1

A.F.R.

Reserved

Court No. - 4

Case :- CRIMINAL APPEAL No. - 4606 of 2008

Appellant :- Dilip And Others

Respondent :- State Of U.P.

Counsel for Appellant :- Ravi Sahu,Adil Jamal,Ahmad

Saeed,Ali Hasan,Ghan Shyam Joshi,M. Islam,Mohd.Farooq,Rakesh

Dubey,Ravi Sahai,Sanjay Srivastava,Shariqe Ahmad,Ved Kant

Mishra

Counsel for Respondent :- Govt. Advocate,P.K. Singh

Hon'ble Bala Krishna Narayana,J.

Hon'ble Naheed Ara Moonis,J.

Per Hon'ble B. K. Narayana, J.

Heard Sri Dilip Kumar, Senior Advocate assisted by Sri Rakesh

Dubey and Mohd. Farooq, learned counsel for the appellants, Sri P. K.

Singh, learned counsel for the complainant and Smt. Manju Thakur,

learned A.G.A.-I for the State.

This appeal has been preferred by the appellants Dilip (A1), Arjun

Pal @ Palauli (A2) and Akhtar Karim @ Achchhe Kariya (A3) against the

judgement and order dated 18.07.2008 passed by IVth Additional District

& Sessions Judge, Kanpur Nagar in Sessions Trial No. 1349 of 2003

(State Vs. Dilip and others) arising out of Case Crime No. 183 of 2003 u/s

302 I.P.C. and 7 of Criminal Law Amendment Act connected with

Sessions Trial No. 1350 of 2003 (State Vs. Arjun Pal and Dilip) arising

out of Case Crime No. 205 and 206 of 2003 u/s 25/27 Arms Act and

connected with Sessions Trial No. 1351 of 2003 (State Vs. Ankur and

Akhtar Karim @ Achchhe Kariya) arising out of Case Crime No. 207 and

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208 of 2003 u/s 25/27 of the Arms Act, P.S.- Bajariya, District- Kanpur

Nagar, by which all the three appellants were convicted and sentenced to

imprisonment for life and a fine of Rs. 10,000/- each and in case of

default in payment of fine, six months additional imprisonment each u/s

302 I.P.C., six months rigorous imprisonment and a fine of Rs. 1,000/-

each and in case of default in payment of fine, one month additional

imprisonment each u/s 7 of Criminal Law Amendment Act and two years

rigorous imprisonment and a fine of Rs. 2,000/- each and in case of

default in payment of fine, two months additional imprisonment each u/s

25/27 of the Arms Act. All the sentences were directed to run

concurrently.

Brief facts of this case are narrated hereinbelow :-

According to the written report (Ext.Ka.1) lodged by P.W.1

informant Ashok Kumar Gupta at P.S.- Bajariya, District- Kanpur Nagar

on 13.07.2003 at 21.15 hours, in the afternoon of 13.07.2003 at 3 p.m.,

informant's brother Sushil Kumar was standing on the roof of his house

while Dilip (A1), Rohit and Rajan were quarreling with each other. P.W.5

Jeetu son of Sukh Lal and Sushil Kumar son of Brij Bihari Lal had tried to

settle the matter during which a dispute took place between them. On the

same day at about 8 p.m. while Sushil son of Brij Bihari Lal, P.W.5 Jeetu

son of Sukh Lal, Vijay Kumar Yadav son of Swaroop Yadav and Ram

Lakhan Yadav son of Ram Sevak Yadav had gathered in House No.

104/72 situated in Sisamau for going to attend the house warming party in

the neighbourhood, Arjun Pal @ Palauli (A2) son of Mishri Lal, Dilip

(A1) son of Late Siddhnath, Ankur and Akhtar Karim @ Achchhe Kariya

(A3) armed with country-made pistols arrived there and started abusing

Sushil Kumar, accusing him of having become a very big leader, fired at

him simultaneously. Sushil received several gunshot injuries on account

of which he fell on the ground and started wriggling with pain. People

who were sitting in the lane in front of their houses on cots, on hearing the

sound of gunshots, started running helter-skelter which eventually led to a

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stampede. Fear and terror gripped the atmosphere. People locked the

doors of their houses from inside. After the firing was over, the accused

left threatening everyone with dire consequences who dared to depose

anything against them, brandishing their country-made pistols in the air.

With the help of the family members and the residents of the locality, he

took Sushil to the hospital. He however died on the way. All the

miscreants were hardened criminals. According to the complainant, the

aforesaid incident was witnessed by P.W.3 Ram Lakhan Yadav, P.W.5

Jeetu, Vijay Kumar and large number of neighbours.

On the basis of the aforesaid written report (Ext.Ka.1), Case Crime

No. 183 of 2003 u/s 302 I.P.C. and 7 of Criminal Law Amendment Act

was registered at P.S.- Bajariya, District- Kanpur Nagar against the

accused. Check F.I.R. (Ext.Ka.2) and relevant G.D. Entry vide rapat no.

21.15 hours dated 13.07.2003 (Ext.Ka.3) were prepared by P.W.2 S.I.

Laeek Ahmad.

The investigation of the case was taken over by P.W.10 Pramod

Kumar Chawla, who reached the place of occurrence and after inspecting

the same, prepared its site plan and recorded the statements of the

witnesses. He also recovered plain and blood-stained earth and 3 empty

cartridges of 12 bore from the place of occurrence and prepared the

recovery memo of the aforesaid articles (Exts.Ka.5 and Ka.6). Thereafter,

he held inquest on the body of the deceased and prepared the inquest

report (Ext.Ka.7) and other related documents namely letter addressed to

R.I., death intimation slip, letter addressed to C.M.O., photo lash, challan

lash, specimen seal (Exts.Ka.7 to Ka.13). Thereafter, he got the body of

the deceased sealed and dispatched to the District Hospital for

postmortem examination.

Postmortem on the deceased's body was conducted by P.W.6 Dr.

Ravindra P. Mishra on 14.07.2003 at about 11.15 p.m. who also prepared

his postmortem report (Ext.Ka.4). He noted following ante-mortem

injuries on the person of Sushil :-

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(1) Firearm wound of entry 3 cm x 3 cm bone deep on lt. side of neck joint

below chin. Blackening, tattooing and charring present around the wound.

Margins inverted.

(2) Firearm wound of entry 3 cm x 3 cm abdomen cavity deep right side of

back of chest. Blackening, tattooing and charring present around the wound.

Margins inverted 9 cm below right scapula.

According to P.W.6 Dr. Ravindra P. Mishra, the cause of death of

Sushil was shock and haemorrhage caused as a result of ante-mortem

firearm injuries.

On 30.07.2003, P.W.10 Inspector Pramod Kumar Chawla, after

obtaining police remand of Dilip (A1) and Arjun Pal @ Palauli (A2), on

their pointing out, got recovered two country-made pistols of 12 bore and

two live cartridges of 12 bore which were hidden under the heap of

garbage. Both Dilip (A1) and Arjun Pal @ Palauli (A2) admitted that they

had shot the deceased with the recovered country-made pistols. Two

country-made pistols and two live cartridges allegedly recovered on the

pointing out of Dilip (A1) and Arjun Pal @ Palauli (A2) were packed and

sealed on the spot.

