Sukumaran and Others Vs State of Kerala

V. Ramkumar, J.@mdashThe four Appellants herein who were the accused in S.C. 79/2000 on the file of the Fast Track Court (Adhoc) II, Kottayam were charge-sheeted by the Dy.S.P. of Police, Narcotic Cell, Kottayam (P.W. 16) for an offence punishable u/s 302 r/w Section 34 I.P.C.

2. The case of the prosecution can be summarised as follows:

On 7-2-1997 at or about 6.45 p.m. at Ayamkudy Kara in Muttuchira Village of Vaikom Taluk in Kottayam District, the 4th accused came driving his goods autorickshaw (pick-up auto) bearing Reg. No. KL-5/B 9756 along with A-1 to A-3 in the said goods carrier and pulled up in front of Marangattil House of the deceased namely, Sathyadevan @ Sahadevan @ Sahadi aged 42 years. The deceased was the driver of a mini lorry. A-2 straight away went over to the deceased who was sitting along with P.W. 2 in the veranda of his house. A-2 caught hold of the deceased by the tuck of his dhoti and dragged him on to the Ezhumanthuruthu-Kapola road in front. The deceased picked up the soda bottle on the parapet of his house. Seeing this A-2 went and picked up a soda bottle from the adjacent grocery shop run by Rajamma (P.W.7), the wife of the deceased and came on to the road. From the southern mud road (road margin) in front of the aforesaid grocery shop, A-2 struck the deceased on the head with the soda bottle. Then Sahadevan also hit A-2 on the head with the soda bottle in his hand and inflicted an injury. Seeing this A-3 sprinkled chilly powder in the eyes of the deceased. The chilly powder got into the eyes of the deceased stood there with both hands held against his face and rubbing his eyes. A-1 then exhorted his companions to cut Sahadevan to death. Thereupon A-2 drew a chopper from inside his shirt and cut the deceased on his head inflicting injuries. A-3 stabbed the deceased on his right arm with a knife inflicting injury. A-4 then cut the deceased on the back of his head with a chopper. Deceased Sahadevan who fell on the road was taken by P.Ws. 1,2 and 8 to the Kottayam Medical College Hospital. The deceased who had become unconscious on account of the injuries sustained by him succumbed to the same at 2.10 p.m. on 8-2-1997. Since the aforesaid acts were done by A-l to A-4 in prosecution of their common intention to do so, the accused persons have committed the offence of murder punishable u/s 302 r/w Section 34 I.P.C.

3. On the accused pleading not guilty to the charge framed against them by the court below for the aforementioned offence, the prosecution was permitted to adduce evidence in support of its case. The prosecution examined 16 witnesses as P.Ws. 1 to 16 and got marked 17 documents as Exts.P-1 to P-17 and 8 material objects as M.Os. 1 to 8.

4. After the close of the prosecution evidence the accused were questioned u/s 313(1)(b) Code of Criminal Procedure with regard to the incriminating circumstances appearing against them in the evidence for the prosecution. They denied those circumstances and maintained their innocence. They admitted that Exts.P-16 and P-17 are the wound certificates pertaining to A-2 and A-3 respectively.

5. When called upon to enter on their defence, the accused examined the Secretary of the Ayamkudy Branch of K.P.M.S. as D.W. 1. In the written statement filed u/s 233(2) Code of Criminal Procedure the 2nd accused stated as follows:

He was travelling in the pick-up'' autorikshaw of A-4 for loading jack fruits from the property of K.P.M.S. situated to the west of the place of occurrence. When they reached the place of occurrence, the autorickshaw driven by his brother A-3 came from the opposite direction. Both the autorickshaws stopped and the brothers were talking with each other. When the engines of the autorickshaws were throttled, the deceased picked up a quarrel with them alleging that they had let smoke from the exhaust on him and he called abusive words. There was an altercation between A-2 and the deceased. The deceased came with a soda bottle and hit him on his head. The deceased was also having a knife and he apprehended that the deceased would kill him. Himself the deceased and A-3 rolled on the ground and grappled with each other. Himself and A-3 somehow or other escaped from the scene and ran away.

6. The learned Sessions Judge after trial, as per Judgment dated 25-2-2003, found the Appellants guilty of the offence charged against them and sentenced them each to undergo life imprisonment and to pay a fine of Rs. 20,000 and on default to pay the fine, to suffer rigorous imprisonment for three years. The fine amount as and when realised was directed to be paid to the legal heirs of the deceased. Set off u/s 428 Code of Criminal Procedure was also allowed. It is the said Judgment which is assailed in this appeal.

7. We heard Advocate Sri S. Vijayakumar appearing for A-1 to A-3, Advocate Sri Section Radhakrishnan appearing for A-4 and Smt. Noorjie Noushad, the learned Public Prosecutor.

