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PETITIONER: VARKEY JOSEPH

       Vs.

RESPONDENT: STATE  OF  KERALA, REPRESENTED BYTHE  CIRCLE  INSPECTOR OF P

DATE OF JUDGMENT27/04/1993

BENCH: RAMASWAMY, K. BENCH: RAMASWAMY, K. SAHAI, R.M. (J)

CITATION:  1993 AIR 1892            1993 SCR  (3) 390  1993 SCC  Supl.  (3) 745 JT 1993 (3)   163  1993 SCALE  (2)709

ACT: % Constitution of India, 1950: Article  134-Appeal-Concurrent findings of trial  Court  and High court-Supreme Court’s interference-Whether trial unfair illegal-Prosecution  case  whether  proved-Appreciation   of evidence  by  Supreme Court-Leading  question--What-When  to ask-Court’s duty. Penal Code, 1860: Section  302-Murder-Conviction-Appreciation of  evidence  by Supreme   Court  in  appeal-Leading   question-   Prosedure- Procecution case whether proved. Evidence Act, 1872: Sections  142, 145, 154-Leading question-What-When  to  ask- Intention-Court’s duty.

HEADNOTE: The  prosecution  case was that the deceased,  a  discharged military  officer  managed  to have  complete  hold  of  the properties  of his father and excluded his six brothers  and four   sisters  from  enjoyment  of  the  properties.    The appellant,  the youngest brother of the  deceased,  resented his conduct.  Later on there was reconciliation between  the appellant  and  the  deceased.   As  the  appellant  nursing grivance against the deceased for his obstinance to  exclude him  of  right  of residence in their  family  property,  on 5.8.1988 he came to their family house and bolting the  door inside,  killed the deceased inflicting on the body  of  the deceased 17 incised injuries and one stab injury. The  appellant was charged under section 302,  I.PC.  Before the   trial   Court,  the  prosecution,   relying   on   the circumstances,  namely,  (1)  motive  of  the  accused,  (2) preparation,  (3) presence of accused in  the  neighbourhood and  in the locality immediately before the occurrence,  (4) presence  of  the  accused  in the  house  on  the  date  of occurrence,   (5)   his  presence  immediately   after   the occurrence,  (6) recoveries pursuant to accused’s  statement under section 27, and (7) injury found on the ringer of  the accused, claimed to have 391 established  that  the  appllant committed  the  offence  of

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murder. The trial Court found the appellant guilty and convicted him under section 302, IPC and sentenced him to undergo rigorous imprisonment for life for causing the death of his  brother. High  Court confirmed the conviction on appeal.  Hence  this appeal by special leave. Allowing the appeal, this Court, HELD:1.1.  Normally when the Trial Court and the High  Court concurrently found that the accused has committed the crime, this  Court  would refrain to appreciate the  evidence.   On going  through the judgments of the Sessions Court  and  the High  Court  this  Court  entertained  doubt  regarding  the conclusiveness  of the appellants’ complicence.   Therefore, this  Court directed the appellant to produce the  evidence. Accordingly  the typed evidence has been placed  on  record. From  the evidence this Court is satisfied that  the  Courts below  did not subject the evidence to critical analysis  on the  touchstone  of  human  conduct  and  probabilities  and overlooked material admissions and obvious unfair trial  and incurable  irregularities leading to grave prejudice to  the appellant and miscarriage of justice. (395-A-B) 1.2.From  the evidence it is clear that prosecution  brought on   record  the  circumstantial  evidence   from   obliging witnesses  to the police.  Appellant was said to  have  been seen  before  or after the occurrence by  several  tea  shop owners  and  the  labourers  in  the  tea  stall  etc.    To corroborate the evidence of tea stall owners, labourers were examined that they had seen the appellant with blood stained clothes  and same were recovered pursuant to  the  statement under  s. 27 of Evidence Act.  It is preposterous  to  place absolute  reliance on such suspect evidence.  It is  curious that  the appellant claimed to have gone to each  tea  stall for  tea  just to enable them to note  his  movements.   The normal human conduct would be to avoid any-body noticing him either before or after committing the offence.  It is highly unbelievable  that  he  had used two  types  of-weapons  one stabbing and another cutting weapon. (398-E-F) 1.3.The  criminal trial was unfair to the appellant and  the procedure  adopted  in the trial is  obviously  illegal  and unconstitutional.   The Sessions Court in fairness  recorded the evidence in the form of questions put by the  prosecutor and  defence counsel and answers given by each witness.   As seen  the material part of the prosecution case  to  connect the  appellant  with  the  crime  is  from  the  aforestated witnesses.  The Sessions Court permitted even 392 without objection by the defence to put leading questions in the  chief  examination itself suggesting  all  the  answers which  the prosecutor intended to get from the witnesses  to connect the appellant with the crime. (398-G-H) 1.4. Leading  question  to  be one which  indicates  to  the witnesses  the  real or supposed fact which  the  prosecutor (plaintiff)  expects  and desires to have confirmed  by  the answer.  Leading question may be used to prepare him to give the answers to the questions about to be put to him for  the purpose  of  identification  or  to lead  him  to  the  main evidence  or fact in dispute.  The attention of the  witness cannot  be directed in chief examination to the  subject  of the enquiry/trial.  The court may permit leading question to draw the attention of the witness which cannot otherwise  be called to the matter under enquiry, trial or  investigation. The discretion of the court must only be controlled  towards that  end but a question which suggest to the  witness,  the answer the prosecutor expects must not be allowed unless the witness,  with  the  permission of the  court,  is  declared

