:COMMON : (Per the Hon'ble Sri Justice K.C.Bhanu)
1. Criminal Appeal by the State represented by the Public Prosecutor is filed against the order of acquittal of the respondent-sole accused of the charge under Section 302 of the Indian Penal Code, 1860 (for brevity 'IPC') passed by the III Additional Sessions Judge, (Fast Track Court), Asifabad, Adilabad District, vide judgment, dated 17-02-2005, in Sessions Case No.178 of 2003.
2. Criminal Revision Case is filed by the petitioner-accused under Sections 397 and 401 of the Criminal Procedure Code, 1973 (for short 'Cr.P.C.') against the order, dated 20-01-2004, in Crl.M.P.No.9 of 2004 in Crl.A.No.178 of 2003, wherein the petition filed by the petitioner herein under Section 311 r/w 91 Cr.P.C. and Section 45 r/w 50 of Indian Evidence Act, 1872 (for short 'the Act') seeking DNA test for P.Ws.2 and 3 to decide their paternity, was dismissed.
3. Brief facts, that are necessary for disposal of the prosecution case may be stated as follows: Ramancha Padma (hereinafter referred to as 'the deceased') is the second wife of the accused and mother of P.Ws.2 and 3. P.W.1 is the owner of the house in which the accused and deceased were residing as tenants. P.W.4 is the mother and P.W.5 is the daughter of P.W.1. The accused who is a resident of Koheda, Karimnagar District, came down to Ramakrishnapur in the year 1986 with his first wife Smt.Bhagyamma and children as he got job in MK-4 mine as coal filler. About five years back, his distant relative one Boppula Sammi Reddy, who was residing at 'A' zone working at MK-4 mine as coal filler died. After one month of his death, accused brought his wife Padma along with her two children and later married her and started staying together. On seeing the same, the first wife of the accused differed with him and went to her parents house. For about one year, the deceased and accused resided happily and after that differences arose between them. Accused used to shout at the deceased and every day, he used to beat her alleging that she was having illicit contacts with others and every day there used to be quarrel between them during nights.
On 06-11-2001 night after dinner, the accused, deceased and P.Ws. 2 and 3 slept in their room. Accused and children slept on the cot, while the deceased slept on the floor on a mat. In the front room, P.W.1 and others slept. At about 3.00 A.M. on 07-11-2001 the accused and the deceased woke up and they discussed for a while about the illicit relationship of the deceased and had a heated exchange words. In the meanwhile, P.Ws. 2 and 3 woke up from their sleep. While abusing each other, the accused became ferociously got up and took a hatchet , which was on the cooler and attacked the deceased and caused injuries on her forehead and face, as a result, the deceased succumbed to injuries. P.Ws. 2 and 3 ran out and informed to P.W.1, who along with neighbours immediately came and saw the deceased lying dead. On seeing them, the accused ran away. On the same day at 6.30 A.M., the accused went to Ramakrishnapur Police Station and lodged Ex.P17-report. Basing on it, P.W.12-Sub Inspector of Police, registered a case and issued Ex.P18 FIR and informed the same to P.W.13-Inspector of Police, who visited the scene of offence, found the dead body lying there and examined P.Ws. 1 to 5. In the presence of P.Ws.7 and 8, P.W.12 held inquest over the dead body of the deceased under Ex.P10 and thereafter subjected the dead body to post- mortem examination. The doctor who conducted autopsy over the dead body of the deceased opined that the cause of the death of the deceased was due to injuries to the Brain and its blood vessels and he issued Ex.P11 post-mortem certificate. After completion of investigation, P.W.13 filed charge sheet.
4. The learned Sessions Judge, framed the following charge against the accused: "That you at 3.30 A.M., on 07-11-2001 in your house at Abrahamnagar, Ramakrishnapur, did commit murder by intentionally or knowingly causing the death of your wife Smt.Ramancha Padma and thereby committed an offence punishable under Section 302 IPC." When the above charge was read over and explained to the accused in Telugu, he pleaded not guilty and claimed to be tried.
5. To bring home the guilt of the accused, the prosecution examined P.Ws. 1 to 13 and got marked Exs.P1 to 19 besides case properties M.Os.1 to 4.
