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Judgment
S.C. Agarwal, J.—Criminal appeal No. 1769 of 1981 was filed by Omkar and Asharfi whereas criminal appeal No. 1915 of 1981 was filed by Gulab. During pendency of the appeal, the Appellant Asharfi has died, as per the report of C.J.M. dated 29th August, 2006, hence, appeal in respect of Appellant Asharfi abates.
The Appellant Omkar was convicted u/s 307 IPC whereas the Appellants Gulab and Asharfi were convicted u/s 307 read with Section 34 IPC and each of them was sentenced to undergo R.I. of three years vide judgment and order dated 5.8.1981 passed by the 5th Addl. Sessions Judge, Bareilly in Sessions Trial No. 234 of 1980.
The incident took place at mid night in the intervening night of 19/20.9.1979 at the chaupal of complainant Jhamman Lal in village Bhikanpur, P.S. Fetehganj East, District-Bareilly. The FIR was lodged on 20.9.1979 at 7:55 a.m. whereas the distance of police station from the place of incident is about 4 miles.
The prosecution case, as unfolded in the FIR is that about 20 days before the incident, when the complainant Jhamman Lal was returning to his house from Shivpuri market, accused Asharfi, Gulab and two others namely Krishna and Lallu Dhimar threatened him with dire consequences on the ground that he was a police informer. It was alleged that on the fateful night, the complainant was sitting in his chaupal and was awake due to stomache. His sons Ram Swaroop (P.W.-6) and Ram Prasad (P.W.-2) and his cousin Kedar (P.W-4) were sleeping on two cots nearby. At about mid night, the Appellants Asharfi and Omkar armed with guns and Gulab armed with tamancha came there. On the exhortation of Asharfi, Omkar fired at the complainant with intention to kill but the complainant escaped unhurt and fire arm injures were sustained by his sons and cousin. There was a light of lantern. The complainant raised alarm, the neighbours Manohar and Bhola (P.W-3) came running and challenged the accused, who ran away towards south. Due to night time and fear of miscreants, the complainant went to police station in the morning and lodged FIR Ext.Ka-4 scribed by Ram Swaroop at the police station.
On the basis of FIR Ext. Ka-4, Head constable Ram Dayal Prasad Singh prepared chick report (Ext. Ka-5) and registered the case at crime No. 167 of 1979, u/s 307 IPC and made an entry in the G.D. (Ext. Ka-7).
The injured were sent to hospital and the Investigation was commenced by S.I. Bhagwan Singh (P.W.-8). He interrogated the complainant and recorded his statement u/s 161 Code of Criminal Procedure. (Ext. Ka-15). He also interrogated other witnesses, went to the spot, inspected the place of incident and prepared site plan (Ext.Ka-16). He took the lantern hanging at the gate of the varanda and gave it in supurdgi of the complainant vide memo (Ext. Ka-8). He also took the wooden takhat and three ploughs having pellet marks in possession and gave it in the supurdgi of the complainant. Two tiklies and 9 pellets were also seized from the spot and sealed vide recovery memo Ex.Ka-11. Blood stained baan of the cots were also seized through memos Ext. Ka-6 and Ext. Ka-12. Blood stained and plain earth samples were also taken. After investigation, charge-sheet Ext. Ka-19 and Ext. Ka-24 were submitted against the accused persons.
Charge u/s 307 IPC was framed against Omkar and charge u/s 307 read with Section 34 IPC was framed against Gulab and Asharfi by learned Addl. Sessions Judge. The accused pleaded ''not guilty'' and claimed to be tried.
The prosecution examined 9 witnesses in the case. Ram Prasad (P.W.-2), Kedar (P.W.-4) and Ram Swaroop (P.W.-6) are the injured witnesses whereas Bhole (P.W.-3) is said to be the independent witness. Dr. R.C. Ashthana (P.W.-1) had examined the three injured and has proved injury reports. Head constable Ram Dayal Prasad Singh (P.W.-5) prepared chick report and copy of G.D. Kanshi Ram (P.W.-7) is a formal witness of various memos prepared by Investigating Officer. S.I. Bhagwan Singh (P.W.-8) is the Investigating Officer and Dr. K.S. Tiwari (P.W.-9) is the Radiologist.
