In the given facts and circumstances of this case while an information was already received by police at P.S. and Exbt. 10 G.D. entry was made which was definite about a cognizable offence the subsequent collection of writing ejahar from Bidhu which is proved as Exbt. 1/1 by PW. 9 is clearly hit by Section 162 of CrPC and cannot be regarded as FIR.
This Court on several earlier occasions insisted that the law requires the FIR should be recorded by the police officer himself or by any person under his direction and a police officer should not insist upon an illiterate person to give an FIR in writing written by somebody else.
IN THE HIGH COURT OF TRIPURA AT AGARTALA
Crl. A (J) Nos. 4 and 11 of 2014
Decided On: 05.04.2016
Tukan Sharma and Ors.
Vs.
The State of Tripura
Vs.
The State of Tripura
Coram:Deepak Gupta, C.J. and S.C. Das, J.
Citation: 2016 CRLJ4019
1. Both the appeals are directed against a single judgment and order of conviction and sentence dated 19.12.2013 passed by learned Sessions Judge, North Tripura District, Kailashahar in Sessions Trial Case No. 8(NT/K) 2013, whereunder both the appellants were found guilty of the charges framed against them under Section 448 read with Section 34 of IPC and Section 302 read with Section 34 of IPC and the learned Sessions Judge by the impugned judgment and order sentenced them to suffer R.I. for six months for commission of offence punishable under Section 448 read with Section 34 of IPC and for commission of offence punishable under Section 302 read with Section 34 of IPC to suffer R.I. for life and to pay a fine of ` 5,000/- in default of payment to suffer further R.I. for six months.
2. Heard learned senior counsel, Mr. P.K. Biswas, assisted by learned counsel, Mr. P. Majumder for the appellant, Nani Kanta Das of Crl.A.(J) No. 11 of 2014 and learned counsel, Mr. P. Roy Barman for the appellant, Tukan Sharma of Crl.A.(J) No. 4 of 2014. This common judgment is passed in respect of both the appeals.
3. Prosecution case is that on the intervening night of 12.05.2012 and 13.05.2012 at about 12.30 A.M., the informant Bidhu Bhushan Das (PW. 1) with his other family members were sleeping in his residential hut at village South Chandipur, P.S. Kailashahar and at that time he and his family members woke up hearing alarm raised by some people, "thief thief". Someone knocked on the door of his hut and after lighting a kerosene lamp Bidhu Bhushan Das (hereinafter mentioned as Bidhu) and his wife, Basanti Das (PW. 2) came out of the hut and found the accused appellant, Nani Kanta Das with a dao in one hand and a torchlight in other hand and accused Tukan Sharma with a lathi in hand and they asked Bidhu that the thief entered in his hut but Bidhu denied and then both the accused entered in his residential hut and made a search for the thief but did not found anybody. Thereafter both the accused made a search in his abandoned kitchen hut of Bidhu and found a person alleged to be the thief there and they started inflicting dao and lathi blows on that person inside that abandoned hut to which Bidhu and his wife tried to resist the accused persons but they threatened him and in the meantime many people from the neighbourhood gathered and one Jyotish Das (PW. 3), a co-villager restrained the accused persons from assaulting Bidhu and thereafter the accused persons left the place. It was a dark night. Many people gathered there and they found the person who was assaulted by Nani and Tukan, lying dead in a pool of blood in the abandoned kitchen hut of Bidhu and he was identified as Gopi Mohan Das, a teacher by profession of that village and in the meantime the mother and sister of Gopi Mohan also arrived and identified dead body of Gopi Mohan Das. It is the case of the prosecution that Gopi Mohan died an instantaneous death on the spot itself.
Many people arrived in the house of Bidhu and it is the case of the prosecution that Bidhu and his wife Basanti narrated the occurrence of assault by accused Nani Kanta Das and Tukan Sharma on the deceased Gopi Mohan Das to all those witnesses.
PW. 9 Arup Ratan Das, who arrived at the spot hearing the alarm, over telephone informed Kailashahar P.S. about the occurrence and SI Lakhyabir Jamatia (PW. 22) recorded G.D. Entry No. 551 dated 13.05.2012 at 0145 hrs. in the Kailashahar P.S. on the basis of the telephonic information given by PW. 9 and the copy of that G.D. made by PW. 22 has been proved as Exbt. 10. Immediately thereafter by making G.D. No. 553, SDPO along with other police officers including PW. 23 Nakul Debbarma, SI of Police, went to the spot and at that time as asked by the police PW. 9 Arup Ratan Das wrote an FIR as per statement of Bidhu, addressing Officer In-charge of Kailashahar P.S. which was signed by Bidhu and it was handed over to SI Nirmal Kanti Das of the police party, who arrived there and PW. 23 SI Nakul Debbarma started investigation at the spot. He prepared inquest report over the dead body of Gopi Mohan Das in presence of witnesses. Seized the chappal and umbrella of Gopi Mohan Das from the spot and also seized some bloodstains by preparing seizure list in presence of witnesses. He also examined the materials witnesses on the spot and recorded statements of the informant Bidhu Bhushan Das (PW. 1), Basanti Das (PW. 2), Gopal Das (PW. 6), Sushil Das (PW. 5), Naresh Das (PW. 15) and Ratish Das (PW. 16). He raided the house of the accused persons but found them absconding. He forwarded the dead body for postmortem examination and also forwarded Bidhu Bhushan Das and Basanti Das to the Court of Chief Judicial Magistrate, Kailashahar for recording their statements under Section 164 of CrPC and accordingly their statements were recorded. On 15.05.2012 he recorded statements of Bhanumati Das (PW. 10), (daughter of the informant), Ratna Rani Das (PW. 17), wife of the deceased Gopi Mohan Das and Rajlaxmi Das (PW. 11).
On 16.05.2012 on the basis of secret information he raided Jagannathpur Tea Garden and arrested accused Nani Kanta Das. He produced Nani Kanta to the Court of Chief Judicial Magistrate with a prayer for police custody for interrogation and his prayer was allowed. On his interrogation the accused made a statement that he will be able to recover the weapon of offence i.e. the dao and the accused led the I.O. and PWs 7 and 8 and the dao was recovered by the accused from the house of his elder brother Beni Das from under a cot and handed it over to I.O. and I.O. seized the same which is proved as Exbt. MO. 3. The entire recovery was video-graphed and the C.D. of the video-graph was proved as Exbt. MO. 15. The statement of the accused Nani Kanta as recorded by I.O. was proved as Exbt. 12 and the gist of the statement was also entered in G.D. No. 760 of Kailashahar P.S. and copy of that G.D. has been proved as Exbt. 13. On 17.05.2012 on the basis of secret information he arrested accused Tukan Sharma from Jitur Dighir Par and took him also to police custody by order of the Court and the accused made a statement that he will be able to discover the lathi used at the time of commission of the offence and the statement of the accused recorded by I.O. was proved as Exbt. 14. The accused Tukan also led the I.O. to different places but the lathi could not be recovered. During investigation he also recorded statement of other witnesses under Section 161 of CrPC and thereafter he submitted charge sheet against both the accused for commission of offence punishable under Section 448 read with Section 34 of IPC and Section 302 read with Section 34 of IPC.