6. After closure of the prosecution evidence, the accused was examined under Section 313 Cr.P.C. with reference to the incriminating circumstances appearing against him in the evidence of prosecution witnesses. He denied the same and reported no evidence.
7. The trial Court after considering both oral and documentary evidence on record, found the accused not guilty of the charge levelled against him and accordingly acquitted. Challenging the same, State preferred this appeal.
8. Now the point for determination is whether the prosecution has proved its case against the accused of the charge under Section 302 IPC beyond all reasonable doubt?
9. Learned Additional Public Prosecutor contended that the evidence of P.Ws. 2 and 3 is very clear that it is the accused who caused injuries to the deceased, that further the accused himself went to the Police Station and gave statement stating that he committed murder, that all these circumstances would go to show that it is the accused and none else, who committed the murder of the deceased and hence, he prays to set aside the judgment of the trial Court.
10. In dealing with the order of acquittal, though the appellate Court has got full power to re-appreciate the evidence, but it will be slow in interfering with the same in view of the fact that there is a presumption under law that the accused is presumed to be innocent unless contrary is proved. That presumption of innocence is further strengthened by an order of acquittal. Unless there are compelling or substantial reasons, ordinarily this Court would not interfere with the same. A finding can be said to be perverse, if it is not based upon any evidence. On this aspect, it is useful to refer to the decisions of the apex Court.
11. In a decision reported in AHER RAJA KHIMA V STATE OF SAURASHTRA 1, it was held thus (para 34): "IF that is the true scope of an appeal under section 417, where then does the doctrine of `compelling reasons` come in? And how do we fit it among the powers of a court under that section? The words compelling reasons` are not a legislative expression. They are not found in section 417. As far as I have been able to discover, it was first used in Surajpal Singh and others v. The State (2), wherein it was observed: `it is well established that in an appeal under section 417 of the Criminal Procedure Code, the High court has full power to review the evidence upon which the order of acquittal was founded, but it is equally well-settled that the presumption of innocence of the accused. is further reinforced by his acquittal by the trial court, and the findings of the trial court which had the advantage of seeing the witnesses and hearing their evidence can be reversed only for very substantial and compelling reasons`. Do the words `compelling reasons` in the above passage import a limitation on the powers of a court hearing an appeal under section 417 not applicable to a court hearing appeals against conviction? If they do, then it is merely the old doctrine that appeals against acquittal are in a less favoured position, dressed in a new garb, and the reasons for rejecting it as unsound are as powerful as those which found favour with the Privy council in Sheo Swarup v. King-Emperor (1) and Nur Mohammad v. Emperor (2 ). But it is probable that these words were intended to express, as were the similar words of Lord Russell in Sheo Swarup v. King Emperor (1), that the court hearing an appeal under section 417 should observe the rules which all appellate courts should, before coming to a conclusion different from that of the trial court. If so understood, the expression `compelling reason s` would be open to no comment. Neither would it be of any special significance in its application to appeals against acquittals any more than appeals against conviction. But the expression has been quoted in later judgments, especially of the courts below, as if it laid down that in appeals against acquittal, the standard of proof required of the appellant was far higher than what the law casts on appellants in other appeals, and as the words `compelling reasons` are vague and indefinite to a degree, the result has not seldom been that even when Judges hearing appeals under section 417 were convinced of the guilt of the accused, they refrained from setting aside the order of acquittal owing to the dark and unknown prohibition contained in the expression. That is the impression which I have formed in the appeals which have come before me. in this court. There is always a danger in taking a phrase, attractive and telling-in its context, out of it, and erecting it into a judicial formula as if it laid down a principle universal in its application. And this danger is all the greater when the phrase is of undefined import, and relates to appreciation of evidence. It is in the interests of the public that crimes should be punished, and it is with this object that section 417 confers on the State a right to appeal against acquittal. To fetter this right through such expressions as `compelling reasons` would