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hostile and cross-examination is directed thereafter in that behalf. therefore, as soon as the witness has been conducted to the material portion of his examination, it is  generally the  duty of the prosecutor to ask the witness to state  the facts or to give his own account of the matter making him to speak  as to what he had seen.  The prosecutor will  not  be allowed  to  frame his questions in such a manner  that  the witness  by  answering merely "yes" or "no"  will  give  the evidence which the prosecutor wishes to elicit.  The witness must account for what he himself had seen. (399F-H, 400-A) 1.5.Sections 145 and 154 of the Evidence Actare intended  to provide  for cases to contradict the previous  statement  of the  witnesses called by the prosecution.  Sections 143  and 154 provide the right to cross-examination of the  witnesses by the adverse party even by leading questions to contradict answers given by the witnesses or to test the veracity or to drag  the truth of the statement made by him.   Therein  the adverse  party  is  entitled to put  leading  questions  but section  142 does not give such power to the  prosecutor  to put  leading questions on the material part of the  evidence which the witnesses intends to speak against the accused and the  prosecutor shall not be allowed to frame  questions  in such a manner which the witness by answering merely "yes" or "no",  but  he shall be directed to give evidence  which  he witnessed.   The  question shall not be put  to  enable  the witness  to  give evidence which the  prosecutor  wishes  to elicit  from the witness nor the prosecutor shall  put  into witness’s  mouth the words which he hoped that  the  witness will  utter nor in any other way suggest to him  the  answer which  it  is  desired that the  witness  would  give.   The counsel must leave the witness to tell unvarnished tale 393 of his own account (400-B-C) 1-6.   Leading  questions  were  put  to  the  witnesses  to elicit on material part of the prosecution case in the Chief examination  itself  without  treating any  of  the  witness hostile.   It  shows the fact that the  prosecutor  led  the witnesses what he intended that they should say the material part of the prosecution case to prove against the  appellant which  is  illegal  and obviously unfair  to  the  appellant offending his right to fair trial enshrined under Art.21  of the Constitution.  It is not a curable irregularity. (400-D) 1.7. Suspicion is not the substitute for proof.  There is  a long  distance between ’may he true’ and ’must be true’  and the prosecution has to travel all the way to prove its  case beyond all reasonable doubt. (400-E) 1.8. The  prosecution  not  only not  proved  its  case  but palpably  produced  false evidence and the  prosecution  has miserably faded to prove its case against the appellant  let alone  beyond  all reasonable doubt that  appellant  and  he alone committed the offence. (400-F)

