1. The above appeal is filed against the judgment dated 05.04.2005 in Sessions Case SC No. 141/2004. On the file of the Additional Sessions Judge- Fast Track Court – I (Adhoc) Manjeri. The appellant herein was convicted and sentenced by the Trial Court, under Section 304, Part I of the IPC.
2. The Prosecution case is that, on 26.11.2002 at 10 pm, the appellant stabbed the deceased Sajeer with a dagger from a place near to the Keerthi Theatre at Nilambur and that the victim succumbed to the injuries by undergoing treatment at MIMS hospital, Kozhikode, on 11.12.2002. Hence the Investigating Officer filed a Final Report against the appellant alleging offence punishable under section 324 and 302 of the IPC. To substantiate the case, the prosecution examined PW1 to PW15. Exts. P1 to P18 are the exhibits marked on side of the prosecution. MO1 is the material objects marked in this case.
3. After going through the evidence and the documents, the Trial Court found that the accused is not guilty under Section 302 and 324 of the IPC, but convicted him under section 304 Part I of the IPC and sentenced him to undergo rigorous imprisonment of 10 years and to pay a fine of Rs.5000/-. In default of payment of fine, the appellant is directed to undergo imprisonment for a term of 1 year. Aggrieved by the conviction and sentence, this Criminal Appeal is filed.
4. Heard the learned counsel for the petitioner, the appellant and the learned Public Prosecutor. In this case, the alleged incidents happened on 26.11.2002 at 10 pm. PW1 was examined to prove the incident. He deposed that, he and the deceased Sajeer were friends. He admitted that, he knew the accused. According to him, he and one Riyas Babu and Sajeer (deceased), boarded an autorikshaw of Sajeer, near from Urvasi Bar. PW2 Dayanandan was driving the autorikshaw. On the way, when they saw the accused, the autorikshaw was stopped. Thereafter he saw the accused and Sajeer were talking about 50 meters away. He also deposed that, there was a mutual fight between the accused and the deceased. Consequently people gathered there. He also deposed that, he and Riyas Babu went there and tried to pacify the same. He admitted that, he had not reached immediately after the incident. He deposed that, there was financial transaction between the deceased and the accused. He also deposed that, he didn't hear the conversation between the accused and the deceased. He reached the place, when the scuffle started. He also admitted that, he sustained injury when he intervened. Thereafter he was declared hostile by the prosecution.
5. The prosecution witness 2 is Dayanandan. He is an auto driver. According to him, he himself, the deceased and PW1 was travelling in the autorickshaw and when they reached near the house of the accused, the autorikshaw was stopped. The others in the autorikshaw went out. He went to Keerthipadi. After sometime, when he came back, he saw the deceased coming in the opposite side pressing his abdomen. He was also declared hostile by the prosecution.
6. PW3 is only a witness to Ext.P3 scene Mahazar. PW4 is the Assistant Surgeon at Taluk Hospital, Nilambur, who examined Riyas Babu and issued Ext.P5 Wound Certificate. He also examined the deceased Sajeer on same day and Ext.P4 is the Wound Certificate. PW5 is the consulting Medical Officer at MIMS Hospital, through whom Ext.P6 wound certificate of the deceased was marked. PW6 is the Doctor who conducted postmortem and Ext.P7 is postmortem certificate. PW7 is the Village Officer through whom Ext.P8 sketch is marked. PW8 is the Junior Superintendent attached to the Nilambur Judicial First Class Magistrate's Court. He was examined to prove Ext.P9 forwarding note of the properties. PW9 is the inquest witness. PW10 is the Circle Inspector who investigated the case, through whom, Exts.P11 to P14 are marked. Ext.P12 is the recovery mahazar. According to PW10, based on the confession statement of the accused, MO1 (knife) was recovered as per Ext.P12 Recovery Mahazar. Ext.P12(a) is the Confession Statement. PW11 is the Head Constable who recorded P15 First Information Statement, (FIS). PW12 is the Sub Inspector of Police, who registered Ext.P16 FIR. PW13 is the Assistant Sub Inspector, who conducted preliminary investigation in this case. Ext.P17 is a report submitted by him to alter the charge. PW14 is the witness to the recovery mahazar. PW15 is the Circle Inspector of Police who prepared Ext.P10 inquest report.
