1. In this appeal, the appellants who are accused Nos. 1 and 2 in Sessions Case Number 110 of 1980, on the file of the Additional Sessions Judge, Bijapur, have challenged the legality and correctness of the conviction and sentence passed on them. They have been convicted for, each one of them, having committed an offence punishable under Section 302 I.P.C. and sentenced to undergo imprisonment for life.
2. The deceased is one Bapu, the eldest brother of the two appellants-accused P.W. 2. Appasaheb is another elder brother of the accused. P.W. 3 Channarawwa and P.W. 10 Melappa are the parents of the accused, P.W. 2 and the deceased. P.W. 4 Susalawwa is the wife of the deceased. These persons and P.Ws. 5 to 9 and 11 are the residents of Bableshwar, in Bijapur District. There is a police station in Bableshwar. P.Ws. 12 to 15 were attached to that police station. P.W. 16 Hanamant and P.W. 17 Fakirappa were the Circle Inspectors of Police of Bijapur Rural Police Station within whose jurisdiction the Bableshwar Police Station lies.
3. The prosecution case is that about two years prior to the date of incident which is 30-7-1980 (5.00 p.m.) there was partition in the properties belonging to the family of P.Ws. 10, 8 and their sons six in number. The accused persons were given to wasting and squandering money. About 15 days prior to the incident, the deceased commenced working in the land of accused No. 1 as directed by P.W. 10. Accused No. 1 protested.
4. At about 8 a.m. on 30-7-1980, the deceased took coolies to the land of accused No. 1 and commence plucking the cotton raised by accused No. 1 P. W. 3 saw accused Nos. 1 and 2 go towards the said land. She asked her husband P.W. 10 to go to the land and prevent any untoward happening P.W. 10 accompanied by one Siddaramappa (not examined) went to that land and found that the accused and the deceased were quarrelling P.W. 10 reprimanded his sons. The accused then went into a neighbouring land. P.W. 7 Basappa who has his land adjacent to the land was present in his land. P. W. 10 requested P.W. 7 to keep an eye on these persons lest they may quarrel over again and something undesirable might come out of it. Nothing happened further on. After taking food the deceased went towards the garden land of the accused. He was accompanied by one Gurappa (not examined). When they were near Marawwa temple Gurappa went away. P.W. 8 and others were sitting chit-chatting on the pail of Maravva temple. Both the accused came there being armed with axes, accused No. 2 assaulted the deceased on his back by means of the axe he carried. The deceased ran crying to P.W. 8. P. W. 8 tried to separate the accused and the deceased. He separated the accused and the deceased and while doing so he asked the deceased to run away. P.W. 8 and one Ammanna (not examined) held the hands of both the accused persons. One Yellappa (not examined) also came there. At that time, accused No. 1 slapped on the face of P.W. 8 and then both the accused ran away towards Harijan Keri. The deceased went to his house, but returned little while thereafter being armed with a babul stick. On coming to the place in front of Marawwa temple he began to shout at the accused and abused at the accused. It appears that the accused heard the shouts and abuses hurled at them by the deceased and came back from the Harijan Keri. Accused No. 1 dealt an axe blow on the left hand of the deceased while accused No. 2 held the deceased. Accused No. 1 thereafter dealt axe blows indiscriminately on the person of the deceased while accused No. 2 was standing and witnessing the assault. P.Ws. 2 and 3 appeared there. Thereupon the accused ran away leaving M.O. 1 the axe at the spot. P.W. 2 went to the police station in Bableshwar at 5.30 p.m. P.W. 13 Yellappa, Head Constable, was the Station House Officer, P.W. 2 gave information which was reduced to writing as per Ex. P. 5, P.W. 13 registered crime Number 71 of 1980 and issued first information report Ex. P. 16. He went to the spot, held inquest proceedings over the dead body of the deceased and after the inquest he recorded the statements of P.Ws. 3, 4, 8 and C.W. 11 Yellappa. P.W. 15 Vishwanath, Sub-Inspector of Police, reached the spot at night and took over investigation from P.W. 13. He tried to trace the accused persons, but they were absconding. By about 8 a.m. on 31-7-1980 the then Circle Inspector of Police namely P.W. 17 Fakirappa reached there and took up investigation from P.W. 15. By 3-9-1980 the investigation changed hands from one Circle Inspector of Police to the other as and when the Circle Inspectors of Police were sent for training or transferred. Ultimately, On 3-9-1980, P.W. 15 Sub-Inspector apprehended the accused at Dundagaon in Maharashtra State. He produced them before the Circle Inspector of Police, P.W. 16 who arrested them on 4-9-1980.
