Tuesday, 22 November 2016

What is distinction between discrepancy and contradiction for appreciation of evidence?

 In the case of State of Himachal Pradesh Vs. Lekh Raj MANU/SC/0714/1999 : (2003)1 SCC 247 the apex court had held that:
Discrepancy has to be distinguished from contradiction whereas contradiction in the statement of the witness is fatal for the case, minor discrepancy or variance in evidence will not make the prosecution's case doubtful. The normal course of the human conduct would be that while narrating a particular incident there may occur minor discrepancies, such discrepancies in law may render credential to the depositions. Parrot-like statements are disfavored by the courts, In order to ascertain as to whether the discrepancy pointed out was minor or not or the same amounted to contradiction, regard is required to be had to the circumstances of the case by keeping in view the social status of the witnesses and environment in which such witness was making the statement.
5.7 In the case of Krishna Pillai Sree Kumar Vs. State of Kerala reported in MANU/SC/0166/1981 : 1981 Supp. SCC 31: 1981 CriLJ 743, the apex Court has held that it is no doubt true that the prosecution evidence does suffer from consistencies here and discrepancies there but that is a shortcoming from which no criminal case is free. The main thing to be seen is whether those inconsistencies, etc., go to the root of the matter or pertain to insignificant aspects thereof. In the former case, the defence may be justified in seeking advantage of the incongruities obtaining in the evidence. In the latter, however, no such benefit may be available to it. 
IN THE HIGH COURT OF GAUHATI (AGARTALA BENCH)
Crl. Appeal No. 115 (J) of 2008
Decided On: 19.10.2012
 Ranjit Sarkar
Vs.
State of Tripura
Coram:Brojendra Prasad Katakey and S.C. Das, JJ.

Citation:2013 (1) GLT709

1. On a charge framed under Section 302 of IPC, against the accused-appellant, Ranjit Sarkar, by learned Addl. Sessions Judge, Khowai, West Tripura, the appellant was found guilty and, accordingly, he was convicted by judgment and order dated 19.11.2008, passed by learned Additional Sessions Judge, Khowai, West Tripura in case No. S.T. 42(ST/K)2008, and the appellant was sentenced to suffer imprisonment for life and to pay a fine of Rs. 5,000/-(rupees five thousand), in default of payment of fine to suffer further rigorous imprisonment for 6(six) months. The accused-appellant, being highly aggrieved with the judgment and order of conviction and sentence, preferred the present appeal under Section 374 of CrPC. Heard learned counsel, Mr. P.K. Biswas for the appellant and learned P.P., Mr. D. Sarkar for the State respondent.
2. Bereft of unnecessary details, fact of the case, brought on record, is that, Anil Das, the victim, and the accused appellant, Ranjit Sarkar, were residents of village-Tuichindrai (Kusher Tilla) and, on 17.06.2007 at about 10.00 am, they had a quarrel over draining out of rain water through paddy land. Sabtri Das(PW 1), a daughter-in-law of Anil Das, Rina Das(PW 6), Sumitra Das(PW 11) and some others, intervened in the quarrel and asked Ranjit Sarkar not to altercate with Anil Das and, they brought Anil Das to the house. On way to house, in front of the house of Ranjit Sarkar, again they (Anil and Ranjit) picked up quarrel on the same issue and, at that time Ranjit Sarkar threatened Anil Das uttering that he will show him the consequence in the evening.
2.1 At about 9.00 pm on 17.06.2007, Anil Das accompanied with Ajit Das(PW 2) was returning home from Tuichindrai market and, when they reached in front of the house of Ranjit Sarkar, on the road, Ranjit asked Anil to stop and told him that he had something to say, but Anil did not stop and proceeded towards his house and, at that time, Ranjit Sarkar, coming from backside, with a wooden file, dealt a severe blow on the head of Anil Das from backside and, as a result, Anil received severe head injury and fell on the ground. Ajit Das(PW 2) raised alarm and neighbouring people, including the inmates of the house of Anil Das came to the spot and Ajit Das narrated to all of them that Ranjit struck the fatal blow on the head of Anil, causing injury. Anil was taken to Teliamura hospital from where he was shifted to GB. hospital but on the next morning Anil succumbed to the injuries.
2.2 Sabitri Das(PW 1), lodged an FIR in writing with the O/C Teliamura PS alleging the incident, and based on that FIR, Teliamura PS Case No. 45 of 2007 was registered under Sections 341/302 of IPC and, an investigation was taken up. SI Akhther Hossain(PW 16) was entrusted with the charge of investigation. He examined all material witnesses and recorded their statements. He also gave requisition for inquest report over the dead body and, accordingly, PW 14, an ASI of Police of GB. Police Out Post prepared the inquest report and, thereafter, postmortem examination was done over the dead body. In course of investigation, I.O. also seized the 'weapon of offence' (wooden file), which has been proved as Exbt. MO-1, the torchlight, which was in the hand of PW 2, Ajit Das was also seized and proved as Exbt. MO-2. On completion of investigation, I.O. submitted charge sheet against the accused-appellant, Ranjit Sarkar for commission of offence punishable under Sections 341/302 of IPC.