7. These are the evidence adduced by the prosecution in this case. PW1 and 2 turned hostile to the prosecution. Even though they admitted that an incident had happened, they are not aware, who are the assailants. It is an admitted case that the deceased sustained injury on 26.11.2002 at 10 pm. Injury sustained by the deceased is proved through PW4 and PW5 as per Exts.P5 and P6. There is also evidence to show that the deceased died on 11.12.2002. Ext.P7 is postmortem certificate. The cause of death certified by PW6 is that deceased died of Peritonitis following injury to abdomen. Therefore the available evidence in this case is that, an incident happened on 26.11.2002 in which, the deceased Sajeer sustained grievous hurt and he succumbed to the injuries. There is absolutely no oral evidence in this case to prove, who are the assailants in this case. But the learned Sessions Judge convicted the appellant under section 304 Part I of the IPC mainly based on the following circumstances.
1. MO1 weapon contained blood stains and there is no explanation from the accused for the same.
2. MO1 weapon is recovered based on the confession statement of the accused. The evidence of PW14 and PW10 coupled with Ext.P12(a) prove section 27 recovery.
3. There are more than one penetrative injuries on the deceased. The magnitude and dimension of injuries indicate that, it was a ferocious attack and that too, at repeated successions. This will disprove the case of the defence that, the deceased sustained the injury by falling on a hard object.
4. Non examination of charge witness NO.1 does not appear to be fatal as the legal authenticity of Ext.P16 FIR is proved. The contradictory version of PW1 are marked through PW10. The credibility of PW10 is not seen challenged. Therefore, the contradictory version of PW1 has to be treated as part of evidence.
5. The First Information Statement (FIS) can be used for corroboration and contradiction and it can also be treated as one of the valuable piece of evidence as it will bring first version regarding the incident. The FIS was recorded, when CW1 was hospitalized at Medical College Hospital. According to the learned Sessions Judge, it is relevant under section 11 of the Evidence Act.
6. The scene of occurrence is proved through the Scene Mahazar. The scene mahazar stands proved through PW10.
7. According to the learned Sessions Judge, there is no merit in the defence case that, the deceased Sajeer has sustained injuries at the hands of unknown person among the crowd gathered. The defence case that the injuries sustained by the deceased by a fall is improbablized based on the evidence of PW4 doctor.
8. Based on these findings, the learned Sessions Judge convicted the appellant under Section 304 Part I of the IPC. I am surprised and astonished to see the findings of the learned Sessions Judge. The learned Sessions Judge has not followed the fundamental principles of Criminal law. Moreover there are several judgments of this Court and the Apex Court regarding the admissibility of the “evidence” relied by the learned Sessions Judge to convict the accused. Every Judicial Officer is bound to follow the decisions of the superior Courts pronounced on legal issues. When the superior Court lays down certain principles, it is the duty of the lower judiciary to at least go through the judgments then and there and thereafter decide cases in accordance to law. In this case, most of the materials relied by the learned Sessions Judge are not 'evidence' and cannot be termed as 'evidence' as defined in the Indian Evidence Act. These are fundamentals in criminal law. Simply because an incident happened and a person died, there cannot be a conviction. To convict a person, legal evidence is necessary. In this case, the same is lacking. I will deal with the points relied on by the learned Sessions Judge separately.
9. The first point relied on by the learned Sessions Judge is that M.O.1 weapon, which was recovered based on the confession statement of the accused contained blood and this is a circumstance against the accused. It is to be noted that, there is no evidence in this case to show that, who exactly inflicted the injury on the deceased. The only evidence available is that, the deceased sustained injury and there was a scuffle. Admittedly, the blood group was not ascertained by the analyst. Nobody knows, whose blood was contained in the MO knife. In such circumstances, simply because M.O.1 contained blood stain, it cannot be a circumstance against the accused, especially when the blood group of the deceased is not in evidence. Moreover, no blood group is detected in the chemical report. There are lots of decisions of this Court and the Apex Court that in circumstantial evidence, simply because the weapon contained blood, it cannot be relied, to convict a person without the detection of the blood group. [State of Maharashtra Vs. Dinesh (AIR 2018 SC 2997)] Therefore, the first point relied by the learned Sessions Judge cannot be accepted even without any corroboration.
