1.The Appellants who were convicted under Section 302 read with Section 34 I.P.C. and sentenced to suffer imprisonment for life in Sessions Case No. 43 of 1961 on the file of the II Additional Sessions Judge, Belgaum, have come up in appeal to this Court.
2. Briefly stated, the prosecution case is as follows;
On 2-3-1961, the villagers of Pamaldini village, in Belgaum District, were celebrating the 'Dhulwed' day (the day following the Holi). It was a day of merriment for the villagers. On that day, the villagers were having a gala time on the river bed. At about 5 P.M. of that day the deceased Basappa, a notorious character in the village, came to the river bed. Very soon thereafter, 'he held out a challenge that if any one gathered there were to jump 8 cubits forward as well as backwards, he would give that person Rs. 5/-. To that, A 1 retorted that he would give him Rs. 5/- if he performed that feat. These challenges and counter-challenges led to an altercation between A-1 and the deceased. The people gathered there, separated the two, and the deceased was sent back to his house.
The further case of the prosecution is that sometime thereafter, the deceased again came there with a sickle in his hand and challenged A-1 and his friends to come out. At that stage, it is said that the four appellants before this Court first attacked the deceased with stones and thereafter attacked him with sharp cutting weapons. As a result of the injuries sustained by him the deceased died instantaneously.
3. From the post-mortem notes Exhibit 17, it is seen that the deceased had sustained as many as 31 injuries; 27 of those injuries were incised injuries the remaining four being either contusions or abrasions. P.W. 3 who conducted autopsy on the dead body of the deceased is of the opinion that the injuries sustained by the be ceased are sufficient in the ordinary course of nature to cause death. He is also of the view that injury No. 13 is necessarily fatal. His opinion was not challenged before us.
4. There is hardly any doubt that the deceased sustained several injuries on the river bed in question sometime between 5 and 6 P.M. on 2-3-1961, as a result of which he died. A complaint about the above mentioned incident had been lodged before the police patil at about 8 P.M. (Ex. 35). The police took up the investigation on the same night and most of the eye-witnesses have been examined on the very next day.
5. The only question for determination in this case is, whether the prosecution has established that the appellants were responsible for causing the injuries which caused the death of the deceased. In the committal Court, the prosecution had examined P. Ws. 1, 2, 6, 7 and 14 as occurrence witnesses. In that Court, those witnesses had fully supported the prosecution case. But unfortunately, when the case came up for trial before the learned IInd Additional Sessions Judge, every one of those witnesses turned hostile to the prosecution. Though the prosecution had examined as many as eight witnesses as witnesses to the occurrence, seven out of those eight witnesses did not support the prosecution case. The only witness who stood by the prosecution is P.W. 12, the old and decrepit grandmother of the deceased. We are told that she is stone-deaf. Her evidence has been disbelieved by the trial Court and the same has not been commended for our acceptance. The remaining seven witnesses put forward as occurrence witnesses namely, (P.Ws. 1, 2, 6, 7, 13, 14 and 15) were permitted to be cross-examined by the learned public prosecutor. The depositions of P.Ws. 1, 2, 6, 7 and 14 given in the committal Court were marked as exhibits in the case. The trial Court rejected the evidence given by the witnesses before that Court as regards the actual assault, and preferred to accept the evidence given by P.Ws. 1, 2, 6, 7 and 14 in the committal Court. It convicted the appellants on the basis of that evidence.
The question for our decision is whether the evidence of those witnesses given in the committal Court can be considered as evidence at the trial. If the evidence given in the committal Court can be considered as evidence, we have no doubt in our mind that that evidence is sufficient to bring home the guilt to the appellants.
6. Strangely enough when P.Ws. 1, 2, 6 and 7 and 14 were cross-examined in the trial Court by the learned Public Prosecutor he did not contradict those witnesses by the evidence given by them in the committal Court. Undoubtedly those witnesses have resiled from the evidence given by them in the committal Court. But unfortunately the attention of those witnesses was not drawn to the depositions given by them in the enquiry Court, as required by Section 145 of the Evidence Act. Hence those witnesses did not have any opportunity to explain the contradictions appearing in their depositions given in the two Courts. Possibly, the learned Public Prosecutor as well as the learned Sessions Judge were unaware of the decision of the Supreme Court in Tara Singh v. State, reported in : 2SCR729 . The learned Sessions Judge has considerable experience of criminal work and therefore it is surprising that he did not inform himself about that decision. This Court had occasions to emphasise the importance of the rule laid down in Tara Singh's case : 2SCR729 . Hence those dealing with Session cases, particularly Public Prosecutors cannot justifiably plead ignorance about that decision. As a result of the Public Prosecutor's failure to conform to the requirements of Section 145 of the Evidence Act, the evidence given by P.Ws. 1, i 2. 6, 7 and 14 in the committal Court and purported to have been treated as evidence, in the trial Court, has become inadmissible. There is no other evidence in the case. As mentioned earlier all the material witnesses have turned hostile to the prosecution.
