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M. Sasidharan Nambiar, J.—Appellants are the accused in S.C. No. 82 of 2004 on the file of First Additional Sessions Court, Ernakulam. They were tried for the offence u/s 302 read with Section 34 of Indian Penal Code. Learned Sessions Judge convicted and sentenced the appellants to imprisonment for life and a fine of Rs. 25,000/- and in default, simple imprisonment for three months. The appeal is filed challenging the conviction and sentence. When the appeal was originally heard, it was contended by the appellants that the second appellant was a juvenile on the date of commission of the offence, on 1.3.2001, as he was born only on 10.4.1983. The second appellant produced copy of the birth certificate issued by the Corporation of Cochin which prima facie supported his plea. This court, by order dated 28.7.2011, having satisfied that prima facie the second appellant was a juvenile on the date of commission of the offence, directed the learned Sessions Judge to conduct an enquiry regarding the juvenility of the second accused and if he is found to be juvenile as on 1.3.2001, directed to obtain a split charge from the Investigating Officer as against the second appellant and to forward the same to the Juvenile Justice Board to be dealt with in accordance with the provisions of Juvenile Justice(Care and Protection of Children) Act, 2000. As directed, learned Sessions Judge conducted an enquiry and based on the materials collected, entered a finding on 4.10.2011 that the second accused was a juvenile on 1.3.2001, the date of commission of the offence. As the second accused was a juvenile, his trial is void and therefore the culpability of the second appellant is not to be considered in the appeal. As directed by this court by order dated 28.7.2011, learned Sessions Judge has to forward the split up charge as against the second accused to the Juvenile Justice Board, Ernakulam to be dealt with in accordance with the provisions of Juvenile Justice(Care and Protection of Children)Act, 2000. The scope of the appeal is therefore restricted only to the correctness of the conviction of the first appellant/first accused. Prosecution case is that on 1.3.2001, at about 8.30 pm, PW1 Nixon, PW2 Vijesh, Faisal who was not examined and deceased Nandakumar met at the Bus stand, Panangad. PW2, Faisal and deceased Nandakumar got into the bus and proceeded towards Madavana. PW1 followed the bus in his bicycle. They met on the way. But by that time, PW2 had got down from the bus, though promised to be near the tea shop of Narappan. PW1, along with Faisal and deceased Nandakumar proceeded to the tea shop of Narappan and consumed tea. While so, PW2 also reached there. Thereafter, they proceeded towards Nice Bakery. When they reached near to the Nice Bakery, appellants came from the opposite direction. There was a scuffle between Nandakumar and the first appellant. PW1 and others separated them. Along with deceased Nandakumar, PW1, PW2 and Faisal proceeded further towards the south. When they reached near Kammath Reading Room, appellants came from behind and proclaiming that Nandakumar will not be allowed to live, first appellant inflicted an injury on his throat with Mo1 knife. Sustaining the injury, Nandakumar fell on the ground. While so, second accused inflicted an injury on his back shoulder, with Mo2 thorn of fish. When Pws 1 and 2 helped the deceased to stand up, appellants ran away. PW1, PW2 and Faisal got the car driven by PW3 stopped, and took the injured to P.S. Hospital, Maradu. On examination of the injured, PW13 Dr. Sanjeev Thambi found him dead. PW13 sent Ext. P9 intimation to the S.I of Police, Panangad. PW1 proceeded to Panangad Police Station and furnished Ext. P1 F.I. Statement which was recorded by PW16, the S.I at 11.30 pm. PW16 prepared Ext. P1(a) FIR and registered Crime No. 36 of 2001 of that police station, for the offence u/s 302 read with Section 34 of Indian Penal Code against first appellant and another identifiable accused. PW17, the Circle Inspector took over the investigation. He prepared Ext. P2 inquest report at 8.30 am on 2.3.2001 in the presence of Pws 5 and 6 and forwarded the body with the requisition for post mortem examination. PW12, Dr. K.S. Sasi, Civil Surgeon and District Police Surgeon conducted the autopsy and prepared Ext. P8 post mortem certificate finding that the death was caused by the injury sustained on the throat. At the time of post mortem examination, PW12 removed Mo2 fish thorn which was found pierced on the shoulder of the deceased and handed it over to PW17. It was seized under Ext. P4 mahazar in the presence of PW9. PW17 prepared Ext. P3 scene mahazar in the presence of PW8 and continued the investigation. On 17.3.2001, he furnished Ext. P12 report showing the details of the appellants, including the identity of second appellant. Both the accused surrendered before PW17 on 17.3.2001. PW17 recorded their arrest at 2 pm. On the information furnished by first appellant, Mo1 knife was recovered under Ext. P5 recovery mahazar in the presence of PW10. The dresses worn by the accused at the time of the incident, were seized under Ext. P6 and P7 mahazars in the presence of PW11 police constable. The Mos were sent