5. It is also the prosecution case that during investigation one Neelakanta, C.W. 16, gave information to the Circle Inspector of Police that an axe was lying in samani in his land and therefore that axe which is M.O. 2 was seized and sealed. It may be stated here itself that both the axes have been found to be stained with human blood.
6. It does not admit of any dispute that Bapu, the elder brother of the accused persons, was done to death by about, 5 p.m. on 30-7-1980. The evidence of Dr. Nagappa P.W. 1 who conducted the post mortem examination over the dead body of the deceased is conclusive on this aspect. The defence also has not disputed this fact at any stage in this case. The evidence of P.W. 15 that the dead body was lying on Tignibidari Road near Maravva temple in Bableshwar and the evidence of the panchas to the inquest proceeding held by P.W. 13 and the fact that blood stained earth etc. were seized from the spot and M.O. 1 was found lying near the dead body at that place establish that Bapu, the deceased, was done to death on that day at that place.
7. The prosecution has placed reliance on the eye witness account furnished by P.W. 2 Appasaheb, the elder brother of the accused, P.W. 3 Chanarawwa, the mother of the deceased, P.W. 4 Susalawwa, the wife of the deceased, P. W. 8 Mallappa who has his kirana shop near the spot, P.W. 9 Arjun who had gone to that place for making purchase at the time of the offence, P.W. 10 Melappa, the father of the accused and the deceased. It has also placed reliance on the evidence of P.W. 11 Chandran in regard to the extra-judicial confession made by the accused.
8. None of these witnesses have supported the prosecution case. They did not stick to what the prosecution has claimed as having stated by them under S. 162 of the Criminal P.C. during the investigation. The Prosecutor took permission of the court for putting leading questions and cross-examining these persons as provided by S. 154 of the Evidence Act. He has elicited certain contradictions and omissions in the course of the cross-examination of P.Ws. 2, 3, 4, 8, 9 and 10. He has not at all cross-examined P.W. 11.
9. The cross-examination made by the Public Prosecutor by virtue of S. 154 of the Evi. Act consists of only one question. He has simply asked each one of the hostile witnesses as to whether that witness had stated as per the whole of the statement made before the police and the whole statement has been marked by the Additional Sessions Judge. It is needless to observe that this is not the way how S. 154 of the Evi. Act lays down. It is clear that a particular portion of the statement must be read over and explained to the witness and the witness be asked whether he has stated accordingly in his previous statement legally recorded by the authority empowered to do so, in this case the concerned police officer investigating into the offence. Marking of the whole of the statement is not contemplated under S. 145 of the Evi. Act. That lacuna has been overlooked by the Additional Sessions Judge.
10. Despite the state of evidence being as narrated in the preceding paragraph, the Sessions Judge has proceeded to convict the appellants on the basis of a theme of his own. That theme is enunciated by him in paragraph 17 of his judgment as follows :
'.... But what remains for the courts to see is the offence committed under Penal Code is an offence committed against the State and the State should safeguard the interest of its citizens by the offence perpetrated against them and this object in view the offence under Penal Code is dealt by the State directly by appointing the Public Prosecutors at the cost of state exchequer which is nothing but the money paid by the citizens in various forms to administer the law and to provide safeguard to them. It is not a civil litigation wherein the parties affected individually will tend to give go-bye to their cases with an understanding of their act and any loss or defeat occasioned is only to an individual. When a man of influence monetarily and other way will commit any henious offence of doing away with the life of an individual and by his influence and money he will be able to purchase the prosecution witnesses to escape the wrath of law and also make the law as a mockery and in that predicament what is the duty of the courts which has been established to administer the law to that effect to punish the delinquent and release the innocent for the offences levelled against them. It is true that this court is conscious about the Evidence Act and other Acts connected to prove the act of a delinquent but when a deliberate attempt was made to make the law impotent and ineffective with extra legal approaches. Then what is the power of the court Is the court should sit as a dumb witness witnessing the gimmicks played by the witnesses to make the law as ineffective or it should enter the field of discretion which is wide of giving to the Judicial Officers to exercise the discretion such as the present one. Keeping this object in view, forgetting the technicalities and taking the realities of life, this court will focus its attention to the circumstances of the whole case as put by the prosecution'.
