BALU RAMU MACHHI v. STATE — 1984 DIGILAW 267 (GUJ)

J. P. DESAI, J. ( 1 ) BALU Ramu Machhi the appellant in this appeal challenges the judgment of the learned Additional Sessions Judge Surat whereby the learned Additional Sessions Judge convicted him of the offence punishable under sec. 302 I. P. C. and sentenced him to suffer imprisonment for life. ( 2 ) THE facts of this case as alleged by the prosecution may be briefly stated as follows :-"the deceased Dineshchandra Nagindas Chauhan was having illicit relations with the sister of this Balu Ramu Machhi and on account of the same there used to be quarrels between the deceased and Balu Ramu. On 8-4-198 the deceased and the accused were seen together in a fair which was held at village Bodhan Taluka Mandvi District Surat. They were seen going towards the merry-go-round. Some time thereafter the accused gave blows to Dineshchandra by a Gupti which was with him and thereafter he ran away. Some persons who were near about the scene of the incident saw the accused giving blows to the deceased. One Bhogilal Maganlal Patel who happened to be the brothel of Police Patel Shantilal Maganlal was also there in the fair and he did not see the actual assault on the deceased but he saw the accused and the deceased going together towards the merry-go-round and sometime thereafter heard hue and cry about the murder of Dineshchandra and his attention was drawn in that direction and he saw the deceased lying dead at some distance from the merry-go-round and the accused running away towards the river side. this Bhogilal then went to the place of his brother and told him what he had seen. Shantilal contacted the P. S. I. of Mandvi Police Station who was on Bandobast duty in the fair and he gave complaint to the P. S. I. about this incident. . . . . . . . . . . . . . . . . . . " ( 3 ) THE evidence of this Bhogilal before the Court is that when he went to the fair he saw the accused and the deceased going towards the river when he was standing near the merry-go-round. His say in his evidence further is that when he went to the spot where Dineshchandra was lying dead he saw Balu running away. His say in his evidence further is that when he went to the spot where Dineshchandra was lying dead he saw Balu running away. The evidence of the Police Officer Natvarlal Veljibhai which we have discussed a little above shows that this Bhogilal did not state before him that when he was standing near the merry-go-round. he saw the accused and the deceased going towards the riverbed or that he had seen the deceased and the accused going ahead of hint in the fair. This would naturally create an impression that the witness had not stated before the Police Officer at all about seeing the accused and the deceased before the actual incident. The learned Additional Sessions Judge in his judgment at para. 16 referred to the police statement of this witness and observed that the witness has stated therein that he had seen the accused and the deceased going together and I that he had seen the deceased lying and that he had seen the accused running away. It is not understood how the learned Additional Sessions Judge referred to the police statement of this witness. A statement of a witness which is recorded by a Police Officer during the course of investigation can be used only for a limited purpose as laid down in sec. 162 of the Criminal Procedure Code. With a view to find out whether there was any such omission altogether in the statement of the witness recorded by the Police Officer we have looked into a copy of the statement of this witness recorded by the Police Officer which is in the file of police papers in the record of the trial Court. It appears from the said statement of Bhogilal as recorded by the Deputy Superintendent of Police that the Witness has not stated therein that he saw the deceased and the accused going towards the river when he was standing near the merry-go-round and he has also not stated that before that he saw the accused and the deceased going ahead of him. It appears from the said statement that the witness has stated therein that when he was going back towards his home from the fair at about 1 P. M. to 1-15 P. M. he saw the accused and the deceased passing on the road by the side of the shop of Gaman Ghanchi and going towards the merry-go-round and when he was passing in front of the shop of Ghanchi sometime thereafter he saw people running towards the river from the merry-go-round and so he also went there and saw Dineshchandra lying there in injured condition on the road. He has also stated therein that at that time he saw Balu Ramu running away towards the house of his brother Nagin. This is what is stated by the witness before the Police Officer. It would thus appear that the witness did not omit to state altogether about his having seen the accused and the deceased together before the incident. The only difference between the statement before the police and the statement before the Court is that while before the Police Officer the witness stated that he saw the accused and the deceased passing on the road in front of the shop of Gaman Ghanchi and going towards the Chagdol he stated before the Court that when he was going towards the merry-go-round the accused and the deceased were going ahead of him and that when he was near the merry go-round. he saw the deceased