Section 145 requires that his attention must be drawn to these parts which are to be used for contradiction. But that position does not arise when the witness admits the former statement. In such a case all that is necessary is to look to the former statement of which no further proof is necessary because of the admission that it was made."
It is unnecessary to refer to other cases wherein a similar procedure is suggested for putting questions under Section 145 of the Indian Evidence Act, for the said decision of this Court and similar decisions were not considering the procedure in a case where the statement in writing was intended to be used for contradiction under Section 162 of the Code of Criminal Procedure............."
25. The above method of contradicting a witness has been again explained in V.K. Mishra v. State of Uttarakhand3, as follows:
19. 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 that the part of the police 33 C.C.No.1601/2018 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 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 to 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 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 (2015) 9 SCC 588 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."
26. In this regard, it may not be out of place to mention that there was a discussion in Tahsildar Singh (supra) as to whether any omission in a previous statement can amount to contradiction if the matter omitted was which the witness would have been expected to mention. However, this issue may not detain us any longer for the reason that the same has been clarified by the Explanation subsequently inserted in Section 162 CrPC, which provides that any 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.
27. The Hon‟ble Supreme Court, thereafter, summarised the position of law in Tahsildar Singh (supra) as follows:
"25. From the foregoing discussion the following propositions emerge: (1) A statement in writing made by a witness before a police officer in the course of investigation can be used only to contradict his statement in the witness box and for no other purpose; (2) statements not reduced to writing by the police officer cannot be used for contradiction; (3) though a particular statement is not expressly recorded, a statement that can be deemed to be part of that expressly recorded can be used for contradiction, not because it is an omission strictly so-called but because it is deemed to form part of the recorded statement; (4) such a fiction is permissible by construction only in the following three cases: (i) when a recital is necessarily implied from the recital or recitals found in the statement; illustration: in the recorded 34 C.C.No.1601/2018 statement before the police the witness states that he saw A stabbing B at a particular point of time, but in the witness box he says that he saw A and C stabbing B at the same point of time; in the statement before the police the word "only" can be implied i.e. the witness saw A only stabbing B; (ii) a negative aspect of a positive recital in a statement: illustration in the recorded statement before the police the witness says that a dark man stabbed B, but in the witness box he says that a fair man stabbed B; the earlier statement must be deemed to contain the recital not only that the culprit was a dark complexioned man but also that he was not of fair complexion; and (iii) when the statement before the police and that before the court cannot stand together: illustration: the witness says in the recorded statement before the police that A after stabbing B ran away by a northern lane, but in the court he says that immediately after stabbing he ran away towards the southern lane; as he could not have run away immediately after the stabbing i.e. at the same point of time, towards the northern lane as well as towards the southern lane, if one statement is true, the other must necessarily be false."
28. Having discussed that previous statement of the witness recorded under Section 161 CrPC can be used only for the purpose of contradiction in the manner discussed above, a related issue may be also kept in mind.
One of the grounds for assailing the conviction of the appellant is that there were impermissible improvements, embellishments and inconsistencies in the evidence of the main prosecution witnesses qua their previous statement, which would render their evidence unreliable.
In this regard one may note numerous decisions of the courts in which it has been held that where the material improvements and embellishments has been found, evidence of such witness becomes unreliable.
We are of the view that, improvements, embellishments and inconsistencies in the evidence of the witness may be a ground for impeachment of the credibility of the witness, and the legal basis for such consideration is to be found under proviso to sub- section (1) of Section 161 CrPC with reference to section 145 of the Indian Evidence Act as discussed above, and not with reference to any of the other provisions of the Indian Evidence Act. For, as discussed above, the previous statement can be used only for the purpose of contradiction within the meaning of Section 145 of the Indian Evidence Act and not with reference to any other provision of the Evidence Act.
Thus, if there be any case of material improvement or embellishment or inconsistency in the evidence of the witness, it has to be examined on the anvil of proviso to subsection (1) of Section 161 CrPC with reference to Section 145 of the Indian 35 C.C.No.1601/2018 Evidence Act. In other words, such improvement or embellishment or inconsistency should in effect, amount to contradiction. The improvement or embellishment in evidence, has to be understood, as an omission in the previous statement within the meaning of Explanation to Section 162 CrPC.
Hence, any such improvement or embellishment or inconsistency, unless amounts to contradiction, cannot be pleaded to question the credibility of the witness."
26. Admittedly, the victim/first informant not examined and she died before commencement of trial of this case. PW-2 is the mother of the victim who was not having her father. In Indian Society mother of every daughter or son is a best friend or mother is whole world to them, What were good or bad events happened in their life, certainly they can share it to their respective mother.
Especially a newly married women will approach her mother to share and seek her help in the matrimonial life, based on her mother's experience. In case on hand, PW2- mother of deceased Smt.Kavitha is best witnesses to prosecution case.
27. At para No.48 in Kushal Kumar Taqildar's case (supra) their lordship opined that, if a person is injured and himself lodged the complaint, the said injured person died before the commencement of trial, no purpose would be served in continuing 36 C.C.No.1601/2018 the said complaint. If injured person is alive and another eye witnesses was hear say witnesses lodged the complaint if the first informant died and injured person is alive, under such circumstances, trial can be continued against the accused persons.
