Alikutty and Another vs State of Kerala

K.S. Radhakrishnan, J.—Disputes on the sharing of booty among the pick pocketiers, according to the prosecution, led to the killing of Anwar, a fellow pick pocketier. The gruesome incident occurred inside a stage carriage bus bearing registration number KL-13/5290 which was plying from Kozhikode to Guruvayoor. Prosecution version is that the accused persons had caused physical assaults on the deceased by hitting his head on the iron rod fixed on the bus seat, also hitting with bent elbow on his head which resulted in the death of Anwar. The incident had taken place around 4 p.m. on 9-8-1995. On the bus reaching the Valancherry bus stand, cleaner of the bus P.W. 10 reported the incident to the police constable, Ramachandran, who prepared Ext. P-11 report. Based on the report P.W. 15, Inspector attached to Valancheri police station lodged Ext. P-12 F.I.R. Accused 1 and 2 who had allegedly inflicted serious injuries on Anwar were restrained by some local people and employees of the bus and were handedover to P.W. 15. Anwar was taken to nearby hospital. P.W.12 Medical Officer who attended the injured at about 7.45 p.m. on 9-8-1995 declared that the injured was brought dead. Ext. P-23 is the wound certificate issued by him. On receipt of the information about the death of the injured, P.W. 18 reached the hospital and prepared Ext. P-4 inquest report. Accused 3 and 4 were later apprehended. All the accused persons were charge sheeted for the offence of murder punishable u/s 302 read with Section 34 I.P.C.

On completion of the investigation, charge was laid before the Judicial First Class Magistrate, Tirur and the case was committed to the Sessions Court as per order in C.P. No. 37 of 2001 for trial and disposal.

On the accused persons pleading not guilty to the charges framed against them, prosecution was permitted to adduce evidence in support of its case. Prosecution examined P. Ws. 1 to 19 and marked Exts. P-1 to P-26. After the close of the prosecution evidence, accused persons were questioned u/s 313 of the Code of Criminal Procedure with regard to the incriminating circumstances but they maintained their innocence. Though the accused persons were called upon to enter on their defence and to adduce evidence in support of their case, no oral or documentary evidence was adduced on the side of the defence.

Learned Fast Track Court Judge after the trial as per Judgment dated 10-3-2005 found accused 1 and 2 guilty of the offence punishable u/s 302 read with Section 34 I.P.C. Fourth accused was found not guilty and acquitted u/s 235 of the Code of Criminal Procedure and the third accused had died. Accused 1 and 2 were sentenced to undergo imprisonment for life and to pay a fine of Rs. 10,000 each and in default of payment of fine and in the event of remission, commutation etc. to undergo imprisonment for two years.

We heard learned Senior Counsel Sri M.K. Damodaran for the Appellants and the learned Public Prosecutor Sri Sujith Mathew Jose.

P.W. 15 Sub Inspector of Police attached to Valancheri Police Station registered crime on the basis of Ext. P-11 report submitted by the Police Constable Ramachandran who was on duty at Valancheri bus stand. Ext. P-11 report was prepared on the basis of the information passed on to him by the cleaner of the bus who was examined as P.W. 10 who reported that one of the passengers of the bus was murdered by his fellow passengers inside the bus on the rear side by inflicting serious injuries. Accused 1 and 2 were detained by some of the passengers and were handedover to the police and were taken to Valancheri police station. Accused 1 and 2 were arrested on 10-8-1995. Dress allegedly worn by them at the time of the incident were seized by Ext. P-5 seizure, mahazar. P.W.5 is one of the attesting witnesses to Ext.P-5. Accused 1 and 2 are natives of Perinthalmanna and accused 3 and 4 are the natives of Ponnani. Accused Nos. 3 and 4 were later arrested. Deceased Anwar was taken to Valancheri hospital on 9-8-1995 itself. P.W.12 Medical Officer attended him and declared that Anwar was brought dead. Ext. P-23 is the wound certificate issued by him. On receipt of the information about the death of the injured P.W. 18 reached the hospital for conducting inquest and prepared Ext. P-4 inquest report which was proved through P.W. 14. The dead body was identified by the elder brother of the deceased at the time of inquest and it was taken to Medical College Hospital, Thrissur. Autopsy was conducted by P.W. 12 and the post-mortem certificate issued by him is marked as Ext. P-1. It is stated that there were 36 ante-mortem injuries and that no sharp edged weapon was involved in the accident. P.W. 12 deposed that death was caused due to injury No. 36 on the head of the deceased. Injury No. 36 is described as follows:

On dissection there was scalp contusion 7 � 5 cm. on the back of the right side of the head. The scalp was contused over an area of 6 � 5 cm. on the right side of haemorrhage 12 � 11 � 2.1 cm. with blood clots on the right parietal and occipital lobes. There was haemorrhage 1 � 0.3 � 0.8 cm. in the substance of brain stem.

