RAMESHWAR DAYAL AND ORS. versus THE STATE OF UTTAR PRADESH

RAMESHWAR DAYAL AND ORS.

THE STATE OF UTTAR PRADESH

February 15, 1978

[S, MURTAZA FAZAL ALI AND P. N. SHINGHAL, JJ.]

Con\fitution of India, Art 136, principles for interference by Supre1ne Court,

Criminal Procedure Code, Ss. 540 and 162--S. 540 exa1nination of Sessions JudRe by High Court, desirability of-Oppon11nity for rebuttal of fresh evidence, ivh_ether nccessary-S. 162, strucment vf In1·estigati11g o/j'icer in inquest report, whether ad.'11issible in evidence.

long standing enmity bet\l..'een Baburam and Munnalal, triggered by proceed-ings u/s 107/117 Cr.P.C., initiated by them against each other, resulted in an attack on Baburam's party, lby Munnalal's party, in which Baburam died. The appellants were convicted, inter alia, u/s 302/149 I.P.C·., and sentenced to imprisonment for life.

The facturn of the recovery of four live cartridges by the Investigating Officer at the spot, was challenged by the accused at the appellate stage. The High Court examined the, Sessions Judge and the Investigating Officer u/s 540 Cr.P.C. but .denied the appellants an opportunity to adduce evidence to rebut this fresh evidence.

Dismissing thc1 appeals on merits, after completely excluding the· evidence of the witnesses examined by the High Court u/s 540 Cr.P.C., the Cou.rt

HELD:

1. The princioles on the basis of which this Court would interfere in an appeal by speciaf leave are as follows:-

1. That this Court would not interfere with the concurrent findings of fact based on pure appreciation of evidence even if it were to take differ-ent vie\V on the evidence;

2. That the c·ourt will not normally enter into reapprt1isement or review of the evidence, unless the assessment of the High Court is vitiated by an error of law or procedure or- is bafed on error of record, misreading of evidence or is inconsistent with the evidence, for instance, where the ocular evidence is totally inconsistent with the medical evidence and so on;

3. That the Court would not enter into credibility of the evidence with view to substitute its own opinion for that of the High Court;

4. That the Court would interfere where the· High Court has arrived at finding of fact in disregard of judicial process-, princip1cs of natural justice or fair hearing or has <1cted in violation of mandatorv provision of law or procedure resu1'ting in serious prejudice or injustice to the accused;

5. This Court might also interlere \vhere on the proved facts wrong infer-ences of law h~ve been drawn or v;•here the conclusions of the High Court are man1festly perverse and based on no evidence''. [68C-GJ

Dalbir Kaur and Ors. v, State of Puniab, [1977] I S.C.R, 280; followed.

2. Judges should not'be allowed to become witnesses in cases which they decide, otherwise that would lead to most anomalous results and would unde:r-rnine the· Ct?nfidence of t~e people· in the _judiciary. Judge has to decide the case acconling to the evidence and the circumstances before him and it cannot

be aIJowed to fill up gaps left by the prosecution or the defence by giving staite ... ment on oath before _Court of law. Under section 540 of the Cr. P.C. the }ligh Court may examine the Sessions Judge or the Trial Court, when very necessary, on very rare occasions where all other remedies are exhau3led. f64D-H, 65Al Tlie .Most Noble the D11ke of Buccleuch and Queensberry and the Afetro~ politon Board of Works (1871-2) VE and I, Appeal Cases 418; Regina v. Gazard, 173 E.R,, 633, applied. 3. The condition of giving an opportunity to the accused to rebut any fresh evidence sought to be adduced ·against him either at the trial or the appellate stage, is implicit under section 540 of the Cr. P.C. and refusal of the swne amounts not only to an infraction of the provisions of the Code, but also of the principles of natural justice, and offends the, famous maxim Audi Altcram Partem. [65 D-E HJ Channufal and Anr. v. Rex, A.I.R. 1949 All. 692, Rangas1vami Naicker v. Muruga 1'.,Taicker, A.LR. 1954 Mad. 169; Shugan Chand and Anr. v. Em(1eror, A.J.R. 1925 Lahore 531; The Queen v. Assanoollah, 13 S.W.R. (Cr!.) 15; approved.

4. Docu1~1ents like the Inquest report, seizure lists or the site plans consists of two parts, one of which is admissible and the other is inadmissible. 'fhat part of such documents which is based on the actual observation of the witness nt the spot being direct evidence in the case, ls clearly admissible under section 60 of the evidence Act, whereas the other part which is based on information given to the Investigating Officer, or on the statement recorded by him inadmissible under section 162 Cr. P.C., except for the Limited purpose mentioned in that section. [72G-H, 73AJ

'fhat

Saladin and Ors. v. State of U.P., A.I.R. 1956 S.C. 181; Surian and Ors. v .. State of Rajastlwn A.1.R., 1956 C., 425; Ch.'Rizak Ram v. Ch. J. S. Clwuhan and Ors., A.I.R. 1975 S.C. 667; Caetano Piedade Fernandes and Anr. v. Union Territory of Goa, Daman and Diu, Ponaji, Goa [1977] 1 S.C.C. 707; lit Singh State of Punjab, A.LR., 1976 S.C. 1421; distinguished.