4. The accused persons pleaded not guilty while charges were framed against them under Section 448 read with Section 34 and under Section 302 read with Section 34 of IPC.
5. Prosecution examined 23(twenty three) witnesses to prove the charges and also exhibited several documents and materials. The list of witnesses and the exhibited documents and materials have been annexed with the lower Court's judgment in the appendix.
6. After the closure of the prosecution evidence accused persons were examined under Section 313 of CrPC and in their turn they declined to adduce any defence evidence. In their defence they simply pleaded innocence and nothing else.
7. Gopi Mohan Das died a homicidal death on receipt of multiple severe cut injuries on head and other parts of the body is not disputed. The incident occurred in the abandoned kitchen hut in the house of Bidhu on the intervening night of 12.05.2012 and 13.05.2012 at about 12.30 A.M. is also not disputed.
PW. 18 Dr. Tushar Kanti Choudhury conducted postmortem examination over the dead body of Gopi Mohan on 13.05.2012 and he noted the following on examination of the dead body of Gopi Mohan:
(i) One cut injury over the left temporal area measuring 6 inch x 2 inch x 2 inch deep in the brain matter.
(ii) A cut injury over the left elbow 2 inch x 3 inch.
(iii) Another cut injury over the right shoulder 3 inch x 2 inch.
(iv) One cut injury over the middle of back 5 inch x 3 inch x 2 inch.
(v) One cut injury over the left heel including TA tendon 3 inch x 2 inch.
(vi) All the injuries exhibited, showing the evidence of vital reactions.
(vii) Chest area and abdomen area were healthy.
(viii) There was a cut injury at the level of D. 12 including fracture of D. 12 of the spinus process.
(ix) There was a cut injury over the scull meninges and brain over the left temporal area 5 inch long.
He further stated that the death was caused about 8/12 hours before the postmortem examination and in his opinion death was caused due to the effects of the injuries mentioned in the postmortem report which were ante mortem and homicidal in nature. The injuries could be inflicted by Exbt. MO. 3 i.e. the dao which was allegedly recovered by the accused Nani Kanta during investigation.
The above evidence of PW. 18 has not been controverted by the defence. Only one line cross-examination was made that he did not mention in his report the type of weapon used to cause the injuries.
It is therefore clear that Gopi Mohan Das was brutally killed by inflicting severe cut injuries on his person in the abandoned kitchen hut of Bidhu Bhushan.
8. It is un undisputed fact that the deceased Gopi Mohan Das, accused Nani Kanta Das and Tukan Sharma and the material witnesses are all residents of the same village/locality and closely known to each other.
9. According to the prosecution PWs 1, 2 and 10 are the inmates of the house of Bidhu Bhushan and they are eyewitnesses of the occurrence and that their evidence has not been shaken in any manner.
10. It is argued by learned senior counsel, Mr. Biswas and learned counsel, Mr. Roy Barman that PWs 1, 2 and 10 cannot be termed as eyewitnesses of the occurrence since they did not see the actual assault. According to the learned counsel many people gathered in the house of Bidhu at the relevant point of time and so it cannot be said as to who actually inflicted injuries on the person of Gopi Mohan but Nani Kanta and Tukan have been implicated in the case on suspicion and there is no proof that they have committed the offence.
11. It is also submitted by learned counsel, Mr. Biswas and learned counsel, Mr. Roy Barman that Bidhu in the FIR has made a clear statement that after coming out of the hut he found many people gathered in the courtyard saying him that thief has entered in his house but while giving deposition before Court he has suppressed that part of the fact and therefore Bidhu and his wife Basanti and their daughter Bhanumati cannot be believed.
12. Learned Addl. P.P., Mr. Debnath has submitted that a brutal incident of murder occurred in the house of Bidhu at midnight. The FIR was lodged immediately after the occurrence. Bidhu could only put his signature and is not a literate person. The statement made in the FIR itself is not an evidence. Bidhu in his deposition stated nothing that coming out of hut he found many people gathered in the courtyard and that part of the statement was not proved contradicting the witness with his earlier statement made in the FIR and therefore defence argument is baseless. He has also submitted that PWs 1, 2 and 10 made consistent statements about the occurrence and their evidence has not been shaken in any manner.
13. It is an undisputed fact that the incident of murder occurred in the house of Bidhu in the abandoned kitchen hut at midnight. So the inmates of the house are natural witnesses of the occurrence.
14. Let us first see what PWs 1, 2 and 10 stated in their depositions.
PW. 1 Bidhu Bhushan Das in his deposition stated that about a year ago at about 10.30 PM he returned home from local market and after taking dinner he went to sleep. At about 12.00 PM of the night he and his wife heard somebody raising alarm calling "thief thief". He was lighting a kerosene lamp and at that time somebody knocked the door with a request to open the door. He opened the door and found Nani Kanta Das with a dao in one hand and a torchlight in other hand and Tukan Sharma with a lathi in his hand and they entered into his living hut and searched for the intended thief but found nobody. They started searching his house extensively. All on a sudden they found somebody in his abandoned eastern viti hut where he used to keep his rickshaw and stag firewoods, etc. They started beating that person there. It was dark. He and his wife tried to resist them but because of their threat they could not resist. They raised alarm and a few people arrived in his house. When they were threatened by the accused persons, Jotish Das rescued him and his wife. Some more people also arrived and Nani Kanta and Tukan left his house. Thereafter one old lady came there with a lamp and identified the victim Gopi Mohan Das as her son in his abandoned kitchen hut. He also identified victim Gopi Mohan as his co-villager. Dead body of Gopi Mohan was lying inside the deserted hut and he found cut injuries on his head, neck and other parts of the body. Arup Das informed local police and at about 2/2.30 AM police arrived and he lodged the FIR. He proved his signature in the FIR. Dead body was taken to the police station. A pair of chappal and umbrella was seized by the I.O. from the spot. He was produced before the Chief Judicial Magistrate and his statement was recorded.
In his cross-examination he stated that Gopal Das, who is a witness, is his father-in-law by relation and wife of Gopal Das is the elder sister of Gopi Mohan. He stated in his ejahar that he and his wife woke up from sleep and coming out of the hut found a number of people present in the courtyard and they started persuading them to hand over the thief as one thief entered into his hut. He voluntarily stated that he cannot exactly recollect what he stated at that point of time as he was illiterate. The distance between his eastern viti deserted hut and his dwelling hut was about 20/25 cubits. He also stated in his cross-examination that the house of Gopi Mohan was situated at a distance about one and half furlong to the north side of his house. His son Binoy aged about 22 years was not present in the house on that night. He saw the dead body of Gopi Mohan after the accused persons left his house and the mother of Gopi Mohan arrived at his house.