It is contended on behalf of the State that Section 285, Cri.P.C. is not controlled by Section 145 of the Evidence Act. This argument is no more available. In Tara Singh's case : 2SCR729 the Supreme Court laid down that:
There is no reason why Section 145, Evidence Act should be excluded when Section 288 states that the previous statements are to be subject to the provisions of the Indian Evidence Act. Section 145 falls fairly and squarely within the plain meaning of these words. More than that, this is a fair and proper provision and is in accordance with the sense of fair play to which Courts are accustomed. On giving effect to the plain meaning of these words, therefore, the evidence in the Committal Court cannot be used in the Sessions Court unless the witness is confronted with his previous statements as required by Section 145, Evidence Act. If the prosecution wishes to use the previous testimony to the contrary as substantive evidence then it must confront the witness with those parts of it which are to be used for the purpose of contradicting him. Then only can the matter be brought in as substantive evidence under Section 288.
7. In the instant case, not a single witness has supported the prosecution case. Therefore, the question of corroboration does not arise. The learned Assistant Advocate-General who appeared for the State fairly conceded that unless we consider the evidence given by P.Ws. 1, 2, 6, 7 and 14 in, the committal Court as substantive evidence, there is no other evidence to hold the appellants guilty.
For the reasons mentioned in Tarasingh's case, it is not possible to consider that evidence as substantive evidence.
8. The learned Assistant Advocate General tried to take some support from the decision of the Supreme Court in Bhagwan Singh v. State of Punjab, reported in : 1952CriLJ1131 . He invited our attention to the fact that P.Ws. 1,2,6,7 and 14 had clearly admitted in the trial Court that the depositions given by them in the committal Court had been correctly recorded. According to the learned Assistant Advocate General, this admission is sufficient to take the case out of the rule laid down in Tarasing's case. Bose, J. who delivered the judgment in Bhagwan Singh's case, has brought out the distinction between the ratio of that decision and the ratio of the decision in Tarasingh's case, in paragraph 24 of his judgment. Therein, the learned Judge observed:
Tara Singh v. The State : 2SCR729 , is to be distinguished because there, there were no two versions in the course of the same testimony. The witness in question was hostile from the start in the Sessions Court and the whole purpose of resorting to Section 288 was to contradict what he said there and no question of corroboration arose. The prosecution had no choice there, as it was here, of using the former statement either to contradict or to corroborate.
In Bhagwan Singh's case : 1952CriLJ1131 some of the prosecution witnesses had supported the prosecution case; only two of the occurrence witnesses had turned hostile. Therefore, there were two versions before the Court. The Court preferred to believe the evidence given by the witness who supported the prosecution. Further, it held that the previous depositions of the two witnesses who did not support the prosecution could be used to corroborate the evidence of the other witnesses under Section 157 of the Evidence Act though the prosecution in bringing on record those depositions failed to conform to the requirements of Section 145. This conclusion was based on the language of Section 157 of the Evidence Act.
9. In this connection, the learned Assistant Advocate-General invited our attention to a passage in paragraph 26 of the judgment in Bhagwan Singh's case : 1952CriLJ1131 which reads:
There can be no hard and fast rule. All that is required is that the witnesses must be treated fairly and be afforded a reasonable opportunity of explaining the contradictions after his attention has been drawn to them in a fair and reasonable manner.
If we apply the tests laid down in the passage quoted above to the facts of the present case it is seen that the attention of none of the witness had been drawn to his previous deposition nor was he given any opportunity to explain the discrepancies in his two statements. The prosecution merely contented itself by reading out to each of those witnesses his previous deposition and thereafter asking him whether it was a correct record of his deposition. The witnesses answered in the affirmative. That does not mean that they had admitted that the version given by them previously is the true version.
10. For the reasons mentioned above, the prosecution case has to fail for want of legal evidence. In the circumstances of this case, we do not feel justified in ordering a retrial.
11. In the result, this appeal is allowed and the appellants acquitted. They shall be released forthwith.
Ahmad Ali Khan, J.
12. I agree.