Rameshwar Dayal & Ors Vs. The
State of Uttar Pradesh [1978] INSC 31 (15 February 1978)
FAZALALI, SYED MURTAZA FAZALALI, SYED MURTAZA
SHINGAL, P.N.
CITATION: 1978 AIR 1558 1978 SCR (3) 59 1978
SCC (2) 518
ACT:
Constitution of India, Art 136, principles for
interference by Supreme Court.
Criminal Procedure Code, Ss. 540 and 162--S.
540 examination of Sessions Judge by High Court, desirability of--Opportunity
for rebuttal of fresh evidence, whether necessary--S. 162, statement of
Investigating officer in inquest report, whether admissible in evidence.
HEADNOTE:
A long standing enmity between Baburam and
Munnalal, triggered by proceedings u/s 107/117 Cr.P.C., initiated by them
against each other, resulted in an attack on Baburam's party, by Munnalal's
party, in which Baburam died. The appellants were convicted, inter alia, u/s
302/149 I.P.C., and sentenced to imprisonment for life.
The factum of the recovery of four live
cartridges by the Investigating Officer at the spot, was challenged by the
accused at the appellate stage. The High Court examined the Sessions Judge and
the Investigating Officer u/s 540 Cr.P.C.
but denied the appellants an opportunity to
adduce evidence to rebut this fresh evidence.
Dismissing the appeals on merits, after
completely excluding the, evidence of the witnesses examined by the High Court
u/s 540 Cr.P.C., the Court HELD:
1. The principles on the basis of which this
Court would interfere in an appeal by special leave are as follows :-
1. That this Court would not interfere with
the concurrent findings of fact based on pure appreciation of evidence even if
it were to take a different view on the evidence;
2. That the Court will not normally enter
into a reappraisement or review of the evidence, unless the assessment of the
High Court is vitiated by an error of law or procedure or is based on error of
record, misreading of evidence or is inconsistent with the evidence, for
instance, where the ocular evidence is totally inconsistent with the medical
evidence and so on;
3. That the Court would not enter into
credibility of the evidence with a view to substitute its own opinion for that
of the High Court;
4. That the Court would interfere where the
High Court has arrived at a finding of fact in disregard of a judicial process,
principles of natural justice or a fair bearing or has acted in violation of a
mandatory provision of law or procedure resulting in serious prejudice or
injustice to the accused;
5. This Court might also interfere where on
the proved facts wrong inferences of law have been drawn or where the
conclusions of the, High Court are manifestly perverse and based on no
evidence" [68C-G] Dalbir Kaur and Ors. v. State of Punjab, [1977] 1 S.C.R.
280; followed.
2. Judges should not be allowed to become
witnesses in cases which they decide, otherwise that would lead to most
anomalous results and would undermine the confidence of the people in the
judiciary. A Judge has to decide the cage according to the evidence and the
circumstances before him and it cannot 60 be allowed to fill up gaps left by
the prosecution or the defence by giving statement on oath before a Court of
law.
Under section 540 of the Cr. P.C. the High
Court may examine the Sessions Judge or the Trial Court, when very necessary,
on very rare occasions where all other remedies are exhausted. [64D-H, 65A] The
Most Noble the Duke of Buccleuch and Queensberry and the Metropolitan Board of
Works (1871-2) V E and 1, Appeal Cases 418; Regina v. Gazard, 173 E.R., 633.
applied.
3. The condition of giving an opportunity to
the accused to rebut any fresh evidence sought to be adduced against him either
at the trial or the appellate stage, is implicit under section 540 of the Cr.
P.C. and a refusal of the same amounts not only to an infraction of the
provisions of the Code, but also of the principles of natural justice, and
offends the famous maxim Audi Alteram Partem.
[65 D-E H] Channulal and Anr. v. Rex, A.I.R.
1949 All. 692, Rangaswami Naicker v. Muruga Naicker, A.I.R. 1954 Mad. 169;
Shugan Chand and Anr. v. Emperor, A.I.R. 1925 Lahore 53 1; The Queen v.
Assanoollah, 13 S.W.R. (Crl.) 15; approved.
4. Documents like the Inquest report, seizure
lists or the site plans consists of two parts, one of which is admissible and
the other is inadmissible. That part of such documents which is based on the
actual observation of the witness at the spot being direct evidence in the
case, is clearly admissible, under section, 60 of the evidence Act, whereas the
other part which is based on information given to the Investigating Officer, or
on the statement recorded by him inadmissible under section 162 Cr. P.C.,
except for the limited purpose mentioned in that section. [72G-H, 73A] Baladin
and Ors. v. State of U.P., A.T.R. 1956 S.C. 181;
Surian and Ors. v. State of Rajasthan A.I.R.,
1956 C., 425;
Ch. I Rizak Ram v. Ch. J. S. Chouhan and
Ors., A.I.R. 1975 S.C. 667; Caetano Piedade Fernandes and Anr. v. Union
Territory of Goa. Daman and Diu, Panaji, Goa [1977] 1 S.C.C. 707; fit Singh
State of Punjab, A.I.R., 1976 S.C. 1421; distinguished.