to the Chemical Examiners Laboratory for examination by submitting Ext. P16 forwarding note and got prepared Ext. P17 and P18 certificates. After completing the investigation, charge was laid before learned Magistrate, who committed the case to Sessions Court, which was made over to the Additional Sessions Court for trial. When charge for the offence u/s 302 read with Section 34 of Indian Penal Code was framed, read over and explained to the accused, they pleaded not guilty. Prosecution then examined 17 witnesses, marked 18 exhibits and identified six material objects. After closing the prosecution evidence, questioning the appellants and on hearing the prosecution and the defence, though appellants were directed to enter on their defence and adduce evidence, they did not adduce any defence evidence. Earlier at the time of cross examining the prosecution witnesses, Exts. D1 to D5, portions of the statements of the witnesses recorded u/s 161 of Code of Criminal Procedure and Ext. D6 to D9, the F.I. Statement, FIR, the final report and the mahazar prepared by PW16, the Investigating Officer in Crime No. 37 of 2001 and its judgment were marked. They are in respect of the crime registered based on the incident which allegedly took place near to the scene of occurrence at 9.30 pm on the same day of the incident.
Learned Sessions Judge, on the evidence found the accused guilty accepting the ocular evidence of Pws 1 and 2 and the recovery of Mos 1 and 2 as proved by the evidence of PW17 with the aid of Ext. P17 and P18 certificates of chemical analysis.
The argument of the learned counsel appearing for the appellant is that the learned Sessions Judge did not properly appreciate the evidence. It was pointed out that the evidence of Pw17, C.I of Police with Ext. P2 inquest report show that the inquest was conducted at 8.30 am on 2.3.2001 and if Ext. P1 F.I. Statement and Ext. P1(a) FIR were in existence at the time of inquest, the relevant column in Ext. P2, the name of PW1 or PW2 would have as the persons who had seen the deceased Nandakumar alive for the last time and dead for the first time, and as it is not seen, it is clear that Ext. P1 and Ext. P1(a) were not in existence at the time of inquest and were subsequently created. The learned counsel argued that though Ext. P1 F.I. Statement was recorded at 11.30 pm on 1.3.2001, Ext. P1(a) establishes that it reached the learned Magistrate only on 3.3.2001 at 10.30 am and the delay in sending the F.I.R would only be for creating eye witnesses who would oblige at the time of trial. Learned counsel also argued that the entire prosecution evidence has to be appreciated in this background. Learned counsel pointed out that though PW1 deposed that he had no previous acquaintance with the second accused, evidence of PW2 shows that he knew the second accused earlier and if the evidence of Pws 1 and 2 is true and in their presence, appellants inflicted the injury on deceased Nandakumar and caused his death and the deceased was taken to the hospital by Pws 1 and 2, even if PW1 did not know the name of the second appellant at that time, in all human probability, he would ask PW2 about the identity of the person who allegedly inflicted the injury with the fish thorn and if so, PW2 would definitely disclose the name of the second appellant and if that be so, in Ext. P1 F.I. Statement, he would have definitely named second appellant and would not have stated that an identifiable person came with the first appellant, attacked the deceased and inflicted the injuries. It is therefore argued that the evidence of Pws 1 and 2 that they were with the deceased, when he sustained the injury or they took the injured to the Hospital cannot be true. Learned counsel also argued that if Ext. P1 F.I. Statement was in existence, when Ext. P2 inquest report was prepared by PW17, and PW17 was aware of the details furnished by PW1 in Ext. P1, he would not have recorded in Ext. P2 that the dead body of Nandakumar was first seen by one Sasi @ Sasidharan and instead, would have shown the names of either PW1 or PW2 or Faisal. Similarly, it was pointed out that the name of the person who had seen the deceased alive for the last time would not have beeb shown as Balakrishnan, but would have shown as either PW1 or PW2 or Faisal and it is thus clear that PW1 and PW2 were not there along with the deceased, when he sustained the fatal injuries. Learned counsel also argued that the evidence of PW1 is contradicted by the recitals in Ext. D2, the statement of PW1 recorded by the Sub Divisional Magistrate in a proceeding initiated u/s 107 of Code of Criminal Procedure against the appellants. It was argued that as per the version in Ext. P2, PW1 after completing the day''s work returned back to his house and had gone to the temple in a car and the deceased Nandakumar sustained injury while he was inside the car, and it contradicts the version in Ext. P1 as well as the evidence of PW1 and therefore no reliance could be placed on his evidence. Learned counsel also argued that the evidence of PW2 is also not believable on the same grounds and if the evidence of Pws 1 and 2 is found unreliable, there is no evidence to prove that it was the appellants, who inflicted the injuries on the deceased or