8. The learned Counsel appearing for the Appellants made the following submissions before us in support of their fervent plea for acquittal of the Appellants:

P.W. 1 who is not an occurrence witness is the first informant. He has materially deviated from Ext. P-1 F.I. Statement when examined before court. P.W. 2 who is an occurrence witness committed a mistake in identifying A-2 and A-3 and was declared hostile by the prosecution. P.W. 3 who is another occurrence witness was also declared hostile to the prosecution. The only other occurrence witnesses who supported the prosecution were P.Ws. 7 and 8 who are none other than the wife and son of the deceased, and, therefore, interested witnesses. Going by their evidence, there should have been four separate cut injuries on the head of the deceased. But Ext. P-12 post-mortem certificate shows only three injuries on the head of the deceased. A-1 has been arrayed as an accused with the aid of Section 34 I.P.C. by alleging that he made an exhortation to kill the deceased. There is absolutely no other overt act attributed to A-1 who was a non-performing accused. Hence A-l could not be convicted on the basis of mere exhortation in view of the decisions in Suresh and Another Vs. State of U.P., , Hem Raj, etc. Vs. Raja Ram and Others, . Similarly, there is no acceptable evidence to prove the complicity of A-4 in the occurrence. The stand of P.W. 7 when examined by the police u/s 161(3) Code of Criminal Procedure and by the Magistrate u/s 164 Code of Criminal Procedure was that A-4 cut the deceased on the back of his head with a chopper. But after seeing the wound certificate she modulated her evidence before court to say that A-4 hit the deceased on the back of his head with some object which was not sharp. But Ext. P-12 post-mortem certificate does not show any corresponding injury on the back of the head of the deceased. P.W. 2, who is the independent witness to the occurrence admitted that his knowledge about A-4 cutting with a chopper was only hearsay and he does not know what A-4 did except that when the crowd became thin after the occurrence, A-4 drove away the autorickshaw in which he had brought A-1 to A-3. P.W. 3 the other independent occurrence witness also says that A-4 drove away the pick-up autorickshaw. The prosecution evidence against A-2 and A-3 who are the sons of A-1 is also unworthy of credence. No doubt, their presence at the scene of occurrence is admitted and both had injuries on their body as evidenced by Exts. P-16 and P-17. The deceased was a well-built person of robust health. Going by the evidence of P.W. 2 and others it was the deceased who first hit A-2 on the head with the soda bottle. It is in evidence that it was the deceased who first picked up the quarrel due to the smoke emanating from the autorickshaws driven by A-3 and A-4. In the push and pull which followed, the deceased might have taken out a knife as alleged by the defence and might have himself got injured in the course of the grapple that ensued which explains the injuries on A-2 and A-3. There is no evidence to the effect that the powder which was allegedly sprinkled by A-3 was chilly powder. It was not subjected to chemical examination. Ext. D-5 is the wound certificate of the deceased marked with the consent of the Public Prosecutor. It mentions that the injuries were sustained in an assault by a known person. The doctor has noted only four lacerated injuries in Ext. D-5. There is not a single incised injury in Ext. D-5. Ext.P-12 post-mortem certificate shows as many as two incised injuries. Ext. P-8 inquest report prepared by P.W. 14 shows an ''L'' shaped injury in the place of injury No. 1 in Ext. P-12 post-mortem certificate. But the post-mortem certificate does not describe the said injury as the ''L'' shaped injury. It could have been a surgical wound or some injury sustained from the Medical College Hospital by a fall from the hospital bed or something like that. Mysteriously the case sheet of the deceased was not available in the Medical College Hospital at Kottayam. There is the fatal flaw of non-supply of the statements of the material witnesses recorded u/s 161(3) by P.W. 14 and P.W. 15 who conducted the investigation prior to P.W. 16. This has resulted in extreme prejudice to the Appellants in shaping their defence. P.W. 16, the Dy.S.P. has admitted in unmistakable terms that the statements recorded by P.Ws. 14 and 15 have also not been produced before court nor copies furnished to the accused and that the C.D. file maintained by P.Ws. 14 and 15 has not been produced. According to P.W. 15, consequent on his discovery that the statements of the witnesses when questioned by him were at variance with the statement recorded by P.W. 14 he recommended the recording of Section 164 statement by the Magistrate. P.W. 2 would admit that the statement given by him to the Magistrate under 164 Code of Criminal Procedure was as requested by the police. The 161 statement recorded by P.W. 16 and produced before court was after a span of 2� years. The failure to produce the earlier 161 statements of the material witnesses, by itself is prejudice and vitiates the trial. The Appellants rely on the decisions in State of Kerala Vs. Raghavan etc., , State of Kerala Vs. Thomas Cherian and Others, , Murali Vs. State of Kerala, and Balachandran Pillai v. State of Kerala 2005 (1) K.L.J. 428.