JUDGMENT: CRIMINAL  APPELLATE JURISDICTION Criminal Appeal No. 326  of 1993. From  the  Judgment and Order dated 6.2.1992 of  the  Kerala High Court in Crl.  A. No. 349 of 1989. M.M. Kashyap for the Appellant. M.T. George for the Respondent. The Judgment of the Court was delivered by K. RAMASWAMY.  J.: Special Leave granted. The appellant was charged, found guilty and convicted  under section  302  I.P.C. and was sentenced to  undergo  rigorous

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imprisonment  for life for causing the death of his  brother Mathew on August 5, 1988 at about 8 a.m. in their  Ramanattu house  in Mazhuvannur in kerala State.  It was confirmed  on appeal by High Court of Kerala in Criminal Appeal No, 349 of 1989  dated February 6, 1992.  Thus this appeal  by  special leave. 394 The  prosecution case in nutshell is that  Ramanattu  Varkey had seven sons and four daughters.  During his life time  he executed  repeated settlement deeds settling  his  extensive properties   of  60  acres,double  storeyed   building   and factories  which  lead to acrimony among his  children.   In 1976  the deceased Mathew was charged for patricide but  was acquitted.  He was a discharged military officer and managed to  have complete hold of the properties and excluded  other brothers and sisters from enjoyment of the peorperties.  The appellant is the youngest and he resented the conduct of the deceased.   The  prosecution case itself was that  later  on there  was  reconciliation  between the  appellant  and  the deceased as spoken to by the widow of the deceased (PW.  10) and one brother (PW. 12).  According to the prosecution  the accused  nursed  grievance  against  the  deceased  for  his obstinance  to  exclude him of right to residence  in  their family  Ramanattu  house.   Consequently he  was  living  at Emakulam  where from his wife hails.  The  prosecution  case was  that on the fateful day the appellant came  and  killed the  deceased in the Ramanattu house, bolting the door  from inside. From  the  evidence it is apparent that Mathew  met  with  a gruesome  murder  with  one  stab  injury  and  17   incised injuries, injury No. 14 was a stab injury and was  inflicted on  the  chest  said  to be with  MO-IV  and  other  incised injuries  with MO-III chopper on his head,  face,  shoulder, hands  and  knees  etc.   There is  little  doubt  from  the prosecution evidence that the deceased met with homicide and the offender committed gruesome murder with an intention  to kill.  But the main question is whether the appellant  alone perpetrated the crime.  There is no direct evidence in proof of  the  prosecution case.  It  relies  upon  circumstantial evidence  to  connect  the  appellant  that  he  alone   had committed the offence.  The circumstances relied on are: (1) motive of the accused; (2) preparation; (3) His presence  in the neighbourhood and in the locality immediately before the occurrence;  (4) presence of the accused in Ramanattu  House on  the  date of occurrence; (5)  his  presence  immediately after  the  occurrence;  (6)  Recoveries  pursuant  to   his statement  under section 27; (7) Injury found on the  finger of  the accused.  From these circumstances  the  prosecution claimed to have established that the appellant had committed the offence of murder. The  evidence of PW. 10, widow PW.  11, one sister  PWS.  12 and 16 other brothers and the documentary evidence Ext.   P6 etc. would show that disputes among the brothers and sisters regarding  the  properties  did exist,  in  particular,  the evidence of PWs. 10 and 12 establishes that Mathew  excluded his  brothers  and sisters, took possession  of  the  entire properties  and  was  enjoying.  A  perliminary  decree  for partition  at  the behest of PW. 12 was  granted  but  final decree  proceedings  were pending.  The  deceased  kept  the Ramanattu  House locked.  In this case the evidence of  PWs, 1, 2, 4 to 7, 14 and 21 is material to connect the 395 appellant with the crime.  Normally when the Trial Court and the  High  Court  concurrently found that  the  accused  had committed the crime, this Court would refrain to  appreciate