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeals Nos. 241- 242 of 1972.
(Appeals by Special Leave from the Judgment
and Order dated 1-8-1972 of. the Allahabad High Court in Criminal Appeal Nos.
2488 and 2561 of 1969).
R. K. Garg, S. C. Agarwala and A. P. Gupta
for the appellants.
O. P. Rana for the Respondent.
D. Mookerjee and R. K. Bhatt for the
Intervener.
The Judgment of the Court was delivered by
FAZAL ALI, J. These two criminal appeals by special leave are directed against
a common judgment dated 1st August, 1972 of the Allahabad High Court upholding
the conviction and sentences imposed by the Sessions Judge, Bareilly on the
appellants.
In Criminal Appeal No. 241 of 1972 there are
seven appellants, viz., Rameshwar Dayal, Acchmal, Janmeje, Rohan, Raghunandan,
Ramdas and Sudama. In Criminal Appeal No. 242 of 1972 there are two appellants,
viz., Rohtas and Sukhdev.
All the appellants were convicted under
section 302/149, I.P.C. and sentenced to imprisonment for life. Rameshwar
Dayal, Achhmal Ram, Janmejaya 61 Deo, Rohtas, Sudama, Ramdas, Raghunandan and
Rohan were further convicted under section 324 read with section 149 I.P.C. and
sentenced to one year's rigorous imprisonment.
Sukhdev was also convicted under section 324
whereas Rameshwar Dayal and Janmejaya Deo were convicted under section 394
I.P.C. and sentenced to four years' rigorous imprisonment. Rameshwar Dayal,
Achhmal Ram, Janmejaya Deo, Rohtas, Sukhdeo and Sudama were further convicted
under sec- tion 148 I.P.C. and sentenced to 18 months' rigorous imprisonment
whereas Ramdas, Raghunandan and Rohan were convicted under section 147, I.P.C.
and sentenced to one year's rigorous imprisonment. The High Court, on appeal,
affirmed the conviction and sentences indicated above.
The unfortunate occurrence which resulted in
the death of the deceased is an outcome of an outstanding enmity between the
two parties. Both the High Court and the Sessions Judge have clearly spelt out
the essential features of the prosecution case and it is not necessary for us
to repeat the same with all its details. It appears that apart from the long
outstanding enmity between the parties the immediate provocation for the
occurrence was that proceedings under section 107/117 Cr. P.C. had been
initiated by Babu Ram and Munnalal against each other and were pending in the
Court of the Sub-Divisional Magistrate, Faridpur. In these proceedings a number
of persons figured as parties on both sides. 9th December, 1969 was the date
fixed for giving evidence in the proceedings under section 107/117 Cr.P.C.
which had been initiated against the accused persons on the basis of an
application given by the deceased Babu Ram. The leader of the faction against
whom the proceedings had been started was Munnalal.
Babu Ram along with his companions left for
Faridpur and when he reached near the field of one Laltu Nal, he was surrounded
by the appellants who were Iying in wait for him in the bushes and who on
seeing the accused add his party emerged and started abusing him right and left.
Of the accused persons Rameshwar Dayal was armed with a single barrel gun,
Achmal Ram with a double barrel gun, Janmejaya Deo with a country made pistol
and the others were variously armed with spears, Kantas and lathes. Rameshwar
Dayal fired his gun at the deceased and Janmejaya fired another shot at the
deceased from his pistol simultaneously. Babu Ram fell down as a result of the
injuries received by him. Sukhdeo intercepted Chhoteylal when he wanted to
protect his brother and inflicted a spear injury on him. Virendra and others
who were accompanying the deceased raised an alarm at which Achhmal fired a
shot at them which did not hit them.
Meanwhile, Rameshwar Dayal snatched away a
bag from the belt of the deceased containing his licensed revolver and
cartridges and Janmejaya Deo picked, up the cloth bag in which the deceased was
carrying the papers relating to the proceedings under section 107/117 Cr.P.C.
which was fixed on 9th December, 1969, the day of the occurrence. Thereafter,
the. appellants made good their escape by running away towards the south. A
narrative regarding the manner in which the occurrence took place was jotted
down by P.W, 1 Rajendra, son of the deceased at the spot and he carried the
same to the Police Station 62 Fatehganj, a mile from the scene of the
occurrence where the F.I.R. was lodged at 8 a.m. on the basis of which a case
was registered against the appellants under sections 302, 394 and 324 and other
provisions of the Penal Code.
The police visited the spot and after the usual
investigation submitted a charge-sheet against the appellants as a result of
which they were put on trial by the Sessions Judge and convinced and sentenced
by him as indicated above.
Two facts need special mention which have
taken place during the course of investigation. In the first place, when the
Investigating Officer visited the place of occurrence he found one empty
cartridge and four live cartridges at the spot. The appellants have challenged
the factum of the recovery of four live cartridges at the spot an aspect which
has engaged the main attention of counsel for the appellants in this Court as
well in the High Court which will be dealt with a little later.