caused his death. Learned counsel also argued that Ext. D6 F.I. Statement filed by the brother of deceased and recorded by Pw16, the S.I establishes that brother of the deceased had a case that he along with one Dineshan were attacked by the appellants at about 9.30 pm on the same day of the incident near Kammath Reading Room and the said first informant and Dineshan were taken to the Verandah of the Reading room by the appellants along with others and inflicted the injuries. Learned counsel argued that the evidence of PW16 with Ext. D7 final report in that case establish that on investigation, it was found that the appellants attacked the brother of the deceased and Dineshan and inflicted injuries at 9.30 pm and as is clear from Ext. D6 and D7, appellants wrongfully restrained the brother of the deceased and left asking where Panda Kumar is and it was argued that thus it is clear that appellants were not the assailants, who inflicted the injuries on deceased Nandakumar. It is argued that if it was the appellants, who inflicted the fatal injury on the deceased, they cannot be expected to return to the same scene of occurrence and ask the brother of the deceased where Nandakumar is and it falsifies the prosecution case. It is therefore argued that prosecution case cannot be believed and in any case, first appellant is entitled to the benefit of reasonable doubt and the conviction is not sustainable.
Learned Public Prosecutor argued that there was no delay in lodging the F.I.R. It was pointed out that the incident occurred at 8.30 pm and at 11.30 pm, PW16 recorded Ext. P1 statement of PW1 and registered the case and hence there was absolutely no delay. Learned Public Prosecutor also argued that though Ext. P1(a) F.I.R shows that it reached the Magistrate only on 3.3.2001, when PW16 or PW17 were examined, they were not asked to explain the delay and in such circumstances, it cannot be found that there was any unexplained delay and in such circumstances, no adverse inference could be drawn for the delay in reaching the F.I.R before the court. Learned Public Prosecutor relied on the decisions of the Apex Court in State of Kerala V. Yarappa Reddy (1999 (3) KLT 456), Bhajan Singh @ Harbhajan Singh and Others Vs. State of Haryana, and Brahm Swaroop and Another Vs. State of U.P., and argued that there is no delay in lodging the FIR or reaching of the same before learned Magistrate and in any case, delay, if any, did not cause any prejudice to the accused. It was also argued that considering the scope of inquest as provided u/s 174 of Code of Criminal Procedure, it does not warrant any adverse inference to be drawn against the prosecution, for not showing the details shown in the Ext. P1(a) FIR, adverse inference cannot be drawn and it cannot be found that Ext. P1(a) was not in existence when Ext. P2 inquest report was prepared. Learned Public Prosecutor, relying on the Division Bench decision of this court in Edakkandi Dineshan @ Pulipp Dineshan V. State of Kerala (2011 (2) KLT 16) argued that a similar statement recorded in a proceedings u/s 107 by the Sub Divisional Magistrate was considered by the Division Bench of this court and found that the Sub Divisional Magistrate is not empowered to conduct pretrial of a Sessions Case and the statement so recorded by the Sub Divisional Magistrate though a previous statement, cannot be made use of, for any purpose as it was procured by illegal means and therefore the credibility of PW1 cannot be challenged based on Ext. D2 Statement. Learned Public Prosecutor also argued that the Sub Divisional Magistrate, who recorded Ext. D2 statement was not examined and in any case, Ext. D2 is not the certified copy of the deposition as it did not contain the certificate by the Magistrate as provided under Rule 57 of Kerala Criminal Rules of Practice and therefore Ext. D2 statement cannot be used for contradicting the evidence of PW1, and the evidence of PW1 cannot be disbelieved on that ground. Learned Public Prosecutor pointed out that though the incident occurred in March 2001, Pws 1 and 2 were examined before court only in June 2008, after the lapse of 7 years and there would be some contradictions and variations but so long as they do not go to the root of the prosecution case, there is no reason to disbelieve the evidence of Pws 1 and 2. Learned Public Prosecutor argued that there is no material contradiction in the evidence of Pws 1 and 2 and evidence of PW1 is corroborated by Ext. P1 F.I. Statement and the evidence of PW2 is also corroborated by the evidence of PW1 and in such circumstances, the finding of the learned Sessions Judge that it was the first appellant who inflicted the fatal injury on the throat of the deceased and caused his death is perfectly correct. Learned Public Prosecutor also pointed out that the evidence of PW17 with Ext. P5 recovery mahazar establish that Mo1 knife was recovered on the information furnished by the appellant and Ext. P17 and P18 certificates establish that Mo1 contains human blood of the same group of the deceased, as is clear from the group of blood found in Mos 1 to 3 dresses which were found on the body of the deceased at the time of inquest by PW17 and hence the conviction of the first appellant is perfectly legal.
