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Malik Abdul Salem and anr. Vs. State of Orissa - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtOrissa High Court
Decided On
Judge
Reported in1985CriLJ1871
AppellantMalik Abdul Salem and anr.
RespondentState of Orissa
Cases ReferredTahasildar Singh v. State of U.P.
Excerpt:
.....be followed. , at the same point of time, towards the northern lane as well as towards the southern lane, if one statement is true, the other must necessarily be false. it is for the trial judge to decide in each case, after comparing the part or parts of the statement recorded by the police with that made in the witness-box, to give a ruling, having regard to the aforesaid principles, whether the recital intended to be used for contradiction satisfied the requirements of law......1981 at about noon one basant kumar satpathy informed p. w. 2 at his residential house that the dead body of a young boy was lying in the drain. p. w. 2 went to nayagarh police station and reported the matter there vide ext. 1. p. w. 1, the sub-inspector of police, went to the place at about 4.00 p.m. and inquired into the matter. the dead body was brought out from the drain and p. w. 1 made inquest over the dead body. he sent the dead body for post-mortem examination. the maternal uncle of the deceased (p. w. 5) identified the dead body as that of saroj bhuiahal and subsequently p. w. 4, the father of th. deceased, also identified the same. after receipt of the post-mortem report on 22-4-198!, p.w.i on his own information reistered nayagarh p. s. case no. 54/81 at 10.30 a.m. vide.....
Judgment:

J.K. Mohanty, J.

1. The two appellants and one Sansari Sahu (since acquitted) were tried in the court of the Sessions Judge, Puri, and were charged under Sections 302/34 and 201 IPC. Appellant No, 1, Malik Abdul Salem, was also specifically charged Under Section 302, IPC for committing murder of Saroj Bhujabal. The allegation against them was that they committed murder of one Saroj Bhujabal, a boy, in furtherance of their common intention and thereafter placed the dead body in the drain under the cabin of P. W. 2 with the intention of screening themselves from legal punishment. The learned Sessions Judge found the two appellants guilty and convicted them under Section 302, IPC and sentenced them to imprisonment for life. He also convicted them under Section 201, IPC, but no separate sentence has been awarded. Sansari Sahu has been acquitted.

2. Prosecution case briefly stated is as follows:

The main road running from Khurda to Daspala passes through the town of Nayagarh. On either side of the road in the town of Nayagarh there are residential houses, government offices, hospital and shops etc. In between the compound wall of the hospital and the main road, there is a big drain. Appellant No. 1 had a cabin by the side of the drain where he was selling cloths and his shop was known as Khadi Bhavan. Sansari Sahu had another cabin where he was selling tea and tiffin. P. W. 2, Prasanta Kumar Pradhan, had another cabin nearby. On 20th April, 1981 at about noon one Basant Kumar Satpathy informed P. W. 2 at his residential house that the dead body of a young boy was lying in the drain. P. W. 2 went to Nayagarh police station and reported the matter there vide Ext. 1. P. W. 1, the Sub-Inspector of Police, went to the place at about 4.00 p.m. and inquired into the matter. The dead body was brought out from the drain and P. W. 1 made inquest over the dead body. He sent the dead body for post-mortem examination. The maternal uncle of the deceased (P. W. 5) identified the dead body as that of Saroj Bhuiahal and subsequently P. W. 4, the father of th. deceased, also identified the same. After receipt of the post-mortem report on 22-4-198!, P.W.I on his own information reistered Nayagarh P. S. Case No. 54/81 at 10.30 a.m. vide Ext, 4. He conducted investigation into the case,' examined some witnesses and made some seizure and thereafter handed over the charge of investigation to P. W. 10, another Sub-Inspector of Police, on 23-4-1981 as per the order of the Deputy Superintendent of Police. P. W. 10. during the course of investigation seized some blood stained articles, examined witnesses and arrested the accused persons. After completion of investigation, charge-sheet was submitted against the three accused persons.