The Appellants, in their statements recorded u/s 313 Code of Criminal Procedure, have denied the prosecution allegations and claimed that they have been falsely implicated due to enmity. However, the Appellants did not adduce any defence evidence.
Relying on the prosecution version and the evidence adduced by the prosecution, learned Sessions Judge convicted and sentenced the Appellants as aforesaid.
Dr. R.C. Asthana (P.W.-1) examined Kedar (P.W-4) on 20.9.1979 at 2:30 p.m. and found the following injuries on his person as per the injury report Ext.Ka-1:
(1) Gun shot wound of entry 0.2 cm x 0.2 cm x scalp deep on the (Rt.) antero lateral aspect skull 5 cm above the (Rt.) eyebrow. Scab Forming.
(2) Abrasion 2.00 cm x 0.5 cm on the front of the (Rt.) side chest 5 cm above the (Rt.) nipple at 12 O''clock position.
No blacking, tattooing, charring seen. Pallet palpable on top of skull. Injury No. (1) kept U.O. Adv. X-ray for evidence of pellet.
(3) Gun shot of wound of entry 0.2 cm x 0.2 cm x muscle deep on the postero lateral aspect (Rt.) arm, 8 cm below the (Rt.) Acromion process.
Injury No. (3) also kept U.O. for evidence of pellet. No blackening, tattooing, charring seen.
All injuries are simple. Duration about half day. Caused by: Inj. No. (1) & (3) firearm. Inj. No. (2) by friction.
Ref. to D.H. Bareilly for X-ray skull & (Rt.) arm.
Dr. Asthana examined Ram Prasad (P.W.-2) on 20.9.1979 at 2:50 p.m. and found the following injury on his person as per injury report Ext. Ka-2:
(1) Four gun shot wounds of entry 0.2 cm x 0.2 cm x muscle on the front of the (Lt.) arm in an area of 5 cm x 2 cm.
No blackening, tattooing charring seen. No pellet palpable in the wound.
Injury kept U.O. Adv. X-ray for evidence of pellet.
Ref. to Distt. Hospital Bareilly for X-ray (Lt.) arm.
Injury is simple. Duration about half day. Caused by firearm.
Dr. Asthana examined Ram Swaroop (P.W.-6) on 20.9.1979 at 3:15 p.m. and found following injury on his person as per injury report Ext. Ka-3:
(1) Three gun shot wounds of entry .2 cm x .2 cm x muscle deep on the 4.5 cm x 1.0 cm area at lateral aspect (Rt.) shoulder.
No blackening, tattooing, charring seen.
No wound of exit present. No pellet palpable in the wound.
Adv. X-ray (Rt.) shoulder for evidence of pellet. Injury is simple.
Duration about half day.
Caused by fire arm.
Ref. to D.H. Bly. for X-ray (Rt.) shoulder.
Dr. K.S. Tewari (P.W.-9), on X-ray, found four small radio opaque shadows of metallic density in left arm of Ram Prasad, one pellet shadow in x-ray head of Kedar and three shadows probably of pellets in left upper arm of Ram Swaroop.
Heard Sri Sikander B. Kochar, learned Counsel for the Appellant Omkar, Sri Deependra Singh, learned Counsel for the Appellant Gulab and learned AGA for the State and have gone through the impugned judgment and trial court''s record.
Learned Counsel for the Appellants submitted that the incident took place at mid night when all the witnesses and the injured were fast asleep. A single shot was fired and there was no occasion for the witnesses to have seen the incident or recognize the assailants. The contention is that it is a case of hit and run. A single shot was fired and the assailants might have immediately run away. The complainant has died a natural death and could not be examined at the trial. Learned trial court committed illegality in relying on the statement of complainant Jhamman Lal recorded u/s 161 Code of Criminal Procedure as relevant u/s 33 of the Indian Evidence Act. The contention is that the statements of witnesses recorded u/s 161 Code of Criminal Procedure are not evidence and provisions of Section 33 of the Indian Evidence Act do not apply to the same. Reliance has been placed on the statements of P.W.-2 and P.W.-4 to show that they were fast sleep at the time of incident and the name of the person, who fired at them, was disclosed to them by the complainant Jhamman Lal.