2.3 Cognizance was taken on the basis of the police report and on commitment of the case to the Court of Addl. Sessions Judge, Khowai, West Tripura, charge was framed against accused Ranjit Sarkar for commission of offence punishable under Section 302 of IPC to which he pleaded not guilty and claimed to be tried.
2.4 In course of trial, to prove the charge, prosecution examined 16(sixteen) witnesses. Out of them, PWs 1, 6, and 11 are the witnesses to the quarrel in between deceased, Anil Das and accused, Ranjit Sarkar in the morning of the date of occurrence and, out of them PW 1 is the daughter-in-law, by relation, of the deceased Anil Das and she lodged the FIR on 18.06.2007 in the morning.
PW 2 Ajit Das is the star witness of the prosecution and is the only eye witness of the occurrence of assault on Anil Das. According to the prosecution, he was accompanying Anil Das, while Anil was assaulted by accused Ranjit on the road near his house. He raised the alarm and other witnesses rushed to the place of occurrence and he reported the incident to the other witnesses.
PWs 3, 4, 5, 7, 10 and 12, all rushed to the spot on hearing the alarm raised by Ajit Das(PW 2) and Ajit narrated the fact to all of them stating that Ranjit Sarkar, the accused, inflicted fatal blow on the head of Anil Das causing the injury. PWs 1, 6 and 11 also rushed to the spot and they were also reported by Ajit Das about the murderous assault.
PW 8 is the son-in-law of the deceased, who went to the hospital on the following day and he was also informed by PW 2 about the occurrence.
PW 13 is a constable of police, who identified the dead body of the deceased Anil Das at the time of postmortem examination.
PW 14 prepared the inquest report over the dead body of the deceased Anil Das in the GB. Hospital.
PW 15 is the medical officer, who conducted postmortem examination over the dead body.
PW 16 is the IO of the case.
2.5 Prosecution also proved the FIR (Exbt. 1/1), inquest report (Exbt. 4), hand-sketch map with index (Exbt. 6 series), postmortem report (Exbt. 5), etc. in support of their case.
2.6 While recording of prosecution evidence was over, the accused was examined under Section 313 of CrPC and, thereafter, on his turn, he declined to adduce any defence evidence. Defence case is nothing but bare denial of the prosecution case.
2.7 Learned Addl. Sessions Judge, at the conclusion of trial, held the accused appellant guilty of committing offence of murder of Anil Das and sentenced him accordingly as aforesaid.
3. Whether Anil Das died a homicidal death?
3.1 Anil Das died a homicidal death, has not been disputed by the defence. According to the eye witness (PW 2), the accused Ranjit Sarkar struck a severe blow on the head of deceased, Anil Das and, on receipt of the injury, Anil Das collapsed on the road. PW 2 raised alarm and also rushed to the neighbouring peoples of the locality and many peoples gathered in the spot where Anil Das was lying with the fatal head injury, where from he was shifted to Teliamura hospital and then to GB. hospital and, he died in GB. hospital in the following morning.
3.2 It is also not disputed that PW 15, Dr. Ranjit Kr. Das, conducted postmortem examination over the dead body. In his deposition PW 15 stated that he found the following ante mortem injuries:
1) Stitched lacerated wound measuring 7.5 cm. in length is found over the anterior aspect of right parietal region of scalp and placed obliquely extending from 8.5 cm above right eye brow and 4 cm right of midline.
2) Haematoma is present into the deeper layers of scalp over right parietal, temporal and occipital region.
3) Comminuted fracture with a depressed piece of bone measuring 4 cm x 2 cm is present over right side of frontal bone and anterior part of right parietal bone.
4) Diffused subdoral heamorrhage is present over both cerebral hemispheres more on the left side.
5) One abrasion measuring 3 cm x 2 cm is present over the dorsum of left wrist joint.
3.3 He opined that cause of death was resulting from head injury which was caused by impact of blunt force and was sufficient to cause death in the ordinary course of nature. The postmortem examination report was marked as Exbt. 5. He was not cross-examined by the defence. The observation of the doctor that Anil Das died a homicidal death because of the head injury which was sufficient to cause death in the ordinary course of nature, remained unchallenged and, hence, established.