3. In order to prove the case, prosecution examined ten witnesses. P. Ws. 1 and 10 are the police officers who investigated into the case. P. W. 2 had informed the police about the dead body lying under his cabin. P. W. 3 is the doctor who conducted post-mortem examination over the dead body of the deceased. P. Ws. 4 and 5 are the father and maternal uncle respectively of the deceased who identified the dead body. P. W. 6 is a friend of the deceased who has stated that the deceased was alive till 8.00 p.m. on the 17th April, 1981. P. W. 7 is a witness through whom the prosecution wanted to prove about the carrying of the dead body by the three accused persons, but he did not say so in court and was cross-examined by the prosecution. P. W. 8 sought to prove that accused Malik Abdul Salem gave him a bottle containing some liquid substance, probably Ether, for handing over the same to his (appellant No. 1's) brother. P. W. 9, a friend of the deceased, is the only eye-witness to the occurrence.

4. The plea of the accused was complete denial of the occurrence.

5. The learned Sessions Judge convicted the appellants mainly relying on the evidence of P. W. 9, the only eye-witness to the occurrence.

6. In this case, after the dead body of Saroj was recovered from the drain, the same was identified by P. Ws. 4 and 5, the father and the maternal uncle respectively of the deceased. So, there is no dispute that the dead body recovered from the drain underneath the cabin of P. W. 2 was that of Saroj Bhujabal.

7. P. W. 3, the doctor who conducted post-mortem examination over the dead body of Saroj on police requisition, has found one stab wound 2' X 11^' in the back of right chest wall leading to the right pleural cavity. He also found an incised wound encircling the anterior and lateral aspect of the neck extending from left to right mastoid process. The margins were clean cut and the trachea, oesophagus and great vessels of the neck were incised. It had gone up to the vertebral column. The size of the incised wound was 8' X 3' up to the body of vertebra. On dissection P. W. 3 found that corresponding to the stab wound the right lung was injured and the pleural cavity was filled with unclotted blood. According to P. W. 3, the injuries were antemortem in nature and were sufficient in ordinary course of nature to cause death and death must have occurred three to five days prior to his examination which was on 21-4-1981. The body was decomposed. Thus, from the evidence of the doctor, it is absolutely clear that the death of Saroj was homicidal.

P. W. 2 has deposed that appellant Malik Abdul Salem was sleeping in his shop 'Khadi Bhavan' every night and he has seen him preparing to sleep there in the night of 17-4-1981. In cross-examination he has stated that other people sleep in their respective cabin shops and in the motor garage nearby.

P. W. 6 is the Sangat of the deceased and through him the prosecution wanted to prove that the deceased was alive till 8.00 p.m. on 17-4-1981. Through P. W. 7 the prosecution wanted to prove that he had seen the three accused persons carrying the dead body of Saroj Bhujabal and when asked by him they made certain false representations. But this witness did not support the prosecution case in court, so he was permitted to be cross-examined by the prosecution.

8. The next question for consideration is whether P. W. 9, the only eye-witness to the occurrence, shall be believed or not.

Section 134 of the Evidence Act provides that no particular number of witnesses shall in any case be required for the proof of any fact. This section lays down in clear terms that no particular number of witnesses is necessary for proof or disproof of a fact. In any case, the testimony of a single witness, if believed, is sufficient to establish a fact. The section follows the maxim that evidence is to be weighed and not counted. There is no rule of law that the uncorroborated testimony of a witness cannot be accepted. The rule, if any, is a rule of prudence and its adoption or not depends on the circumstances of each case. In : 1976CriLJ331 (Karunakaran v. State of Tamil Nadu), while considering the testimony of solitary witnesses, their Lordships held:

When the accused is going to lose his life in such a serious charge it is only necessary that the court should be circumspect and closely scrutinise the evidence to come to an unhesitating conclusion that he is absolutely reliable.

In the decision reported in : AIR1967Pat187 Ram Parvesh Ram v. State, it has been held:

Rule of prudence forbids conviction being based on the testimony of solitary eye-witness unless there are compelling reasons for the same and the evidence of the sole eye-witness is completely above board.

Where, therefore, on examining the evidence of the only eye-witness, it cannot be safely said that prosecution has proved its case beyond reasonable doubt, the accused is entitled to the benefit of doubt.