On the basis of the written report (Ext.Ka.1), Case Crime No. 205

and 206 of 2003 u/s 25/27 of Arms Act was registered against Dilip (A1)

and Arjun Pal @ Palauli (A2) at P.S.- Bajariya, District- Kanpur Nagar

and investigation thereof was entrusted to P.W.7 S.I. Ehtaram Ali Khan.

On the same day, P.W.10 Inspector Pramod Kumar Chawla, after

obtaining police remand of Akhtar Karim @ Achchhe Kariya (A3) and

co-accused Ankur, also got recovered two country-made pistols on their

pointing out at 21.15 hours. Both the country-made pistols were seized

and their recovery memo (Ext.Ka.20) was prepared on the spot.

On the basis of the aforesaid recovery memo, Case Crime No. 207

and 208 of 2003 u/s 25/27 of Arms Act was registered at P.S.- Bajariya,

District- Kanpur Nagar against Akhtar Karim @ Achchhe Kariya (A3)

and co-accused Ankur.

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After completing the investigation, the Investigating Officers of the

aforesaid case crime numbers filed charge-sheet u/s 302 r/w 34 I.P.C., 7 of

Criminal Law Amendment Act and 25/27 of Arms Act against Dilip (A1),

Arjun Pal @ Palauli (A2), Akhtar Karim @ Achchhe Kariya (A3) and co-

accused Ankur.

Since the offences mentioned in the charge-sheet were triable

exclusively by the Court of Sessions, Chief Metropolitan Magistrate,

Kanpur Nagar committed the accused for trial to the Court of Sessions

Judge, Kanpur Nagar where Case Crime No. 183 of 2003 was registered

as S.T. No. 1349 of 2003, State Vs. Dilip and others, Case Crime No. 205

and 206 of 2003 was registered as S.T. No. 1350 of 2003, State Vs. Arjun

Pal and Dilip and Case Crime No. 207 and 208 of 2003 was registered as

S.T. No. 1351 of 2003, State Vs. Ankur and Akhtar Karim @ Achchhe

Kariya. All the three trials were made over for trial from there to the Court

of IVth Additional District & Sessions Judge, Kanpur Nagar who on the

basis of material collected during the investigation and after hearing the

prosecution as well as the accused on the point of charge, framed charge

u/s 302/34 I.P.C., 7 of Criminal Law Amendment Act and 25/27 of Arms

Act against all the three accused-appellants and co-accused Ankur who

abjured the charges framed against them and claimed trial.

The prosecution in order to prove the charges framed against the

accused-appellants examined as many as twelve witnesses out of whom

P.W.1 informant Ashok Kumar Gupta, P.W.3 Ram Lakhan Yadav and

P.W.4 Sanjay and P.W.5 Jeetu were examined as witnesses of fact while

P.W.2 Laeek Ahmad who had prepared and proved the check F.I.R. and

G.D. Entry of Case Crime No. 183 of 2003 as (Exts.Ka.2 and Ka.3),

P.W.6 Dr. Ravindra P. Mishra who had conducted postmortem on the dead

body of Sushil and proved the postmortem report as (Ext.Ka.4), P.W.7 S.I.

Ehtaram Ali Khan who had accompanied the Investigating Officer of the

case to the place of occurrence and had collected plain and blood-stained

earth and three empty cartridges of 12 bore from there and prepared the

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recovery memo of the aforesaid articles on the instructions of P.W.10

Inspector Pramod Kumar Chawla and proved the same as (Exts.Ka.5 and

Ka.6), P.W.8 S.I. Subhash C. Bunodha who had conducted inquest on the

body of deceased in the mortuary of the Hallet Hospital, prepared the

inquest report, letter addressed to C.M.O., death intimation slip, letter

addressed to R.I., photo nash, challan lash, specimen seal and proved the

same during the trial as (Exts.Ka.7, Ka.9, Ka.10, Ka.11, Ka.12 and Ka.13

respectively), P.W.10 Inspector Pramod Kumar Chawla, C.B.C.I.D. Agra

Division, who had investigated the matter and in whose presence the four

country-made pistols allegedly used by the accused in committing the

murder of Sushil Kumar were said to have been recovered on their

pointing out and who after completing the investigation, had filed charge-

sheet against the accused, P.W.11 S.I. Subhash C. Bunodha, witness of

recovery of two country-made pistols and two live cartridges on the

alleged pointing out of Dilip (A1) and Arjun Pal @ Palauli (A2) which

was exhibited and produced during the trial as material Exts. 2A, 3A, 4A,

6A, 7 and 8, P.W.12 S.I. Jagdeo Sonkar who had prepared the check

F.I.R.s of the Case Crime Nos. 207 and 208 of 2003 u/s 25/27 of Arms

Act and filed charge-sheet against co-accused Ankur and Akhtar Karim @

Achchhe Kariya (A3) and proved the same as (Exts.Ka.23 and Ka.24),

were produced as formal witnesses.

After the closure of the prosecution evidence, the appellant and co-

accused Ankur were examined u/s 313 Cr.P.C. Dilip (A1), Arjun Pal @

Palauli (A2) stated that all the witnesses had given false evidence against

them and they both belonged to respectable families and were looking

after their families and they had been falsely implicated due to partibandi.

They had neither fired at anyone nor they had any criminal history. Akhtar

Karim @ Achchhe Kariya (A3) in his statement stated that he was

carrying on the business of selling cattle. Deceased and the informant

were carrying on the business of lending money on interest. They were

members of Congress party. The deceased had obtained a loan for

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purchasing buffalo and a sum of Rs. 2,00,000/- was remaining to be paid

by him to them since two of his buffaloes had died. There was default in

the payment of loan installments as a result whereof an altercation had

taken place between them and on account of the aforesaid reason, the

informant had falsely implicated them.

Co-accused Ankur stated before the Court below during his

examination u/s 313 Cr.P.C. that the witnesses had given false evidence

against him due to animosity. He also stated the same facts which were

stated by Akhtar Karim @ Achchhe Kariya (A3). In addition, co-accused

Ankur stated that his brother was a member of BJP and he was falsely

implicated due to political rivalry. The appellants examined Vivek Singh,

Bhagwati Singh, Gulshan, Nageena and Nitendra Mohan as D.W.1 to

D.W.5 respectively.

Learned IVth Additional District & Sessions Judge, Kanpur Nagar

after considering the submissions advanced before him by the learned

counsel for the parties and scrutinizing the evidence on record, both oral

as well as documentary, by the impugned judgement and order, convicted

all the three appellants and awarded aforesaid sentences to them while co-

accused Ankur was acquitted of all the charges.

Hence, this appeal.

Sri Dilip Kumar, learned Senior Counsel appearing for the

appellants has submitted that out of four witnesses of fact examined by

the prosecution during the trial, P.W.3 Ram Lakhan Yadav, P.W.4 Sanjay,

P.W.5 Jeetu having failed to support the prosecution case during the trial

and declared hostile, the recorded conviction of the appellants on the basis

of uncorroborated evidence of solitary witness P.W.1 informant Ashok

Kumar Gupta who is not only the real brother of the deceased and hence,

highly interested in securing the conviction of the appellants but even

whose very presence at the place of incident and claim of his having

witnessed the occurrence, is highly doubtful, is apparently vitiated.

