High Court
Case Details
Crl.A. 288/2012 BEFORE THE HON’BLE MR.JUSTICE I.A. ANSARI THE HON’BLE MR. JUSTICE P.K. MUSAHARY This appeal is directed against the judgment and order, dated 07.09.2012, passed , in Sessions Case No. 59/2000, by the learned Addl. Sessions Judge, Dhubri, con victing the accused-appellants under Section 302 IPC and sentencing them to suff er imprisonment for life and pay fine of Rs.10,000/- and, in default of payment of fine, suffer simple imprisonment for a period of one year. By the impugned ju dgment and order, learned trial Court has also convicted the present appellant a long with Tofizuddin, Abul Hussain, Aftar Ali, Ajgar Ali and Motior Rahman @ Mot ibur Rahman @ Moti under Section 322 read with Section 149 IPC and sentenced eac h one of them accordingly to undergo simple imprisonment for a period of three m onths and pay a fine of Rupees one thousand and, in default of payment of fine, undergo simple imprisonment for a further period of 15 days. 2. The case of the prosecution, as unfolded at the trial, may, in brief, be described as under: (i) Habibur Rahman is the husband of Waheda Khatun and brother of Malamat Al i. Deceased Kasem Ali was nephew of Habibur Rahman. On hearing about the illness of Malamat Ali’s son, Habibur Rahman (PW1), accompanied by his wife, Wahida (PW 5), started, on 09.08.98, from his house, at around 7.30 am, towards the house o f Malamat and, on the way, they happened to meet Salamat Ali, Asan Ali (PW2) and Kasem Ali. Asan Ali, being a neighbour of Kasem, and also Kasem joined them. Wh ile Habibur Rahman and his wife were ahead of others and they were, having passe d over an embankment, crossing jute field, accused Mofizuddin, Tofizuddin and ot hers came out of their house and asked Habibur Rahman as to why they were using the said passage. While Mofizuddin caught hold of Habibur Rahman, Tafizuddin as saulted Habibur Rahman by a stick. On being so assaulted, Habibur Rahman started running away and Waheda raised hue and cry. The inmates of Mofizuddin’s house c ame rushing, the other accused joined Mofizuddin and they assaulted Salamat, Kas em and Asan Ali and even Waheda by means of various weapons. As Kasem Ali sustai ned grievous injuries, he died. Habibur Rahman (PW1), then, lodged a written Eja har (Ext.1) at Bandihana Police Outpost. Based on the said Ejahar, South Salmara Police Station Case No.129/98, under Sections 441/447/341/326/302 IPC, was regi stered against the accused-appellants. (ii) During investigation, police visited the place of occurrence, held inque st over Kasem’s dead body and also got the said dead body subjected to post mort em examination. Police also recorded the statements of the persons, who had sust ained injuries in the said incident. The injured persons were also examined by d octors. During investigation, police seized some of the weapons of offences incl uding the weapons, which were allegedly used in assaulting Kasem. On completion of investigation, police laid charge-sheet, under Sections 147 / 148 / 149 / 341 /325/302 IPC, against the present appellants and others showing, however, accus ed Dilwar Ali as absconder. 3. At the trial, when charges, under Sections 323 and 302 read with Section 149 IPC, were framed against all the accused, including the present appellants, they pleaded not guilty thereto.
Facts
4. In support of their case, prosecution examined altogether 15 (fifteen) w itnesses. The accused were, then, examined under Section 313 Cr.P.C. and, in the ir examinations aforementioned, they denied that they had committed the offences , which were alleged to have been committed by them, the case of the defence bei ng, broadly speaking, that Habibur Rahman and his other relatives came, in a gro up, to demolish the house of accused Mofizuddin and, in the process, they sustai ned injuries and Kasem, amongst them, sustained grievous injuries, because of fa ll of some of the materials of the house of accused Mofizuddin. 5. Having, however, found the accused-appellants guilty of the offences, wh ich they stood charged with, the learned trial Court convicted them accordingly and passed sentences against them as mentioned above. Aggrieved by their convict ion and the sentences passed against them, this appeal has been preferred by the present appellants as convicted persons.
