Manohar Pershad, J.
1. Thirty three accused persons including the present appellants were charged for the murder of Venkata Reddy and China Venkaiah and for causing injuries to P. Ws. 2, 3 and 4. The learned Sessions Judge, Guntur found Accused 2,4,8,10,11,13,14, 16,18,20,22, 28 & 31 guilty and convicted Accused 2 under Sees. 148, 307 (read with Section 149) and 302 (read with Section 149), I.P.C., and sentenced him to rigorous imprisonment for one year, rigorous imprisonment for two years and to suffer death respectively and convicted Accused 4, 8, 10, 11, 13, 14, 16, 18, 20, 22, 28 and 31 under Sections 148, 307. read with Sections 149 and 302 read with Section 149 and sentenced each of them to rigorous imprisonment for one year, two years and imprisonment for life respectively and the sentences were ordered to run concurrently. The learned Judge acquitted the rest of the accused. The case is now before us for confirmation. The accused also have filed separate appeals -- Appeal No, 233 of 1958 by Accused 2, 4, 8, 10, 13, 14, 16 and 22 and Criminal Appeal No. 234 of 1958 by Accused 11, 18, 20. 28 and 31.
2. The facts leading to the reference under Section 374 Cr. P. C. and the appeals are : In the village of Gummanampadu under the Station House, Bommarajupalli, which is a highly factious village numerous offences and murders were said to have been committed. On 4-5-1957, one Vippala Pamu-la Reddy was murdered in the early hours of the morning when he had gone to his hayrick for attending to calls of nature. This murder, it is said, was in connection with numerous litigations both Civil and criminal that were either pending against the said person or were instituted at his instance against members of the other party. It is said that Pamula Reddy was the leader of the party represented by the accused persons in this case, the other party being led by Vajarala Peda Venkata Rcddy, P.W. 18. The murder of Pamula Reddy was attributed to the party belonging to the group led by the said Vijarala Peda Venkata Reddy.
The accused, who constituted members of the party of Pamula Reddy it is alleged took upon themselves to avenge the death of their leader and in pursuance thereof, they collected in large numbers armed with spears, sticks etc. and came first to the house of the village Munsif (P. W. 1), who was suspected to be involved in the murder of Pamula Reddy. The Village Munsif. seeing the crowd coming towards him, bolted himself inside his house, and when he (P. W. 1) questioned the mob, they said that they had come to Kive a report about the murder of Pamula Rcddy; but P. W. 1 refused to come out. While the accused were thus standing there, somebody from the crowd said that one of the assailants of Pamnla Reddy was running to another neighbouring village, whereupon the group went towards him, chased him and caught bold of one Vippala Mutyala Reddy and after severe-ly beating him left him half dead on the spot. They then proceeded further and came to the village of Hanumapurarn, where the suspected assailants of Pamula Reddy were said to have taken shelter. Afer a house to house search, they traced the assailants in a deserted house of one Abraham, which had only a thatti door. They first surrounded it. They did not dare to enter the premises, but climbed the roof, made holes in it and began pelting the inmates who were four in number with stones. Unable to bear the stone-hits the four inmates came out. The four inmates of the bouse are said to be the two deceased Venkata Reddy and China Venkaiah and P. Ws. 3 and 4. As they came out, they were beaten by the accused and on the intervention of some lambadas of Hanumapuram village viz., Chinna Fakir and Peda Fakir, not to kill them hut to hand them over to the pole (?). the accused left P.Ws. 3 and 4 in the injured condition and proceeded with the two deceased. After reaching the village, the accused divided themselves into two groups -- one group attacking China Venkaiah and the other group China Venkata Reddy, which resulted in the death of the two. The mater was reported to the police, who arrived at Gumma-nampad in the evening in connection with the murder of Pamula Reddy. Investigation was taken up The accused were charge-sheeted for various offences as stated earlier. The accused, one and all pleaded not guilty. The prosecution examined 21 witnesses. 11 witnesses were produced by the defence. On the evidence, the learned Sessions Judge found some of the accused guilty and sentenced them to various terms of imprisonment as staged earlier and acquitted the rest of the accused.
3. During the course of the arguments, it appeared to us that three lambadas belonging to Hanumapuram village, a place near about the scene of the incident, were cited as eye-witnesses in the case by the prosecution, but their statements were not recorded because the Public Prosecutor in the lower Court stated that they were not traceable. We, therefore, in the interests of justice, directed the lower Court to record the statements of these three witnesses and remanded the case to the Sessions Judge for that purpose. The loaned Sessions Judge has, after recording the said statements, sent the records.