P. W. 9 has stated that he was an employee in the shop of accused Sansari Sahu. The dead body of Saroja Bhujabala, who was normally staying in the tailoring shop of Jayakrushna, was found in the drain lying under the cabin of P. W. 2. Some days prior to the recovery of this dead body, Saroj had a quarrel with Sansari Sahu (since acquitted) as Saroja did not pay Rs. 10/- due to Sansari for taking tiffin on credit. Appellant Malik Abdul Salem was not pulling on well with deceased Saroja as he had not paid the price of a cloth taken from him (Malik Abdul Salem). Appellant Bhramar and appellant Malik Abdul Salem were pulling on well. According to him, two or three days prior to the date on which the dead body of the deceased was recovered, he and the deceased slept together in the shop of accused Sansari Sahu. The deceased being called went to the cabin of appellant Malik Abdul Salem (Khadi Bhavan). He found appellant Salim inflicting two or three fist blows on the deceased. When the deceased cried aloud, appellant Salem stabbed him with a knife on the back side of the right chest wall. The deceased fell down on a mat in the cabin. Both the appellants Salem and Bhramar carried the deceased to a place under the cabin where appellant Bhramar focussed a torch light and appellant Salem cut the throat of the deceased with a knife. He found appellant Salem pouring some liquid substance like acid on the face of the deceased. Being afraid he straight came and slept in the shop of Sansari Sahu. In cross-examination this witness stated that many slept in their shops in the neighbourhood. Though in the examination-in-chief he stated that he and the deceased were sleeping in the shop of Sansari Sahu, in cross-examination he stated that they were sleeping in the shop of Jayakrushna. To a question put by the court, he stated that his statement made in the examination-in-chief was incorrect. Though he admitted that he had seen the father and uncle of the deceased, he did not tell them anything about the occurrence. Mr. Dhal, learned Counsel appearing for the appellants, submitted that this witness has admitted that he was detained in the police-station for three days just after the dead body was recovered. He has stated 'I was at the police station for three days just after the dead body was recovered'. It was only on 24-4-1981 that he disclosed to the police about the incident. Learned Counsel further submitted that the statement of this witness was recorded Under Section 164, Cr. P.C. twice, once on 25-4-1981 and again on 30-4-1981. The I. O. (P. W. 10) has stated that he could not read the first statement of Bachhia Sahu (P. W. 9) recorded by the Magistrate as it was untraced. Though the I. O. has stated that the statement made under Section 164, Cr. P.C. was not traced, curiously enough both the statements were found in the record. Learned Counsel further submitted that though this witness has stated before the police that Sansari assaulted the deceased and carried the dead body along with his co-accused to the drain, in court he has completely given a go-bye to his above statement. Learned Counsel, therefore, argued that this witness having given a go-bye to his previous statement regarding the complicity of Sansari, whom he admits to be his cousin, his evidence should not be relied upon. Learned Counsel also pointed out that on the date of examination of this witness in court, his grandfather Arkhit was detained at the police-station for obvious reasons though no case* had been registered against him, as admitted by the I. O., P. W. 10. Learned Counsel made a grievance that the contradictions brought out in cross-examination of P. W. 9 with regard to the statements made before the I. O. and the Magistrate were not recorded properly. Instead of recording the statement made by the witness which is being contradicted, the substance thereof has been recorded. On a scrutiny of the evidence of P. W. 9 it transpires that though this witness was kept in the police-station for three days immediately after the dead body was recovered, he did not disclose anything about the incident to the police. The occurrence had taken place in the night of 17/18-4-1981. This witness did not disclose anything about the occurrence to anybody, even to his nearest relations or the father and uncle of the deceased. Assuming that out of fear he did not disclose the incident to anybody as he was threatened by the accused persons before he was taken to the police-station, there is no reason why he did not disclose the same to the police during his stay for three days in the police station. He has given a contradictory statement regarding the fact whether they were actually sleeping in the shop of Sansari or that of Jayakrushna. He also has given a complete go-bye to his statement made before the police that Sansari was involved in the crime. He is the solitary eye-witness to the occurrence. After having closely scrutinised the evidence, it is not possible to come to an unhesitating conclusion that he is absolutely reliable and his evidence is completely above board. There is no other corroboration to his statement. So, in the circumstances, it cannot be said that the prosecution has proved the case beyond reasonable doubt. Therefore, we are of the view that the appellants are entitled to the benefit of doubt.

