ENGLISH SHORTHAND DICTATION-414

 

The appellants are accused nos. 1, 3, 6 and 7 respectively. The appellants have been convicted for the offences punishable under Section 302, read with Section 149 of the Indian Penal Code. The allegation against the appellants is of committing culpable homicide amounting to the murder of one Aslam Khan. The incident is of 3rd February 2013. There were eight accused who were tried for the offence. Out of the eight accused, the Trial Court convicted five. One died during the pendency of the trial.

An appeal against conviction was preferred before the High Court. By the impugned judgment, the¹⁰⁰ High Court confirmed the appellants' conviction. However, the High Court set aside the conviction of accused no. 5. The case¹²⁰ of the prosecution is that accused no. 1 picked up the victim of the offence from his residence at 4 p.m. on the date of the incident and took him to Raja Bazar. The accused killed the victim behind L.P. School by assaulting him with a sharp weapon.

Learned senior counsel appearing for the appellants has taken us through the notes of evidence of the material prosecution witnesses. He pointed out that in paragraph 42 of its judgment, the Trial²⁰⁰ Court held that the claim of PW-1 that he was an eyewitness was fallacious. He pointed out that even evidence of PW-3 needs to be discarded, as his evidence is full of omissions and contradictions. Moreover, he cannot be termed²⁴⁰ an eyewitness.

As far as evidence of PW-4 is concerned, he again submitted that the evidence is not worthy of acceptance, as it is wholly unreliable. He pointed out that evidence of PW-6 shows that there was a prior enmity between her husband and the accused. He pointed out that PW-6 admitted that her husband had lodged a police complaint³⁰⁰ against the accused on the allegation that the accused had dispossessed him from his land.

He submitted that evidence of last seen together in the form of testimony of PW-7 cannot be relied upon. He submitted that the same is true with evidence of PW-9. He pointed out that evidence of PW-10 does not help the prosecution at all. He³⁶⁰ also invited our attention to the evidence of PW-11. He submitted that while recording the cross-examination of the prosecution witnesses, the contradictions had not been properly recorded in accordance with the law.

Learned senior counsel appearing for the State submitted⁴⁰⁰ that the evidence of prosecution witnesses shows that the deceased was last seen together with the accused. He submitted that coupled with the evidence of last seen together, the motive for the commission of offence had been established. Even otherwise, there is convincing evidence against the appellants. He, therefore, submitted that no fault can be found with the view taken by the High Court.

There is one aspect that was not brought to the notice of this Court, which goes⁴⁸⁰ to the root of the matter. As can be seen from paragraph 108 of the judgment of the Trial Court,⁵⁰⁰ the appellants have been convicted for the offence punishable under Section 302 with the aid of Section 149 of IPC. We may note here that ultimately, the High Court held that only four accused were guilty.

Under Section 149 of IPC, every member of an unlawful assembly is guilty of the offences committed in the prosecution of the common object of the unlawful assembly. Therefore, to apply Section 149 of IPC, there has to be an unlawful assembly. Section 141 of IPC defines unlawful assembly as an assembly of five or more persons. The High Court has not held that⁶⁰⁰ apart from the present appellants whose conviction was confirmed, others formed part of the unlawful assembly.

Hence, there was no unlawful assembly within the meaning of Section 141 of IPC. Therefore, the appellants could not have been convicted for the offence punishable under Section 302 of IPC with the aid of Section 149. The High Court has not modified the charge from Section 302, read with Section 149 of IPC, to Section 302, read with Section 34 of IPC.

Before we deal with the merits, something must be stated about how the trial court recorded the prosecution witnesses' cross-examination in⁷⁰⁰ this case, especially when they were confronted with their prior statements. The Trial Court did not follow the correct procedure⁷²⁰ while recording the contradictions.

Under Section 161 of the Code of Criminal Procedure, 1973, the police have the power to record statements of the witnesses during the investigation. Section 162 of Code of Criminal Procedure deals with the use of such statements in evidence.

The basic principle incorporated in sub-Section (1) of Section 162 is that any statement made by a person to a police officer in the course of investigation, which is reduced in writing, cannot be used for⁸⁰⁰ any purpose except as provided in Section 162. The first exception incorporated in sub-Section (2) is of the statements covered by clause (1) of Section 32 of the Indian Evidence Act, 1872. Thus, what is provided in sub- Section (1)⁸⁴⁰ of Section 162 does not apply to a dying declaration.

The second exception to the general rule provided in sub-Section (1) of Section 162 is that the accused can use the statement to contradict the witness in the manner provided by Section 145 of the Evidence Act. Even the prosecution can use the statement to contradict a witness in the⁹⁰⁰ manner provided in Section 145 of the Evidence Act with the prior permission of the Court. The prosecution normally takes recourse to this provision when its witness does not support the prosecution case. There is one important condition for using the prior statement for contradiction. The condition is that the part of the statement used for contradiction must be duly⁹⁶⁰ proved.

When the two statements cannot stand together, they become contradictory statements. When a witness makes a statement in his evidence before the Court which is inconsistent with what he has stated in his statement recorded by the Police, there¹⁰⁰⁰ is a contradiction. When a prosecution witness whose statement under Section 161 (1) or Section 164 of CrPC has been recorded states factual aspects before the Court which he has not stated in his prior statement recorded under Section 161 (1) or Section 164 of CrPC, it is said that there is an omission. ¹⁰⁵⁴