P.W. 1 opined that injury No. 36 could be inflicted by a forcible hit directed with bent elbow joint, which was fatal in nature and would cause death in the normal course. After analysing the evidence adduced in this case the trial court came to the conclusion that the deceased died due to the physical injuries inflicted on him while he was travelling in the bus on 9-8-1995. We have already indicated that the trial judge has found fourth accused not guilty and no appeal was filed against his acquittal. Third accused is no more. Present appeal is filed by accused 1 and 2. Though there were several passengers in the bus other than the driver and the cleaner, prosecution has not examined any of them. Reliance was placed on the testimony of P. Ws. 10 and 11 by the trial court though they had turned hostile to the prosecution. Regarding the testimony of P.W.10, trial judge has stated is follows:

P.W. 10 and P.W. 11 turned hostile to the prosecution. But he has admitted that when the bus entered into Valancheri bus stand, four persons alighted. The presence of police officer on duty in the bus stand is also admitted by them. According to P.W. 15, the author of Ext. P-11 was on duty, from whom he happened to get first information about the incident. Under that circumstance his previous versions have been read over to them enabling them to reconcile. However they have'' denied their previous statement. Their contradictory versions have been marked as Ext. P-9 series and P-10 series respectively. There is absolutely no legal impediment in treating Ext. P-9 and P-10 series as a part of the evidence if all the legal guidelines provided in 1989 K.L.J. 1876 is applied and followed.

Later trial judge has opined that there is absolutely no legal impediment in treating Ext. P-9 and P-10 series (case diary contradictions) as a part of the evidence. Learned judge, in our view, has bypassed the basic principles of criminal law. The only purpose to which the case diary contradiction of a witness can be used is to discredit the witness. Such previous statement made to the police cannot constitute substantive evidence. Statements made by witnesses in the course of investigation cannot be used as substantive evidence. Section 162 of the Code of Criminal Procedure imposes a bar on the use of any statement made by any person to a Police Officer in the course of investigation at any enquiry or trial in respect of any offence under investigation at the time when such statement was made except for the purpose of contradicting the witness in the manner provided by Section 145 of the Evidence Act. Where any part of such statement is so used any part thereof may also be used in the re-examination of the witness for the limited purpose of explaining any matter referred to in his cross-examination. The only other exception to this embargo on the use of statements made in the course of an investigation relates to the statements falling within the provisions of Section 32(1) of the Evidence Act or permitted to be proved u/s 27 of the Evidence Act. Reference may also be made to the decisions of the apex court in Podda Narayanan v. State of A.P. 1975 Cri.L.J. 1062 and Gajendra Singh Vs. State of U.P., . The apex court in Ch. Razik Ram Vs. Ch. Jaswant Singh Chouhan and Others, , stated that even a statement of a witness recorded by the investigator during the inquest u/s 174 would be within the inhibition of Section 162. It is further stated that behind the above provision is a wholesome rule of public policy that witnesses at the trial should be free to tell the truth unhampered by anything they might have, been made to say to the police. The statement u/s 174 cannot be used as a substantive piece of evidence. At the most, it can be used only as a previous statement to corroborate or contradict the person making it, at the trial. In this connection we may also refer to the recent decision of the apex court in Ram Swaroop and Ors. v. State of Rajasthan AIR 2004 S.C. 2943. The apex court has frowned upon the approach made by the Rajasthan High Court in wrongly applying the principles mentioned hereinbefore. The apex court held that the High Court has attached undue importance to the statements made in the course of investigation and recorded u/s 161 of the Code of Criminal Procedure. The court pointed out that it is well-settled that a statement recorded u/s 161 of the Code of Criminal Procedure cannot be treated as evidence in the criminal trial but may be used for the limited purpose of impeaching the credibility of a witness. Referring to paragraph 6 of the High Court Judgment, the apex court held that the High Court ought to have considered the deposition of P.W.7 rather than his statement recorded u/s 161 of the Code of Criminal Procedure. The court held that the inconsistency between the two versions is obvious from the fact that the prosecution had to declare the witness hostile and the approach of the High Court was therefore clearly erroneous.

We are of the view, the learned Judge of the fast track court has committed the same error and ignored the basic principles of criminal law in holding that Exts. P-9 and P-10 series of C.D. contradictions can be treated as part of evidence. In the above-mentioned extracted portion of the Judgment learned Fast Track Court Judge she has referred to 1989 K.L.J. 1876. This citation has been wrongly stated by the Fast Track Court Judge. The learned Judge was obviously referring to the decision in Md. Badaruddin Ahmed Vs. State of Assam, . Learned Judge has also not referred to the names of parties to the Judgment in the event of which learned Judge possibly could have avoided the mistake of quoting the wrong citation. The apex court in Municipal Council Palai Vs. T.J. Joseph and Others, . In paragraph 6 of the Judgment the apex court has stated as follows:

We have not been able to trace the third case upon which the learned Judges have relied because the reference which they have given of that case in the Judgment is incomplete. They have merely stated ''103 LJKB'' without stating the page of the report or the names of the parties. Unfortunately all the citations of the High Court suffer from die latter defect.