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Advancing his arguments in this regard, Sri Dilip Kumar further

invited our attention to the recitals contained in the written report of the

incident (Ext.Ka.1) which P.W.1 informant Ashok Kumar Gupta claims

was scribed by S.K. Gupta, an Advocate his brother-in-law, on his

dictation and lodged by him at P.S.- Bajariya, District- Kanpur Nagar,

submitted that there is nothing in the written report (Ext.Ka.1) which may

even remotely indicate that P.W.1 informant Ashok Kumar Gupta was

present at the place and time of the incident and had witnessed the same.

Infact only P.W.3 Ram Lakhan Yadav and P.W.5 Jeetu had been

nominated as eye-witnesses in the written report (Ext.Ka.1). Even P.W.3

Ram Lakhan Yadav and P.W.5 Jeetu have nowhere stated in their

statements recorded before the trial court that at the time of the incident,

P.W.1 informant Ashok Kumar Gupta was also present along with them at

the place of incident. Neither his presence nor the point from which he

had witnessed the occurrence is shown in the site plan of the place of

incident (Ext.Ka.18). P.W.1 informant Ashok Kumar Gupta made material

improvements in his statement recorded before the trial court to prove that

he had witnessed the occurrence by deposing that when the incident had

taken place, he was standing in front of the grocery shop of Daya Ram

from where he had witnessed the occurrence along with other witnesses.

The english translation of the facts stated by P.W.1 informant Ashok

Kumar Gupta in his examination-in-chief in this regard is being

reproduced hereinbelow:-

...........“That day in the evening at about 8 p.m., his brother

Sushil was standing in front of the house of Saran. The place was

illuminated by the streetlight in which I and my brother were able to see

and recognize the passers by. Sushil, Ram Lakhan Yadav, Jeetu, Vijay

Kumar Yadav alias Sanjay and Brij Bhushan Awasthi had assembled in

the House No. 104/72 situate in village- Sisamau adjacent to the school

for going to attend the house warming party. At that time, Dilip (A1),

Arjun Pal @ Palauli (A2), co-accused Ankur and Akhtar Karim @

Achchhe Kariya (A3) present in the Court who were known to him

previously, came and after telling his brother that he had become a big

leader, all four of them started firing simultaneously from their country-

made pistols which they were carrying in their hands. They were also

abusing. All four of them had fired at Sushil at the same time. The

bullets had hit Sushil Kumar who had fallen on the ground then and

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there and started wriggling with pain. On hearing the sound of gunshots,

those people who were sitting on their cots in front of their house ran

inside their house and a stampede took place. Everybody closed the door

of their house. The accused left the place threatening anyone with dire

consequences who dared to give evidence against them, brandishing

their country-made pistols in the air. I, Santosh Kumar and Ram Lakhan

took Sushil to Hallet Hospital whether he was declared brought dead. In

fact Sushil had died while he was being taken to the hospital. The

incident was witnessed by Jeet, Ram Lakhan Yadav, Vijay Kumar alias

Sanjay and himself. He had got the written report of the incident scribed

by his brother-in-law S.K. Gupta, an Advocate. He had written whatever

he had dictated to S.K. Gupta.

..........My brother had asked all his family members to house

warming party. I knew the other members of the family who were ready

to go to the house warming party. Jeetu, Ram Lakhan, Sanjay Yadav

along with my brother was standing with the aforesaid persons for going

to the house warming party.

...........At the time when my brother had come out of the house, I

was standing adjacent to the masala shop. The masala shop is not my

personal shop. It was taken on rent. The masala shop was about 25-30

paces from my house. At the time of the incident, I was standing in front

of same masala shop. The distance between the place of incident and the

masala shop is about 20 paces. I know all the persons who lived around

the place of occurrence.”

Sri Dilip Kumar further submitted that from the perusal of the death

memo of the deceased, it is proved that it was deceased's brother Santosh

Kumar, whom the prosecution failed to examine during the trial, who had

brought Sushil Kumar to the hospital and got him admitted in Hallet

Hospital, Kanpur Nagar at 8.20 p.m. The intimation of the death of Sushil

was given to P.S.- Swaroop Nagar vide death memo which was recorded

in the G.D. at serial no. 50 on 13.07.2003 at 22.30 hours. Hence, in view

of the above, the claim of P.W.1 informant Ashok Kumar Gupta that he

had not only witnessed the occurrence but had also brought the deceased

and got him admitted to Hallet Hospital, stands totally belied. He also

submitted that the prosecution has failed to connect the so-called crime

weapons allegedly recovered on the pointing out of the accused-appellants

pursuant to their disclosure statements made before the police after their

arrest. He lastly contended that in view of the submissions made by him,

neither the recorded conviction of the appellants nor the sentences

awarded to them can be sustained and are liable to be set-aside.

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Per contra Smt. Manju Thakur, learned A.G.A.-I appearing for the

State submitted that the complicity of the appellants in causing death of

Sushil Kumar stands fully proved from the evidence of P.W.1 informant

Ashok Kumar Gupta who had not only witnessed the incident but had also

lodged its written report promptly thereby leaving no room for any

manipulation or concoctions. She further submitted that there is no law

that the part of evidence of a witness which lends support to the

prosecution story, stands wiped off once such a witness is declared

hostile. On the other hand, it is settled law that part of evidence of hostile

witness which supports the prosecution story or corroborates the evidence

of another eye-witness can always be relied upon for the purpose of

recording a conviction, albeit with caution. She further submitted that

although P.W.3 Ram Lakhan Yadav had failed to support the prosecution

case in his examination-in-chief but P.W.5 Jeetu had fully corroborated

the evidence of P.W.1 informant Ashok Kumar Gupta on all material

particulars pertaining to the time, place and manner of assault as well as

the identity of the perpetrators of the crime in his examination-in-chief.

He was declared hostile only after he failed to support the prosecution

case in his cross-examination. As far as the submission made by learned

counsel for the appellants that in order to give semblance to his status as

eye-witness of the occurrence, P.W.1 informant, Ashok Kumar Gupta had

made material improvements in his examination-in-chief by deposing

facts which were conspicuous by his absence in his statement u/s 161

Cr.P.C. is concerned, the same will not adversely affect the prosecution

story or belie the claim of P.W.1 informant Ashok Kumar Gupta of his

being the eye-witness of the occurrence as the defence had failed to

contradict him with his statement recorded u/s 161 Cr.P.C. in which

according to the learned counsel for the appellants, P.W.1 informant

Ashok Kumar Gupta had not stated that he had seen the incident himself

along with P.W.3 Ram Lakhan Yadav, P.W.5 Jeetu and Vijay Kumar @

Sanjay and that at the time of the incident, he was standing in front of the

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grocery shop of Daya Ram which was at a distance of about 20 paces

from the place of incident. She also submitted that since the complicity of

the appellants in committing the crime in question stands proved from the

evidence of P.W.1 informant Ashok Kumar Gupta which finds

corroboration from the facts stated by P.W.5 Jeetu, the failure of the

prosecution to connect the weapons allegedly recovered on the pointing

out of the appellants will not inure to the benefit of the appellants. She

lastly submitted that this appeal lacks merit and is liable to be dismissed.

We have very carefully considered the submissions advanced before

us by the learned counsel for the parties and scrutinized the entire lower

court record.