9. The learned Public Prosecutor submitted that the investigation conducted by P.W. 14 was dishonest and unfair and that was why the investigation had to be entrusted with P.W. 16, a superior officer and 161 statements recorded by P.W. 16 of all the material witnesses and also the 164 statements recorded by the Magistrate had been produced before court and copies furnished to the Appellants. P.W. 15 while questioning the witnesses noted that their statements recorded by P.W. 14 did not reflect what the witnesses had stated to P.W. 15 and therefore he had insisted on the recording of the 164 statement of those witnesses by the appropriate Magistrate. The Appellants have not been able to make out any prejudice and the trial court has also found that no prejudice has been proved by the Appellants. Even where there is a non-supply of statements recorded u/s 161 Code of Criminal Procedure that by itself cannot constitute prejudice and it cannot vitiate the trial also. It is now well-settled that defects or illegalities committed by the investigating officer cannot go to the advantage of the accused. The testimony of P.Ws. 2,3,7 and 8 clearly proves the complicity of the Appellants. P.Ws. 7 and 8 are the most natural and probable witnesses who would have seen the occurrence. The conviction entered and the sentence passed against the Appellants do not call for any interference.

10. While in the case of accused numbers 1 and 4 we see considerable force in the submissions made on their behalf, we are afraid that we find ourselves unable to agree with the contentions put forward on behalf of accused numbers 2 and 3.

11. The picture unfolded by the prosecution evidence is the following:

The occurrence took place on 7-2-1997 at about 6.45 p.m. in a remote countryside called Ayamkudy in Muttuchira Village within the limits of Kaduthuruthy Police Station. It is in Vaikom taluk of Kottayam District. The house (Marangattil Veedu) of Sathyadevan @ Sahadevan @ Sahadi (the deceased) is situated to the south of Ezhumanthuruthu-Kapola road which runs east-west. The Kapola junction is about 80 kms. to the east of the house of the deceased. P.W. 1 (Raju) who is the younger brother of the deceased is running a tea shop to the north of the aforesaid road at Kapola junction. The deceased was the driver of a mini lorry (tempo lorry). Immediately to the west of the house of the deceased and separated by a common dividing wall his wife Rajamma (P.W.7) is running a grocery shop. The exact scene of occurrence is the southern mud road (road margin) of the Ezhumanthuruthu-Kapola road in front of the aforementioned grocery shop of P.W. 7 (Rajamma). On the other side (northern side) of the said road is the property of one Sebastian. A-1 who was aged 61 years is the father of A-2 and A-3. A-1 to A-4 are all residents of that locality. The deceased was aged 43 years at the time of occurrence. P.W. 2 (Ayyappan Nair) who is a head load worker was at the relevant time working as a cleaner in the mini lorry driven by the deceased. Some time before the occurrence, while the tempo lorry driven by the deceased was giving side for the autorickshaw driven by A-3, there was a brawl between A-3 and the deceased over the smoke emanating from the tempo lorry allegedly on to the face of A-3. (This is spoken to by P.Ws. 1 and 7). It was this incident which constitutes the motive for the occurrence. By about 6.30 p.m. on 7-2-1997, the deceased and his Cleaner P.W. 2 after their day''s work returned to the house of the deceased at Ayamkudy. After parking the tempo lorry on the eastern side of his house, the deceased was taking rest in the front veranda of the house and P.W. 2 was also by his side. The deceased drank a soda given by his wife (P.W. 7) who runs the adjacent grocery shop. Then an autorickshaw driven by A-3 came from east and after slowing down in front of the veranda of the house of the deceased, the three-wheeler went past the house of the deceased and proceeded towards west. Within two minutes the said autorickshaw was seen coming back and it sped eastwards towards Kapola Junction. Five minutes after the departure of the said autorickshaw a pick-up autorickshaw carrying A-1 to A-3 and driven by A-4 came from the direction of Kapola junction on the west and stopped in front of the house of the deceased. A-2 jumped out of the said autorickshaw and quickly went over to the deceased who was still on the veranda of his house. Asking the deceased "will you not allow us to live?" A-2 caught hold of the tuck of the dhoti worn by the deceased and pulled him and dragged him on to the courtyard abutting the road. A-2 was also abusing the deceased in filthy language. The deceased dealt a blow on the head of A-2 with the soda bottle in his hand. Thereupon A-2 ran to the nearby grocery shop of P.W. 7, picked up a soda bottle and struck the deceased on his head. By that time, the deceased was on the southern road margin in front of the grocery shop run by his wife P.W. 7. A-3 then threw some chilly powder on the face of the deceased evidently to disable the deceased. Shaking his head the deceased held both his hands against his face and started rubbing his eyes. At this juncture, A-2 pulled out M.O. 1 chopper from inside his shirt and inflicted two cut injuries on the head of the deceased. A-3 stabbed the deceased with M.O. 2 knife which struck the arm of the deceased. A-4 cut the deceased on the back of his head with a flat weapon. A-1 was heard shouting to his companions exhorting them to cut the deceased to death. After sustaining the above injuries, when the deceased collapsed and slumped to the ground, A-1 to A-3 ran away towards Kapola junction on the east and A-4 drove away the pick-up autorickshaw in the western direction. The deceased who was taken to the Medical College Hospital, Kottayam, breathed his last at about 2.10 p.m. on the next day. P.W. 2 who was in the company of the deceased, P.W. 3 (Asokan) who was cutting laterite stones in the northern property of Sebastian on the side of the road, P.W. 7 (Rajamma), wife of the deceased and 20 year old P.W. 5 (Manoj) the son of the deceased are the occurrence witnesses. Apart from the twilight of approaching dusk there was also streetlight and the lights of the electric bulbs in the grocery shop and the house of the deceased.