10. The second point considered by the learned Sessions Judge is the recovery of the weapon. According to the learned Sessions Judge, on a close scrutiny of the evidence of PW14, PW10 coupled with Ext.P12(a), Section 27 recovery stands proved. PW10 is the Investigating Officer. PW14 is the witness to Ext.P12 recovery Mahazar. PW14 was declared hostile. PW14 only admit the signature in Ext.P12. Admittedly, the ownership of the house from where the recovery is effected is also not proved. In such circumstances, based on the evidence of the Investigating Officer alone, coupled with Ext.P12(a), it cannot be said that the recovery is proved. Moreover, it is a settled position of law that, simply because the weapon of offence is recovered as per Section 27 of the Evidence Act, that alone is not sufficient to convict an accused. Recovery evidence based on Section 27 of the Evidence Act is weak piece of evidence. Without corroboration, such evidence can't be admitted. Another circumstance relied by the learned Sessions Judge is that, the defence case is improbable because the injury sustained by the deceased are penetrative injuries and the same cannot be caused by a fall on a hard object at the scene of occurance. It is a well settled principle that the Prosecution has to stand on its own legs. Simply because the defence case is improbable, the Prosecution cannot succeed. The learned Sessions Judge erred in relying on this circumstance, when it is a settled position that the Prosecution cannot rely on the weakness of the defence case.
11. Another material relied by the learned Sessions Judge is the First Information Report. According to the learned Sessions Judge, the charge witness No.1, who is the first informant gave definite case in the First Information. According to the learned Sessions Judge, since the Charge Witness No.1 implicated the accused in the First Information Report, that is also a circumstance to be considered. It is an admitted fact that the defacto complainant is not examined in this case. Moreover, it is well settled position that, First Information Statement can be used only to contradict or corroborate the maker of such statement. In this case, admittedly, the First Informant is not examined. In such circumstances, except the fact that an FIR is registered, the contents in FIR cannot be relied. It is a trite law that unless the signatory to FIR gives evidence before Court, the Statement in the FIR cannot be used as evidence. In Mohanan Vs. State of Kerala, [2011 (4) KLT 59] this Court considered the point, whether by mere marking of the FIS, the contents of the same can be treated as evidence. The relevant portion of the above judgment is extracted herein.
10. What is “evidence”, as per law? S.3 of Evidence Act refers to what 'evidence' is. Relevant portion of S.3 of Evidence Act is extracted below:
“Evidence”-- “Evidence” means and includes – (1) all statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry; such statements are called oral evidence;
(2) all documents including electronic records produced for the inspection of the Court; such documents are called documentary evidence.”
11. Section 3 of the Evidence Act lays down that “evidence” means and includes “oral evidence” and “documentary evidence”. All statements which the Court permits or requires to be made before it by witness, in relation to matters of fact under inquiry are called “oral evidence”. All documents including electronic records produced for the inspection of the Court are called “documentary evidence”. Thus “evidence” consists of “oral evidence” and “documentary evidence” and the relevant facts in a case can be proved either by oral evidence or documentary evidence.
12. Section 59 of Evidence Act lays down that all facts, except the contents of documents or electronic records may be proved by oral evidence. As per S.60 of Evidence Act oral evidence must, in all cases whatever, be direct. That is to say, if it refers to a fact which could be seen, it must be the evidence of a witness who says he saw it; if it refers to a fact which could be heard, it must be the evidence of a witness who says he heard it.
13. So, if the first informant who has seen an incident and the manner in which it has occurred, such facts may be proved only by direct oral evidence of first informant in Court and not by documentary evidence in the light of S.60 of Evidence Act. Only if first informant deposes in Court, the facts stated in first information statement, which are perceived by his senses, such facts may constitute evidence. But, the facts stated in first information statement are not provable by mere produced of first information statement. If first information statement is produced in Court and marked through first informant, what is proved is only existence of a first information statement and not the existence of facts contained in the fist information statement.
14. Proof of preparation of first information statement and affixing of signature therein may prove existence of such a statement, but it will not further prove existence or truth of the “facts” which are stated therein. If the “facts” stated in the first information statement are relevant in a case and existence or truth of such facts is in issue, mere marking of the first information statement will not prove truth or existence of such facts. The facts stated in the first information statement have to be proved by admissible evidence, in accordance with law. It is held by Supreme Court in Ramji Dayawala & Sons (P) Ltd. v. Invest Import (1981) 1 SCC 80) as follows:
“Undoubtedly, mere proof of the handwriting of a document would not tantamount to proof of all the contents or the facts stated in the document. If the truth of the facts stated in a document is in issue mere proof of the handwriting and execution of document would not furnish evidence of the truth of the facts or contents of the document. The truth or otherwise of the facts or contents so stated would have to be proved by admissible evidence ie, by the evidence of those persons who can vouchsafe for the truth of the facts in issue.
12. This is the fundamental principle about the admissibility of an FIR. I am surprised to see that, a Session's Judge has not even seen such judgments. Hence, reliance of the FIR and its contents by the learned Sessions Judge to convict the appellant is illegal, especially when the maker of the FIR is not examined.