4. In all, there are 21 prosecution witnesses, 3 court witnesses and 11 defence witnesses. P. W. 1 is the Village Munsiff, who has issued the report. P. Ws. 2, 3 and 4 are the injured persons. P. Ws. 5 to 9 are the eye-witnesses. P. W. 19 is the doctor. The remaining evidence, excepting the three court witnesses, comprises of the Medical Officer, Investigating Officer and the panchayat-dars.
5. The evidence worth considering in this case, therefore is the statements of P. Ws. 1 to 9. P. W. 19 and the three court witnesses. P. W. 19 is the doctor who has deposed that the deceased China Venkaiah and China Venkata Reddy died of numerous stab injuries on their bodies including vital organs and that P. Ws. 2, 3 and 4 had incised and contused wounds and other evidence of P. W. 19 that the two deceased China Venkaiah and China Venkata Reddy died of numerous injuries on their bodies. The question that remains is who was the person or persons responsible for the injuries to the deceased as well as P. Ws. 2, 3 and 4. The prosecution case is that the accused were responsible for the said injuries. Now, we have to see whether the prosecution has succeeded in proving beyond reasonable doubt that the accused are the persons responsible for the said injuries.
6-25. (His Lordship reviewed the evidence of the prosecution witnesses and proceeded):
26. There now remain the statements of three court, witnesses, examined under Section 375. viz.. Banavathu Laxmanyakudu, Desavathu China Fakir, Naya-kudu and Desavath Peda Fakir Nayukudu son of Hanurna Nayukudu.
27-30. (His Lordship after narrating their evidence proceeded):
31. The Public Prosecutor put the statements of these witnesses to them in cross-examination. The learned counsel for the accused objected to this as the witnesses were court witnesses and not the witnesses for prosecution within the meaning of that expression in Section 162 Cr. P. C. The lower Court in spite of the objection of the learned counsel for the accused allowed the Public Prosecutor to make use of the statements for purposes of Section 145, Evidence Act.
The learned counsel for the accused urges before us that since these three witnesses were Court-witnesses and were not called for the prosecution, the Public Prosecutor was not competent to put Section 162--statements to those witnesses for the purpose of contradictions. In this connection, the learned counsel drew our attention to Section 162 and placed reliance on the following authorities, Devi Das v, Emperor, AIR 1930 Lah 318 (2), Bhupal Chandra v. Emperor, 44 Cal WN 451, Bahadur Singh v. Emperor, AIR 1926 Lah 367, Gurditta v. Emperor, AIR 1927 Lah 713 and Shapurji Sorabji v. Emperor, AIR 1936 Bom 154.
The learned Public Prosecutor on the other hand contended that inasmuch as the three court-witnesses were cited as prosecution witnesses in the Committing Magistrate's Court and were also cited as eye-witnesses in the Sessions Court, though not examined, they would still be treated as witnesses for prosecution even though this Court has directed their statements to be recorded.
32. In order to appreciate the contention of the learned counsel, a reference to the provisions of Section 162 is necessary, which runs thus:
'(1) No statement made by any person to a Police-Officer in the course of an investigation under this Chapter shall, if reduced into 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 (I 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 of explaining any matter referred to in his cross-examination.'
33. It would appear that Section 162 Cr. P. C. expressly prohibits the use of the statement 'for any purpose' save in the manner stated in the proviso. The proviso says that in can be used by Ithe defence for contradicting prosecution witnesses in the manner provided in Section 145 Indian Evidence Act or by the prosecution for the same purpose provided it is permitted by the Court. It is plain that is cannot be used as substantive evidence by any side. The proviso applies on fulfilment of three conditions: (1) Statement must have been reduced to writing (2) the witness must have been called for the prosecution and (3) the written statement must be duly proved.
We are concerned now with the second essential viz. that the witness must be called for the prosecution. It may be recalled that during the course of arguments, it had transpired to us that three independent witnesses were not examined and the evidence on record consisted only of persons belonging to the rival party. In the interests of justice. we directed the lower Court to record the statements of these three witnesses and their statements were recorded as court-witnesses. They were cross-examined by the prosecution as well as by the accused.