Legal Reasoning
In short, in a case of conflict between the ocular and medical evidence, the Court can give benefit of doubt to the accused if, and only if, the Court i s satisfied that the medical evidence is wholly correct and beyond suspicion or that the eye witness is not reliable. In the case at hand, post mortem report is ex facie belied by the contents of the inquest report and there has been no cro ss-examination of the Investigating Officer, as already indicated above, to show that the inquest had not been properly conducted and the findings, recorded in the inquest report, were not correct. 15. Moreover, one has to bear in mind that if a statement, made during inves tigation, under Section 161 CrPC, is used for the purpose of contradicting the e vidence of a witness at the trial, not only that the attention of the witness sh all be drawn to the his/her previous statement, sought to be proved against her, but the Investigating Officer shall prove that the statement, as attributed to the witness, was, indeed, made by him/her and the previous statement of the witn ess concerned has to be marked in the case diary as Exhibit. We may, in this re gard, profitably refer to the case of Gautam Das and anr. Vs. State of Tripura a nd anr., reported in 2008 (3) GLT 625. The relevant observations, made by a Div ision Bench of this Court, in Gautam Das (supra), read as under: (cid:28)( 44 ) On use of police statement:- We, now, resume our discussion on the use o f police statement. Any police officer, making an investigation, under Chapter- XII of the Code, may examine orally any person supposed to be acquainted with th e facts and circumstances of the case and may reduce into writing any such state ment. This power is given under Section 161 Cr. P. C. Section 162 (1) Cr. P. C. provides that such statement shall not be signed by the person making it and sha ll not be used for any purpose at any inquiry or trial in respect of any offence under investigation save as provided therein. The proviso to the said section, being relevant, is quoted below:- \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 h is statement, if duly proved, may be used by the accused, and with the permissio n of the Court, by the prosecution to contradict such witness in the manner prov ided by Section 145 of the Indian Evidence Act, 1872 (1 of 1872); and when any p art of such statement is so used, any part thereof may also be used in the re-ex amination of such witness, but for the purpose only of explaining any matter in his cross-examination. \ It would appear from above that the police statement of a witness can be used on ly to contradict such witness (i) by the accused; (ii) by the prosecution with t he permission of the Court; and (iii) in the manner provided by Section 145 of t he Evidence Act. It is, thus, clear that such statement cannot be used by the ac cused or prosecution for the purpose of corroboration and cannot be treated as s ubstantive evidence in favour of or against either the accused or the prosecutio n. ( 45 ) Application of Section 145 and 155 of Evidence Act:- The manner of using such statement for the purpose of contradiction only must be in terms of Section 145 of the Evidence Act, which reads as follows:- \145. Cross-examination as to previous statements in writing.- A witness may be cross-examined as to previous statements made by him in writing or reduced into writing, and relevant to matters in question, without such writing being shown t o 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. \ Though Section 155 of the Evidence Act provides in Clause (3) that the credit of a witness can be impeached by proof of his former statement, which is inconsist ent with any part of his evidence before the Court, the same is controlled by Se ction 145 which provides the manner of contradicting such a witness. It is well settled that if it is intended to contradict a witness by his previous statement in writing, his attention must, before the writing is proved, be drawn to that part of it which are to be used for the purpose of contradicting him. The proper procedure would, therefore, be- (i) to ask a witness first whether he made such a statement before the police officer; (ii) if the witness answers in the affir mative, the previous police statement, in writing, need not be proved; (iii) the cross examiner may, if he so chooses, leave it to the party, who called the wit ness to have the discrepancy, if any, explained in course of re-examination; (iv ) if, on the other hand, the witness denies to have made such a previous stateme nt attributed to him or states that he does not remember having made any such st atement, and it is intended to contradict him with reference to his previous sta tement, the cross examiner must read out to the witness the relevant portion or portions of the record, which are alleged to be contrary to his statement in Cou rt and give him an opportunity to reconcile the same, if he can; (v) the best wa y of putting a statement is to put it in the actual words in which it stands rec orded