Per contra, learned AGA supported the impugned judgment and submitted that the three injured witnesses Ram Prasad (P.W.-2), Kedar (P.W.-4) and Ram Swaroop (P.W-6) have supported the prosecution case and their statements find corroboration from independent witness Bhole (P.W.-3), who immediately after hearing the firing of the shot, reached the place of occurrence and challenged the Appellants.
From injury reports Ext. Ka-1, Ext.Ka-2 and Ext. Ka-3 and the statement of Dr. R.C. Asthana (P.W-1), it is established that P.W.-2, P.W.-2 and P.W.-6 received fire arm injuries in the incident. Though these injuries were caused by fire arm but were simple in nature and the shot was fired from a distance as neither any blackening, tattooing or charring was found around the injuries. The injuries were also superficial and did not cause any internal damage. This clearly shows that injuries were caused from a distance.
The prosecution case is that only one shot was fired by Omkar. Two of the injured were sleeping on one cot and the third injured was sleeping on a second cot. All three persons received pellets injuries. Dispersal of the pellets shows that the shot was fired from sufficient distance.
Ram Prasad (P.W.-2) is the 12 years old son of the complainant. In his examination-in-chief, he stated that Asharfi fired from his gun, which hit him and he woke up. His statement was continued for the next day when he stated that his father told him that the shot was fired by Omkar. Thus there is a very material contradiction in the statement of P.W.-2. The prosecution case has all along been that shot was fired by Omkar whereas P.w.-2 stated that shot was fired by Asharfi. In cross-examination, he admitted that when the accused persons came, he was sleeping. He further admitted that the varanda where his father was sitting, is closed from North, South and West. Before firing of the shot, his father had raised alarm but they continued to sleep. When the accused were running, Bhole and other witnesses came there and then he woke up. He did not seen the accused running.
From the statement of P.W.-2 Ram Prasad, it is evident that he was sleeping throughout the incident and he woke up after the assailants had run away. Naturally, he must have awaken as soon as he was injured but he did not see the accused persons on the spot, which clearly shows that the incident took place in a very short span of time and the assailants ran away as soon as the shot was fired.
Another witness Kedar (P.W.-4) tried to improve the prosecution version and stated that shots were fired by Asharfi and Omkar. This statement is entirely in conflict with the prosecution case that one shot was fired by Omkar. Kedar (P.W.-4) admitted in his examination-in-chief itself that after receiving injury, he woke up and his brother Jhamman Lal was shouting that fire was shot by accused persons. In cross-examination, he admitted that he does not know how many shots were fired. He does not know from which side the accused persons came and where they stood and from where fire was made. He only saw the accused running away. The statement of this witness also does not help the prosecution. P.W.-4 claims to have seen the accused persons running away. Naturally, he must have seen their back only and could not have recognized the assailants. He woke up as soon as shot was fired and he received injuries and immediately thereafter he saw the accused running. Therefore, there was no occasion for this witness to recognize the assailants.
The third injured witness is Ram Swaroop (P.W.-6), who was also sleeping at the time of incident. He also woke up after fire was shot and after receiving injuries. He further states that his father was shouting that fire was made by Omkar. After waking up, he saw the accused persons. In the light of statements of P.W-2 and P.W.-4, it is impossible that he could have seen the assailants. If the injured witnesses had seen the accused persons, there was no reason for the complainant Jhamman Lal to shout that the fire was made by Omkar. It is clear from the statement of P.W.-4 that the assailants were seen running away immediately after the fire. In these circumstances, it is not possible for P.W.-6 to have seen the accused on the spot. P.W.-6 is also the scribe of the FIR. He states in cross-examination that written report was scribed by him at 4 a.m. whereas the incident took place at 12 mid night. If the incident took place at 12 mid night, there was no reason why the FIR was scribed after four hours especially when the names of the accused were known to the complainant and the witnesses. The delay in scribing the FIR clearly shows that upto 4 a.m. the witnesses and the injured were not able to decide as to which are the persons to be named in the FIR.
