Janardhanan vs State of Kerala

George Vadakkel, J.—The Appellant has been convicted of the offence of murder of his wife, Devaki and sentenced to imprisonment for life. The case against him is that she was suffering from some mental derangement for the past 3 or 4 years prior to the incident, on account of that she used to disobey the Appellant resulting in frequent quarrels between them, on 9th September 1977 she refused to go and draw water from a well in the near by compound of P.W. 1, the Appellant made her go and fetch water therefrom by threatening her with a stick and subsequently at about 4 p.m. that day cut her throat with M.O. 3 kitchen-knife causing her instantaneous death. The scene of occurrence is alleged to be the eastern court-yard of their house in Ezhalloor Kara within the jurisdiction of the Thodupuzha Police Station. P.W.1, the brother of the Appellant gave Ext. P-1 first information statement at 8 p.m. the same day before the Thodupuzha Police Station situate 12 km. north-east of the scene of occurrence. Ext. P-2 is the inquest report. The Appellant was arrested on 11th September 1977. When questioned u/s 313 Code of Criminal Procedure he denied that he had anything to do with the death of Devaki.

The evidence of P.W. 7 who conducted the autopsy on Devaki''s dead body and Ext. P-3 post-mortem certificate issued by P.W.7 establish that Devaki met with violent death at the hands of an assailant. There were four injuries on her body and none of them was self-inflicted. Two of the injuries, Nos. 1 and 4 in Ext. P-3, were fatal, each by itself and according to P.W.7, Devaki would not have survived more than 5 minutes after she sustained those injuries. The said injuries are:

(1) A horizontal incised wound 16 cm. x 2 cm. x 8 cm. directed medially and forwards over the upper part of right side of neck tailing off forwards to a point 2 cm. below the root of right ear. On exploration, it is seen, that the underlying Caseia muscles, the carotid artery, jugular veins etc. are cut horizontally and the injury is going deep into the atlante occipital joint by cutting the atlante occipital ligaments on the right side.

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(4) A horizontal gaping wound 28 cm. x 7 cm. x 16 cm. over the right side of root of neck starting from the middle of the posterior aspect of left shoulder web and tailing off to a point just above the medial end of left collar bone. The injury is directed medially and forwards cutting horizontally the underlying fasciae, muscles, carotid artery, the jugular veins, the intervening nerves, the trachea, oesephagus, the intervertebral disc between the fifth and six cervical vertebras and the spinal cord. The neck remains attached to the trunk only through a thin part of skin and soft tissues on the left side and this connecting soft tissues is only 11cm. in length and 2.5 cm. in thickness.

There can be no doubt that the assailant''s intention was to kill Devaki.

P.Ws. 1 to 5 -- brother of the Appellant, that brother''s wife, Appellant''s son aged 12, a person residing a furlong and a half away from the Appellant''s house, and Devaki''s brother respectively -- Examined to prove the prosecution case do not support the case against the Appellant. Though the lower court permitted the prosecution to put such questions to them as might be put in cross-examination by the adverse party and the Public Prosecutor did put such questions to them, nothing in support of the prosecution has been elicited from their evidence. The Prosecution therefore relied upon certain circumstances brought out in evidence to bring home the guilt of the Appellant, and according to the lower court the prosecution has thereby succeeded in establishing that the Appellant is the assailant.

Appellant''s conviction is based, as stated above, solely on circumstantial evidence. The circumstances relied on by the lower court as enumerated in paragraph 20 of its judgment are:

The evidence discussed above proves beyond reasonable doubt the following facts and circumstances:

(1) The accused married deceased Devaki and after their marriage till the date and time of the incident in question, they were living together with their children, under the same roof in the house bearing No. 274 in ward 2 of Kumaramangalam Panchayat, Ezhalloor Kara;

(2) The deceased Devaki, at the time of her third delivery contracted a mental illness, which P.W. 5, her brother, called peripheral mania;

(3) On 9th September 1977 as usual, the two children went to School and returned only at about 5 p.m.;

(4) Deceased Devaki was found with bleeding injuries on her neck described in Ext. P-3 in the courtyard of the residential house of the accused and Devaki died immediately on the spot, as a result of these injuries;

(5) The evidence of P.W. 7 shows, that none of these injuries could be self-inflicted;

(6) The said injuries, which resulted in the instant death of Devaki, were inflicted by a person other than deceased Devaki;

(7) It is an intentional act of brutal murder of Devaki, by which the accused was deprived of a wife and the two children''s mother;

(8) Even under such circumstances, the accused has no complaint against the said murder of Devaki.

(9) The accused neither informed the matter to the Police nor initiated appropriate action, nor had he complained before any other authorities.

(10) The accused absconded after the incident till on the 11th, when he surrendered before the police;

(11) A kaily, M.O. 10, containing human blood was recovered from inside the room of the house, where the accused and deceased were residing and no other dress of the accused was found there;

(12) The bloodstained weapon, M.O. 3, was recovered from the scene of incident and Ext. P-4 shows, that it contains human blood; and

(13) The accused has no explanation to say against all these circumstances.