within quotation marks. A Division Bench of this Court, as far back as in 1963, had laid down, in the State Vs. Md. Misir Ali and Ors. , (AIR 1963 Assam 1 51) the procedure for putting contradiction to a witness and the manner of provi ng the same. In Md. Misir Ali (supra), the Division Bench, speaking through C. K . Nayudu, C. J. , had observed as follows:-\we also regret to note that the proc edure to be followed in the case of proving the contradictions appearing in the statements made by prosecution witnesses to the police during investigation is n ot being followed by subordinate Courts, as well as by the counsel appearing in criminal cases. We had occasion to point out the correct procedure more than onc e and it would be worth while restating it. If it is intended by an accused to c ontradict the evidence given by a prosecution witness at the trial, with a state ment made by him before the police during the investigation, the correct thing t o do is to draw the attention of the witness to that part of the contradictory s tatement, which he made before the police, and question him whether he did in fa ct make that statement. If the witness admits having made the particular stateme nt to the police, that admission will go into evidence and will be recorded as p art of the evidence of the witness and can be relied on by the accused as establ ishing the contradiction. If, on the other hand, the witness denies having made such a statement before the police, the particular portion of the statement reco rded under Section 162. Criminal Procedure Code should be provisionally marked f or identification, and when the investigating officer, who had actually recorded the statement in question comes into the witness box, he should be questioned a s to whether that particular statement had been made to him during the investiga tion, by the particular witness, and obviously after refreshing his memory from the Police Case Diary, the investigating officer would make is answer in the aff irmative. The answer of the investigating officer would prove the statement whic h is then exhibited in the case and will go into evidence, and may, therefore, b e relied only correct procedure to be followed, which would be conformity with S ection 145 of the Evidence Act. \ ( 46 ) We fully agree with the above observations made in Md. Misir Ali (supra) and reiterate the same as the correct procedure for proving of contradictions. ( 47 ) Ratio laid down by Apex Court:- The Supreme Court, in Tahsildar Singh (su pra), had the occasion, as back as in 1959, to elaborately deal with almost all the relevant questions as regards the use of a police statement, while contradic ting a witness. The ratio laid down in Tahsildar Singh (supra) has since been co nsistently followed in all later decisions. As it is well settled that a stateme nt under Section 161 of the Criminal Procedure Code can be used for the purpose of contradiction only, it is to be understood first as to what amounts to contra diction before allowing the defence or prosecution to use a police statement of a witness for that purpose. If a witness deposes in Court that certain fact exis ted but had stated under Section 161 of the Code either that the fact had not ex isted or that the reverse irreconcilable fact had existed, it is a case of confl ict between the two depositions. In such a situation, the later can be used to c ontradict the former. But if he had not stated to the police any thing about tha t fact, which he states in his deposition before Court, there is no conflict and so the police statement cannot be used to contradict him except in some cases, whether an omission, in the statement under Section 161, may amount to contradic tion of the deposition in the Court. In Tahsildar Singh (supra), the majority vi ew of the Apex Court, on the question of contradiction (not being omission), has been recorded in Para 26, which reads as follows:- \26. From the foregoing discussion the following propositions emerge: (1) A stat ement in writing made by a witness before a police officer in the course of inve stigation can be used only to contradict his statement in the witness box and fo r 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 expre ssly recorded, a statement that can be deemed to be part of that expressly recor ded can be used for contradiction, not because it is an omission strictly so-cal led 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) wh en a recital is necessarily implied from the recital or recitals found in the st atement: illustration: in the recorded statement before the police the witness s tates 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 st atement before the police the word \only\ can be implied i. e. , the witness saw A 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 state ment before the police the witness says that a dark man stabbed B, but in the wi tness box he says that a fair man stabbed B; the earlier statement must be deeme d to contain the recital not only that the culprit was a dark complexioned man b ut 