Full Judgment Text
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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