The only question which arises for our consideration in this appeal

is that whether the prosecution has been able to prove its case against the

accused-appellants beyond all reasonable doubts or not ?

Undisputedly, this case rests upon the evidence of eye witnesses.

The prosecution in order to prove its case, apart from examining formal

witnesses, had examined P.W.1 informant Ashok Kumar Gupta, P.W.3

Ram Lakhan Yadav, P.W.4 Sanjay and P.W.5 Jeetu as witnesses of fact.

Before proceeding to scrutinize the oral evidence on record, we proceed to

first have a glance at the evidence of formal witnesses.

P.W.2 Laeek Ahmad who at the relevant point of time was posted as

Head Moharrir at P.S.- Bajariya and who had prepared the check F.I.R.

and made relevant G.D. at serial no. 59 at 21.15 hours on 13.07.2003

proved the same as Exts.Ka.2 and Ka.3 respectively.

P.W.6 Dr. Ravindra P. Mishra who had conducted postmortem on

the body of the deceased Sushil Kumar had deposed that Ravindra Singh

had died as a result of haemorrhage and shock due to ante-mortem firearm

injuries. He proved the postmortem report of the deceased as (Ext.Ka.4).

P.W.7 Ehtaram Ali Khan in his evidence tendered during the trial

deposed that on 13.07.2003, he was posted as S.I. at P.S.- Bajariya. After

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the registration of Case Crime No. 183 of 2003 u/s 302 I.P.C. and 7 of

Criminal Law Amendment Act, he was instructed to reach the place of

incident along with few constables by another S.I. of the same police

station on the order of P.W.10 Inspector Sri Pramod Kumar Chawla. He

had collected plain and blood-stained earth from the place of occurrence

in the presence of the witnesses and after keeping the same in two

different tin containers, had sealed the same. He had also recovered three

empty cartridges of 12 bore from the crime scene and had sealed the same

in a piece of cloth. He proved the recovery memos of the plain and blood-

stained earth and the empty cartridges as (Exts.Ka.5 and Ka.6).

P.W.8 Subhash C. Bunodha stated before the trial court that he had

conducted the inquest on the body of the deceased in the mortuary on the

next day of the incident i.e. on 14.07.2003 between 10 a.m. and 9.30 p.m.

and prepared the inquest report and other relevant documents namely

letter addressed to C.M.O., death intimation slip, letter addressed to R.I.,

photo lash, challan lash and sample of seal and proved the same as

(Exts.Ka.7 to Ka.13). He also deposed that after completing the inquest

proceedings, he had got the body of the deceased sealed and its custody

was handed over to Constables Sushil and Ram.

P.W.9 Jang Bahadur Singh deposed before the trial court that on

30.07.2003, he had registered Case Crime No. 205 and 206 of 2003 u/s

25/27 of Arms Acts against Dilip (A1) and Arjun Pal @ Palauli (A2) on

the basis of the recovery memos filed by the P.W.10 Inspector Sri Pramod

Kumar Chawla. Check F.I.R.s and the relevant G.D. Entries vide rapat no.

52 time 18.15 hours dated 30.07.2003, carbon copy whereof was brought

on record. He proved the check F.I.R. of Case Crime No. 205 and 206 of

2003 and the relevant G.D. entry as (Exts.Ka.14 and Ka.15). He further

deposed that he had registered Case Crime No. 207 and 208 of 2003 u/s

25/27 of Arms Act, P.S.- Bajariya and prepared the check FI.R. and the

relevant G.D. Entry of the aforesaid case and proved the same as

(Exts.Ka.16 & 17) vide rapat no. 64 time 23.45 hours dated 30.07.2003.

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Inspector Sri Pramod Kumar Chawla, the Investigating Officer of

the case who was examined as P.W.10 by the prosecution during the trial

in his evidence before the trial court narrated the various steps taken

during the investigation including the arrest of the accused-appellants and

recovery of crime weapons of 12 bore allegedly used by them in

committing the deceased's murder and live cartridges of the same bore on

their pointing out and and proved the memos of recoveries of the

aforesaid articles as (Exts.Ka.20 and Ka.21). He proved the charge-sheet

filed by him against Dilip (A1), Arjun Pal @ Palauli (A2) and Akhtar

Karim @ Achchhe Kariya (A3) and co-accused Ankur as (Ext.Ka.19).

P.W.11 S.I. Subhash C. Bunodha who stated before the trial court

that the recovery of crime weapons and live cartridges used by the

appellants Dilip (A1) and Arjun Pal @ Palauli (A2) was made on their

pointing out in his presence. He also deposed that the Dilip (A1) and

Arjun Pal @ Palauli (A2) had confessed before him that they had shot the

deceased from the same country-made pistols. He proved the country-

made pistols and the live cartridges allegedly recovered on the pointing

out of Dilip (A1) and Arjun Pal @ Palauli (A2) as Material Exts.2A, 3A,

4A, 6A, 7 & 8 respectively. He also proved the recovery of one country-

made pistols and one live cartridge each from co-accused Ankur and

appellant Akhtar Karim @ Achchhe Kariya (A3) on their pointing out

which was produced during the trial and marked as Material Exts.10, 11,

12, 13, 14 and 15 respectively.

P.W.12 S.I. Jagdeo Sonkar who had investigated Case Crime No.

207 and 208 of 2003 u/s 25/27 of Arms Act, proved the charge-sheets

filed by him against co-accused Ankur and Akhtar Karim @ Achchhe

Kariya (A3) on 01.08.2003 as (Exts.Ka.23 and Ka.24). He also proved the

letter of approval obtained by him from the District Magistrate for

prosecuting co-accused Ankur and Akhtar Karim @ Achchhe Kariya (A3)

u/s 25/27 of Arms Act as (Exts.Ka.25 & 26). In his evidence tendered

before the trial court, he further deposed that he had prepared the site

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plans of the places from where the crime weapons allegedly used by the

appellants and co-accused Ankur in committing the murder of deceased

Sushil on their pointing out (Exts.Ka.21, Ka.22, Ka.27 & Ka.28). Letters

of District Magistrate granting approval of prosecution of Dilip (A1) and

Arjun Pal @ Palauli (A2) u/s 25/27 of Arms Act were proved by him as

(Exts.Ka.31 and Ka.32). He also proved the charge-sheets filed by him

against Dilip (A1) and Arjun Pal @ Palauli (A2) as (Exts.Ka.29 and

Ka.30).

All the eight formal witnesses produced by the prosecution during

the trial were cross-examined by defence counsel at great length but he

failed to elicit anything material out of them which may adversely affect

the prosecution case.

P.W.4 Sanjay proved the recovery of plain and blood-stained earth,

three empty cartridges of 12 bore from the place of incident and admitted

his signature on the recovery memo of the aforesaid articles prepared on

the spot.

Thus, from the evidence of P.W.6 Dr. Ravindra P. Mishra who had

conducted postmortem on the body of deceased, the deceased had died

due to shock and haemorrhage as a result of ante-mortem firearm injuries

found on his body.

We now proceed to evaluate and appraise the oral evidence on

record with the object of ascertaining whether the appellants were the

authors of firearm wounds found on the deceased's body ?