The evidence of PW12, Doctor with Ext. P8 Post mortem certificate conclusively establish that deceased Nandakumar sustained two injuries, one on his neck and the other on the back of the shoulder. The evidence of PW12 further establish that Mo2 was found pierced on the shoulder causing injury No. 2 and PW2 removed it at the time of autopsy and handed over to PW17. The evidence of PW17 with Ext. P4 mahazar establish that Mo2 was seized by PW17 at the time of autopsy. The evidence of PW12 further establish that death of Nandakumar was caused by the injury sustained on his neck. The description of the said injury in Ext. P8 reads:-
A stab wound 2.2 x 0.5 cm on front of neck in the suprasternal notch obliquely placed with tailing at the left lower end. The margins of the wound was regular with notching at 1.8 cm level, lower end sharply cut upper end contused. The wound was directed downwards backwards and to left for a depth of 4.5 cm cutting the lower end of sterno mastoid muscle left sterno hyoid muscle left sub clavian vain and left sub clavian artery with a bleeding in chest cavity(about 2 litres of blood with clot). Left lung partially collapsed.
From the nature of the injury shown in Ext. P8 and the evidence of PW12, it is absolutely clear that the death of Nandakumar was caused by the injury sustained on his neck and that injury is sufficient in the ordinary course of nature to cause death.
The question is whether appellant inflicted the said injury and whether the first appellant along with second appellant attacked deceased Nandakumar and caused his death by inflicting the injury. Prosecution relied on the evidence of Pws 1 and 2, the ocular witnesses. PW3 had only taken the deceased from the scene of occurrence in his taxi to P.S. Hospital, Maradu and had not witnessed the incident. The prosecution case therefore mainly depends on the credibility and trustworthiness of the evidence of Pws 1 and 2.
Before appreciating the evidence of PW1, it is necessary to consider the non-mentioning of the names of the appellants in Ext. P2 inquest report prepared by PW17, as it is necessarily be one of the factors to decide the genuineness of the version seen in Ext. P1 F.I. Statement and also the evidence of PW1. The evidence of PW17 establish that he conducted the inquest and prepared Ext. P2 inquest report at 8.30 am on 2.3.2001. Question Nos.3 and 4 of Ext. P2 are relevant. Question No. 3 is by whom first found dead, when and where. Question No. 4 is by whom last seen alive, where and when and in whose company and whether he carried any valuable property with him. Ext. P2 inquest report was prepared by PW17, after he took over the investigation on getting information from that the crime was registered and reaching the hospital, where the body of the deceased Nandakumar was lying. Therefore when Ext. P2 inquest report was prepared, PW17 must be imputed with the knowledge of the contents of Ext. P1 F.I. Statement as well as Ext. P1(a) F.I.R. If PW17 was aware of the statement of PW1 in Ext. P1 F.I. Statement, he must be imputed with the knowledge that the deceased was last seen with PW1, PW2 and Faisal. He must also be imputed with the knowledge that it was they who took the injured to P.S. Hospital, Maradu from where the Doctor, after examination, reported him dead. If that be so, PW17 should have revealed the names of either PW1 or PW2 or Faisal in column No. 3 or 4 of Ext. P2 report. As the names of two other persons are recorded as answer to question Nos.3 and 4, there is genuine doubt whether Ext. P1 F.I. Statement was seen by PW17 when he prepared Ext. P2 inquest report. Column No. 12(a) of Ext. P2 shows that the weapon used are a knife and a fish thorn. The evidence of Pws 1 and 2 establish that the identity of the fish thorn was known only later. The evidence of PW12 establish that fish thorn, which was found pierced in the body of the deceased was removed by him and handed over to the Investigating Officer. The evidence of Pw17 and the evidence of PW9 who attested Ext. P4 mahazar by which PW7 seized Mo2, establish that the identity of the weapon as a fish thorn was known only at that time. If that be so, and the autopsy was conducted after completing the inquest and PW17 submitted the requisition to conduct the autopsy. Hence when the existence or identification of fish thorn was not disclosed in Ext. P1, in the ordinary course, the identity of the fish thorn could not have been stated in Ext. P2. When these omissions are to be appreciated in the light