PW. 2 Basanti Das in her deposition stated that about a year ago at midnight she and her husband while taking sleep, heard somebody shouting "thief thief". They took the kerosene lamp and someone knocked her door. They opened the door and found Nani Kanta Das with a dao in one hand and one torchlight in the other hand and Tukan Sharma with a lathi in his hand. They persuaded them that one thief entered into her living hut but she and her husband denied. They (accused persons) searched their living hut and found nobody. Thereafter the accused persons started searching the deserted hut in the eastern viti and all on a sudden started shouting that they have found the thief. Both of them started assaulting the thief. She and her husband tried to resist them but the accused persons were about to assault them. Jotish Das (PW. 3) rescued them from the hands of the accused persons. Thereafter the accused persons left her house. Some village people arrived in their house and she can remember the names of Dulal Das, Asim Sarma, and Atin Sarma. Mother of Gopi Mohan came to their house and with the help of kerosene lamp identified the victim injured as her son Gopi Mohan. She also found the dead body and identified the dead body as of Gopi Mohan. After two days she was produced before the Magistrate and she narrated the incident to the Magistrate.
Except suggestion and denial there is nothing material in her statement.
PW. 10 in her deposition stated that one year ago at a midnight while she was sleeping with her parents, heard somebody shouting "thief thief". Immediately thereafter somebody knocked their door. Her mother lid a kerosene lamp. Her father opened the door. She and her parents found Nani Kanta with a dao in his hand and Tukan with a lathi in his hand and asked her father that one thief has entered into their dwelling hut. They searched for the thief in spite of the fact that the witness and her parents told them (accused persons) that no thief entered into their hut. Thereafter they searched their kitchen hut which had no door and all on a sudden they shouted that the thief was available there and started assaulting the thief by lathi and dao. Her father requested them not to assault but her father was threatened. At that moment Jotish Das arrived there and saved her father from Tukan and Nani Kanta and thereafter Tukan and Nani Kanta left their house. Immediately thereafter Dulal Das, Naresh Das, Asim Sarma came to their house. Mother and sister of the victim came there and identified that it was Gopi Master of their locality. Police came and many villagers also came and police shifted the dead body to the hospital.
In her cross-examination defence suggested that on the night of occurrence she was not there in the house and that she was working at Kanchanbari as a maid servant in her aunt's house but she asserted that she started working at Kanchanbari as a maid servant after the incident and that on the night of the incident she was in the house.
15. A careful reading of the depositions of PWs 1, 2 and 10 makes it abundantly clear that accused Nani Kanta Das armed with a dao and a torchlight in hand and the accused Tukan Sharma armed with a lathi in hand raising cries "thief thief" entered into the house of the witnesses and they knocked the door of living hut of the witnesses. When the witnesses opened the door they entered in the living hut and searched the hut to find out the intended thief but they found none. This part of the statement of witnesses is so cogent, credible and consistent that there is no room at all to doubt it. After search they did not find any thief in the hut. Thereafter they went out and made a search in the house including the abandoned kitchen hut in the eastern viti of the house and the witnesses stated that the accused persons raised voice saying that they got the thief there and they inflicted blows on the thief. It is clear from the deposition of these witnesses that they were in the courtyard in front of the abandoned hut where the supposed thief was assaulted by the accused persons. The witnesses made clear and specific statement that the accused persons inflicted blows on the person of the supposed thief and PWs 1 and 2 tried to resist the accused persons but the accused persons threatened the witnesses. No doubt, it was a dark night and it was well not possible to see as to which of the accused had dealt how many blows, but the witnesses could well perceive with their senses that the accused persons inflicting blows on the supposed thief. Therefore, the argument that PWs 1, 2 and 10 did not see the actual assault cannot be accepted.
It is the definite statement of PWs 1, 2 and 10 that when the accused persons were inflicting blows on the supposed thief PWs 1 and 2 tried to resist the accused persons from assaulting the supposed thief and at that time accused persons threatened to assault PWs 1 and 2 and at that moment Jotish Das (PW. 3) arrived and rescued Bidhu and his wife. That particular statement of PWs 1 and 2 which is supported by PWs 3, 4, 10 and 15 makes it abundantly clear that PWs 1, 2 and 10 are the eyewitnesses of occurrence and they have perceived by senses that the accused persons inflicting blows on the deceased Gopi Mohan. We therefore cannot agree with the submission of learned counsel of the appellants that PWs 1, 2 and 10 did not witness the actual assault on Gopi Mohan.
16. No doubt PW. 1 in his cross-examination stated that he made a statement in the FIR that he and his wife coming out of the hut found number of people present in the courtyard and those people persuading them to hand over the thief and that one thief entered into their hut. But simultaneously he voluntarily stated that he cannot exactly recollect what he stated at that point of time since he was illiterate.
The incident occurred at midnight. It was a village. The accused persons chasing behind Gopi Mohan were raising cries "thief thief" and so it was quite natural for the village people at such midnight to wake up and come out. But there is no evidence that at the time when accused persons entered in the house of Bidhu and made a search in the dwelling hut any other people were present in the courtyard.
The evidence of a witness has to be appreciated in its totality. There cannot be an isolated scrutiny in the absence of any other cogent evidence. PW. 1 did not clearly admit the fact that coming out of the hut they found many people in the courtyard and he voluntarily stated that he cannot exactly recollect what he stated at that point of time since he was illiterate. That part of the statement the defence would prove by referring it to the scribe of the FIR but no such question was put to PW. 9 i.e., the scribe of the FIR. Even if it is accepted that there were some people gathered in the courtyard there is no evidence that any such people entered in the hut, made search for the supposed thief and then entered into the abandoned kitchen hut and killed the supposed thief i.e. the victim Gopi Mohan. Therefore this part of the statement cannot create any doubt in the crux of the prosecution case.
17. PW. 9 is the scribe of the FIR. He proved the Exbt. 1/1. PW. 1 Bidhu Bhushan Das could simply put his signature and he proved his signature as Exbt. 1. It is an admitted position that PW. 23, the I.O. along with SI Mrinal Kanti Das, SDPO and other police staff went to the house of Bidhu after receipt of a telephonic information from PW. 9.
In his deposition PW. 9 clearly stated that he informed police station about the incident over mobile phone and police party arrived and Bidhu Bhusan stated to police that Nani Kanta and Tukan killed Gopi Mohan in the kitchen hut of Bidhu on the allegation of committing theft. He wrote the ejahar on the request of Bidhu Bhusan which was handed over to police.
PW. 22 SI Lakshabir Jamatia in his deposition stated that on 13.05.2012 at about 0145 hrs. he received a telephonic information from Arup Ratan Das (PW. 9) and he entered the information in G.D. vide No. 551. Copy of that G.D. has duly been proved as Exbt. 10. The content of the G.D. reads thus:
"This time received a telephonic information from one Sri Arup Ratan Das of South Chandipur. P.S. KLS that Nani Das and Tukan Sharma committed Murder one Gopi Mohan Das of South Chandipur in the house of one Sri Bidhu Bushan Das but the informant could not gives any details and the informant seeking for police present and help at the spot. The information point made in G.D. vide G.D.E.L. No-551 dtd. 13.05.12 and being duty officer self informed the information point to senior officer for further action. Noted in G.D. for records and ref."
