Criminal

Police Station Diary is fake-Whether it has any bearing on other evidence in the case?

State of Karnataka Versus K. Yarappa Reddy-As the general rule of evidence is one of prohibiting evidence on collateral issues and since it is only by way of exception that such evidence can be permitted. The Court must guard that the defence evidence falls strictly within the exception. The basic requirement for adducing such contradictory evidence is that the witness, whose impartiality is sought to be contradicted with the help of such evidence, should have been asked about it and he should have denied it. Without adopting such a preliminary recourse it would be meaningless, if not unfair, to bring in a new witness to speak something fresh about a witness already examined. Therefore where in a murder trial, it was alleged that husband of eye-witness and accused’s father had loan transaction on which they later fell out, however the eye-witness was not asked about alleged loan transaction, her evidence cannot be contradicted by citing other witness to say about any such transaction.

AIR 2000 SC 185 : (1999) 3 Suppl. SCR 359 : (1999) 8 SCC 715 : JT 1999 (8) SC 10 : (1999) 6 SCALE 330 : (2000) CriLJ SC 400

SUPREME COURT OF INDIA

State of Karnataka Versus K. Yarappa Reddy

(Before: K. T. Thomas And Ajay Prakash Misra, JJ.)

Criminal Appeal No. 263 of 1994,

Decided on: 05-10-1999.

Evidence Act, 1872—Sections 3, 153—Eye-witness—Loan transaction between husband of witness and father of accused—Witness not asked as to such loan transaction—Evidence of witness cannot be contradicted by citing other witness to say about any such transaction.

Investigation—Examination of investigator in Court—Whether investigator can be allowed to answer by referring to records of investigation—Yes.

Criminal Procedure Code, 1973—Section 156—Investigation—Illegal or suspicious—Effect on other evidence—Other evidence should be scrutinised independently of impact of such investigation.

Counsel for the Parties:

M. Veerappa, Advocate, for Appellant

S. B. Sanyal, Sr. Advocate, Naresh Kaushik and Mrs. Lalita Kaushik, Advocate, with him, for Respondent.

Judgement

Thomas, J—A love affair got swerved to the wrong side and sank into tragedy. The female partner in the affair, as it often happens, became the victim of the tragedy. Rekha, a working woman and Yarappa Reddy, the respondent – a milk trader – were the participants in the ill-fated romantic adventure. Rekha was badly mauled to death on the morning of the Martyrs Day (30th January) of 1982 for which the respondent-Yarappa Reddy was indicted by the police. Sessions Court convicted him, but the High Court acquitted him. Thus the present appeal at the instance of the State by special leave.

2- Rekha was put up in a college hostel at Bangalore while she was doing her B.A. As she failed in the final examinations her father put her up in the house of a relative for prosecuting her studies. That relative’s daughter Anitha (P.W. 8) became her friend. Respondent-Yarappa Reddy was living a few yards away from the house of P.W. 8. Respondent developed a fascination for Rekha which in due course snowballed into a love affair. They exchanged love letters between each other. In the meantime Rekha got a job as Receptionist in a company called “Azad Coach Builders.” She was later promoted as Cashier.

3. The love affair initially was on cloud nine, but as days passed it did not sail smooth. One of the love letters happened to reach Rekha’s father. He took his daughter to task and wangled a promise from her that she would not do coquetry towards respondent and that she would not marry any one against the wishes of her parents.

4. But respondent was not prepared to softpedal the affair. He continued to frequent Rekha to her chagrin and persisted with his plan to marry her. She told him of the hubbubs which took place after one of the love letters misreached and she expressed her disinclination to marry him. This recusancy was beyond his limit of forbearance. He determined either to repossess her or to finish her off.