not merely be to legislate but to defeat the plain intention of the legislature that an accused in an appeal against acquittal should. have only those rights which the State in an appeal against conviction or a respondent in a civil appeal has, and that he is to enjoy no special protection. The fundamental objection to regarding the expression `compelling reasons` as a rigid formula governing the decision of an appeal under section 417 is that it puts a judgment of acquittal, however rendered, in a position of vantage which the law did not accord to it, and throws around the accused who gets an order of acquittal in the trial court a protection which the law did not intend to give him. In my judgment, this is a situation in which great mischief must result, and the interests of the public must suffer"
12. In a constitutional bench decision reported in M.G.AGARWAL V STATE OF MAHARASHTRA2 , it was held thus (paras 16 and 17): "Section 423 (1) prescribes the powers of the appellate Court in disposing of appeals preferred before it and clauses (a) and (b) deal with appeals against acquittals and appeals against convictions respectively. There is no doubt that the power conferred by clause (a) which deals with an appeal against an order of acquittal is as wide as the power conferred by clause (b) which deals with an appeal against an order of conviction, and so, it is obvious that the High Court's powers in dealing with criminal appeals are equally wide whether the appeal in question is one against acquittal or against conviction. That is one aspect of the question. The other aspect of the question centres round the approach which the High Court adopts in dealing with appeals against orders of acquittal. In dealing with such appeals, the High Court naturally bears in mind the presumption of innocence in favour of an accused person and cannot lose sight of the fact that the said presumption is strengthened by the order of acquittal passed in his favour by the trial Court and so, the fact that the accused person is entitled to the benefit of a reasonable doubt will always be present in the mind of the High Court when it deals with the merits of the case. As an appellate Court the High Court is generally slow in disturbing the finding of fact recorded by the trial Court, particularly when the said finding is based on an appreciation of oral evidence because the trial Court has the advantage of watching the demeanour of the witnesses who have given evidence. Thus, though the powers of the High Court in dealing with an appeal against acquittal are as wide as those which it has in dealing with an appeal against conviction, in dealing with the former class of appeals, its approach is governed by the overriding consideration flowing from the presumption of innocence. Sometimes, the width of the power is emphasized, while on other occasions, the necessity to adopt a cautious approach in dealing with appeals against acquittals is emphasised, and the emphasis is expressed in different words or phrases used from time to time. But the true legal position is that however circumspect and cautious the approach of the High Court may be in dealing with appeals against acquittals, it is undoubtedly entitled to reach its own conclusions upon the evidence adduced by the prosecution in respect of the guilt or innocence of the accused. This position has been clarified by the Privy Council in Sheo Swarup v. Emperor, 61 Ind App 398: (AIR 1934 PC 227 (2)) and Nur Mohammad v. Emperor, AIR 1945 PC 151. ( 17 ) IN some of the earlier decisions of this Court, however, in emphasising the importance of adopting a cautious approach in dealing with appeals against acquittals, it was observed that the presumption of innocence is reinforced by the order of acquittal and so, "the findings of the trial Court which had the advantage of seeing the witnesses and hearing their evidence can be reversed only for very substantial and compelling reasons" : vide Surajpal Singh v. The State, 1952-3 SCR 193 at p. 201: (AIR 1952 SC 52 at p. 54 ). Similarly in Ajmer Singh v. State of Punjab, 1953 SCR 418: (AIR 1953 SC 76), it was observed that the interference of the High Court in an appeal against the order of acquittal would be justified only if there are "very substantial and compelling reasons to do so. " In some other decisions, it has been stated that an order of acquittal can be reversed only for "good and sufficiently cogent reasons" or for "strong reasons. " In appreciating the effect of these observations, it must be remembered that these observations were not intended to lay down a rigid or inflexible rule which should govern the decision of the High Court in appeals against acquittals. They were not intended and should not be read to have intended to introduce an additional condition in clause (a) of section 423 (I) of the Code. All that the said observations are intended to emphasise is that the approach of the High Court in dealing with an appeal against acquittal ought to be cautious because as Lord Russell observed in the