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PETITIONER: MOHANLAL GANGARAM GEHANI

       Vs.

RESPONDENT: STATE OF MAHARASTRA

DATE OF JUDGMENT17/02/1982

BENCH: FAZALALI, SYED MURTAZA BENCH: FAZALALI, SYED MURTAZA DESAI, D.A. VARADARAJAN, A. (J)

CITATION:  1982 AIR  839            1982 SCR  (3) 277  1982 SCC  (1) 700        1982 SCALE  (1)143  CITATOR INFO :  RF         1972 SC1817  (18)

ACT:      Evidence   Act-Section    145-Scope   of-Identification parade-Accused identified  by witness  for the first time in court-Evidence-Validity of.

HEADNOTE:      The prosecution  case against the appellant was that on the night  of occurrence  between 11  and 11.30 the informer and two of his friends were standing on a road when suddenly the three  accused emerged  out of the car and the appellant assaulted and  stabbed the injured person with a dagger. The prosecution alleged  that  there  was  enemity  between  the assailants and  the injured person; that the informer lodged a F.I.R.  at 00.50  hrs. and that the injured man was picked up by a Police Wireless Van and admitted in the hospital.      The trial  court convicted  the accused  under  section 326/34 I.P.C. and sentenced them variously.      The High  Court acquitted  two of the three accused. In regard to  the appellant,  disbelieving the  evidence of the doctor on  the ground  that the  name of  the assailant  was first written  by her as "Tony" but later changed to read as "Tiny" and  that secondly  there was no particular column in the register  where the  name  of  the  assailant  could  be written, the  High Court altered the conviction to one under section  326   I.P.C.  and   sentenced   him   to   rigorous imprisonment for three years.      On appeal  to this  Court it was contended on behalf of the appellant  that (1)  the F.I.R.  was not lodged at 00.50 hrs. as  claimed by the prosecution; (2) the injured did not know the appellant before the occurrence; (3) the version of the injured  that the name of the assailant was disclosed to him by  a friend  of the informer should not be accepted and (4) the discrepancy in the name of the assailant recorded by the doctor  was not  such as  to  completely  discredit  her evidence.      Allowing the appeal, ^      HELD: (a)  The change of name "Tony" into "Tiny" in the hospital register might be due to mis-hearing of the name in

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the first  instance and  correcting it later. Much could not be made  of this circumstance. The doctor had initialled the alteration. The  prosecution has  not made  any  attempt  to declare 278 the doctor  a hostile  witness  and  to  cross-examine  her. Therefore the  change in  the name  could  be  a  bona  fide mistake. That  apart, the injured was fully conscious at the time he made the statement to the doctor. [282 A-C]      (b) The  High Court  was in error in stating that there was no  particular column  in the hospital register in which the name  of the  assailant could  be mentioned.  The entire part of  the register  where the statement had been recorded by the  doctor is  described as the "Registrar’s note" which comprehends everything  including the  nature of injuries to the injured,  any statement  made by  him or  similar  other matters. [281 E-F]      (c) There  is no  evidence on  record to  show that the doctor was  in  any  way  friendly  with  the  appellant  or inimical towards  the injured  man; she  was  an  absolutely disinterested and independent witness. [281 G]      2 (a)  The High  Court had  erred in  holding that  the doctor’s evidence was inadmissible in that the provisions of section 145  of the Evidence Act had not been complied with. [282 F]      (b) Section  145 applies  only to  cases where the same person  makes   two  contradictory   statements  either   in different proceedings  or  in  two  different  stages  of  a proceeding. If  the maker  of a  statement is  sought to  be contradicted, his  attention should be drawn to his previous statements under  section 145,  that is  to say,  where  the statements made by a person or a witness is contradicted not by his  own  statement  but  by  the  statement  of  another prosecution witness  the question  of application of section 145 does not arise. [283 A-C]      (c) The  doctor’s  statement  was  an  admission  of  a prosecution  witness.   If  it  was  inconsistent  with  the statement made  by another  prosecution witness there was no question of  application of section 145 of the Evidence Act. [283 C]      In the instant case the statement of the injured to the doctor being  first in point of time it must be preferred to any subsequent statement made by the injured.      There is much evidence to show that the injured did not know the  appellant before the date of the incident. No test identification parade had been held. The appellant was shown by the  police before  he identified him. If the accused was not known to the injured and his friends before the incident and was  identified for  the first  time in  the court, this evidence has  no value  and cannot  be relied  upon  in  the absence of a test identification parade. [285 E,C,F]      V.C. Shukla  v. State  (Delhi Administration), [1980] 3 S.C.R. 500  and Sahdeo  Gosain &  Anr. v.  The King  Emperor [1944] FCR 223, referred to.

