1991 Supreme(SC) 217

SUPREME COURT OF INDIA
 
RAMASWAMY, K., RAMASWAMY, K. AHMADI, A.M. JJ.
MALKIAT SINGH AND ORS.
Versus
STATE OF PUNJAB
DATE OF JUDGEMENT: 10/04/91
RAMASWAMI, V. (J) II
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.490 of 1985.
From the Judgment dated 29.5.1985 of the Judge, Special Court, Ferozepur in Case No.62/84, Trial No.23/85 and FIR No.154 of 1984.
U.R.Lalit and Prem Malhotra for the Appellants.
N.S.Das Behl and R.S.Suri (NP) for the Respondent.
The Judgement of the Court was delivered by

Headnote:(i) First Information Report - not a substantive evidence Value of;

       Held: It is settled law that the First Information Report is not substantive evidence. It can be used only to contradict the maker thereof or for corroborating his evidence and also to show that the implication of the accused was not an afterthought. Since the examination of first in formant was dispensed with by consent Ex. P-24, F.I.R. became part of the prosecution evidence. (Para 6)

       (ii) Evidence Act, 1872 - Section 11 r/ws 6 - PW 4 received 7 gunshot injuries and one incised injury and ran for life to a distance with bleeding injuries - His evidence that after reaching the home he knocked the door and fell down unconscious can be looked into as an earliest information or the existing condition of P.W. 4. (Para 6)

       (iii) SOLITARY WITNESS - Conviction can be made on the basis of the testimony of a; when;

       Held: It is settled law that corroboration is not a rule of ~w, but one of caution as an assurance. The conviction could be made on the basis of the testimony of a solitary witness. The occasion for the presence at the time of occurrence, opportunity to witness the crime, the normal conduct of the witness after the incident, the nearness of the witness to the victim, his predisposition towards the accused, are some of the circumstances to be kept in view to weigh and accept the ocular evidence of a witness. It is not the quantum of the evidence but its quality and credibility of the witness that lends assurance to the court for acceptance. Considered in this light, we have no hesitation to conclude that P.W.-4 is a witness of truth and inspires us to believe his evidence. He would, even in the absence of any light have identified the accused, who had attacked him and committed the murders of sleeping, unarmed and innocent D-1 to D-4. (Para 8)

       (iv) Criminal Procedure Code, 1973 - Section.l72 - Diary of proceedings in investigation - Use of;- Unless the investigating officer or the court uses it either to refresh the memory or contradicting the investigating officer as previous statement, the entries cannot be used by the accused as evidence.

       Held: That the case diary is only a record of day to day investigation of the Investigating Officer to ascertain the statement of circumstances ascertained through the investigation. Under sub-so (2) the Court is entitled at the trial or enquiry to use the diary not as evidence in the case, but as aid to it in the inquiry or trial. Neither the accused, nor his agent, by operation of sub-so (3), shall be entitled to call the diary, nor shall he be entitled to use it as evidence merely because the Court referred to it. Only right given thereunder is that if the police officer who made the entries in the diary uses it to refresh his memory or if the Court uses it for the purpose of contradicting such witness, by operation of s.161 of the Code and s.145 of the Evidence Act, it shall be used for the purpose of contradicting the witness, i.e. Investigation Officer or to explain it in re-examination by the prosecution, with permission of the court It is, therefore, clear that unless the investigating officer or the court uses it either to refresh the memory or contradicting the investigating officer as precious statement under s. 161 that too after drawing his attention thereto as is enjoined under s. 145 of the Evidence Act. The entries cannot be used by the accused as evidence. Neither P.W.-5, nor P.W.-6, nor the court used the case diary. Therefore, the free use thereof for contradicting the prosecution evidence is obviously illegal and it is inadmissible in evidence. Thereby the defence cannot place reliance thereon. But even if we were to consider the same as admissible that part of the evidence does not impinge upon the prosecution evidence. (para 11)

       (v) PRACTICE & PROCEDURE - EVIDENCE - Omission of the names of the accused in the memos sent to the Medical Officer. Would not create any doubt that they were later implicated.

       Held: It is not a rule of law that the memo should bear names with cause title of accused. It is enough if the name of the injured is mentioned in the memo. Therefore, the omission to refer their names after the word Banam in the memos sent to the Doctor would not create any doubt that the appellants were later implicated.

       (vi) Criminal Procedure Code, 1973 - Sections 174 & 175 Statement of P.W. enclosed to the inquest reports. Cannot be used as substantive evidence except to contradict the maker thereof, or to explain the same by prosecution.

