IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HON'BLE MR. JUSTICE C.T.RAVIKUMAR FRIDAY, THE 13TH FEBRUARY 2009 / 24TH MAGHA 1930 CRL.A.No. 294 of 2009 -------------------------- SC.82/2008 of ADDL.SESSIONS COURT (FAST TRACK )III, MANJERI CP.8/2007 of JUDL.MAGISTRATE OF FIRST CLASS COURT-II, PERINTHALMANNA .................... APPELLANT/ACCUSED: ------------------------ NARAYANAN, S/O.NARAYANAN @ NANU NAIR NHETTALUMPARAMBIL HOUSE, PANATHALLUR AMBALAVATTOM, MALAPPURAM. BY ADV. SRI.BABU S. NAIR SMT.M.T.SHEEBA SRI.P.A.RAJESH SRI.K.RAKESH RESPONDENT/STATE: ----------------------- STATE OF KERALA REP. BY THE SUB INSECTOR OF POLICE, PANDIKKAD POLICE SRTATION THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERRALA, ERNAKULAM, KOCHI-31. THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 13/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: A.K.BASHEER & C.T. RAVIKUMAR, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Crl.A.No.294 OF 2009 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - 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 Crl.A.294/09 : 6 : 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 Crl.A.294/09 : 7 : 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. Crl.A.294/09 : 8 : 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 Crl.A.294/09 : 9 : 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 the Crl.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 Crl.A.294/09 : 12 : 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.