JUDGMENT:      CRIMINAL APPELLATE  JURISDICTION: Criminal Appeal No. 4 of 1976. 279      Appeal by  special leave  from the  judgment and  order dated the  29th August  1975/1st Sept.,  1975 of  the Bombay High Court in Criminal Appeal No. 1639 of 1972.      Ram Jethmalani,  Mrs. S.  Bhandare, A.N.  Karkhanis, T.

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Sridharan and C.K. Sucharita for the Appellant.      J.L. Nain,  and H.R.  Khanna and  M. N.  Shroff for the Respondent.      The Judgment of the Court was delivered by      FAZAL ALI,  J. This appeal by special leave is directed against a  judgment dated  29th  August  1975/1st  September 1975, of  the Bombay  High Court  convicting the  appellant, Mohanlal Gangaram  Gehani (hereinafter  referred to  as A-1) under section  326, I.P.C.  and sentencing  him to  rigorous imprisonment for three years. He was also convicted under s. 323 read  with s.  34 I.P.C.  but no  separate sentence  was awarded.      The trial  court had  convicted  A-1  under  s.  326/34 I.P.C. which  was altered  by the High Court to one under s. 326 simpliciter.  The details of the prosecution case are to be found  in the  judgment of  the High  Court and it is not necessary for us to repeat the same. We shall, however, give a brief  resume of the important facts which are germane for deciding the  short points raised by Mr. Jethmalani, counsel for the appellant.      The occurrence  out of  which the present appeal arises appears to  have taken  place on  April 2, 1972 at about 11- 11.30 p.m.  According to  the prosecution while Ishrat Malik Faqih (hereinafter  referred to  as ’Ishrat’)  was returning from a movie in Paradise Cinema, situated at Lady Jamashedji Road, Mahim  at about  12 15  a.m. he met Salim, a friend of his, alongwith  Shaikh Abdul  Kalim alias Pappu (P.W. 4). He also saw  another person  standing with Salim and Pappu. All of them  started talking  to one  another when suddenly they saw a  black Fiat  car coming  from Lady Jamashedji Road and taking a  turn to  Chotani Road.  The car  stopped near  the place where  the aforesaid persons were talking and A-1, A-2 (Shashi) and  A-3 (Kumar) emerged from the car. According to the informant,  Ishrat, all  the three accused were known to him before.  These persons  were dead drunk and asked Ishrat and party as to who amongst them was their leader. Some sort of 280 an altercation  took place in the course of which A-2 caught hold of  the shirt  of Shanker Shetty and assaulted him with fists. He  was joined  by A-3 and the altercation culminated in a  murderous assault  said to  have been  made by A-1 who took out  a dagger  and stabbed  Shetty on the right side of the stomach below the chest. Shetty fell down. Thereafter A- 1 ran  back to  his car and sped away leaving behind A-3 who could not  get into the car. Ishrat immediately proceeded to the Mahim  police station  and lodged  an F.I.R.  with  Sub- Inspector Sawant  (P.W. 7)  at 00.50  hrs. On April 3, 1972. According to  the prosecution,  the informant  had rushed to the police  station and  lodged the F.I.R. within an hour of the occurrence.      Subsequently, it  appears that  a wireless  police  van which passed  through the  place of  occurrence having found Shetty lying injured picked him up and removed him to K.E.M. Hospital. Dr.  Heena (P.W.  11) admitted  Shetty and  made a note of the injuries received by him in the notesheet of the hospital register  and also  mentioned  the  fact  that  the injured had  named his assailant as one Tiny. It was further alleged by  the prosecution  that Sawant after recording the F.I.R. rushed  to the  hospital  and  contacted  Shetty  and recorded his statement at 1.45 a.m.      After  the   usual   investigation,   chargesheet   was submitted against  A-1 to  A-3 who were ultimately tried and convicted for an offence under s. 326 read with s. 34 I.P.C. and A-1 was sentenced as mentioned hereinbefore. A-2 and A-3