13. The other material relied by the learned Sessions Judge is the contradictions marked by the Prosecution as Ext.P1(a) to P1(f). According to the learned Sessions Judge, the authenticity of these contradictory versions of PW1 brought on record stands proved through PW10, the Investigating Officer. According to the learned Sessions Judge, the credibility of the Investigating Officer (PW10) is not seen challenged. Therefore, the Sessions Judge concluded in paragraph 14 of the judgment that the contradictory versions of PW1 has to be treated as part of evidence. I am at a loss to accept this proposition of the learned Sessions Judge. In Mohanan's case (supra), also this Court considered this point. The relevant portion is extracted herein.
There can be no doubt that the Court below committed a serious illegality in treating contradicted portions of first information statement which are marked as exhibits, as “evidence”, to convict accused. Contradicted portions of the first information statement do not constitute 'evidence' as stated in S.3 of Evidence Act. The contents of the marked contradicted portions of the first information statement as “evidence” to enter any finding in respect of any of the facts referred to therein. The evidence of the Police Official who deposes in Court that the first informant made statements to him as recorded in the marked portions of first informant statement which are contradicted by first informant will not prove the facts stated therein.”
14. How can a Sessions Judge rely the contradictions marked by the Prosecution as part of evidence. This is a fundamental principle of criminal jurisprudence. The contradictions and omissions of a witness, which is marked can be used only for the purpose of assessing the reliability of the witness at the maximum. The contradictions and omissions are not evidence. The finding of the learned Sessions Judge is fundamentally incorrect.
15. The learned Sessions Judge observed that the FIS can be used as one of the valuable piece of evidence because, it will bring the first version regarding the incident. According to the learned Sessions Judge, the same is admissible under section 11 of the Indian Evidence Act. Section 11 of the Indian Evidence Act is extracted herewith.
When facts not otherwise relevant become relevant.—Facts not otherwise relevant are relevant—
(1) if they are inconsistent with any fact in issue or relevant fact;
(2) if by themselves or in connection with other facts they make the existence or non-existence of any fact in issue or relevant fact highly probable or improbable.
(a) The question is, whether A committed a crime at Calcutta on a certain day. The fact that, on that day, A was at Lahore is relevant. The fact that, near the time when the crime was committed, A was at a distance from the place where it was committed, which would render it highly improbable, though not impossible, that he committed it, is relevant.
(b) The question is, whether A committed a crime. The circumstances are such that the crime must have been committed either by A, B, C or D. Every fact which shows that the crime could have been committed by no one else and that it was not committed by either B, C or D, is relevant.
16. Section 11 says about facts that are not otherwise relevant become relevant, if they are inconsistent with any fact in issue or relevant fact and if by themselves or in connection with other facts they make the existence or non existence of any fact in issue or relevant facts highly probable or improbable. The plea of alibi is admissible under Sec.11 of the Evidence Act. I am failed to understand how the First Information Report is relevant under Sec.11 of the Evidence Act. The 'fact' is interpreted in Sec.3 of the Evidence Act. As per Sec.3 'fact' means and includes anything, state of things, or relation of things capable of being perceived by the senses and any mental condition of which any person is conscious. How an FIR can be treated as a fa15ct as per the Evidence Act is difficult to understand. In this case, the maker of the FIR is not examined. Therefore, the contents of the FIR cannot be used for any purpose. To attract Section 11, “facts” are necessary. Without examining the maker of the FIR, the contents of the FIR cannot even remotely be treated as a fact, as interpreted in the Indian Evidence Act. Moreover, it is a settled position that, the contents of the FIR can be used only to contradict or corroborate the maker of the FIR. At any stretch of imagination, it cannot be said that an 15FIR marked through the Police Officer, even without examining the maker of the FIR can be treated as relevant fact under Section 11 of the Evidence Act.
17. According to the learned Sessions Judge, the scene of occurrence as stated in the Scene Mahazar is admissible and that is also a circumstance. I fail to understand, what is the relevancy of the scene of occurrence when there is no evidence to show that, who exactly committed the offence in this case. Moreover, the scene Mahazar was prepared by the Investigating officer with the help of PW2. PW2 was declared hostile. As per the scene mahazar, the place of occurrence was pointed out by PW2. But, while examining, PW2, he has no such case. It is a settled position that, there are two parts in a scene mahazar. The first part is the facts noted by the investigating officer directly at the place of occurrence. The 2nd part is the facts pointed out by others. The contents of scene mahazar cannot be treated as 'evidence'. Mere production of the scene mahazar will not prove the contents of the scene mahazar. The observation made personally by the investigating officer at the scene had to be deposed by him in Court. Those facts must be proved by direct oral evidence of the investigating officer. To prove the place of occurrence in this case, the person who pointed out things to the investigating officer should depose in Court. In this case, prosecution witness No. 2 was declared hostile. He has no case that he pointed out the place of occurrence to the investigating officer. The evidentiary value of the scene mahazar was also considered by this Court in Mohanan's case (supra). The relevant portion of the above judgment is extracted herein.
