ANTONY Vs. STATE OF KERALA

JUDGEMENT

(1.) THE revision petitioner was convicted by the First class Magistrate at Alwaye, for an offence under S. 326, I. P. C. , and was sentenced to undergo rigorous imprisonment for one year. His appeal against the conviction and sentence, was dismissed by the Additional Sessions Judge at parur. This petition is to revise the judgment of the learned judge.

(2.) THE case against the revision petitioner, which has been accepted by the courts below was, that at about 7-15 P. M. on the 23rd september, 1957, he stabbed Pw. 2 on his abdomen, with a knife, on account of previous enmity, and that he then threw his knife and escaped. THEre were several eye-witnesses whose evidence has been accepted by the two courts. THE evidence also showed that after the knife was thrown on the ground, Pw. 7 took it up, showed it to others, carried it home, and kept it in his house, and produced it before the police, only on the 29th September 1957, after his return from his house at Mullurkara, where he had gone on the 24th September. Pw. 7 testified, that he boarded the train for Mullurkara at Alwaye railway station on the 24th morning, purchasing two tickets, one for himself, and the other, probably for some one who accompanied him; but it was proved by the examination of the Station Master and by the production of the relevant register maintained at Alwaye railway station, that no ticket for Mullurkara had been issued on that day. At the time the Station Master was examined as a defence witness, the prosecutor suggested that Pw. 7 might have travelled without purchasing a ticket, a practice which was admitted to be prevalent on some scale. But Pw. 7 had no case, when he was examined, that he travelled ticketless on that day. It was therefore apparent, that all that Pw. 7 had stated could not be accepted at its face value, and therefore it was urged by the learned counsel for the revision petitioner, that the story of the knife being thrown away, which was spoken to by some of the other eye-witnesses, and of its recovery on production by Pw. 7 is unacceptable, and that this must vitiate the evidence as regards the actual occurrence.

(3.) THE view taken in the cases referred to above, that prejudice to an accused person may be inferred from a mere non-compliance with s. 161 (3), Crl. P. C. , has not been endorsed by the Supreme Court in such broad terms. In Baladin v. State of U. P. , A. I. R. 1956 S. C. 181, the police records were found to be suspect or unreliable and deliberately perfunctory or dishonest; yet THEir Lordships observed as follows: "ordinarily accused persons are entitled to challenge the testimony of witnesses examined in court with reference to the statements said to have been made by them before the investigating police officer. Statements made by prosecution witnesses before the investigating police officer being the earliest statements made by them with reference to the facts of the occurrence are valuable material for testing the veracity of the witnesses examined in court, with particular reference to those statements which happen to be at variance with their earlier statements; but the statements made during police investigation are not substantive evidence. " "hence the record made by a police investigating officer has to be considered by the court only with a view to weighing the evidence actually adduced in court the court in judging the case of a particular accused has to weigh the evidence given against him in court, keeping in view, the fact that the earlier statements of witnesses as recorded by the police is tainted record and has not as great a value as it otherwise would have in weighing all the material on the record as against each individual accused. " This passage has been extracted by the learned judge below in his judgment. Tilkeshwar Singh v. Bihar State, A I. R. 1956 S. C. 238 is a later pronouncement by the Supreme Court, and dealt specifically with the failure to comply with S. 161 (3), Crl. P. C. in which it was ruled, that such failure, while it might affect the weight to be attached to the evidence of the witnesses, does not reader it inadmissible. THEir Lordships then proceeded to state: "in the present case, the attention of the learned judges was drawn to the infirmity in the evidence of Pws. 4, 7 & 12, arising by reason of the failure to observe S. 161 [3], Crl. P. C. , but they were, nevertheless, prepared to accept it as reliable. We must accordingly hold that the findings of the courts below are not open to attack on the ground that they were based on inadmissible evidence. " It may be mentioned, that in Laxman Chandra v. Emperor, a. I. R. 1947 Calcutta 278, Chakravarthi J. , as he then was, treated the violation of S. 161 (3), as but affording scope for a presumption to be raised in proper cases, in terms of illustration (g) of S. 114 of the Evidence Act, "that evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it," the weight of the presumption varying according to the circumstances of each case.