4. Whether there was a quarrel between the accused and the deceased in the morning on 17.06.2007?
PWs 1, 6 and 11 made categorical statements that on the date of occurrence, at about 10/11 am, there was a hot altercation/ quarrel between the deceased, Anil Das and the accused, Ranjit Sarkar, in their paddy land on the issue of drainage of rain water through their land and, at that time, PWs 1, 6, 11 and others went there and intervened in the quarrel and also asked Ranjit Sarkar not to quarrel with Anil Das. PW 1 took Anil Das towards his house and, on the way near the house of Ranjit Sarkar, again they picked up quarrel and, at that time, Ranjit threatened him saying that Anil Das will face the consequence in the evening. This evidence of quarrel as stated by PWs 1, 6 and 11 has not been shaken in any manner in cross-examination of those witnesses, or otherwise. Defence also, in course of argument of this appeal, did not seriously raise any point in respect of the quarrel between the deceased and the accused in the morning of the day of occurrence.
5. Whether the evidence of PW 2, the sole eye witness, is reliable?
5.1 PW 2 is the sole eye witness of the occurrence. In his deposition he stated that, at about 8.00/8.30 pm, he along with Anil Das, were returning to their house from Tuichindrai marked. He had a three-cell torchlight and one bag in his hand. When they reached near the house of Ranjit Sarkar, they were asked by Ranjit as to where they were going, to which they answered that they were going towards their houses. Ranjit, thereafter, called Anil Das to halt saying that he had some talk with Anil. Anil replied that the talk, if any, will be later on and they proceeded towards their houses. In the meantime, one Mani Kanchan Chowdhury also arrived there and enquired about their talk. Thereafter, they started towards their houses. Suddenly, Ranjit Sarkar coming from behind with a wooden file, struck a severe blow on the head of Anil Das and, as a result, Anil Das fell on the ground receiving grievous head injury. He (witness) raised alarm and went to the house of Bimal Das, Sibu Das etc. and stated about the incident. He, then, returned to the place of incident and, thereafter, shifted the injured to hospital. The injured, Anil Das was referred to G.B. hospital, where he died on the following morning.
The other witnesses, examined by the prosecutions all learnt about the occurrence of assault from PW 2, which is overwhelmingly brought on record in the deposition of all the witnesses.
5.2 Learned counsel, Mr. Biswas vociferously argued that PW 2 can in no way be relied on as an eye witness because of various infirmities in the evidence on record.
On the other hand, learned P.P., Mr. Sarkar has submitted that PW 2 was the companion of the deceased and he is the sole eye witness of the occurrence. He raised his voice seeing the murderer's assault and, thereafter, other witnesses came to the spot. There is nothing on record in the evidence of the witnesses to disbelieve PW 2 or to through a doubt in his deposition.
5.3 The first ground of attack of learned counsel, Mr. Biswas is that none of the witnesses stated that hearing the alarm of PW 2 they went to the spot where Anil Das was lying injured and so PW 2 cannot be believed.
We have meticulously gone through the deposition of the witnesses to scrutiny the evidence on record.
PW 2 stated that, he raised alarm and went first to the house of Bimal Das and narrated the incident. After that, he went to the house of Sibu Das and stated about the incident.
PW 1 stated that, in the evening of the date of occurrence, her brother-in-law, Ajit Das (PW 2) came to the house raising alarm that Ranjit Sarkar killed Anil Das in front of the house of Ranjit Sarkar and, accordingly, she along with others rushed to the place of occurrence.
PW 4 stated that, hearing alarm of someone he rushed to the place of occurrence i.e. in front of the house of Ranjit Sarkar and found Anil Das lying there with injury on his person and many other people also came there and he heard from Ajit Das that Ranjit Sarkar killed Anil Das.
PW 5 stated that, on hearing alarm of someone he rushed to the place of occurrence i.e. in front of the house of Ranjit Sarkar and found Anil Das lying there with injury and he also came to know from Ajit Das that Ranjit Sarkar struck on the head of Anil Das by a wooden file resulting which Anil Das died.
PW 6 stated that, on the date of occurrence at about 8.30/8.45 pm, Ajit Das was shouting on the road in front of their house saying that Ranjit Sarkar struck Anil Das by a wooden file, resulting his death.
PW 7 stated that, at the relevant time he also heard alarm and rushed in front of the house of Ranjit Sarkar and found his uncle Anil Das, lying injured and he came to know from Ajit Das that Ranjit Sarkar assaulted him by wooden file.
PW 8 stated that Ajit Das told him that Ranjit Sarkar struck the deceased with a wooden file, causing the injury.
PW 9 stated that, he heard alarm from the road and came out from his house and found Anil Das in injured condition, lying on the road near Kali temple and he heard from Ajit Das that Ranjit Sarkar assaulted Anil Das, causing injury.