of the delay in reaching Ext. P1(a) F.I.R before the learned Magistrate, it casts serious doubt whether Ext. P1 F.I. Statement was recorded at the time when Ext. P2 inquest report was prepared and whether it was recorded at a later point of time. True, as held by the Honourable Supreme Court in Brahm Swaroop''s case (supra) the scope of an inquest as provided u/s 174 of Code of Criminal Procedure is limited. But, the omissions pointed out earlier viz, the non mentioning of the names of PW1 and PW2 as the persons who had seen the deceased alive for the last time and dead for the first time, in Ext. P2 would definitely assume importance while considering the evidence of Pws 1 and 2 that they were with the deceased at the time when he sustained injuries or that they took the deceased from the scene of occurrence to the Hospital in which case PW17 would have naturally recorded their names in answer to question Nos.3 and 4 in Ext. P2 inquest report.
A Division Bench of this court in Vijayakumar and others V. State (1994 (2) KLT 903) had considered such omissions in the inquest report and held that the details of the first information report should get reflected in the inquest report. It was held:-
Admittedly PW17 did not make mention of the names of any of the accused in Ext. P13. If as a matter of fact, PW17 had the copy of the first information report with him at the time when he prepared Ext. P13, he would have definitely made mention the names of the accused in the relevant columns. This conduct on the part of the investigating officer gives suspicion regarding the genuineness of Ext. P1(a) first information report.
In the absence of any valid and satisfactory explanation for the said serious omission, we are inclined to accept the contention raised by the counsel appearing on behalf of the appellants that till Ext. P13 inquest report was prepared, the names of the accused were not fixed and the prosecution was gaining time to pick and select suitable persons as accused in the case.
Though the name of the first appellant was seen recorded in Ext. P2 inquest report, the omission to name either PW1 or PW2 in column Nos. 3 and 4 in Ext. P2 casts serious doubt whether Pws 1 and 2 were procured later as eye witnesses, which could be the only reason for non mentioning their names in Ext. P2. The Honourable Supreme Court in M.C. Ali and Another Vs. State of Kerala, had occasion to consider this aspect and held:-
The FIR was recorded at 0030 hrs on 31.1.1994. It was not received by the Magistrate till 3.30 pm on 31.1.1994. The trial court also noticed that the names of the accused were mentioned in Ext. P1. But they were not mentioned in the relevant column of the inquest report. If the First Information Statement Ext. P1 had been prepared prior to Ext. P14, the names would surely have been mentioned therein. These conclusions again in our opinion, cannot be said to be perverse.
True, as held by the Honourable Supreme Court in Yarappa Reddy''s case (supra), the defect in investigation is not a ground to discard the prosecution case, if it was found credible and acceptable by other evidence, as rightly argued by learned Public Prosecutor. The Honourable Supreme Court in Yarappa Reddy''s case held:-
But can the above finding (that the Station House Diary is not genuine) have any inevitable bearing on the other evidence in this case ? If the other evidence, on scrutiny, is found credible and acceptable, should the court be influenced by the machinations demonstrated by the Investigating Officer in conducting investigation or in preparing the records so unscrupulously. It can be a guiding principle that as investigation is not the solitary area for judicial scrutiny in a criminal trial, the conclusion of the court in the case cannot be allowed to depend solely on the probity of investigation. It is well high settled that even if the investigation is illegal or even suspicious the rest of evidence must be scrutinized independently of the impact of it. Otherwise criminal trial will plummet to the level of the investigating officers ruling the roost. The court must have predominance and pre-eminence in criminal trials over the action taken by investigating officers. Criminal justice should not be made the casuality for the wrongs committed by the investigating officers in the case. In other words, if the court is convinced that the testimony of a witness to the occurrence is true the court is free to act on it albeit investigating officer''s suspicious role in the case.