       Held: Section 174 of the Code empowers a police officer to investigate in the presence of two or more respectable witnesses and report only the cause of death and the person, if known, that has committed the offence. Section 175 empowers him to summon any person who appears to be acquainted with the facts or the case and every person so summoned shall be bound to attend the inquest and answer truely all the questions other than questions the answers to which would have a tendency to expose him to a criminal charge or to a penalty or forfeiture. The statement made by such person is a "previous statement" within the meaning of s.162 and it shall not be signed. So the statement made by such a person to police officer is in the course of the investigation, and when reduced to writing, it shall be used only by the accused to contradict such witness in the manner provided by s.145 of the Evidence Actor with the permission of the court the prosecution could use it for re-examination only to explain the matter referred to in his cross-examination. It is settled law that s.162 was conceived to protect an accused creating an absolute bar against the previous statement made before the police officer being used for any purpose whatsoever. The obvious reason is that the previous statement under the circumstances was not made inspiring confidence. It enables the accused to rely thereon only to contradict the witnesses in the manner provided by s.145 drawing attention of the witness of that part of the statement intended to be used for contradiction: It cannot be used for corroboration of a prosecution or defence witness or even a court witness, nor can it be used contradicting a defence or a court witness. The investigating officer is enjoined to forward the inquest report to the Magistrate along with the statement recorded at the inquest, so that the court would see the record, at the earliest of the circumstances leading to the cause of the death of the deceased and the witness examined during the inquest. Therefore, the statement of P.W.-3 recorded during inquest is not evidence. It is a previous statement reduced to writing under s. 162 of the Code and enclosed to the inquest report and cannot be used by the prosecution for any purpose including to show the names of the accused except to contradict the maker thereof, or to explain the same by prosecution. (para 12)

       (vii) Terrorist Affected Areas (Special Courts) Act, 1984 - Section 14(1) - Indian Penal Code, 1860 - Section 302/34 - Appeal U/S 14(1) - Dl and D2 died due to gun-shot injuries - D3 & D4 also had gun-shot lacerated as well as incised injuries - They also died on the spot due to injuries which were sufficient to cause death in the ordinary course of nature - Recovery of empty and live cartridge fired from the rifle belonging to A -I, from the scene of occurrence - Injured witness whose presence at the time of occurrence stands confirmed implicated Al & A3 - His evidence receives corroboration from medical evidence - Al and A3 came together, killed the sleeping four persons and attempted to kill P.W. 4 - Motive to kill established Evidence on record stating that Al & A3 have shared common intention - Conviction u/s 3021 34 and 307 r/us 34 - A2 is, granted benefit of doubt.

       Held: In addition there is a strong circumstantial evidence against A-1 and A-3. On his arrest on June IS, 1984, M/O/11, rifle was recovered from A-1. As per Ex.P-17licence, it belongs to him, the ballistic report Ex.P-20 establishes that the empty cartridges EX.P.1 to M.7 were discharged from the bore of M/O/11. This evidence clearly established that M/O/11 was used by A-1 in the crime. In his examination under s. 313, no explanation was given as to how MO 11 rifle could go out from his custody for being used, in committing the crime by third parties. From its recovery from the person of A-1, it is clear that it continued to remain in his custody from the time of user in the crime till it was recovered from him. These circumstances coupled with oral evidence of P.W-4 and P.W.-3 clearly establish the complicity of A-1 in committing the offences of murder of D-1 to D-4. As equally A-3 accompanied A-1 to the liquor shop and had quarrel. When A-1 and A-3left the shop in anger, it is clear that they left the shop in a huff smarting from humiliation at the hands of the contractor from out side the state and their staff. To avenge the humiliation heaped upon them, they animated to finish the prosecution party. Obviously they chose past mid-night to be sure that all would be asleep and no evidence of their crime would be available. Thus they have strong motive to kill the deceased and to make murderous attack on P.W-4. More- over gandasa was recovered pursuant to A-3s statement under s. 27 of Evidence Act leading to its discovery and it contained human blood though blood group could not be detected due to disintegration. The two incised injuries each on the persons of D- 3 and D-4 as corroborated by medical evidence clearly established the participation of A-3 in attacking the deceased. He accompanied A-1 at dead of night to the liquor shop and killed D-1 to D-4andattempted tokillP.W.4. Thus he shared with A-1 the common intention to kill the deceased D-I to D-4 and attempt to kill P.W. -4. The production of the credit chit kept on the table in the shop would have lent corroboration to the prosecution case of the sale of liquor to A-1 and A-3 on credit it is not the prosecution case that it was signed by either of the accused. It is now in evidence that it was burnt out also with the shop, though no definite evidence for cause of burning is on record, except vague suggestions but denied by the, prosecution witnesses that the terrorists committed the arson and killings. From a totality of facts and circumstances it cannot be concluded that terrorists committed the offence.

       As regards A-2 we have grave doubt of his participation in the crime. Admittedly, he had no motive to kill any of the deceased or to attack P.W.-4. He did not come at 9.00 p.m. on June 4, 1984 to the liquor shop for drinking. There is no recovery of gandasa from him, though he was arrested along with A-1 and A-3. The doubt whether A-2 was likely to be a participant in the commission of this grave crime of four deaths has not been removed from our minds. It is undoubtedly true that P.W.-4 had stated thatA-2 attacked him with the gandasa but when he was attacked while he was fleeing for life the possibility of mistaken identity of A-2 to A-3 cannot be ruled out. We make it cleat that we are not doubting the veracity of P.W.-4. In these circumstances A-2 is entitled to the benefit. Accordingly, we hold that A -1 and A - 3 have shared common intention, they had motive to kill the deceased. They came together, killed the sleeping innocent four persons D-1 to D-4 and also attempted to kill P.W.-4. (Paras 14 to 16)