As already noted, the prosecution had examined P.W.1 informant

Ashok Kumar Gupta, P.W.3 Ram Lakhan Yadav and P.W.5 Jeetu as eye-

witnesses of the occurrence. As far as P.W.3 Ram Lakhan Yadav and

P.W.5 Jeetu are concerned, P.W.3 Ram Lakhan Yadav had failed to

support the prosecution case in his examination-in-chief whereas P.W.5

Jeetu after supporting the prosecution case in his examination-in-chief,

has failed to support the prosecution story in his cross-examination on

15

account of which both P.W.3 Ram Lakhan Yadav and P.W.5 Jeetu were

declared hostile but the facts deposed by P.W.5 Jeetu in his examination-

in-chief fully corroborates the evidence of P.W.1 informant Ashok Kumar

Gupta on all material points pertaining to the incident.

The evidence of P.W.1 informant Ashok Kumar Gupta has been

castigated by the learned counsel for the appellants mainly on the ground

that he is neither the eye-witness of the incident nor he had seen anything.

In this regard, he has invited our attention to the recitals contained in the

F.I.R. which admittedly was scribed by S.K. Gupta, Advocate and brother-

in-law of the informant on the dictation of P.W.1. He has not stated

anything in the written report either about the place where he was

standing at the time of the occurrence or he had witnessed the same. He

had merely nominated P.W.3 Ram Lakhan Yadav, P.W.5 Jeetu, Vijay

Kumar and other neighbours as the eye witnesses. His presence, according

to the learned counsel for the appellants, at the time and place of the

incident, became further doubtful on account of failure of any of the

prosecution witnesses to state in their evidence about the presence of

P.W.1 informant Ashok Kumar Gupta at the time of the incident. P.W.1

informant Ashok Kumar Gupta in his examination-in-chief, apart from

supporting the prosecution story as spelt out in the written report of the

incident which was scribed on his dictation, has further deposed that

accused had left the place of incident, brandishing their weapons.

Thereafter, he, Santosh Kumar and Ram Lakhan had taken Sushil to

Hallet Hospital where the doctors had declared him brought dead. Sushil

had died while being taken to the hospital. The incident had been

witnessed by P.W.3 Ram Lakhan Yadav, P.W.5 Jeetu, Vijay Kumar and

large number of neighbours. He had got the written report of the incident

scribed by his brother-in-law S.K. Gupta and he had written whatever was

dictated to him. After the written report had been scribed, it was read over

to him and he had then put his signature thereon only after being satisfied

and lodged it at P.S.- Bajariya. He proved the written report of the

16

incident as (Ext.Ka.1). In his cross-examination on page 24 of the paper

book, he has deposed that when his brother had left his house, he was

standing adjacent to the Pan Masala shop which was not his personal shop

and he had taken it on rent. The masala shop was at a distance of about

25-30 paces from his house while the distance between the place of

occurrence and the masala shop was 20 paces. Although it has been

argued by learned counsel for the appellants that P.W.1 informant Ashok

Kumar Gupta had made material improvements in his statements recorded

before the trial court by deposing the aforesaid facts for the first time

which was neither mentioned in the written report of the incident

(Ext.Ka.1) nor in his statement recorded u/s 161 Cr.P.C. with the object of

establishing that he had witnessed the occurrence, we are constrained to

observe after going through the entire cross-examination of P.W.1

informant Ashok Kumar Gupta which runs into about 21½ pages that

there is nothing which may indicate that the defence counsel had

contradicted P.W.1 with his statement recorded u/s 161 Cr.P.C. in which,

as argued by learned counsel for the appellants, he had neither stated that

he was present at the place of occurrence nor the place from where he had

allegedly witnessed the incident.

The question which arises for our consideration is that whether any

part of the statement of a witness recorded u/s 161 Cr.P.C. which has been

reduced into writing and is called for prosecution during the enquiry or

trial can be used by the accused without contradicting such witness in the

manner provided u/s 145 of the Indian Evidence Act, 1872 ?

Before examining the aforesaid question, it would be useful to

reproduce 161 and 162 Cr.P.C. and Section 145 of the Indian Evidence

Act, 1872 :-

Section 161 in The Code Of Criminal Procedure, 1973

161. Examination of witnesses by police.

17

(1) Any police officer making an investigation under this Chapter, or any police

officer not below such rank as the State Government may, by general or special

order, prescribe in this behalf, acting on the requisition of such officer, may examine

orally any person supposed to be acquainted with the facts and circumstances of the

case.

(2) Such person shall be bound to answer truly all questions relating to such case put

to him by such officer, other than questions the answers to which would have a

tendency to expose him to a criminal charge or to a penalty or forfeiture.

(3) The police officer may reduce into writing any statement made to him in the

course of an examination under this section; and if he does so, he shall make a

separate and true record of the statement of each such person whose statement he

records.

Section 162 in The Code Of Criminal Procedure, 1973

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 re- examination 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

18

1872 ), or to affect the provisions of section 27 of that Act. Explanation.- An

omission to state a fact or circumstance in the statement referred to in sub- section

(1) may amount to contradiction if the same appears to be significant and otherwise

relevant having regard to the context in which such omission occurs and whether any

omission amounts to a contradiction in the particular context shall be a question of

fact.

Section 145 in The Indian Evidence Act, 1872

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.1145. 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."

A conjoint reading of the aforesaid provision indicates that any

police officer making an investigation under chapter 12 of the Code of

Criminal Procedure, 1973 or any police officer making any investigation

under this chapter examines any person believed to be acquainted with the

facts and circumstances of the case, the police officer may reduce into

writing any statement made to him in the course of examination u/s 161

Cr.P.C. and if it is true, he shall make separate entry to record all the

statements of such person whose statement he records.

Section 162 (1) of Cr.P.C. stipulates that 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

19

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. Proviso to Section 162 (1) of Cr.P.C. mandates 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 re-examination of such witness, but for the

purpose only of explaining any matter referred to in his cross-

examination. Section 162 (2) of Cr.P.C. excludes any statement falling

within the provisions of clause 2 of the Indian Evidence Act, 1872 and 27

of that Act from the application of the aforesaid proviso.

The object of Section 145 of the Evidence Act is to give a witness a

chance of explaining the discrepancy and inconsistency and to clear up

the point of ambiguity and dispute.

There is nothing in the cross-examination of P.W.1 informant Ashok

Kumar Gupta that his attention was called to that part of his statement

recorded u/s 161 Cr.P.C. in which he had omitted either to describe

himself as an eye-witness of the incident or to name the place from where

he had witnessed the same. We do not find any reason to dis-believe the

evidence of P.W.1 informant Ashok Kumar Gupta. Mere inconsistency in

evidence is not sufficient to impair the credit of the witness.

The Apex Court in the case of Karan Singh & Ors. Vs State

of Madhya Pradesh, J.T. 2003, Suppl. Vol. 2 SC 261, has held

that when a previous statement is to be proved as an admission, the

statement as such should be put to the witness and if the witness denies

having given such a statement, it does not amount to any admission and if

it is to be proved that he had given such a statement, the attention of the

witness must be drawn to that statement. The object behind this provision

20

is to give a witness a chance of explaining the discrepancy or

inconsistency and to clear up the particular point of ambiguity or dispute.

The question of contradicting the evidence and the requirements of

compliance in Section 145 of the Evidence Act has been considered by the

Apex Court in the case of Tahsildar Singh and Another Vs The

State of Uttar Pradesh, AIR 1012, 1959 SCR Supl. (2) 875.