The prosecution had examined three main
eye-witnesses in the case, namely, P.W.1 Rajendra, P.W.2 Mungolal Sharma and
P.W.3 Chhoteylal. The learned Sessions Judge after a very careful appraisal of
the evidence and the circumstances of the case came to the clear conclusion
that the case was proved against the appellants and he accordingly convicted
them. It may also be mentioned here that the Sessions Judge found as a fact in
his judgment that the cartridges which were found on the spot were live
cartridges though by mistake they were recorded as empty cartridges in the
evidence of the Investigating Officer Muniraj Singh. In this connection, the
learned Sessions Judge while dealing with the evidence of the Investigating
Officer, P.W.1 I observed as follows "He also found four live cartridges
Ex. 2 of 32 bore revolver near the dead body (the word empty instead of live
being wrongly written in the statement, as is shown by the memo Ex.
Ka. 14 prepared in respect of it after they
being sealed) ".
The learned Sessions Judge further observed
as follows "Further that four live cartridges said to be belonging to the
deceased were found lying at the spot by the I.O. which fact is again not
challenged by the defence, the prosecution has succeeded in proving that the
incident occurred near the field of Laltu".
These two statements of fact made by the learned
Sessions Judge in his judgment do not appear to have been challenged by the
appellants in their grounds of appeal before the High Court. Normally, this
Court would not allow the parties to contest any statement of fact mentioned in
the judgment unless unerring and cogent evidence is produced to draw a converse
conclusion. Neither before the High Court nor before this Court such an
evidence has been suggested much less proved in the case.
63 It appears that while the appeal was
pending in the High Court where the material exhibits were sent for and after
the material exhibits were sent for an application was filed by the accused on
25th April, 1972 praying that in view of the fact that on inspection of the
material exhibits showed that the cartridges found at the spot were not live
cartridges but empty cartridges, additional evidence may be allowed to be taken
by the Court to clear up the issue. It may be noted that this application was
made almost three years after the memo of appeal was filed in the High Court.
The, fact that live cartridges were found at
the spot does not appear to have been controverted either before the Sessions
Judge or even at the time when the appeal was filed before the High Court. In
fact, it would appear that counsel for both the parties argued the case before
the Sessions Judge on the footing that the evidence showed that four live
cartridges were found at the spot.
When the matter was taken up by the High
Court, at the hearing the High Court examined two witnesses, viz., Mr. Hira Lal
Capoor, the Sessions Judge himself and Muniraj Singh, the Investigating Officer
on the question as to whether live or empty cartridges were found at the spot.
Indeed, if it was proved that empty
cartridges were found at the spot, then having regard to the admitted fact that
the deceased was carrying a pistol along with cartridges there may be a
possibility of his having himself fired five shots on his assailants and that
would naturally change the entire complexion of the case. After the witnesses
were examined by the High Court the appellants were reexamined under section
342 Cr.P.C. Thereafter, the appellants filed an application on 25th April, 1972
praying that they may be given an opportunity to rebut the evidence of the
Court witnesses summoned by the High Court. In their application the appellants
prayed for the examination of two witnesses, namely. Shri S. N. Mulla,
Bar-at-Law and Shri 'Bankesh Behari Mathur, Advocate, Bareilly and also call
for a docu- ment, viz., the Panchayatnama Register of Police Station Fatebganj.
The High Court, however, refused to accede to the prayer of the appellants on
the ground that they had got full opportunity to crossexamine the witness
examined by the High Court under section 540, Cr.P.C.
One of the main points taken by the
appellants in their petition for special leave was that the High Court judgment
was vitiated by the failure of the High Court to give a reasonable opportunity
to the appellants in order to rebut the evidence of the witnesses examined by the
High Court under section 540, Cr.P.C. and this argument has been the
sheet-anchor of Mr. Garg, counsel for the appellants before us.
We have gone through the judgments of the two
courts and have also been taken through the entire evidence. Mr. Garg, learned
counsel for the appellants submitted that if the High Court chose to summon the
Sessions Judge and the Investigating Officer under Section 540 Cr.P.C. it was
incumbent on it to give a reasonable opportunity to the appellants to rebut
that evidence and the High Court committed a serious error of law in not
summoning the witnesses Shri Mulla and Shri Mathur in spite of a prayer having
been made to this effect to it.
64 We find ourselves in complete agreement
with the principles adumbrated by Mr. Garg and we feel that the High Court
ought to have given art opportunity to the appellants-to examine the witnesses.
It was also argued that the High Court erred
in examining the Sessions Judge as a witness which was a most extraordinary
course. In this connection, reliance was placed on a decision in the case of
The Most Noble the Duke of Buccleuch and Queensberry and The Metropolitan Board
of Works (1871-2) V English & Irish Appeal Cases 418 where Lord Chelmsford
speaking for the Appeal Court observed as follows :
"With respect to those who fill the
office of Judge it has been felt that there are grave objections to their
conduct being made the subject of cross-examination and comment (to.
which hardly any limit could be put) in
relation to proceedings before them; and, as everything which they can properly
prove can be proved by others, the Courts of law discountenance, and I think I
may say prevent them being examined".
