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CASE NO.: Appeal (crl.)  697 of 2003

PETITIONER: Sashi Jena & Ors.        

RESPONDENT: Khadal Swain & Anr.

DATE OF JUDGMENT: 10/02/2004

BENCH: Y.K. SABHARWAL & B.N. AGRAWAL.

JUDGMENT: JUDGMENT

B.N.AGRAWAL,J.

       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.          The short facts are that on 4.5.1986 at 5.30 p.m. one Trinath 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.          Case of the prosecution, as unfolded in the complaint petition, in short, is  that appellant no. 1 \026 Sashi Jena, is the mother-in-law of Salu, appellant no. 2 \026  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.         Upon filing of the complaint, learned Magistrate examined the complainant  on solemn affirmation and postponed issuance of processes against the accused

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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.          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.         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 Additonal 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.          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:- "S.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, or if  his presence cannot be obtained without an amount of delay  or expense which, under the circumstances of the case, the  Court considers unreasonable : Provided \026 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]         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

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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 vs. V.S. Sharma & Ors., AIR 1996 Supreme Court 109, 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\005\005the 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]

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  vs. Prokash Chandra Bose @ Chabi Bose & Anr., AIR  1963 SC 1430, 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\005.". [ Emphasis Added ] 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.          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

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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 & Anr., vs. The  State of Uttar Pradesh,  AIR 1964 SC 900,   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:- "\005.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."         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 \026 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.  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.          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

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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.           The third circumstance that the prosecution witnesses were prevented by  appellant no. 1 \026 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.         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 \026 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 \026 the Investigating Officer \026 sent the postmortem report to  Professor, FMT Department, MKCG  Medical College, Berhampur, 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 antemortem 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.           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.