A bare reading of the above G.D. entry makes it abundantly clear that the name and address of the person giving the information over telephone was disclosed. The incident that Nani Kanta and Tukan Sharma committed murder of one Gopi Mohan Das at South Chandipur in the house of Bidhu Bhushan Das was also disclosed. That much is enough to arrive at a conclusion that a cognizable offence was committed. That G.D. entry in the given facts and circumstances of this case is the information first in point of time about a cognizable offence and should be regarded as FIR. A vague and indefinite information which required to be further ascertained cannot be termed as an information first in point of time about a cognizable offence but a definite information which discloses the identity of the informant, the nature of the offence, the time and place of the offence, may well be regarded as an information which may be treated as an FIR.
It is an admitted position that after recording G.D. entry No. 551 i.e. Exbt. 10 police officers including SI Lakshabir Debbarma and SI Mrinal Kanti Das left for the place of occurrence and there though several sub-inspectors of police were present but it appears that they insisted for a written FIR to be submitted by Bidhu and so PW. 9, a villager wrote it and submitted it to I.O.
18. Section 154 of CrPC contemplates that if the information is given orally to the officer in-charge of a police station it shall be reduced to writing by him or under his direction. The informant was an illiterate person. He stated that when the police officers arrived there he told the police officers that accused Nani Kanta and Tukan murdered Gopi Mohan and so it was the duty of the police officers to record the FIR themselves as per the statement of Bidhu but they insisted for an FIR in writing and one can just imagine under that circumstances where a brutal murder occurred in the house of Bidhu he might not be in a position to narrate the occurrence arithmetically. It was obvious that hearing cries many people would gather since the cry was raised saying 'thief thief" whereas the accused persons only chased behind the deceased Gopi Mohan and searched for him and they have only killed the deceased.
In the given facts and circumstances of this case while an information was already received by police at P.S. and Exbt. 10 G.D. entry was made which was definite about a cognizable offence the subsequent collection of writing ejahar from Bidhu which is proved as Exbt. 1/1 by PW. 9 is clearly hit by Section 162 of CrPC and cannot be regarded as FIR.
This Court on several earlier occasions insisted that the law requires the FIR should be recorded by the police officer himself or by any person under his direction and a police officer should not insist upon an illiterate person to give an FIR in writing written by somebody else.
19. It is the case of the prosecution that at the time of assault on Gopi Mohan PWs 1 and 2 tried to resist the accused persons and at that time accused persons threatened to assault Bidhu and his wife and PW. 3 Jotish Das rescued Bidhu and his wife. Learned counsel of the appellants submitted that this statement might be an exaggerated statement made by PW. 3 and it cannot be believed. Learned Addl. P.P. has submitted that the statement of PWs 1 and 2 that the accused persons tried to assault them when they were trying to resist the accused persons has been corroborated by other witnesses who reached the spot immediately after the occurrence and so there is no room to disbelieve the evidence of those witnesses.
20. We have already reproduced hereinbefore the evidence of PWs 1, 2 and 10. They made clear statement that PWs 1 and 2 tried to resist the accused persons from assaulting the supposed thief and at that time accused persons threatened to assault PWs 1 and 2 and PW. 3 Jotish Das resisted the accused persons.
PW. 3 Jotish Das in his deposition stated that entering into the house of Bidhu he found Nani Kanta Das with a dao in hand was about to assault Bidhu and he rescued Bidhu from his hand. He was told by Nani Kanta that one thief had entered into the house of Bidhu. He (witness) pleaded with them not to take law in their hand and at that time Beni Das, brother of Nani Kanta told him that the thief had already been killed. This statement of PW. 3 has not been shaken in cross-examination.
PW. 4 stated that on reaching the house of Bidhu he found Tukan with a lathi in hand and Nani with a dao in hand. They were about to assault Bidhu and Jotish (PW. 3) saved Bidhu. This statement of PW. 4 has also not been shaken in cross-examination.
PW. 15 stated that he rushed to the house of Bidhu with Jotish and Dulal and he was standing on the road and at that time Jotish had some altercation with Nani as Tukan and Nani was about to assault Bidhu. This part of the statement of PW. 15 also has not been shaken in any manner in cross-examination.
Therefore, a conjoint reading of the evidence of PWs 1, 2, 3, 4, 10 and 15 makes it abundantly clear that at the time of assaulting Gopi Mohan PWs 1 and 2 tried to resist the accused Nani Kanta and Tukan and Nani and Tukan at that time threatened to assault Bidhu and Jotish restrained the accused persons from assaulting Bidhu.
21. It is the case of the prosecution that many people gathered hearing the cries in the house of Bidhu and Bidhu narrated the fact to those villagers immediately after the occurrence and the fact is therefore admissible as res gastae. PWs 4, 5, 6, 9, 11, 14 and 15 have made clear and categorically statements.
PW. 4 stated that when he rushed to the house of Bidhu, Bidhu informed him that Tukan and Nani assaulted Gopi Mohan Das who was known as 'Masterbabu', in the deserted hut of Bidhu. This part of the statement of the witness has not been shaken in the cross-examination.
PW. 5 stated that in his presence and in presence of other villagers Bidhu told them that Nani with a dao in his hand and Tukan with a lathi in his hand arrived in the house of Bidhu and killed Gopi Mohan with the help of dao and lathi. This statement of the witness has also not been shaken in the cross-examination.
PW. 6 in his deposition stated that Bidhu informed him that Nani Das by a dao and Tukan by a lathi killed his brother-in-law Gopi Mohan inside the deserted eastern viti hut.
PW. 9 stated that on his query Bidhu and his wife stated that Nani Kanta Das and Tukan Sharma killed Gopi Mohan in their deserted hut on the allegation of committing theft by Gopi Mohan, by using dao and lathi. This part of the statement of the witness has not been shaken in cross-examination.
PW. 11 in his deposition stated that Bidhu informed him that Nani Das and Tukan Sharma killed his (witness) brother. That statement of the witness has not been shaken in cross-examination.
PW. 14 stated that Bidhu informed him and others that Nani Kanta by a dao and Tukan by a lathi assaulted Gopi Mohan in spite of resistance by Bidhu. That statement has not been shaken in cross-examination.
PW. 15 also stated that Bidhu informed him that Nani by a dao and Tukan by a lathi assaulted Gopi Mohan. That part of the statement of this witness also has not been shaken in cross-examination.
PW. 16 also stated that Bidhu informed him that Nani Kanta by a dao and Tukan by a lathi killed his (witness) maternal uncle. That statement of the witness has not been shaken in cross-examination.
22. Learned counsel of the appellants argued that most of the witnesses who appeared in the witness box are related to the deceased Gopi Mohan and so their statements cannot be believed.
There is nothing in law that a relative cannot be a witness of truth. All persons irrespective of a relative are competent witnesses who have witnessed the occurrence or perceived the occurrence by senses. It is quite natural that hearing about an incident the relatives of the victim will rush to the spot at first. A relative witness and an interested witness are quite different. A relative witness who has witnessed the occurrence unless otherwise found to be interested to depose against the accused to get a punishment for some other reason, the evidence of a relative witness cannot be discarded. The term, "interested witness" postulates that the person concerned must have some direct interest in seeing that the accused person is somehow or otherwise convicted either because he had some animus with the accused or for other reason. There is nothing to show that any of the witnesses had any sort of animosity against the accused persons or had any other interest to somehow punish the accused persons. Therefore, we find no merit in the submission of learned counsel of the appellants.