12. It is true that there are some contradictions, exaggerations and omissions in the testimony of the above witnesses. But those features are the hallmarks of truth in contradistinction to the parrot-like and stereotyped testimony of tutored witnesses. It is a judicially accepted fact that in this country one rarely comes across the testimony of a witness which does not have a fringe or embroidery of untruth. As long as the core of the evidence of a witness has a ring of truth courts ignore such minor exaggerations or discrepancies See State of U. P. Vs. Shanker, . The ordinary presumption is that a witness speaking under an oath is truthful unless and until he is shown to be untruthful or unreliable in any particular aspect. Witnesses solemnly deposing on oath in the witness box during a trial on a grave charge of murder must be presumed to act with a sense of responsibility of the consequences of what they state. See The State of Punjab Vs. Hari Singh and Another, and Pralhad Vs. State of Maharashtra, . The witnesses in this case are rustic villagers who cannot be expected to possess a photographic memory so as to recall every minute details of an incident witnessed by them more than three years prior to their examination before court. The powers of observation, registration, retention and recapitulation differ from person to person. What one person may notice may go unnoticed by another. While witnesses may recall the main and striking part of the conversation, they may not remember the insignificant part of the conversation. Same is the case with their narration of the overt acts of the participants of a crime. It will be wholly unrealistic to expect a witness to be a human tape recorder.

13. It is true that P.Ws. 7 and 8 are none other than the wife and son of the deceased. But it is uncharitable to call them interested witnesses. The occurrence was taking place right in front of the grocery shop run by P.W. 7 who was assisted by her son P.W. 8. Hence P.Ws. 7 and 8 are the most natural witnesses who in the normal course of events could not be expected to miss the occurrence taking place there. Hence their evidence cannot be discarded merely on the ground that they are related to the deceased. See Vashisht Narain Karwaria Vs. State of U.P. and another, Surajdeo Yadav v. State of Bihar 1996 Crl.L.J. 2302, and Ram Gopal Vs. State of Rajasthan, . No doubt, P.W. 2 was declared hostile by the prosecution. But that was only in view of the fact that he made a genuine mistake in mentioning the names of A-2 and A-3 who are brothers. Barring that, his evidence regarding the overt acts attributed to A-2 and A-3 has not been shaken. Same is the case with P.W. 3. Absolutely no sort of motive has been attributed to any of the occurrence witnesses so as to falsely implicate the accused persons and screen the real culprits, if any.

14. When it was A-2 who assaulted the deceased first and it was none other than A-2 who took out M.O. 1 chopper kept concealed on his person and inflicted the fatal cut injuries on the deceased, the argument that the deceased was the aggressor and the deceased took a knife and there was a scuffle for the knife is untenable.