PW 10 stated that he was in his house and he heard alarm of some persons, and Satish Sarkar and Nirmal Sarkar(PWs 4 and 5 respectively) called him and, he went out with them to the spot near Kali temple, about 30 cubit from the gate of Ranjit Sarkar, and found Anil Das lying injured.
PW 11 stated that, at about 8.30/8.45 pm, Ajit Das was shouting on the road in front of their house saying that Ranjit Sarkar struck Anil Das by a wooden file, resulting his death.
PW 12 stated that hearing alarm he went in front of the house of Ranjit Sarkar and found Anil Das, lying on the road in injured condition and, Ajit Das told him that Ranjit Sarkar assaulted Anil Das, causing the injuries.
What emerges form the above statements of the witnesses is clear enough that the alarm was raised by Ajit Das(PW 2) alone and, hearing his alarm all the witnesses rushed to the spot and found Anil Das, lying on the road near the house of Ranjit Sarkar or the Kali temple and, none else than Ajit Das raised the alarm.
The argument, therefore, advanced by learned counsel, Mr. Biswas deserves no consideration.
5.4 The next; argument advanced by learned counsel, Mr. Biswas is the evidence of PW 4. In cross-examination, PW 4 stated that he first reached to the spot after hearing alarm and, thereafter, Nirmal Sarkar reached there. Many others also reached there including Ajit Das(PW 2) and Mani Kanchan Chowdhury(PW 9). Learned counsel, Mr. Biswas, therefore, submits with much emphasis that Ajit Das was not there with the deceased at the time of occurrence. Had it been so, Ajit Das might have been present there and would not leave the place. He has further submitted that it is the ordinary human conduct that he will remain by the side of the injured to help him and would not leave him alone. He, therefore, contends that Ajit Das cannot be accepted as an eye witness of the occurrence.
We have meticulously gone through the evidence of PW 2 (Ajit Das), the sole eye witness of the occurrence. His consistent statement is that he, along with the deceased, was returning home together and, at that time the incident occurred and he witnessed the incident. This statement of the witness that he and Anil Das were returning home together has not been shaken in cross-examination or by any other item of evidence on record in any manner. There is not even a denial or suggestion in the cross-examination of PW 2 that he was not returning home along with Anil Das at the time of occurrence. Admittedly, PW 4 was in his house and he heard the alarm from his house and then went out. We find in the evidence that, Ajit Das only raised the alarm calling others after the assault and he rushed to the house of PWs 1, 3, 6 and 11. They stated that Ajit went there and called them. The incident occurred at about 8.30/ 9.00 pm of the night in a remote village on the road and it was natural for the witness to raise alarm and to inform others to rush to the place of occurrence. One cannot expect that the particular person after such an occurrence will react in a particular direction. There is no straight jacket formula or a rule that every person under such circumstances will react in a particular manner and direction. While the evidence on record that PW 2, immediately after the occurrence, raised alarm and went to call the others, it was natural that PW 4, when hearing the alarm reached the spot did not find the witness (PW 2) but PW 4 also stated that he learnt about the occurrence from PW 2. We cannot come to an agreement with the submission of learned counsel, Mr. Biswas that the conduct of PW 2, in the circumstances, was unnatural or contrary to a normal human being. This argument, therefore, merits no consideration.
In the case of Himmat Sukhadeo Wahurwagh Vs. State of Maharastra, MANU/SC/0704/2009 : (2009)6 SCC 712 the apex court made a very significant observation which is quoted thus--
The criminal justice system as we understand it as of today in our country is beset with major issues, sometimes unrelated to what happens in court, particularly in cases involving more than one accused. Fudged and dishonest first information reports, tardy and misdirected investigations and witnesses committing perjury with not the slightest qualm or a quibble make the decision of even the most diligent and focused of judges particularly galling and difficult. Several other factors inhibit the proper conduct of proceedings in a trial. In this pernicious state of affairs, the Judge, gravely handicapped, has to apply his knowledge of the law and his assessment of normal human behaviour to the facts of the case, his sixth sense based on his vast experience as to what must have happened, and then trust to God and good luck that he strikes home to come to a right conclusion. To our mind, the last two are undoubtedly imponderables but they do come into play in negotiating the judicial minefield. This is an undeniable fact whether we admit it or not.
