STATE OF GUJARAT v. CHAUDHRI PATEL BECHAR PUNJAJI — 1965 DIGILAW 35 (GUJ)

B. J. DIVAN, N. G. SHELAT, J. ( 1 ) THE learned trial judge was considerably impressed with the contradictions and omissions which were brought out in the course of the cross-examination of the different prosecution witnesses and he held that in the light of those contradictions and omissions it was not possible for him to rely upon the statement of any of the prosecution witnesses and he therefore came to the conclusion that the prosecution had failed to establish its case against any of the accused persons; and the trial before the learned Sessions Judge ended as stated above. ( 2 ) WE are aware that in the light of the judgment of the Supreme Court in the case of Kamlashanker Bhuleshwar Dave v. The State of Gujarat Criminal Appeal No. 83 of 1963 decided by the Supreme Court on January 25 1965 in an appeal against an order of an acquittal the High Court has full powers to review at large the evidence upon which the order of acquittal was founded and to reach the conclusion that upon that evidence the order of acquittal should be reversed. No limitation according to the Supreme Court should be placed upon that power unless it be found expressly stated in the Code. But in exercising the power conferred by the Code and before reaching its conclusions upon facts she High Court should and will always give proper weight and consideration to such matters as (1) the views of the trial Judge as to the credibility of the witness; (2) the presumption of innocence in favour of the accused a presumption certainly not weakened by the fact that he has been acquitted at his trial; (3) the right of the accused to the benefit of any doubt; and (4) the slowness of an appellate Court in disturbing a finding of fact arrived at by a judge who had the advantage of seeing the witnesses. ( 3 ) IN this case with respect to the learned trial Judge we find that his judgment suffers from certain grave infirmities. ( 3 ) IN this case with respect to the learned trial Judge we find that his judgment suffers from certain grave infirmities. In para 15 of his judgment while discussing the contradictions and omissions from the statements of different prosecution witnesses the learned trial Judge has observed as follows:-ON the contrary from the police statements of prosecution witnesses which have been proved as contradictions it appears that there was a dispute on the morning of the day of incident between accused Nos. 1 2 and 5 when deceased Gopalbhai went to the field where accused Nos. 1 2 and 5 were working and tried to take away the bullocks. From the police statements of these witnesses it is also found that the dispute which resulted in the assault on Gopalbhai and others started in the Olwala field when deceased Gopalbhai untied a bullock and unyoked it from the cart driven by accused No. 1 and at that time Gopalbhai aimed a dharia blow at accused No. 1. From the police statements of these witnesses it appears that before the actual incident deceased Gopalbhai had sent Jasubhai home to fetch a bow and arrows and to make preparations for taking away the bullock when the carts passed through the field. These parts from their police statements have been proved from the police statements of these witnesses as contradictions Under these circumstances it is difficult to accept the version of the prosecution witnesses before this Court about the motive alleged by the prosecution and the circumstances under which the incident of assault is alleged to have taken place. On the contrary these contradictions from the police statements of these witnesses lend support to the defence version that the incident started when Gopalbhai tried to take away the bullock and accused Nos. 1 and 2 were assaulted by Gopalbhai and others. With respect to the learned trial Judge he was in error when he treated the statements of the different prosecution witnesses before the police recorded under the provisions of sec. 162 Criminal Procedure Code as items of substantive evidence as he has done so in the passage just now quoted and based his conclusions on what was stated by the different prosecution witnesses to the police treating such statements as items of substantive evidence. The learned trial Judge came to the conclusion. 162 Criminal Procedure Code as items of substantive evidence as he has done so in the passage just now quoted and based his conclusions on what was stated by the different prosecution witnesses to the police treating such statements as items of substantive evidence. The learned trial Judge came to the conclusion. in our opinion erroneously that the contradictions from the police statements of the different prosecution witnesses lend support to the defence version about the incident which accused Nos. 1 and 2 had put forward in their respective statements under sec. 342 Criminal Procedure Code at the time of the trial before the learned Sessions Judge. The learned Sessions Judge obviously overlooked the clear and unambiguous provision of sec. 162 Criminal Procedure Code that a statement recorded by the police in the course of the investigation can only be used for