CRIMINAL APPELLATE JURISDICTION: Criminal Appeals Nos. 241-242 of 1972.

!Appeals by Special Leave from the Judgment and Order dated 1-8-1972 of the Allahabad High Court in Criminal Appeal No•. 2488 and 2561 of 1969).

R. K. Garg, S. C. Agarwala and A. P. Gupta for the appellants.

0. P. Rana for the Respondent.

D. Mookerjee and R. K. Bhatt for the Intervener.

The Judgment .of the Court was delivered by

FAZAL Au, J. These two criminal appeals by special leave are directed against common judgment dated 1st August, 1972 of the Allahabad High Court upholding the conviction and sentences imposed by the Sessions Judge, Bareilly on the appellants. In Criminal Appeal No. 241 of 1972 there are seven appellants, viz., Rameshwar Dayal, Acchmal, Janmeje, Rohan, Raghunandan, Ramdas and Sudama. In Criminal Appeal No,. 242 of 1972 there are two appellants, viz., ~ohtas and Sukhdev, All the app~llan~ were convicted under section 302/149, I.P.C. and sentenced to 1111pn-:10nment for life. Rameshwar Dayal, Achhmal Ram, Janmejaya

Deo, Rohtas, Sudama, Ramdas, Raghunandan and Rohan were further convicted under section 324 read with section 149 I.P.C. and sentenc-ed to one year's rigorous imprisonment. Sukhdev was also convicted unde~ section 324 whereas Rameshwar Dayal and Janmejaya Deo were convicted under section 394 I.P.C. and sentenced to four years' rigo-rous imprisonment. Rameshwar Dayal, Achhmal Ram, J anmejaya Deo, Robtas, Sukhdeo and Sudama were further convicted under sec-tion 148 I.P.C. and sentenced to 18 months' rigorous imprisonment whereas Ramdas, Raghunandan and Rohan were convicted under section 147, I.P.C. and sentenced to one year's rigorous imprisonment. The High Court, on app•al, affirmed the conviction and sentences indicated above. The unfortunate occurrence which resulted in the death of the deceased is an outcome of an outstanding enmity between the two parties. Both the High Court and the Sessions Judge have clearly spelt out the essential features of the prosecution case and it is not necessary for us to repeat the same with all its details. It appears that apart from the long outstanding enmity between the parties the immediate provocation for the occurrence was that proceedings under section 107 /117 Cr. P.C. had been initiated by Babu Ram and Munnalal against each oth~r and were pending in the Court of the Sub-Divisional Magistrate, Faridpur. In these proceedings number of persons figured as parties on both sides. 9th December, 1969 was the date fixed for giving evidence in the proceedings under section 107 /117 Cr.P.C. which had been initiated against the accused persons on the basis of an application given by the deceased Babu Ram. The leader of the faction against whom the proceedings had been started was Munn ala!.

Babu Ram along with his compa_nions left for Faridpur and when he reached near the field of one Laltu Na!, he was surrounded by the appellants who were lying in wait for him in the bushes and who on seeing the accused and his party emerged and started abusing him right and left. Of the accused persons Rameshwar Dayal was armed with single barrel gun, Achhmal Ram with double barrel gun, Janmejaya Deo with country made pistol and the others were variously armed with spears, Kantas and lathis. Rameshwar Dayal fired his gun at the deceased and Janmejaya fired another shot at the deceased from his pistol simultaneously. Babu Ram fell down as result of the injuries received by him. Sukhdeo intercepted Chhotey-lal when he wanted to protect his brother and inflicted spear injury on him. Virendra and others who were accompanying the deceased raised an alarm at which Achhmal fired shot at them which did not hit them. Meanwhile, Rameshwar Dayal snatched away bag from the belt of the deceased containing his licensed revolver and catridges and Janmejaya Deo picked up the cloth bag in which the deceased was carrying the papers relating to the proteedings under section 107 /117 Cr.P.C. which was fixed on 9th December, 1969, the day of the occur-rence. Thereafter, the. appellants made good their escape by running away towards the south. narrative regarding the manner in which the occurrence took place was jotted down by P .W, 1 Rajen?ra, son of the deceased at the spot and he carried the same to the Police Statton

Fatehganj, mile from the soene of the occurrence where the F.I.R. was lodged at 8 a.m. on the basis of which case was registered against the appellants under sections 302, 394 and 324 and other provisions of the Penal Code.

The police visited the spot and after the usual investigation sub-mitted charge-sheet against the appellants as result of which they were put on trial by the Sessions Judge and convincted and sentenced by him as indicated above.