5. Now, comes the disputed part of the story. On the day of occurrence Rekha, as usual, went to the Coach Factory by 10 a.m. Respondent went there on a motorcycle and talked to Rekha and persuaded her to go along with him to another place for continued parleys over their affair. The unsuspected lady went with him. He decoyed her to the house of P.W. 11 (Sharadamma) who was a family friend. Rekha was introduced to her as his would be bride. P.W. 11 Sharadamma presumably welcomed the choice and showed her hospitality by supplying coffee to her guests. She withdrew to her kitchen for affording the young couple undisturbed forum to carry on their chat, without knowing that a cauldron of rancour was fuming in his mind, and a blood craving chopper was twitching in his bag.

6. How the conversation turned violent is not known to anyone else except the two. At one point of time respondent whipped out a chopper from his bag and inflicted murderous blows on Rekha. She yelled out “Amma.” P.W. 11 Sharadamma overhearing the cry rushed to the drawing room and saw Rekha lying down bleeding. Respondent suddenly turned towards P.W. 11 and fell on her feet with the blood-oozing chopper and prayed for pardon as he killed his fiancee. The stunned housewife remained transfixed and dump-founded. Accused then left the house with the chopper and rode away on his motorcycle.

7. Accused went to the local police station and surrendered the blood-stained chopper to P.W. 15 Thimmaiah, the Sub-Inspector of Police who was then the Station House Officer. He gave a statement which was used as first information statement. P.W. 15 took the respondent back to the house of P.W. 11 as he offered to show the house where the dead body was lying. P.W. 16 Circle Inspector later arrived and held the inquest.

8. Post-mortem examination was conducted by Dr. H. A. Somaiah (P.W. 4) on the body of Rekha. He noted 9 ante-mortem injuries of which 4 were stab wounds and the remaining were scratches. The injury which became fatal has the following description:

“An incised stab wound over the middle of the chest at the level of nipples, vertical spindle shaped, measuring 5 cms. x 8.5 cms. with tailing downwards for 3 cms.” On dissection of the injury the doctor noted that it had gone down, cut the cartilages of the 3rd and 4th ribs of the left side and passed through the pericardium and further went down and perforated the right ventricle. The wound on the right ventricle measured 2 cms. x 0.5 cms. The lower end of the wound was sharp and upper end blunt.

9. P.W. 11 Sharadamma is the star witness of the prosecution. She stood by the prosecution version and narrated further that when she rushed to the drawing room on hearing the cry she saw the accused standing in the drawing room with a blood-stained chopper. Prosecution examined, among others, P.W. 11’s aged mother Nanjamma as P.W. 12. But as she was short of hearing her evidence is not of much probative utility.

10. Respondent adopted a defence of total denial of his involvement in the murder of Rekha. However, he suggested, as his defence, that Rekha would have been killed by one of the sons of P.W. 11 who would have tried to ravish her. According to the respondent, he was dragged into this case by P.W. 15 Sub-Inspector only for extricating the real murderer out.

11. In support of his version he examined three witnesses. D.W. 1 Dr. Gopalkrishnan was a surgeon having special knowledge in forensic medicine. He gave his opinion that the injuries noted on the dead body of the deceased would not have been inflicted with M.O. 16 chopper as its tip is not sharp but curved and blunt. D.W. 2 Gopi merely said that he saw Rekha on one or two occasions talking over the telephone from a nearby shop. D.W. 3 Venkatesh is the brother-in-law of P.W. 11. We will refer to his evidence later.

12. The trial Court relied on the evidence of P.W. 11 and found the other circumstances narrated by the prosecution as proved in this case and hence concluded that Rekha was put to death by the respondent and accordingly convicted him under S. 302 of the I.P.C. and sentenced him to imprisonment for life.

13. On appeal a Division Bench of the High Court disbelieved the testimony of P.W. 11 and launched a scathing criticism against the investigation. Learned Judges accepted the defence contention that the injuries on the deceased could not have been caused by M.O. 16 chopper.

14. Sri M. Veerappa, learned counsel for the State contended that the reasoning of the High Court for disbelieving the testimony of P.W. 11 is too fragile. According to the counsel, every word of what P.W. 11 said in the Court was nothing but true. He also contended that the defence version that police favoured a rapist murderer of Rekha (son of P.W. 11) and for rescuing him this innocent respondent was substituted, as absurd and most far-fetched.