We are of the view, learned Judge should have been more careful in referring to the citations. Learned Judge should not have omitted the names of parties to the Judgment while citing the decisions. Learned Judge had failed to give the names of the parties to the Judgment; so also committed a mistake in referring to the citation as 1989 K.L.J. 1876 instead of Md. Badaruddin Ahmed Vs. State of Assam, . The decision in Md. Badaruddin Ahmed Vs. State of Assam, , was rendered by the Gauhati High Court and not by the Kerala High Court. Even if that was in the mind of the Judge, the principle laid down in the said Judgment was wrongly applied. What is discernible from the above decision of the Gauhati High Court was that without attempting to place on record the previous statement made before the police and asking the witness about the omission, it is not open to the defence to argue that what was testified before court is an improvement. We are therefore of the considered view that the Fast Track Court Judge has ignored the basic principles of criminal trial.

P.W. 17 Driver examined by the prosecution also turned hostile. He deposed that he has no acquaintance with those persons and that he had not seen local people detaining the accused persons. P.W. 17 was the only other witness examined by the prosecution to prove that A-1 and A-2 were two of the four assailants who had hurriedly got down from the bus when it reached Valancherry and that they were handed over by the local people to the Police Constable C.W. 1 (since deceased) who was on duty at the nearby police aid post. In the Judgment of the court below dealing with P.W. 17 it is stated as follows:

One more interested witness examined as P.W. 17 who is turned hostile. But it will not fatal to the prosecution and I need not emphasis on die contrary versions and its legal impact. But in view of the dictum held in Md. Badaruddin Ahmed Vs. State of Assam, die contrary versions stand proved; through the investigating officer and it would work out against the accused.

Fast Track Court Judge has again committed the same fundamental mistake in holding that the contrary versions given by P.W. 17 in court would not be fatal to the prosecution since his earlier versions, according to the Judge, stood proved through the investigating officer and that it would work out against the accused. No such principle has been laid down by the Gauhati High Court in the above-mentioned decision. The approach of the fast track court Judge was clearly erroneous.

Learned Fast Track Court Judge has committed yet Anr. fundamental error in casting the burden of proof on the accused in a criminal prosecution. The learned Judge stated as follows:

Accused No. 2 is bound to give explanation as to why he was found in association with accused No. 1 and how he was found inside the relevant bus and under what circumstances he was caught red handed along with A-1.

There is no evidence at all to the effect that A-1 and A-2 were caught red handed. It is a fundamental principle of criminal jurisprudence that an accused is presumed to be innocent and the burden lies on the prosecution to prove the guilt of the accused beyond reasonable doubt. The learned Judge ignored these basic principles of criminal law and called for explanation from the accused. Reference may be made to the decision of the apex court in K.M. Nanavati Vs. State of Maharashtra, , Dahyabhai Chhaganbhai Thakker Vs. State of Gujarat, .

Prosecution has placed reliance on Ext. P-26 certificate of chemical analysis to prove the complicity of accused 1 and 2. Item 5 and 6 of Ext. P-26 are claimed to be double dhothi and towel, seized from the person of first accused. Item 5 and 6 of Ext. P-26 were stained with human blood belonging to A group. Ext. P-5 mahazar dated 10-8-1995 by which seven items of dress including the aforesaid double dhothi and towel were allegedly seized from accused 1 and 2 does not say which of the above items of dress belonged to A-1 and which belonged to A-2. Learned Public Prosecutor placed reliance on Ext. P-8 forwarding note to contend that item 5 dhothi and item 6 towel were seized from A-1, but no reliance could be placed on Ext. P-8 forwarding note since the forwarding note in turn refers to Ext. P-5 seizure mahazar which, we have already indicated, suffers from confusion regarding ownership of the dress. We are of the view that item 5 or item 6 cannot be co-related either to A-1 or to A-2. If so, the fact that those two items were smeared with blood is of no consequence. Further it has also not been proved that the blood of the deceased was of A group. We may also indicate that the learned Judge has committed a grave error in the examination of accused persons u/s 313 of the Code of Criminal Procedure. Ext. P-26 certificate which was relied on by the trial judge to connect the accused with the bloodstained dress allegedly sworn by them was not at all put to the accused during their examination u/s 313. Therefore even if Bxt. P-26 certificate was an item of incriminating circumstance, it could not have been relied on by the court to enter a conviction against the accused. In this connection reference may be made to the decisions of the apex court in Sharad Birdhichand Sarda Vs. State of Maharashtra, and State of Punjab Vs. Sawaran Singh, . We may also point out Anr. illegality committed by the Fast Track Court Judge in marking the charge sheet [final report u/s 173(2) of the Code of Criminal Procedure] as Ext. P-24 in the case. Charge sheet is not an item of evidence which can be admitted in evidence and marked as an exhibit.

We have already indicated that the only evidence relied on by the prosecution to connect accused 1 and 2 with the crime is that of P.Ws. 10, 11 and 17 all of whom turned hostile to the prosecution. We have already narrated the grave illegality committed by the trial judge in the criminal trial. The prosecution, in our view, has not succeeded in establishing the guilt of A-1 and A-2 of the offences alleged against them. We therefore set aside the conviction and sentence entered against A-1 and A-2 and allow this appeal. Accused 1 and 2 are acquitted of the offence punishable u/s 302 I.P.C. and shall be set at liberty unless their continued detention is warranted in connection with any other case.