: Accused can remain
present before magistrate in person or through a counsel or agent during
enquiry U/S 202 of CRPC against him.Supreme Court
Thus,
the question to be considered is as to whether accused has any right to cross
examine a prosecution witness examined during the course of inquiry under
Section 202 of the Code. It is well settled that the scope of inquiry under
Section 202 of the Code is very limited one and that is to find out whether
there are sufficient grounds for proceeding against the accused who has no
right to participate therein much less a right to cross examine any witness
examined by the prosecution, but he may remain present only with a view to be
informed of what is going on. This
question is no longer res integra having been specifically answered by a
4-Judge bench decision of this Court in the case of Chandra Deo Singh v. Prokash Chandra Bose @ Chabi Bose
and Anr. MANU/SC/0053/1963 : , [1964]1SCR639 ,
wherein this Court categorically
laid down that an accused during the course of inquiry under Section 202 of the
Code of Criminal Procedure, 1898, has no right at all to cross examine any
witness examined on behalf of the prosecution. It was observed thus at page
1432:
"Taking the first ground, it
seems to us clear from the entire scheme of Ch. XVI of the Code of Criminal
Procedure that an accused person does not come into the picture at all till
process is issued. This does not mean that he is precluded from being present when
an enquiry is held by a Magistrate. He may remain present either in person or
through a counsel or agent with a view to be informed of what is going on.
IN THE SUPREME COURT OF INDIA
Criminal
Appeal No. 697 of 2003
Decided
On: 10.02.2004
Sashi
Jena Vs. Khadal Swain and Ors.
Citation: MANU/SC/0106/2004,(2004) 4 SCC 236, AIR 2004 SC 1492
1.
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 Tirath 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
seldom 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, which was incurable.
6.
During trial, the prosecution examined 7 witnesses out of whom PW.1, who,
according to the prosecution case was an eye-witness to the alleged occurrence,
did not at all support the prosecution case, as such declared hostile. PWs. 2
and 4 are father and mother respectively of deceased Salu. PW.3 was a resident
of the village of occurrence and PW.5 co-villager of the complainant. PW.6 was
the Doctor who held post-mortem examination on the dead body of Salu and PW.7
was the Investigating Officer. Upon conclusion of the trial, the learned
Additional Sessions Judge convicted and sentenced the appellants, as stated
above, and their appeal to the High Court having been dismissed, the present
appeal by special leave.
7. According
to the prosecution case, PW.1 was the solitary eyewitness to the alleged
occurrence, but in his evidence before the trial court, he did not at all
support the prosecution case though he supported the same in all material
particulars in his statement made before the learned Magistrate during the
course of inquiry under Section 202 of the Code. The crucial question to be
examined in this case is as to whether the statement of PW.1 recorded during
the course of inquiry under Section 202 of the Code is relevant and admissible
in the case on hand so as to form basis of conviction of the accused persons.
It has been submitted on behalf of the appellants that such a statement is not
admissible under Section 33 of the Evidence Act, 1872 ('the Act' for short) as
the accused had neither any right nor opportunity to cross-examine PW.1 during
the course of inquiry. It may be useful to refer to Section 33 of the Act which
runs thus:-
"Section 33. - Relevancy of certain evidence for proving,
in subsequent proceeding, the truth of facts therein stated.- Evidence given by
a witness in a judicial proceeding or before any person authorized by law to
take it, is relevant for the purpose of proving, in a subsequent judicial
proceeding, or in a later stage of the same judicial proceeding, the truth of
the facts which it states, when the witness is dead or cannot be found, or is
incapable of giving evidence, or is kept out of the way by the adverse party,
of if his present cannot be obtained without an amount of delay or expense
which, under the circumstances of the case, the Court considers unreasonable:
Provided -
that the proceeding was between the same parties or their
representatives in interest;
that the adverse party in the first proceeding had the right and
opportunity to cross-examine;
that the questions in issue were substantially the same in the
first as in the second proceeding.
Explanation.- A criminal trial or inquiry shall be deemed to be
a proceeding between the prosecutor and the accused within the meaning of this
section."
[Emphasis
Added]
8.
from a bare perusal of the aforesaid provision, it would appear that evidence
given by a witness in a judicial proceeding or before any person authorized to
take it is admissible for the purpose of proving in a subsequent judicial
proceeding or in a later stage of the same judicial proceeding, the truth of
the facts which it states in its evidence given in earlier judicial proceeding
or earlier stage of the same judicial proceeding, but under proviso there are
three pre-requisites for making the said evidence admissible in subsequent
proceeding or later stage of the same proceeding and they are
( i) that the
earlier proceeding was between the same parties;
(ii) that the adverse party in
the first proceeding had the right and opportunity to cross examine; and
(iii)
that the questions in issue in both the proceedings were substantially the
same, and in the absence of any of the three pre-requisites afore-stated.