15. Equally untenable is the contention based on the difference in the description of the injuries in Ext. D-5 wound certificate, Ext.P-8 inquest report and Ext. P-12 post-mortem certificate. It is true that Ext. D-5 wound certificate of the deceased shows only four lacerated injuries on the head of the deceased. But it should not be forgotten that the deceased was brought to the Medical College Hospital, Kottayam almost in a moribund state and was unconscious. If in that condition the doctor who examined him did not take care to give a meticulous description of the injuries in the wound certificate of the sinking person that does not mean that the deceased had only lacerated wounds which got transformed into incised injuries while undergoing treatment in the Medical College Hospital. The mention or non-mention in the wound certificate about the names of the assailants is also not decisive. The duty of the doctor is to save the patient. He is not concerned about who committed the offence. He is not expected to elicit from the injured or from those who brought him there about the identity of the actual assailants. His enquiry would be confined to the ascertainment of the manner in which the injured or the deceased received the injuries and the weapons, if any, used, see Pattipati Venkaiah Vs. State of Andhra Pradesh, , P. Babu and Ors. v. State of A.P. 1994 S.C.C. 424 and State of Kerala v. Kilakkatha Parambath Sasi 2004 (2) K.L.J. 606. Similarly, inquest is held by the police officer for ascertaining the apparent cause of death [see Pedda Narayana and Others Vs. State of Andhra Pradesh, . Hence the description of the injuries in the inquest report by the investigating officer who is not a qualified medical practitioner cannot be the last word. In a similar situation where the injuries in the inquest report and post-mortem certificate did not tally, the Apex Court did not attach much importance to the same and even observed that the admissibility of inquest report except u/s 145 of the Evidence Act, was questionable [vide Pandurang, Tukia and Bhillia Vs. The State of Hyderabad, . It is true that the ''L'' shaped injury noted in Ext. P-8 inquest report does not find a place in Ext. P-12 post-mortem certificate. But on a comparison of the injuries in Exts. P-8 and P-12 it can easily be concluded that the ''L'' shaped injury described as injury No. 2 in Ext. P-8 can only be injury No. 1 in Ext. P-12 post-mortem certificate. It is pertinent in this connection to note that P.W. 14 who held the inquest over the dead body of the deceased was found to be a dishonest officer from whom the investigation was directed to be taken over by the Dy. S.P. (P.W. 15) and the services of P.W. 14 had been terminated by the Government. Hence much weight cannot be given to his description of the inquiry in Ext. P-8 inquest report. In fact, this officer had described P.W. 1 as an occurrence witness in Ext. P-1 F.I. statement and P.W. 1 had disowned that part of Ext. P-1 statement. It is in evidence that there had been mass petitions against P.W. 14 to the higher-ups in the police and also to the Chief Minister which ultimately culminated in his removal from service after departmental enquiry in which there was an allegation that he had been helping the accused persons in this case during the course of his investigation. Dr. T.V. Velayudhan who conducted the autopsy had retired from service and was not available for examination and it was P.W. 13 (Dr.P. Babu) who was familiar with his signature and handwriting who proved Ext. P-12 post-mortem certificate. The case sheet pertaining to the deceased could not be traced also. There is nothing to show that the case sheet was deliberately withheld. Going by the decision reported in Kamaljit Singh Vs. State of Punjab, , the non-production of the case sheet does not by itself cast any shadow of doubt on the veracity of the prosecution case. But in the face of the ocular testimony of P.Ws. 2, 3, 7 and 8 to the effect that it was A-2 who inflicted the fatal injuries on the head of the deceased with M.O. 1 chopper and his brother A-3 also acted in full concert attacking the deceased with M.O. 2 knife, the contention that the benefit of the discrepancies in the ocular and medical evidence should be given to the accused is not entitled to acceptance. 6.45 p.m. was not too dark for the witnesses to identify the assailants particularly when light was enough for the assailants to identify and attack their victim see State of U.P. v. Nihar Singh 1998 S.C.C. 850. There cannot be complete darkness even at 7 p.m. vide Kommu Vinja Rao v. State of U.P. 1998 S.C.C. 954. It is a legally accepted position that even on a full dark night there is never total darkness and identification is possible through shape of body, clothes, gait, manner of walking, voice etc. see Kedar Singh v. State of Bihar 1998 S.C.C. 907.

16. The position of accused Nos. 1 and 4 is, however, on a different footing. A-1 is the aged father of A-2 and A-3 and going by the evidence of all the occurrence witnesses A-1 was a total non performer. He was sought to be roped in with the aid of Section 34 I.P.C. by alleging that he had exhorted his sons and A-4 to cut the deceased to death. The mere presence of A-l at the scene of crime without committing any overt act whatsoever cannot make him vicariously liable for the overt acts of A-2 and A-3. Going by the testimony of the occurrence witnesses it was A-4 who inflicted the last cut. What P.W.8 has stated is that after A-4 gave the cut with a flat, blunt weapon, A-1 exhorted his companions to cut the deceased to death. When the infliction of the injuries on the body of the deceased was already accomplished before the aforesaid exhortation by A-1, as held in Mohan Singh v. State of M.P. 1999 S.C.C. 261, A-1 is entitled to the benefit of doubt. The complicity of A-4 is also not proved beyond reasonable doubt. His main role was to bring A-1 to A-3 in his pick-up autorickshaw. The evidence of D.W. 1 examined by the defence shows that A-4 had been entrusted with the work of collecting the jack fruits plucked from the compound of KPMS situated further to the west of the scene of occurrence for being sold in the market. So A-4 had a reason to pass through the road in front of the scene of crime and it so happened that A-1 to A-3 also travelled in that autoritkshaw. Going by the evidence of the eye-witnesses A-2 had hit the deceased on the head with a soda bottle and P.W. 13 (doctor) has opined that injury No. 1 in Ext. P-12 post-mortem certificate could be caused if the deceased were to be hit by a soda bottle. As per the ocular evidence, thereafter A-2 cut the deceased twice on his head with M.O. 1 chopper and lastly A-4 also cut the deceased on the head with another chopper. But in Ext. P-12 post-mortem certificate there are only two incised injuries on the head and P.W. 13 deposed that they could be inflicted with M.O. 1 chopper. There is no fourth injury on the head of the deceased. This means that the oral testimony that A-4 cut the deceased on the head with a chopper does not appear to be convincing. No chopper also was recovered at the instance of A-4. In fact, the original version that A-4 cut with a chopper was given a go bye to say that A-4 cut with some flat weapon. The non-recovery of any weapon at the instance of A-4 and the conduct of A-4 in driving the pick-up autorickshaw westwards after the occurrence presumably to honour his commitment to K.P.M.S people, persuade us to conclude that the conviction entered against A-4 was not warranted.