9. Learned Counsel made a grievance that the recording of the contradiction brought out between the statements made during investigation and that made in court has not been done according to law and only the gist has been recorded. The proviso to Section 162(1) of the Criminal P.C. enables the accused to use the statement of a witness recorded by a police officer and to contradict him in the manner provided in Section 145 of the Evidence Act. The witness should first be asked whether he made such a statement before the police. If he admits, the matter ends. If he denies or pleads failure of memory or gives evasive answers, the relevant portion of his previous statement contrary to his statement in court must be recorded in order to give him an opportunity to reconcile or explain the same. Thereafter, the previous statement becomes admissible and can be proved in any proper way. The practice generally followed is to admit it subject to proof by the police officer. The matter was examined by the Supreme Court in the case of Tahasildar Singh v. State of U.P. : 1959CriLJ1231 wherein it has been observed:

The procedure prescribed for contradicting a witness by his previous statement made during investigation is that, if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him. The proviso to Section 162 only enables the accused to make use of such statement to contradict a witness in the manner provided by Section 145 of the Evidence Act. It would be doing violence to the language of the proviso if the said statement be allowed to be used for the purpose of cross-examining a witness within the meaning of the first part of Section 145 of the Evidence Act. The argument that it would not be possible to invoke the second part of Section 145 of the Evidence Act without putting relevant questions under the first part thereof cannot be accepted. The second part of Section 145 of the Evidence Act clearly indicates the simple procedure to be followed. To illustrate ;; A says in the witness-box that B stabbed C, before the police he had stated that D stabbed C. His attention can be drawn to that part of the statement made before the police which contradicts his statement in the witness-box. If he admits his previous statement, no further proof is necessary; if he does not admit, the practice generally followed is to admit it subject to proof by the police officer.

xx xx xx

Section 145 of the Evidence Act indicates the manner in which contradiction is brought out. The cross-examining counsel shall put the part or parts of the statement which affirms the contrary to what is stated in evidence. This indicates that there is something in writing which can be set against another statement made in evidence. If the statement before the police officer and the statement in the evidence before the Court are so inconsistent or irreconcilable with each other that both of them cannot co-exist, it may be said that one contradicts the other.

xx xx xx

To sum up : (1) A statement in writing made by a witness before a police officer in the course of investigation can be used only to contradict his statement in the witness box and for no other purpose; (2) statements not reduced to writing by the police officer cannot be used for contradiction; (3) though a particular statement is not expressly recorded, a statement that can be deemed to be part of that expressly recorded can be used for contradiction, not because it is an omission strictly so called but because it is deemed to form part of the recorded statement; (4) such a fiction is permissible by construction only in the following three cases; (i) when a recital is necessarily implied from the recital or recitals found in the statement; illustration : in the recorded statement before the police the witness states that he saw A stabbing B at a particular point of time, but in the witness box he says that he saw A and C stabbing B at the same point of time; in the statement before the police the word 'only' can be implied i.e. the witness saw A only stabbing B; (ii) a negative aspect of a positive recital in a statement; illustration : in the recorded statement before the police the witness says that a dark man stabbed B, but in the witness box he says that a fair man stabbed B; the earlier statement must be deemed to contain the recital not only that the culprit was a dark complexioned man but also that he was not of fair complexion, and (iii) when the statement before the police and that before the Court cannot stand together; illustration : the witness says in the recorded statement before the police that A after stabbing B ran away by a northern lane, but in the Court he says that immediately after stabbing he ran away towards the southern lane; as he could not have run away immediately after the stabbing, i.e., at the same point of time, towards the northern lane as well as towards the southern lane, if one statement is true, the other must necessarily be false.

The aforesaid examples are not intended to be exhaustive but only illustrative. The same instance may fall under one or more heads. It is for the trial Judge to decide in each case, after comparing the part or parts of the statement recorded by the police with that made in the witness-box, to give a ruling, having regard to the aforesaid principles, whether the recital intended to be used for contradiction satisfied the requirements of law.

So in view of the provisions of S- 162, Cr. P.C. and Section 145 of the Evidence Act and the decision of the Supreme Court it is absolutely clear that the Court should faithfully record the contradictions brought out in the evidence of the witnesses and there is no question of recording the gist of the statement which will create more confusion than serving the purpose for which clear provisions have been made in the law.

10. After considering the facts and circumstances of the case, the argument of both sides we are of the view that the appeal should be allowed. Therefore, the conviction and sentence passed against the appellants are set aside. They be set at liberty forthwith.

K.P. Mohapatra, J.

11. I agree.


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