RABARI KHIMA GANDA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) That brings us to the second contention. The complaint mark B contains the version attributed to the appellant. According to this version the deceased and the appellant were not on speaking terms on account of a false allegation about the encroachment over the land of the deceased by the accused. On the day of the incident the deceased came to the grazing ground near the appellant and challenged the appellant and the child accused Vagha Lakhman. This challenge was immediately followed by throwing of a stone at the appellant which struck his left knee. The appellant thereupon sat down and in the meanwhile the deceased came near him and aimed a blow at the appellant with his stick. The appellant warded off this blow by outstretching his left hand with the result that the stick struck on the left knee. Thereafter the appellant struck the deceased with his axe. This complaint if admitted in evidence would give out appellants version calling for consideration of the question of self-defence; and on account of the objection taken on behalf of the prosecution as to the admissibility of this complaint in view of the bar created by sec. 162 of the Code the question about admissibility has to be decided in this case. We must first look at the relevant evidence as to the circumstances in which this complaint came to be recorded. Evidently the appellant was not arrested in the course of investigation by P. S. I. Raijada who happened to hand over investigation to S.D.P.O. Mahapatra at 1-00 p.m. when the latter arrived at the scene. Mahapatra then proceeded further with the investigation recorded a couple of statements and then arrested the appellant. The weapon with the appellant accused was attached under a Panchnama Exh. 19 which went on from 2-15 p.m. to 2-45 p.m. Then as per the evidence of the S.D.P.O the appellant complained to him about beating by the deceased and therefore he directed the P.S.I. to record appellants complaint. In the course of cross-examination the witness stated that after his taking over the investigation he had called the appellant and had questioned him and thereafter he was arrested. P.S.I. Raijada P. W. 10 stated in his evidence that after having handed over the investigation to Mahapatra he recorded the complaint of the appellant at 5-00 p.m at the instance of Mahapatra. The complaint contents of which have been narrated above would show that the only person against whom it was given was the deceased. There was no question of taking any action upon this complaint because the offender mentioned in that complaint was dead. No investigation therefore could proceed upon that complaint. However it was recorded as a complaint; and it is in this context that we have to decide upon the controversy which has been raised before us. Secs. 154 161 and 162 of the Code are relevant in this connection. The relevant portions thereof may now be reproduced:

(2.) On behalf of the appellant the contention is that this being a counter-complaint given by the appellant is not covered by the provisions of sec. 162 of the Code; and is therefore admissible. This submission appears to us to state the proposition rather widely. The counter complaint after all is a statement; and it is not naming of a particular statement as a counter-complaint which takes it out of sec. 162 and makes it admissible as a counter-complaints notwithstanding the fact that it is pertaining to the same incident and gives out to the police the version of the defence. In fact a counter-complaint in a given case may well fall under sec. 162 of the Code. This would be implicit from the following observations of the Supreme Court in Faddi v. State of Madhya Pradesh A.I.R. 1964 S.C. 1850 at page 1853 in paragraph 15:

(3.) Reading secs. 161 (1) and 162 (1) of the Code together it is clear that the statement made in the course of investigation contemplated by sec. 162 (1) is a statement made by the accused when he is examined under sec. 161 (1). The words in the course of an investigation do not refer merely to the period of time between the beginning and the end of investigation. Therefore the fact that investigation has stated on the information lodged by a person is not decisive of the question whether a counter-complaint lodged by the accused is a statement made in the course of investigation.