21. Now coming to the scene mahazar, I have noticed that many subordinate Courts rely upon contents of scene mahazar as evidence to enter crucial finding against accused. This is illegal. The contents of scene mahazar cannot be treated as "evidence". The mere production of scene mahazar or marking of it through the Police Officer who prepared the same will not prove the "facts" stated therein. A scene mahazar may, ordinarily, contain two types of facts: one consists of facts which are personally observed by the investigating officer at the scene: the other constitutes facts which are gathered from the statements of witnesses made to him during the course of investigation.
22. An investigating officer may notice blood at the scene, tyre mare marks, destruction of certain property, weapon or other materials which may be relevant to prove the guilt of accused. He may therefore, record such facts in the scene mahazar which are based on his personal observations, at the scene. Such facts cannot be proved by mere marking of the scene mahazar through its maker. It is held in Narbada Devi Gupta v. Birendra Kumar Jaiswal ((2003) 8 SCC 745), that the legal position is not in dispute that mere production and marking of a document as exhibit by the Court cannot be held to be a due proof of its contents.
23. The observations made personally by investigating officer at the scene, such as what he saw etc., have to be deposed to by him in Court in the light of S.60 of the Evidence Act. Those facts must be proved by direct oral evidence of investigating officer and not by producing scene mahazar. In the absence of Police Officer's oral evidence in Court regarding the facts observed by him at the scene which are stated in the scene mahazar, it will illegal for the Court to rely upon the contents of scene mahazar as 'evidence'. In other words, the relevant facts which investigating officer observed at the scene and which are recorded by him in scene mahazar must be deposed to by him in Court, if the Court wants to rely upon them as "evidence".
24. An investigating officer may also gather infor
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mation from the witnesses about some relevant details with respect to the scene of offence. He may also incorporate such details in the scene mahazar, but such details are not admissible in evidence, in the light of S.60 of Evidence Act. Even if an investigating officer deposes in Court, regarding what he gathered from the statement of a witness about scene of offence and recorded in the scene mahazar, such "evidence" shall be eschewed from consideration, since it is inadmissible, by virtue of S.162 of the Code of Criminal Procedure (the 'Code' for short). As per S.162 of the Code, a statement made by a person to a Police Officer in the course of investigation shall not be used for any purpose, except as stated in the said Section. 18. In the light of the above dictum and in the light of the evidence adduced by PW2, it cannot be said that the Prosecution established the place of occurrence in this case. Moreover, even if the place of occurrence is proved, in this case, there is no evidence to show that, who exactly committed the offence. 19. Another circumstance relied by the Sessions Judge is Ext.P2 contradiction of PW2. In Ext.P2 contradiction marked, it is stated by PW2 that, he had seen the incident. But he denied such a statement given to the Police. But the learned Sessions Judge observed that “the authenticity of Ext.P2 stands proved through PW10 and it worked out as part of the evidence ----”. It is better not to comment about the above observation of the learned Sessions Judge. How can a contradiction of the statement alleged to be given to the Police which is marked at the time of trial is 'evidence'. That is why, I stated earlier that, the learned Sessions Judge failed to follow the fundamental principles of criminal jurisprudence. 20. It is better not to discuss the findings of the learned Sessions Judge in the impugned judgment because these are materials which are not admissible in the eye of law. In this case PW1 and PW2 are hostile witnesses. They are not able to depose before the Court to the effect that, who are the assailants in this case. There is no other legal evidence available in this case to link the accused to the case. In such circumstance, I am of the opinion that, Prosecution miserably failed to prove the case against the appellant. Therefore the conviction and sentence imposed by the lower Court is unsustainable. Hence this appeal is allowed. The conviction and sentence imposed on the appellant as per judgment dated 05/04/2005 in Sessions case No. 141/2004 on the file of the Court of the Additional Session's Judge, Fast Track Court – I (Adhoc) Manjeri is set aside. The Appellant is set at liberty. Bail bond if any executed by him will stand cancelled.