case of Sheo Swarup,61 Ind App 398 : (AIR 1934 PC 227 (2)) the presumption of innocence in favour of the accused "is not certainly weakened by the fact that he has been acquitted at his trial. " Therefore the test suggested by the expression "substantial and compelling reasons" should not be construed as a formula which has to be rigidly applied in every case. That is the effect of the recent decisions of this Court, for instance, in Sanwat Singh v. State of Rajasthan, AIR 1961 SC 715, and Harbans Singh v. State of Punjab, AIR 1962 SC 439; and so, it is not necessary that before reversing a judgment of acquittal, the High Court must necessarily characterise the findings recorded therein as perverse. Therefore, the question which we have to ask ourselves in the present appeals is whether on the material produced by the prosecution, the High Court wa
13. In another decision reported in HARBAN SINGH AND ANOTHER V STATE OF PUNJAB 3 , it was held thus (paras 8): "THE question as regards the correct principles to be applied by a Court hearing an appeal against acquittal of a person has engaged the attention of this Court from the very beginning. In many cases, especially the earlier ones, the Court has in laying down such principles emphasised the necessity of interference with an order of acquittal being based only on "compelling and substantial reasons" and has expressed the view that unless such reasons are present an Appeal Court should not interfere with an order of acquittal. (Vide Suraj Pal Singh v. The State, 1952 SCR 193 : (AIR 1952 SC 52); Ajmer Singh v. State of Punjab, 1953 SCR 418 : (AIR 1953 SC 76); Puran v. State of Punjab, AIR 1953 SC 459. The use of the words "compelling reasons" embarrassed some of the High Courts in exercising their jurisdiction in appeals against acquittals and difficulties occasionally arose as to what this Court had meant by the words "compelling reasons". In later years the Court has often avoided emphasis on "compelling reasons" but nonetheless adhered to the view expressed earlier that before interfering on appeal with an order of acquittal a Court must examine not only questions of law and fact in all their aspects but must also closely and carefully examine the reasons which impelled the lower courts to acquit the accused and should interfere only if satisfied, after such examination that the conclusion reached by the lower court that the guilt of the person has not been proved is unreasonable, (Vide Chinta v. State of Madhya Pradesh, Criminal Appeal No. 178 of 1959; Ashrafkha Haibatkha Pathan v. State of Bombay, Criminal Appeal No. 38 of 1960 ).
14. In another decision reported in STATE OF UTTAR PRADESH V RAM SAJIVAN AND OTHERS 4, it was held thus (para 50): " In Ummedbhai Jadavbhai v State of Gujarat (SCC p.232 para 6), the Court observed thus: In an appeal against acquittal, the High Court would not ordinarily interfere with the trial court's conclusion unless there are compelling reasons to do so, inter alia, on account of manifest errors of law or of fact resulting in miscarriage of justice." Bearing the above principles in mind, it has to be seen whether the judgment impugned is perverse or the trial Court mis directed itself in acquitting the accused. In nutshell it must be shown that the judgment under challenge is palpably wrong, manifestly erroneous or demonstrably unsustainable.
15. The homicidal nature of the death of the deceased is established beyond reasonable doubt because the doctor who conducted autopsy over the dead body of the deceased found the following injuries: 1. Lacerated wound 9''x 5" x 5" over frontal (forehead) extended to vertex and left paritial region and downwards towards right eyebrow and there were blood clots seen in the wound, Brain matter was protruding and I also found bonny pieces in the wound. 2. Multiple fractures of frontal bone right orbital and right maxillar bones and also found fracture in left parieto occipital bones of the skull. 3. Crush injuries of Brain which was extensive. 4. Haemotomos are found in the brain. He opined that the cause of the death of the deceased was due to cardio respiratory arrest due to Neurogenic and hemorrhagic shock as a result of the injuries to the brain and its blood vessels and he issued Ex.P11 post-mortem report. The accused except disputing about the time of the death of the deceased, has not seriously disputed about the homicidal nature of the death of the deceased.
16. P.Ws. 2 and 3 are the children of the deceased through her first husband. The accused was working in Singareni Calories. The incident is alleged to have taken place at 3.30 A.M., on 07-11-2001. P.W.1 is the owner of the house, who let out the premises to the accused and the deceased. She was examined by the police to speak that she was informed by the children of the deceased about the murder of the deceased. But, she did not support the case of the prosecution. Even after the cross-examination by the Public Prosecutor in the trial Court, nothing has been elicited to connect the accused with the crime.