15. The Division Bench of the High Court made a fatuous exercise for concluding that M.O. 16 chopper (as it is in the present shape) could not have caused the incised injuries described in the post-mortem certificate. The curve now found on the tip of the chopper (which made that portion look blunt) seems to have persuaded the High Court in harping on such an exercise. True, the defence counsel in the trial Court had taken much strain to establish that MO 16 chopper, as it now remains, could not cause the injuries indicated by the doctor who conducted the autopsy. It was quite possible that the chopper could have become curved either when its sharp tip made a forcible entry into the sternum (injury No. 1 in the post-mortem report involves perforation of the sternum) or when it hit on the ribs. The tip of the chopper could as well have been curved if the weapon had struck the floor when the assailant fell on the feet of P.W. 11 with the weapon in his hands. We are, therefore, not interested, in this case, to probe into the possibilities of a blunt tipped weapon causing incised injuries.

16. If the said chopper remained in its original condition when the strikes were inflicted by the assailants there is no room for any doubt that all the injuries sustained by the deceased would have been caused by it. Of course, another endeavour was made to show that a single edged weapon could not result in spindle shaped incised injury. P.W. 4 Dr. Somaiah, a senior Professor in Forensic Medicine has repudiated the said suggestion. It is not a correct proposition that such a shape of injury is not possible if the weapon used is single edged.

17. Regarding the incriminating conduct of the accused that he surrendered before the police station at 11.20 a.m., the Division Bench of the High Court made a frontal attack on the evidence of P.W. 15 (Sub-Inspector Thimaiah). Learned Judges scrutinized the Station House Diary and noted that two sheets therefrom had been torn off and in that place another sheet has been pasted. The newly pasted sheet is marked as Ex. D7. The following observation made by the High Court on that aspect cannot be ignored:

“Therefore, the so-called entry in Ex. D.7 on the basis of which the Police Sub-Inspector claims to have registered a case is, in our opinion, highly suspicious and appears to be manufactured and cooked up one. Therefore, the version of the Police Sub-Inspector that on the basis of the information given by the accused he registered a case looks rather unnatural and unacceptable.”

18. We too have scrutinised the aforesaid Station House Diary and felt that the Division Bench of the High Court is justified in making that observation. As the entries on the particular sheet related to the events on 30-1-1982 we concur with the finding that no credence can be given to the police version that accused gave First Information Statement to the police. No doubt it vitiates the testimony of P.W. 15 (Sub-Inspector). Even otherwise the First Information Statement given by an accused at the Police Station, so long as it contains inculpative statements, would stand excluded from evidence.

19. But can the above finding (that the Station House Diary is not genuine) have any inevitable bearing on the other evidence in this case? If the other evidence, on scrutiny, is found credible and acceptable, should the Court be influenced by the machinations demonstrated by the Investigating Officer in conducting investigation or in preparing the records so unscrupulously. It can be a guiding principle that as investigation is not the solitary area for judicial scrutiny in a criminal trial, the conclusion of the Court in the case cannot be allowed to depend solely on the probity of investigation. It is well nigh settled that even if the investigation is illegal or even suspicious the rest of evidence must be scrutinized independently of the impact of it. Otherwise criminal trial will plummet to the level of the Investigating Officer ruling the roost. The Court must have predominance and pre-eminence in criminal trials over the action taken by Investigating Officers. Criminal justice should not be made the casualty for the wrongs committed by the Investigating Officers in the case. In other words, if the Court is convinced that the testimony of a witness to the occurrence is true the Court is free to act on it albeit Investigating Officer’s suspicious role in the case.

20. P.W. 15 (Sub-Inspector) was asked during examination-in-chief about what happened on 30-1-1982, and he wanted to check up his records as he could not remember without refreshing his memory. But then the defence counsel seriously objected and wanted the Court to disallow him from looking into such records. It is not clear whether the said objection was upheld or whether P.W. 15 was allowed to check up with the records of investigation.