The Apex Court in the aforesaid case was examining the question as to

when an omission in the former statement can be held to be a

contradiction and it was also indicated as to how a witness can be

contradicted in respect of his former statement by drawing his attention to

that portion of the former statement. Following paragraphs of the

aforesaid judgement of Tahsildar Singh (supra) which are relevant for

our purpose are being reproduced hereinbelow :-

9. Diverse and conflicting views were expressed by Courts on the

interpretation of Section 162 of the Code of Criminal Procedure. A

historic retrospect of the section will be useful to appreciate its content.

The earliest Code is that of 1872 and the latest amendment is that of

1955. Formerly Criminal Procedure Code Courts in the Presidency,

towns and those in the mofussil were not the same. Criminal Procedure

Code, 1882 (10 of 1882), consolidated the earlier Acts and prescribed a

uniform law to all Courts in India. It was superseded by Act 5 of 1898

and substantial changes were made by Act 18 of 1923. Since then the

Code stands amended from time to time by many other Acts. The latest

amendments were made by Act 26 of 1955 which received the assent

of the President on August 10, 1955, and by notification issued by the

Central Government its provisions came into force on and from January

1, 1956. We are not concerned in this case with the Amending Act of

1955, but only with the Act as it stood before the amendment of 1955.

10. In Act 10 of 1872 the section corresponding to the present Section

162 was Section 119, which read:

"An officer in charge of a police-station, or other Police officer

making an investigation, may examine orally any person supposed to

be acquainted with the facts and circumstances of the case, and may

reduce into writing any statement made by the person so examined.

Such person shall be bound to answer all questions relating to

such case, put him by such officer, other than questions criminating

himself.

No statement so reduced into writing shall be signed by the

person making it, nor shall it be. treated as part of the record or used as

evidence."

This section enables a police officer to elicit information from persons

supposed to be acquainted with facts, and permits him to reduce into

writing the answers given by such persons, but excludes the said

statement from being treated as part of the record or used as evidence.

Act 10 of 1882 divided the aforesaid Section 119 into two sections and

21

numbered them as Sections 161 and 162, which read:

161: " Any Police-officer making an investigation under this

chapter may examine orally any person supposed to be acquainted with

the facts and circumstances of the case, and may reduce into writing

any statement made by the person so examined.

Such person shall be bound to answer truly all questions relating

to such case put to him by such officer, other than questions the

answers to which would have a tendency to expose him to a criminal

charge or to a penalty or forfeiture."

162: " No statement, other than a dying declaration, 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, or be used as evidence against the accused.

Nothing in this section shall be deemed to affect the provisions

of Section 27 of the Indian Evidence Act, 1872."

The first two paragraphs of Section 119 of Act 10 of 1872 with slight

modifications not relevant for the present purpose constituted the

corresponding paragraphs of Section 161 of Act 10 of 1882; and the

third paragraph of Section 119 of the former Act, with some changes,

was made Section 162 of the latter Act. There was not much difference

between the third paragraph of Section 119 of the Act of 1872 and

Section 162 of the Act of 1882, except that in the latter Act, it was made

clear that the prohibition did not apply to a dying declaration or affect

the provisions of Section 27 of the Indian Evidence Act, 1872. The

Code of 1898 did not make any change in Section 161, nor did it

introduce any substantial change in the body of Section 162 except

taking away the exception in regard to the dying declaration from it and

putting it in the second clause of that section. But Section 162 was

amended by Act 5 of 1898 and the amended section read :

"(1) No statement made by any person to a police-officer in the

course of an investigation under this Chapter shall, if taken down in

writing, be signed by the person making it, nor shall such writing be

used as evidence:

Provided that, when any witness is called for the prosecution

whose statement has been taken down in writing as aforesaid, the

Court shall, on the request of the accused, refer to such writing, and

may then, if the Court thinks it expedient in the interests of justice,

direct that the accused be furnished with a copy thereof ; and such

statement may be used to impeach the credit of such witness in manner

provided by the Indian Evidence Act, 1872.

(2) Nothing in this section shall be deemed to apply to any

statement falling within the provisions of Section 32, clause (1), of the

Indian Evidence Act, 1872."

For the first time the proviso to Section 162 introduced new elements,

namely: (i) The right of the accused to request the Court to refer to the

statement of a witness reduced to writing; (ii) a duty cast on the Court to

refer to such writing; (iii) discretion conferred on the Court in the

interests of justice to direct that the accused be furnished with a copy of

the statement; and (iv) demarcating the field within which such

statements can be used, namely, to impeach the credit of the witness in

the manner provided by the Indian Evidence Act, 1872. From the

standpoint of the accused, this was an improvement on the

corresponding sections of the earlier Codes, for whereas the earlier

Codes enacted a complete bar against the use of such statements in

evidence, this Code enabled the accused, subject to the limitations

mentioned therein, to make use of then to impeach the credit of a

22

witness in the manner provided by the Indian Evidence Act. On the

basis of the terms of Section 162 of Act 5 of 1896, two rival contentions

were raised before the Courts. It was argued for the prosecution that on

the strength of Section 157 of the Evidence Act, the right of the

prosecution to prove any oral statement to contradict the testimony of

any witness under that section was not taken away by Section 162 of

the Code of Criminal Procedure which only provided that the writing

shall not be used as evidence. On the other hand, it was contended on

behalf of the accused that when the statement of a witness was

admittedly reduced into writing, it would be unreasonable to allow any

oral evidence of the statement to be given when the writing containing

the statement could not be proved. The judgment of Hosain, J., in the

case of Rustam v. King-Emperor (1) and the decisions in Fanindra Nath

Banerjee v. Emperor (2), King-Emperor v. Nilakanta (3) and

Muthukumaraswami Pillai v. King-Emperor (4) represent one side of

the question, and the judgment of Knox, J., in Rustam v. King-Emperor

(1) and the observations of Beaman, J., in Emperor v. Narayan (5)

represent the other side. A division Bench of the Bombay High Court in

Emperor v. Hanmaraddi Bin Ramaraddi (6), after noticing the aforesaid

decisions on the question, ruled that the police officer could be allowed

to depose to what the witness had stated to him in the investigation for

the purpose of corroborating what the witness had said at the trial. In

that context, Shah, J., observed at p. 66:

“The point is not free from difficulty which is sufficiently reflected

in the diversity of judicial opinions, bearing on the question."

Presumably, in view of the aforesaid conflict, to make the legislative

intention clear the section was amended by Act 18 of 1923. Section 162

as amended by the aforesaid Act reads:

"(1) No statement made by any person to a police-officer in the

course of an investigation under this Chapter shall, if reduced into

writing, be signed by the person making it; nor shall any such statement

or any record thereof, whether in a police-diary or otherwise, or any part

of such statement or record, be used for any purpose (save as

hereinafter provided) at any inquiry or trial in respect of any offence

under investigation at the time when such statement was made:

Provided that, when any witness is called for the prosecution in

such inquiry or trial whose statement has been reduced into writing as

aforesaid, the Court shall, on the request of the accused, refer to such

writing and direct that the accused be furnished with a copy thereof, in

order that any part of such statement if duly proved, may be used to

contradict such witness in the manner provided by Section 145 of the

Indian Evidence Act, 1872. When any part of such statement is so

used, any part thereof may also be used in the reexamination of such

witness, but for the purpose only of explaining any matter referred to in

his cross- examination:

Provided, further that, if the Court is of --opinion that any part of

any such statement is not relevant to the subject-matter of the inquiry or

trial or that its disclosure to the accused is not essential in the interests

of justice and is inexpedient in the public interests, it shall record such

opinion (but not the reasons therefore) and shall exclude such part from

the copy of the statement furnished to the accused."