We fully agree with the rule of law laid down
in the aforesaid ruling.. Judges should not be allowed to become witnesses in
cases which they decide otherwise that would lead to most anomalous results and
would undermine the confidence of the people in the judiciary. A Judge has to
decide the case according the evidence and the circumstances before him and it cannot
be allowed to fill up gaps left by the prosecution or the defence by giving
statement on oath before a court of law. If any statement of fact made by the
Judge in his judgment is sought, to be, controverted the_ same should be done
by the well established method of filing affidavits by counsel and getting a
report from the Judge by the. High Court. It is true that under section 540 of
the Criminal Procedure Code the High Court has got very wide powers to examine
any witness it likes for the just decision of the case, but this power has to
be exercised sparingly and only when the ends of justice so demand.. The higher
the power the more careful should be its exercise.
In the case of Regina v. Gazard(1) it was
held by Patteson, J. that it will be a dangerous precedent to allow a President
of the Court of Record to be examined as a witness. In this connection,
Patteson, J. made the following observations:
"It is a new point, but I should advise
the grand jury not to examine him. He is the present of a Court of Record, and
it would be dangerous to allow such an examination, as the Judges of England
might be called upon to state what occurred before them in Court".
Although in the instant case the Sessions
Judge was not a Court of Record but the principles laid down by Patteson, J.
would equally apply to him. We do not mean to
suggest for a moment that the High Court (1) 173 E.R. 633.
65 has no power to examine a Sessions Judge
in any case whatsoever for there may be proper and suitable cases where the
examination of the Sessions Judge or the trial Court may be very necessary but
this must be indeed a very rare occasion where all other remedies are
exhausted. In the instant case, we feel that there was no good and cogent
ground for the High Court to have examined the Sessions Judge because his
evidence was not essential for a just and proper decision of the case
particularly when the appellants never challenged the statements made in the
judgment regarding the live cartridges either before the Sessions Judge or even
in the High Court when the memo of appeal was filed before the Court.
As far as the evidence of Muniraj Singh the
Investigating Officer is concerned that also was not necessary because that
really amounted to allowing the prosecution to fill up gaps. Even if we hold
that the High Court was justified in exercising its discretion under section
540 Cr.P.C. the High Court committed a serious error of law in not allowing the
appellants an opportunity to rebut the statement of the witnesses examined by
the High Court which caused a serious prejudice to the accused.
It was argued by counsel for the State that
there is no provision in the Criminal Procedure Code which requires the Court
to allow the appellant an opportunity to rebut the evidence of witnesses
summoned' under section 540 Cr.P.C.
This argument, in our opinion, is based on a
serious misconception of the correct approach to the cardinal principles of
criminal justice. Section 540 itself incorporates a rule of natural justice.
The accused is presumed to be innocent until he is proved guilty. It is,
therefore, manifest that where any fresh evidence is admitted against the
accused the presumption of innocence is weakened and the accused in all
fairness should be given an opportunity to rebut that evidence. The right to
adduce evidence in rebuttal is one of the inevitable steps in the defence of a
case by the accused and a refusal of the same amounts not only to an infraction
of the provisions of the Criminal Procedure Code but also of the principles of
natural justice and offends the famous maxim Audi Alteram Partem. Section 540
of the Criminal Procedure Code runs thus :- "Any Court may, at any stage
of any inquiry, trial or other proceeding under this Code, summon any person as
a witness, or examine any person in attendance, though not summoned as a
witness, or recall and re-examine any person already examined, and the Court
shall summon and examine or recall and re-examine any such person if his
evidence appears to it essential to the just decision of the case".
A careful perusal of this provision
manifestly reveals that the statute has armed the Court with all the powers to
do full justice between the parties and as full justice cannot be done until
both the parties are properly heard, the condition of giving an opportunity to
the accused to rebut any fresh evidence sought to, be adduced against him
either at the trial or the appellate stage appears to us to be implicit under
section 540 of the Cr.P.C. The words " just decision of the case"
would become meaningless and without any significance if a decision is to be
arrived at without a sense of justice and fair play.
66 In the case of Channu Lal and Anr. v.
Rex(1) the Division Bench of the Allahabad High Court ruled as follows :
"Section 540, in our opinion, empowers a
Court to take such evidence. If the Court decides to take such evidence, it
would be proper for the Court to re-examine the accused with reference to the
new evidence recorded and to give an opportunity to the accused to give such
further evidence in defence, as he may be advised to do".
To the same effect is a decision of the
Madras High Court in the case of Rangaswami Naicker v. Muruga Naicker(2) where
Ramaswami, J.
observed as follows "The only rules, which
the Magistrate must bear in mind when examining court witnesses are (1) that
the prosecution and the accused are both equally entitled to cross-examine a
court witness, and (2) that if the evidence of a court witness is prejudicial
to the accused, opportunity to rebut the evidence so given must be given to the
accused".