17. We will now take up for consideration the contention based on the non-supply of 161 statements recorded by P.W. 14 and P.W. 15 who conducted the earlier investigation of the case. It is true that P.W.I 6 admitted during his cross-examination that the statements of material witnesses recorded by P.Ws. 14 and 15 have not been produced before court and their copies have not also been furnished to the accused. But as mentioned earlier there had been serious allegations against P.W. 14 that he was not conducting an impartial and honest investigation and his services were even terminated by the Government. The investigation was thereafter entrusted with the Dy. S.P., Pala (P.W. 15). Since he found that the statements recorded by P.W. 14 and statements given to him by the material witnesses were at variance, he took the precaution of recommending the recording of Section 164 statement by the Magistrate and gave a report to that effect before the committal Magistrate. Accordingly, the statements of the material witnesses were recorded by another Magistrate u/s 164 Code of Criminal Procedure P.W. 16 (Dy. S.P.) questioned all the material witnesses and recorded their statements on 5-5-1999 and all those statements have been produced before Court and copies furnished to the accused. The trial court has specifically found that no prejudice has been caused to the accused on account of the non-supply of the earlier statements of the material witnesses recorded by P.W. 14. The trial court has also found that the benefit of the illegality committed by P.W. 14 cannot go to the accused. We fully endorse the said view. The conclusion to be reached by the Criminal Court cannot be allowed to depend solely on the probity of the investigation. Even if the investigation is illegal or even suspicious, the rest of the evidence must be scrutinised independently of the impact of the illegalities in the investigation. See State of Rajasthan Vs. Kishore, , and State of Karnataka v. Yarappa Reddy 1999 (3) KLT 456 (S.C.).

18. A police officer conducting an investigation of a case involving the alleged commission of a cognizable offence has a right u/s 161(1) Code of Criminal Procedure to examine orally any person (including the accused) supposed to be acquainted with the facts and circumstances of the case Section 161(2) Code of Criminal Procedure obliges every such person to answer truly all relevant questions put to him by such police officer subject, of course, to the exception mentioned therein. Such police officer has a discretion to reduce into writing or not to reduce into writing any statement made by such person. But, if he decides to reduce such statement into writing, then Section 161(3) Code of Criminal Procedure obliges him to make a separate and true record of such statement. Thus the law expects honesty not only on the part of the examining/interrogating police officer but also on the part of the examinee witnesses. In the case of an examining police officer, by virtue of illustration (e) to Section 114 of the Evidence Act, the court may even presume that the official acts have been regularly performed. But it is our experience that there are police officers who make false record of statements of persons even without examining them and there are also witnesses who dishonestly deny that they were examined (questioned or interrogated) by the police and their statements taken. It is in this region that the task of the court becomes more difficult. Where, after the conclusion of investigation, the Investigating Officer considers the evidence collected during investigation sufficient, within the meaning of Section 170 Code of Criminal Procedure, to place the accused for trial, Clause (b) of Section 173(5) Code of Criminal Procedure enjoins him to forward along with the Police Report (charge-sheet or chalan), the statements recorded u/s 161 of all the persons whom the prosecution proposes to examine as its witnesses. Similarly, Section 207(iii) Code of Criminal Procedure casts a corresponding obligation on the Magistrate to furnish to the accused, free of cost, copies of such statements recorded u/s 161(3) Code of Criminal Procedure Sections. 173(4) and 207(iii) were the corresponding provisions in the Code of Criminal Procedure in which those provisions were inserted by means of Amending Act 26 of 1955.

