S.N. Phukan, J.
1. I had the advantage of going through with profit of the judgment and order of my learned brother Y. I. Singh, J. and I agree that the present appeal has merit and the impugned order of conviction and sentence has to be set aside. However, with respect I am unable to agree that the contradictions of the statements of the witnesses before the investigating officer and in the witness box has to be discarded in view of the reasons given in para 12 of the main judgment. I record my reasons for the above disagreement as follows : --
2. My learned brother in discarding the above contradictions has placed reliance in Tahsildar Singh v. State of U. P., AIR 1959 SC 1012 and Pangi Jogi v. State of Orissa, AIR 1965 Ori 205.
3. In Tahsildar (supra) the Apex Court considered the provisions of Section 162, Cr. P. C. as it stood prior to the amendment of 1955. In the last sub-para of para 10 of the report the Apex Court stated the reasons for not considering the amended Section 162 brought about by the amending Act of 1955. It is not necessary for the present purpose to quote the said Section 162 prior to the amendment of 1955 and also the amended section and it is also not necessary to quote Section 162, Cr. P. C. of the new Criminal Procedure Code, 1973. It may, however, be noted that prior to 1955 copy of the case diary including the statements recorded by the police during investigation were not supplied to the accused. Sea-change has taken place and under the new Cr.P.C. the entire case diary is with the trial court and the copies are supplied by the court to the accused. In Tahsildar (supra) the controversy was whether the omission by a witness in his statement before police during investigation is a contradiction or not. This point has been set at rest by the legislature by giving an explanation to Section 162, Cr.P.C., 1973. From the perusal of the report of the Apex Court I do not find that any particular procedure was laid down by the Apex Court for the purpose of taking out the contradiction during trial.
4. Reading Section 162, Cr.P.C., 1973 and Section 145 of the Evidence Act it is clear that a witness can be confronted with his earlier statement made to the investigating officer for bringing out contradictions. A Division Bench of this Court had occasion to consider this matter in the State v. Md. Misir Ali, AIR 1963 Assam 151, and the procedure for bringing nut the contradiction is quoted below (Para '... .If it is intended by an accused to contradict the evidence given by a prosecution witness at the trial, with a statement made by him before the police during the investigation, the correct thing to do is to draw the attention of the witness to that part of the contradictory statement, which he made before the police, and question him whether he did in fact make that statement. If the witness admits having made the particular statement to the police, that admission will go into evidence and will be recorded as part of the evidence of the witness and can be relied on by the accused as establishing the contradiction if, on the other hand, the witness denies having made such a statement before the police, the particular portion of the statement recorded under Section 162, Criminal Procedure Code should be provisionally marked for identification, and when the investigating officer who had actually recorded the statement in question, comes into the witness box, he should be questioned as to whether that particular statement had been made to him during the investigation, by the particular witness, and obviously after refreshing his memory from the Police Case Diary the investigating officer would make his answer in the affirmative. The answer of the investigating officer would prove the statement which is then exhibited in the case and will go into evidence, and may, thereafter, be relied on by the accused as a contradiction. This is the only correct procedure to be followed, which would be in conformity with Section 145 of the Evidence Act.'
5. So the ratio deducible from the above decision for probing a contradiction is that if a witness for the prosecution admits his previous statement before police such admission can be relied on by the accused as establishing the contradiction. If however, the witness denies having made such a statement before police when the investigating officer comes to the witness box he should be questioned as to whether that particular statement had been made to him during investigation by the said witness and obviously the investigating officer after refreshing his memory from the case diary would answer in the affirmative. Such answer of the investigating officer would prove the contradiction. Though Division Bench has laid down that the portion of the statement has to be exhibited, in my opinion, this is only a procedural part. More particularly, as making an exhibit is a ministerial function and not a judicial function. In the aforesaid para the Division Bench did not lay down that non-marking of the portion as exhibit would nullify the contradiction.