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each was  sentenced to  suffer rigorous imprisonment for two years. A-1 pleaded innocence and his defence was that he was falsely implicated  due to  enmity because  Ishrat  and  his friends were  carrying on  Matka business  and the appellant being an informer of the Customs Department had made certain reports  against   the  prosecution  witnesses  particularly Ishrat who  was a smuggler. We need not refer to the defence of A-2 or A-3 as they have been acquitted by the High Court.      The appellant  raised several  points before  the  High Court  which   after  hearing   the  parties  confirmed  his conviction but reduced his sentence to rigorous imprisonment for three years.      In support  of the  appeal Mr.  Jethmalani  has  argued three important  points relating  to  certain  circumstances which  completely   demolish  the  entire  prosecution  case against the appellant. 281 In the first place, it was argued that the F.I.R. was not at all lodged  at 00.50  hrs. as alleged by the prosecution but much later.  Secondly, Shetty  did not  know  the  appellant before the  occurrence and  thirdly, Mr.  Jethmalani argued, that  his  version  that  the  name  of  the  appellant  was disclosed to him by Salim should not be accepted.      Another important  circumstance to  which our attention was drawn  and which  has greatly  impressed us  is that the hospital register (Ext. 22) shows that when Shetty was taken to the  hospital and  produced before Dr. Heena (P.W. 11) he gave the  name of  his assailant  as one  Tiny or  Tony. The evidence further  shows that  Tiny or Tony was undoubtedly a known person  who was living in a locality near the place of occurrence and  was not  a fictitious  red  herring  as  the prosecution would  have us  believe. According  to  Ext.  22 Shetty made  a statement to Dr. Heena at 1. 15 a.m. on April 3, 1972. Dr. Heena, who appeared as P.W. 11, fully supported the contents of Ext. 22.      It is  manifest that  once the  statement of P.W. 11 is accepted  then  the  entire  prosecution  case  against  the appellant falls.  The High Court realising the importance of this document  and the  evidence of  P.W. 11  seems to  have explained it away on three main grounds. In the first place, the High  Court laid  great emphasis  on the fact that where Dr. Heena  had mentioned  the name  of Tiny,  there  was  no particular column  where the  name  of  assailant  could  be given. We  have examined the original document ourselves and we find  that the  entire part  of the  register  where  the statement has  been recorded  by P.W.  11  is  described  as Registrar’s note  which comprehends everything including the nature of injuries of the injured, any statement made by him or similar other matters. We are, therefore, unable to agree with the  High Court  that there  was no  particular  column under which  the name  of the  assailant could be mentioned. Moreover, there  is absolutely  no evidence on the record to show that P.W. 11 was in any way friendly with the appellant or had  any animus  against Shetty  which might impel her to make false entries in order to oblige the appellant. P.W. 11 was an  absolutely disinterested  and  independent  witness. After going  through her  evidence we find no reason why her evidence should not be accepted in toto.      The High  Court further observed that from the hospital register it  appears that the word ’Tony’ was first written, then crossed 282 and changed  into ’Tiny’.  This may  be  a  mistake  in  the pronunciation of  the name  and much  significance cannot be attached to this circumstance because P.W. 11 had initialled

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the change and it is not a case of forgery at all. Moreover, P.W. 11  was examined  as a  prosecution witness  and if the learned prosecutor  had thought that she (P.W. 11) had given false evidence to help the appellant, he could have declared her hostile and sought the permission of the court to cross- examine her  but no such course was adopted. Hence, the mere change of  the word  ’Tony’ to Tiny’ can be explained on the basis of  a bona  fide mistake.  There is  no erasure.  Both names are  decipherable. What may have happened was that the injured may  have pronounced Tiny in such a way that P.W. 11 thought it was Tony but on further clarification the injured must have said that it was Tiny.      P.W. 11 in her evidence has clearly stated that she had examined the  patient and  had  given  the  history  of  the assault with  knife by  a person  called Tiny  and that  the patient  was  fully  conscious.  There  is  nothing  in  her evidence to show that her statement could be untrue.      The High  Court then  sought to exclude the evidence of P.W. 11 as being inadmissible as the provisions of s. 145 of the Evidence  Act were  not complied  with. It was suggested that Shetty  had mentioned  the name of the appellant in his statement in  court but the statement of P. W. 11 shows that he had named Tiny as his assailant and, therefore, Dr. Heena (P.W. 11)  should have  been cross examined on this point to explain the  contradiction. With  great  respect,  the  High Court has  erred on  this point  and  has  misconstrued  the provisions of  s. 145  of the  Evidence  Act  which  may  be extracted thus:           "145. Cross-examination  as to previous statements      in writing.           A witness  may be  cross-examined as  to  previous      statements made  by him  in  writing  or  reduced  into      writing, and  relevant to  matters in question, without      such writing  being shown to him, or being proved, but,      if it is intended to contradict him by the writing, his      attention must,  before the  writing can  be proved, be      called to  those parts  of it  which are to be used for      the purpose of contradicting him." 283      It is  obvious from a perusal of s. 145 that it applies only to  cases where the same person makes two contradictory statements  either   in  different  proceedings  or  in  two different  stages  of  a  proceeding.  If  the  maker  of  a statement is sought to be contradicted, his attention should be drawn  to his  previous statement  under s. 145. In other words, where  the statement  made by  a person or witness is contradicted not  by his  own statement but by the statement of  another   prosecution  witness,   the  question  of  the application of  s. 145  does not  arise. To  illustrate,  we might give  an instance-suppose  A, a  prosecution  witness, makes a particular statement regarding the part played by an accused but  another witness  B makes  a statement  which is inconsistent with the statement made by A, in such a case s. 145 of  the Evidence Act is not at all attracted. Indeed, if the interpretation  placed by  the High  Court is  accepted, then it  will be  extremely difficult  for an  accused or  a party to  rely on  the  inter-se  contradiction  of  various witnesses and every time when the contradiction is made, the previous witness  would have  to be recalled for the purpose of contradiction.  This was  neither  the  purport  nor  the object of s. 145 of the Evidence Act.      For instance,  in the instant case, if P.W. 11 had been examined under  s. 164  of Code  of  Criminal  Procedure  or before a  committing court  and made  a particular statement which was  contradictory to a statement made in the Sessions