Same view has been taken by the Lahore High
Court in the case of Shugan Chand and Anr. v. Emperor(3) and in the case of The
Queen v. Assanoollah (4) where a Division Bench of the Court observed as
follows :
"In the present case, the prisoner has
had no opportunity of making a defence or calling evidence, with reference to
the evidence of the Moonsiff given by him when re-called after the prisoner had
concluded his defence. I think, therefore, that the case has not been properly
tried, and that the conviction and sentence are not legal. It appears to me
that, under section 405, we ought to quash the conviction, and order a new
trial".
We find ourselves in complete agreement with
the principles laid down and the observations made in the aforesaid cases which
represent the correct law on the subject.
The, High Court seems to have justified the
refusal to give an opportunity to the accused to rebut the evidence on the
ground that Shri Mulla who was counsel representing the accused did not choose
to withdraw from the appeal and that other witnesses sought to be examined by
the appellants were bye-standers. These considerations are absolutely
extraneous to the issue. It was not open to the High Court to have prejudged
the merits of the evidence of the witnesses sought to be examined by the
defence even before their evidence was recorded. In these circumstances, we
feel that the reasons given by the High Court for not examining the witnesses suggested
by the accused are wholly unsustainable in law.
(1) A.I.R. 1949-All. 692.
(2) A.I.R. 1954 Mad. 169.
(3) A.I.R. 1925 Lahore 531.
(4) 13 S.W.R. (Crl.) 15.
67 For these reasons, therefore,. we are
clearly of the opinion that the High Court was in error in refusing the
appellants an opportunity of giving evidence to rebut the evidence, of the
witnesses examined by the High Court under section 540, Cr.P.C. Normally, this
error would have been sufficient to vitiate the judgment and would have required
our remitting the case to the' High Court for a fresh decision. We however find
that this is a very old case when the occurrence had taken place more than 8
years ago and the appeal in this Court has itself taken more than five years.
In these circumstances, we feel that the ends
of justice do not require that the case should be sent back to the High Court
which would entail further delay. We have therefore, decided to go into the,
evidence ourselves after completely excluding the evidence of the witnesses
examined by the High Court under section 540, Cr.P.C. so that we base our
decision only on the evidence and the circumstances that were before the
Sessions Judge.
Before going into the merits we might mention
a few facts which have been found against the appellants. Both the High Court
and the, Sessions Judge have believed the evidence of P.Ws. 1, 2 and 3 who
proved the assault on the deceased and Chhotey Lal. The Sessions Judge has
particularly discussed all the aspects of the case very exliaustively and has
combated every possible argument that was or could be advanced before him by
the appellants.
Regarding P.W. 1 the High Court accepted his
evidence and observed as follows :- "We are satisfied that Chhoteylal
(P.W. 3) was also present in the company of his brother Babu Ram when he was
shot dead".
Similarly, rejecting the adverse comments
made against the testimony of P.W. 2 the High Court said that "his
explanation for his presence in the company of the deceased when he was shot at
is quite plausible. He is in our judgment, a thoroughly reliable witness".
Similar opinion was given by the High Court
in respect of Chhotey Lal, P.W. 3 where the High Court observed as follows :
"Rajendra whom we have found was present
during the occurrence has supported the statement of Chhoteylal. In the First
Information Report lodged by him without any delay whatsoever it bad been
mentioned that Chhoteylal had been injured by- Sukhdeo with a spear wielded by
him'.
Similarly, the trial Court has also accepted
the evidence of these witnesses in the same terms. We have also gone through
the evidence of these three witnesses in their entirety and we find that they
have given straight forward answers and their evidence has the ring of truth in
it.
One of the most important circumstances which
proves the prosecution case is the fact that although the main person against
whom proceedings under section 107 had been initiated by the deceased was Munna
Lal yet Munna Lal has not at all been made an accused in this 68 case nor has
any act been attributed to him. This is an intrinsic evidence of the fact that
the prosecution had no intention of falsely implicating any person even though
he may have been the greatest enemy of the deceased.
Another pertinent fact which deserves particular
mention is that the F.I.R. appears to have been lodged within an hour of the
occurrence and there was hardly any time for the parties to discuss or
deliberate. The F.I.R. contains a brief but full narrative of the manner in
which the deceased was killed and the names of the accused persons are also
mentioned therein. It is true that some of the witnesses who have been
mentioned in the F.I.R. as having accompanied the deceased have not been
examined by the prosecution but that by itself in our opinion in the
circumstances of the present case does not appear to be a fatal defect in the
prosecution case. This Court in the case of Dalbir Kaur & Ors. V. State of
Punjab (1) said that it is manifest that what is important is not as to who
were not examined but as to whether the witness who had actually been examined
should be believed and while enunciating the principles on the basis of which
this Court would interfere in an appeal by special leave observed as follows :
"1. That this Court would not interfere
with the concurrent findings of fact based on pure appreciation of evidence
even if it were to take a different view on the evidence.