19. The only use which a statement recorded u/s 161(3) Code of Criminal Procedure can be put to is indicated by Section 162 Code of Criminal Procedure Such statement should not be signed by the maker and can be used only for the purpose of contradicting the maker in the manner provided u/s 145 of the Evidence Act. While the accused can use it for contradicting the prosecution witness without the permission of the court the prosecution can use it for the said purpose only with the permission of the court. But such statement, unlike other previous statements, cannot be used for the purpose of corroboration u/s 157 of the Evidence Act. However, when any part of the statement has been used for contradicting the witness, any part thereof can also be used during the re-examination of the witness but for the sole purpose of explaining any matter referred to in his cross-examination. During the course of trial, when a prosecution witness deviates from his Section 161 statement, the Public Prosecutor very often seeks permission of the Court to declare the witness as hostile. Code of Criminal Procedure does not envisage a witness being declared hostile. When the court grants permission to the Public Prosecutor, such permission is really one granted under the proviso to Section 162(1) Code of Criminal Procedure to confront the witness with his 161 statement and a further permission granted u/s 154 of the Evidence Act to the Public Prosecutor to put to his own witness questions which might be put in cross-examination by the adverse party. It may be useful for trial Magistrates and Sessions Judges to note that the legalistic way of recording such permission in the deposition of the witness would be to write "P.P. granted permission under Sections 162 Code of Criminal Procedure and Section 154 Evidence Act". This, in short, is the mechanics of the above provisions during the course of trial in a court room.

20. The object of Sections 162, 173(5)(b) and 207(iii) Code of Criminal Procedure is to enable the accused to obtain a clear picture of the case against him before the commencement of the trial. The right given to the accused by the aforesaid provisions of law is a very valuable one and often provides important material for cross-examination of the prosecution witnesses. However slender the material for cross-examination may seem to be, it is difficult to guage its possible effect. Minor inconsistencies in his statements may not embarrass a truthful witness, but may cause an untruthful witness to prevaricate and may lead to the ultimate rejection of the whole of his evidence. See Pulukkuri Kottaya v. Emperor AIR 1947 P.C. 67. The above provisions are thus geared to achieve the object of giving the accused the fullest information (In the possession of the prosecution) on which the case of the State is based.

21. Even though "both Sections 173(5) and 207 Code of Criminal Procedure employ the expression "shall" it is now well-settled that it is only directory and not mandatory, Vide Narayan Rao Vs. The State of Andhra Pradesh, , What is the effect of non-compliance of the above provision and the consequent non-supply to the accused of the statements recorded u/s 161 Code of Criminal Procedure In Pulikkuri Kottaya''s case it was observed by the Privy Council that where the court had refused to supply to the accused copies of the statements made by the witnesses to the police, an inference, which is almost irresistable, arises of prejudice to the accused. The Three Judges Bench of the Supreme Court in Noor Khan Vs. State of Rajasthan, observed as follows:

But we are not prepared to hold that non-compliance with those provisions has, necessarily, the result of vitiating those proceedings and subsequent trial. The word "shall" occurring both in Sub-section (4) of Section 173 and Sub-section (3) of Section 207 is not mandatory but only directory, because an omission by a police officer, to fully comply with the provisions of Section 173, should not be allowed to have such a far-reaching effect as to render the proceedings including the trial before the Court of Sessions, wholly ineffective.

In a subsequent verdict of the Supreme Court, also by a Bench consisting of three judges in Noor Khan Vs. State of Rajasthan, , the Court observed as follows:

But failure to furnish statements of witnesses recorded in the course of investigation may not vitiate the trial. It does not affect the jurisdiction of the court to try a case, nor is the failure by itself a ground which affects the power of the court to record a conviction, if the evidence warrants such a course. The provision relating to the making of copies of statements recorded in the course of investigation is undoubtedly of great importance, but the breach thereof must be considered in the light of the prejudice caused to the accused by reason of its breach, for Section 537 of the Code of Criminal Procedure provides, amongst other things that subject to the provisions contained in the Code no finding, sentence or order passed by a court of competent jurisdiction shall be reversed or altered on account of any error, omission or irregularity in the complaint, summons, warrant, proclamation, or judgment or other proceedings before or during trial or in any inquiry or other proceedings under the Code, unless such order, omission, irregularity or misdirection has in fact occasioned a failure of justice. By the Explanation to Section 537 it is provided, that in determining whether any error or omission or irregularity in any proceedings under the code has occasioned a failure of Justice, the court shall have regard to the fact whether the objection could and should'' have been raised at an earlier stage in the proceeding.