Two facts need special mention which have taken place during the course of iuvestigation. In the first place, when the Investigating Officer visited the place of occurrence he found one empty cartridge and four live cartridges at the spot. The appellants have challenged the factum of the recovery of four live cartridges at the spot an aspect which has engaged the main attention of counsel for the appellants in this Court as well in the High Court which will be dealt with little later.

The prosecution had examined three main eye-witnesses in the .case, namely, P.W.l Rajendra, P.W.2 Mungolal Sharma and P.W.3 Chhotey-D lal. The learned Sessions Judge after very careful appraisal of the evidence and the circumstances of the case came to the clear conclusion that the case was proved against the appellants and he accordingly convicted them. It may also be mentioned here that the Sessions Judge found as fact in his judgment that the cartridges which were found on the spot were Jive cartridges though by mistake they were recorded as empty cartridges in the evidence of the Investigating Officer Muniraj Singh. In this connection, the learned Sessions Judge while dealing with the evidence of the Investigating Officer, P.W.11 observed as follows :-

"He also found four live cartridges Ex. 2 of 32 bore revolver near the dead body (the word empty instead of live being wrongly written in the statement, as is shown by the memo Ex. Ka. 14 prepared in respect of it after they being sealed)".

The learned Sessions Judge further observed as follows :

"Further that four live cartridges said to be belonging to the deceased were found lying at the spot by the I.O. which fact is again not challenged by the defence, the prosecution has succeeded in proving that the incident occurred near the field of Laltu".

These two statements of fact made by the learned Sessions Judge in his judgment do not appear to have been challenged by the appellants in their grounds of appeal before the High Court Normally, this Court would not allow the parties to contest any statement of fact mentioned in the judgment unless unerring and cogent evidence is pro-duced to draw converse conclusion. Neither before the High Court nor before this Court such an evidence has been suggested much Jess proved in the case.

It appears that while the appeal was pending in the High Court 'Where the material exhibits were sent for and after the material exhibits were sent for an application was filed by the accused on 25th April, 1972 praying that in view of the fact that on inspection of the material exhibits showed that the cartridges found at the spot were not live cartridges but empty cartridges, additional evidence may be allowed to be taken by the Court to clear up the issue. It may be noted that this application was made ahnost three years after the memo of appeal was filed in the High Court. The fact that live cartridges were found at the spot does not appear to have been controverted either before the Sessions Judge or even at the time when the appeal was filed before the High Court. In fact, it would appear that counsel for both the parties argued the case before the Sessions Judge on the footing that the . evidence showed that four live cartridges were found at the spot.When the matter was taken up by the High Court, at the hearing the High Court examined two witnesses, viz., Mr. Hira Lal Capoor, the Sessions Judge himself and Muniraj Singh, the Investigating Officer on the question as to whether live or empty cartridges were found at the spot. Indeed, if it was proved that empty cartridges were found at the spot, then having regard to the admitted fact that the deceased was carrying pistol along with cartridges there may be possibility of his having himself fired five shots on his assailants and that would naturally change the entire complexion of the case. After the witnesses were examined by the High Court the appellants were re-examined under section 342 Cr.P.C. Thereafter, the appellants filed.an application on 25th April, 1972 praying that they may be given an opportunity to rebut the evidence of the Court witnesses summoned by the High Court. In their application the appellants prayed for the examination of two witnesses, namely. Shri S. N. Mulla, Bar-at-Law and Shri Bankesh Behari Mathur, Advocate, Bareilly and also call for docu-ment, viz., the Panchayatnama Register of Police Station Fatehganj. The High Court, however, refused to accede to the prayer of the appellants on the ground that they had got full opportunity to cross-examine the witness examined by the High Court under section 540, Cr.P.C.

One of the main points taken by the appellants in their petition for ~pecial leave was that the High Court judgment was vitiated by the failure of the High Court to give reasonable opportunity to the appel-lants in order to rebut the evidence of the witnesses examined by the High Court under section 540, Cr.P.C. and this argument has been the sheet-anchor of Mr. Garg, counsel for the appellants before us.

We have gone through the judgments of the two courts and have also been taken through the entire evidence. Mr. Garg, learned counsel for the appellants submitted that if the High Court chose to summon the Sessions Judge and the Investigating Officer under Section 540, Cr.P.C. it was incuml)ent on it to give reasonable opportunity to the appellants to rebut that evidence and the High Court committed Berious error of law in not summoning the witnesses Shri Mulla · and Shri Mathur in spite of prayer having been made to this effect to it.

We find onrselves in complete agreement with the principles adumbrated by Mr. Garg and we feel that the High Court ought to have given an opportunity to the appellants to examine the witnesses.

It was also argued that the High Court erred in examining the Sessions Judge as witness which was most extraordinary conrse. In this connection, reliance was placed on decision in the case of The Most Noble the Duke of Buccleuch and Queensberry and The Metropo-litan Board of Works (1871-2) V English & Irish Appeal Cases 418 where Lord Chelmsford speaking for the Appeal Court observed as follows :

"With respect to those who fill the office of Judge it has been felt that there are grave objections to their conduct being made the subject of cross-examination and comment (to which hardly any limit conld be put) in relation to proceed-ings before them; and, as everything which they can pro-perly prove can be proved by others, the Conrts of law dis-countenance, and I think I may say prevent them being examined".