23. From the evidence of PW. 23 we find that on the night of the occurrence I.O. raided the house of the accused persons but they were not available which means they were absconding. The accused Nani Kanta was arrested on 16.05.2012 from a tea garden at Jagannathpur and accused Tukan was arrested on 17.05.2012 from Jitur Dighir Par and it shows that they were away from their normal place of residence after the incident. Such an absconsion by itself cannot be accepted as an aggravating circumstance unless corroborated by other cogent evidence.
The prosecution relied on leading to discovery of Exbt. MO. 3 i.e. the weapon of offence, the dao which was used by accused Nani Kanta to inflict the injuries. PW. 7 and PW. 8 are the witnesses to the discovery of dao (Exbt. MO. 3). Learned senior counsel, Mr. Biswas submitted that allegedly dao was recovered from the house of brother of the accused Nani Kanta, namely Beni Das and not from the place i.e. the bush near the house of informant and so such recovery was not as per the statement of the accused made before the I.O. and hence the alleged leading to discovery has afforded no evidence in support of the prosecution.
24. It is not disputed that the accused Nani Kanta was taken to police custody. The prosecution case is that I.O. interrogated the accused while in police custody and during interrogation the accused made a statement to I.O. that he will be able to recover the dao which was used at the time of commission of the offence. The statement of the accused recorded by I.O. has been proved as Exbt. 12. The submission of learned counsel, Mr. Biswas that accused made statement only to the effect that he will be able to take out the dao from the bamboo cluster in the jungle is not correct. Exbt. 12 clearly shows that he made further statement that after he escaped from the village he asked his elder brother over mobile phone to bring the dao from the bamboo cluster and keep it in his house. So the submission of learned counsel, Mr. Biswas that the recovery of dao by the accused from the house of his brother was not according to the statement of the accused before the I.O. is not correct.
Section 27 of the Evidence Act contemplates that while the accused person is in custody of the police and gives an information which is distinctly related to the fact 'discover' may be proved. Here in this case the statement of the accused made during interrogation has been recorded by I.O. and it is proved as Exbt. 12 which shows that the accused made such a statement regarding recovery of dao from the bamboo cluster in the jungle or from the house of his elder brother Beni Das.
PW. 23, the I.O. of the case in his deposition stated--
"... ... ... .On my interrogation the accused person informed me that he could recover the weapon of offence i.e. the dao from where he kept the dao. I recorded statement of accused and obtained his signature on the statement. This is the report bearing the signature of the accused and my handwriting and signature marked as Ext. 12 as a whole. I entered this fact in G.D. book vide entry No. 760 dated 16-5-12. I have submitted extract copy of G.D. entry No. 760. This is the extract copy bearing my hand writing and signature marked as Ext. 13. after that accused Nani Kanta lead us to South Chandipur near a bamboo bush by the side of Road but he could not produced the dao from there. Now he told that he could recover the dao from the house of his elder brother and accordingly lead us there. At 1-25 a.m. We reached the house of Beni Das, the elder brother of accused Nani. There all his elder brother and Beni opened the door. The accused person lead us inside the hut and brought out a dao from under the cot of Beni and handed it over to me. In presence of witness Subal Das and Arabinda Das who accompanied us for leading to discovery of act. I seized the dao by preparing a seizure list. I seized the dao in presence of witness Subal Das and Arabinda Das who accompanied us. This is the seizure list bearing my hand writing and signature marked as Ext. 6/2. The witness identified Ext. M.O. 3. The accused informed me that after the offence was committed he washed the dao by water. The entire movement of accused Nani Kanta has been video graft by a video grapher arranged by me. Sri Uday Chakraborty was the Video grapher."
The entire recovery was video-graphed and the C.D. of the video-graph has been proved as Exbt. MO. 15 by PW. 20. PWs 7, 8 and 20 are the witnesses to the recovery of dao by the accused.
PW. 7 stated that he along with Subal Das accompanied Nani Kanta and police officer and the accused led them near to the place of P.O. house and on searching there nothing was found. At that juncture he (accused) again led them to the house of his elder brother Beni. There he brought out a dao from under a cot and handed over it to darogababu in their presence and darogababu seized the dao by preparing a seizure list. He proved his signature in the seizure list and proved the recovered dao as Exbt. MO. 3. There is nothing in the cross-examination to shake this statement of PW. 7.
PW. 8 stated that he, Arabinda and daragababu accompanied the accused and on reaching the bamboo bush he could not recover the dao from the bamboo bush and then told them that he could recover the dao from the house of Beni, his brother. Then they went to the house of Beni and Nani Kanta brought out a dao from under a cot and handed it over to darogababu and darogababu seized the dao by preparing a seizure list in which he put his signature and he identified his signature in the seizure list and also identified the dao. Cross-examination could not shake this version of this witness.
PW. 20 stated that as per order of SDPO he went to Kailashahar P.S. for video recording of the statement of an accused in connection with a murder case and the accused made a statement that he will recover dao from a jungle and led the police party there but he could not recover any dao from the jungle. Thereafter he led the police party and the witnesses to his elder brother's house and brought out a dao which was kept under a cot and handed it over to I.O. He (witness) video recorded the entire proceedings and prepared a C.D. and handed over it to the I.O. This statement of this witness has not been shaken in cross-examination.
At the time of examination of accused Nani Kanta under Section 313 of CrPC a specific question was put to the accused about the recovery to which the accused stated that on the direction of the police he brought out the dao. Question No. 36 and the answer thereto by accused Nani Kanta reads as follows:
"Q. No. 36: PW. 23 further stated that you Nanikanta led them to sough Chandipur near a bamboo bush, but ultimately led them to the house of your elder brother at 1.25 a.m. and from the house of Beni Das you brought out the dao kept under the cot of Beni and handed over the same to PW 23 in presence of witness Subal Das, Arabinda Das.
What is your explanation?
Ans: On the direction of police I brought out the dao."
The accused admitted that he brought out the dao from the house of the brother but he stated that it was at the instance of the police officer. PWs 7, 8 and 20 made categorical, clear and consistent statements about recovery of dao i.e. Ex.bt. MO. 3.
PW. 18, the autopsy surgeon opined that the injuries he found might be caused by Exbt. MO. 3.
In our considered opinion the evidence is enough to arrive at a conclusion that the weapon of offence i.e. Ex.bt. MO. 3 was recovered at the instance of the accused from the house of his brother and the leading to discovery has been proved.