17. Admittedly, P.Ws. 2 and 3 are child witnesses. The intellectual capacity of a child to understand the question and to give rational answers thereto is the sole basis of testimonial competency. The testimony of a child witness is only to be accepted after greatest caution and circumspection. Rational for this aspect is that it is common experience that a child witness is most susceptible to tutoring. On this aspect, it is pertinent to refer to a decision reported in DATTU RAMA RAO SAKHARE AND OTHERS V STATE OF MAHARASHTRA 5, wherein it was held thus (para 5): "The entire prosecution case rested upon the evidence of Sarubai (Public witness 2 a child witness aged about 10 years. It is, therefore, necessary to find out as to whether her evidence is corroborated from other evidence on record. A child witness if found competent to depose to the facts and reliable one such evidence could be the basis of conviction. In other words even in the absence of oath the evidence of a child witness can be considered under Section 118 of the Evidence Act provided that such witness is able to understand the questions and able to give rational answers thereof. The evidence of a child witness and credibility thereof would depend upon the circumstances of each case. The only precaution which the court should bear in mind while assessing the evidence of a child witness is that the witness must be a reliable one and his/her demeanour must be like any other competent witness and there is no likelihood of being tutored. There is no rule or practice that in every case the evidence of such a witness be corroborated before a conviction can be allowed to stand but, however as a rule of prudence the court always finds it desirable to have the corroboration to such evidence from other dependable evidence on record. In the light of this well-settled principle we may proceed to consider the evidence of Sarubai (Public witness 2.
18. Similarly, in another decision reported in NIVRUTTI PANDURANG KOKATE AND OTHERS V STATE OF MAHARASHTRA 6 , it was held thus (para 10): "The Indian Evidence Act, 1872 (in short "the Evidence Act") does not prescribe any particular age as a determinative factor to treat a witness to be a competent one. On the contrary, Section 118 of the Evidence Act envisages that all persons shall be competent to testify, unless the court considers that they are prevented from understanding the questions put to them or from giving rational answers to these questions, because of tender years, extreme old age, disease whether of mind, or any other cause of the same kind. A child of tender age can be allowed to testify if he has intellectual capacity to understand questions and give rational answers thereto. This position was concisely stated by Brewer, J. in wheeler v. United States (159 US 523 ). The evidence of a child witness is not required to be rejected per se, but the court as a rule of prudence considers such evidence with close scrutiny and only on being convinced about the quality thereof and reliability can record conviction, based thereon. [see suryanarayana v. State of Karnataka (2001 (9) SCC 129)] From the above decisions, it is clear that after careful scrutiny and evaluating the evidence of child witness, if it is found to be truthful and reliable and not an outcome of tutoring by any interested persons or relatives and inspires confidence of the Court, the evidence can be taken to base a conviction.