contradicting the maker of that statement and nobody else and further that it cannot be used for any other purpose. Hence in this part of the judgment the learned trial Judge was obviously in error in treating the statements made by different prosecution witnesses to the police as items of substantive evidence and basing his conclusions on questions of fact on those passages brought on the record from the police statements of different prosecution witnesses. ( 4 ) IN para 19 of his judgment the learned trial Judge observed as follows:-BUT in view of the fact that the initial burden lying on the prosecution has not been discharged by the prosecution the question whether the defence version is proved or not cannot arise. The prosecution evidence as it stands is insufficient to bring home the charge against the accused and therefore prosecution cannot succeed. Under these circumstances I hold that prosecution has failed to prove that accused Nos. 1 2 and 3 assaulted Gopalbhai as alleged and that accused Nos. 1 2 and 3 caused injuries to Jethabhai and Amidas as alleged. The prosecution evidence as it stands is insufficient to bring home the charge against the accused and therefore prosecution cannot succeed. Under these circumstances I hold that prosecution has failed to prove that accused Nos. 1 2 and 3 assaulted Gopalbhai as alleged and that accused Nos. 1 2 and 3 caused injuries to Jethabhai and Amidas as alleged. It is thus true that in arriving at the final conclusion the learned trial Judge does not apparently show himself to have been influenced by the statement of the different witnesses recorded before the police but in view of what has been stated in para 15 of his judgment it is clear that the learned trial Judge has allowed himself to be influenced by the conclusion which he arrived at by treating the statements recorded under sec. 162 Criminal Procedure Code as items of substantive evidence. ( 5 ) THE learned trial Judge has failed to consider that accused Nos. 1 and 2 had injuries on their persons and that those injuries were examined by Dr. Vyas of Dehgam dispensary on November 20 1963 a short time after the incident is alleged to have taken place in the field on the outskirts of Chhala village. It is true that the learned trial Judge was faced with the situation where a number of contradictions and omissions from the statements of the different prosecution witnesses had been brought on the record and the credibility of these prosecution witnesses was challenged because of these contradictions and omissions. However as observed in para 20 of his judgment the learned trial Judge found a number of grounds to criticise the investigation carried out by Police Sub Inspector Almaula and he has observed that the demeanour of Police Sub Inspector Almaula when in the witness-box and when he was put questions by the Court appeared to show that Police Sub Inspector Almaula had little regard for truth. At the end of para 20 the learned trial Judge has observed as follows:- considering all the circumstances I am not convinced that the lapses on the part of the Investigating Officer were the result of mere mistakes. It is for the authorities to consider the entire matter. At the end of para 20 the learned trial Judge has observed as follows:- considering all the circumstances I am not convinced that the lapses on the part of the Investigating Officer were the result of mere mistakes. It is for the authorities to consider the entire matter. Even after the learned trial Judge had put questions to Police Sub Inspector Almaula no application was made on behalf of the prosecution to treat Police Sub Inspector Almaula as a witness hostile to the prosecution or to challenge the credibility of Police Sub Inspector Almaula in any manner. The result therefore was that on the one hand was the assertion of Police Sub Inspector Almaula that the different prosecution witnesses had made certain statements or had omitted to make certain statements to him when he had recorded their respective statements in the course of the investigation. On the other hand there was the positive evidence of those very same prosecution witnesses that in their respective police statements they had not made the statements which according to Police Sub Inspector Almaula they had in fact made. In view of the conclusion which the learned trial Judge arrived at regarding the investigation carried out by Police Sub Inspector Almaula it was all the more essential that the learned trial Judge should have tried to separate the grain from the chaff from the prosecution evidence and tried to ascertain whether in view of the various circumstances which admittedly were on the record any offence wag brought home by the prosecution against any of the accused. With respect to the learned trial Judge he was again in error when he failed to carry out this essential function of separating the grain from the chaff. ( 6 ) IN this context we may point out that this question of the conflict between the version of the prosecution witnesses as set out in their depositions before the Court and in the versions as recorded by the police was considered by a Division Bench of