Yet the question arose whether they were witnesses for the prosecution within the meaning of Section 162 Cr. P. C. to entitle the prosecution to avail of 162 statements for purposes of contradiction. The history of the provision would reveal that prior to the amendment, the prosecution was not at all entitled to use Section 162 statements for any purpose.
It is only as a result of amendment a right subject to the permission of the Court has been given to the prosecution to use them for purposes of contradiction, but the condition precedent for this which alike governs the right of the defence as ever is that the witness must have been called for She prosecution. The question therefore arises as to what meaning has to be given to the words 'called for the prosecution.'
The contention of the learned counsel for the State is that since these witnesses were cited as prosecution witnesses even though their, statements have not been recorded as such, but only as Court-witnesses, they would nevertheless be deemed to be witnesses, called for prosecution. It is very difficult to accept this contention of the learned Public Prosecutor. Witnesses examined by the Court in the interests of justice cannot be said to be witnesses called for prosecution. The section does not introduce any fiction so that any witness who as not in fact called for prosecution may be deemed to be so.
If the contention of the learned prosecutor as against this be accepted, curious results will follow. Any witness cited for the prosecution would continue to be a prosecution witness during the course of the trial even though he is withdrawn by the prosecution and examined by the defence. The clear language of the provision is not susceptible of this interpretation. The expression 'called for the prosecution' is express and explicit and there is no warrant for giving it a meaning which the words in their literal or ordinary sense do not convey.
The law as laid down is clear that statement made by a witness to the police investigating officer can be used only in one manner in view of Section 162 Cr. P. C. and that is that it can be used to contradict the statement of a witness if he be examined as a prosecution witness, If the same person be not examined as a prosecution witness, but examined as a defence witness then that statement cannot be used, and further any other use of the statement is also forbidden. In other words, if he is examined as a court witness, the same result would follow.
We are supported in this view by Sheo Shan-ker v. State. : AIR1953All652 and 44 Cal WN 451. We asked the learned Public Prosecutor whether he had any authority to substantiate his point, but he failed to show any. He, however, argued that the authorities relied upon by the other party have become obsolete and cannot be taken into account because Section 162 has been amended. We do not see any force in this argument when it is plain that the expression in question has not undergone any amendment and finds its place as ever in the section.
By the amendment, what the legislature has done is this: that a right which was hitherto given to the accused has now been extended also to the prosecution to enable it Do use that statement for purpose of contradiction subject, however, to the permission of the Court. It is plain that the condition precedent for the application of the proviso remains untouched by the amendment. So the argument of the learned Public Prosecutor is devoid of force. He has also argued that Section 145 Indian Evidence Act can be availed of independent of Section 162 Cr.P.C. and that the statements before the police are admissible for purposes of cross-examination.
This argument, in our opinion, is equally devoid of force. Section 145, Evidence Act is controlled by Section 162 Cr. P. C. and the prohibition contained in Section 162 cannot be permitted by law. The learned Public Prosecutor did not cite any authority to substantiate his point. We are therefore clear that the learned Public Prosecutor could not use Section 162 statements for purpose of contradiction. Even assuming that he could use those statements for purpose of contradiction, they are not at all helpful to the prosecution. It would therefore follow that even after the statement of three witnesses recorded as court witnesses, no further light is shed on the case. Out of the three witnesses, examined two have clearly stated than they cannot identify the persons included in the crowd. Of course, C. W. 8, in his examination in chief has identified certain persons to be members of the crowd, but in his cross-examination and his statement before the police and the lower Court has denied having identified them. These witnesses are not eye-witnesses to the incident near Abraham's house. They have clearly stated that they have not seen the accused carrying the deceased and the injured person to Abraham's house or seen them going out of the house. This evidence therefore does not help the prosecution.