Circumstance serialised as Nos. 1 to 7 are not in dispute but anyone of them separately or all of them cumulatively will not lead to an inevitable inference that it was the Appellant who killed Devaki. Circumstances mentioned as 8 and 9 go together, and the fact relied on is that the Appellant failed to inform the police of the violent death of Devaki. He was not asked about it when he was questioned u/s 313 of the Code of Criminal Procedure. The next fact relied on by the lower court is that the Appellant absconded till 11th September 1977 when he surrendered. There is no evidence that the Appellant absconded nor was any question put to him u/s 313 of the Code of Criminal Procedure when he was questioned thereunder. Besides absconding by itself is not sufficient to fasten the guilt on the accused. See Kunharu v. State of Kerala 1963 KLT 325 Two other circumstances relied on by the lower court are the recovery of M.O. 10 kaily (cloth) stained with human blood from inside the Appellant''s house and of M.O. 3 bloodstained kitchen-knife from his courtyard. These M.Os. were found not even pursuant to any information received from the Appellant. Here again it is necessary to state that the Appellant was not questioned about these matters. He was asked only as to what he has to say about P.W.12 (the Crime Branch Detective Inspector) deposing that he recovered M.Os. 3 and 10 as per the inquest report. It is hardly necessary to state that failure to question the accused ''specifically, distinctly and separately'' as regards each material circumstance appearing in evidence against him is a serious irregularity vitiating the trial if the same has prejudiced the accused. See S. Harnam Singh Vs. The State (Delhi Admn.), .

The circumstances relied on by the lower court, individually and cumulatively are compatible also with the guilt of any person other than the Appellant. The circumstances are not such as not to leave any reasonable ground for a conclusion consistent with the innocence of the Appellant. On these facts and circumstances it is not possible to arrive at a conclusion that the prosecution has established that Devaki could have been murdered only by the Appellant and that none else could be responsible for it-it could only be said that it might be he who committed the crime for it could as well be said that it might have been committed by some one other than the Appellant. The prosecution has failed to prove that the Appellant is guilty of the murder of his wife, Devaki.

The lower court is of the opinion that P.Ws. 1, 2, 4 and 5 have committed the offence of perjury. That court has therefore issued notices to these witnesses as contemplated by Section 344 of the Code of Criminal Procedure, 1973. While being examined the lower court ''declared'' each of them ''hostile'' and allowed the Public Prosecutor to cross-examine'' them. According to the lower court their sworn statements in court so far as they arc contrary to what they said when examined u/s 161 of the Code are false.

The Evidence Act, 1872, nowhere provides for ''declaring a witness hostiles'' nor allows a person to ''cross-examine'' his own witness. Chapter X of the Act contains the provisions concerning the examination of witnesses. Section 137 defines the expressions: ''examination-in-chief, ''cross-examination'' and ''re-examination''. Whatever be the form and nature of the questions put to the witness, examination of a witness by the person who calls him is ''examination in-chief'' if it is before the examination of that witness by the adversary, and ''re-examination'' if the same is after the adversary examines him. ''Cross-examination'' means examination of the witness by the adverse party. To say that one may cross-examine his own witness is, in the face of the definition of the words ''cross-examination'' as aforesaid, a contradiction in terms, as stated by Rankin, C.J. in Profulla Kumar Sarkar and Others Vs. Emperor, Section 142 of the Act bars leading questions or questions suggestive of answers in examination-in-chief and re-examination. u/s 154, however, the court may allow a person to put to his own witness such questions as might be put in cross-examination by the adverse party. But, note that grant of such permission does not mean that the witness is a ''hostile'' or ''unfavourable'' or ''adverse witness'' and therefore, a liar. In Sat Paul Vs. Delhi Administration, the Supreme Court has highlighted this aspect when it said:

The grant of such permission does not amount to an adjudication by the court as to the veracity of the witness. Therefore, in the order granting such permission, it is preferable to avoid the use of such expressions, such as ''declared hostiles'', ''declared unfavourable'', the significance of which is still not free from the historical cotwebs which, in their wake bring a misleading legacy of confusion, and conflict that had so long vexed the English Courts.

u/s 146 of the Evidence Act, 1872 when a witness is cross-examined questions which tend to test his veracity, to discover who he is and what is his position in life, and to shake his credit may be asked. With permission granted u/s 154, such questions can be put in examination-in-chief also. Again, u/s 155 of the Act, with the consent of the court one may impeach the credit of his own witness in the manner provided therein one of which is by the proof of former statements in consistent with any part of his evidence which is liable to be contradicted. Section 145 of the Act says that if a previous statement in writing or reduced to writing is intended to contradict a witness, before the writing is proved, his attention is to be called to the portions intended to be used for that purpose. However, it should be remembered that the only object of cross-examination of a witness or putting in examination-in-chief with the permission of the court questions of the kind allowed only in cross-examination, is not to discredit the witness but also to bring out evidence which would advance the case of the cross-examiner or the person calling the witness, as the case may be.

