Bhola and Others vs State

R.K. Shukla, J.—Appellants Bhola, Kailash, Deepchand, Rampalat and Ambika have filed this appeal against the judgment and order dated 12-7-1978, passed by the 5th Additional Sessions Judge, Azamgarh, whereby he has convicted all the accused-Appellants u/s 148 IPC and sentenced each of them to one year R. I. Kailash Appellant is convicted u/s 307, IPC, and sentenced to five years R. I and a fine of Rs. 500/-. In case of default of payment of fine he shall further suffer three months R. I. Rampalat Appellant is convicted u/s 307 IPC and sentenced to undergo four years'' R. I. Bhola, Deepchand and Ambika Appellants are convicted u/s 307 IPC and sentenced to three years R. I. each. Both the sentences have been directed to run concurrently.

Brief facts of the prosecution case are that about a month prior to the occurrence in question Kailash Appellant was digging Nali for his tube-well through the field of Chandrika Singh, complainant. Chandrika Singh stopped Kailash Appellant from digging Nali through his field without paying any compensation or concession in irrigation charges from him Kailash did not agree to pay any compensation or to make any concession. This caused ill-will between the parties.

Thereafter in the night between 17/18th June, 1973 at about 1.30 A.M. the complainant Chandrika Singh was sleeping infront of his house in village Gangapur, police station Kotwali Azamgarh. His mother, Smt. Rachala and sister Sharda were also sleeping on one cot nearby and his brother''s son, Virendra (PW 2) aged about 5-7 years and sister''s son Munim were sleeping on another cot. The mother of the complainant had boil trouble in her leg and, therefore, she was unable to sleep. His sister, Sharda was with her to look after her. A burning lantern was hung by the trunk of the Neem tree nearby. All the aforesaid Appellants came there. Bhola, Deepchand and Ambika Appellants were armed with GANDASI while Kailash and Rampalat Appellants had country made pistols in their hands. It is said that when the complainant received Gandasi blow, he woke up, saw and recognised all the five Appellants. All the Appellants caused injuries with their respective weapons. On the alarm being raised by him, his mother and his sister, villagers came there but in the mean time all the Appellants escaped.

Thereafter injured complainant was brought to District Hospital, Azamgarh where his injuries were examined at 2 A. M. by Dr. R.N. Tiwari, who found seven incised wounds, two linear abrasions and two multiple gun shot injuries on his body, and noted down these injuries in the injury report, Ex. Ka-3. After this Smt. Rachala went to the police station Kotwali and lodged an oral FIR at 3.15 A. M. A case was registered under Sections 148/307 IPC and investigation was entrusted to Sri Bhupendra Nath, S. I. (PW 4). After completing the investigation he submitted the charge sheet in court.

All the Appellants pleaded not guilty and denied their participation in this crime. They have produced Bahal (DW 1) in support of their defence.

Prosecution has examined four witnesses in support of its case, out of which Chandrika Singh (PW 1) is the injured. Virendra (PW 2) is his brother''s son, who is a child witness. The statement of Dr. R.N. Tiwari has been brought on the record as Ex. Ka-4. Abdul Rab (PW 3) is the Head Constable, who prepared the chik report. Bhupendra Nath, S. I. (PW 4) is the I. O.

After discussing the evidence on the record in detail the learned Sessions Judge has doubted the presence of Virendra (PW 2) and has convicted all the Appellants as aforesaid on the sole testimony of Chandrika Singh (PW 1).

The aforesaid prosecution story has been supported by the evidence of two eye witnesses, namely, Chandrika Singh (PW 1) and Virendra (PW 2). Virendra is a child witness. The presence of Virendra (PW 2), who was then 5-6 years of age, has been doubted by the learned Sessions Judge. It cannot be said that his conclusion is entirely baseless.

So far as the evidence of Chandrika Singh (PW 1) is concerned, the learned Counsel for the Appellants has vehemently argued that his statement was not recorded by the I. O. u/s 161 Code of Criminal Procedure and, therefore, it has caused a great prejudice to them and it should be excluded from consideration.

Chandrika Singh (PW 1) has stated as under;--

Daroga ji aspatal me mere pas aye the unhone mera bayan nahin liya kyon ki mere muh me tanke ilagethe. Phir we mera bayan lene nahin aye. Ghatna ki bat adalat me pahli bar diya. As se pahle mera bayan kahin nahin hua. Daroga ji ne mera bayan kaise likh liya hai wah mai nahin janta. Chunki mere muh me tanke laga diye daye the isse mai bol nahin sakta tha. Isi se mera bayan aspatal me kisi ne nahin liya. Tanke karib ek mahine bad kate gaye.

The learned Sessions Judge has also held that the statement of this witness recorded on 18-6-1976 u/s 161 Code of Criminal Procedure running into over one page of the case diary is fictitious and was fabricated on the basis of the information given in the FIR. It is clear from the statement of Chandrika Singh, quoted above, that he was unable to speak due to stitches on his mouth. No attempt has been made on behalf of the prosecution to clarify this position. Even the I. O. has not explained it. Although he has stated that he recorded the statement, but he has no texplained how he did that. Under these circumstances I agree with the findings of the learned Sessions Judge on this point that the statement recorded by the I. O. u/s 161 Code of Criminal Procedure was fictitious.

