IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL.A.No. 294 of 2009()
1. NARAYANAN, S/O.NARAYANAN @ NANU NAIR
... Petitioner
Vs
1. STATE OF KERALA REP. BY THE SUB
... Respondent
For Petitioner :SRI.BABU S. NAIR
For Respondent : No Appearance
The Hon'ble MR. Justice A.K.BASHEER
Dated :13/02/2009
O R D E R
A.K.BASHEER & C.T. RAVIKUMAR, JJ.
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Crl.A.No.294 OF 2009
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Dated this the 13th day of February, 2009
JUDGMENT
Basheer, J:
This case unravels a disturbing judicial aberration.
Appellant, who was tried for the offence punishable under
Section 302 I.P.C, was found guilty by the trial court and
convicted and sentenced to undergo imprisonment for life and to
pay a fine of Rs.5,000/- with a default sentence. Appellant is
now undergoing incarceration since January 29, 2009, the day on
which the trial court imposed the above sentence on him.
2. It is not uncommon that a presiding Judge while trying
a case may commit mistakes, both in law or on facts. It is yet
again possible that the Judge may fail to follow the procedure
prescribed under law, while disposing of the case. The mistakes
or omissions/commissions need not always invite criticism at
the hands of the higher authority under the hierarchy. A Judge is
a human being. He can commit mistakes, may be out of
ignorance or due to non-availability of adequate assistance at
the bar. But, when a presiding Judge commits a mistake
ignoring the rudimentary or elementary principles of law, it
becomes a matter for concern. Such mistakes obviously will
create panic among the citizenry who have abundant faith in
the justice dispensation system in the country. When such
Crl.A.294/09 : 2 :
judicial aberrations come to the notice of the higher authority, it
should be ensured that similar mistakes are not repeated by
others occupying the seat of judicial power.
3. We have made the above observations only to
express our anxiety and anguish about this recurring malady,
inspite of consistent efforts that are being made to impart
training to the judicial officers. But still, such instances do
recur. The malady still persists and the remedy appears to be
elusive.
4. The prosecution case against the appellant may be
briefly noticed.
5. On August 15, 2006 at about 10.15 a.m while Pw1 was
walking through the pathway near the residence of the
appellant and the deceased, (who are brothers), he found
deceased Krishnadas lying in a pool of blood on the said
pathway. Pw1 put the head of the deceased on his lap and
asked him what had happened. The deceased is stated to have
told Pw1 that Narayanan had stabbed him. The deceased
asked for some water which was immediately brought by Pw1
from the residence of the appellant. The deceased drank four
glasses of water, collapsed and died immediately. Pw1 went to
the road in order to fetch a vehicle. He informed the matter
to a few people whom he saw on the way. Pw1 went to the
Crl.A.294/09 : 3 :
police station, and Ext.P1 First Information Statement given by
Pw1 was recorded at 10.30 a.m. Ext.P15 F.I.R was registered
by Pw16 – the Sub Inspector of Police, Malappuram police
station. Pw17 – the Circle Inspector took up the investigation
and visited the scene of occurrence. Appellant was arrested at
about 5.30 p.m on the same day and Mo2 knife was recovered
just outside the kitchen of the residence of the appellant.
Investigation was completed after questioning the witnesses.
Charge sheet was laid by Pw18, the successor of Pw17.
6. Pws 1 to 19 were examined and Exts.P1 to P31 and
Mos 1 to 8 were marked on the side of the prosecution. There
was no oral or documentary evidence on the side of the
defence. The learned Additional Sessions Judge, Fast Track
Court-III (Adhoc), Manjeri, before whom the case was tried,
found the appellant guilty under Section 302 I.P.C and he was
accordingly convicted and sentenced, as mentioned earlier.
7. As indicated earlier, appellant is the younger brother of
deceased Krishnadas. The prosecution case appears to be that
the appellant and the deceased used to pick up quarrels
frequently over some properties. Admittedly, appellant and the
deceased were residing together with their parents and wife
and children. The prosecution alleged that the appellant had
stabbed deceased Krishnadas with Mo6 knife inside the kitchen
Crl.A.294/09 : 4 :
of the house. Krishnadas had run out of the kitchen and
collapsed on the pathway outside the house. Pw.1 found him
lying in a pool of blood. It was the further case of the
prosecution that there was a pool of blood was on the floor of
the kitchen also. Blood was found spattered over the kitchen
wall, utensils etc. In Ext.P1 First Information Statement, Pw1
stated that deceased Krishnadas told him that Narayanan had
stabbed him. According to Pw1, he had seen the appellant
coming out of the house from the kitchen side with blood on his
body. Pw.1 asked him what had happened. Appellant had
allegedly reacted to the query made by Pw.1 by telling him not
to interfere in the matter and walked away.