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Court, then  s. 145 would have applied if the accused wanted to rely  on the  contradiction. Such,  however, is  not  the position because  the  evidence  of  P.W.  11  is  not  only consistent throughout  but the earlier statement recorded by her can  be taken  to corroborate her. There was no question of contradicting the statement of P.W. 11 by her previous or subsequent statement.  On the  other hand,  Dr. Heena  was a prosecution witness  whose statement  that Shetty  had named Tiny on  the  earliest  occasion,  was  an  admission  by  a prosecution witness  which threw  considerable doubt  on the complicity of  the appellant  in the  occurrence. If  Shetty stated in  his evidence  that he  named A-1  (Mohanlal) then that would be a statement which was contradictory to that of P. W.  11  and  the  question  will  be  which  of  the  two statements should  be preferred.  If Dr.  Heena had made two inconsistent statements then only s. 145 would have applied. 284      In Bishwanath  Prasad  &  Ors.  v.  Dwarka  Prasad  and Ors.(1)  while   dwelling  upon  a  distinction  between  an admission and  a statement to which s. 145 would apply, this Court observed as follows:           "In the  former case  an admission  by a  party is      substantive evidence if it fulfills the requirements of      s. 21  of the  Evidence Act; in the latter case a prior      statement is  used to  discredit the credibility of the      witness and  does not  become substantive  evidence. In      the former  there is  no necessary  requirement of  the      statement containing  the admission having to be put to      the party  because it is evidence proprio vigor: in the      latter case the Court cannot be invited to disbelieve a      witness  on  the  strength  of  a  prior  contradictory      statement unless it has been put to him, as required by      s. 145 of the Evidence Act."      The statement  made  by  P.W.  11  was,  therefore,  an admission  of   a  prosecution   witness  and   if  it   was inconsistent with  the statement made by another prosecution witness  namely   Shetty,  there  was  no  question  of  the application of  s. 145  of the  Evidence Act  which did  not apply to such a case in terms.      Thus,  the   reason  given   by  the   High  Court  for distrusting  the   evidence   of   Dr.   Heena   is   wholly unsustainable. Moreover, the statement of the injured to Dr. Heena being  the first  statement in  point of  time must be preferred to  any subsequent  statement that Shetty may have made. In  fact, the admitted position is that Shetty did not know the appellant before the occurrence nor did he know his name which  was disclosed  to him  by one  Salim. Therefore, Salim who  is now  dead, being  the source of information of Shetty would  be of  doubtful admissibility  as  it  is  not covered by  s. 32  of the Evidence Act. And, once we believe the evidence  of P.W. 11, as we must, then the entire bottom out of the prosecution case is knocked out.      Apart from  this, there  is another  circumstance which renders the  testimony of  Shetty  (P.W.  5)  valueless.  He admits in para 10 of his evidence (page 35 of the paperbook) that he  had not  seen the  accused before  the date  of the incident, that  he did not know him at all, and that he came to know the name of the accused on the 285 date of the incident and that it was Salim who had given him the name  of the  accused while  he was  being taken  to the hospital. The  fact that  Salim disclosed  the name  of  the appellant to Shetty is falsified by the fact that he did not name the appellant to Dr. Heena when he reached the hospital but named  one Tiny.  It is  also relevant to note that Tiny