Now the important question for consideration is what will be the effect of non-examination of the complainant u/s 161 Code of Criminal Procedure. Section 161(3) reads as under:

The police officer may reduce into writing any statement made to him in the course of 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 164(1) Code of Criminal Procedure also provides as under:

Any Metropolitan Magistrate or Judicial Magistrate may, whether or not he has jurisdiction in the case, record any confession or statement made to him in the course of an investigation under this Chapter or under any other law for the time being in force, or at any time afterwards before the commencement of the inquiry or trial;

The word ''may'' as used in Section 164 Code of Criminal Procedure came up for interpretation before the Privy Council in the case of AIR 1936 253 (Privy Council) , and their Lordships were pleased to interpret it as under;

It can hardly be doubted that a Magistrate would not be obliged to record any confession made to him if, for example, it were that of a self-accusing mad man or for any other reasons the magistrate thought it to be incredible or useless for the purposes of justice. Whether a Magistrate records any confession is a matter of duty and discretion and not of obligation.

In the case of Purshottam Jethanand Vs. The State of Kutch, it has been held as under:

There can be no doubt that the right which the accused had got of obtaining the copies of the statement made by witnesses during investigation is a very valuable right and that the wholesale refusal to grant the same will be. a serious irregularity which would vitiate the entire trial as held by the Privy Council in Kottaya v. Emperor AIR 1917 PC 67.

The interest of the Appellants stands prejudiced in the same manner and to the same extent as where the statement had been recorded but its copy has not been supplied to him for the purposes of cross-examining the witnesses. In both the cases the accused is deprived of the opportunity to confront the witnesses from their previous statements. In the case of Tilkeshwar Singh and Others Vs. The State of Bihar, it has been held that while the failure to comply with the requirements of Section 161(3) Code of Criminal Procedure might affect the weight to be attached to the evidence of the witnesses, it does not render it inadmissible.

Relying on these authorities it has been held in the case of Gopal Krishna Vs. State, as under;

On the basis of these authorities, it is obvious that though the police are not bound to make a record of the statement of the witnesses u/s 461 as a matter of obligation, it is their duty to do so when the witness is a material witness for unfolding the prosecution story. It is also clear that a failure on their part to comply with the requirements of Section 461(3), though does not render the subsequent statement of the witness at the trial inadmissible, it does greatly impair the value of the evidence of that witness. I am, therefore, of opinion that the statement of the Complaints Officer Bal Singh at the trial though admissible in evidence has lost much of its weight on account of the fact that his statement was not recorded u/s 461. Code of Criminal Procedure.

In the instant case there are two eye witnesses. Virendra (PW 2) is a child witness, and Chandrika Singh (PW 1) is the injured. There are material contradictions in the statement of these two witnesses. Virendra (PW 2) has stated that when he woke up all the assailants had run away. Under these circumstances his evidence is of no use.

Now we are left with the evidence of Chandrika Singh (PW 1) alone. His statement has not been recorded u/s 161 Code of Criminal Procedure faithfully. A fictitious statement has been prepared on the basis of the FIR. Under these circumstances, his statement lost much of its weight. Not only this, it deprives the Appellants of a valuable opportunity to get the earliest statement of the witness when his memory was fresh. If there was any difference between the statement recorded u/s 161 Code of Criminal Procedure and stated otherwise in the court, then the Appellants could use that for contradiction. This opportunity has been denied to the Appellants. Although the I. O. has stated that he recorded the statement of Chandrika Singh (PW 1) but his statement does not deserve credence.

Learned Counsel for the Appellants has placed reliance in this connection on a decision of a Division Bench of this Court in case of Shankar Lal and Others Vs. The State, . In that case the copies of the statements of witnesses recorded by the Magistrate u/s 161 Code of Criminal Procedure were not delivered to the accused and they were thus deprived of the opportunity of cross-examining the prosecution witnesses with reference to their previous statements. In the instant case there was practically only one witness, whose statement was to be recorded by the I O. When the condition of that witness, just after the occurrence, was not such that he could speak due to stitches on his mouth, it was not expected from the I. O. to do impossible; but on the other hand it was also not expected from him to fabricate his statement. The evidence of this witness should have been recorded when he was in a position to speak. This has not been done and undesirable method has been adopted by the I. O., which creates grave doubt about the impartiality of the investigating agency.

In view of the above discussions, the evidence of Chandrika Singh though an injured witness, lost its weight. His statement has not been recorded u/s 161 Code of Criminal Procedure. By denying the copy of his previous statement to Appellants, their precious right, to cross-examine Chandrika Singh (PW 1) with reference to his previous statement, has been taken away from them and they are to a great extent handicapped in their defence. Therefore, it is not safe to convict the Appellants on the testimony of Chandrika Singh (PW 1). The only other witness Virendra (PW 2) is a child, who has already been discarded by the learned Sessions Judge. He has admitted that when he woke up all the assailants had run away. Thus he is useless There is no other evidence from which it can be held that the prosecution has proved its case beyond reasonable doubt. Under these circumstances, convictions and sentences passed against all the Appellants by the learned Sessions Judge are not justified and they are liable to be set aside.

In the result the appeal is allowed. Conviction and sentences awarded by the learned Sessions Judge against all the five Appellants are set aside. They are acquitted of the charges levelled against them. They are on bail. They need not surrender. Their bail bonds are discharged.