25. Mr. Roy Barman, learned counsel for the accused Tukan Sharma has submitted that there is no evidence of common intension of accused Tukan Sharma to commit the murder. He has also submitted that no injury caused by blunt weapon was found on the person of Gopi Mohan which suggests that the accused Tukan Sharma did not participate in the assault of Gopi Mohan. Many villagers gathered hearing the cries, 'thief thief' and it might happen that Tukan Sharma being a resident of the locality might have gathered there and in the absence of any definite evidence it cannot be said that the accused Tukan Sharma also shared common intention to murder the deceased Gopi Mohan. In support of his contention learned counsel, Mr. Roy Barman referred the cases of Suresh v. State of U.P. reported in MANU/SC/0153/2001 : (2001) 3 SCC 673, Girija Shankar v. State of U.P. reported in MANU/SC/0083/2004 : (2004) 3 SCC 793 and Bengai Mandal v. State of Bihar reported in MANU/SC/0015/2010 : (2010) 2 SCC 91.
Learned Addl. P.P., Mr. Debnath has submitted that common intention may be developed even at the spot and it has to be inferred from the attending facts and circumstances. Even if no overt act was committed by a member of the accused persons with common intention the offence will definitely grill all the accused who participated in the commission of the offence out of common intention.
26. Section 34 of IPC prescribes thus--
"34. Acts done by several persons in furtherance of common intention.--When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone."
The meaning of the section is that if two or more persons intentionally do an act jointly, the position in law is just the same as if each of them has done it individually by himself. Applicability of Section 34 depends upon facts and circumstances of each case. The existence of common intention can be inferred from the attending circumstances of the case and the conduct of the parties. It is not necessary that there must be direct evidence of previous meeting of mind or a pre-arranged plan. Active participation in the actual commission of offence may not be required in all cases. The common intention is a state of mind of an accused which can be inferred objectively from the conduct displayed at the course of commission of the crime as also prior and subsequent attended circumstances. Mere presence of the accused is not sufficient. The subjective element in common intention should be proved by objective test. It is only then one accused can be made vicariously liable for the acts and deeds of the other accused.
27. Let us now have a glimpse to the evidence on record.
PWs. 1, 2 and 3 made consistent statement which has not been shaken in any manner that both the accused i.e. Nani Kanta and Tukan raising alarm 'thief thief' entered in the house of those witnesses and Nani Kanta was armed with dao and a torch and Tukan was armed with a lathi. They knocked the door of those witnesses. Bidhu (PW. 1) opened the door and found both the accused who enquired about a thief and alleged that the thief entered in the living hut of those witnesses. Though Bidhu and his wife denied entry of any thief but both the accused entered in the hut and made a search for the supposed thief but found none. Thereafter they went out of the living hut and made a search in the abandoned kitchen of Bidhu and cried out that the thief was there and started inflicting blows on the supposed thief.
This evidence of PWs 1, 2 and 3 since not shaken in any manner, it supposes that Nani Kanta and Tukan i.e. both the accused entered in the house of Bidhu in search of a supposed thief and were adamant to kill the thief. Their entry in the house, raising alarm 'thief thief', making a search entering in the living hut of the witnesses for the thief and subsequently entering into the abandoned hut and inflicting blows on the supposed thief makes it abundantly clear that they had a common intention of killing the supposed thief Gopi Mohan. No other inference can be drawn from the bundle of facts which are proved before the Court.
No doubt, in the inquest report and postmortem report there is no mention of any blunt injury. PW. 23, the I.O. in his deposition stated that he found cut injuries and other injuries which could be caused by blunt weapon but there is no mention of any blunt injury in the inquest report prepared by him. It is an undisputed position that Gopi Mohan died an instantaneous death on the spot itself on receipt of multiple severe cut injuries and was lying in a pool of blood and so everybody's notice had gone to the severe cut injuries and profuse bleeding. All the witnesses who found the body of Gopi Mohan stated about the profusely bleeding cut injuries. While there was profusely bleeding cut injuries over the head and other parts of the body it was quite not possible for the witnesses as well the I.O. who had prepared the inquest report to notice any injury by blunt object. PWs 1, 2 and 10 made categorical statements that both the accused assaulted the deceased by dao and lathi respectively. They have no sort of animosity with accused Tukan to implicate him falsely. Many other people also gathered in the house of Bidhu immediately after the occurrence. Bidhu, his wife and daughter only named Nani Kanta and Tukan as the assailants. PWs 3, 4 and 15 corroborated PWs 1, 2 and 10 that they found Nani Kanta with dao and Tukan with lathi in hand and both the accused also made attempt to assault Bidhu when he and his wife were trying to resist them from assaulting Gopi Mohan. All these sequence of events clearly indicate that both the accused had the common intention at the relevant point of time to commit murder of Gopi Mohan.
28. The Supreme Court in the case of Suresh (supra) has observed that separate individual act by all the accused persons for making them liable for the ultimate criminal act is not required. No overt act is needed on the part of an accused to attract Section 34 if he shares the common intention with others in respect of the ultimate criminal act which may be done by anyone of the accused sharing such intention. We may gainfully refer here paragraphs 37, 38, 39 and 40 of the judgment which read thus--
"37. However, in view of the importance of the matter, in sofaras the interpretation of Section 34 of the Indian Penal Code is concerned, we have chosen to express our views in the light of consistent legal approach on the subject throughout the period of judicial pronouncements. For the applicability of Section 34 to a co-accused, who is proved to have common intention, it is not the requirement of law that he should have actually done something to incur the criminal liability with the aid of this section. It is now well settled that no overt act is necessary to attract the applicability of Section 34 for a co-accused who is otherwise proved to be sharing common intention with the ultimate act done by any one of the accused sharing such intention.
38. Section 34 of the Indian Penal Code recognises the principle of vicarious liability in criminal jurisprudence. It makes a person liable for action of an offence not committed by him but by another person with whom he shared the common intention. It is a rule of evidence and does not create a substantive offence. The section gives statutory recognition to the commonsense principle that if more than two persons intentionally do a thing jointly, it is just the same as if each of them had done it individually. There is no gainsaying that a common intention presupposes prior concert, which requires a prearranged plan of the accused participating in an offence. Such preconcert or preplanning may develop on the spot or during the course of commission of the offence but the crucial test is that such plan must precede the act constituting an offence. Common intention can be formed previously or in the course of occurrence and on a spur of moment. The existence of a common intention is a question of fact in each case to be proved mainly as a matter of inference from the circumstances of the case.
39. The dominant feature for attracting Section 34 of the Indian Penal Code (hereinafter referred to as "the Code") is the element of participation in absence resulting in the ultimate "criminal act." The "act" referred to in the later part of Section 34 means the ultimate criminal act with which the accused is charged of sharing the common intention. The accused is, therefore, made responsible for the ultimate criminal act done by several persons in furtherance of the common intention of all. The section does not envisage the separate act by all the accused persons for becoming responsible for the ultimate criminal act. If such an interpretation is accepted, the purpose of Section 34 shall be rendered infructuous.