We fully agree with the rule of law laid down in the aforesaid ruling. Judges should not be allowed to become witnesses in cases which they . decide otherwise that would lead to most anomolous results and would undermine the confidence of the people in the judiciary. Judge has to decide the case according the evidence and the circumstances before him and it can not be allowed to fill up gaps left by the prosecution or the defence by giving statement on oath before court of law. If any statement of fact made by the Judge in his judgment is sought to be controverted the, same should be done by the well established method of filing affidavits by counsel and getting report from the Judge by the High Court. It is true that under section 540 of the Criminal Proce-dure Code the High Court has got very wide powers to examine any witness it likes for the just decision of the case, but this power has to be exercised sparingly and only when the ends of justice so demand. The higher the power the more careful should be its exercise.

In the case of Regina v. Gazard(") it was held by Patteson, J'. that it will be dangerous precedent to allow President of the Court of Record to be examined as witness. In this connection, Patteson,. J. made the following observations :

In this connection, Patteson,.

"It is new point, but I should advise the grand jury not to examine him. He is the present of Court of Record, and it would be dangerous to allow such an examination, as the Judges of England might be called upon to state whi,.t occurred before them in Conrt".

Although in the instant case the Sessions Judge was not Court of Record but the principles laid down by Patteson, J. would equally apply to him. We do not mean to suggest for moment that the High Court

(I) 173 E.R. 633.

has no power to examine Sessions Judge in any case whatsoever for there may be proper and suitable cases where the examination of the . Sessions Judge or the trial Court may be very necessary but this must be indeed very rare. occasion where all other remedies are exhausted. In the instant case, we feel that there was no good and cogent ground for the High Court to have examined the Sessions Judge because his evidence was not essential for just and proper decision of the case particularly when the appellants never challenged the statements made in the judgment regarding the live cartridges either before the Sessions Judge or even in the High Court when the memo of appeal was filed before the Court.

As far as the evidence of Muniraj Singh the Investigating Officer is concerned that also was not necessary because that really amounted to allowing the prosecution to fill up gaps. Even if we hold that the High Court was justified in exercising its discretion under section 540 Cr.P.C. the High Court committed serious error of law in not allowing the appellants an opportunity to rebut the statement of the witnesses examined by the High Court which caused serious prejudice to the accused.

It was argued by counsel for the State that there is no provision in the .Criminal Procedure Code which requires the Court to allow the appellant an opportunity to rebut the evidence of witnesses summoned under section 540 Cr.P.C. This argument, in our opinion, is based on serious misconception of the correct approach to the cardinal princi-ples of criminal justice. Section 540 itse.Jf incorporates rule of natural justice. The accused is presumed to be innocent until he is proved guilty. It is, therefore, manifest that where any fresh evidence is admitted against the accused the presumption of innocence is weakened and the accused in all fairness should he given an opportunity to rebut that evidence. The right to adduce evidence in rebuttal is one of the inevitable steps in the defence of case by the accused and refusal cf the same amounts not only to an infraction of the provisions of the Criminal Procedure Code but also of the principles of natural justice and offends the famous maxim Audi Alteram Partem. Section 540 of the Criminal Procedure Code runs thus :-

"Anv Court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as witness, or examine any person in attendance, though not summoned as witness, or recall and re-examine any person already examined, and the Court shall summon and examine or recall and re--examine any such person if his evidence appears to it essential to the just decision of the case". ,

careful perusal of this provision manifestly reveals that the statute bas armed the Court with all the powers to do full justice between the parties and as full justice cannot be done until both the parties are pro--perly heard, the c_ondition of giving an opportuni~y to. the _accused to rebut any fresh evidence' sought to be adduced agamst him erther at the trial or the appellate stage appears to us to be implicit under section 540 of the Cr.P.C; The words "just decision of the case" would become meaningless and without any significance if decision is to be arrived at without sense of justice and fair play.

In the case of Channu Lal and Anr. v. Rex(') the Division Bench of the Allahabad High Court ruled as follows : .

"Section 540, in our opinion, empowers Court to take such evidence. If the Court decides to take such evidence, it would be proper for the Court to re-examine the accused with reference to the new evidence recorded and to give an oppor-B !unity to the accused to give such further evidence in defence as he may be advised 'to do''.

To the same effect is decision of the Madras High Court in the case of Rangaswami Naicker v. Muruga Naicker(2) where Ramaswami, J. observed as follows :

"The only rules, which the Magistrate must bear in mind when examining court witnesses are ( 1) that the prosecution and the accused are both equally entitled to cross-examine court witness, and (2) that if the evidence of court witness is prejudicial to the accused, opportunity to rebut the evi-dence so given must be given to the accused".