19. The entire case rests upon the evidence of P.Ws. 2 and 3 who are no other than the children of the deceased are the child witnesses because P.W.2 is aged about 12 years and P.W.3 is aged about 10 years as on the date of incident. They have stated in the chief examination that while they were sleeping in the house, they heard quarrel from parents and therefore, they woke up. During the quarrel, the accused picked up a hatchet (Barchi), which was on the cooler and dealt a blow on the face and head of the deceased and on hands and legs. Thereafter, the accused ran away from the scene of occurrence. On the same day, they were cross- examined to certain extent, but the case was adjourned on the ground that the counsel for the accused wants to file a revision against certain observations with regard to DNA test to know the paternity of the witness. Thereafter, these witness were recalled on 09-08-2004. Again on 27-10-2004, the witnesses were recalled by filing a petition. They have given a complete go by to their earlier statements made by them in Court on earlier occasion. On that day, they have stated that on the date of incident, they woke up in the early morning and when they woke up, they saw the dead body of their mother. They stated that they did not see the accused three days prior to the death of their mother. P.W.2 also admitted that she stated that the accused was the assailant of the deceased at the instance of the police. The contention of the learned Additional Public Prosecutor is that the chief examination of this witness can be relied upon in view of the decision reported in PUBI SATYANARAYANA @ SATTEYYA V STATE OF A.P. REP. BY PUBLIC PROSECUTOR 7, wherein it was held thus: "...Under such circumstances, it is the duty of the Court to take the earliest version given by the witnesses as correct basing on the previous material available on record or from the evidence of either investigating officer or subsequent witnesses. P.Ws. 1, 2 and 4 gave consistent version in their evidence, but it was adjourned for cross-examination. The Sessions Judges are normally expected to maintain cordial relations with the Bar, but not at the cost of justice. The Sessions Judges are not expected to adjourn the recoding of evidence in part and that practice is deprecated. In the instant case, since the Advocate has not co-operated, the Sessions Judge was not in a position to proceed with the case. So, we cannot find fault with the Sessions Judge, but we are concerned with the manner in which the witnesses in sessions cases are being manipulated after time is given. We feel that the Sessions Judges must be directed to record the evidence either on the same day or at least complete the same on the subsequent day. If this is done, the mischief of manipulated can be eliminated. If this is eliminated, then complete set of evidence is available on record for administration of justice. It is for the Sessions Judges, in a case like this where witnesses adopt resilent attitude, to accept the evidence recorded in one sitting. Since the resiling attitude has been taken by the vital witnesses and the earlier version is consistent with the medical evidence and other evidence independent of hostile witnesses, we feel that the second version given by hostile witnesses after considerable time cannot be accepted. Further, the other witnesses have corroborated the earlier version given by the hostile witnesses. We hold that the learned Judge has rightly convicted the accused even though the cross-examination of P.Ws. 1,2 and 4 had taken after quite some time and correctly appreciated the evidence on facts and circumstances of the case. We confirm the reasoning given by the learned Judge. If we accept the reasoning, we have to hold that the sole accused is guilty of the offence he is charged with." No doubt, the above decision says that earlier statement given by the witness is correct basing on the previous material available on record, but the examination in chief of a witness alone without his cross-examination is incomplete statement of witness and it is not evidence. Counsel appearing for the accused cross-examined the witness for a considerably long time and took adjournment for further cross-examination and on the day the witness was further cross-examined. On 27-10-2004, P.Ws. 2 and 3 were recalled and further cross-examined as per the orders of the trial Court, dated 29-09-2004, in Crl.M.P.No.106 of 2004. They resiled from their earlier statement made before the Court. Unless there are compelling or substantial reasons furnished by the accused for recalling the witness, ordinarily witnesses cannot be recalled. No doubt, the discretion lies on the criminal Court to allow the petition of accused to re-call or cross- examine the witnesses for further unless the Court thinks that such recall is necessary for the purpose of rendering complete justice. But, the counsel appearing for the accused cross-examined P.Ws. 2 and 3 at length. Then there is no need to cross-examine them further. The reason is obvious. Such type of practice should be deprecated. The Court should be cautious and would not ordinarily allow a petition to recall unless there are reasons to be recorded. No doubt, the cross-examination is one of the most important processes for the elucidation of the facts of the case, but all the reasonable latitude should be allowed. There cannot be any dispute that the whole of the evidence, examination in chief and cross-examination is to be read together for correct appreciation to find out truth there from. Cross-examination is a part of evidence as provided in the Act and while judging the veracity of the statement of a witness, the statement made by a witness in his cross-examination cannot be brushed aside and only those statement made by the witness which would lend support to the case of the prosecution are to be accepted. Therefore, after a long time, P.Ws. 2 and 3 were re-called and further cross-examined and they resiled from the earlier statement made before the Court in examination in chief and as well as cross-examination. When a witness is present and he was examined in chief, he should be cross-examined on the same day unless recording substantial reasons for adjourning the case to future date for cross-examination of the witness who is partly examined.