8. In this context it may be noticed that Pw1 had given a
statement before the Judicial Magistrate of First Class,
Perinthalmanna (Pw15) under Section 164 of the Code of
Criminal Procedure. Similar statements of Pws2 and 6 were
also recorded by Pw15. We will refer to these statements a little
later.
9. Pw1, as mentioned earlier is the neighbour of the
appellant and deceased. Pw2 is the first cousin of the
appellant and the deceased. Pw6 – a blacksmith by profession
had stated before the Police that he had made Mo6 knife as
instructed by the appellant.
Crl.A.294/09 : 5 :
10. But when Pws 1, 2 and 6 were examined before the
court, they turned hostile to the prosecution. Pw1 deposed
before the court that he had not seen the appellant coming out
of the kitchen of his residence with blood on his body. He also
disowned his statement given before the police that the
appellant had told him not to interfere in the matter. In short,
Pw1 disowned all the incriminating statements made by him
against the appellant before the police and also before Pw15
when his statement was recorded under Section 164 of the
Code. The prosecution met with the same fate when it came
to the evidence of Pws 2 and 6 also. These witnesses disowned
their respective statements allegedly given to the police under
Section 161 of the Code. They were also declared hostile.
Similarly Ext.P30 contradiction in the statement of Pw6 was
also marked by the prosecution. We will refer to Exts.P17 to
P20 contradictions in respect of Pw1 which were also marked
through the investigating officer, a little later.
11. Learned Sessions Judge however was not flustered by
the above conduct of the witnesses who were supposed to
speak about the involvement of the appellant. The learned
Judge took the view that the statements given by the
witnesses before the police under Section 161 of the Code could
not be brushed aside. As regards the statement given by Pw1
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before the learned magistrate under Section 164 of the Code,
the learned Judge held that the said statement will prevail
over the deposition given by this witness before the court.
12. In this context it may be notified that Pw.1 did not speak
anything about the involvement of the appellant in the alleged
incident when his statement was recorded before the learned
Magistrate under Section 164. Significantly he did not also say
that he saw the appellant coming out of his kitchen with blood on
his clothes. More importantly, Pw.1 stated that deceased
Krishnadas had been talking with him, with his head on his lap,
for about half an hour before he collapsed and died. When Pw.1
was examined in the court also, he did not have a case that he saw
the appellant coming out of the kitchen with blood on his clothes.
In short, Pw.1 had spoken about the above incriminating aspect of
seeing the appellant coming out of the kitchen with blood stained
clothes, only before the Police when he was questioned under
Section 161 of the Code of Criminal Procedure. Learned Sessions
Judge took the view that the above statement made by Pw.1 before
the Police cannot be brushed aside and it was liable to be accepted.
However the learned Sessions Judge failed to notice that Pw.1 did
not have such a case before the learned Magistrate when he gave a
statement under Section 164 of the Code.
13. It is true that Pw.1 had stuck to his version that the
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deceased had told him that one Narayanan had stabbed him. But
Pw.1 had admitted in the course of his examination that there were
more than 4 or 5 persons with the name Narayanan not only in the
family of the appellant but also in that very same locality. For
instance, it had come out in evidence that the father’s name of the
appellant and deceased was Narayanan. One of the uncles of the
appellant was also Narayanan. Similarly two neighbours of the
appellant were also having the same name Narayanan. Four or five
other Narayanans in the locality were also mentioned by Pw.1. He
further candidly admitted that deceased Krishnadas had not
specifically stated that it was the appellant Narayanan who had
stabbed him. Thus the only incriminating statement given by
Pw.1 was the one which he had given before the Police to the
effect that he saw the appellant coming out of the kitchen with
bloodstained clothes. It is this statement given by Pw.1 before the
Police that the learned Sessions Judge relied on to hold the
appellant guilty.
14. As mentioned earlier, Pw.2 the cousin of the appellant,
and deceased Krishnadas had also failed to support the
prosecution. She had given a statement before the learned
Magistrate under Section 164 Cr.P.C which was marked in the
case as Ext.P13. In the said statement Pw.2 stated that she had
nothing to say about the case.
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15. Pw.6 the blacksmith had told the Police that he had made
M.O.6 knife as instructed by the appellant. But when he was
examined before the court he disowned the above statement
allegedly given by him before the Police. When the statement of
this witness was recorded before the learned Magistrate under
Section 164 of the Code, he stated that he had nothing to say about
the case. In short, Pws.2 and 6 did not say anything against the
appellant-accused before the learned Magistrate under Section 164.