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 wi tness says in the recorded statement before the police that A after stabbing B r an away by a northern lane, but in the Court he says that immediately after stab bing he ran away towards the southern lane; as he could not have run away immedi ately after the stabbing i. e. at the same point of time, towards the northern l ane as well as towards the southern lane, if one statement is true, the other mu st necessarily be false. \ (Emphasis is supplied) From the law, laid down in Gautam Das (supra), what becomes abundantly c 16. lear is that if a witness is intended to be contradicted by his previous stateme nt made to the police, during investigation, attention of the witness must be dr awn to that part of the statement by which he is sought to be contradicted. If t he witness admits to have made the statement, which is attributed to him, the co ntradiction is proved and nothing further is required to be done. If, on the oth er hand, the witness denies to have made such a previous statement, as attribute d to him, or if he states that he does not remember having made any such stateme nt and it is intended by the cross-examiner to contradict the witness with refer ence to his previous statement, the cross-examiner must read out to the witness the relevant portion(s) of the statement, which is alleged to be contrary to his evidence given in the Court, and give an opportunity to the witness to reconcil e the same. 17. When a witness denies to have made the statement attributed to have been made by him before the police, the particular portion of the statement, which i s sought to be proved, shall be provisionally marked for identification and when the Investigating Officer, who had actually recorded the statement, in question , comes to the witness box, he shall be questioned as to whether the particular statement, which is attributed to the witness, had or had not been made by the w itness concerned to the Investigating Officer during investigation. If the poli ce officer, upon refreshing his memory from the case diary, confirms that such a statement was, indeed, made by the witness concerned, the Investigating Officer would prove the statement of the witness, which was sought to be attributed to the witness. The statement shall be exhibited and proved accordingly. 18. Thus, the portion of the statement, which the Investigating Officer prov es, has to be exhibited and shall go into evidence as the previously made statem ent of the witness concerned so that the evidence, given by the witness, can be contradicted by his previous statement proved to have been made during investiga tion. 19. In the case at hand, the learned trial Judge appears to have proceeded t o record the evidence of the Investigating Officer oblivious of the position of law as regards the proof of contradiction between the evidence given by a witnes s, at the trial, and his/her statement allegedly recorded under Section 161 CrPC . 20. In the context of the facts, as indicated above, we are of the view that if what the learned Additional Public Prosecutor has contended is true, it woul d cause serious miscarriage of justice if the exact statements, claimed to have been made by prosecution witnesses, under Section 161 CrPC, are not brought on r ecord and/or proved on record in accordance with law. At the same time, if what the defence contends is correct, the benefit of the contradictions may have to be given to the appellants. 21. Considering, therefore, the matter in its entirety and in the interest o f justice, we are of the view that the matter needs to be remanded to the learne d trial Court in order to recall the Investigating Officer and elicit, in exact words, the relevant portion(s) of the previous statements of prosecution witness es so that the case against the accused-appellants can be decided in accordance with law. 22. Because of what have been discussed and pointed out above, we set aside the conviction of the accused-appellants and the sentences, which have been pass ed against them by the impugned judgment and order, and remand the case, in ques tion, to the learned trial Court in order to recall the Investigating Officer an d to bring on record the relevant portion(s) of the previous statements of prose cution witnesses and, then, to record, in the light of the incriminating pieces of evidence, which may surface on record, the statements of all the accused-app ellants, under Section 313 (1)(b) CrPC, and, thereafter, pronounce the judgment in accordance with law. To the extent, as indicated above, this appeal stands allowed. 23. 24. Before parting with this appeal, we, however, make it clear that the app ellants shall be kept detained in imprisonment in the manner in which the appell ants stand presently detained and they shall not be allowed to go on bail until decision of the case in terms of the observations made above, directions given a nd the law laid down in that behalf. 25. of. 26. With the above observations and directions, this appeal stands disposed Send back the LCR.