and the accused going towards the river. The difference if any is as regards the spot where the witness was standing when he saw the accused and the deceased together. The distance between the merry-go-round and the shop of Gaman Ghanchi is hardly about 50 paces. Bhogilal Maganlal himself has stated in cross-examination that the merry-go-round was about 50 paces away from the shop of Gaman Ghanchi. It cannot be said that there was any such contradiction between the say of this Bhogilal before the Court as compared to his say before police as regards the spot from where he saw the accused and the deceased going together. It cannot be said that Bhofilal has made any substantial improvement in his version while giving evidence before the Court so far as this aspect is concerned. It cannot be said that Bhofilal has made any substantial improvement in his version while giving evidence before the Court so far as this aspect is concerned. Similarly the witness stated before the Court that he saw Dineshchandra lying on the ground having bleeding injuries and then he saw Balu running away and then he informed his brother. He was asked whether he stated before the Police Officer that he saw Balu running away after he saw the dead body and he stated that he did not recollect. The evidence of Natverlal Patel Ex. 39 shows that the witness did make such a statement before him. We fail to understand what is the contradiction between these two statements. Even in his deposition before the Court he states that he saw Dineshchandra lying on the ground having bleeding injuries and then he saw Balu running away. In fact there is no contradiction at all and it is not understood why such a question was put to the witness and permitted by the learned trial Judge. So far as the earlier contradiction about the spot from where the witness saw the accused and the deceased is concerned the question was put to the witness in such a way as to create an impression that he had not made any statement before the Police Officer about his having seen the accused and the deceased together before this incident. On having looked at a copy of the statement it appears that it is not so The learned trial Judge of course committed an error in referring to the police statement while writing his judgment. In fact it was his duty to have looked at the police statement when the omission was sought to be put to the witness when he was in the box. The question as put to him ought not to have been allowed to be put. In fact it was his duty to have looked at the police statement when the omission was sought to be put to the witness when he was in the box. The question as put to him ought not to have been allowed to be put. In fact the question should have been put to the witness that he had not seen the accused and the deceased going ahead of him and had not seen the accused and the deceased going towards the river bed from the merry-go-round and had not made such a statement before the Police Officer but had made a contrary statement before the Police Officer to the effect that when he was returning home from the fair he saw the accused and the deceased a going towards the fair passing on the road by the side of the shop of Gaman Ghanchi. Anyway on having a look at the statement of this witness recorded by the Police Officer we are inclined to say that there was in fact no omission in the police statement as suggested in cross-examination but there was a contradiction as pointed out above. It would probably amount to an omission if there was a time lag or a considerable distance between the two spots. Here. there is practically no timelag and the distance between the shop of Gaman Ghanchi and the merry-go-round is only a very short one. As stated earlier in view of this it can only be said to be a minor and insignificant contradiction but certainly not an omission. . . . . . . . . ( 4 ) THE learned advocate Mr. Shethna urged that there was inordinate delay on the part of the Police Officer in sending the copy of the F. I. R. under sec. 157 of the Criminal Procedure Code to the Judicial Magistrate and that the offence was registered on 8-4-1982 while the F. I. R. reached the Judicial Magistrate on 13-4-1982. The F. I. R. was to be sent to the Judicial Magistrate Mandvi who holds Court at Mangrol in the same District for some days every month. But even then the delay of five days on the face of it can be said to be grossly inordinate. It is difficult to understand how so much time was taken for the F. I. R. to reach the Judicial Magistrate in the same district. But even then the delay of five days on the face of it can be said to be grossly inordinate. It is difficult to understand how so much time was taken for the F. I. R. to reach the Judicial Magistrate in the same district. The prosecution has not made any effort to explain this delay. The Police Officer Bharatkant Ex. 31 when asked to explain this delay gave evasive replies. We are constrained to observe here that there is delay of five days and the delay has not been explained. The question however is whether simply because there was delay on the part of the police in sending the F. I. R. to the Judicial Magistrate First Class we should look at the evidence of Bhogilal with any suspicion. The question as to what is the effect of the delay in sending the F. I. R. to the Judicial Magistrate will depend upon the facts and circumstances of each case. In a given case delay of some hours may assume importance while in a case like the present one. even the delay of five days may not adversely affect the prosecution case. The learned advocate Mr. Shethna in this connection drew our attention to a decision of the Supreme Court reported in State of Punjab v. Tarlok Singh A. I. R. 1971 S. C. 1291 wherein the relevant discussion about the delay in sending the F. I. R. to the Magistrate is made at para. 5. It appears that the copy of the first information report purported to have been lodged at 3. 