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"1997 (2) Crimes 555 1997 (1) GauLT 516"
judgment - V.D. Gyani J.(1.) This appeal arises out of judgment dated 3-4-1993 delivered by Sessions Judge Lakhimpur in Sessions Case No.7 of 1990 thereby holding the appellant guilty of offence punishable u/s 302 IPC and sentencing him to undergo imprisonment for life With fine of Rs. 50001- or in default of payment of fine to suffer one year Rigorous Imprisonment. Aggrieved by the same the accused-appellant has preferred this appeal from jail since he was under presented by Mr. P. Khatoniar who was appointed as Amicus Curiae. He has accordingly appeared and made his submissions. We have also heard learned Public Prosecutor appearing for the respondent State.(2.) The prosecution case stated in brief was that on 18th July 1984 around 10-30 p.m. Smt. Rupa Saikia assaulted one Prafulla Dutta with a Mit-Dao. She had straightway gone Jo the Police Station along With the weapon of attack and herself lodged a report to that effect. The General Diary Entry No. 620 was made by the Police and a case u/s 302 IPC was registered and taken under investigation P.W. 7 (Sub-Inspector of Police Sri L.B Chetry) was not examined by the prosecution who visited the place of occurrence and prepared inquest report. The dead body was forwarded for post-mortem examination. On completion of investigation initially Rupa Saikia was charged and tried for the above offence. She was eventually acquitted by the Trial Court vide judgment dated 3-4-1993. Subsequently the present accused-appellant was charged and tried for the same offence as already noted above. He has been found guilty by the Trial Court At this trial the acquitted accused Rupa Saikia was examined as P.W.8. It was at this trial that the accused-appellant has been found guilty of the offence charged by the Trial Courti solely on the basis of the evidence of Smt.Rupa Saikia P.W. 8. Aggrieved by the same he has now preferred this appeal.(3.) Heard learned Amicus Curiae who has raised the following points for consideration in this appeal:1. That the trial was palpably wrong in allowing the evidence of acquitted accused Smt. Rupa Saikia although she was not a listed witness and had been tried the same offence but eventually acquitted and thereafter produced for witness. This novel procedure adopted by the prosecution has been strongly attacked by the Amicus Curiae. 2. That there is absolutely no reliable legal evidence available on record to sustain appellants conviction. 3. The charge as framed was not only defective but highly prejudicial to the accused in his defence and has resulted in gross miscarriage of justice. The examination of the accused under Section 313 Cr. P.C. was an apol for such an examination defeating the very object of Section 313 Cr. P.C.(4.) Mr. J. Singh learned Public Prosecutor appearing for the respondent State has fairly conceded that the trial Court has failed to apply the test of accomplice evidence to the facts of the instant case and has also not supported the mode and manner in which the accused was examined u/s 313 Cr. P.C.(5.) Before proceeding any further to deal with the points as raised by the learned Amicus Curiae it would be pertinent to note that Smt. Rupa Saikia was in fact an accused and not mere accomplice having faced a regular trial she was acquitted by the Trial Court of the same offence and thereafter she was produced as a witness by the prosecution. It is not a case of tendering pardon to accomplice as contemplated by Section 306 of the Code of Criminal Procedure. Even her trial was not the result of contravening the condition of pardon as provided u/s 308 Cr. P.C. The Trial Court has missed this provision. It appears that both the prosecuting agency as well as Trial Court were labouring under a total misconception of law in facing of the situation. If the prosecution had no other evidence except that of Smt. Rupa Saiki and was desirous to examine her as a witness the only course known to law that was open to prosecution was recourse to Section 306 and should have applied to the Court for granting of pardon. But instead of following this procedure the prosecution proceeded against Smt. Rupa Saikia as an accused and subsequently on her acquittal again used her as a prosecution witness. This by itself a novel method adopted by the prosecution for seeking conviction of a coaccused. Smt. Rupa Saikia was admittedly not a listed witness. She was allowed to go the witness box without demur on the part of the defence counsel who ought to have objected to such examination. But failure on his part does not mean that the Court could depart from its duty to follow the correct procedure of a Sessions Trial as laid down in the Code of Criminal Procedure.