It is by now well settled that merely because a witness has been dealt with u/s 154 of the Evidence Act, 1872, his evidence does not become unreliable or unacceptable. The court will have to assess his evidence as any other witness''s evidence. Thereupon, the court may accept it in whole or in part. See Sat Paul Vs. Delhi Administration, and the cases mentioned in paragraph 47 thereof. Acceptance of his evidence or portion or portions thereof would mean that the court considers that the witness has deposed truthfully on those matters on which his evidence is relied on, but rejection of his evidence or portion or portions thereof would not indicate that he swore falsely concerning the matters on which his evidence is rejected as unreliable or undependable, and this is so even if it be that his credit has been successfully impeached and shaken and his veracity doubted.

Though u/s 157 of the Evidence Act, 1872 former statements of a witness made by him relating to the same fact, at or about the time when the fact took place, or before any authority legally competent to investigate the fact is admissible to corroborate his testimony, where such statement is one made by him when examined u/s 161 of the Code of Criminal Procedure, 1973, Section 162 of that Code prohibits the use of that statement for any purpose other than contradicting a prosecution witness; and the prosecution can contradict its own witness only with the permission of the court. In Profulla Kumar Sarkar and Others Vs. Emperor, at page 408 Rankin, C.J. said of such statements u/s 161 of the Code of Criminal Procedure as follows:

... the unsworn statement, so far as the maker in his evidence does not confirm and repeat it, cannot be used at all against the accused as proof of the truth of what it asserts. This means not merely that it is in itself insufficient proof, but that it cannot be so used at all. It cannot be coupled with probabilities which suggest that the witness was more likely to tell the truth on the former occasion than in the witness box so as to go to the jury as part of the proof that what was then stated is true.

The court can take note of only the fact that the witness had been contradicted by his former statement, and cannot assume what is contained in the statement recorded u/s 161 depict the true state of affairs. Because of the contradiction, the court may, as it deems fit, reject his evidence wholly or so much of it as has been contradicted as unreliable, but this will not be a ground to assume that the witness has spoken falsely in court.

The prohibition contained in Section 162 of the Code is absolute. The said provision says that the statement recorded u/s 161 shall not be used for any purpose at any inquiry or trial in respect of any offence under investigation at the time when such statement was made. Though the word ''trial'' is not defined in the Code there can be no doubt that it means so far as trial before a Court of Session is concerned the judicial proceedings before a Court of Session which ends in a judgment of acquittal or conviction of the prisoner as contemplated by Section 235 of the Code. ''Trial'' means the whole of proceedings including the sentence. See AIR 1933 218 (Privy Council) Necessarily therefore, trial continues till the judgment is delivered and the ultimate result of the judicial proceeding is pronounced. Section 344 of the Code can be invoked ''only at the time of delivery of judgment'' or in other words, before the judicial proceedings comes to an end. If that be so, Section 162 would stand in the way of the court using the statement recorded u/s 161 for the purpose of forming an opinion that a witness examined in the case in which the judgment is being delivered has committed the offence of giving false evidence.

Even otherwise caution requires that the court may not form such an opinion solely on the basis of the witness''s statement recorded u/s 161 of the Code of Criminal Procedure, 1973, for under the provisions of the Evidence Act, 1872, a former statement which does not amount to a statement sworn as evidence, unless it falls u/s 32, can be proved only for two purposes, firstly, u/s 155 read with Section 145 of that Act, to contradict and thus to discredit the witness, and secondly, u/s 157 of that Act, to corroborate his testimony and thus to reinforce his evidence. Hardly can it be expected that a witness hauled up for trial for the offence of giving false evidence would take the witness stand to be contradicted by his former statement; and even if he does, and he is contradicted in that manner, that will take the prosecution neither here nor there, since contradiction by itself, though sufficient to discredit the witness, is no proof of the truth of the facts stated in his former statement. Therefore, where there is no material other than a statement recorded u/s 161 of the Code of Criminal Procedure, 1973, it will be unwise to initiate proceedings u/s 344 of that Code in that the same would only be an exercise in futility. The opinion that the court expresses at the time of delivery of judgment or final order disposing off the judicial proceeding before it that a witness examined therein has knowingly or wilfully given false evidence should not be a fanciful or capricious opinion but a discreet one founded on materials sufficient to sustain the charge of perjury. It should be remembered that a court ought not get itself into such a plight as would make it a laughing stock which will be the result of an unsuccessful prosecution for perjury at its instance. We also wish to point out that power u/s 344 of the Code of Criminal Procedure, 1973, is something like a rod which should be sparingly used, as otherwise it is likely to defeat the very purpose of making false swearing an offence (that purpose being that no one shall thwart the endeavour of the court to find out the truth in the matter of dispensation of justice) by making people averse to get involved in achieving that object.

In view of what is stated above the direction given by the lower court by the judgment under appeal to issue notices to P.Ws.1, 2, 4 and 5 to show cause as to why they should not be punished for wilfully giving false evidence in this case has to be set aside and we do so.

The prosecution has not succeeded in proving that the Appellant is guilty of the offence of murder of Devaki, his wife. We, therefore, allow this appeal and set aside his conviction and sentence and acquit him of the said offence.