Sub-section (1) of the substituted section attempted to steer clear of the

aforesaid conflicts and avoid other difficulties by the following ways: (a)

Prohibited the use of the statement, both oral and that reduced into

writing, from being used for any purpose at any inquiry or trial in respect

of any offence under investigation; (b) while the earlier section enabled

the accused to make use of it to impeach the credit of a witness in the

23

manner provided by the Indian Evidence Act, 1872, the new section

enabled him only to use it to contradict the witness in the manner

provided by Section 145 of the said Act; (c) the said statement could

also be used for the purpose of only explaining any matter referred to in

his cross-examination; and (d) while under the old section a discretion

was vested in the Court in the matter of furnishing the accused with a

copy of an earlier statement of a prosecution witness, under the

amended section, subject to the second proviso, a duty was cast upon

the Court, if a request was made to it by the accused, to direct that the

accused be furnished with a copy thereof. The effect of the amendment

was that the loopholes which enabled the use of the statement made

before the police in a trial were plugged and the only exception made

was to enable the accused to use the statement of a witness reduced

into writing for a limited purpose, namely, in the manner provided by

Section 145 of the Indian Evidence Act, 1872, and the prosecution only

for explaining the matter referred to in his cross examination. The scope

of the limited use also was clarified. Under the old section the statement

was permitted to be used to impeach the credit of a witness in the

manner provided by the Indian Evidence Act; under the said Act, the

credit of a witness could be impeached either under Section 145 or

under Section 155 (3). While the former section enables a witness to be

cross-examined as to a previous statement made by him in writing

without such writing being shown to him, the latter section permits the

discrediting of the witness by proof of his previous statement by

independent evidence. If a statement in writing could be used to

discredit a witness in the manner provided by those two sections, the

purpose of the Legislature would be defeated. Presumably in realisation

of this unexpected consequence, the Legislature in the amendment

made it clear that the said statement can only be used to contradict a

witness in the manner provided by Section 145 of the Evidence Act. By

Act 2 of 1945, the following sub-section (3) was added to Section 161 :

"The police-officer may reduce into writing any statement made

to him in the course of an examination under this section, and if he

does so, he shall make a separate record of the statement of each such

person whose statement he records."

This subsection restored the practice obtaining before the year 1923

with a view to discourage the practice adopted by some of the police

officers of taking a condensed version of the statements of all the

witnesses or a precise of what each witness said. It is not necessary to

notice in detail the changes made in Section 162 by Act 26 of 1955,

except to point out that under the amendment the prosecution is also

allowed to use the statement to contradict a witness with the permission

of the Court and that in view of the shortened committal procedure

prescribed, copies of the statements of the prosecution witnesses made

before the police during investigation are made available by the police

to the accused before the commencement of the inquiry or trial. The

consideration of the provisions of the latest amending Act need not

detain us, for the present case falls to be decided tinder the Act as it

stood before that amendment.

11. It is, therefore, seen that the object of the legislature throughout has

been to exclude the statement of a witness made before the police

during the investigation from being made use of at the trial for any

purpose, and the amendments made from time to time were only

intended to make clear the said object and to dispel the cloud cast on

such intention. The Act of 1898 for the first time introduced an

exception enabling the said statement reduced to writing to be used for

impeaching the credit of the witness in the manner provided by the

Evidence Act. As the phraseology of the exception lent scope to defeat

24

the purpose of the legislature, by the Amendment Act of 1923, the

section was redrafted defining the limits of the exception with precision

so as to confine it only 112 to contradict the witness in the manner

provided under Section 145 of the Evidence Act. If one could guess the

intention of the legislature in framing the section in the manner it did in

1923, it would be apparent that it was to protect the accused against

the user of the statements of witnesses made before the police during

investigation at the trial presumably on the assumption that the said

statements were not made under circumstances inspiring confidence.

Both the section and the proviso intended to serve primarily the same

purpose, i.e., the interest of the accused.

12. Braund, J., in Emperor v. Aftab Mohd. Khan (1) gave the purpose of

Section 162 thus at p. 299:

"As it seems to us it is to protect accused persons from being

prejudiced by statements made to police officers who by reason of the

fact that an investigation is known to be on foot at the time the

statement is made, may be in a position to influence the maker of it

and, on the other hand, to protect accused persons from the prejudice

at the hands of persons who in the knowledge that an investigation has

already started, are prepared to tell untruths."

A Division Bench of the Nagpur High Court in Baliram Tikaram Marathe

v. Emperor (2) expressed a similar idea in regard to the object

underlying the section, at p. 5, thus: "The object of the section is

to protect the accused both against over-zealous police officers and

untruthful witnesses."

The Judicial Committee in Pakala Narayana Swami v. The King-

Emperor (3) found another object underlying -the section when they

said at p. 78:

"If one had to guess at the intention of the Legislature in framing

a section in the words used, one would suppose that they had in mind

to encourage the free disclosure of information or to protect the person

making the statement from a supposed unreliability of police testimony

as to alleged statements or both.

Section 162 with its proviso, if construed in the manner which we will

indicate at the later stage of the judgment, clearly achieves the said

objects.

13. The learned Counsel's first argument is based upon the words "in

the manner provided by Section 145 of the Indian Evidence Act, 1872

"found in Section 162 of the Code of Criminal Procedure. Section 145

of the Evidence Act, it is said, empowers the accused to put all relevant

questions to a witness before his attention is called to those parts of the

writing with a view to contradict him. In support of this contention

reliance is placed upon the judgment of this Court in Bhagwan Singh v.

The State of Punjab (1). Bose, J., describes the procedure to be

followed to contradict a witness under Section 145 of the Evidence Act

thus at p. 819:

"Resort to Section 145 would only be necessary if the witness

denies that he made the former statement. In that event, it would be

necessary to prove that he did, and if the former statement was

reduced to writing, then Section 145 requires that his attention must be

drawn to those parts which are to be used for contradiction. But that

position does not arise when the witness admits the former statement.

In such a case all that is necessary is to look to the former statement of

which no further proof is necessary because of the admission that it

was made."

It is unnecessary to refer to other cases wherein a similar procedure is

25

suggested for putting questions under Section 145 of the Indian

Evidence Act, for the said decision of this Court and similar decisions

were not considering the procedure in a case where the statement in

writing was intended to be used for contradiction under Section 162 of

the Code of Criminal Procedure. Section 145 of the Evidence Act is in

two parts: the first part enables the accused to cross-examine a witness

as to previous statement made by him in writing or reduced to writing to

without such writing being shown to him; the second part deals with a

situation where the cross- examination assumes the shape of

contradiction : in other words, both parts deal with cross-examination;

the first part with cross-examination other than by way of contradiction,

and the second with cross-examination by way of contradiction only.