6. In the State of Assam the above procedure if followed all along except the fact that portion in the case diary is not exhibited. According to present procedure as the case diary is with the court, court can always verify whether such a contradiction appears in the case diary and in fact it is the bounden duty of the court to examine the case diary in a criminal case.
7. In our country most of the litigants are poor, ignorant and illiterate and they entrust the entire case to their counsel. It will be against the interest of justice if such a contradiction is not taken into consideration by the Court merely because the Court failed to mark the portion of the contradiction in the case diary as exhibit. It is made clear that marking of the said portion as exhibit as stated earlier is not necessary for the purpose of considering by the Court the evidentiary value of any contradiction brought out by putting question to the witness and also to the investigating officer. I would go to the extent of saying that even if a counsel fails to put the question to the investigating officer to bring out the contradiction due to inadvertence or otherwise Court can definitely look into the case diary for this purpose and if necessary recall the investigating officer.
8. Courts in India are to do substantial justice to parties and the judiciary is respected not on account of deciding cases on technical grounds but because it is capable of doing justice on merits of the case. It will be a sad day if an innocent person is convicted by refusing to consider contradictions of witnesses for the prosecution in their statements before the investigating officer and in the witness box on the ground that such contradictions appearing in the case diary were not marked as exhibits.
9. For the reasons stated above with respect as stated earlier I am unable to agree with the views expressed in para 12 of the main judgment. It is, however, not necessary to consider the aforesaid contradictions in the case in hand as the appeal has to be allowed by setting aside the conviction and sentence for other reasons.
10. In the result, the appeal is allowed and the conviction and sentence are set aside
Ibotombi, J.
11. On the basis of the First Information Report Ext. 1 lodged by Damabrowdar Bania on 1-5-80 at 8.15 a.m. that last night at about 1.00 a.m. the four accused persons namely -- (1) Ghanakanta Das, (2) Bhedu Das, (3) Ramesh (Kamrupia) and (4) Purna trespassed into the dwelling house of his paternal uncle Gopeswar Das by digging a 'Sindhi' (a hole) at the outer edge of the mudfloor of the house and one of them fired one round from a gun thereby causing gun shot injury on the abdomen of Gopeswar Das who succumbed to the injury instantaneously, a case was registered at the Police Station Behali and investigations undertaken by Shri Sada Nanda Pathak, P.W. 1 an Inspector of Police attached to that Police Station. On conclusion of the investigation the charges under Section 457/302/34, I.P.C. were hauled up against the four accused persons namely (1) Ghanakanta Das, (2) Bhedu Das and (3) Purna Bhuyan as the accused Ramesh was already dead during the period of investigation, to the Court of Sessions, Darrang. On conclusion of the trial the learned Sessions Judge, Darrang found the three accused guilty under Section 302/34, I.P.C. and accordingly he sentenced them to imprisonment for life. In addition, the three persons were also directed to pay a fine of Rs. 1,000/-each in default three months R.I. It is against this order of conviction and sentence recorded by the learned Sessions Judge, Darrang that the present appeal has been preferred by the three convicts.
12. The prosecution case, as gathered from the evidence of the widow and the three daughters of the deceased, is that in the night between 30-4-80 and 1-5-80 some miscreants entered into the house of Gopeswar Das of Buroiguri Roumari village by making a hole at the northern edge of the mudfloor of the house and one of them fired one round from a gun thereby causing gunshot injury on the abdomen of Gopeswar Das (deceased) who succumbed to the injury instantaneously. When his 14 years old daughter Smt. Bina Das raised hue and cry one of the miscreants shot another round from the said gun aiming towards her thereby causing injury on her left eye. The miscreants also fired some more rounds when the inmates of the house raised alarm. The said Bina Das and some members of the family could recognise the four accused. One Dambrowdar Bania the nephew of the deceased Gopeswar lodged the report Ext. 1. During the course of the investigation the four accused were arrested by the Investigating Officer. However, the accused Ramesh was murderd after some months of the occurrence by some persons.
