VARKEY JOSEPH Vs. STATE OF KERALA

JUDGEMENT

(1.) 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 weapons.

(2.) 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 going towards south." Did you notice his dress then? Yes. He had worn a white dhoti .. Did you notice his dhoti '! Yes. I had seen two or three drops of blood on his dhoti. Suddenly I had a doubt". Similarly PW. 4 also at that time "Did anyone from Ramanattu house came for tea? Yes. Jose came. When did Jose came to 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 t.1ke this bag after some time ..

(3.) 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 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. Section 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 witnesses intend 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 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.