(6.) The first point as raised by the learned Amicus Curiae cannot be said to be without substance. Smt. Rupa Saikia having not been granted pardon by the Court should not have been allowed to be produced and examined as a witness by the Trial Court without following the procedures indicated above. Smt. Rupa Saikia has been examined as P.W. 8. The first infirmity attached to her evidence is that her statement was recorded under Section 164 Cr. P.C. that by itself goes to show that even the investigating agency was in doubt about the truthfulness of the witness. Hence need to pin her down to a particular statement to be recorded by the Magistrate. Such witnesses have but academic freedom to state the truth before the Court as any departure from the earlier statement is at the cost of threat of prosecution for per jury. The learned Trial Judge while appreciating the evidence of this witness particularly has failed to refer to this aspect of the matter. He ought to have raised a question what was the necessity to record the statement of Rupa Saikia under Section 164 Cr. P.C.? The approach of the learned Trial Judge to such a statement is equally faulty it cannot be taken or treated as substantive evidence. A mere reading of the impugned judgment particularly the discussion under the heading decision and reason of decision would go to show that the learned Trial Judge erroneously used this statement recorded u/s 164 Cr. P.C. as a substantive piece of evidence.(7.) Keeping aside the question of being an accomplice for a while and taking her evidence on its face value we do not find that the incriminating statement as made by her were in fact put to the accused-appellant in his examination u/s 313 Cr. P.C. The examination is in one question which reads as follows: It has been alleged in evidence against you that you (And the other accused) unitedly and intentionally killed Prafulla Dutta at about 10.30 p.m. on 18-7-1984. What is your statement? The answer given by the accused I did not commit any crime. The allegation against me is false. The above question is followed by Are you guilty? and naturally the accused answered in the negative. This is his total examination it betrays rudimentary knowledge on the part of the Trial Judge of the procedures and purposes of examination of an accused u j s 313 Cr. P.C. A mere reading of the Section would have revealed the objects behind the examination of an accused it is to enable him to explain any incriminating circumstance appearing in the evidence against him if the circumstances are not put to the accused where is the opportunity extended to him to explain the circumstances how can the court use such circumstances.(8.) Section 313 is an important section and salutary provision which should not be slurred over. The Supreme Court in Parichhat v. State of Madhya Pradesh dealing the question has held as follows: The real importance of Section 342 of the Criminal Procedure Code is that there is a duty cast upon the Courts to question the accused properly and fairly so that it is brought home to the accused in clear words the exact case that the accused will have to meet and thereby an opportunity is given to the accused to explain any such point. In contrast what we find on record is that the soul is missing. A glance at the impugned judgment would go to show that none of the incriminating circumstances as deposed to by PW-8 Smt. Rupa Saiki a was put to the accused. The Court has merely fallen back on her statement as recorded under Section 164Cr. P.C. for seeking corroboration and has ultimately concluded. TIJ find nothing wrong in the evidence of Smt. Rupa Saiki a who is the eye witness of the occurrence and at the instant threat of the accused she was made an accused in this case. In her statement before the Magistrate as well as in her deposition in the Court she has consistently made some statements implicating the accused.(9.) The learned Judge while arriving at the above findings does not pause for a while to ask a question as to what is the quality of evidence and character of the witness who is self ondemned criminal though acquitted in such a case who was a participis-criminis even according to prosecution version. Section 114 Illustration- B of the Evidence Act provides that the Court may presume that an accomplice is unworthy of credit unless corroborated on material particulars. There i$ no reference to Section 114(B) in the whole judgment. The Trial Court has failed to approach the evidence of P.W. 8 from this angle the statutory presumption can be raised against credibility of such a witness who has been found to be reliable by the Trial Court without any corroboration. The corroboration suggested by the learned Judge is the statement of the some witness recorded u/s 164 Cr. P.C. The capacity of a witness to vividly describe of a crime should not be construed as true version. There should be a live concern for searching the truth but there is no such search for it except merely falling back to the earlier statement u/s 164 Cr. P.C. made earlier before a Magistrate. The trial Judge has found reliable corroboration in such statement. Such an approach to evidence can hardly commend a Sessions Judge. Incidentally the learned Judge has also mentioned in the impugned judgment considering the statements of the accused (the manner of recording the statement is already indicated above). What was there to be considered by way of statement of the accused when no incriminating circumstances appearing against him from the evidence of P.W. 8 were put to him.