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the  evidence.   On  going  through  the  Judgments  of  the Sessions  Court  and  the High Court  we  entertained  doubt regarding the conclusiveness of the appellants’ complacence. Therefore, we directed the appellant’ counsel to produce the evidence.  Accordingly the typed evidence has been placed on record.  From the evidence we are satisfied that the  Courts below  did not subject the evidence to critical analysis  on the  touchstone  of  human  conduct  and  probabilities  and overlooked material admissions and obvious unfair trial  and incurable  irregularities leading to grave prejudice to  the appellant and miscarriage of justice. PW.1  was  examined  to prove  the  motive,  the  subsequent presence   of  the  appellant  near  about  the   place   of occurrence.  PW. 1 admittedly is agnate of the deceased  and the appellant.  He was also a co-accused with  the deceased, and  had  worked  for  him Ho  also  admitted  that  he  was enimically disposed towards the appellant.  During the  life time of their father he also worked in their fields.  It was suggested  that the deceased stabbed Issac and  John,  other brothers but he denied the same while other witness admitted it.  He was examined to prove that he was said to be present in  the Coffee House of PW. 4 and he saw the appellant  with blood  stained clothes at about 7 or 7.30 a.m. and also  saw him  later  while he was sitting in the  coffee  hotel.   He claimed  that he was sitting there from 7 O’ Clock  onwards. He  found two or three drops of blood on appellant’s  Dhoti. It  is  incredible  to  believe  his  evidence  for  diverse reasons.   He  was a co-accused with the  deceased.  He  was enimically  disposed towards the appellant and his  presence was  not spoken by PW. 4, the Coffee House owner and  it  is unimaginable  that he had to remain in coffee hotel  from  7 a.m.  to  8 a.m. or 8.30 a.m. just to sip coffee.   He  also admitted  that Ranjit, another brother had duplicate key  of the  house.   He admitted in his cross-examination  that  no body  was  present  in the tea stall on that  day  when  the accused came there.  He also admitted that none had seen the appellant  at the junction.  He admits that between 7.30  to 10 a.m. the business- at the junction was very busy.  It  is not  has case that he accosted the appellant the tea  stall. He disclaimed knowledge that Mathew was convicted in a  case of attempt to murder of Issac and John, his other  brothers. He  also  admits that Ranjit used to complain  to  him  that Mathew was not paying his share of income from the property. From  this evidence it is clear that Ranjit had a  duplicate key  of  the  house and other brothers  equally  bad  motive against  the  deceased.  Mathew attempted to  kill  his  two other brothers and was prosecuted for the said offence.  The appellant  and the deceased had reconciled and there  is  no evidence  of  subsequent hostility.  PW.  1  had  motive  to perjure the evidence and he is a chance witness at best.  So it  is  very  difficult to place absolute  reliance  on  his evidence  that  he saw the appellant before  and  after  the occurrence  in  the hotel PW.2 was a labourer.   He  claimed that at about 396 8  O’Clock  he  went  to  Ramanattu  house  alongwith  other labourers  to work in the fields of the  deceased.   Accused was  seen  at the house with a white Dhoti  and  he  noticed blood drops on it.  He claimed that when the appellant  came near him, he made an extra judicial confession that he had a fight  with  the deceased and he went  away  without  saying anying.   He  was an accused in a complaint  laid  by  Issac against him.  He admitted that Mathew arranged a lawyer  for him  and  the  deceased  looked after  his  case.   He  also admitted that in the absence of Mathew, Ranjit was  entering