34. In this case, as stated earlier, there are three F. I. Rs. one issued on the statement of C. Ws. 1 to 3 (Ex. P. 26) which was received at 12 noon, another (Ex, P. 8) at the instance of P. W. 12, brother of P. W. 3. which was received by 3 p. m. and the third (Ex. P. 3) was given by the Village Munsiff to Sub-Inspector of police when he came for investigation. Exs. P. 26 and 8 do not contain the names of the accused. Ex. P. 3, of course, contains the names of 16 accused (A-1 to A-16). P. W. 1 is examined to prove this repoit. He states that he issued this report on the information given to him by P. W. 5. He also states that P. W. 5 orally gave a statement and stated he would come back after informing the wife of China Venkayya, but he did not turn up and that he gave the statement to the police at 10 p. m., but admits that in the report there is some interpolation as to time 10 p. m. being changed to 8-30 P. m. He also says that the time of despatch has also been altered. P. W. 5 further states that after, seeing the incident, he went to the house of the Village Munsiff at about mid-day on the same day and reported to him orally that about 16 persons and others had murdered two persons. He says he was asked by the Village Munsiff to give a report, but he said that he would come back after informing the wife of the deceased China Venkayya. If it was a fact that this report was issued on the information given by P. W. 5, P. W. 1 in his statement would have stated so. In that statement, there is no mention that information was given to him by P. W. 5. It may also be noted that Ex. P. 3 contains the names of 16 accused persons. P. W. 5 in his examination-in-chief does not give the names of those persons, but states that he told him that about 16 persons and others had murdered, but when questioned by the court, he seated that he gave 15-16 persons', names. On behalf of the accused, it is contended that P. W. 1 has included the names of 16 person because he belongs to the rival party and was himself accused of the murder of Pamula Reddy and therefore he included the names of his enemies. He has admitted the existence of factions in the village and also than one party is headed by Venkata Reddy and the other by the deceased Pamula Reddy. He admits that security proceedings were taken against both the parties. It is evident that he was charged of the murder of Pamula Reddy, though it is stated that he has been acquitted. The witness while admitting factions in the village and the existence of two parties, has disclaimed his interestedness in any party but as he was involved in the murder of Pamula Reddy and has connections with the other group, he cannot be considered as a non-partisan, as has been held by the learned Sessions Judge. His conduct in respect of the incident of murder of Pamula Reddy also makes him most untrustworthy. He saw the corpse of Pamula Reddy and found two persons, but did not try to ascertain the facts and details of the murder.
He says that he sent his servant to the wife of Pamula Reddy to get a report. Even in the report, which he issued, he does not mention the names of any person involved in the murder of Pamula Reddy. If as he says, he had no connection with any party, we fail to understand why he should not come out of the house and take the report from them. Instead, he bolts the door and sits inside. Even the lower Court in view of all these facts, has not relied on his evidence. We also cannot attach any weight to his evidence.
35. Thus, after giving careful consideration to the evidence on record, we are of opinion that the evidence produced on behalf of the prosecution is not at all sufficient to establish beyond reasonable doubt the guilt of the accused. It is unfortunate to note that though two murders took place in the broad day light in a faction-ridden village and the guilt could not be brought home to the accused by any clear, cogent and sufficient proof. The broad features of the case, as we have already pointed out, are that the accused involved in the case are persons who have strained relations with prosecution witnesses.
As would appear A-1 to 5 are persons who gave evidence against P. Ws. 18 and P. W. 5 in security proceedings. A-1 is the leader. A-2 repeatedly contested the panchayat elections and the elections seem to be the root cause of the hostilities. A-3 and A-4 were suspected as responsible for the murder of P. W. 1's father. The village Munsiff is the brother-in-law of the second deceased. A-3 and A-4 have both legations (civil and criminal) against Galli Reddy. A-6 contested the elections) against his uncle, A-7 also contested the elections.
A-8 gave evidence in a murder case against P.W. 1's uncle. P.Ws. 18, 14 and others. A-5 and A-6 are brothers. A-9 to 14 are persons against whom a report was made that they had thrown stones on the house of P.W. 18 by P.W. 2. A-14 filed a complaint against P.W. 18. A-2 and 16 gave evidence against P.W. 18, deceased 2, P.W. 3 and 4. The witnesses examined in the case to prove the guils of the accused are one and all connected with the rival camp.
Apart from this, there are material discrepancies in their depositions. The witnesses have improved their versions from time to time. Some of them are charged of the murder of Pamula Reddy which took place in the early hours of the same day. It would further appear that presence of the alleged eye-witnesses of the murder Is not only doubtful, but improbable. Under these circumstances, a high degree of certainly is required for conviction of the accused as has been observed in Vengala Reddy v. State 1955 Andh L.T. 285 : (AIR 1956 Andhra 26) and Vemavya v. Emperor, 1935 Mad W.N. 87. Judged in this light the evidence adduced is wholly insufficient to establish the guilt of the accused and the accused therefore are entitled to acquittal.
36. Appeals 233 and 234 of 58 are allowed,convictions and sentences passed by the learnedSessions Judge are set aside and She accused areacquitted. The material object may be disposedof as per directions of the Sessions Judge. This judgment shall govern R.T. 12 of 1958