They also did not have anything to say against the appellant before
the Court when they were examined later. However the learned
Sessions Judge took the view that their statements before the
Police under section 161 have to be accepted and relied on. We are
afraid the above view taken by the learned Sessions Judge cannot
be sustained at all, to say the least. The reasoning of the learned
Sessions Judge is that whatever witnesses speak to the Police
immediately after the incident may be the true version, while the
versions that they may give before the court after a considerable
lapse of time may not be entirely true, since by that time they
would have been persuaded by the accused to help him by
speaking falsehood. According to the learned Judge a witness may
change his versions out of fear or due to influence or such other
reasons.
16. As regards the probative value of the statement given
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by a witness before a Magistrate under Section 164 of the Code, it
is the settled position that the said statement is not substantive
evidence. Such a statement can be used only for corroboration of
the testimony of that witness as provided in Section 157 of the
Evidence Act or for contradicting the evidence in the manner
provided in Section 145 of the Evidence Act (See State of Delhi v.
Shri Ram Lohia (AIR 1960 SC 490), Ram Kishan v. Harmit Kaur
(AIR 1972 SC 68) and Sawal Das v. State of Bihar (AIR 1974 SC
778)).
17. In Tahsildar Singh v. State of U.P (AIR 1959 SC 1012)
the legal position as regards the statement under Section 162 of the
Code was summed up thus:
“…(1) A statement in writing made by a
witness before a police officer in the
course of investigation can be used only
to contradict his statement in the witness
box and for no other purpose; (2)
statements not reduced to writing by the
police officer cannot be used for
contradiction; (3) though a particular
statement is not expressly recorded, a
statement that can be deemed to be part of
that expressly recorded can be used for
contradiction, not because it is an
omission strictly so-called but because it
is deemed to form part of the recorded
statement; (4) such a fiction is
permissible by construction only in theCrl.A.294/09 : 10 :
following three cases: (i) when a recital is
necessarily implied from the recital or
recitals found in the statement;
illustration: in the recorded statement
before the police the witness states that he
saw A stabbing B at a particular point of
time, but in the witness box he says that
he saw A and C stabbing B at the same
point of time; in the statement before the
police the word “only” can be implied
i.e.., the witness saw A only stabbing B;
(ii) a negative aspect of a positive recital
in a statement; illustration: in the
recorded statement before the police the
witness says that a dark man stabbed B,
but in the witness box he says that a fair
man stabbed B; the earlier statement must
be deemed to contain the recital not only
that the culprit was a dark complexioned
man but also that he was not of fair
complexion; and (iii) when the statement
before the police and that before the
Court cannot stand together; illustration:
the witness says in the recorded statement
before the police that A after stabbing B
ran away by a northern lane, but in the
Court he says that immediately after
stabbing he ran away towards the
southern lane; as he could not have run
away immediately after the stabbing i.e.
at the same point of time, towards the
northern lane as well as towards the
southern lane, if one statement is true, the
other must necessarily be false.
Crl.A.294/09 : 11 :
(27) The aforesaid examples are not
intended to be exhaustive but only
illustrative. The same instance may fall
under one or more heads. It is for the trial
Judge to decide in each case, after
comparing the part or parts of the
statement recorded by the police with that
made in the witness box to give a ruling,
having regard to the aforesaid principles,
whether the recital intended to be used for
contradiction satisfies the requirements of
law.”
In Baldev Singh v. State of Punjab ((1990) 4 SCC 692 it has been
reiterated that the statement recorded under Section 161 of the
Code shall not be used for any purpose except to contradict a
witness in the manner prescribed in the proviso to Section 162(1).
18. We have briefly referred to the settled positions of law in
a catena of judicial precedents only to record our surprise and
anguish as to how a Sessions Judge could have lost sight of the
above rudimentary principles of procedural law.
19. We have carefully perused the entire evidence on record.
We do not propose to deal with the other weak links in the
prosecution case at this stage, since in our view the very premise
under which the learned Sessions Judge had found the appellant
guilty under Section 302 IPC relying on Section 161 statement of
Pws.1, 2 and 6 and also on the statement given by Pw.1 under
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Section 164 of the Code, cannot be held to be legally sustainable.
20. Having carefully perused the entire materials available
on record, we are satisfied that the court below has committed
serious illegality and irregularity in entering a finding that the
appellant is guilty of the offence punishable under Section 302
I.P.C. We have no hesitation to set aside the above finding.
We do so. The appellant is found not guilty of the offence
punishable under Section 302 I.P.C and he is acquitted.
21. The appellant shall be released from custody
forthwith, if his detention is not necessary in connection with any
other case.
The appeal is allowed.
(A.K.BASHEER, JUDGE)
(C.T. RAVIKUMAR, JUDGE).
cl/an.