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into the house with a duplicate key.  He also admitted  that the deceased attempted to kill Issac and John but he claimed that it was hearsay.  He also admitted that there were  many others  in  the neighbourhood field of Ramanattu  house  and that  nobody  had  heard the  appellant’s  making  an  extra judicial  confession  to him that he had a  fight  with  the deceased.   He also admitted that he did not tell  any  body that  he saw blood stained marks.  He also admitted that  he did not tell to the police when he was first questioned  and that he did not tell the colour or the border of the  towel. From this evidence it is clear that he is an accused and the deceased  arranged  dafence counsel to him in a  case  filed against him by Issac and that he is a chance witness.  It is incredible   to   believe  that  the   appellant   made   an extrajudicial   confession.   There  is   no   corroborative evidence  that  he worked on that day in the  field  of  the deceased. -PW.  4 is the tea shop owner, one km. away  from  Ramanattu house  towards  south.  He was examined to  prove  that  the appellant  came to him at about 6. p.m. in the previous  day of occurrence.  He kept a small bag with him.  The next  day around  8.30  a.m.  he came to his shop and  asked  for  the return  of his bag.  He changed his dress and thereafter  he had  a tea and went away.  He admitted even to  the  leading questions put by the prosecutor that he did not see anything on the Dhoti.  He did not give any special reason as to  why the appellant had to come to his shop alone on the  previous day and kept the bag with him.  He did not claim to have any close  friendship with the appellant.  He admitted that  the bag  was  kept in the open place.  He did not speak  to  the presence of PW  1 in his stall. when the appellant had  come immediately  after the occurrence and asked for the  bag  to change his dress one would expect that PW. 4 would have seen the  blood stained cloths now said to be of  the  appellant. He  admitted to the leading questions that he did  not  find any  blood  stain  on the appellant’s white  Dhoti.   He  is obviously  accommodating witness to the police.   Therefore, his  evidence  is  of  little  assistance  to  connect   the appellant.  We have the evidence of PW. 5 that at about 8 or 8.30  a.m.  he went to the shop of PW.4 for  tea  and  bread toast.   He claimed that he reached there at 7.30  a.m.  and remained in the tea shop till 8.30 a.m. His presence too was not  spoken to by PW. 4. He admits in the  cross-examination that his house is 1/2 k.m. to PW. 4’s tea shop.  In  between there  is another tea shop belonging to Ithupery and to  the north of his house there is yet another tea shop and he is a labourer.  He 397 claims  that  due  to rush he remained there  but  none  had spoken  about the rush in the tea stall let alone PW  4.  He also admitted that Ranjit was visiting Ramanattu house.   It was also admitted that Ranjit Was assisting the  prosecution and  he  was instructing him to give  evidence.   From  this evidence  it is clear that he was a brought up  witness  and has  no  regard  for truth.  When there are  two  tea  shops nearby his house it is incredible to believe that he went to the shop of PW. 4 at 1 km only to see that the appellant had come  between 8 and 8.30 a.m. with a while Dhoti  and  blood stained  drop.   He  also  spoke  that  the  appellant   had thereafter  changed  the dress and he wore pant  and  shirt. His  wearing  pant and shirt was not even spoken by  PW.  4. Therefore,  he is a false witness brought up to  corroborate the  evidence of PW’ s. 1 & 4. Then we have the evidence  of PW  6. He is another tea stall owner at a distance of  1-1/4 k.m.  from the place of occurrence.  He claims that  he  had