13. Dr. Dina Bora (P.W.-No. 1) performed autopsy over the dead body of Gopeswar. On examination he found two perforating wounds one on the right side of the abdomen 5 inches above and 2 inches right lateral to ambilicus and another on the left side of the abdomen 4 inches above and 3 inches lateral to ambilicus. Both the right and left lung were also ruptured. According to him only one gun shot injury was found on the person of the deceased. He was of the opinion that the injury was caused by a shot gun which was fired from a distance of about 3 feet. He was also of the opinion that the wounds were antemortem and that the cause of death was due to shock and haemorrhage as a result of gun shot wound.
14. On the basis of the evidence of the witnesses and also on the basis of the Medical report, the investigating officer submitted the charge-sheet in the manner as stated above.
15. The charges under Section 457, I.P.C. and 302/34, I.P.C. were framed against the three accused. They entered the plea of not guilty and claimed for trial.
16. The prosecution examined as many as eleven witnesses to establish the charges. The defence, however, examined only five witnesses to defend the accused. In this case there is no dispute that on the alleged night Gopeswar (deceased) sustained gun shot injury on his abdomen and that Gopeswar succumbed to the injury instantaneously. It is proved beyond doubt by the evidence of his three daughters namely-- Lila Das (P.W. No. 8), Mina (P.W. No. 9) and Sampa Das (P.W. No. 6), his widow Smt. Durgeswari Das and the Medical Officer Dr. Dina Bora (P.W. No. 1). The defence has not disputed on this point. Therefore, in this case, the following points fall for discussion : --
(1) Whether the four accused persons along with some others entered into the house of Gopeswar on that night by making a hole at the northern edge of the mudfloor of the house? If so, whether the four accused persons are liable under Section 457, I.P.C.
(2) Whether one of the three accused fired one round from a gun thereby causing injury on the abdomen of deceased Gopeswar Das who succumbed to the injury instantaneously? If so, whether the accused are liable under Section 302 read with Section 34, I.P.C.
17. Shri J. M. Chaudhuri, learned defence counsel, has submitted in some length that there is absolutely no evidence to establish that the four accused along with some persons entered into the house of Gopeswar by making a hole. The learned Sessions Judge also held that there is absolutely no evidence that the four accused entered into the dwelling house of the deceased Gopeswar by making a hole and we think he rightly did so. Shir G. Gopal, learned Public Prosecutor cannot point his accusing finger to this finding of the learned Sessions Judge. None of the witnesses including the inmates of the house mentioned anything about the presence of such a hole in their examination before the trial Court. The Investigating Officer also did not mention anything about the presence of such a hole during the course of the investigation of the case. Further, the sketch map also does not indicate the presence of any hole. Thus there is absolutely no evidence to establish that the accused along with some other miscreants entered into the house of the deceased by making a hole at the northern edge of the mudfloor of the house. The question as to how the accused entered into the house of the deceased on that night is still a mystery. It will be discussed at the appropriate stage. However, as the prosecution has failed to establish that the accused entered into the house by making a hole, they are not liable under Section 457, I.P.C. in any manner.
18. Having settled on the above point, we again take up the second point for consideration. Shri J. M. Choudhury, the learned defence counsel has vehemently urged that the learned Sessions Judge made an erroneous finding that the accused persons were responsible for the injury sustained by the deceased Gopeswar basing on the evidence of the unreliable interested persons and therefore, the impugned order of conviction is liable to be set aside. The learned Public Prosecutor, on the other hand, strenuously submits that the learned Sessions Judge rightly held that the accused persons were responsible for the injury sustained by the deceased Gopeswar.
19. It is correct that the learned Sessions Judge, relying on the evidence of (1) Lila Das, (2) Mina Das, (3) Sampa Das (daughters of the deceased) and Durgeswari Das (widow of the deceased) made his said finding that the accused persons were responsible for the injury sustained by the deceased. We now proceed to discuss their evidence hereunder.