45 P. M. did not reach the Magistrate at Dasuya till 8 A. M. the next day even though it was sent through a special messenger the distance between the two places being 15 to 16 miles. The inference sought to be drawn in that case was that the report was no lodged at 3. 45 P. M. but at a much later hour after the police had arrived at the scene of occurrence and there were consultations to decide what version should be put forward and who should be implicated for the murder. The prosecution did not make any effort to explain the delay in that case and therefore the High Court was inclined to take the view that such delay would cast doubt on the prosecution version that the Report was lodged a 3. The prosecution did not make any effort to explain the delay in that case and therefore the High Court was inclined to take the view that such delay would cast doubt on the prosecution version that the Report was lodged a 3. 45 P. M. with out lapse of unnecessary time. The said view of the High Court was confirmed by the Supreme Court. In that case it appears from the discussion made at para. 7 of the judgment of the Supreme Court that looking to the facts of that case it appeared that the prosecution wanted to mould the story as per the statement of one Gurbachan Singh and therefore the F. I. R. was in fact recorded later on though it was made to appear that it was recorded at 3-45 P. M. It was on the peculiar facts of that case that the adverse inference was drawn against the prosecution on account of delay in sending the F. I. R. to the Magistrate for which no explanation was offered by the prosecution. 9 Similarly in the case of Balak Singh v. State of Punjab A. I. R. 1975 S. C. 1962 to which our attention was drawn by the learned advocate Mr. Shethna it appears that names of four out of nine accused did not find place in the body of the inquest report while the names of all were mentioned in the F. I. R. and therefore an inference was drawn that the F. I. R. was written after the inquest report was prepared. Booking to these peculiar facts of that case it is difficult to say that this decision is of any assistance in the present case. In that case also adverse inference was drawn on account of the delay in sending the F. I. R. to the Magistrate but it was as stated above because of the fact that the names of some of the accused which were not found in the inquest report were mentioned in the F. I. R. The law does not require mentioning of the names on the accused in an inquest report. Hence absence of the names of accused in an inquest report cannot lead us to any inference against the prosecution. Hence absence of the names of accused in an inquest report cannot lead us to any inference against the prosecution. In that case the names of some of the accused were written in the inquest report and therefore an adverse inference was drawn when more names appeared in the F. I. R. and the F. I. R. reached the Magistrate after delay which was not explain ed. In the present case the story told by witness Bhogilal is most natural and probable as stated by us earlier. His statement was also recorded on the same night. The statements of other witnesses were also recorded on the same night. There does not appear to be any reason whatsoever for Bhogilal to falsely involve the accused in this incident as stated by us a little earlier. In view of these peculiar facts and circumstances of the case we are not inclined to doubt the veracity of Bhogilal simply because the police did not take care to see that the F. I. R. reached the learned Magistrate at the earliest. we do not for a moment approve of this conduct of the Police Officer but on account of that negligence on the part of the police Officer we are not inclined to look at the evidence of Bhogilal with any suspicion whose evidence appears to be most natural and probable. ( 5 ) IT appears that Crime Register Number is mentioned in the Panchnama even before the offence was registered at the Police Station. It was not proper for the Police Officer to have mentioned the Crime Register Number in the Panchnamas which were prepared before the offence was registered. The explanation given by the Police Officer Bharatkant Ex. 31 is that he knew what was the last number of the offence registered in the Crime Register and therefore wrote out the number in the Panchnama. The explanation given by him cannot be said to be incorrect and therefore we are not inclined to draw any adverse inference against the prosecution on account of the fact that Crime Register Number is mentioned in the Panchnama which was made even before the offence was registered. But at the same time we disapprove this action of the Police Officer. ( 6 ) THE prosecution case is that a pair of chappals was found lying