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Advani is  not an  unknown figure  but is a living person as would appear  from the  evidence of P.W. 3, Shaikh, where he says that  he knew  Tiny Advani who is also known to Ishrat, Salim and Pappu and they are on greeting terms.      Another important  circumstance  which  discredits  the testimony of P.W. 5 (Shetty) is that he admits that although he did  not know  the accused from before the occurrence yet the accused  was shown  to him  by the  police at the police station. The  relevant statement  of P.W. 5 may be extracted thus:           "I had seen the accused before coming to the Court      and after the incident, I had seen the accused ten days      after I  was discharged  from the hospital. I was shown      these accused by the Police at the Police Station."      Thus, as  Shetty did  not know the appellant before the occurrence and  no Test  Identification parade  was held  to test his  power of  identification and  he was also shown by the police  before he identified the appellant in court, his evidence becomes  absolutely valueless  on the  question  of identification. On  this  ground  alone,  the  appellant  is entitled to  be acquitted. It is rather surprising that this important circumstance  escaped the  attention of  the  High Court while  it laid  very great  stress in  criticising the evidence of  Dr.  Heena  when  her  evidence  was  true  and straight forward.      For these  reasons, therefore,  we are  unable to place any reliance  on the  evidence  of  Shetty  so  far  as  the identification of the appellant is concerned.      The other  witness who  knew  the  accused  is  P.W.  1 (Ishrat) who  is said  to have  lodged the  F.I.R. at  Mahim police station  at 12.50  a.m. on  3.4.1972. There  is clear intrinsic evidence  in the  case to  show that  the FIR  was ante-timed and could not have been lodged at 12.50 a.m. P.W. 7, Sawant had clearly admitted in his evidence at page 41 of the Paperbook  that the  station diary  entry which  has  to contain the  contents of the F.I.R. does mention that Ishrat had 286 visited the  Police station  and lodged  the complaint.  The witness further admits that the station diary entry does not also mention  anywhere that  he (P.W. 7) had left the police station for  K.E.M. hospital  accompanied by P.W. 1, Ishrat. He also admits that he knew the accused before the incident.      The witness further admits that although he had come to know the  name of the assailant at 12.50 a.m. yet he did not take any  step to  arrest or  cause the arrest of any one of the accused.  He has  not given  any  explanation  for  this unusual conduct.  It is  extremely doubtful  if P.W.  1  had actually named  the appellant,  inspector Sawant  would  not have arrested  him immediately  after the  F.I.R. was lodged or, at  any rate,  after he  returned from the Hospital. The evidence, however,  shows that  A-1 was  arrested on 5.4.72, that  is   to  say,   two  days  after  the  occurrence.  No explanation for  this unusual  phenomenon has  been given by the prosecution.      For these  reasons, therefore,  the statement of P.W. 1 that he  lodged the  F.I.R. at  12.50  a.m.  on  3.4.72  and disclosed the  name  of  the  appellant  becomes  absolutely doubtful. If  we reject this part of the evidence of P.W. 1, then his  evidence on  the question  of  complicity  of  the appellant in the crime also becomes extremely doubtful.      The only  other evidence  against the appellant is that of P.Ws. 3 and 4. So far as P.W. 3 is concerned his evidence also suffers from the same infirmity as that of Shetty. P.W. 3 (Shaikh)  admits at  page 22  of the Paperbook that he had

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not seen  the accused or any of the three accused before the date of  the incident and that he had seen all the three for the first  time at  the time  of the  incident.  He  further admits that  the names  of the  accused were given to him by the  police.  In  these  circumstances,  therefore,  if  the appellant was  not known  to him before the incident and was identified for  the first  time in the court, in the absence of a  test identification  parade the evidence of P.W. 3 was valueless and could not be relied upon as held by this court in V.C. Shukla v. State (Delhi Administration)(1) Where this Court made the following observations:           "Moreover, the  identification of  Tripathi by the      witness for  the first  time in the court without being      tested  by  a  prior  test  identification  parade  was      valueless." 287      Same view  was taken  in a  Federal Court  decision  in Sahdeo Gosain & Anr. v. The King Emperor.(1)      This, therefore, disposes of the evidence of P.W. 3. As regards the  evidence of P.W. 4, the High Court itself found at page  129 of  the paperbook  that the  learned Additional Sessions Judge  had disbelieved  P.W. 4, Shaikh alias Pappu. Therefore,  the   evidence  of  P.W.  4  also  goes  out  of consideration.      The position, therefore, is that there is absolutely no legal evidence  on the basis of which the appellant could be convicted.      For the  reasons given above, we are satisfied that the prosecution has  not been able to prove its case against the appellant beyond reasonable doubt. The appeal is accordingly allowed and the appellant is acquitted of the charges framed against him.  He will  now be  discharged from his bailbonds and need not surrender. P.B.R.                                       Appeal allowed. 288