40. Participation in the crime in furtherance of the common intention cannot conceive of some independent criminal act by all accused persons, besides the ultimate criminal act because for that individual act law takes care of making such accused responsible under the other provisions of the Code. The word "act" used in Section 34 denotes a series of acts as a single act. What is required under law is that the accused persons sharing the common intention must be physically present at the scene of occurrence and be shown not to have dissuaded themselves from the intended criminal act for which they shared the common intention. Culpability under Section 34 cannot be excluded by mere distance from the scene of occurrence. The presumption of constructive intention, however, has to be arrived at only when the court can, with judicial servitude, hold that the accused must have preconceived the result that ensued in furtherance of the common intention. A Division Bench of the Patna High Court in Shatrughan Patar v. Emperor, AIR 1919 Pat 111 : (1919 (20) Cri.L.J. 289) held that it is only when a court with some certainty holds that a particular accused must have preconceived or premeditated the result which ensued or acted in concert with others in order to bring about that result, that Section 34 may be applied."
This judgment does not support the defence contention rather in the given facts and circumstances of this case it supports the prosecution case.
In the case of Girija Shankar (supra) the Supreme Court observed that the acts of all the accused need not be same or identical but must be actuated by the same common intention. An accused who has not caused any injury to the deceased, if some overt act is shown to have been committed by him in furtherance of the common intention to cause death, he would be liable to be convicted with the aid of Section 34. We may refer here paragraphs 9 and 10 of the judgment which reads as follows:
"9. Section 34 has been enacted on the principle of joint liability in the doing of a criminal act. The section is only a rule of evidence and does not create a substantive offence. The distinctive feature of the section is the element of participation in action. The liability of one person for an offence committed by another in the course of criminal act perpetrated by several persons arises under Section 34 if such criminal act is done in furtherance of a common intention of the persons who join in committing the crime. Direct proof of common intention is seldom available and, therefore, such intention can only be inferred from the circumstances appearing from the proved facts of the case and the proved circumstances. In order to bring home the charge of common intention, the prosecution has to establish by evidence, whether direct or circumstantial, that there was plan or meeting of minds of all the accused persons to commit the offence for which they are charged with the aid of Section 34, be it prearranged or on the spur of the moment; but it must necessarily be before the commission of the crime. The true concept of the section is that if two or more persons intentionally do an act jointly, the position in law is just the same as if each of them has done it individually by himself. As observed in Ashok Kumar v. State of Punjab, (MANU/SC/0089/1976 : AIR 1977 SC 109), the existence of a common intention amongst the participants in a crime is the essential element for application of this section. It is not necessary that the acts of the several persons charged with commission of an offence jointly must be the same or identically similar. The acts may be different in character, but must have been actuated by one and the same common intention in order to attract the provision.
10. The section does not say "the common intention of all", nor does it say "and intention common to all". Under the provisions of Section 34 the essence of the liability is to be found in the existence of a common intention animating the accused leading to the doing of a criminal act in furtherance of such intention. As a result of the application of principles enunciated in Section 34, when an accused is convicted under Section 302 read with Section 34, in law it means that the accused is liable for the act which caused death of the deceased in the same manner as if it was done by him alone. The provision is intended to meet a case in which it may be difficult to distinguish between acts of individual members of a party who act in furtherance of the common intention of all or to prove exactly what part was taken by each of them. As was observed in Chinta Pulla Reddy v. State of Andhra Pradesh, (MANU/SC/0717/1993 : AIR 1993 SC 1899). Section 34 is applicable even if no injury has been caused by the particular accused himself. For applying Section 34 it is not necessary to show some overt act on the part of the accused."
In the case of Bengai Mandal (supra) the Supreme Court reiterated the same principle. We may refer here para 13 of the judgment which reads as follows:
"13. Thus, the position with regard to Section 34 IPC is crystal clear. The existence of common intention is a question of fact. Since intention is a state of mind, it is therefore very difficult, if not impossible, to get or procure direct proof of common intention. Therefore, courts, in most cases, have to infer the intention from the act(s) or conduct of the accused or other relevant circumstances of the case. However, an inference as to the common intention shall not be readily drawn; the criminal liability can arise only when such inference can be drawn with a certain degree of assurance."
29. The deceased Gopi Mohan was a teacher by profession. The accused persons chased behind Gopi Mohan raising the alarm 'thief thief' and Gopi Mohan entered in the house of Bidhu and hid himself in the abandoned kitchen hut. There is not even a suggestion to any of the witnesses that Gopi Mohan committed theft or made an attempt to commit theft anywhere. In a case of direct evidence of commission of an offence, mens rea is of little importance. Mens rea always locked in the mind of the offender and it is very difficult to prove by direct evidence. It was in the mind of the accused persons as to why they chased behind Gopi Mohan raising cry 'thief thief' and why they killed him so brutally inflicting blows on him. Absence of mens rea therefore has no importance in the given facts and circumstances of this case. Common intention of both the accused persons is apparent and while there is oral evidence it overrides the medical evidence. It might happen that the autopsy surgeon also only attached importance to the severe cut injuries found on the person of the deceased and might have not noticed any blunt injury and that cannot belie the prosecution case about participation of the accused Tukan Sharma in the crime. While the oral evidence is found to be cogent, consistent and worthy we find no reason at all to give benefit of doubt to accused Tukan Sharma.
30. Learned counsel of the appellants further argued that there were lot of contradictions in the statements of witnesses but those were not correctly recorded. The learned Sessions Judge did not allow the defence to refer the contradictions to the particular witnesses and that only he allowed the defence counsel to give suggestion and denial and further allowed them to put the relevant portion to the I.O. Both the learned counsel for instance referred the cross-examination of PW. 2 and the relevant part of the cross-examination of I.O. i.e. PW. 23. The cross-examination of PW. 2 reads thus:
"It is not a fact that Nani Kanta Das and Tukan Sarma did not assault the thief. It is not a fact that Tukan did not entered into my house with a lathi in his hand. I did not state in my statement to the I.O. that I heard sound of some more people outside my house when Nani and Tukan first entered into our house. I did not state in my ejahar to the I.O. that when Nani called on my husband I heard the sound of some more people out side my hut. I stated to the I.O. that Dulal Das and Asim Sarma entered into my house. It is not a fact that Dulal Das and Asim Sarma did not enter into my house or I also did not give such statement to the I.O. It is not a fact that the accused persons did not threatened us. It is not a fact that Jotish Das did not rescue us from the accused persons. It is not a fact that no old lady identified the dead body as her son. I stated to the I.O. that the accused persons entered into my living hut and search for the thief. It is not a fact that I did not give such statement to the I.O. It is not a fact that accused Tukan did not enter into my house in that night.
Cross for Nani Kanta Das:-
It is not a fact that I did not see Nani Kanta with a dao and a torch light in his hands. It is not a fact that I did not see the dead body of Goipi Mohan with bleeding injuries. The mother of Gopi Mohan appeared in my house after about 2 hours of the incident."Referring to the part of cross-examination of PW. 2 defence put questions in the cross-examination of PW. 23 and that part of cross-examination reads thus--
"... ... Basanti Das stated before me that when Nani and Tukan entered into her house she heard sound of some more people out side her house. Witness Basanti stated to me that when Nani called on her husband she heard the sound of some more people outside her hut. Witness Basanti did not state to me specifically that the accused person entered into her hut."
