V. Ramkumar, J.
1. The four appellants herein who were the accused in S. C. 79/2000 on the file of the Fast Track Court (Ad hoc) II, kottayam were charge-sheeted by the Dy. S. P. of Police, Narcotic Cell, Kottayam (PW-16) for an offence punishable under Section 302 r/w. Section 34, IPC.
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 Regn. No. KL-5/B 9756 along with A1 to A3 in the said goods carrier and pulled up in front of Marangattil House of the deceased namely, Sathyadevan alias Sahadevan alias Sahadi aged 42 years. The deceased was the driver of a mini lorry. A 2 straightway went over to the deceased who was sitting along with PW-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 (PW-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 A2 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. Al then exhorted his companions to cut Sahadevan to death. Thereupon A2 drew a chopper from inside his shirt and cut the deceased on his head inflicting injuries. A3 stabbed the deceased on his right arm with a knife inflicting injury. A4 then cut the deceased on the back of his head with a chopper. Deceased Sahadevan who fell on the road was taken by PWs-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 A1 to A4 in prosecution of their common intention to do so, the accused persons have committed the offence of murder punishable under Section 302 r/w Section 34, IPC.
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 PWs-1 to 16 and got marked 17 documents as Exts. P1 to P17 and 8 material objects as MOs 1 to 8.
4. After the close of the prosecution evidence the accused were questioned under Section 313(1)(b), Cr.P.C. 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. P16 and P17 are the wound certificates pertaining to A2 and A3 respectively.
5. When called upon to enter on their defence, the accused examined the Secretary of the Ayarnkudy Branch of KPMS as DW-1. In the written statement filed under Section 233(3), Cr.P.C. the 2nd accused stated as follows :--
He was travelling in the pick-up autorikshaw of A4 for loading jack fruits from the property of KPMS situated to the west of the place of occurrence. When they reached the place of occurrence, the autorickshaw driven by his brother A3 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 A2 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 A3 rolled on the ground and grappled with each other. Himself and A3 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 under Section 428, Cr.P.C. was also allowed. II is the said judgment which is assailed in this appeal.
7. We heard Advocate Sri S. Vijayakumar appearing for A1 to A3, Advocate Sri. S. Radhakrishnan appearing for A4 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 :--
PW-1 who is not an occurrence witness is the first informant. He has materially deviated from Ext.P1 F.I. statement when examined before Court. PW-2 who is an occurrence witness committed a mistake in identifying A 2 and A 3 and was declared hostile by the prosecution. PW-3 who is author occurrence witness was also declared hostile to the prosecution. The only other occurrence witnesses who supported the prosecution were PWs-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.P12 postmortem certificate shows only three injuries on the head of the deceased. A1 has been arrayed as an accused with the aid of Section 34, IPC by alleging that he made an exhortation to kill the deceased. There is absolutely no other overt act attributed to Al who was a non-performing accused. Hence Al could not be convicted on the basis of mere exhortation in view of the decisions in Suresh v. State of LI. P. (2001) 3 SCC 673 : (2001 Cri LJ 1462), Hem Raj v. Raja Ram (2004) 9 SCC 18 : (2004 Cri LJ 901) para 11. Similarly, there is no acceptable evidence to prove the complicity of A4 in the occurrence. The stand of PW-7 when examined by the police under Section 161(3), Cr.P.C. and by the Magistrate under Section 164, Cr.P.C. was that A4 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 A4 hit the deceased on the back of his head with some object which was not sharp. But Ext. P12 postmortem certificate does not show any corresponding injury on the back of the head of the deceased. PW-2, who is the independent witness to the occurrence admitted that his knowledge about A4 cutting with a chopper was only hearsay and he does not know what A4 did except that when the crowd became thin after the occurrence, A4 drove away the autorikshaw in which he had brought A1 to A3. PW-3 the other independent occurrence witness also says that A4 drove away the pick-up autorickshaw. The prosecution evidence against A2 and A3 who are the sons of Al 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. P16 and P17. The deceased was a well built person of robust: health. Going by the evidence of PW-2 and others it was the deceased who first hit A2 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 A3 and A4. 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 A2 and A3. There is no evidence to the effect that the powder which was allegedly sprinkled by A3 was chilly powder. It was not subjected to chemical examination. Ext. D5 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. D5. There is not a single incised injury in Ext. D5. Ext.P12 post mortem certificate shows as many as two incised injuries. Ext.P8 inquest report prepared by PW-14 shows an 'L' shaped injury in the place of injury No. 1 in Ext.P12 post mortem certificate. But the postmortem 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 ease 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 under Section 161(3) by PW-14 and PW-15 who conducted the investigation prior to PW-16. This has resulted in extreme prejudice to the appellants in shaping their defence PW-16, the Dy. S. P. has admitted in unmistakable terms that the statements recorded by PWs-14 and 15 have also not been produced before Court nor copies furnished to the accused and that the C. D. file maintained by PWs-14 and 15 has not been produced. According to PW-15, consequent on his discovery that the statements of the witnesses when questioned by him were at variance with the statement recorded by PW-14 he recommended the recording of Section 164 statement by the Magistrate. PW-2 would admit that the statement given by him to the: Magistrate under 164, Cr.P.C. was as requested by the police. The 161 statement recorded by PW-16 and produced before Court was after a span of 2 1/2 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 v. Raghavan, 1974 Cri LJ 1373, para 5, State of Kerala v. Thomas Cherian, 1982 Cri LJ 2303, para 12. Murali v. State of Kerala, 2003 (3) Ker LT 226 and Balachandran Pillai v. State of Kerala, 2005 (1) KLJ 428 : 2005 Cri LJ 1480.