21. Trial Court cannot overlook the reality that an Investigating Officer comes to the Court for giving evidence after conducting investigation in many other cases also in the meanwhile. Evidence giving process should not bog down to memory tests of witnesses. An Investigating Officer must answer the questions in Court, as far as possible, only with reference to what he had recorded during investigation. Such records are the contemporaneous entries made by him and hence for refreshing his memory it is always advisable that he looks into those records before answering any question.

22. Section 159 of the Evidence Act is couched in a language recognising the aforesaid necessity. The section reads thus:

“159. Refreshing memory.- A witness may, while under examination, refresh his memory by referring to any writing made by himself at the time of the transaction concerning which he is questioned, or so soon afterwards that the Court considers it likely that the transaction was at that time fresh in his memory.

The witness may also refer to any such writing made by any other person, and read by the witness within the time aforesaid, if when he read it he knew it to be correct.”

The objection of the defence counsel when Investigating Officer wanted to reply by referring to the records of investigation is, therefore, untenable and unjustified. The trial Court should repeal such objections.

23. The most important witness in this case is P.W. 11 Shradamma. Since it is undisputed that the murder of Rekha took place in the house of P.W. 11 no Court can possibly ignore the importance of the evidence of the inmates of that house. In that way P.W. 11 is the most natural and the most probable witness to speak about the murder of Rekha. What the witness has deposed in Court is apparently in consonance with the narration of the prosecution story. The Sessions Judge before whom P.W. 11 gave evidence was so impressed by her testimony that he placed absolute reliance on it. But the Division Bench of the High Court has advanced a very feeble reason to sidestep the testimony of such an important witness. The first reasoning is this:

“Admittedly Sharadamma P.W. 11 and Nanjamma P.W. No. 12 are living in the ground floor. Murthy and some others are living in the first floor of the house. Admittedly there are innumerable houses round-about the house of Sharadamma and within the hearing distance of her house. That Murthy and others have been living in the first story, has been admitted by Nanjamma P.W. No. 12 herself. If such a ghastly murder had taken place would it not attract the attention of the persons living in the first floor.”

24. Whether the killer of Rekha was the accused or anybody else, when the fact is admitted that murder of Rekha took place inside the house of P.W. 11 and if no neighbour had rushed to the scene, how can that be a reason to think that the murder would have been committed by somebody else? So the said reasoning is a flimsy premise.

25. The other reason to disbelieve her evidence is that if P.W. 11 had seen the murder she would have cried out or shouted. This is what the High Court had said about that aspect:

“She claims to have remained calm like a stone in the house. This unnatural conduct of Sharadamma makes her evidence highly suspect and incredible. Would she not have at least told the neighbours that a girl had been murdered in a room of her house and that the accused, if he really had done so, had murdered the girl in the room. This passive conduct of hers makes her evidence highly suspect.”

26. Criminal Courts should not expect a set reaction from any eye-witness on seeing an incident like murder. If five persons witness one incident there could be five different types of reactions from each of them. It is neither a tutored impact nor a structured reaction which the eye-witness can make. It is fallacious to suggest that P.W. 11 would have done this or that on seeing the incident. Unless the reaction demonstrated by an eye-witness is so improbable or so inconceivable from any human being pitted in such a situation it is unfair to dub his reactions as unnatural, (Rana Pratap v. State of Haryana, AIR 1983 SC 680, Appabhai v. State of Gujarat, AIR 1988 SC 696).

27. The evidence of P.W. 11 was sought to be attacked by Shri Naresh Kaushal, learned counsel for the respondent, on a ground which the High Court did not choose to countenance. D.W. 3 Venkatesh – brother of Laxminarayanan (husband of P.W. 11) was examined to say that accused’s-father and Laxminarayanan had a long transaction on which they later fell out. The said evidence as let in, presumably, to show that P.W. 11 had some ire towards the accused. In other words, it was intended to impeach the impartiality of P.W. 11.

