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2004(2) Supreme 140
SUPREME COURT OF INDIA
(From Orissa High Court)
Y.K. Sabharwal & B.N. Agrawal, JJ.
Sashi Jena and Ors. -Appellants
versus
Khadal Swain and Anr. -Respondents
Criminal Appeal No. 697 of 2003
Decided on 10-2-2004
Counsel for the Parties :
For the Appellants : P.N. Misra, Sr. Advocate, Shibashish Misra and R.M. Patnaik, Advocates.
For the Respondents : Janaranjan Das, Swetaketu Mishra, Ms. Moushumi Gahlot, Advocates.
(ii) Evidence Act, 1872-Section 157-Previous statement of a particular witness-Could be used to corroborate only his own evidence during trial and not the evidence of other witnesses. (Para 11)
(iii) Criminal Procedure Code, 1973-Section 202-Examination of witnesses during inquiry of complaint-Accused may remain present only with a view to be informed of what was going on but had no right to cross examine any witness.
(iv) Indian Penal Code, 1860-Section 302/34-Appellants convicted under in a complaint-Deceased was married to appellant A2 in 1985 and she died homicidal death in house of appellants in 1986-Sole eye witness PW 1 turned hostile-Evidence of PW2 and PW4 on fact of dowry demand was unacceptable as averments were made 1st time in complaint which was filed after 11 months of incident-Sole circumstance that deceased died homicidal death and not as a suicide could not form basis for conviction-Conviction was liable to be set aside. (Para 16)
Key Points: - Statement of a witness recorded during inquiry under Section 202 Cr.P.C. is not admissible under Section 33 of the Evidence Act (!) . - Accused has no right to cross-examine a witness examined during the course of inquiry under Section 202 Cr.P.C. (!) . - Previous statement of a particular witness can only corroborate his own evidence and not evidence of other witnesses under Section 157 (!) . - For admission under Section 33, the adverse party must have had the right and opportunity to cross-examine the witness (!) . - In the absence of admissible direct evidence, conviction cannot be based solely on circumstantial evidence (!) .
JUDGMENT
B.N. Agrawal, J.-The appellants were convicted by trial court under Section 302 read with Section 34 of the Penal Code and sentenced to undergo imprisonment for life. On appeal being preferred, their conviction and sentence have been upheld by the High Court.
2. The short facts are that on 4.5.1986 at 5.30 p.m. one Trinath Behera, who was Gramrakhi of Village Golabandha, submitted a report at Buguda Police Station disclosing therein that on the same day at 12.30 p.m. one Sarasu Jena @ Salu, wife of appellant No.2 - Prasana Kumar Jena, committed suicide by hanging herself in her house. On the basis of this written report, Unnatural Death Case No.3 dated 4.5.1986 was instituted, but subsequently, after a few days, on receipt of postmortem report of the dead body of Salu, a case under Section 302 of the Penal Code was registered against unknown persons. The police, after registration of the case, took up investigation, examined witnesses and upon completion thereof, having found the instant case to be one of suicide and not homicide, submitted final report in favour of the accused persons on 27.10.1986 whereafter on 29.4.1987 Khadal Swain [PW 2], father of deceased Salu, filed a complaint in the Court of learned Sub-Divisional Magistrate for prosecution of the appellants.
3. Case of the prosecution, as unfolded in the complaint petition, in short, is that appellant No.1 - Sashi Jena, is the mother-in-law of Salu, appellant No.2 - Prasana Kumar Jena, her husband and other two appellants, namely, Sarat Kumar Jena and Rabindranath Jena, are full brothers of appellant No.2. Salu was given in marriage by PW.2 to appellant No.2 in the month of Baisakh in the year 1985 and at the time of marriage PW.2 gave dowry worth Rs. 20,000/-, but in spite of that the accused persons were not satisfied and demanded a further sum of Rs. 5000/- and on its non-fulfillment, Salu was ill-treated by her husband and also subjected to torture by all the accused persons. On 4.5.1986 in the morning Salu met Madan Swain (PW.1) and requested him to inform her parents about demand of further amount of Rs. 5000/- by her in-laws and she had expressed before him that in case the said amount was not paid, she would be done to death. PW.1 assured Salu that he would convey the news to her parents, but before he could do so, the same day in the afternoon at 12.30 p.m., when PW.1 was in the house of his-in-laws, who were next door neighbour of the appellants, on hearing cries coming from the house of the appellants, he went there and found that Salu was lying on the floor and appellant Nos. 1 and 2 were pressing a crowbar on her neck till her death while appellant Nos. 3 and 4 were holding her legs. PW.1 thereafter immediately rushed to the village of PW.2 and narrated him the entire incident whereupon PW.2 along with his wife-Rohini Swain (PW.4), PW.1 and Narayan Swain [PW.5], co-villager of PWs 2 and 4, went to the house of the appellants, but appellant No.1 stopped them from entering the house by holding out a Kati (Sword). PW.1 was said to have also narrated the incident to PW.4, Kirtan Nayak (PW.3), a co-villager of the accused persons, and PW.5.
4. Upon filing of the complaint, learned Magistrate examined the complainant on solemn affirmation and postponed issuance of processes against the accused persons by deciding to hold inquiry under Section 202 of the Criminal Procedure Code ( the Code for short), during the course of which, apart from other witnesses, the prosecution examined PW.1, who supported the prosecution case, as disclosed in the complaint petition. Upon conclusion of inquiry, the Magistrate issued processes against the appellants and they were committed to the Court of Sessions to face trial.
5. Defence of the accused persons was that they were innocent and had no complicity with the crime as it was not a case of homicide because Salu had committed suicide by hanging herself, she being unhappy with her husband as one of his legs was swollen, w
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