Full Judgment Text
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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
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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
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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
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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.
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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
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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
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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