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seen  the  appellant  around 5-5.30 a.m. in  his  shop.   He admitted that there are other tea shops nearby and there was no  special reasons for the appellant to come to  his  shop. He  admitted that he cannot say how many other persons  came to his tea shop on that day.  He also admitted that no  body from Ramanattu house took tea in his shop, either before  or thereafter  none  from the village had taken tea  from  that shop.  He also admitted that near Ramanattu house there  are other tea shops.  Police had examined him after two or three days after the death.  It is, therefore clear that he is  an obliging witness to the police. PW. 7 claims to be an auto-rickshaw driver.  He was examined to prove that the deceased alighted at Ramanattu house  from a  bus by name Raja and he traveled in the bus and  alighted at  junction to take the auto-rickshaw which he was  driving and  thereafter  the  appellant had traveled  in  his  auto- rickshaw  at  8.45  a.m. and paid him Rs. 10  as  fare.   He admitted  that he is a labourer and had no licence to  drive auto.   He claimed that he had driven auto for  three  years and said that he had taken auto on hire from several  people but  he did not remember even the number of any one  of  the auto which he claimed to have-driven nor the owner’s name of even  one  of  the vehicles.  He did  not  claim  any  prior acquaintance with either the deceased or the appellant.   He also  did not know even the fare he was collecting per  k.m. He admitted that he did not know the changes in the rates of the  auto-rickshaw.   It was suggested that  he  was  giving false   evidence  at  the  instance  of  the  police.    The suggestion  appears to be well justified.  This witness  was examined  to  connect that the deceased  came  to  Ramanattu house  on that day and the appellant left the  scene  around 8.45  a.m. This is nothing but false evidence as he  had  no prior acquaintance with either the appellant or the deceased and it is anybody’s guess as to how it was possible for  him to remember them on that day.  There is no evidence that  he also  traveled by that bus and why?  Thus this  evidence  is not only false but incredible-to believe.  PW. 14 is another owner of tea shop at Valakam.  He claimed that the appellant had placed a coffee coloured bag, with him 398 promising  that he would collect it on the next day.   About 10  or 20 days thereafter he came to the shop and  collected it.  He admitted that the police came and placed the bag  in his  shop before making panchnama and thereafter  they  came with the accused and Panch witness; prepared the Mahazar and recovered  blood  stained clothes.  This  was  elicited  the chief examination itself to the leading question put to him. He was neither treated hostile nor was cross-examined by the prosecution.  He admitted that the appellant did not pay any money  for  the  tea he had taken.  The  bag  said  to  have contained white Dhoti, coloured towel with blood stain.   He did not say that the accused kept those clothes in the  bag. He admitted that he had seen the clothes in the bag when the Mahazar  was  prepared and before that he did not  open  the bag.  He also admitted that he did not tell the police about the identity and contents of the bag.  PW. 21 is the  doctor who  had  examined  the  appellant  to  establish  that  the appellant was found healed wound in the medial left  finger. The  Mahazar sent to him contained a statement  that  injury was  sustained  while causing the  injuries  to  appellant’s brother  on  August  5, 1988 at 8  a.m.  It  is,  therefore, obvious that the police prepared the Mahazar and sent him to be  examined by PW. 2 1. He admitted that he cannot say  the age of the wound. From the above evidence it is clear that prosecution brought

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on   record  the  circumstantial  evidence   from   obliging witnesses  to the police.  Appellant was said to  have  seen before  or after the occurrence by several tea  shop  owners and the labourers in the tea stall etc.  To corroborate  the evidence  of tea stall owners, labourers were examined  that they  had seen the appellant with blood stained clothes  and same were recovered pursuant to the statement under s. 27 of Evidence Act.  It is preposterous to place absolute reliance on such suspect evidence.  It is curious that the  appellant claimed  to  have  gone to each tea stall for  tea  just  to enable them to note his movements.  The normal human conduct would  be  to avoid any body noticing him either  before  or after  committing  the offence.  It is  highly  unbelievable that  he  had  used two types of weapons  one  stabbing  and another cutting weapon. The most startling aspect we came across from the record  is that the criminal trial was unfair to the appellant and  the procedure  adopted  in the trial is  obviously  illegal  and unconstitutional.   The Sessions Court in fairness  recorded the evidence in the form of questions put by the  prosecutor and  defence counsel and answers given by each witness.   As seen  the material part of the prosecution case  to  connect the  appellant  with  the  crime  is  from  the  aforestated witnesses.   The  Sessions  Court  permitted  even   without objection  by  the defence to put leading questions  in  the chief  examination itself suggesting all the  answers  which the prosecutor intended to get from the witnesses to connect the  appellant  with  the  crime.   For  instance,  see  the evidence of PW. 1. "Then I saw Jose (appellant) coming  from the north and 399 going towards south".  Did you notice his dress then?   Yes. He  had worn a white dhoti Did you notice his  dhoti?   Yes. Ihad  seen  two  or  three drops  of  blood  on  his  dhoti. Suddenly I had a doubt".  Similarly PW. 4 also at that  time "Did any one from Ramanattu house came for tea?  Yes.   Jose came.   When did Jose came to have tea?  I do  not  remember Did Jose came on the previous day.  Yes came about 6 p.m. in the  evening.   Did he say anything?  He brought a  bag  and said  let it be here I shall take this bag after  some  time What was the dress of the accused when he came to the  shop? He  was  wearing white dhoti and tied a cloth on  his  hand. Have  you  noticed anything particular on the  dhoti?   No". Similar  leading questions were put to other witnesses  also to  elicit on material part of the prosecution case  in  the Chief examination itself without treating any of the witness hostile.   Section  141  of the Indian  Evidence  Act,  1872 defined  leading question to mean "any  question  suggesting the answer which the person putting it wishes or expects  to receive, is called a leading question.  Section 142  Leading questions must not, if objected to by the adverse party,  be asked  in  an  examination-in-Chief  or,in  a  reexamination except  with the permission of the Court.  The  Court  shall permit   leading   questions  as  to   matters   which   are introductory  or undisputed, or which have, in its  opinion, been  already  sufficiently proved.  Section  143  envisages that  Leading questions may be asked  in  cross-examination. Section  145  gives  power to put to the  witnesses  in  the cross-examination  as to previous statement 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 which are to be used for the purpose of contradicting him.