2. That the Court will not normally enter
into a re-appraisement or review of the evidence, unless the assessment of the
High Court is vitiated by an error of law or procedure or is based on error of
record, misreading of evidence or is inconsistent with the evidence, for
instance, where the ocular evidence is totally inconsistent with the medical
evidence and so on;
3. That the Court would not enter into
credibility of the evidence with a view to' substitute its own opinion for that
of the High Court;
4. That the Court would interfere where the
High Court has arrived at a finding of fact in disregard of a judicial process,
principles of natural justice or a fair hearing or has acted in violation of a
mandatory provision of Jaw or procedure resulting in serious prejudice or
injustice to the accused;
5. This Court might also interfere where on
the proved facts wrong inferences of law have been drawn or where the
conclusions of the High Court are manifestly perverse and based on no
evidence".
In the instant case, having regard to the
concurrent findings of fact by the High Court and the Sessions Judge that the
evidence of P.Ws. 1, 2 and 3 is worthy of credence, and after perusing the
evidence we also do not see any reason why the evidence of these witnesses
should be (1) [1977] 1 S.C.R. 280.
69 discarded. All the three witnesses have
been mentioned in the F.I.R. as being present on the scene of occurrence.
P.W. 3 has an injury which according to the
doctor could not be self inflicted. The presence of the injury on the person of
Chhotey Lal is a strong corroboration of the evidence of the eye-witnesses.
We shall now deal with some important
contentions raised by the appellants on the merits of the case. In the first
place, great reliance was placed on the evidence of P.W. 11 the Investigating
Officer who had said in his statement before the Sessions Court that he had found
four empty cartridges at the spot. Mr. Garg submitted that this admission of
the Investing Officer knocks the bottom out of the case of the prosecution. It
was argued that if the empty cartridges were recovered from the spot as deposed
to by this witness the, entire complexion of the case changes and it would
appear that the prosecution had not presented the true version of the case
before the Court. We have ourselves gone through the evidence of P.W. 1 1
carefully and we find that either the witness has made some confusion regarding
tile finding of four empty cartridges or the word "empty" has been
wrongly recorded in the statement of the witness as is clearly found by the
learned Judge in his judgment the extract of which has been quoted above. We
have already pointed out that although the trial Judie had clearly held that
the word "empty" instead of "live" was wrongly written in
the statement yet this statement of fact made by the Sessions Judge in his
judgment was not controverted by the appellants in their memo of appeal filed
in the High Court nor was any attempt made by the appellants to prove that the
said statement was wrong on a point of fact either by examining counsel who bad
conducted the case before the trial Court or by producing any other proof.
Furthermore, the learned Judge has clearly mentioned in his judgment that the
fact that four live cartridges belonging to the deceased were found lying at
the spot was not even challenged by the defence. Even this fact was not
controverted either before the Sessions Court or in the memo of appeal filed in
the High Court.
Finally, the High Court itself has pointed
out that Shri S. N. Mulla and Shri R. K. Shangloo who had represented the
appellants in the appeal in the High Court and had also appeared for the
appellants before the trial Court on enquiry by the High Court whether the
revolver cartridges exhibited at the trial were live or empty were not in a
position to refute the statement made by the prosecutor Shri B. C. Saxena. In
this connection, the High Court observed as follows "Shri S. N. Mulla and
Shri R. K. Shangloo represent the appellants in Criminal Appeal No. 2561 of
1969. Both these learned counsel had appeared on behalf of the defence before
the trial court. It was Shri Mulla who had cross-examined the investigating
Officer.
When we enquired from them as to whether the
revolver cartridges when exhibited at the trial were live or empty neither of
the two learned counsel found himself in a position to refute the statement
made by Shri B. C. Saxena".
70 Shri B. C. Saxena who had appeared for the
prosecution before the trial Court emphatically asserted that when the sealed
packet containing Ex.2 was opened it contained four live cartridges. Shri
Saxena also asserted that during the arguments the attention of the Sessions
Judge was pointedly drawn to the statement made by the Investigating Officer on
which reliance has been placed by the appellants and both the parties proceeded
on the footing that the cartridges were live when they were produced before the
Court. All these facts have been clearly mentioned in the judgment of the High
Court. The conduct of counsel for the appellants is fully consistent with the
observations made by the Sessions Judge in his judgment that there appears to
be some inadvertent mistake in recording the evidence of the Investigating
Officer.
Apart from this there is overwhelming
documentary evidence to show that the statement of the Investigating Officer in
Court that he found four empty cartridges is factually incorrect. To begin with
there is Ex. Ka. 10 which is the panchayatnama or the inquest report prepared
by the Investigating Officer himself which he proves in his evidence by stating
as follows :
"I reached the place of the occurrence
at 9 a.m. There I found the dead body of Babu Ram near the chak road towards
the north of the field of Laltu Nal lying on the ridge at a distance of about
2-3 paces. I had prepared the panchayatnama Ex. Ka-10".
In this inquest report it is clearly
mentioned by the Investigating Officer that he had found four live cartridges.