The provisions of the 1973 Code of Criminal Procedure corresponding to Sections 162, 173(4) and 207(3) of the Code are Sections 162, 173(5)(b) and 207(iii). Similarly, the provision in the present Code corresponding to Section 537 of the old code is Section 465. After referring to the observation in Pulukkuri Kottayya''s case that almost an irresistible inference of prejudice arises, the apex court in Noor Khan''s case observed as follows:

However strong the inference may be, failure to supply copies will not by itself render trial illegal.

It was again observed thus:

In the present case what could be regarded as statements recorded u/s 161(3) were never supplied to the accused but on that account the principle applicable to the significance of deprivation of the statutory right is not different.

Still later a two Judges'' Bench in Narayan Rao Vs. The State of Andhra Pradesh, following Noor Khan''s case observed in paragraphs 13 and 27 that mere non-supply of copies of statements would not per se cause prejudice and the court has to give a definite finding of the prejudice or otherwise. Subsequently in Sunitha Devi v. State of Bihar AIR 2004 S.C.W. 711 it is observed as follows:

The effect of non-supply of copies has been considered by this Court in Noor Khan Vs. State of Rajasthan, and Smt. Shakila Abdul Gafar Khan Vs. Vasant Raghunath Dhoble and Another, . It was held that non-supply is not necessarily prejudicial to the accused. The court has to give a definite finding about the prejudice or otherwise.

22. What emerges from the above decisions is that non-supply of statements recorded u/s 161(3) Code of Criminal Procedure by itself cannot amount to prejudice, nor will it vitiate the trial. Prejudice is a mental decision based on grounds other than reason or justice or a premature or adversely biased opinion or a detriment or injury or harm arising from a hasty or unfair judgment or a judgment favourable or unfavourable formed beforehand or without due examination. The question of prejudice is ultimately one of inference from of the facts and circumstances of each case Moseb Kaka Chowdhry alias Moseb Chowdhry and Another Vs. The State of West Bengal, . It is not enough merely to allege that the accused has suffered prejudice. It should further be pointed out as to how or in what manner the accused has suffered prejudice. Even where prejudice has been made out in a given case, the decision in Narayan Rao''s cause Supra) has indicated the course which the court may adopt:

Certainly, if it is shown, in a particular case on behalf of the accused persons that the omission on the part of the police officers concerned or of the Magistrate before whom the committal proceedings had pended, has caused prejudice to the accused in the interest of justice, the Court may re-open the proceedings by insisting upon full compliance with the provision of the Code.

In Noor Khan''s case also it has been observed as follows:

...and where the circumstances are such that the court may reasonably infer that prejudice has resulted to the accused from the failure to supply the statements recorded u/s 161, the court would be justified in directing that the conviction be set aside and in a proper case to direct that the defect be rectified in such manner as the circumstances may warrant.

In the case on hand there is no proof of prejudice due to the alleged non-supply of the statements recorded by P.W. 14.

23. In the light of the aforesaid pronouncement of the law by the apex court, the earlier decisions of this Court cited at the Bar by the learned Counsel for the Appellants holding that non-supply of statements is itself prejudice and vitiates the trial, may not be reflective of the true statement of the law. It is true that the expanded horizon of the concept of "right to life" enshrined in Article 21 of the Constitution of India had not been discovered in the early two and a half decades of the adoption of the Indian Constitution. The various facts of the rights of human beings in every conceivable situations of life have since been perceived and brought to light through the painstaking labour of the legal fraternity. The concept of "fair trial" and "fair procedure" in the dispensation of justice was certainly different in the formative period of our constitution from what it is today. But in spite of that, we cannot fail to notice the binding declaration of the law by the Apex Court even in its recent pronouncements adverted to above upholding the legal position stated in Narayan Rao Vs. The State of Andhra Pradesh, and Noor Khan Vs. State of Rajasthan, . For the reasons already indicated we are unable to uphold the contentions on behalf of the Appellants that the non-supply of the statements recorded by RW.14 has caused prejudice to the accused. In fact, the accused were furnished with the statements recorded by R.W. 16 u/s 161(3) Code of Criminal Procedure and they had effectively shaped their defence on the basis of those statements which alone were relied on. Even if prejudice had been made, the consequence is not acquittal, but as indicated in Union of India (UOI) Vs. The Metal Corporation of India Ltd. and Another, , Noor Khan Vs. State of Rajasthan, , the consequence is to set aside the conviction and remit the case to the trial court to rectify the defect.

24. After an anxious consideration of the oral and documentary evidence in the case, and for the reasons stated hereinbefore, we hold that the prosecution has not been able to prove the guilt of A-1 and A-4 beyond reasonable doubt and they are entitled to the benefit of doubt and are accordingly acquitted of the offences charged against them and shall be set at liberty forthwith. But, the conviction entered and the sentence passed against A-2 and A-3 are confirmed.

In the result, this appeal is partly allowed and partly dismissed as indicated above.