The procedure prescribed is that, if it is intended to contradict a witness

by the writing, his attention must, before the writing can be proved, be

called to those parts of it which are to be used for the purpose of

contradicting him. The proviso to Section 162 of the Code of Criminal

Procedure only enables the accused to make use of such statement to

contradict a witness in the manner provided by Section 145 of the

Evidence Act. It would be doing violence to the language of the proviso

if the said statement be allowed to be used for the purpose of cross-

examining a witness within the meaning of the first part of Section 145

of the Evidence Act. Nor are we impressed by the argument that it

would not be possible to invoke the second part of Section 145 of the

Evidence Act without putting relevant questions under the first part

thereof. The difficulty is more imaginary than real. The second part of

Section 145 of the Evidence Act clearly indicates the simple procedure

to be followed. To illustrate: A says in the witness-box that B stabbed C;

before the police he bad stated that D stabbed C. His attention can be

drawn to that part of the statement made before the police which

contradicts his statement in the witness-box. If he admits his previous

statement, no further proof is necessary; if he does not admit, the

practice generally followed is to admit it subject to proof by the police

officer. On the other hand, the procedure suggested by the learned

Counsel may be illustrated thus: If the witness is asked " did you say

before the police-officer that you saw a gas light ? " and he answers "

yes ", then the statement which does not contain such recital is put to

him as contradiction. This procedure involves two fallacies: one is it

enables the accused to elicit by a process of cross-examination what

the witness stated before the police-officer. If a police-officer did not

make a record of a witness's statement, his entire statement could not

be used for any purpose, whereas if a police-officer recorded a few

sentences, by this process of cross- examination, the witness's oral

statement could be brought on record. This procedure, therefore,

contravenes the express provision of Section 162 of the Code. The

second fallacy is that by the illustration given by the learned Counsel for

the appellants there is no self-contradiction of the primary statement

made in the witness-box, for the witness has yet not made on the stand

any assertion at all which can serve as the basis. The contradiction,

under the section, should be between what a witness asserted in the

witness-box and what he stated before the police-officer, and not

between what he said he had stated before the police-officer and what

he actually made before him. In such a case the question could not be

put at all: only questions to contradict can be put and the question here

posed does not contradict it leads to an answer which is contradicted by

the police statement. This argument of the learned Counsel based upon

Section 145 of the Evidence Act is, therefore, not of any relevance in

considering the express provisions of Section 162 of the Code of

Criminal Procedure.

26

This question was again considered in the case of Binay Kumar

Singh Vs The State of Bihar, 1997 Vol. 1 SCC 283. The Apex

Court taking note of the earlier decision in Bhagwan Singh Vs The

State of Punjab, 1952 AIR 214, 1952 SCR 812, explained away

the same with the observation that on the facts of that case, there could

not be a dispute with the proposition laid down therein. But while

elaborating the second limb of Section 145 of the Evidence Act, it was

held that if it is intended to contradict a witness, his attention must be

called to those part of his writings of his earlier statements which are

intended to be used for the purpose of contradicting him. It was further

held that if the witness denies having made any statement which is

inconsistent with his present stand, his testimony in Court on that score

would not be vitiated until cross-examiner proceeds to comply with the

procedure prescribed in the second limb of Section 145 of the Evidence

Act.

Hence, the procedure prescribed u/s 145 of the Evidence Act having

not been complied, we do not find any reason to discredit the evidence of

P.W.1 informant Ashok Kumar Gupta or to hold either that he is not a

fully reliable witness or he had not seen the occurrence. The statement of

P.W.1 informant Ashok Kumar Gupta stands fully corroborated from the

facts deposed by P.W.5 Jeetu in his examination-in-chief.

The next issue which arises for our consideration is that whether the

facts stated by P.W.5 Jeetu in his examination-in-chief in which he had

fully supported the prosecution case and corroborated the evidence of

P.W.1 informant Ashok Kumar Gupta on all material particulars but was

declared hostile during his cross-examination can be relied upon by the

Court for the purpose of seeking corroboration of evidence of P.W.1 ?

The aforesaid question is no longer res integra and stands settled by

a catena of decisions of the Apex Court.

The Apex Court in Mrinal Das and others v. State of

27

Tripura, (2011) 9 SCC 479, which was the case in which the main

prosecution witnesses, viz., P.Ws. 2, 9, 10 and 12 were declared hostile

witnesses while reiterating that corroborated part of evidence of hostile

witness regarding commission of offence is admissible, held :-

“67. It is settled law that corroborated part of evidence of hostile

witness regarding commission of offence is admissible. The fact

that the witness was declared hostile at the instance of the Public

Prosecutor and he was allowed to cross-examine the witness

furnishes no justification for rejecting en bloc the evidence of the

witness. However, the Court has to be very careful, as prima facie,

a witness who makes different statements at different times, has

not regard for the truth. His evidence has to be read and

considered as a whole with a view to find out whether any weight

should be attached to it. The Court should be slow to act on the

testimony of such a witness, normally, it should look for

corroboration with other witnesses. Merely because a witness

deviates from his statement made in the F.I.R., his evidence

cannot be held to be totally unreliable. To make it clear that

evidence of hostile witness can be relied upon at least up to the

extent, he supported the case of the prosecution. The evidence of

a person does not become effaced from the record merely

because he has turned hostile and his deposition must be

examined more cautiously to find out as to what extent he has

supported the case of the prosecution.”

The Apex Court in Sathya Narayanan v. State rep. by

Inspector of Police, 2013 (80) ACC 138, observed as hereunder :-

“In other words, the evidence of hostile witness can be relied

upon at least to the extent, it supported the case of the

prosecution. In view of the same, reliance placed on certain

statements made by hostile witnesses by the Trial Court and the

High Court are acceptable.”

Thus in view of the legal principles propounded hereinabove by the

Apex Court, we are not inclined to reject the evidence of P.W.5 Jeetu in

toto merely because he was declared hostile during his cross-examination.

There is no law which lays down that a conviction cannot be

recorded on the basis of the solitary witness. A conviction can be based

upon the testimony of a sole witness provided he is found to be wholly

reliable. In case the solitary witness appears to the Court to be partially

reliable, in that case the Court shall seek corroboration from the other

28

evidence. In the present case, we have not only found P.W.1 informant

Ashok Kumar Gupta to be wholly reliable witness but also his evidence

finds full corroboration from the deposition made by P.W.5 Jeetu in his

examination-in-chief.

In our opinion, the prosecution's inability to connect the weapons

allegedly used by the appellants in committing the deceased's murder and

which the prosecution claims were recovered on their pointing out, with

the crime in question by leading any cogent and reliable evidence, would

not adversely affect the credibility of the prosecution case or the evidence

of the eye-witnesses.

The F.I.R. in this case was promptly lodged within 75 minutes of

the occurrence, leaving no room for holding any discussion or

deliberation, with the object of concocting a false prosecution story and

implicating innocent persons falsely.

Upon a holistic view of the facts and circumstances of the case and

the evidence on record, both oral as well as documentary, we have no

hesitation in holding that the prosecution has fully succeeded in proving

that the deceased was shot dead by the appellants on 13.07.2003. Neither

the recorded conviction of the appellants nor the sentences awarded to

them warrant any interference by this Court.

This appeal lacks merit and is accordingly dismissed.

Order Date :- 22.11.2019

KS