20. Whatever may be the reason, these witness turned hostile. They have given a complete go by to their earlier statements given to the police and also earlier depositions made in the Court with regard to the incident proper. The entire evidence has to be taken into consideration for the purpose of deciding the evidentiary value of a witness. If the evidence of a witness is put in the category of wholly reliable, then there is no difficulty in accepting the same. If the evidence of a witness is found to be neither wholly reliable nor wholly unreliable, then the Court can necessarily look for corroboration because he is not a fully truthful witness. Simply because these witnesses were declared hostile by the prosecution, that does not mean their entire evidence has to be wiped out from the record, but such part of their testimony, which inspires confidence can be taken into consideration for corroborating the other evidence, if any, available on record in view of the decision reported in SAT PAUL V DELHI ADMINISTRATION 8, wherein it was held thus: "In Narayan Nathu Naik v Maharashtra State (1971)1 SCR 133 the Court actually used the evidence of the prosecution witnesses who had partly resiled from their previous statements, to the extent they supported the prosecution, for corroborating the other witnesses."
21. Similarly in another decision reported in STATE OF RAJASTHAN V BHAVANI 9, it was held thus: "The fact that the witness was declared hostile by the Court at the request of the prosecuting counsel and he was allowed to cross-examine the witness, no doubt furnishes no justification for rejecting enbloc the evidence of the witness. But the Court has at least to be aware that prima facie, a witness who makes different statements at different times has no regard for truth. His evidence has to be read and considered as a whole with a view to find out whether any weight should be attached to the same. The Court should be slow to act on the testimony of such a witness and, normally, it should look for corroboration to his evidence. The High Court has accepted the testimony of the hostile witnesses as gospel truth for throwing overboard the prosecution case which had been fully established by the testimony of several eye witnesses, which was of unimpeachable character. The approach of the High Court in dealing with the case, to say the least, is wholly fallacious." From the above decisions, it is clear that when a witness is declared hostile by the prosecution, such part of his testimony, which inspires confidence, can be taken into consideration for corroborating the other evidence, if any, available on record. P.Ws. 2 and 3 stated in their evidence that the accused is the assailant of the deceased. When they were recalled on 27-10-2004, they stated that they did not witness the incident during nighttime and they woke up on the morning. In view of inconsistent statements, they cannot be termed as wholly reliable. Except the evidence of P.Ws.2 and 3 when they were examined on 09-01- 2004 and on 09-08-2004 that the accused is the assailant of the deceased and he is the person who caused the injuries on the face and head of the deceased, absolutely there is no corroborative evidence on record which would go to show that the accused was present in the house on the fateful day of the incident or he came to the house and slept in the house along with the deceased after taking dinner.
22. When the accused himself gave F.I.R., the fact of his giving the F.I.R. is admissible against him on the evidence of his conduct under Section 8 of the Act. If the information is not confessional, it is admissible against the accused, which is an admission under Section 21 of the Act and it is relevant. On this aspect, it is pertinent to refer to a decision reported in FADDI V STATE OF MADHYA PRADESH 10, wherein it was held thus (para 15):
"THE report is not a confession of the appellant. It is not a statements made to a police officer during the course of investigation. S. 25 of the Evidence Act and S. 162 of the Code of Criminal Procedure do not bar its admissibility. The report is an admission by the accused of certain facts which have a bearing on the question to be determined by the Court, viz. , how and by whom the murder of Gulab was committed, or whether the appellant's statement in Court denying the correctness of certain statements of the prosecution witnesses is correct or not. Admissions are admissible in evidence under S. 21 of the Act. S. 17 defines an admission to be a statement, oral or documentary, which suggests any inference as to any fact in issue or relevant fact, and which is made by any of the persons, and under the circumstances, thereafter mentioned, in the Act. S. 21 provides that admissions are relevant and may be proved as against a person who makes them. Illustrations (c), (d) and (e) to S. 21 are of the circumstances in which an accused could prove his own admissions which go in his favour in view of the exceptions mentioned in S. 21 to the provision that admissions could not be proved by the person who makes them. It is therefore clear that admissions of an accused can be proved against him.