on the 6pot and they were of the accused. But at the same time we disapprove this action of the Police Officer. ( 6 ) THE prosecution case is that a pair of chappals was found lying on the 6pot and they were of the accused. The accused was made to put on the said chappals and they fitted him. The panch witness on this aspect is examined in this case and he has supported the prosecution but unfortunately for the prosecution the accused has not been questioned by the learned trial Judge so far as this aspect is concerned. A question was put to the accused that his Gupti and his Chappals were found lying on the spot. But no question was put to him that he was made to put on the chappals in the presence of the panchas and they fitted him. This circumstance has not been taken into consideration by the learned Additional Sessions Judge observing that simply because the Chappals fitted the accused we cannot definitely say that the Chappals must be of the accused and none else. Ordinarily. one would be inclined to take such a view but when it appears that there is positive evidence that Bhogilal saw the accused going along with the deceased towards the merry-to-round and then saw the accused running away from the spot where the deceased was lying with bleeding injuries and when there is positive evidence of Bhogilal to show that the Chappals were of the accused the circumstance that the Chappals fitted the accused would be an important one. But we are inclined to say that this circumstance cannot he unfortunately taken into consideration when that circumstance was not put to the accused by the learned Additional Sessions Judge when his statement was recorded under sec. 313 of the Criminal Procedure Code by the learned trial Judge. In a very recent decision reported in the case of Sharad v. State of Maharashtra A. I. R. 1984 S. C. 1622 the Supreme Court has reiterated its earlier view that when a circumstance is not put to the accused when he is examined under sec. 313 of the Code the said circumstance cannot be used against him. In view of this we are not inclined to take this circumstance into consideration. . . . . . . . . . . . . . . . . . . . . . . . . . . 313 of the Code the said circumstance cannot be used against him. In view of this we are not inclined to take this circumstance into consideration. . . . . . . . . . . . . . . . . . . . . . . . . . . . . ( 7 ) BEFORE parting with this case we would like to point out that sub-sec. (1) and sub-sec. (2) of sec. 278 of the Criminal Procedure Code read as follows:" (1) As the evidence of each witness taken under sec. 275 or sec. 276 is completed it shall be read over to him in the presence of the accused il in attendance. or of his pleader if he appears by pleader and shall if necessary he corrected. (2) If the witness denies the correctness of any part of the evidence when the same is read over to him the Magistrate or presiding Judge may. instead of correcting the evidence make a memorandum thereon of the objection made to it by the witness and shall add such remarks as he thinks necessary". SUB-SEC. (1) of sec. 278 lays down that the evidence of the witness shall be read over to him and. if necessary. shall be corrected. Sub-sec. (2) says that the witness denies the correctness of any part of the evidence when the same in. read over to him the Magistrate or the presiding Judge may. instead of correcting the evidence. make a memorandum thereon of the objection made to it by the witness and shall add such remarks as he thinks necessary. Sub-sec. (3) of sec. 278 lays down as to what procedure should be adopted if the evidence is recorded in a language different from that in which it has been given. Section 278 thus lays down that the evidence of each witness has to be read over to him. Such an endorsement is naturally required to be made at the foot of the deposition of each witness. Instead of making such an endorsement the learned Additional Sessions Judge has made an endorsement at the foot of the deposition of each witness that the deposition was recorded in open Court in such a way that the witness was able to hear the same. We fail to understand how such an endorsement came to be made by the learned Additional Sessions Judge. We fail to understand how such an endorsement came to be made by the learned Additional Sessions Judge. The learned Additional Secsions Judge with due respect to him appears to have lost sight of the provisions of section 278 of the Code which clearly lays down that not only the evidence has to be recorded in open Court but it further lays down after the evidence is over it has to be read over to the witness and the witness has to say whether it has been correctly recorded or not. The endorsement should. therefore be not as made by the learned Sessions Judge in the present case but that the deposition is read over to the witness and the witness admits it to be correctly recorded. We hope that the learned Additional Sessions Judge will forthwith discontinue the practice of putting the endorsement that he did in the present case and will put an endorsement in the light of the provisions of sec. 278 of the Criminal Procedure Code. We may also mention here that there is only a rubber stamp endorsement made by the learned Additional Sessions Judge at the foot of the deposition of each witness and the endorsement does not bear his