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Andhra Pradesh High Court
Bhootapati Aseervadam - Appellant
Versus
State - Respondent
Decided On : 02-13-56
CRIMINAL PROCEDURE CODE - SECTION 161(3) - MANDATORY PROVISION - BREACH - EFFECT ON TRIAL - SUBSTANTIAL PREJUDICE - TEST - SECTION 162 - DENIAL OF RIGHT TO CROSS-EXAMINE WITNESSES - EFFECT ON TRIAL - SUBSTANTIAL PREJUDICE - TEST - EVIDENCE ACT - SECTION 145 - RIGHT TO CONTRADICT WITNESS - DENIAL - EFFECT ON TRIAL - SUBSTANTIAL PREJUDICE - TEST.
Fact of the Case:
The appellants were convicted of murder and causing grievous hurt. The prosecution case was that the deceased and P.W. 3 were stabbed by the 1st appellant while the 2nd appellant hit P.W. 3 on the head with a stick. The defence was that the accused were the victims of aggression by the prosecution party.
Finding of the Court:
The court held that the prosecution had not established that the occurrence took place in the manner alleged by them and that they had not proved beyond a reasonable and substantial doubt that the 1st appellant had stabbed the deceased and caused the injury to P.W. 3 and the 2nd appellant hit P.W-3 on the head with a stick.
Issues: 1. Whether the breach of the mandatory provision of section 161(3) of the Criminal Procedure Code vitiated the trial? 2. Whether the denial of the right to cross-examine witnesses under section 162 of the Criminal Procedure Code affected the trial? 3. Whether the denial of the right to contradict a witness under section 145 of the Evidence Act affected the trial?
Ratio Decidendi: 1. The breach of the mandatory provision of section 161(3) of the Criminal Procedure Code does not per se vitiate the trial. The test is whether substantial prejudice has been occasioned to the accused. If the breach of the mandatory provision is such as to occasion real and substantial prejudice to the accused, the trial could be said to be affected. If, on the other hand, that has not in any way resulted in prejudice to the accused, the trial could not be said to be vitiated. 2. The denial of the right to cross-examine witnesses under section 162 of the Criminal Procedure Code does not necessarily vitiate the trial. The test is whether substantial prejudice has been occasioned to the accused. If the denial of the right to cross-examine witnesses has resulted in real and substantial prejudice to the accused, the trial could be said to be affected. If, on the other hand, that has not in any way resulted in prejudice to the accused, the trial could not be said to be vitiated. 3. The denial of the right to contradict a witness under section 145 of the Evidence Act does not necessarily vitiate the trial. The test is whether substantial prejudice has been occasioned to the accused. If the denial of the right to contradict a witness has resulted in real and substantial prejudice to the accused, the trial could be said to be affected. If, on the other hand, that has not in any way resulted in prejudice to the accused, the trial could not be said to be vitiated.
Final Decision: The appeal was allowed and the appellants were acquitted.
( 1 ) THE two appellants along with another were put up for trial before the Sessions Judge of Krishna on several counts in connection with an occurrence that took place at about 7 A. M. on the 15th of July, 1954. The 1st appellant was found guilty of having inflicted a fatal wound on one Moses, an offence punishable under section 302, Indian Penal Code and given a life sentence. Accused 2 was convicted under section 323 and sentenced to six months rigorous imprisonment. The third accused was acquitted. The accused as well as the members of the prosecution party are Harijan christians living in Baptist Palem, Bezwada.
( 2 ) THE 1st accused is the father of the wnd accused and the elder brother of the 3rd accused. P. W. 3 is the father of the deceased, P. Ws. 1, 2, 4, and 5, P. Ws. 2 and 4 being the daughters. P. W. 1 is an employee in the Bezwada Railway Station. He developed illicit intimacy with P. W. 7, the wife of the 3rd accused, two years prior to the occurrence. Seven months before the offence, he took away P. W. 7 from her house and began to live at Inchpet one mile away from Baptist Palem. Beyond reporting the matter to the authorities concerned, the third accused did not take any action. P. W. 1 speaks to his having been given a thrashing on the 13th of July, 1954, by A-1 and A-2 while he was on his way to the station-yard to attend to his normal duties. He then went to the Railway Police Station and gave a report against A-1 and A-2 and a police constable P. C. 1500. The railway police sent him to the Government hospital for treatment and wound certificate. The police did not take any further action in the matter as it was thought that it was a noncognisable offence and directed him to file a complaint. Because of this assault, p. W. 1 thought that it was not quite safe to continue to live at Inchpet. He therefore, came to live with his mistress, P. W. 7, in the house of P. W. 2 a sister of his on the evening of the I4th July, 1954. The next morning at about 7 A. M. while he was returning home after answering calls of nature, A-2 and A-3 caught hold of him and thrashed him. He raised an alarm and this attracted his sister, P. W. 2 to the scene and she beat A-2 and A-3 with a stick. He then saw A-1 coming with a spear from the direction of his house. So he got frightened and ran away and later went on duty. After P. W. 1 escaped, the 1st accused reached the scene. Just then, moses his elder brother came there with no weapon in his hand. A-1 speared him on his right flank with the result that the injured man fell down. Then P. W. 3; came and he was also stabbed by the same person on the left chest. The 1st accused exclaimed that the chief person escaped, hitting the spear against the ground and the spear was caught hold of by P. W-3 By then, P. W-4 also came to the scene and she beat with a stick on the head of A-1. While the fight was going on, P. W. 3 another son of P. W-5 sent a telephone message to the concerned police station, that his brothers were being attacked. On this, the Sub-Inspector attached to No. 4 town Police Station proceeded to the scene of crime. Seeing the police, the three accused ran away from the place. P. Ws. 6 and 8 were also present at the time and place of occurrence.
( 3 ) THE three accused immediately went to the police station in a rickshaw and gave a complaint, Exhibit B-6, wherein their version of the occurrence wan given. After the statement was taken down, they were sent to the hospital for treatment and wound certificate. The Sub-Inspector of Police who reached the place as the fight was coming to a close saw the deceased and P. W. 3 lying on the ground with the spear, M. O. 2 and two sticks by their side. The deceased and p. W. 3 were sent to the hospital where the doctor, P. W. 10, examined both of them. P. W. g the Taluk Magistrate who happened to visit the hospital recorded the dying declaration of the two injured persons. In Exhibit P-3 recorded between 9-0 A
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