5.5. The next argument advanced by learned counsel, Mr. Biswas is that, PW 2 has been contradicted by PW 9 in respect of presence of PW 9 on the spot before the occurrence and, therefore, it will be dangerous to rely on the sole evidence, of PW 2 as an eye witness of the occurrence. In his deposition PW 2 stated that while they were on way to home, they had a conversation with accused Ranjit and at that time PW 9 went there and wanted to know about their conversation and, thereafter, they proceeded towards their houses. PW 9 in his deposition did not say anything that he went there at that relevant time and wanted to know about their conversation. Neither the prosecution nor the defence put any question to PW 9 about the statement made by PW 2 in respect of the presence of PW 9 at that point of time. Under such circumstances, simply because PW 9 did not state anything about the fact what was stated by PW 2, we find no reason to disbelieve or through doubt on the entire statement of PW 2. It may be an omission but it is not so fatal that it will destroy the entire evidence of PW 2.
It is an undisputed fact that P.W. 9 is a close neighbour of accused Ranjit Sarkar. According to P.W. 2, the accused first enquired with P.W. 2 and the deceased Anil as to where they were going to which P.W. 2 told that they were going home. Saying so, they were on the way to their house, when the accused asked Anil to halt that he (accused) had something to say, but Anil replied that the talk, if any, will take place later on. At that time Mani Kanchan(P.W. 9) enquired about the conversation. Thereafter they (P.W. 2 & Anil) again started for their home. Thereafter accused came from behind and struck the fatal blow. Mani Kanchan(P.W. 9) being a close neighbour of accused might have enquired and then entered in his house and later on hearing alarm raised by P.W. 2 came out on the road and found the deceased in injured condition and learnt about the occurrence from P.W. 2. In the absence of any question to P.W. 9, to that effect, it will cause serious miscarriage of justice, if any doubt is thrown on the deposition of P.W. 2.
5.6 In the case of State of Himachal Pradesh Vs. Lekh Raj MANU/SC/0714/1999 : (2003)1 SCC 247 the apex court had held that:
Discrepancy has to be distinguished from contradiction whereas contradiction in the statement of the witness is fatal for the case, minor discrepancy or variance in evidence will not make the prosecution's case doubtful. The normal course of the human conduct would be that while narrating a particular incident there may occur minor discrepancies, such discrepancies in law may render credential to the depositions. Parrot-like statements are disfavored by the courts, In order to ascertain as to whether the discrepancy pointed out was minor or not or the same amounted to contradiction, regard is required to be had to the circumstances of the case by keeping in view the social status of the witnesses and environment in which such witness was making the statement.
5.7 In the case of Krishna Pillai Sree Kumar Vs. State of Kerala reported in MANU/SC/0166/1981 : 1981 Supp. SCC 31: 1981 CriLJ 743, the apex Court has held that it is no doubt true that the prosecution evidence does suffer from consistencies here and discrepancies there but that is a shortcoming from which no criminal case is free. The main thing to be seen is whether those inconsistencies, etc., go to the root of the matter or pertain to insignificant aspects thereof. In the former case, the defence may be justified in seeking advantage of the incongruities obtaining in the evidence. In the latter, however, no such benefit may be available to it. That is a salutatory method of appreciation of evidence in criminal case which does not appear to have been followed by the learned Sessions Judge; and that is the reason why he landed himself into wrong conclusions, as has been pointed out by the High Court.
5.8 In the case of Bharwada Bhoginbhai Hirjibhai Vs. State of Gujrat reported in MANU/SC/0090/1983 : AIR 1983 SC 753, the apex Court has held that overmuch importance cannot be given to minor discrepancies. Discrepancies which do not go to the root of the matter and shake the basic version of the witnesses, therefore, cannot be annexed with undue importance. More so when the all important "probabilities-factor" echoes in favour of the version narrated by the witnesses.
5.9 In the case at hand, the witnesses are from remote village. The incident occurred in the extreme village of Tuichindrai. It is evident that they could hardly write their names. One cannot expect that they would be thorough of the court's process and procedure and could narrate the facts of their own without being questioned by the lawyers or court. A mere omission of a fact, which a witness did not state, or a mere exaggeration of a fact, cannot altogether make a cogent statement unbelievable, unless it shakes the very basic root of the case.
5.10 Hon'ble Justice B.N. Agarwal of the Supreme Court in the case of Krishna Mochi & Ors. Vs. State of Bihar reported in MANU/SC/0327/2002 : AIR 2002 SC 1965 considered the conduct and circumstances under which such people come before the Court and give evidence and, therefore, the Courts are required to be very careful about the evidence while accepting as well as discarding the evidence. In paragraphs 75 and 76 of the judgment, the Court held thus:
75. It is matter of common experience that in recent times there has been sharp decline of ethical values in public life even in developed countries much less developing one, like ours, where the ratio of decline is higher. Even in ordinary cases, witnesses are not inclined to depose or their evidence is not found to be credible by courts for manifold reasons. One of the reasons may be that they do not have courage to depose against an accused because of threats to their life, more so when the offenders are habitual criminals or high-ups in the Government or close to powers, which may be political, economic or other powers including muscle power. A witness may not stand the test of cross-examination which may be sometime because he is a bucolic person and is not able to understand the question put to him by the skilful cross-examiner and at times under the stress of cross-examination, certain answers are snatched from him. When a rustic or illiterate witness faces an astute lawyer, there is bound to be imbalance and, therefore, minor discrepancies have to be ignored. These days it is not difficult to gain over a witness by money power or giving him any other allurance or giving out threats to his life and/or property at the instance of persons, and/or close to powers and muscle men or their associates. Such instances are also not uncommon where a witness is not inclined to depose because in the prevailing social structure he wants to remain indifferent. It is most unfortunate that expert witnesses and the investigating agencies and other agencies which have an important role to play are also not immune form decline of values in public life. Their evidence sometimes becomes doubtful because they do not act sincerely, take everything in a casual manner and are not able to devote proper attention and time.