It is not the law that in case of defective investigation, court has to acquit the accused or discard the evidence which is otherwise found creditworthy and reliable. If any lapse or omission is committed by the Investigating Agency either deliberately or due to negligence, it is for the court to examine the evidence on record, dehors such omissions or defects and find out whether the remaining evidence is reliable and trustworthy. If such evidence is reliable and trustworthy, either for the deliberate defect or negligence shown by the Investigating Officer, the prosecution case cannot be discarded or the accused could be acquitted as in that event administration of criminal justice would be the casuality.
Before considering the evidence of PW1, one other aspect is also to be considered. A Division Bench of this court in Edakkandi Dineshan''s case (supra)considered the statement of a witness who was examined in that case by the Sub Divisional Magistrate in a proceedings u/s 107 of Code of Criminal Procedure, which was used to contradict the first prosecution witness examined in that case. The Division Bench held that the Sub Divisional Magistrate cannot probe into the correctness or otherwise of the statement given by a prosecution witness in the Sessions Case and Section 107 of Code of Criminal Procedure does not empower the Executive Magistrate to elicit answers which are germane for trial in the Sessions Case and allowing such method would be a subtle devise to sabotage the prosecution case and held that the statement relied on by the defence in that case, which was procured by illegal means, cannot be made use of to contradict PW1 therein. The argument of the learned Public Prosecutor is that in view of the said observation, the evidence of PW1 cannot be contradicted with Ext. D2 statement of PW1 recorded by the Sub Divisional Magistrate in a similar Section 107 proceedings by the Sub Divisional Magistrate.
Ext. D2 is certified copy of a statement recorded by the Sub Divisional Magistrate in a proceeding initiated u/s 107 of Code of Criminal Procedure. PW1 was asked whether he was examined before the Sub Divisional Magistrate and whether his evidence was recorded. PW1, after perusing Ext. D2, which is the certified photocopy of the original deposition which contains his signature after recording that the deposition was read over to him and found correct, admitted that it is his statement so recorded. The question is whether that statement could be used for contradicting PW1 when PW1 was examined in the Sessions case.
With due respect, we find it difficult to follow the observation in Edakkandi Dineshan''s case. Section 107 of Code of Criminal Procedure provides for security for keeping the peace. Under sub-section (1), when an Executive Magistrate receives information that any person is likely to commit a breach of the peace or disturb the public tranquility or to do any wrongful act that may probabably occasion a breach of the peace or disturb the public tranquility and is of the opinion that there is sufficient ground for proceeding, he may require such person to show cause why he should not be ordered to execute a bond, with or without sureties, for keeping the peace for such period not exceeding one year. Section 111 provides for an order to be passed by the Magistrate acting u/s 107, provides for an order to be made u/s 107, 109 and 110. Under the Section, when a Magistrate acting u/s 107, deems it necessary to require any person to show cause under Section, he shall make an order in writing, setting forth the substance of the information received, the amount of bond to be executed, the term for which it is to be in force and the number, character and class of sureties, if any required. When a person, against whom such an order is passed appears, the order shall be read over to him as provided u/s 112 or 113. Section 116 provides for the enquiry as to the truth of the information based on which proceedings u/s 107 is initiated. Under sub-section (1) of Section 116, when an order u/s 111 has been read or explained u/s 112 to a person in court, or when any person appears or is brought before a Magistrate in compliance with, or in execution of, a summons or warrant, issued u/s 113, the Magistrate shall proceed inquire into the truth of the information upon which action has been taken, and to take such further evidence as may appear necessary. Sub-section (2) provides that such inquiry shall be made as nearly as may be practicable, in the prescribed manner hereafter for conducting trial and recording evidence in summons cases.
Therefore, when a person to whom show cause notice was issued u/s 107 and an order was made u/s 111, and he appears u/s 112, the Magistrate has to read over the order. Thereafter the Magistrate is bound to inquire into the truth of the information upon which the action has been initiated u/s 107. When Section 116 provides for an inquiry and under Subsection (2), the inquiry is to be made following the procedure for recording the evidence as in a summons case under Chapter XX of the Code, if a witness is examined in that inquiry, the evidence so recorded by the Magistrate cannot be termed a statement illegally procured. When a witness is examined either in a civil proceedings or criminal proceedings, the evidence so recorded could definitely be confronted u/s 145 of Evidence Act, when the same person is being examined in another proceedings later. u/s 145, a witness may be cross examined as to previous statements made by him in writing and relevant to matters in question, without such writing being shown to him, or being proved. But if it is intended to contradict him by the writing, before the writing could be proved, his attention must be called, to those parts of the statement, which are to be used for the purpose of contradicting him. If that be so, when a person was examined in a proceedings u/s 107, while making an inquiry u/s 116, his statement so recorded is definitely a previous statement of that person. If the same person is examined during a Sessions trial later, that previous statement could be legally used for contradicting the witness. Being the deposition in another judicial proceedings, it is not necessary to examine the Executive Magistrate to formally prove the statement. Ext. D2 shows that PW1 certified before affixing his signature that the statement recorded was read over and found correct. Hence absence of a certificate under Rule 57 of Criminal Rules of Practice is not fatal. That exactly is the case herein.