Arguments
We have heard Mr. S.K. Talukdar, learned counsel, for the appellants, an 6. d Mr. D. Das, learned Additional Public Prosecutor, Assam. 7. While considering the present appeal, it needs to be noted that it has b een submitted, on behalf of the accused-appellants, that prosecution witnesses h ave given completely colourised and false descriptions of the occurrence inasmu ch as the foundation of the occurrence lies in the overt acts of prosecution wit nesses, particularly, Habibur Rahman and his relatives in demolishing the house of accused Mofizuddin and, in the process, some of them sustained injuries and K asem died as a result of fall of some of the materials from accused Mofizuddin’s house. It is also submitted by Mr. Talukdar, learned counsel, that the prosecut ion witnesses have given statements contradictory to their statements recorded d uring investigation and they have also alleged overt acts to individual accused; whereas their previous statements were silent in this regard. It is further sub mitted by Mr. Talukdar that there has been inconsistencies in the description of the occurrence given by the prosecution witnesses and that their evidence does not tally with either medical evidence on record or with the injuries recorded i n the inquest report. This apart, there is, points out Mr. Talukdar, inconsisten cy between the findings of the doctor as regards the injuries, which had been su stained by Kasem, and the injuries, which were found by the Investigating Office r, while holding the inquest. In the circumstances, indicated above, according to Mr. Talukdar, the le 8. arned trial Court ought to have acquitted the accused by giving them benefit of doubt in the sense that complete truth had not been revealed before the learned trial Court. Resisting the appeal, Mr. Das, learned Addl. Public Prosecutor, has, dra 9. wing this Court’s attention to the statements of PW1, PW2, PW3, PW5, PW8, PW9 an d PW11, as appear to have been recorded in the case diary, submitted that in the ir previous statements, which the Investigating Officer had recorded, PW1, PW2, PW3, PW5, PW8, PW9 and PW11 had clearly claimed to have seen the accused persons aforementioned as the persons assaulting Kasem Ali and, hence, the contradictio ns, which the appellants are trying to take advantage of, may not be made availa ble to them, particularly, when the learned trial Court has completely failed to obtain proof in support of the Investigating Officer’s claim that PW1, PW2, PW3 , PW5, PW8, PW9 and PW11 had not stated, in their previous statements, what they have claimed, at the trial, to have seen. 10. Coupled with the above, we also notice that the defence, while cross-exa mining the Investigating Officer (PW14), did not elicit anything to show that ac cused Mofizuddin’s house was found demolished or broken, though it is the clear evidence of the Investigating Officer that accused Mofizuddin’s house is located on the north of Malamat’s house. It was not even suggested to the Investigating Officer that Kasem had died as a result of the story, which the defence has pro jected at the trial to the effect that while trying to demolish the house of acc used Mofizuddin, the occurrence took place and Kasem lost his life. This apart, PW7, who is a witness to the seizure of weapons, which had been allegedly used i n the occurrence, has clearly denied that the house of Mofizuddin was half broke n. There was no serious cross-examination of PW7 at all in this regard. 11. It has been pointed out by Mr. Talukdar, learned counsel, as already ind icated above, that contrary to the ocular evidence on record showing that Kasem had been injured on his left belly, the post mortem examination report does not show any injury on his left belly. It is, in this regard, noteworthy that though post mortem report is silent about Kasem having sustained any injury on his bel ly, the fact remains that the inquest report does record such an injury having b een sustained by Kasem. When pointed out that inquest report supports ocular evidence, Mr. Taluk 12. dar, learned counsel, tries to counter by pointing out that the inquest report d oes not show any injury having been sustained by Kasem on his chest, though it r ecords that blood stains were seen in his chest; whereas post mortem report show s injury on Kasem’s chest. Here, again, it is important to note that neither the doctor nor the Investigating Officer were cross-examined by the defence on thei r findings as recorded in the post mortem examination report or in the inquest r eport. 13. Coupled with the above, neither the inquest report nor the medical evide nce can always be treated as the touchstone for testing the veracity of the ocul ar evidence. If, therefore, the Court finds that an eye witness’s account of an occurrence is true, there is no impediment in convicting an accused on the basis of the ocular evidence even if the medical evidence or the inquest report point s to the contrary. 14.