The exact words used are "4 " The Investigating Officer does not say
in his evidence that this finding of fact in the panchayatnama or the inquest
report was incorrect. The statement in the inquest report was made by the
Investigating Officer soon after the occurrence and was, therefore, the
earliest statement regarding a fact which he found and observed. The earlier
statement, therefore, is valuable material for testing the veracity of the
witness.
In the case of Baladin & Ors. v. State of
U.P. (1) it was pointed out by this Court that statements made by the
prosecution witnesses before the investigating police officer being the
earliest statements made by them with reference to the facts of the occurrence
are valuable material for testing the veracity of the witnesses examined.
In this connection, this Court observed as
follows "Statements made by prosecution witnesses before the investigating
police officer being the earliest statements made by them with reference to the
facts of the occurrence are valuable material for testing the veracity of the
witnesses examined in court but the statements made during police investigation
are not substantive evidence".
(1) A.I.R. 1956 S.C. 181.
71 Reliance was placed by the learned counsel
for the appellants on this decision in support of his argument that the
statements made in the inquest report were inadmissible in evidence being hit
by section 162 Cr. P.C. In the first place, the statement made by the
Investigating Officer in Ex.Ka-10 is not a statement made by any witness before
the police during investigation but it is a record of what the Investigating
Officer himself observed and found. Such an evidence is the direct or the
primary evidence in the case and is in the eye of law the best evidence. Unless
the record is proved to be suspect and unreliable perfunctory or dishonest,
there is no reason to disbelieve such a statement in the inquest report.
Reliance was also placed by counsel for the
appellants in the case of Surjan and Ors. v. State of Rajasthan(1) where ibis
Court observed as follows :
"But the statement in the inquest report
is not evidence by itself and it certainly cannot be pitted against the evi-
dence of the medical witness given in Court." This case is clearly
distinguishable from the facts and circumstances of the present case. What had
happened in that case was that a description of an injury found on the head of
the deceased as given by the Investigating Officer was inconsistent with the
medical evidence. This Court pointed out that where a statement in the inquest
report was pitted against the medical evidence it had to yield before the
opinion of the expert. It is obvious that the description given by the
Sub-Inspector was merely his opinion which was not the opinion of an expert and
could not, therefore, stand scrutiny before the evidence of a duly qualified
expert, viz., the doctor. This principle cannot be applied here for it does-not
require an expert knowledge to find out whether a live cartridge was there or
not. In these circumstances, therefore, the two cases cited by the appellants
do not appear to be of any assistance to them.
Reliance was further placed on a decision of
this Court in the case of Ch. Rizak Ram v. Ch. J. S. Chouhan ( 2) & Ors.
This case has also no application to the
facts of the present case because what had happened in that case was that a
statement of the witness Parmeshwari was recorded by the Investigating Officer
and thumb marked was being used in a election petition. It was held by this
Court that the statement was kit by section 162, Cr. P.C. This proposition is
well settled. Any statement made by any witness to a police officer during
investigation is clearly hit by section 162 and can be used only for contradicting
or corroborating the other witness and is not a substantive piece of evidence.
A statement contained in Ex. Ka-10 is not a statement of a witness at all but
is a memo of what the Investigating Officer had himself found and observed at
the spot and to such a case section 162 would have no application at all.
(1) A.I.R. 1956 S.C. 425.
(2) A.I.R. 1975 S.C. 667.
72 Reliance was also placed on a recent
decision of this Court in the case of Castano Piedade Fernandes & Anr. v.
Union Territory of Goa, Daman & Diu Panaji Goa(1). This case is also wholly
irrelevant to the issue in question because there the Court on a consideration
of the evidence found as a fact that the panchnama was not a genuine document
and did not inspire confidence. There is no such finding by the High Court or
the Sessions Judge in the instant case nor has the inquest report been shown to
be unreliable or perfunctory or suspect.
Apart from the inquest report Ex. Ka-10 there
is another document which throws a flood of light on this question.
Exh. Ka-18 which is the site plan prepared by
the Investigating Officer at the spot from where the empty cartridges of 12
bore were recovered. This is also a record of what the Investigating Officer
himself found at the spot.
The learned counsel for the appellants
submitted that the site plan was also not admissible in evidence because it
was- based on information derived by the Investigating Officer from the
statement of witnesses during investigation. Reliance was placed on a judgment
of this Court in the case of Jit Singh v. State of Punjab(2) where this Court
observed as follows "It is argued that presumably this site plan also was
prepared by the Investigating Officer in accordance with the various.
situations pointed out to him by the witnesses. We are afraid it is not
permissible to use the site plan Ex.P.14 in the manner suggested by the
counsel. The notes in question on this site plan were statements recorded by
the Police Officer in the course of investigation, and were hit by section 162
of the Code of Criminal Procedure. These notes could be used only for the
purposes of contradicting the prosecution witnesses concerned in accordance
with the provisions of section 145. Evidence Act and for no other
purpose".