9. The learned Public Prosecutor submitted that the investigation conducted by PW-14 was dishonest and unfair and that was why the investigation had to be entrusted with PW-16, a superior officer and 161 statements recorded by PW-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. PW-15 while questioning the witnesses noted that their statements recorded by PW-14 did not reflect what the witnesses had stated to PW-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 under Section 161, Cr.P.C. 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 PWs-2, 3, 7 and 8 clearly proves the complicity of the appellants. PWs-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 alias Sahadevan alias 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. PW-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 (PW-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 PW-7 (Rajamma). On the other side (northern side) of the said road is the property of one Sebastian. A1 who was aged 61 years is the father of A2 and A3. A 1 to A 4 are all residents of that locality. The deceased was aged 43 years at the time of occurrence. PW-2 (Ayyappan Nair) who is a headload 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 autorikshaw 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 A3. (This is spoken to by PWs-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 PW-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 PW-2 was also by his side. The deceased drank a soda given by his wife (PW-7) who runs the adjacent grocery shop. Then an autorikshaw driven by A3 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 speed eastwards towards Kapola Junction. Five minutes after the departure of the said autorickshaw a pick-up autorickshaw carrying A 1 to A 3 and drawn 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 PW-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 PW-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 MO1 chopper from inside his shirt and inflicted two cut injuries on the head of the deceased. A 3 stabbed the deceased with MO 2 knife which struck the arm of the deceased. A4 cut the deceased on the back of his head with a flat weapon. A1 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. PW-2 who was in the company of the deceased, PW-3 (Asokan) who was cutting laterite stones in the northen property of Sebastian on the side of the road, PW-7 (Rajamma), wife of the deceased and 20 year old PW-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. v. Shanker, AIR 1981 SC 897 : 1981 Cri LJ 23). 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 State of Punjab v. Hari Singh, AIR 1974 SC 1168 and Pralhad v. State of Maharashtra, AIR 1981 SC 1241.) 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 in-significant 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 taperecorder.
13. It is true that PWs-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 PW-7 who was assisted by her son PW-8. Hence PWs-7 and 8 are the most natural witnesses who in the normal course of the 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 v. State of U. P., AIR 1990 SC 1272 : (1990 Cri LJ 1311), Surajdeo Yadav v. State of Bihar, 1996 Cri LJ 2302 : (AIR 1996 SC 3157) and Ramgopal v. State of Rajasthan, AIR 1998 SC 2598). No doubt, PW-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 PW-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 MO 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. D5 wound certificate, Ext. P8 inquest report and Ext.P12 postmortem certificate. It is true that Ext. D5 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 wound 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 Venkiah v. State of A. P., AIR 1985 SC 1715, Babu v. State of A. P., 1994 SCC (Cri) 424 : (1993 Cri LJ 3547) and State of Kerala v. Kilakkatha Pararnbath Sasi, 2004 (2) KLJ 606). Similarly, inquest is held by the police officer for ascertaining the apparent cause of death (See P. Narayana v. State of A. P., AIR 1975 SC 1252). 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 postmortem 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 under Section 145 of the Evidence Act, was questionable (vide Pandurang v. State of Hyderabad, AIR 1955 SC 216 : (1955 Cri LJ 572)). 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 P12 it can easily be concluded that the 'L' shaped injury described as injury No. 2 in Ext. P8 can only be injury No. I in Ext. P12 postmortem certificate. It is pertinent in this connection to note that PW-14 who held the inquest over the deadbody 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. (PW-15) and the services of PW-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 PW-1 as an occurrence witness in Ext.P1 F.I. statement and PW-1 had disowned that part of Ext.P1. statement. 14 is in evidence that there had been mass petitions against PW-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 PW-13 (Dr. P. Babu) who was familiar with his signature and handwriting who proved Ext.P12 postmortem 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 AIR 2004 SC 69 : (2004 Crl LJ 28) Kamaljit Singh v. 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 PWs-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 MO1 chopper and his brother A3 also acted in full concert attacking the deceased with MO2 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. Nahar Singh, 1998 SCC (Crl) 850 : (1998 Crl LJ 2006.)) There cannot be complete darkness even at 7 p.m. (vide Kommu Vinja Rao v. State of U. P., 1998 SCC (Crl) 954 : (1998 CM LJ 2523)). 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. (sec Kedar Singh v. State of Bihar, 1998 SCC (Crl) 907 : '(1999 Cri LJ 601)).