signature. The endorsement is not required to be merely rubber stamp endorsement but it is required to be an endorsement made after application of mind and it should bear the signature of the Presiding Judge. ( 8 ) WE may also point out here that the examination of the accused in the present case under section 313 of the Criminal Procedure Code is not quite satisfactory. In that statement also proper endorsement has been made but it is only a rubber stamp endorsement and it does not bear the signature of the learned Judge. We hope that in future the learned Judge will see that he signs the endorsement. We may also point out that a question was put to the accused that report was received from the Forensic Science Laboratory with regard to the muddamal articles and without telling him as to what were the muddamal articles and what was the result of the analysis of the Forensic Science Laboratory. The accused was asked whether he wanted to say anything in that regard. The accused was asked whether he wanted to say anything in that regard. The learned Judge should have put to the accused question in this regard qua each muddamal article and should have been told as to what was the result of the analysis and then asked him to explain if he wanted to do so. The learned Additional Sessions Judge also committed a grave error in not putting question to this accused with regard to the evidence that he was made to put on the Chappals which were found from the scene or alleged to have seen the actual assault did not support the prosecution. Bhogilal did not say in his deposition that he had seen the accused giving Gupti blows to the deceased. There was thus no direct evidence on record to the effect that the accused gave Gupti blows to the deceased. Inspite of this a question was put to the witness that the prosecution evidence was that he gave blows with a Gupti to the deceased and the deceased fell down and the accused was asked to explain that evidence. This was on the face of it highly improper and so to say illegal. The purpose of examining the accused under section 313 of the Code is to draw his attention to each piece of evidence appearing against him so as to enable him to explain that circumstance. While examining the accused under section 313 the attention of the accused is to be drawn to each of these circumstances specifically so as to enable him to explain that circumstance if he wants to explain. The examination of the accused was thus not in conformity with the purpose and spirit of section 313 of the Code. The accused has a right to examine himself on oath under the provisions of the Code. No such question was put to him inquiring from him whether he wanted to give evidence on oath but only a question was put to him whether he wanted to give evidence in defence to which he replied in the negative. We may mention here that the learned advocate Mr. No such question was put to him inquiring from him whether he wanted to give evidence on oath but only a question was put to him whether he wanted to give evidence in defence to which he replied in the negative. We may mention here that the learned advocate Mr. Shethna in the present case did not urge anything rely upon these irregularities found in the statement of the accused and in fact no prejudice can be said to have been caused to the accused by not putting him proper questions as required by section 313 of the Code. But we have pointed out these infirmities with a view to see that the Judges of the lower Courts do not commit such errors in future which may in a given case cause prejudice to the accused. We may mention here that in fact one circumstance. viz. that the accused was made to put on the Chappals in the presence of the panchas has not been taken into consideration by us because that important circumstance was not put to the accused which examining him under section 313 of the Code. ( 9 ) WE may mention here that while recording the evidence of Bhogilal proper attention was not paid by the learned Public Prosecutor who conducted the case before the trial Court nor by the learned trial Judge in seeing that a proper question was put and proper answer was recorded with reference to omission/contradiction with regard to the police statement. We have discussed this aspect in details while discussing the evidence of Bhogilal. We nave pointed out at that time that there was in fact a contradiction and not an omission so far as the case of the prosecution that witness Bhogilal saw the accused and the deceased together in the fair is concerned in that there was contradiction only as regards the spot where the witness was when he saw the deceased and the accused going together soon before the deceased was found dead with bleeding injuries. It was the duty of the learned public Prosecutor as well as the learned trial Judge to have seen that such omnibus reply was not recorded in the evidence of Bhogilal so as to create an impression that the witness had not at all stated before the Police Officer that he had seen the accused and the deceased together soon before this incident. In fact the learned trial Judge should have asked the learned advocate for the accused to put a question suggesting the contradiction and not suggesting the omission as has been done in the present case. Even if such an answer had gone on record it was the duty of the learned Public