20. The evidence of Durgeswar Das (P.W. No. 5) is that in the night of occurrence her husband Gopeswar Das (deceased) was sleeping with his daughter Sampa Das (P.W. 6) and his youngest son Kancha in a room. She was sleeping alone in a separate room. Having heard a sound of gunfire when she came out she saw Ghana, Bhedu, Purna and one 'Kamrupia' (one hailing from Kamrup District). She called her daughter Lila and Meena. When Meena and Lila came forward Ghana (accused) fired at them. When she went to her husband she found one injury mark which appeared like burnt injury on his abdomen. Thereafter, she called her brothers Ambika, Giridhar and Brajen and some others. Her daughter Meena sustained gunshot injury on her left eye. In her cross-examination she further testified that when she reached the door of her husband's room she saw the accused persons as they were going in front of her. She denied the suggestion of the accused that she did not state to the Police that she had come out on hearing the sound of gunfire and that she did not state to her neighbours who came to her house in the early morning that she could recognize the persons who came to her house. She also denied the defence suggestion that her husband was killed by his son Lakshi and some others out of animosity which they bore against the deceased in connection with landed property at some place and thereafter they brought the dead body inside the kitchen room.
21. In her attempt to corroborate the evidence of her mother, Sampa Das (P.W. No. 6) testified that on the night of occurrence she was sleeping with her father in a room, that she was awaken from slumber by the sound of firing and that she saw the three accused persons namely Ghana, Bhedu and Ramesh standing near their bed in the light of torch flashed by Ghana. She further testified that when the accused Ghana first fired one round from a gun, her father awoke and tried to go away and that her father was immediately pressed down by the other three accused and Ghana again fired one round from the gun thereby causing gunshot injury on the abdomen of her father. She also testified that after a short time the four accused went away through the door. She also deposed that on that night only herself, her two elder sisters and her mother were in their house besides her father and that all her brothers had gone to Dibrugarh for treatment. Thus the evidence of her mother Durgeswari Das that on the night of occurrence her deceased husband was sleeping in a room along with their youngest son Kancha and youngest daughter Sampa Das is falsefied by the evidence of Sampa Das. She also stated that she told the villagers namely Ambika, Gajen, Dambaru, Giridhar, Chandra and others who came to her house in the early morning that she could recognize the four accused. She denied the defence suggestion that she did not state before the police that she could recognize the four accused out of the miscreants. She also denied the defence suggestion that she stated to the police that on the night of occurrence her brothers were not at home. In her faint attempt to corroborate the evidence of her mother and her sister, Lila Das (P.W. No. 8) also stated that on the day of occurrence her younger sister Sampa Das and two younger brothers were sleeping with their father on the night of occurrence and that she recognized the four accused persons in the moonlight. Thus she had given a different version as to the persons who were sleeping on that night with the deceased in that room. All the witnesses including Sampa stated categorically that it was a rainy night but she had stated that she saw the accused persons in the moon-light. Further, her above statement in examination-in-chief was contradicted by her own statement in cross-examination. She stated that she saw the accused persons when she flashed her torch. She denied the defence suggestion that she stated to the police that she could not recognize any other miscreants who came to their house on that night. Similarly, Meena (P.W. No. 9) also made an attempt to corroborate the evidence of her two sisters and her mother. She stated that on hearing the sound of gunfire followed by an alarm raised by her mother, she herself and her elder sister came out from their room and they saw the three accused namely Ghana Kanta, Bhedu and Purna and a man from Kamrup going out from the room of their father and that the accused Bhedu fired one round from the gun thereby causing injury on her left eye. In her cross-examination, she denied the defence suggestion that she did not state to the police that she could recognize the four accused persons.