Section 33 of the Act would not be attracted. This Court had occasion to
consider this question in the case of V.M. Mathew v. V.S. Sharma and
Ors.MANU/SC/0021/1996 : , AIR1996SC109 , in which it was laid down that in view
of the second proviso, evidence of a witness in a previous proceeding would be
admissible under Section 33 of the Act only if the adverse party in the first
proceeding had the right and opportunity to cross examine the witness. The
Court observed thus at pages 110 and 111:-
"The adverse party referred in the
proviso is the party in the previous proceeding against whom the evidence adduced
therein was given against his interest. He had the right and opportunity to
cross-examine the witness in the previous proceeding.....
the proviso lays down the acid test that
statement of a particular witness should have been tested by both parties by
examination and cross-examination in order to make it admissible in the later
proceeding."
[Emphasis
added]
9.
Thus, the question to be considered is as to whether accused has any right to
cross examine a prosecution witness examined during the course of inquiry under
Section 202 of the Code. It is well settled that the scope of inquiry under
Section 202 of the Code is very limited one and that is to find out whether
there are sufficient grounds for proceeding against the accused who has no
right to participate therein much less a right to cross examine any witness
examined by the prosecution, but he may remain present only with a view to be
informed of what is going on. This question is no longer res integra
having been specifically answered by a 4-Judge bench decision of this Court in
the case of Chandra Deo Singh v. Prokash Chandra Bose @ Chabi Bose and Anr.
MANU/SC/0053/1963 : , [1964]1SCR639 , wherein this Court categorically laid
down that an accused during the course of inquiry under Section 202 of the Code
of Criminal Procedure, 1898, has no right at all to cross examine any witness
examined on behalf of the prosecution. It was observed thus at page 1432:
"Taking the first ground, it seems
to us clear from the entire scheme of Ch. XVI of the Code of Criminal Procedure
that an accused person does not come into the picture at all till process is
issued. This does not mean that he is precluded from being present when an
enquiry is held by a Magistrate. He may remain present either in person or
through a counsel or agent with a view to be informed of what is going on. But
since the very question for consideration being whether he should be called
upon to face an accusation, he has no right to take part in the proceedings nor
has the Magistrate any jurisdiction to permit him to do so. It would follow
from this, therefore, that it would not be open to the Magistrate to put any
question to witnesses at the instance of the person named as accused but
against whom process has not been issued; nor can he examine any witnesses at
the instance of such a person.....".
[Emphasis
Added]
10.
Thus, we have no difficulty in holding that as during the course of inquiry
under Section 202 of the Code an accused has no right much less opportunity to
cross examine a prosecution witness, statement of such a witness recorded
during the course of the inquiry is not admissible in evidence under Section 33
of the Act, and consequently, the same cannot form the basis of conviction of
an accused.
11.
Next question that arises in the case on hand is as to whether the statement of
PW.1 recorded during the course of inquiry under Section 202 of the Code can be
proved under Section 157 of the Act to corroborate evidence of other witnesses
viz. PWs 2, 3, 4 and 5 examined during trial. Language of Section 157 of the
Act is very clear and the same lays down that "in order to corroborate the
testimony of a witness, any former statement made by such witness relating to
the same fact at or about the time when the fact took place, or before any
authority legally competent to investigate the fact may be proved". A
plain reading of the Section would show that previous statement of a particular
witness can be used to corroborate only his own evidence during trial and not
evidence of other witnesses. In the case of Moti Singh and Anr. v. The
State of Uttar PradeshMANU/SC/0055/1963 : , 1964CriLJ727 , similar question had
arisen before a 4-Judge bench of this Court wherein though the evidence in
court of two witnesses, namely, Ram Shankar and Jageshwar, during trial was
disbelieved in relation to the manner of occurrence by the trial court as well
as the High Court, their statements made before a Magistrate under Section 164
of the Code were relied upon to corroborate the other evidence adduced by the
prosecution during trial. The aforesaid procedure was deprecated by this
Court and it was laid down that such previous statement could be used to
corroborate the evidence of that very witness examined during the course of
trial and not evidence of other witnesses examined before the trial court. In
that case, this Court set aside the conviction of the accused persons observing
thus at page 901:-
".....Those statements could
have been used only in either corroborating or contradicting the statements of
these witnesses in Court. If those witnesses were not to be believed, their
previous statements could not be used as independent evidence in support of the
other prosecution evidence."
12.
In view of the foregoing discussion, we are of the opinion that the statement
of PW.1 recorded during the course of enquiry under Section 202 of the Code
cannot be used against the accused for any purpose as the same is not admissible
either under Section 33 or Section 157 of the Act. This being the
position, in the absence of any direct evidence, it has to be considered as to
whether conviction of the appellants can be upheld on the basis of
circumstantial evidence enumerated hereunder and the prosecution has succeeded
in proving the same:
1.