When a person was examined before the Sub Divisional Magistrate in the proceedings initiated against the accused u/s 107, and earlier he was asked about the details of the same incident and what transpired on the date of the incident, the accused is definitely entitled to contradict the same witness, when later he is examined as witness in the Sessions trial. Section 145 of Indian Evidence Act enables the appellants to contradict PW1 with Ext. D2, his previous statement. When Ext. D2 is definitely a previous statement of PW1, as provided u/s 145, appellants are entitled to contradict PW1 with his previous statement in Ext. D2. Section 155 of Indian Evidence Act also enables the appellants to impeach the credit of PW1 with his Ext. D2 statement. Section 155 provides that the credit of a witness may be impeached by the adverse party or with the consent of the Court by the party, who calls him, by proof of former statements inconsistent with any part of his evidence, which is liable to be contradicted. If that be so, when PW1 had given a version as to what he witnessed on the date of the incident, in this case, and how deceased Nandakumar sustained the injuries, his version in Ext. D2, which is reduced into writing and admitted by him to be true as seen from Ext. D2, is definitely his previous statement. It cannot be said that the said statement was illegally procured by the appellants and therefore it cannot be used for contradicting PW1. With due respect to the view taken by the Judges in Edakkandi Dineshan''s case (supra), for the above said reasons, we differ with the view.
Though learned Public Prosecutor argued that as Ext. D2 statement does not contain a certificate by the Sub Divisional Magistrate as provided under Rule 57 of Kerala Rules of Practice, Ext. D2 cannot be said to be a previous statement, we cannot agree with the submission. True, as provided under subsection (2) of Section 116, learned Sub Divisional Magistrate is to record the depositions during an inquiry u/s 116, following the procedure provided for recording the evidence in a summons case and Rule 57 of Criminal Rules of Practice mandates that after recording the evidence of a witness, the Magistrate shall certify that the evidence was recorded truly and correctly and signed before him and it is absent in Ext. D2. But, Ext. D2 shows that it is the certified copy of the deposition recorded by the Sub Divisional Magistrate, though it does not contain the certificate as provided under Rule 57 of Kerala Criminal Rules of Practice. Ext. D2 shows that PW1 affixed his signature in the deposition, declaring that the deposition was read over to him and it is found to be correct. In such circumstances, the absence of certificate by Sub Divisional Magistrate is not fatal and will not make Ext. D2 not a deposition of the witness recorded in the proceedings u/s 116 of Code of Criminal Procedure. In such circumstances, Ext. D2 statement could definitely be used for contradicting the evidence of PW1.
As per the evidence of PW1, after completing his work, he had got down at Panangad Bus stand, where he found PW2, Faisal and deceased Nandakumar. As per his version in Ext. P1 as well as from the witness box, after talking for some time, PW2, Faisal and deceased Nandakumar got into the bus and proceeded towards Madavana. PW1 followed them in his bicycle. On the way, he found Faisal and deceased Nandakumar, who disclosed to him that PW2 got down in the earlier bus stop and had promised to be at the tea shop of Narappan. If the evidence of PW1 is to be believed and he followed the bus in the bicycle and by the time Faisal and the deceased got down from the bus, he reached exactly at the point and PW2 had got down from the bus earlier, he would have definitely seen PW2 getting down from the bus or walking after getting down from the bus. The evidence of PW1 shows that he had not seen PW2 and he was only informed by Faisal and the deceased that PW2 will come to the tea shop. As against the version in Ext. P1, Ext. D2 shows that on that fateful day, PW1 had returned to his house after completing the day''s work and had even gone to the temple. It contradicts the very foundation of the evidence of PW1 from the witness box. The portions of the statement of PW1 seen in Ext. D2 which were confronted to PW1 establish that his evidence is not trustworthy and cannot be believed as according to that version, deceased sustained injury while he was in the vehicle and only when the deceased was being taken in the vehicle, PW1 found blood oozing from the neck and the injury sustained. It cannot be the case if what is stated in Ext. P1 and deposed from the box is true. When this fact is appreciated in the proper perspective, we find it difficult to believe the version of PW1 that the incident occurred as claimed by him. When the name of PW1 or PW2 is not shown in Ext. P2, whether they were with the deceased itself is doubtful.