22. From the foregoing discussion of the four witnesses, it will be seen that they had categorically stated to the police that they could recognize the accused persons on the night of occurrence. It is also seen that they had categorically denied that they stated to the police that they could not recognize any of the miscreants who entered into their house. Further, the investigating officer Sadananda in his deposition as P.W. No. 2 stated that the four witnesses told him that they could not recognize any of the miscreants who entered into their house on that night. The learned defence counsel has drawn our attention to this statement of the Investigating Officer and submitted that in view of the above contradictions their evidence should not be believed. With the utmost respect to the defence counsel, we are unable to accept his above contention. We said so, because, unless the particular matter or point in the previous statement sought to be contradicted is placed before the witness for explanation the previous statement cannot be used as evidence. In other words, the drawing of the attention of the witness to his previous statement sought to be contradicted and giving of all opportunities to him for explanation are compulsory. The above principle of law will find place in the case of Rangi Jogi Naik v. State of Orissa, reported in AIR 1965 Orissa 205. The same principle of law will also find place in the case of Tahsildar Singh v. State of U.P., AIR 1959 SC 1012. In this case, it was tersely held that the statement not reduced to writing cannot be contradicted. Therefore, in order to show that the statement sought to be contradicted was recorded by the police, it should be marked and exhibited. However in the case in hand, there is nothing in the record to show that the previous statements were placed before them and the witnesses were given opportunities for explanation. Further, the previous statements before the police were not also marked and exhibited. Therefore, their previous statements before the police cannot be used for contradiction. Hence we are unable to accept the above contention of the learned counsel and to throw out the evidence of the witnesses on the ground that their evidence before the trial Court has been contradicted by their previous statement made before the Police.
23. In view of the decision made in the said cases, we have been persuaded irresistably to hold that the correct procedure to be followed which would be in conformity with Section 145 of the Evidence Act to Contradict the evidence given by the prosecution witnesses at the trial with a statement made by him before the police during the investigation will be to draw the attention of the witness to that part of the contradictory statement which he made before the police, and question him whether he did in fact made the statement. If the witness admits having made the particular statement to the police, that admission will go into the evidence and will be recorded as part of the evidence of the witness and can be relied on by the accused as establishing the contradiction. However, if, on the other hand, the witness denies to have made such statement before the police the particular portion of the statement recorded, should be previously marked for identification as B-1 to B-1, B-2 to B-2 (any identification mark) etc. and when the investigating officer comes into the witness-box he should be questioned as to whether these particular statements had been made to him during the course of investigation by the particular witness, and obviously after refreshing his memory from the case diary the investigating officer would make his answer in the affirmative. The answer of the investigating officer would prove the statements B-1 to B-1, B-2 to B-2 which are then exhibited as Ext. D-1, Ext. D-2 etc. (exhibition marks) in the case and will go into evidence, and may, thereafter, be relied on by the accused as contradictions. Similarly if the prosecution has drawn the attention of the witness to his previous statement recorded by the police, that portion is to be marked for identification as A-1 to A-1, A-2 to A-2 and when the investigating officer made his statement in the affirmative proving the statements A-1 to A-1, A-2 to A-2, the statements are to be exhibited and marked as Ext. P-1, Ext. P-2 etc. (any exhibition marks) in the case and will go into evidence and may thereafter be relied on by the accused. In the case in hand, as was discussed above, the above procedure was not followed while cross-examining the four witnesses to their previous statements and therefore, we are unable to discard their evidence before the Court on the ground as submitted by the learned counsel.
24. Shri J. M. Choudhury, the learned defence counsel has also vehemently submitted that the four witnesses are closely related to the deceased Gopeswar and therefore, their evidence should not be relied upon. Here again we find it difficult to accept the contention of the learned counsel. It is correct that P.W. No. 5 is the widow of the deceased. It is also correct that the other three witnesses are real daughters of the deceased. However, the evidence of these witnesses cannot be discarded or thrown out on the ground of mere relationship if their evidence is found to be true and reliable. Normally, a near relative is the last person to cover up the actual culprit and to falsely implicate the innocent person. This brings us again to the consideration whether the evidence of these witnesses is found to be true and reliable. It will be difficult, very difficult, indeed, to believe the evidence of the four witnesses that they could recognize the accused persons on the night of occurrence. We said so, because, some of the witnesses namely Brajendra Rai (P.W. No. 4), Tileswar Das (P.W. No. 7) etc. categorically stated that on their enquiry, these witnesses stated to them and the villagers who were present at their house that they could not recognize any of the dacoits. Now, Brajendra (P.W. No. 4) was the next door neighbour of the deceased Gopeswar and Tileswar Das (P.W. 7) too was a man of that locality who was called from his house by Birson and Lila and therefore they are disinterested witnesses. Again, both the witnesses were never declared hostile by the prosecution. If the four witnesses did not really tell them that they could not recognize any of the miscreants we do not find any acceptable reason why the prosecution should not declare them hostile and seek the permission of the Court to allow it to put question in the nature of cross-examination. As it was not done so, the only plausible conclusion is that the prosecution had taken them as the truthful witnesses.