Same view has been taken by the Lahore High Court in the case of Shugan Chand and Anr. v. Emperor(') and in the case of The Qiieen v. Assa11oo!lah(') where Division Bench of the Court observed as follows :

"In the present case, the prisoner has had no opportunity of making defence or calling evidence, with reference to the evidence of the Moonsiff given by him when re-called after the prisoner had concluded his defence. I think, therefore, that the case has not been properly tried, and that the convic-tion and sentence are not legal. It appears to me that, under section 405, we ought to quash the conviction, and orde{ new trial''.

We find ourselves in complete agreement with the principles laid down and the observations made in the aforesaid cases which represent the correct law on the subject.

The High Court seems to have justified the refusal to give an opportunity to the accused to rebut the evidence on the ground that Shri Mulla who was counsel representing the accused did not choose to withdraw from the appeal and that other witnesses sought to be exa-mined by the appe1Iants were bye-standers. These considerations are absolutely extraneous to the issue. It was not open to the High Court to have pre-judged the merits of the evidence of the witnesses sought to be examined by the defence even before their evidence was recorded. In these circumstances, we feel that the reasons given by the High Court for not examining the witnesses suggested by the accused are wholly unsustainable in law.

(l) A.l.R. 1949 All. 692.

(2) A.I.R. 1954 Mad. 169.

(3) A.I.R. 1925 Lahore 531.

(4) 13 SW.R. (Crl.) 15.

For these reasons, therefore, we are clearly of the opinion that the High Court was in error iu refusing the appellants an opportunity of giving evidence to rebut the evidence of the witnesses examined by the High Court under section 540, Cr.P.C. Normally, this error would have been sufficient to vitiate the judgment and would have required our remitting the case to the High Court for fresh decision. We however find that this is very old case when the occurrence had taken place more than 8 years ago and the appeal in this Court has itself taken more than five years. In these circumstances, we feel that the ends of justice do not require that the case should be sent back to the High Court which would entail further delay. We have, therefore, decided to go into the evidence ourselves after completely excluding the evidence of the witnesses examined by the High Court under sec-tion 540, Cr.P.C. so that we base our decisiol) only on the evidence and the circumstances that were before the Sessions Judge.

Before going into the merits we might mention few facts which have been found against the appellants. Both the High Court and the Sessions Judge have believed the evidence of P.Ws. 1, 2 and 3 who proved the assault on the deceased and Chhotey Lal. The Sessions Judge has particularly discussed all the aspects of the case very exhaus-tively and has combated every possible argument that was or could be advanced before him by the appellants.

Regarding P.W. 1 the High Court accepted his evidence and observed as follows :-

"We are satisfied that Chhoteylal (P.W. 3) was also present in the company of his brother Babu Ram when he was shot dead''.

Similarly, rejecting the adverse comments made against the testi-mony of P.W. 2 'the High Court said that "his explanation for his pre-sence in the company of the deceased when he was shot at is quite plausible. He is in our judgment, thoroughly reliable witness".

Similar opinion was given by the High Court in respect of Chhotey Lal, P.W. 3 where the High Court observed as follows :

"Rajendra whom we have found was present during the occurrence has supported the statement of Chhoteylal. In the First Information Report lodged by him without any delay whatsoever it had been mentioned that Chhoteylal had been injured by Sukhdeo with spear wielded by him".

Similarly, the trial Court has also accepted the evidence of these witnesses in the same terms. We have also gone through the evidence of these three witnesses in their entirety and we find that they have given straight forward answers and their evidence has the ring of truth in it.

One of the most important circumstances which proves the prose-cution case is the fact that although the main person against whom pro-ceedings nnder section 107 had been initiated by the deceased was Munna Lal yet Munna Lal has not at all been made an accused in this

case nor has any act been attributed to him. This is an intrinsic evi-dence of the fact that the prosecution had no intention of falsely impli-cating any person even though he may have been the greatest enemy of the deceased.

Another pertinent fact which deserves particular mention is that the F.I.R. appears to have been lodged within an hour of the occurrence and there was hardly any time for the parties to discuss or deliberate. The F.I.R. contains brief but full narrative of the manner in which the deceased was killed and the names of the accused persons are also mentioned therein. It is true that some of the witnesses who have been mentioned in the F.I.R. as having accompanied the deceased have not been exantined by the prosecution but that by itself in onr opinion in the circumstances of the present case does not appear to be fatal defect in the prosecution case. This Court in the case of Dalbir Kaur & Ors. v. State of Punjab([1]) said that it is manifest that what is important is not as to who were not exantined but as to whether the witness who had actually been examined should be believed and while enunciating the principles on the basis of which this Court would interfere iu an appeal by special leave observed as follows :

"1. That this Court would not i~terfere with the concur-rent findings of fact based on pure appreci[tion of evidence even if it were to take different view on the evidence.