the Allahabad High Court consisting of Raghubar Dayal J. (as he then was) and Hari Shankar J. in Sheo Shanker v. The State A. I. R. 1953 Allahabad 652. In para 11 at page 654 of the report it was observed as follows:-ONE main consideration which was urged for the accused appellants to disbelieve the witnesses was the material discrepancy in the statements of some of the witnesses before the investigating officer and the statements made in Court. . . . . . . . . . . . . . . . The only way in which this discrepancy is explained by the prosecution is by a complete denial by witnesses of having made a discrepant statement before the investigating officer and suggesting that the investigating officer had wrongly recorded that part of the statement due to his favouring Bachchu accused Several circumstances have been urged in support of this contention which is not usually pat forward for the prosecution when witnesses make statements in Court which are found inconsistent with the statements made before the police investigating officer. One of these circumstances is that the statements are so damaging to the prosecution story put forward in court that the witnesses could not have been expected to have made such statements before the investigating officer We are of opinion that this is a very wrong approach to the recorded statements. A statement made by a witness to a police investigating officer can be used only in one manner in view of section 162 Criminal Procedure Code and that is that it can be used to contradict the statement of the witness if he be examined as a prosecution witness. If the same person be not examined as a prosecution witness but is examined as a defence witness then that statement cannot be used. Any other use of the statement is forbidden. The truth of the statements recorded in the police diary is certainly not accepted or presumed but the correctness of the record is presumed for the purposes of sec 162 Criminal Procedure Code. We are therefore of opinion that for this particular case we have to accept that what is recorded in the case diary was the statement made by that particular witness before the investigating officer and that a mere denial of a witness or the extreme improbability of a witness having made such a statement cannot be a factor in determining whether the Police Sub Inspector was acting bona fide or not at the time when he recorded the statement. In para 12 of the report the learned Judges of the Allahabad High Court have further observed as follows:-THE mala fide conduct of the investigating officer could certainly be urged on behalf of the State and the Court can consider it on the basis of circumstances other than the mere discrepant language of the recorded statement of the witnessin that particular case before them the learned Judges of the Allahabad High Court did not find that there were such circumstances in the case before them as to lead to the conclusion that the Sub-Inspector was favouring the accused. ( 7 ) WE agree with the observations of the learned Judges of the Allahabad High Court in Sheo Shankers case (supra) that if from the materials on record the mala fide conduct of the Investigating Officer can be reasonably inferred or held to have been established then that mala fide conduct of the Investigating Officer can be urged on behalf of the State and the Court can consider such mala fide conduct while considering the discrepancy between the statement of the prosecution witness recorded by the police and his deposition in Court. But there must be circumstances on record to justify an inference of mala fide conduct and as observed by the learned Judges of the Allahabad High Court usually a contention about the mala fide conduct of the Investigating Officer is not put forward on behalf of the State when discrepancies between the police statement and deposition in Court from the same witness are brought to the notice of the Court. ( 8 ) IN Baladin v. State of U. P. A. I. R. 1956 S. C. 181 in para 11 at page 187 a similar point has been dealt with by the Supreme Court. There what happened was that a Division Bench of the Allahabad High Court held that the Sub-Inspector the Circle Inspector and the Deputy Superintendent of Police who were successively in charge of the police investigation in that case were not very circumspect in conducting the investigation. The investigation suffered from lack of thoroughness and quickness with the result that statements of witnesses were recorded by them in the most haphazard manner and many matters of importance and significance to the case were omitted. The investigation suffered from lack of thoroughness and quickness with the result that statements of witnesses were recorded by them in the most haphazard manner and many matters of importance and significance to the case were omitted. The High Court also came to the conclusion that the Police Sub-Inspector in that case for oblique motives had distorted the statements of the witnesses and that his attempt was to introduce such variations in the statements and to leave such loopholes as to damage the ultimate result of the case to as large a measure as possible. The High