Similar is the evidence of PW2. If PW1 was not with the deceased as found earlier, the evidence of PW2 that he was present along with PW1 while deceased Nandakumar was attacked also cannot be true. Ext. P11 scene plan shows that Nice Bakery is situated to the south of the scene of occurrence, which is just opposite to the Kammath Reading Room. The evidence of PW2 is that while he was with PW1 and Faisal and the deceased Nandakumar at Panangad Bus Stop, after talking for some time, they decided to be at Bajanaveli and except PW1, others got into the bus. If that be so, normally, there is no possibility for PW2 to get down in between, under the guise that he has to go to his house. Evidence of PW2 is that though he got down, he did not go to the house and instead, proceeded to the shop of Narappan, where he found the deceased, Faisal and PW1 consuming tea. It is the evidence of PW2 that after consuming tea, they walked towards the south and reached near Nice Bakery. Then the accused were found coming from the opposite direction and first appellant had a scuffle with the deceased PW1 and PW2 intervened and separated them. Along with the deceased, they proceeded further towards the south. Ext. P11 shows that the Kammath Reading Room is towards the north of Nice Bakery and the tea shop is further towards the south of Nice Bakery. If that be so, after consuming tea and proceeding towards Nice Bakery and the first incident, they proceeded towards the south, they would never reach near the Reading room, which lies further to the north of Nice Bakery. Therefore, that fact itself casts serious doubt with regard to the version of PW2. When his evidence is appreciated in this background, it is clear that no reliance could be placed on the evidence of PW2 also.
What remains is only the recovery of Mo1, with Ext. P17 and P18 certificates. Ext. P17 and Ext. P18 certificates of chemical analysis establish that human blood was detected in Mo1 knife and the double mundu, shirt and shuddy which were sent to the Laboratory from the court. Ext. P17 and Ext. P18 show that those dresses were received in court as T.45/01. Ext. P16, the copy of the forwarding note forwarded to the Laboratory shows that the said three dresses were the dresses, which were recovered by the Investigating Officer at the time of inquest and received by the court as T.45/01. Though Ext. P17 and Ext. P18 establish that human blood was found in those three dresses and the blood group found in Mo1 knife as well as the three dresses are ''B group'', those dresses were not identified or marked at the time of evidence. In fact, the evidence of PW17, the Investigating Officer, who conducted the inquest, does not show any reference about the seizure of the dresses from the body of the deceased at the time of inquest. In such circumstances, based on Ext. P17 and Ext. P18 reports alone, it cannot be found that Mo1 knife contain the same blood group of the deceased, though learned Sessions Judge based on the recovery found that as recovery was effected on the information furnished by the appellant, it connects the appellant with the injuries inflicted on the deceased and caused his death. As there is no evidence to prove that the blood group of the deceased was ''B group'', which was found in Mo1 knife, based on the recovery alone, appellant cannot be found guilty, especially when none of the remaining evidence establish the complicity of the appellant.
As rightly pointed out by the learned counsel appearing for the appellant, after completing the investigation, based on Ext. D6 F.I.R, Ext. D7 final report was submitted by PW16, S.I. The finding in Ext. D7 is that the accused in that case including the appellant herein came near Kammath reading room at about 9.30 pm asking for deceased Nandakumar. If in fact it was the appellant, along with second accused who inflicted the injuries on Nandakumar and caused his death, in the ordinary human behaviour, appellant was not expected to be there one hour subsequent to the said incident in search of the deceased who was inflicted with fatal injury earlier. When the entire evidence is appreciated in the proper perspective, it is clear that the prosecution did not unveil the true genesis of the incident. In such circumstances, first appellant is at least entitled to the benefit of reasonable doubt. Therefore, on the evidence, the conviction of the appellant cannot be sustained. In the result, appeal is allowed. The conviction of the appellant for the offences u/s 302 read with Section 34 of Indian Penal Code in S.C. No. 82 of 2004 by First Additional Sessions Court, Ernakulam is set aside. Appellant is found not guilty of the offence. He is acquitted. If the appellant is not wanted in any other case, he shall be released from prison forthwith.