23. Similarly in a decision reported in AGNOO NAGESIA V STATE OF BIHAR 11, it was held thus (Para 18): "IF the first information report is given by the accused to a police officer and amounts to a confessional statement, proof of the confession is prohibited by S. 25. The confession includes not only the admission of the offence but all other admissions of incriminating facts related to the offence contained in the confessional statement. No part of the confessional statement is receivable in evidence except to the extent that the ban of S. 25 is lifted by S. 27. Therefore, from the above decisions, it is clear that a confessional FIR given by the accused to a police officer cannot be used against him in view of bar under Section 25 of the Act. No part of confessional statement is receivable in evidence except to the extent that the ban of Section 25 of the Act is lifted by Section 27 of the Act. The Act does not define what is confession. Confession is explained by the Judicial Committee in the decision reported in PAKALA NARAYANA SWAMI V EMPEROR 12, wherein it was held thus:
" As the point was argued however and as there seems to have been some discussion in the Indian Courts on the matter it may be useful to state that in their Lordships view no statement that contains self exculpatory matter can amount to a confession, if the exculpatory statement is of some fact which if true would negative the offence alleged to be confessed. Moreover, a confession must either admit in terms the offence, or at any rate substantially all the facts which constitute the offence. An admission of a gravely incriminating fact, even a conclusively incriminating fact is not of itself a confession, e.g. an admission that the accused is the owner of and was in recent possession of the knife or revolver which caused a death with no explanation of any other man's possession." When the accused went to the police station and gave a statement that he killed his wife, definitely it amounts to a confession. It is not the admission made by the accused with regard to some other fact because the accused admitted his guilt, which amounts to a confession and is not admissible under law. Therefore, the evidence of P.W.12 and the recitals in Ex.P17 have no evidentiary value. As seen from the evidence, the origin and genesis of the occurrence has been suppressed by the prosecution. According to the prosecution, the incident is alleged to have taken place at about 3.30 A.M., whereas the medical evidence would go to show that the incident had taken place between 7.00 and 8.00 P.M. on the previous day. No doubt, ordinarily the medical evidence is opinion evidence, but there are certain circumstances, which would indicate that the incident had taken place at about 7.00 or 8.00 P.M., on the previous day but not at about 3.30 A.M. as suggested by the prosecution because the doctor who conducted autopsy over the dead body of the deceased found undigested rice food in the stomach. He did not find any food in the small intestine and big intestine of the dead body of the deceased. If really, the incident had taken place at about 3.30 A.M., on the early hours of the day, ordinarily the village people would take dinner before 10.00 P.M., on the previous day and the entire food, whatever may be nature would have digested five or six hours after taking dinner. It is admitted by the doctor that if a person takes rice food, it would take a minimum of 5 or 6 hours for the stomach to get emptied and the food after its intake into the stomach goes into small intestine through loopes and there it get mixed up with bile matters and other enzymes. The death of the deceased is instantaneous and he noted undigested food in the stomach, which would suggest that the deceased might have consumed rice food half an hour or one hour prior to her death. That means, the deceased might have taken food before 10.00 P.M. on the date of incident. Therefore, the prosecution has suppressed the factum of origin and genesis of the occurrence. In view of the fact that P.Ws.2 and 3 who are the eye witnesses to the incident turned hostile to the prosecution and they were cross-examined after recalling, their evidence cannot be taken as a sole basis for convicting the accused. The trial Court upon consideration of entire oral and documentary evidence on record, rightly acquitted the accused. Absolutely, there are no compelling or substantial reasons to interfere with the same.
24. Accordingly, the Criminal Appeal is dismissed confirming the judgment, dated 17-02-2005, in Sessions Case No.178 of 2003, on the file of the III Additional Sessions Judge, (Fast Track Court), Asifabad, Adilabad District.
25. In view of the disposal of the Criminal Appeal, Criminal Revision Case is dismissed as infructuous.
?1 AIR 1956 SC 217 2 AIR 1963 SC 200 3 AIR 1962 SC 439 4 (2010) 1 SCC 529 5 (1997) 5 SCC 341 6 (2008) 12 SCC 565 7 1994 (2) ALT (CRL.) 95 (D.B.) (A.P.) 8 AIR 1976 SC 294 9 AIR 2003 SC 4230 10 AIR 1964 SC 1850 11 AIR 1966 SC 119 12 AIR 1939 Privy Council 47