2. That the Court will not normally enter into reappraisement or review of the evidence, unless the assess-ment of the High Court is vitiated by an error of Jaw or proc cedure or is based on error of record, misreading of evidence or is inconsistent with the evidence, for instance, where the ocular evidence is totally inconsistent with the medical evidence and so on;

3. That the Court would not enter into credibility of the evidence with view to substitute its own opinion for that of the High Court;

4. That the Court would interfere where the High Court has arrived at finding of fact in disregard of judicial pro-cess, principles of natural justice or fair hearing or has acted in violation of mandatory provision of law or proce-dure resulting in serious prejudice or injustice to the accused;

5. This Court might also interfere where on the proved facts wrong inferences of law have been drawn or where the conclusions of the High Court are manifestly perverse and based on no evidence".

In the instant case, having regard to the concurrent findings of fact by the High Court and the Sessions Judge that the evidence of P.Ws. 1, 2 and 3 is worthy of credence, and after perusing the evidence we also do not see any reason why the evidence of these witnesses should be

discarded. All the three witnesses have been mentioned in the F.I.R. as being present on the scene of occurrence. P .W: 3. has an injury which according to the doctor could not be self mflicted. The pre-sence of the injury on the person of Cbbotey Lal is strong corrobora-tion of the evidence of the eye-witnesses.

We shall now deal with some important contentions raised by the appellants on the merits of the case. In the first place, great reliaar,e was placed on the evidence of P.W. 11 the Investigating Officer who bad said in bis statement before the Sessions Court that be had found four empty cartridges at the spot. Mr. Garg submitted that this admis-sion of the Investigating Officer knocks the bottom ont of the case of the !prosecution. It was argued that if the empty cartridges were recovered from the spot as deposed to by this witness the entire com-plexion of the case changes and it would appear that the prosecution had not presented the true version of the case before the Court. We have ourselves gone through the e~idence of P.W. 11 carefully and we find that either the witness has made some confusion regarding the finding of four empty cartridges or the word "empty" has been wrongly recorded in the statement of the witness as is clearly found by the learn-ed Judge in his judgment the extract of which has been quoted above. We have already pointed out that although the trial Judge had clearly held that the word "empty" instead of "live" was wrongly written in the statement yet this statement of fact made by the Sessions Judge in his judgment was not controverted by the appellants in their memo of appeal filed in the High Court nor was any attempt made by !he appellants to prove that the said statement was wrong on point of fact either by examining counsel who had conducted the case before the trial Court or by producing any other proof. Furthermore, the learn-ed Judge has clearly mentioned in his judgment that the fact that four live cartridges belonging to the deceased were found lying at the spot was not even challenged by the defence. Even this fact was not con-troverted either before the Sessions Court or in the memo of appeal filed in the High Court.

Finally, the High. Court itself has pointed out that Shri S. N. Mulla and Shri R. K. Shangloo who had represented the appellants in the appeal in the High Court and had also appeared for the appellants before the trial Conrt on enquiry by the High Court whether the revolver cartridges exhibited at the trial were live or empty were not in position to refute the statement made by the prosecutor Shri B. C. 'Saxena. In this connection, the High Court observed as follows :-

"Shri S. N. Mulla aad Shri R. K. Shangloo represent the appellants in Criminal Appeal No. 2561 of 1969. Both these learned counsel had appeared on' behalf of the defence before the trial court. It was Shri Mulla who had cross-examined the Investigating Officer. When we enqnired from them as to whether the revolver cartridges when exhibited at the trial were live or empty neither of the two learned counsel found himself.in position to refute the statement made by Shri B. C. Saxena".

[1978] 3 s.c.R.

Shri B. C. Saxena who had appeared for the prosecution before the trial Court emphatically asserted that when the sealed packet con-taining Ex.2 was opened it contained four live cartridges. Shri Saxena also asserted that during the arguments the attention of the Sessions Judge was pointedly drawn to the statement made by the Investigatmg Officer on which reliance has been placed by the appel-lants and both the parties proceeded on the footing that the cartridges were live when they were produced before the Court. All these facts have been clearly mentioned in the judgment of the High Court. The conduct of counsel for the appellants is fully consistent with the observations made by the Sessions Judge in his judgment that there appears to be some inadvertant mistake in recording the evidence of the Investigating Officer.

Apart from this there is overwhelming documentary evidence to show that the statement of the Investigating Officer in Court that be found four empty cartridges is factually incorrect. To begin with there is Ex. Ka. 10 which is the panchayatnama or the inquest re-port prepared by the Investigating Officer himself which he proves m his evidence by stating as follows :

"I reached the place of the occurrence at 9 a.m. There I found the dead body of Babu Ram near the chak road towards the north of the field of Laltu Na! lying on the ridge at di'stance of about 2-3 paces. I had prepared the pancha-yatnama Ex. Ka-10".