28. Admittedly, in this case, CW1-Smt.Kavitha is victim and injured and also first informant of the case. She died before commencement of this case. Therefore, as relied on the Hon'ble High Court of Gowahati rendered in Shri Harekrishna Das Vs. State of Assam, in Cr.A.No.167/2007, dated 12.7.2021(supra). In this case, their lordship relied on the Judgment of Hon'ble Supreme Court of India rendered in Tahsildar Singh Vs. State of U.P (AIR 1959 SC 1012) and V.K.Mishr Vs. State of Uttarkand (AIR 2015 SC 3043) regarding contradictions improvements, omission, embellishment
29. By following aforesaid principles and also law laid down by the Hon'ble Supreme Court of India, I have perused and examined oral testimony of PW2 to 6. PW2 Smt. Amudha is very 37 C.C.No.1601/2018 close relative to deceased Smt.Kavitha. The other witnesses are relatives and neighbor of PW2. In this case, the learned counsel for the accused tried to demonstrate in respect of financial in ability of the PW2. At the time of marriage, accused No.1 and deceased Kavitha, her husband was no more. PW2 is working in preparation of incense sticks. Further, she stated that she has given Rs.10,000/- to marriage broker. She has got 3 daughters and out of them deceased Smt. Kavitha, is younger one. But the deceased Smt.Kavitha was also working at garments factory. After marriage of deceased Smt. Kavitha, she used to pay her half salary to her mother and remaining half salary to accused persons. Next suggestion is that, Pw2 never advise to victim/her daughter to go to her matrimonial house. This suggestion is categorically denied by PW2. Further, the learned counsel for the accused denied the examination in chief of PW1 by suggestions. The said suggestions are categorically denied.
30. By considering the allegations made in the Ex.P.1 on prima-facie it is looks like a general omini bus allegations. In this 38 C.C.No.1601/2018 case, accused is not disputing the marriage of the deceased Smt.Kavitha with accused No.1, which was solemnized on 29.5.2017 she has lodged complaint on 12.10.2017, after lodging this complaint(FIS) within 5 months from the date of marriage. The death certificate of deceased Smt.Kavitha, produced disclosed that, she died on 28.4.2018. By considering these three dates, it clearly shows that, Smt. Kavitha died within one year from the date of the marriage. In examination in chief, PW2 categorically stated that, her daughter died 10 months back, she set herself ablaze by pouring kerosene on her body and burning herself. Accused persons did not impeached credibility of PW2.
31. On considering entire ocular testimony of PW2 to 6 it clearly shows that, there is no improvements or inconsistency and embellishment in their ocular evidence. There is no reason to discard the version of the PW2, which is corroborated from hear say witnesses ie., PW2 & 3. Hence, in this case, an ocular evidence of PW2 creates confidence of court. By considering all these aspects, I am of the opinion that, by considering the oral testimony of PW2, 39 C.C.No.1601/2018 this itself is sufficient and it is substantive evidence to hold the guilt of the accused persons, for alleged offences against them. Therefore, it is held that, prosecution successfully proved the guilt of the accused persons beyond reasonable doubt. in respect of the cruelty and demand of dowry. Accordingly, Point No.1 & 2 is answered in the Affirmative.
32. Point No.3: In view of the above findings on the above point No.1 & 2, I proceed to pass the following:-
ORDER In this case prosecution has proved the guilt of the accused for the alleged offence punishable U/s.498-A of IPC & Sec. 3 of DP Act., and the punishment for the said offence is not more than 3 years. Hence, case is posted for hear on sentence and applicability of P.O Act.
(Dictated to the Stenographer and after corrections made by me and then pronounced by me in the Open Court on this the 2st day of July, 2022).
(I.P Naik.) 30 th A.C.M.M., B'lore.40 C.C.No.1601/2018
Hear on sentence:
In this case the learned counsel for the accused submitted that, accused has sought for suspension of the sentence.
I have carefully gone through the entire charge sheet and other records. Due to harassment of the accused No.1to 3 CW1 has lost her life. Hence, it is not proper to extent benefit under P.O Act.
Already Se. 498-A is introduced by way of Amendment Act No.460 of 1983 with effect from 25.5.1983. Inspite of that, the in laws are not obeying the laws, invariably in laws are taking law in their lands. It is high time to alert the society. By considering the nature of the offence, age of accused No.2 & 3 and also its impact on the society, it is just and proper to impose appropriate sentence. Hence, proceed to pass the following....., ORDER The powers conferred upon me U/s.448(2) of Cr.P.C accused No.1 to 3 are convicted for the offence punishable U.s, 498-A r/w. 34 of IPC sentenced to under go S.I for 2 years, and shall pay fine of Rs.5,000/- each. In default of payment of the fine amount, accused No.1 to 3 shall S.I for 30 days.41 C.C.No.1601/2018
Further, by considering the age and health of the accused No.2 & 3, and the responsibility of the accused No.1, it is fit case to award 2 years imprisonment as proper. Accordingly, accused No.1 to 3 is convicted for the offence punishable U/s.3 of the DP Act., and shall undergo S.I for 2 years and pay fine of Rs.15,000/- each. In default of payment of the fine amount, accused shall undergo S.I for 30 days.