In our opinion, the argument of the learned
counsel is based on misconception of law laid down by this Court. What this
Court has said is that the notes in question which are in the nature of a
statemen,' recorded by the Police Officer in the course of investigation would
not be admissible. There can be no quarrel with this proposition. Note No. 4 in
Ex. K-18 is not a note which is based on the information given to the
Investigating Officer by the witnesses but is a memo of what he himself founded
observed at the spot. Such a statement does not fall within the four-corners of
section 162, Cr-P.C. III fact, documents like the inquest reports, seizure
lists or the site plans consist of two parts one of which is admissible and the
other is inadmissible. That part of such documents which is based on the actual
observation of the witness at the spot being direct evidence in the case is
clearly admissible under section 60 of (1) [1977] 1 S.C.C. 707.
(2) A.T.R. 1976 S.C. 1421.
73 the Evidence Act whereas the other part
which is based on information given to the Investigating Officer or on the
statement recorded by him in the course of investigation is inadmissible under
section 162 Cr.P.C. except for the limited purpose mentioned in that section.
For these reasons, therefore, we are of the opinion that the decision cited by
the counsel for the appellants has no application to this case.
Exhibit Ka-13 is a memo relating to the
recovery of the empty cartridges found at the spot by the Investigating
Officer. The title of this memo runs thus :
"Memo relating to the recovery of Khokha
(empty case of cartridge of 12 bore from the site in the case as offence No.
126, under sections 147/148/149/302/392/ 324 I.P.C." It appears that where
an empty cartridge is mentioned it is described as Khokha whereas in the case
of live- cartridge the word "cartridges-Kartoos" has been clearly
mentioned.
Ex. Ka-13 is the seizure memo of the recovery
of an empty cartridge of 12 bore which was found at the spot and which was said
to have hit the deceased having been fired from the gun of one of the
appellants. It was also mentioned in this memo, that smell of the gun powder
was coming out of the Khokha. When the Investigating Officer deposed before the
Sessions Judge that smell was coming out from the cartridge he was actually
referring to the, empty cartridge which was recovered from the spot and which
was fired from the gun of the appellants. Ex. Ka-14 however is the seizure memo
of the four live Cartridges found by the Investigating Officer at the spot, in
which it is mentioned that four cartridges of 32 bore revolver are recovered.
The exact description is given thus :
"Description of the Cartridge Four
cartridge of 32 bore of revolver of brass cap and blacks lead Kynock-32 Sand W.
engraved on the brass cop.
old." It would be seen that the
description of the four cartridges with brass cap on lead intact show that the
cartridges were live and not empty because if the cartridges were empty then
there was no question of there being any black lead in existence at the spot.
The Investigating Officer has clearly proved these documents in his evidence
before the Sessions Judge and stated that he- had prepared these documents.
Thus these documents having been prepared im- mediately after the occurrence
are undoubtedly reliable.
Having regard, therefore, to the documentary
evidence and the circumstances mentioned above we find ourselves in complete
agreement*, with the view taken by the courts below that what had been
recovered at the spot by the Investigating Officer were four live cartridges
which had fallen at the spot when the bag of the deceased was 6-211 SC178 74
taken away by the appellants. We are unable to find any reliable evidence to
prove that the four cartridges found at the spot were empty cartridges. The
argument of the learned counsel for the appellants to the contrary must be
overruled.
Great reliance was placed by the appellants
on an application given by Rajendra son of the deceased before the S.D.M. Court at Bareilly informing the court that Babu Ram had been murdered. This
application is Ex. Ka-1 and was filed before the Magistrate on 9-12-1968. It is true that in this application it was. mentioned that Shri Babu Ram had
been murdered but the name of the appellants nor the circumstances under which
be was murdered have been mentioned. It was argued by Mr. Garg that the absence
of the names of the appellants clearly showed that the deceased was murdered by
unknown persons, and, therefore, only the fact of his murder was mentioned in
this application. The argument appears to be attractive, but on closer scrutiny
it is without any substance. P.W. 1 had already rushed to the police station to
lodge the F.I.R. wherein lie had narrated the facts which led to the death of
the deceased. Rajendra, son of the deceased who had been sent to Bareilly was sent for the limited purpose of informing the court regarding the death of
Babu Ram. In the proceedings under section 107 there was no occasion for
mentioning the name of the assailants of Babu Ram or for detailing the circumstances
under which he was killed because that was not germane for the proceedings. In
these circumstances, therefore, the absence of the name of the assailants in
this application cannot put the prosecution out of Court.
Learned counsel for the appellants made
certain comments against some of the witnesses which have been carefully dealt
with by the Courts below. The discrepancies relied upon by the appellants do
not appear to be of great consequence and do not merit serious consideration.
On a careful consideration of the entire
facts of the case we are clearly of the opinion that the prosecution case
against the appellants has been proved beyond reasonable doubt and we find no
reason to interfere with the judgment of the High Court upholding the conviction
and the sentences passed on the appellants in both the appeals. The result is
that the appeals fail and are accordingly dismissed.
M.R.
Appeals dismissed.
Back