The only independent witness Bhole (P.W.-3) claims that he was sleeping out side his house. He heard sound of fire from the side of chaupal of the complainant. He immediately went there running and saw the accused persons armed with guns and country made pistol. He and Manohar scolded the accused, who ran away towards south. Jhamman Lal told him that Omkar had fired at the injured. In cross-examination, he admitted that his house is situated at a distance of 35-36 paces from the chaupal of the complainant. He further stated that accused persons ran away from the same road from which he reached the spot. It is very surprising. The house of this witness is situated in the North-East from the chaupal as it is evident from the site plan Ext. Ka-6 whereas the prosecution case is that after the incident, accused persons ran away towards South. This witness woke up after hearing the sound of fire, then he covered a distance of 35-36 paces to reach the chaupal and claims that the accused persons were standing there, which is quite unnatural. It is evident from the statements of P.W.-2 and P.W.-4 that the assailants ran away immediately after the fire was shot and even P.W.-4 could only see the assailants running away and the P.W.-2 even could not even see the accused when he woke up. In these circumstances, it cannot be believed that P.W.-6 saw the assailants on spot and further it can also not be believed that P.W.-3 Bhole, who came running from 36 paces still saw the accused standing on the spot. He is also a relative of the complainant. Thus, I find sufficient force in the submissions of learned Counsel for the Appellants that it was a case of hit and run and the witnesses did not have an opportunity to recognize the assailants as the shot was fired from a distance and injured and the witnesses were sleeping at the time of incident.
Learned trial court also relied upon the statement of complainant Jhamman Lal recorded u/s 161 Code of Criminal Procedure to be admissible and u/s 33 of the Indian Evidence Act. This approach is entirely erroneous.
Section 161 and 162 Code of Criminal Procedure provide as under:
Examination of witnesses by police.- (1) Any police officer making an investigation under this Chapter, or any police officer not below such rank as the State government may, by general or special order, prescribe in this behalf, acting on the requisition of such officer, may examine orally any person supposed to be acquainted with the facts and circumstances of the case.
(2) Such person shall be bound to answer truly all questions relating to such case put to him by such officer, other than questions the answers to which would have a tendency to expose him to a criminal charge or to a penalty or forfeiture.
(3) The police officer may reduce into writing any statement made to him in the course of an 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.
162 Statements to police not to be signed: Use of statements in evidence- (1) No statement made by any person to a police officer in the course of an investigation under this chapter, shall, if reduced to writing, be signed by the person making it; nor shall any such statement or any record thereof, whether in a police diary or otherwise, or any part of such statement or record, be used for any purpose, save as hereinafter provided, at any inquiry or trial in respect of any offence under investigation at the time when such statement was made.
Provided that when any witness is called for the prosecution in such inquiry or trial whose statement has been reduced into writing as aforesaid, any part of his statement, if duly proved, may be used by the accused, and with the permission of the court, by the prosecution, to contradict such witness in the manner provided by Section 145 of the Indian Evidence Act, 1872 (1 of 1872); and when any part of such statement is so used, any part thereof may also be used in the re-examination of such witness, but for the purpose only explaining any matter refereed to in his cross-examination.
(2) Nothing in this section shall be deemed to apply to any statement falling within the provisions of Clause (1) of Section 32 of the Indian Evidence Act, 1872 (1 of 1872), or to affect the provisions of Section 27 of the Act.
Explanation- An omission to state a fact or circumstance in the statement referred to in Sub-section (1) may amount to contradiction if the same appears to be significant and otherwise relevant having regard to the context in which such omission occurs and whether any omission amounts to a contradiction in the particular context shall be a question of fact.
It is evident from the aforesaid provisions that statements recorded by the police officer u/s 161 Code of Criminal Procedure are merely statements and are not even signed by the witnesses. Section 162 Code of Criminal Procedure is very specific that such statements can only be used by the accused and with the permission of the Court, by the prosecution to contradict such witnesses in the manner provided by Section 145 of the Indian Evidence Act, when such witnesses are called for the prosecution in an enquiry or trial. It is clear that when a witness is examined during an enquiry or trial, his previous statement recorded u/s 161 Code of Criminal Procedure can be used to contradict him in the manner provided by Section 145 of Indian Evidence Act. In cases where the statement recorded 161 Code of Criminal Procedure falls within the purview of Sub-section (1) of Section 32 of the Indian Evidence Act and amounts to dying declaration, the bar of Section 162 Code of Criminal Procedure would not apply.