16. The position of accused Nos. 1 and 4 is. however on a different footing. A1 is the aged father of A 2 and A 3 and going by the evidence of all the occurrence witnesses A1 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 Al at the scene of crime without committing any over 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 PW-8 has stated is that after A 4 gave the cut with a flat, blunt weapon, Al 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 Al, as held in Mohan Singh v. State of M.P.. 1999 SCC (Crl) 261 : (1999 CM LJ 1334) A1 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 A1 to A3 in his pick-up autorickshaw. The evidence of DW-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 A1 to A3 also travelled in that autorickshaw. Going by the evidence of the eye-witnesses A 2 had hit the deceased on the head with a soda bottle and PW-13 (doctor) has opined that injury No. 1 in Ext. P12 post mortem certificate could be caused if the deceased were to be hit by a soda bottle. As per the ocular evidence, thereafter A2 cut the deceased twice on his head with MO1 chopper and lastly A 4 also cut the deceased on the head with another chopper. But in Ext.P12 post mortem certificate there are only two incised injuries on the head and PW-13 deposed that they could be inflicted with MO 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 hot appear to be convincing. No chopper also was recovered at the instance of A 4. In fact, the original version that A4 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 A4 in driving the pick-up autorickshaw westwards after the occurrence presumably to honour his commitment to KPMS 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 PW-14 and PW-15 who conducted the earlier investigation of the case. It is true that PW-16 admitted during his cross-examination that the statements of material witnesses recorded by PWs-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 PW-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 (PW-15). Since he found that the statements recorded by PW-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 under Section 164, Cr.P.C. PW-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 PW-14. The trial Court has also found that the benefit of the illegality committed by PW-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 v. Kishore, AIR 1996 SC 3035 : (1996 Cri LJ 2003) and State of Karnataka v. Yarappa Reddy, 1999 (3) KLT 456 (SC) : (2000 Cri LJ 400)).
18. A police officer conducting an investigation of a case involving the alleged commission of a cognizable offence has a right under Section 161 (1), Cr.P.C. to examine orally any person (including the accused) supposed to be acquainted with the facts and circumstances of the case. Section 161(2), Cr.P.C. 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), Cr.P.C. obliges him to make a separate and true record of such statement. Thus the law expects honestly 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) of 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, Cr.P.C. to place the accused for trial, Clause (b) of Section 173(5), Cr.P.C. enjoins him to forward along with the police report (charge-sheet or challan), the statements recorded under Section 161 of all the persons whom the prosecution proposes to examine as its witnesses. Similarly, Section 207(iii), Cr.P.C. casts a corresponding obligation on the Magistrate to furnish to the accused, free of cost, copies of such statements recorded under Section 161(3), Cr.P.C. Sections 173(4) and 207(A)(iii) were the corresponding provisions in the 1898, Cr.P.C. (old Code) in which those provisions were inserted by means of Amending Act 26 of 1955.
19. The only use which a statement recorded under Sections 161(3), Cr.P.C. can be put to is indicated by Section 162, Cr.P.C. 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 under Section 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 under Section 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. Cr.P.C. 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), Cr.P.C. to confront the witness with his 161 statement and a further permission granted under Section 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 Magistrate 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, Cr.P.C. and 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), Cr.P.C. 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 gauge 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 PC 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, Cr.P.C. employ the expression 'shall' it is now well settled that it is only directory and not mandatory. (Vide Narayan Rao v. State of A.P., AIR 1957 SC 737). What is the effect of non-compliance of the above provision and the consequent non-supply to the accused of the statements recorded under Section 161, Cr.P.C.? In Pulukkuri 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 Narayan Rao's case (AIR 1957 SC 737)(supra) 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 207A 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 Session, wholly ineffective'.
In a subsequent verdict of the Supreme court, also by a Bench consisting of three judges in Noor Khan v. State of Rajasthan, AIR 1964 SC 286 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 effect 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, Cr.P.C. corresponding to Sections 162, 173(4) and 207A(3) of the old 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 under Section 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's Bench in Shakila Abdul Gafar Khan v. Vasant Reghunath Dhoble, 2003 (7) SCC 749 : (2003 Cri LJ 4548) 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, 2004 AIR SCW 7116: (AIR 2005 SC 498) it is observed as follows :
'The effect of non-supply of copies has been considered by this Court in Noor Khan v. State of Rajasthan, AIR 1964 SC 286 and Shakila Abdul Gafar Khan v. Dhoble, 2003 (7) SCC 749). 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 under Section 161(3), Cr.P.C. 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 Chowdhari v. State of West Bengal, AIR 1956 SC 536). 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 case (AIR 1957 SC 737) 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 under Section 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 PW-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 facets 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 AIR 1957 SC 737 and AIR 1964 SC 286 : (1964 (1) Cri LJ 167). 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 PW-14 has caused prejudice to the accused. In fact, the accused were furnished with the statements recorded by PW-16 under Section 161(3), Cr.P.C. 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 AIR 1967 SC 637, AIR 1964 SC 286, the consequence is set aside the conviction and remit the case to the trial Court to rectify the effect.
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 A1 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 A2 and A3 are confirmed.
In the result, this appeal is partly allowed and partly dismissed as indicated above. Appeal partly allowed.