(10.) The law on the point of accomplice evidence is clear. The Supreme Court in a catena of cases has pointed out that it is a rule of prudence and practice which practically amounts to a rule of law that the evidence of accomplice ought not to be acted upon unless it is corroborated against the particular accused in material respects and the corroborative evidence must be such which shows or tends to show that the story as told by the accomplice accused committed the crime is true. P.W.-8 is herself stigmatised as an accused was prosecuted as such but acquitted.(11.) Coming to the criticism as made by the learned Amicus Curiae about the defective framing of charge we can do no better that reproduce the same not only for ready reference but also for its appraisal. The first charge framed as on 8-8-199] reads as follows: That you on or a bout the 18-7-1984 at 10.30 P.M. did commit murder by intention ally causing the death of Prafulla Dutta and did it in furtherance of common intention of all and thereby committed an offence punishable under Section 302/34 of IPC and within the cognizance of the Court of Sessions. And I hereby direct that you be ned by the said Court on the said charge. The charge is read over and explained to the accused to which she pleads not guilty and claims to be tried.T The subsequent charge as framed on 1-11-1993 reads: That you on or about thel8-7-1984 at 10-30 p.m. did commit murder by intention ally causing the death of Prafulla Dutta and did it in furtherance of common intention of all and thereby committed an offence punishable under Section 302/34 IPC and with my cognizance. And I hereby direct that you be tried by the said Court on the said charge.(12.) It is significant to note that even after acquittal of the accused Smt. Rupa Saikia the charge as framed is not under the substantive head of Section 302 IPC but with aid of Section 34 IPC clearly indicates that it was not the accused alone but someone along with him who was involved in the commission of crime. In face of such a charge as coupled with the fact of acquittal of co-accused the moot question that arises for consideration is whether the appellant's conviction under Section 302 IPC simplicitor is sustainable? A similar view has been expressed by the Supreme Court in Krishna Govind v. State of Maharashtra held: The High Court gave conflicting findings. While it acquitted accused 1 3 and 4 under Section 302 read with section 34 of the Indian Penal Code it convicted accused 2 under Section 302 read with Section 34 of the said Code for having committed the offence jointly with the acquitted persons. That is a legally impossible position. When accused were acquitted either on the ground that the evidence was not acceptable or by giving benefit of doubt to them the result in law would be the same; it would mean that they did not take part in the offence. The effect of the acquittal of accused 1. 3 and 4 is that they did not con jointly act with accused 2 in committing the murder. If they did not have acted con jointly with accused 2 accused 2 could not have acted conjointly with them. Realising this mutually distructive findings of the High Court learned counsel for the State attempted persuading us to hold that if the said finding was read in the context of the whole judgment it would be clear that the learned Judges meant to hold that persons other than the acquitted accused conjointly acted with the convicted accused. We have gone through the entire judgment carefully with the learned counsel. But the observations of the learned Judges as regards the Other participants in the crime must in the context refer only to the one or other of the said three acquitted accused participated in the offence committed by accused 2. There is not a single observation in the judgment to indicate that persons other than the said accused participated in the offence nor is there any evidence in that regard. We therefore hold that the judgment of the High Court can not stand. We are satisfied that on the findings arrived at by the High Court the conviction of accused 2 is clearly wrong.T In one of its comparatively recent pronouncement the same view has been reiterated by the Supreme Court in the State of West Bengal v. Vindu Lachmandas Sakhrani alias Deru.(13.) The inevitable conclusion that follows that the conviction as recorded by the Trial Court in view of the foregoing discussions cannot be sustained and allowed to stand. it is liable to be quashed and accordingly quashed.(14.) This appeal deserves to be allowed and it is accordingly allowed. The conviction and sentence recorded by the Trial Court are set aside. The accused appellant is acquitted of the charge framed against him. He be set at liberty forthwith. Appeal allowed.