76. Thus, in criminal trial a prosecutor is faced with so many odds. The Court while appreciating the evidence should not lose sight of these realities of life and cannot afford to take an unrealistic approach by sitting in ivory tower. I find that in recent times the tendency to acquit an accused easily is galloping fast. It is very easy to pass an order of acquittal on the basis of minor points raised in the case by a short judgment so as to achieve the yardstick of disposal. Some discrepancy is bound to be there in each and every case which should not weigh with the Court so long it does not materially affect the prosecution case. In case discrepancies pointed out are in the realm of pebbles, court should tread upon, it but if the same are boulders, court should not make an attempt to jump over the same. These days when crime is looming large and humanity is suffering and society is so much affected thereby, duties and responsibilities of the courts have become much more. Now the maxim "let hundred guilty persons be acquitted, but not a single innocent be convicted" is, in practice, changing world over and courts have been compelled to accept that "society suffers by wrong convictions and it equally suffers by wrong acquittals". I find this Court in recent times has conscientiously taken notice of these facts from time to time. In the case Inder Singh and Anr. v. State (Delhi Administration): MANU/SC/0093/1978 : AIR 1978 SC 1091, Krishna Iyer, J. laid down that "Proof beyond reasonable doubt is a guideline, not a fetish and guilty man cannot get away with it because truth suffers some infirmity when projected through human processes." In the case of State of U.P. v.: Anil Singh: MANU/SC/0503/1988 : AIR 1988 SC 1998, it was held that a Judge does not preside over a criminal trial merely to see that no innocent man is punished. A Judge also presides to see that a guilty man does not escape. One is as important as the other. Both are public duties which the Judge has to perform. In the case of State of West Bengal v.: Orilal Jaiswal and Anr.: MANU/SC/0321/1994 : (1994) 1 SCC 73, it was held that justice cannot be made sterile on the plea that it is better to let hundred guilty escape than punish an innocent. Letting guilty escape is not doing justice, according to law. In the case of Mohan Singh and Anr. v.: State of MP. MANU/SC/0035/1999 : (1999) 1 SCR 276, it was held that the courts have been removing chaff from the grain. It has to disperse the suspicious cloud and dust out the smear of dust as all these things clog the very truth. So long chaff, cloud and dust remains, the criminals are clothed with this protective layer to receive the benefit of doubt. So it is a solemn duty of the courts, not to merely conclude and leave the case the moment suspicions are created. It is onerous duty of the court, within permissible limit to find out the truth. It means, on one hand no innocent man should be punished but on the other hand to see no person committing an offence should get scot free. If in spite of such effort suspicion is not dissolved, it remains writ at large, benefit of doubt has to be credited to the accused.
5.11 In view of the cogent statement of PW 2, which is corroborated by the evidence of other witnesses, we find no reason at all to through doubt on the testimony of PW 2 on this ground as argued by learned counsel, Mr. Biswas.
6. It has also been submitted by learned counsel, Mr. Biswas, referring to the decision of this Court, in the case of Chagir Mia & Ors. Vs. State of Tripura reported in MANU/GH/0573/2006 : 2006 (4) GLT 71, that where the solitary eye witness is doubtful, prosecution case cannot stand.
The factual matrix of that case is different to that of the case at hand and, the ratio of that decision, in our considered opinion, cannot be applied in the facts and circumstances of the present case.
7. Learned counsel, Mr. Biswas has further argued that the FIR was lodged on 18.06.2007 but it was received by the Court on 20.06.2007. It has not been explained by the prosecution as to where the FIR was on 19.06.2007. Learned counsel, therefore, has submitted that the very foundation of the prosecution case is shrouded with suspicion.
Learned P.P. has submitted that the FIR was lodged on 18.06.2007 at 8.25 hrs. before the O/C Teliamura PS. It might be forwarded by the O/C of the PS to the concerned Court immediately thereafter. No question was raised by the defence during cross-examination of prosecution witnesses including the I.O. on the issue and, therefore, defence cannot raise this question now before the appellate Court and cannot doubt the authenticity of the FIR.
