IMPORTANT POINT
Examination of witnesses by Police – Portion of prior statement shown to witness for contradicting the witness must be proved through Investigating Officer – Unless said portion of prior statement used for contradiction is duly proved, it cannot be reproduced in deposition of witnesses.

JUDGMENT

ABHAY S. OKA, J.

FACTUAL ASPECTS

1. The appellant has been convicted for the offence punishable under Section 302 of the Indian Penal Code, 1860 (for short, ‘the IPC’) and has been sentenced to undergo imprisonment for life and pay a fine of Rs.2000/-. In default of payment of the fine of Rs.2000/-, he has been sentenced to undergo rigorous imprisonment for one year. The appellant's conviction was rendered by the Sessions Court (Court of Additional Sessions Judge, Shahdara, Delhi) and confirmed by the impugned judgment by the High Court of Delhi.

2. The name of the deceased is Dharminder. The appellant was a neighbour of the deceased. On 12th July 1995, at about noon, the appellant came to the residence of the deceased and called upon him to accompany him. PW-3 (mother of the deceased) enquired with the appellant where they were going. The appellant replied that they would return soon, and they went together by holding each other’s hands. At that time, PW-1 (father of the deceased) was in the house, but he was sleeping as he had done night duty as a security guard. As the deceased did not return till 1 pm, PW-3 went to the appellant's house to enquire about the whereabouts of the deceased. At that time, the appellant told PW-3 that the accused had gone to watch a movie. PW-3 had to wait for the whole night. As the deceased did not turn up, on 13th July 1995 at 7 am, PW-3 again visited the appellant's house to enquire. The appellant’s mother told PW-3 that the appellant had gone out for work and he would be back by 9 pm. The parents of the deceased searched for the deceased the whole day. They went to the appellant’s house again at 8 pm. When they met the appellant, they found that the appellant gave inconsistent answers. Initially, the appellant stated that the deceased had gone to purchase manjha (a thread used for flying kites). Thereafter, he stated that he had left the deceased on the road. Lastly, the appellant stated that he had left the deceased at his residence. As the answers given by the appellant were not satisfactory, the parents of the deceased threatened the appellant to file a police complaint. Ultimately, at 10 pm, PW-1 went to the Police Station and lodged a missing report. After lodging the missing report, when the Police, accompanied by the parents of the deceased, went to the house of the appellant, they found that the appellant and his father had absconded. On 14th July 1995 at about 8 am, PW-5, who was the cousin of the deceased, told PW-1 that the dead body of the deceased was lying in a bathroom on the terrace of a particular building. PW-1 visited the spot and identified the body of the deceased. He found that a rope was tied to the neck of the deceased, and the hands were tied on the back side. A First Information Report was registered for the commission of an offence punishable under Section 302 of the IPC. The case rests on circumstantial evidence.

SUBMISSIONS

3. The learned counsel appearing for the appellant has taken us through the evidence of the material prosecution witnesses. He submitted that the evidence of PW-3 (mother of the deceased) is full of inconsistencies, improvements, omissions and contradictions. He pointed out the omissions from the cross-examination of PW-3. He submitted that the omissions are so vital that it is very difficult to believe the testimony of PW-3. He pointed out that PW-3 was declared hostile, and the Public Prosecutor was permitted to cross-examine her on certain aspects. He submitted that the evidence of PW-3 ought not to have been believed. He pointed out that though in the examination-in-chief, PW-1 and PW-3 stated that they repeatedly went to the house of the appellant to enquire about the whereabouts of the deceased, these statements in the examination-in-chief are omissions. He submitted that the vital circumstance of the last seen together had not been established beyond a reasonable doubt. He submitted that even the allegation that the appellant gave e