The deceased was ill-treated by her husband and subjected to torture by other
accused persons for non-fulfillment of demand of dowry of Rs. 5,000/- in spite
of the fact that at the time of marriage articles worth Rs. 20000/- were given
by way of dowry, which led to her death.
2.
PWs. 2, 3, 4 and 5 made statements in court that PW.1 narrated the incident to
them showing complicity of the accused with the crime.
3.
Prosecution witnesses were prevented by appellant No. 1 - Sashi Jena from
entering her house when they arrived there by holding out a Kati.
4.
Medical evidence showing that it was a case of homicide and not suicide.
13.
So far as the first circumstance is concerned, the prosecution has adduced
evidence of PWs. 2 and 4, who are father and mother respectively of Salu. These
two witnesses, as it would appear from the evidence of PW.7, the Investigating
Officer, were examined before the police but they did not disclose, in their
statements made before the police, demand of dowry at any point of time and
torture of the victim for non-fulfillment of such a demand by the accused
persons. For the first time, such a case was made out by the prosecution in the
Petition of Complaint which was filed after 11 months of the alleged
occurrence. In view of these facts, it is not possible to place reliance upon
the evidence of PWs.2 and 4 to prove this circumstance.
14.
This brings us to the second circumstance that PW.1 disclosed about the
incident showing complicity of the accused persons with the crime before the
prosecution witnesses. PWs. 2, 3, 4 and 5 stated in their evidence that when
they arrived at the place of occurrence PW.1 narrated the incident to them. As
stated above PW.1 did not at all support the prosecution case during trial and
his statement before the committing court having been already held by us to be
inadmissible, it cannot be used for corroborating the evidence of PWs. 2, 3, 4
and 5 made during trial. That apart, so far as PWs.2 and 4 are concerned, from
the evidence of PW.7, it would appear that these witnesses had, in their
statements made before the police, no where stated that PW.1 narrated the
incident to them showing complicity of the accused persons with the crime and
for the first time such a case was made out in the complaint petition after 11
months of the alleged occurrence. So far as PWs. 3 and 5 are concerned, they
were not examined before the police, but were examined, for the first time,
during the course of inquiry under Section 202 of the Code after several months
of the alleged occurrence, viz., PW.3 after 22 months in March 1988 and PW.4
after 12 months in May, 1987 of the incident. This being the position, it is
not safe to rely upon the evidence of these witnesses to prove this
circumstance.
15.
The third circumstance that the prosecution witnesses were prevented by
appellant No. 1 - Sashi Jena from entering her house by holding out a Kati has
been proved by PWs. 2, 3, 4 and 5 as all of them so stated in their examination-in-chief.
PW.3 stated during the course of cross examination that he had neither seen any
Kati in the hands of accused Sashi Jena nor seen her obstructing the witnesses
from entering the house. In view of this statement of PW.3, the veracity of the
prosecution case that accused Sashi Jena obstructed the members of the
prosecution party from entering the house by holding out a Kati becomes highly
doubtful and, accordingly, we have no option but to hold that the prosecution
has failed to prove this circumstance.
16.
We now come to the fourth and the last circumstance that according to the
medical evidence it was a case of homicidal death and not suicide. From the
evidence of PW.6 - the Doctor who held postmortem examination, it would appear
that it was a case of homicidal death. It appears that during the course of
investigation, PW.7 - the Investigating Officer - sent the postmortem report to
Professor, FMT Department, MKCG Medical College, Behrampur, for his opinion,
who requested PW.7 to send hyoid bone, as according to him, it was essential
for formation of opinion as to whether it was a case of suicide or homicide,
but PW.7 reported vide his letter dated 15.10.1986 (Ext.16/1) that the said
bone was not available in the Sub-Divisional Hospital where postmortem
examination was conducted. Upon receipt of the said letter, the said Professor
submitted his report under letter dated 15.10.1986 (Ext. 16), which was based
on the post-mortem report, to the effect that, in the absence of any mention in
the postmortem report as to whether the fracture was ante mortem or not and
what was the type of the fracture, it could not be said with reasonable amount
of certainty that it was a case of homicide. In this view of the matter, it
would not be safe to place reliance upon the report (Ext. 16). Thus, in view of
opinion of the doctor, PW.6, we have no option but to hold that it was a case
of homicide and the prosecution has succeeded in proving this circumstance
against the accused persons which, being the solitary circumstance against
them, cannot form basis of their conviction as it is well settled that in a
case of circumstantial evidence, there should be chain of circumstances showing
complicity of the accused persons with the crime and the chain should be complete.
In view of the foregoing discussion, we are of the view that prosecution has
failed to prove its case beyond reasonable doubt and the High Court was not
justified in upholding conviction of the appellants.
17.
In the result, the appeal is allowed, the conviction and sentence of the
appellants are set aside and they are acquitted of the charge. The appellants,
who are in custody, are directed to be released forthwith if not required in
connection with any other case.
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