Prosecutor to have put a question in re-examination of the witness so as to bring on record as to what the witness had stated before the Police Officer with regard to this aspect of the incident. ( 10 ) AN omission to state a fact in a police statement may or may not amount to contradiction depending upon the facts and circumstances of each case. Explanation to sec. 162 of the Criminal Procedure Code reads as follows:"an omission to state a fact or circumstance in the statement referred to in sub-sec. (1) may amount to contradiction if the same appears to be significant and otherwise relevant having regard to the context in which such omission occurs and whether any omission amounts to a contradiction in the particular context shall be a question of fact". IT is thus clear from the Explanation that while considering whether an omission amounts to a contradiction or not the Court has to examine whether it is significant and otherwise relevant having regard to the context in which the omission occurs. The Explanation itself shows that whether any omission amounts to a contradiction in the particular context shall by a question of fact. Proviso to sub-sec. (1) of section 162 also enables the Prosecutor to use any part of the statement of the witness recorded under section 161 of the Code for the purpose of explaining any matter referred to in cross examination of a witness. The learned Public Prosecutor could have and should have put a question to the witness in re-examination as to what he had in fact stated before the Police Officer with regard to that part of the incident viz. The learned Public Prosecutor could have and should have put a question to the witness in re-examination as to what he had in fact stated before the Police Officer with regard to that part of the incident viz. the accused and the deceased seen together in the fair by the witness before the deceased was found dead. In other words which bringing on record as to what is not stated by the witness before the Police Officer what is stated by the witness in that regard and in that context has to be brought on record. Unless this is done it will not be possible for the Court to ascertain as to whether there is any omission amounting to contradiction and if so what is its effect. We hope that the Courts below will bear in mind this provision of section 162 together with the Explanation added to section 162 while allowing the defence to put questions with regard to contradictions and/or omissions so far as the police statements are concerned and we also hope that the Public Prosecutors will also be vigilant in seeing that the witness is re- examined. if necessary in the light of the provisions of section 162 read with the Explanation added to section 162 of the Code. ( 11 ) WE may also mention here that the learned Additional Sessions Judge ill facts referred to the statement of this witness at para. 16 of his judgment and observed that the witness had made a particular statement before the Police Officer. In fact he should have looked at the Police Statement not at the time of writing judgment but at the time when the evidence of the witness was recorded. If he had exercised a little care at that proper stage he would have either asked the advocate for the accused to put a proper question or would have suggested to the Public Prosecutor to bring it on record by re-examining the witness or would have been able to make a note that the contradiction was only with regard to the spot and not with regard to the witness having seen the accused and the deceased moving together. ( 12 ) WE may mention here that in many cases we have found that the first information report is not sent to the concerned Judicial Magistrate at the earliest as required by the provisions of section 157 Cri. Pro. Code 1973 In many cases we find that it is sent after unusual delay. We hope that the police officers will see to it that the first information report is forwarded to the concerned Judicial Magistrate First Class so as to reach him at the earliest without any delay. In a given case the delay may prove fatal to the prosecution. In our opinion it is desirable that the Government may issue proper instructions to the police officers to realize the importance of forwarding the first information report to the concerned Judicial Magistrate at the earliest so as to avoid any allegation that the first information report was subsequently manipulated. ( 13 ) WE also find in many cases that neither the complaint nor the panchnamas are read over to the panchas when their evidence is recorded. Complaint as well as panchnamas are only corroborative pieces of evidence and therefore they have to be read over to the complainant or the panch as the case may be and the same can be admitted in evidence if and only after the complainant or the panch as the case may he admits the contents thereof to be correct. We at times find mistakes in the depositions of witnesses which lead us to infer that the depositions must not have been read over to the witnesses and as a matter of routine endorsement is made that the deposition was read over. We want to impress upon the Presiding Officers of the subordinate Criminal Courts the importance of Presiding over the depositions to the concerned witnesses so that mistakes if any are corrected when the deposition is read over. (PAP) appeal dismissed. .