11. Thereafter, the Additional Sessions Judge has, in the subsequent paragraphs, narrated the evidence of P.W. 2 and the complaint Ex. P. 5 and P. 5(a) the contradiction, P.W. 3 and her statement before the police as per Ex. P. 6, P.W. 4 whose evidence takes the prosecution case neither here nor there, P.W. 8 and his statement before the police as per Ex. P. 12, P.W. 9 and his statement before the police as per Ex. P. 13, P.W. 10 and his statement before the police as per Ex. P. 14 and evidence of P.W. 11 and his statement before the police as per Ex. P. 15.
12. In para 25, which follows the aforementioned, he has put forth his approach as follows :-
'25. Since the direct testimony to prove the prosecution case has failed due to the non-co-operation of the witnesses. Now this court has to rely on the circumstances of the whole case leading from the complaint until the arrest of the accused'.
13. In the next para he has narrated the circumstances of P.W. 2 having gone to the police station at 5.30 p.m. and lodging information as per Ex. P. 5 basing his conclusion on the evidence of P.W. 13, though P.W. 2 has denied having narrated as per Ex. P. 5. In the very paragraph he has narrated another circumstance namely examination of certain witnesses during inquest and immediately after the inquest. In the next paragraph viz., paragraph 27, he has posed a question as follows :
'Now the question that arises is whether a conviction will lie only on the basis of the statements recorded by the police under Section 162 of the Criminal Procedure Code and the evidence or investigation authorities that these statements have been recorded as stated by the witnesses ?'
He has then reproduced S. 162 of the Criminal P.C. and observed that the object of S. 162 Cr.P.C. was to see that the accused might not be prejudiced in any way by the improper use of such statements recorded loosely or inaccurately and to see that the accused are protected against over jealous police officers and untruthful witnesses and further to encourage the free disclosure of the information or to protect the person making the statement. In the next paragraph he has adverted to Sections 145 and 154 of the Evi. Act. According to him, wide discretion has been allowed to the courts in giving permission under S. 154 of the Evi. Act even on perusing the police statements and therefore, it follows - to put it in his own words - 'the discretion given under S. 154, as the discretion vested in the trial courts and where this discretion was exercised after perusal of the statements given under S. 161 Cr.P.C. to the police if the circumstances warrant the courts can place reliance on the statements rather than the oral evidence given by the parties'. After taking this view he has taken into consideration the police statements and the circumstance of ascendance of the accused persons and thereafter recorded conviction.
14. What the Additional Sessions Judge has failed to see while he has reproduced S. 162 of the Criminal P.C. is the portion of the Section which appears in the proviso and reads as follows :
'162. ........ 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 ......'
15. There is a catena of decisions laying down the principle in law that the material elicited as contradiction by use of S. 145 of the Evi. act is not substantive evidence. Even in regard to the statement recorded under S. 164 of the Criminal P.C. by authorised Magistrate, it has been held accordingly in Mamand v. Emperor , Brij Bhushan v. Emperor , Bhuboni v. The King AIR 1949 PC 257 : (1949) 50 Cri LJ 872) and so on. Therefore, the fact that the contradictions are proved through the investigating officers though the witnesses have denied having made such statements, does not translate the contradictions into substantive evidence. Unless there is substantive evidence, it cannot be acted upon legally particularly to base a conviction merely because the Judge feels gratuitous indignant on the 'gimmicks', (the word used by the Additional Sessions Judge himself) of the prosecution witnesses and accepting such righteous indignation, feels helpless it cannot be held in law that the prosecution has succeeded in establishing the charge or charges against the accused though there being no substantial legally acceptable evidence against them. Righteous indignation against the prosecution witnesses or moral conviction of the Presiding Officer cannot be of any use for convicting the accused persons and sentencing them.
16. In view of the aforementioned reasons, we hold that the prosecution has failed to establish the charge against the appellants-accused and therefore, allow the appeal, set aside the conviction and sentence passed on the appellants-accused by the Additional Sessions Judge, Bijapur, in Sessions Case No. 110 of 1980 and acquit them. Their bail bonds are discharged.
17. Appeal allowed.