28. The general rule of evidence is that no witness shall be cited to contradict another witness if the evidence is intended only to shake the credit of another witness. The said rule has been incorporated in S. 153 of the Evidence Act which reads thus:

“153. Exclusion of evidence to contradict answers to questions testing veracity.- When a witness has been asked and has answered any question which is relevant to the inquiry only in so far as it tends to shake his credit by injuring his character, no evidence shall be given to contradict him; but if he answers falsely, he may afterwards be charged with giving false evidence.”

29. The said rule has only two exceptions. One is that if the witness denies having been previously convicted then evidence can be adduced to prove that he was so convicted. The other exception is the following:

“Exception 2.- If a witness is asked any question tending to impeach his impartiality, and answers it by denying the facts suggested, he may be contradicted.”

30. Illustration (d) cited in S. 153 is to amplify the aforesaid exception No. 2. That illustration is extracted below:

“(d) A is asked whether his family has not had a blood feud with the family of B against whom he gives evidence. He denies it. He may be contradicted on the ground that the question tends to impeach his impartiality.”

31. The basic requirement for adducing such contradictory evidence is that the witness, whose impartiality is sought to be contradicted with the help of such evidence, should have been asked about it and he should have denied it. Without adopting such a preliminary recourse it would be meaningless, if not unfair, to bring in a new witness to speak something fresh about a witness already examined. In Vijayan v. State (1999) 4 SCC 36 this Court has held that “the rule limiting the right to call evidence to contradict a witness on collateral issues excludes all evidence of facts which are incapable of affording any reasonable presumption or inference as to the principal matter in dispute.”

32. As the general rule of evidence is one of prohibiting evidence on collateral issues and since it is only by way of exception that such evidence can be permitted, the Court must guard that the defence evidence falls strictly within the exception.

33. In the present case the basic premise has not been laid by asking P.W. 11 about the alleged loan transaction between her husband and accused’s-father and hence it is not permissible to cite a witness like D.W. 3 to say about any such transaction.

34. P.W. 11 Sharadamma who is the most natural and probable witness to the occurrence in this case, has stated about the role which the accused had played in the murder of Rekha as far as she had witnessed it. Her evidence admits of no other hypothesis except the exclusive involvement of the accused in the murder. Learned counsel for the accused contended that if P.W. 11 had supplied coffee to the accused and deceased (as she claimed) the viscera of the stomach contents should have shown coffee. It is too puerile a contention, for, there is no finding by the doctor as to the precise food articles remained in the stomach of the dead body. No effort was made by the doctor to see whether there was coffee in the stomach, and there was no need to do so either. Perhaps the doctor would have chosen to ascertain that aspect if the death was suspected to be due to poisoning.

35. P.W. 6 Ankaiah had testified that at about 11.45 a.m. he saw the accused proceeding to the house of P.W. 11 escorted by police personnel. P.W. 6 was further said that it was the accused who pointed out the house of P.W. 11 and that the dead body of the murdered lady was lying inside that house. P.W. 6 was one of the attestors of the inquest report and he is a resident of the same locality. His evidence lends credence to the version of P.W. 11.

36. M.O. 16 (chopper) was surrendered by the accused to the police station. P.W. 5 and P.W. 13 are the witnesses who were present when the accused surrendered the chopper which was smeared with blood. Both witnesses have put their signature on Ext. P-6 Panchanama drawn up then. When M.O. 16 knife was subjected to serological examination it was found containing blood of B-Group. The significance of the above circumstance is that when two bed-sheets (on which the dead body was lying) were subjected to serological test they too contained blood of B-Group.

37. From the above evidence we have no speck of doubt that accused was the murderer of Rekha. The Sessions Judge who arrived at the above conclusion had rightly convicted the accused. The Division Bench of the High Court erroneously upset such a well merited conclusion.

38. We, therefore, allow this appeal and set aside the impugned judgment. We restore the conviction and sentence passed by the trial Court on the respondent. We direct the City Civil and Sessions Judge, Bangalore to take immediate and prompt steps to put the respondent back in jail for undergoing the remaining portion of his sentence.

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