Thus, it will be seen that the evidence of the four important eye witnesses who are closely related to the deceased is found to be not true and reliable. Their evidence, therefore, deserves to be discarded.
25. Further, there are some important circumstances which are not in favour of the prosecution story. The first circumstance is that the prosecution has failed to establish that the accused persons entered into the house of the deceased by making a hole in the northern edge of the mudfloor of the house. As the theory of making hole by the accused persons has not been proved, the question as to why and in what manner the accused entered into the house of the deceased is still in a mistery. At any rate, the prosecution has not-explained as to how the accused entered into the house of the deceased. It rather supports the case of the defence that the deceased was murdered somewhere else by some persons and thereafter the dead body of the deceased was brought to the kitchen. It certainly creates a strong doubt as to the prosecution case that the accused persons killed the deceased inside his house by shooting. Our doubt is further strengthened by the fact that there are material discrepencies in the statements of the three daughters and the widow of the deceased as to the persons who were sleeping with the deceased in that room. P.W. No. 5 (widow) stated that on the night of occurrence the deceased was sleeping with her youngest daughter Sampa and youngest son Kancha. Whereas Sampa P.W. No. 6 categorically stated that on the night of occurrence only her father Gopeswar (deceased) and herself . were sleeping in that room. She did not say anything about the presence of Kancha in that room on that night. Again some of them stated that on the night of occurrence none of the male members was present at their house and the rest stated that all the members were present at their house on the night of occurrence. Further our doubt as to the occurrence has also been fortified by the evidence of Brajendra Rai (P.W. 4) who testified that on the night of occurrence he did not hear any sound of gunfire. The evidence of the four witnesses is that the miscreants fired at least 4/5 rounds. If that be so, there was no reason why Brajendra (P.W. No. 4), being the next door neighbour of the deceased, should not hear the sound of gunfire. However Brajendra in an unambiguous term stated that on the night of occurrence he did not hear any sound of gunfire. Similarly Tileswar Das who is also a neighbour of the deceased categorically stated that on the night of occurrence he did not hear the sound of gunfire. They are the only disinterested witnesses amongst the witnesses produced and examined by the prosecution. It appears that the learned Sessions Judge did not consider all these aspects when he recorded the order of conviction. Another important circumstance which cannot be ignored by us is that none of the sons of the deceased including Lakshi gave evidence before the Court although some of them were said to be present in that night. Even their maternal uncle and the neighbours were said to be called by the widow and her daughters. Thus they remained passive. They did not take any interest. From this, we are inclined to believe the defence contention that the deceased was murdered somewhere else and thereafter the dead body was brought to the kitchen.
Undoubtedly, the deceased had some enemity with the accused persons. But motive is a double edged weapon and therefore, the possibility of falsely implicating the accused persons by the daughters and the widow of the deceased out of animosity which they bore against them cannot be completely ruled out.
26. For these reasons we hold that the prosecution has failed to establish that the accused persons were responsible for the gunshot injury sustained by the deceased. It follows that the prosecution has failed to establish beyond doubt that the accused persons are responsible for the death of the deceased Gopeswar Das. Hence, the accused persons are not liable under Section 302/34, I.P.C.
27. In the result, the appeal succeeds and is allowed. The impugned order of conviction and sentence passed by the learned Sessions Judge, Darrang is hereby set aside. The three accused are acquitted of the offence and they are to be released forthwith if their detention is not required in connection with any other case.