In this inquest report it is clearly mentioned by the Investigating Officer that )le had found four live cartridges. The exact words used are "4 ;;my;r >r~ g1( 3 2 f'~ if;" The Investigating ,Officer does not say in his evidence that this finding of fact in the panchayatnama or the inquest report was inccrrect. 'The statement in the inquest report was made by the Investigating Officer soon after the occurrence and was, therefore, the earliest statement regarding fact which he found and observed. The earlier statement, there-fore, is valuable material for testing the veracity of the witness.

In the case of Baladin & Ors. v. State of U.P.([1]) it was pointed out by this Court that statements made by the prosecution witnesses before the investigating police officer being the earliest statements made by them with reference to the facts of the occurrence are valuable mate<ial for testing the veracity of the witnesses examined. In this con-G nection, this Court observed as follows :-

"Statements made by prosecution witnesses before the investigating police officer being the earliest statements made bv them with reference to the facts of the occur-rence a;e valuable material for testing the veracity of the witnesses examined in court . . . . . but the statements made during police investigation are not substantive evidence".

(I) A.LR. 1956 S.C. 181.

Reliance was placed by the learned counsel for the appellants on this decision in support of his argument that the stateme.n!S made in the inquest repcrt were inadmissible in evidence being hit by secti~n 162 Cr. P.C. In the first place, the statement made by the Investi-gating Ofticer in Ex.Ka-10 is not statement made by any witness before the police during investigation but it is record of what the Investigating Officer himself observed a11d found. Such an evidence is the direct or the primary evidence in the case and is in the eye of law the best evidence. Unless the record is proved to be suspect and unreliable perfunctory or dishonest, there is no reason to disbelieve such statement in the inquest report.

Reliance was also placed by counsel for the appellants in the case of Sw}a11 and Ors. v. State of Rajasthan(') where this Cour! obscr;·eJ as follows :

"But the statement in the inquest report is. not evidence by itself and it certainly cannot be pitted against the evi-dence of the medical witness given in Court."

This case is clearly distinguishable from the facts and circumstances of the present case. What had happened in that case was that description of an injury found on the head of the deceased as given by the Inv<;stigating Officer was inconsistent with the medical evi-dence. This Court pointed out that where statement in the inquest report was pitted against the medical evidence it had to yield before the opinion of the expert. It is obvious that the description given by the Sub-Inspector was merely his opinion which was riot the opinic.n of an expert and could not, therefore, stand scrutiny before the evidence of duly qualified expert, viz., the doctor. This principle cannot be applied here for it does not require an expert knowledge to find out whether Jive cartridge was there or not. In these circnmstances, therefore, the two cases cited by the appellants do no~ appear to be· of any assistance to them .Reliance was further placed on decision of this Court in the case of Ch. Rlzak Ram v. Ch. J. S. Chauhan(') & Ors. This case has also no application to the facts of the present case because wnat had happened in that case was that statement of the witness Parmeshwari was recorded by the Investigating Officer and thumb marked was being used in election petition. It was hefc! by this Court that the statement was h,it by section 162, Cr. P.C. This pro-position is well settled. Any statement made by any witness to police ofticer during investigation is clearly hit by section 162 and can he used only for contradicting or corroborating the other witness and is not substantive piece of evidence. statement contained in Ex. Ka-10 is not statement of witness rtt all but is memo of what the Investigating Officer had himself' found and observed at the spot and to such case section 162 would have no application at all.

(I) A.LR. 1956 S.C. 425.

(2) A.LR. 1975 S.C. 667.

Reliance was also placed on recent decision of this Court in the case of Castano Piedade Fernanrfes & Anr. v. Unio11 Territory of Goa, Dama11 & Diu, Panaji, Goa('). This case is also wholly i.rrelevant to the issue in question because there the Court on consideration of the evidence found as fact that the panchnama was not genuine document and did not inspire confidence. There is no such finding by the High Court or the Sessions Judge in the ins-tant case nor has the inquest report been shown to be unreliable or perfunctory or suspect.

Apart from the inquest report Ex. Ka-10 there is another docu-ment which throws flood of light on this question. Exh. Ka-18 which is the site plan prepared by the Investigating Officer at the spot from where the empty cartridges of .12 bore were recovered. This is also record of what the Investigating Officer himself found at the spot. The learned counsel for the appellants submitted that the site plan was also not admissible in evidence because it was based on information derived by the Investigating Officer from the statement of witnesses during investigation. Reliance was placed on judg-ment of this Court in the case of lit Singh v. State of Punjab([2]) where this Court observed as follows :

"It is argued that presumably this site plan also was prepared by the Investigating Officer in accordance with the various situations pointed out to him by the witnesses . . . . . . . . . . . . . . . . We are afraid it is not permissible to use the site plan Ex.P.14 in the manner suggested by the counsel. The notes in question on this site plan were state-ments recorded by the Police Officer in the course of in-vestigation, and were hit by section 162 of the Code of Criminal Procedure. These notes could be used only for the purposes of contradicting the prosecution witnesses con-cerned in accordance with the provisions of section l 45. Evidence Act and for no other purpose".