On perusal of the records, we find that the FIR was lodged on 18.06.2007 by PW 1 before the O/C, Teliamura PS. In the prescribed form of FIR, it has been recorded that it was received at 0825 hrs. and G.D. entry No. 768 dated 18.06.2007 was made at PS. According to law it was supposed to be dispatched to the nearest Court of the Judicial Magistrate immediately. The receipt seal put on the body of the FIR in the Court of SDJM, Khowai, shows that it was received on 20.06.2007 and, first order by the learned Magistrate was also passed on that day. Nothing is on record as to where the FIR was on 19.06.2007. Definitely, it was on transit on 19.06.2007. No question was raised on the issue to the prosecution witnesses regarding the FIR, at the time when the witnesses were in the dock. Raising of such a point, at this stage, therefore, cannot serve any purpose of the defence.
8. The next point raised by learned counsel, Mr. Biswas is that, PW 1 has stated that the accused dealt one blow on the head of the deceased Anil Das, coming from behind, but the autopsy surgeon found as many as five injuries, which suggest that more than one injury had been inflicted and hence P.W. 2 cannot be believed to be a eye witness of the occurrence.
We have already reproduced above the observations made by PW 15 in his deposition before Court regarding the injuries found by him. PW 2 stated that the accused struck a blow with Exbt. MO-1 on the head of the deceased causing severe injury The inquest report which is marked as Exbt. 4 also shows that one injury was found on the head of the deceased and there was another injury on the left hand wrist. On perusal of the deposition of PW 15, we find the doctor found one stitched lacerated wound that is injury No. 1 on the anterior aspect of right parietal region. Injury Nos. 2, 3 and 4 suggests that those were found after opening the injury No. 1. All those injuries were on the head. It is apparent that all those injuries were at different layers of the head. No question was put to the witness to elucidate as to whether the injuries were because of a single blow or several blow. Injury No. 5 is a simple abrasion on the left wrist, which might occur on fall, after receiving the head injury. There was no cross-examination on the part of the defence regarding the injuries found by PW 15. We find no justification in the submission made by learned counsel, Mr. Biswas, since in our considered opinion there is no apparent conflict between the ocular evidence of PW 2 and the opinion evidence of PW 15.
9. Use of previous statement recorded during investigation.
9.1 A statement, 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 evidence of the case.
A statement made or recorded as FIR or a statement recorded during investigation of a criminal case by a police officer, 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. There is also no restriction in law that a person cannot be examined as a witness if he has no previous statement recorded by a police officer in course of investigation or otherwise.
Learned counsel, Mr. Biswas, in course of his argument has drawn our attention to the cross-examination of the witnesses and has submitted that the witnesses, including PW 2, has made contradictory statement before the Court to that of their earlier statements recorded by IO during investigation and, so, those witnesses cannot be believed.
9.2 Let us quote here some of such statements recorded by the trial court in course of cross-examination of witnesses by the defence for fair appreciation:
In the cross-examination of PW 1, following statements were recorded:
I stated to police about the utterings of Ranjit Sarkar in respect of taking bath with the blood of deceased. The above statement is not found in the exact language but it is found in some other form that "Maja Dekhaba.
I also stated about quarrel for the second time while coming from the paddy land in front of my house, but no such statement is found in 161 statement.
In the cross-examination of PW 2, following statements were recorded:
I also stated to police officer about information to Bimal Das but no such statement is found in 161 statement.
In the cross-examination of PW 3, following statement was recorded:
I stated to police that I got information from Ajit Das but no such statement is found
In the cross-examination of PW 6, following statements were recorded:
I also stated to police that Ranjit Sarkar again started quarrel in front of my gate with Anil Das while we were returning. No such statement is found in 161 statement.
I stated to police that I was hearing alarm of Ajit Das on the road in front of our house. No such statement is found in 161 statement
In the cross-examination of PW 11, following statements were recorded:
I stated to police that on hearing alarm we rushed in front of the gate of Ranjit Sarkar and found Anil Das lying at a distance of 7/8 cubits on the main road. No such statement is found in respect of going of the witness on hearing the alarm in front of the gate of Ranjit Sarkar in 161 statement.
I stated to police that I went to the paddy field of Ranjit Sarkar alongwith Sabitri Das and brought Anil Das from the paddy land towards his house and also told Ranjit Das not to quarrel with Anil Das. No such statement is found in 161 statement.
I also stated to police that Ranjit Sarkar again started quarrel in front of my gate with Anil Das while we were returning. No such statement is found in 161 statement.