Further, accused No.1. to 3 are convicted for the offence punishable U/s.4 of the DP Act and sentenced to pay fine of Rs.2,000/- each, indefault of payment of fine amount, shall undergo S.I for 30 days.
As per Sec.31of Cr.P.C. the aforesaid imprisonment period of accused No.1 to 3 shall run concurrently.
Out of the fine amount, Rs.30,000/- is awarded as compensation infavour of PW2/CW2- Smt. Amuda.
The bail bond of accused persons and surety extended for further 6 months in order to comply Sec.437 (a) of Cr.P.C. Thereafter, this bail bond automatically stands cancelled.
Office is directed to supply free copy of the Judgment to the accused persons.
(I.P Naik.) 30 th A.C.M.M., B'lore.42 C.C.No.1601/2018
ANNEXURE
1. LIST OF THE WITNESS EXAMINED FOR THE PROSECUTION:
P.W.1 : G.Shivakumaraiah
P.W.2 : Smt. Amuda
P.W.3 : Mohan Kumar
P.W.4 : Manju
P.W.5 : Sathish
P.W.6 : Smt. Amuda
2. LIST OF THE DOCUMENTS MARKED FOR THE
PROSECUTION:
Ex.P.1 : FIR
Ex.P.2 : Complaint
Ex.P.3 : Mahazar
3. LIST OF THE WITNESS EXAMINED AND DOCUMENTS
MARKED FOR THE DEFENCE:
NIL
4. LIST OF THE METERIAL OBJECTS MARKED FOR THE
PROSECUTION:
NIL
IP
(I.P.Naik)
NAIK
Digitally signed
30th Addl.C.M.M., B'lore. by I P NAIK
Date:
2022.07.05
15:41:15 +0530
43 C.C.No.1601/2018
Judgment pronounced in Open Court vide separate:-
ORDER In this case prosecution has proved the guilt of the accused for the alleged offence punishable U/s.498-A of IPC & Sec. 3 of DP Act., and the punishment for the said offence is not more than 3 years. Hence, case is posted for hear on sentence and applicability of P.O Act.
(I.P Naik.) 30 th A.C.M.M., B'lore.
Hear on sentence:
In this case the learned counsel for the accused submitted that, accused has sought for suspension of the sentence.
I have carefully gone through the entire charge sheet and other records. Due to harassment of the accused No.1to 3 CW1 has lost her life. Hence, it is not proper to extent benefit under P.O Act.44 C.C.No.1601/2018
Already Se. 498-A is introduced by way of Amendment Act No.460 of 1983 with effect from 25.5.1983. Inspite of that, the in laws are not obeying the laws, invariably in laws are taking law in their lands. It is high time to alert the society. By considering the nature of the offence, age of accused No.2 & 3 and also its impact on the society, it is just and proper to impose appropriate sentence. Hence, proceed to pass the following....., ORDER The powers conferred upon me U/s.448(2) of Cr.P.C accused No.1 to 3 are convicted for the offence punishable U.s, 498-A r/w. 34 of IPC sentenced to under go S.I for 2 years, and shall pay fine of Rs.5,000/- each. In default of payment of the fine amount, accused No.1 to 3 shall S.I for 30 days.
Further, by considering the age and health of the accused No.2 & 3, and the responsibility of the accused No.1, it is fit case to award 2 years imprisonment as proper. Accordingly, accused No.1 to 3 is convicted for the offence punishable U/s.3 of the DP Act., and shall undergo S.I for 2 years and pay fine of Rs.15,000/- each. In default of payment of the fine amount, accused shall undergo S.I for 30 days.
Further, accused No.1. to 3 are convicted for the offence punishable U/s.4 of the DP Act and sentenced to pay fine of 45 C.C.No.1601/2018 Rs.2,000/- each, indefault of payment of fine amount, shall undergo S.I for 30 days.
As per Sec.31 of Cr.P.C. the aforesaid imprisonment period of accused No.1 to 3 shall run concurrently.
Out of the fine amount, Rs.30,000/- is awarded as compensation infavour of PW2/CW2- Smt. Amuda.
The bail bond of accused persons and surety extended for further 6 months in order to comply Sec.437 (a) of Cr.P.C. Thereafter, this bail bond automatically stands cancelled.
Office is directed to supply free copy of the Judgment to the accused persons.
(I.P Naik.) 30 th A.C.M.M., B'lore.46 C.C.No.1601/2018
acquitted of the alleged offences punishable U/s.504, 323, 324, 506 r/w. 149 of IPC.
The bail bond of accused persons and surety extended for further 6 months in order to comply Sec.437 (a) of Cr.P.C. Thereafter, this bail bond automatically stands cancelled.
The prosecution fails to prove the guilt of the accused persons beyond reasonable doubt, hence, granting of compensation of U/s.357 of Cr.P.C. is declined.
(I.P.Naik) 30 th Addl.C.M.M., B'lore.
47 C.C.No.1601/2018