A bare reading of the cross-examination of PW. 2 makes it abundantly clear that the attention of the witness was not drawn to any part of her earlier statement to record a contradiction as contemplated in Section 145 of the Evidence Act. Putting some questions referring to the previous statement recorded by I.O. at the time of cross-examination of I.O. does not prove the contradiction in respect of statement of a witness.
31. A statement on oath, made by a person, called as a witness, before the Court, in course of a trial, in presence of the parties to the case, subject to exceptions as prescribed by law, is to be regarded and read as the evidence of the case.
Any statement made or recorded as FIR or a statement recorded during investigation by a police officer under Section 161 of CrPC are all previous statements to be used for specific purposes as prescribed by law. Such previous statements cannot be regarded as evidence of a case. Only that statement made by a witness in course of trial before Court shall be regarded as evidence and if any such witness has any previous statement recorded by I.O. or otherwise in respect of same occurrence his or her attention should be drawn to that part of the statement which is contrary to the subsequent statement made by the witness.
Contradiction means a statement of a position opposite to one already made. A material omission also amounts to contradiction but that has to be proved putting it to the witness when a previous statement of the witness is recorded in course of investigation. In course of investigation of a criminal offence the statements of material witness are recorded by I.O. under Section 161 of CrPC. Proviso to Section 162 of CrPC prescribes that when any witness is called for the prosecution in an inquiry or trial whose statement has been reduced into writing, 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 Evidence Act 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 for explaining any matter referred to in his cross-examination.
Sub-Section (2) of Section 162 prescribes that nothing in the section shall be deemed to apply to any statement falling within the provision of clause (1) of Section 32 of the Indian Evidence Act or to affect the provisions of Section 27 of the Act. The explanation added to that section prescribes that 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.
Section 145 of the Evidence Act is most important for consideration of the issue which reads 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."
In the present case, not even a single contradiction of any witness has been recorded in accordance with the provisions prescribed in Section 145 of the Indian Evidence Act. For example we have reproduced above the cross-examination part of PW. 2 and the relevant questions put to I.O. referring to the cross-examination part of PW. 2. We are shocked that neither the learned Sessions Judge nor the learned counsel representing the accused persons were aware of the legal provisions for recording contradiction.
A bare reading of the provision of Section 162 of CrPC makes it clear that the statement of a witness made before a police officer can be used only to contradict such witnesses-- (i) by the accused; (ii) by the prosecution with the permission of the Court and (iii) in the manner provided in Section 145 of the Evidence Act. Such statement cannot be used by the accused or prosecution for the purpose of corroboration. The manner of using such statement for the purpose of contradiction must be in terms of Section 145 of the Evidence Act as reproduced hereinbefore.
It is a settled law that if it is intended to contradict the witness by his previous statement in writing, the attention of the witness must be drawn before the writing is proved. We may gainfully refer here the law laid down by the apex Court in the case of Tahsildar Singh & Anr. v. The State of Uttar Pradesh reported in MANU/SC/0053/1959 : AIR 1959 SC 1012. The law laid down by the apex Court in that case still holds the field and the subsequent decisions by the apex Court and several other High Courts including this court followed the decision of Tahsildar's case.
The Apex court has held--The intention of the legislature in framing S. 162 in the manner it did in 1923, 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.
The court has further held-
The section was 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 S. 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.
The procedure prescribed for contradicting a witness by his previous statement made during investigation, is that, 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. The proviso to S. 162 only enables the accused to make use of such statement to contradict a witness in the manner provided by S. 145 of the Evidence Act. It would be doing violence to the language of the 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 S. 145 of the Evidence Act. The argument that it would not be possible to invoke the second part of S. 145 of the Evidence Act without putting relevant questions under the first part thereof cannot be accepted. The second part of S. 145 of the Evidence Act clearly indicates the simple procedure to be followed.
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 and the statement in the evidence before the Court are so inconsistent or irreconcilable with each other that both of them cannot co-exist, it may be said that one contradicts the other.
In para 26 of the judgment the court has observed thus:-
"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 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."
The law laid down by the Apex Court as indicated above, in respect of recording contradiction has now been settled which requires no further elaboration. The trial courts are required to carefully read the provision as prescribed in Section 162 of CrPC and the relevant provision of Sections 145, 155 and 157 of the Evidence Act.
Statements made by the witnesses before the investigating officer, being the earlier statements made by them with reference to the facts of the case are, no doubt, a valuable material for testing the veracity of the witnesses examined before the Court with reference to those statements, which happened to be at variance with the earlier statements. The statements made during police investigation are not itself substantive evidence. If a witness during examination makes a statement that he did not make such statement to the police officer but he is not contradicted with his previous statement as per the procedure prescribed by law, defence cannot claim advantage of the same. In the statements of the witnesses recorded during cross-examination as reproduced above, to which our attention has been drawn, cannot be attached with any importance since it was not recorded according to the procedure prescribed by law drawing attention of the witness to such statement and contradicting him thereby. We hope that the trial Courts should follow the procedure prescribed by law in respect of recording of contradictions and should not take an easy approach to just record its own observation while recording deposition of witnesses.
In the case of Sunder Singh v. State of Uttaranchal reported in MANU/SC/0710/2010 : (2010) 10 SCC 611, the apex Court has reiterated that unless the contradiction is proved by putting it to person, who records the original statement, such contradiction is of no consequence. If the witness is not specifically questioned about his previous statement and not given an opportunity to explain about such statement, such contradiction cannot be taken note of.
32. A Division Bench of the then Gauhati High Court, Agartala Bench in the case of Ranjit Sarkar v. State of Tripura has also explained the law as to how a contradiction has to be recorded and that judgment has been reported in MANU/GH/0775/2012 : 2013 (1) GLT 709. Thereafter also in several other judgments of the Gauhati High Court the issue was taken up as to how a contradiction has to be recorded but still, it is quite unfortunate that even the senior officers of the judiciary are not following the law and not recording the contradictions according to the procedure prescribed by law.
33. There is nothing to show that the learned defence counsel put question to the witness with a view to record contradiction and that was refused by the trial judge. If a trial judge wrongly refused such a question put by the defence, the defence would file application before the trial Court to keep it on record. In the present case though learned counsel of the appellants now arguing that the contradictions were not recorded but there is nothing to show that any contradiction was referred to the witness at the time of cross-examination and the Court refused to record it. Therefore, we are not at all agreeable to the submission of learned counsel of the appellants that the contradictions were not recorded by the trial Court in course of trial.
34. We are further constrained to observe here that the learned trial Judge did not make corrections of the depositions of the witnesses. There are silly typographical mistakes apparent on the face of the record but no correction was made by the learned Sessions Judge. It was the duty of the learned Sessions Judge to make correction of the statements before putting his signature. It appears to us that learned Sessions Judge as a matter of routine recorded the statements but did not make any correction in the statements. Such negligence if found in future will be dealt with strictly in the administrative side of the High Court.
35. In view of the discussions made hereinbefore we find no merit in the appeals and hence the criminal appeals stand dismissed. The appellants should serve out the sentence.
36. Send back the L.C. records along with a copy of this judgment.
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