In our opinion, the argument of the learned counsel is based on misconception of law laid down by this Court. What this Court has said is that the notes in question which are in the nature of state-ment recorded by the Police Officer in the course of investigation would not be admis:Sihle. There can be no quarrel with this proposition. Note No. 4 in Ex. K-18 is not note which is based on the in-formation given to the Investigating Officer by the witnesses but is memo of what he himself found and observed at the spot. Such statement does not fall within the four-corners of section 162, Cr.P.C. In fact, documents like the inquest reports, seizure lists or the site plans consist of two parts one of which is admissible and the other is inadmissible. That part of such documents which is based on the actual observation of the witness at the spot being direct evidence in the case is clearly admissible under section 60 of

(!) [1977] 1 S.C.C. 707.

(2) A.LR. 1976 S.C. 1421.

the Evidence Act whereas the other part which is based on infor-mation given to the Investigating Officer or on the stat,ment record-ed by him in the conrse of investigation is inadmissible under section 162 Cr.P.C. except for the limited purpose mentioned in that sec-tion. For these reasons, therefore, we are of the opinion that the decision cited by the counsel for the appellants has no appHcation to this case.

Exhibit Ka-13 is memo relating to the recovery of the empty cartridges found at the spot by the Investigating Officer. The title of this memo runs thus :

"Memo relating to the recovery of Khokha (empty case of cartridge of .12 bore from the site in the case as offence No. 126, under sections 147/148/149/302/392/ 324 I.P.C."

It appears that where an empty cartridge is mentioned it is describ-ed as Khokha whereas in the case of live cartridge the word "cart-ridges----Kartoos" has been clearly mentioned. Ex. Ka-13 is the seizure memo of the recovery of an empty cartridge of .12 bore which was found at the spot and which was said to have hit the deceased having been fired from the gun of one of the >appellants. It was also mentioned in this memo that smell of· the gun powder was coming out of the Khokha. When the Investigating Officer deposed before the Sessions Judge that smell was coming out from tl1e ·:art· ridge he was actually referring to the' empty cartridge which was re-covered from the spot and which was fired from the gun of the appellants. Ex. Ka-14 however is the seizure memo of the four live cartridges found by the Investigating Officer at the spot, in which it is mentio'led that four cartridges of .32 bore revolver are recovered. The exact description is given thus :

"Description of the Cartridge

Four cartridge of .32 bore of revolver of brass cap and blacks lead Kynock-32 Sand W. engraved on the brass cop. old."

and

It would be seen that the description of the four cartridges with brass cap on lead intact show that the cartridges were live and not empty because if the cartridges were empty then there was no ques-tion of there being any black lead in existence at the spot. The Investigating Oflker has clearly proved these documents in his evi-dence before the Sessions Jtidge and stated that he· had prepared these documents. Thus these documents having been prepared im-mediately after the occurrence are undoubtedly reliable.

Having regard, therefore, to the documentary evidence and the circnmstances mentioned above we find ourselves in complete agree-ment with the view taken by the courts below that what had been recovered a! the spot by the Investiguting Officer were four live cart-ridges which had fallen at the spot when the bag of the deceased was 6-211 SCI78

taken away by the appellants. We are unable to find any reliable evidence to prove that the four cartridges found at the spot were empty cartridges. The argument of the learned counsel for the appellants to the contrary must be overruled. Great reliance was placed by the appellants on an application given by Rajendra son of the deceased before the S.D.M. Court at Bareilly informing the court that Babu Ram had been murdered. This application is Ex. Ka-1 and was filed before the Magistrate on 9-12-1968. It is true that in this application it was mentioned that Shri Babu Ram had been murdered .but the name of the appel-lants nor the circumstances under which he was murdered have been mentioned. It was argii,.ed by Mr. Garg that the absence of the names of the appellants clearly showed that the dccea~ed was murdered by unknown persons, and, therefore, only the fact of his murder was menticned in this application. The argument appears to be attractive, but on closer scrutiny it is without any substance. P.W. l had al-ready rushed to the police station to lodge the F.I.R. wherein he had narrated the facts which led to the death of the deceased. Rajendra, son of the deceased who had been sent to Bareilly was sent for the limited purpose of informing the court regarding the death of Bab\] Ram. In the proceedings under section 107 there was no occasion for mentioning the name of the assailants of Babu Ram or for detaiiing the circumstances under which he was killed because that was not germane for the proceedings. In these circumstances, there-fore, the absence of the name of the assailants in this applimtion can-not put the prosecution out of Court.

Learned counsel for the appellants made certain comments against some of the witnesses which have been carefully dealt with by the Courts below. The discrepancies relied upon by the appellants do not appear to be of great consequence and do not merit serious consideration. On careful consideration of the entire facts of the case we are clearly of the opinion that the prosecution case against the appellants has been proved beyond reasonable doubt and we find no reason to intnferc with the judgement of the High Court upholding the con-viction and the sentences passed on the appellants in both the appeals. The result is that the . appeals fail and are accordingly dis-missed.

Appeals dismissed.