I stated to police that I was hearing alarm of Ajit Das or the road in front of our house. No such statement is found in 161 statement.
In the cross-examination of PW 12, following statements were recorded:
I stated to police that I got information from Ajit Das about the involvement of the accused. No such statement is found in 161 statement.
I stated to police that I found the victim in front of the gate of Ranjit Sarkar. The above statement is not found in 161 statement in exact language as stated but found in different form, "That I found the victim in front of Kali Temple.
9.3 The statements reproduced above do not show that attention of the witnesses were drawn to their previous statements recorded by the police officer in course of investigation and the response of the witnesses after drawing such attention have been recorded. It is not the function of the Presiding Officer of the Court to record his own observation in culling out some part of the police statement while recording deposition of a witness in the course of cross-examination. The Presiding Officer is to ensure that attention of the witnesses is drawn to such previous statement and to record the answer given by the witness in respect of such previous statement and not his own observation. A previous statement recorded by IO is only to be used for contradicting a witness in course of cross-examination and nothing else. It cannot be regarded as a substantial evidence. The Court is not required to record any part of such statement with a view to show what the witness stated earlier before the police.
9.4 A police officer, making an investigation under Chapter XII of the Code of Criminal Procedure, may examine orally any person acquainted with the facts and circumstances of the case and may reduce into writing any such statement. Section 161 of the Code empowers a police officer to reduce such statement to writing. Section 162 of CrPC provides that such statement shall not be signed by the person making it and shall not be used for any purpose at any inquiry or trial in respect of any offence under investigation save as provided under that section. For a fair appreciation, let us reproduce here the contents of Section 162 of CrPC, which read thus:
162. Statements to police not to be signed-- Use of statements in evidence.--(1) No statement made by any person to a police officer in the course of an investigation under this Chapter, shall, if reduced to writing, be signed by the person making it, nor shall any such statement or any record thereof, whether in a police diary or otherwise, or any part of such statement or record, be used for any purpose, save as hereinafter provided, at any inquiry or trial in respect of any offence under investigation at the time when such statement was made:
Provided that when any witness is called for the prosecution in such inquiry or trial whose statement has been reduced into writing as aforesaid, any part of his statement, if duly proved, may be used by the accused, and with the permission of the Court, by the prosecution, to contradict such witness in the manner provided by section 145 of the Indian Evidence Act, 1872(1 of 1872) and when any part of such statement is so used, any part thereof may also be used in the reexamination of such witness, but for the purpose only of explaining any matter referred to in his cross-examination. (2) Nothing in this section shall be deemed to apply to any statement falling within the provisions of clause (1) of section 32 of the Indian Evidence Act, 1872 (1 of 1872), or to affect the provisions of section 27 of that Act.
9.5 It would appear from the above that the statement of a witness made before a police officer can be used only to contradict such witness--(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 Evidence Act, which reads thus:
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.
9.6 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. Vs. 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 that--
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 the 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 that -
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, If 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 Cr.P.C. and the relevant provision of Sections 145, 155 and 157 of the Evidence Act.
9.7 In the case at hand, the statements, reproduced above, recorded during cross-examination, make it clear that the witnesses were questioned in respect of some part of the statements made before the Court whether it was stated by the witness concerned to the police officer while examined by such police officer to which the witness stated that he made the statement to the police officer. Thereafter, the witness was not contradicted with his previous statement as per the procedure prescribed by law. Therefore, the above statements cannot be termed as a contradiction for consideration to evaluate the deposition of the witnesses made on oath before the Court.
9.8 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 made 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. The observation of the Court, whether such statement was there or not, in the previous statement, recorded by IO is of no consequence at all. 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.
9.9 In the case of Sunder Singh Vs. 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.
9.10 In view of the discussions made above, we are of the view that the recording of contradiction was not correct and not according to law and, hence, neither the prosecution nor the defence took advantage of it. The statement, what is made by the witness before the Court on oath shall be regarded as the evidence unless it is found to have shaken in the manner as prescribed by law.
Having regard to the evidence on record, we are of the opinion that the accused with the intention of killing the deceased, because of the quarrel he had with the deceased, in the morning, regarding drainage of water in their land, attacked the deceased and struck the fatal blow on the head of the deceased and, therefore, the ingredient of offence of murder has clearly been established and the accused has therefore rightly been found to have guilty of the offence charged against him.
In view of the discussions made above, we are of the considered opinion that learned Addl, Sessions Judge rightly considered the evidence and materials on record and arrived at a correct finding of guilt of the accused in respect of the charge of murder framed against him and, hence, we are inclined to uphold the judgment and order of conviction and sentence. Accordingly, the appeal stands dismissed.
Send back the L.C. records along with a copy of the judgment.
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