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Leading question to be one which indicates to the  witnesses the  real or supposed fact which the prosecutor  (plaintiff) expects  and  desires  to  have  confirmed  by  the  answer. Leading  question  may be used to prepare him  to  give  the answer  to  the  questions about to be put to  him  for  the purpose  of  identification  or  to lead  him  to  the  main evidence  or fact in dispute.  The attention of the  witness cannot  be directed in Chief examination to the  subject  of the enquiry/trial.  The Court may permit leading question to draw the attention of the witness which cannot otherwise  be called to the matter under enquiry, trial or  investigation. The discretion of the court must only be controlled  towards that  end but a question which suggest to the  witness,  the answer the prosecutor expects must not be allowed unless the witness,  with  the  permission of the  Court,  is  declared hostile and cross-examination is directed thereafter in that behalf.   Therefore,  as  soon  as  the  witness  has   been conducted to the material portion of his examination, it  is generally  the duty of the prosecutor to ask the witness  to state  the facts or to give, his own account of  the  matter making him to speak as to what he had seen.  The  prosecutor will not be allowed to frame his questions in such a  manner that the 400 witness  by  answering merely "yes" or "no"  will  give  the evidence which the prosecutor wishes to elicit.  The witness must account for what he himself had seen.  Sections 145 and 154 of the Evidence Act is intended to provide for cases  to contradict the previous statement of the witnesses called by the prosecution.  Sections 143 and 154 provides the right to cross-examination of the witnesses by the adverse party even by  leading  questions to contradict answers  given  by  the witnesses  or to test the veracity or to drag the  truth  of the  statement  made by him.  Therein the adverse  party  is entitled  to put leading questions but Section 142 does  not give  such power to the prosecutor to put leading  questions on  the  material  part of the evidence  which  the  witness intends  to  speak against the accused  and  the  prosecutor shall not be allowed to frame questions in such a manner  to which  the  witness by answer merely "yes" or  "no"  but  he shall be directed to give evidence which he witnessed.   The question  shall  not be put to enable the  witness  to  give evidence  which  the prosecutor wishes to  elicit  from  the witness  nor the prosecutor shall put into  witness’s  mouth the words which he hoped that the witness will utter nor  in any other way suggest to him the answer which it is  desired that  the  witness would give.  The counsel must  leave  the witness to tell unvarnished tale of his own account.  Sample leading  questions extracted hereinbefore clearly  show  the fact that the prosecutor led the witnesses what he  intended that  they should say the material part of  the  prosecution case  to  prove  against  the  appellant  which  is  illegal and,obviously unfair to the appellant offending his right to fair trial enshrined under Art. 21 of the Constitution.   It is not a curable irregularity. Suspicion is not the substitute for proof.  There is a  long distance  between ,may be true’ and ’must be true’  and  the prosecution  has  to travel all the way to  prove  its  case beyond all reasonable doubt.  We have already seen that  the prosecution  not only has not proved its case  but  palpably produced  false evidence and the prosecution  has  miserably failed  to  prove its case against the appellant  let  alone beyond all reasonable doubt that the appellant and he  alone committed  the offence.  We had already allowed  the  appeal and acquitted him by our order dated April 12, 1993 and  set

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the appellant at liberty which we have little doubt that  it was  carried  out by date.  The appeal is  allowed  and  the appellant stands acquitted of the offence under section  302 I.P.C. V.P.R. Appeal allowed. 401