Court relied upon the testimony or four eye-witnesses they being the ladies belonging to the family of the victims. But in connection with two of those witnesses the High Court observed that their evidence required scrutiny and could be relied upon only when corroborated by other evidence on the record. Hence in respect of those two witnesses the learned Judges of the Allahabad High Court were not as sure as in respect of the others. In the light of these facts the Supreme Court observed as follows:-HAVING held that the four eye-witnesses were on the whole reliable and that the record of their statements made by the investigating Sub Inspector was not honest and faithful the High Court fell into the error of acquitting all those accused persons appellants before it whose names did not find a place in the record made by that police officer. In other words it rejected reliable testimony with reference to that very record which it had condemned as unreliable. Ordinarily accused persons are entitled to challenge the testimony of witnesses examined in court with reference to the statements said to have been made by them before the investigating police officer. Statements made by prosecution witnesses before the investigating police officer being the earliest statements made by them with reference to the facts of the occurrence are valuable material for testing the veracity of the witnesses examined in court with particular reference to those statements; but the statements made during police investigation are not substantive evidence. Hence the record made by a Police Investigating Officer has to be considered by the Court only with a view to weighing the evidence actually adduced in Court. Hence the record made by a Police Investigating Officer has to be considered by the Court only with a view to weighing the evidence actually adduced in Court. If the police record becomes suspect or unreliable as in the present case on the ground that it was deliberately perfunctory or dishonest it loses much of its value and the Court in judging the case of a particular accused has to weigh the evidence given against him in Court keeping in view the fact that the earlier statements of witnesses as recorded by the police is tainted record and has not as great a value as it otherwise would have in weighing all the materials on the record as against each individual accused. It must be stated at the outset that these observations of the Supreme Court in Baladins case were on the footing that the record maintained by the Police Investigating Officer was in fact found by the Division Bench of the Allahabad High Court deliberately perfunctory or dishonest. If in any particular case the Court can come to the conclusion that the record maintained by the Investigating Officer was deliberately perfunctory or dishonest or was due to some reason or other not the accurate record of what the witnesses did state to the Investigating Officer the Court can hold that what the Police Investigating Officer has purported to record is not in fact the statement which the witness made to that Officer at the time when the statement was made and therefore in fact there is no contradiction between the testimony of the witness in Court and what he is alleged to have stated on an earlier occasion. We must make it clear however that unless the Court can find from the materials before it that the record was deliberately perfunctory or dishonest or as observed by the learned Judges of the Allahabad High Court that the record maintained by the police was vitiated by the mala fide conduct of the Investigating Officer it is not possible ordinarily for the Court to disregard the contradictions between the deposition in Court and the statements made to the police as recorded by the Police Investigating Officer. ( 9 ) IN the instant case in view of the observations made by the learned trial Judge in para 20 of his judgment it is doubtful whether the record was correctly maintained by the Investigating Officer Police Sub Inspector Almaula. However no opportunity was given to this witness to show that his record was not properly maintained. There has been no challenge to the testimony of Police Sub Inspector Almaula on the part of the prosecution in order to show that he had not maintained the record properly and thus no opportunity can be said to have been given to the Investigating Officer to give his explanation if any regarding the making of the record. At the most we can say that a doubt arises in view of what has been stated by the learned trial Judge in para 20 of his judgment as to whether the record maintained by the Police Sub-Inspector was the correct record or not. However it is equally possible that the record was correctly maintained and the witnesses are trying to improve upon their statements made before the police and hence looking to the record as it stands before us we cannot completely disregard the contradictions between the depositions of the witnesses in Court and their statements before the police. State appeal party allowed:- Nos. 1 and 2 convicted and sentenced under sec. 304 Part 1 read with sec. 34 to seven years rigorous imprisonment. .