Section 33 of the Indian Evidence Act provides :
Relevancy of certain evidence for proving, in subsequent proceeding, the truth of facts therein stated.- Evidence given by a witness in a judicial proceeding, or before any person authorised by law to take it, is relevant for the purpose of proving, in a subsequent judicial proceeding, or in a later state of the same judicial proceeding, the truth of the facts which is states, when the witness is dead or cannot be found, or is incapable of giving evidence, or is kept out of the way by the adverse party, or if his presence cannot be obtained without an amount of delay or expense which, under the circumstances of the case, the Court considers unreasonable:
Provided-
that the proceeding was between the same parties or their representatives in interest;
that the adverse party in the first proceeding had the right and opportunity to cross-examine;
that the questions in issue were substantially the same in the first as in the second proceeding.
Explanation.- A criminal trial or inquiry shall be deemed to be a proceeding between the prosecutor and the accused within the meaning of this section.
For applying Section 33 of the Indian Evidence Act, the prior statement of witness must be evidence given in a judicial proceedings, or before any person authorized by law to take it. The word ''evidence'' has been defined in Section 3 of the Indian Evidence Act and provides as follows:
Evidence- ''Evidence'' means and includes-
(1) all statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry;
such statements are called oral evidence;
(2) all documents [including electronic records] produced for the inspection of the Court;
such documents are called documentary evidence.
Thus ''Evidence'' means the statement given in Court. When the definition of ''evidence'' as given in Section 3 of the Indian Evidence Act is read alongwith Section 33 of the Indian Evidence Act and Section 161 and 162 Code of Criminal Procedure, the conclusion is obvious that statements recorded by Investigating Officer u/s 161 Code of Criminal Procedure are merely statements and do not amount to ''evidence''. For a statement to be evidence, it is necessary that it must be made with the permission of the Court or it must be recorded by the Court.
In this view of the matter, the statement of a witness recorded by the Investigating Officer u/s 161 Code of Criminal Procedure does not amount to evidence and is not covered by Section 33 of the Indian Evidence Act. Therefore, the statement of witness recorded u/s 161 Code of Criminal Procedure cannot be used by the prosecution or the Court u/s 33 of the Indian Evidence Act. Such statement can only be used for contradicting such witness in accordance with Section 145 of the Indian Evidence Act or it may also be used by the prosecution, if it amounts to a dying declaration and is in relation to cause of death of such witness. In the instant case, the complainant Jhamman Lal did not receive any injury. He did not die on account of this incident. Therefore, his statement recorded by the Investigating Officer in the case diary cannot be used by the prosecution or the trial court to find corroboration to the prosecution case. Thus, Section 33 of the Indian Evidence Act was not applicable in the instance case at all.
In view of the aforesaid, I have come to the conclusion that Jhamman Lal could not be examined during trial due to his death unrelated with this incident and his statement recorded u/s 161 Code of Criminal Procedure could not be relied upon u/s 33 of the Indian Evidence Act. The incident took place in the dead of night when all the witnesses were fast asleep. The injuries sustained by all three injured were superficial and were a result of a single shot fired from a distance. It was a hit and run incident. After the shot was fired, there was no reason or occasion for the accused persons to remain standing at the place of incident. P.W.-2 did not see the accused at all. P.W.-4 saw them only running from behind. P.W.-6 could hardly have an opportunity to see them. The alleged eye witness Bhole (P.W.-3) reached the spot subsequently after covering a distance of 35-36 paces. The injured could not see the accused persons. In these circumstances, I have come to the conclusion that the prosecution case can not be said to have been proved against the Appellants beyond reasonable doubt. Learned trial court committed error of fact and also error in law in convicting the Appellants. The judgment passed by the trial court has no legs to stand and is liable to be quashed.
The appeals are allowed. The impugned judgment dated 5.8.1981 and the conviction and sentence recorded by learned trial court are set aside and the Appellants Omkar and Gulab are acquitted. The appeal in respect of Appellant Asharfi stands abated. The Appellants Omkar and Gulab are on bail. Their bail bonds are cancelled. They need not surrender.
The records of the trial court be sent back alongwith a copy of this judgment.