Allahabad High Court
Natthu vs State Of U.P. on 12 July, 2013
Bench: Amar Saran, Pankaj Naqvi
HIGH COURT OF JUDICATURE AT ALLAHABAD
Reserved:
CAPITAL CASE No. - 3191 of 2012
Appellant:- Natthu
Respondent :- State of U.P.
Appellants's Counsel :- Ms. Abhilasha Singh, holding brief of Sri Vijendra Singh
Respondent Counsel :- Sri Akhilesh Singh, AGA, Sri Anand Tiwari and Km. Meena
Complainant Counsel:- Sri R S Tripathi, holding brief of SriA P Tiwari
____
With
CAPITAL CASE No. - 3046-2012
Appellant :- Rakesh & Others
Respondent :- State of U.P.
Appellant's Counsel :- Sri G S Chaturvedi, Senior Advocate and M C Singh
Respondent Counsel :- Sri Akhilesh Singh, AGA, Anand Tiwari and Km. Meena
Complainant Counsel:- Sri R S Tripathi, holding brief of Sri A P Tiwari
____
With
Reference Case No. 04-2012
Hon'ble Amar Saran,J.
Hon'ble Pankaj Naqvi,J.
(Delivered by Pankaj Naqvi,J)
1. The present death reference along with Criminal Appeal No. 3191 of 2012, filed by Natthu and connected Criminal Appeal No. 3046 of 2012, filed by Rakesh, Mahavir, Viresh, Jai Prakash, Pappu and Gulab Singh arises out of Judgment of conviction and order of sentence dated 30.07.2012, passed by Additional Sessions Judge, Court No. 6, Budaun in ST No. 1418 of 2008, by which appellants have been held guilty of committing offences under Sections 147, 201 & 302/149 IPC respectively and each of them was directed to undergo rigorous imprisonment for 2 years along with fine of Rs.2000/- under Section 147 IPC; 7 years rigorous imprisonment along with fine of Rs.7000/- under Section 201 IPC and death penalty and fine of Rs.25,000/- under Section 302/149 IPC.
2. The reference was made by the learned Trial Judge for confirming the sentence of death under Section 366 Cr P C and the same set of convicts also preferred the aforesaid two appeals.
3. We have heard the death reference and the two connected appeals together and are disposing them of by this common Judgment.
4. The prosecution story emanates from a written report (Ex.ka-1) dated 23.05.2006, given by Sakku (PW-1), addressed to Prabhari Nirikshak, PS Gunnaur, District Budaun, alleging that on the intervening night of 22/23-05.2006 at an undisclosed time, while his brother Deen Dayal was sleeping in the fields, then upon his shrieks, informant (PW-1) along with Vijay Pal (not examined), Pappu (PW-2) and Latoori (not examined), reached the scene of occurrence to witness that accused-appellants, namely, Rakesh, Mahavir, Natthu had caught-hold of his brother Deen Dayal, Viresh and Jai Prakash were lighting the fire, whereas Pappu and Gulab Singh had caught-hold of one Km. Anita. Thereafter, all the accused persons threw both, his brother Deen Dayal and Km. Anita in flames of fire. The informant remonstrated but the accused persons retaliated by gun shots. The informant alleged that the accused persons committed the murder of both Deen Dayal and Km. Anita, on account of a love affair. On the basis of the written report, an FIR (Ex.ka-4) was registered on 29.5.2006 at 21.15 hours, by PW-3 Jagpal Singh at PS Gunnaur, who made necessary entries in the general diary and also drew copies of the FIR (Ex.ka-5) under his signatures. A final report was submitted just a day after and thereafter a request for re-investigation was made before the Circle Officer only on 28.01.2007 on the basis of which alleged investigation was made and charge-sheet filed.
5. During trial, each of the appellant was charged for offences under Sections 147, 201 & 302/149 IPC.
6. The prosecution in support of its case, examined five witnesses. PW 1 Sakku & PW-2 Pappu are the brothers of the deceased Deen Dayal, who were the eye witnesses of the incident. PW-3 Jagpal Singh was the Head Moharrir at PS Gunnaur, District Budaun, who registered the FIR on 29.05.2006. PW-4 Suraj Singh Yadav was the Investigating Officer, who inherited investigation from one Hari Ram. PW-5 Mahipal Singh was the subsequent Investigating Officer/Circle Officer.
7. Accused-appellant Natthu of Crl. Appeal No. 3191 /2012 in his statement under Section 313 Cr P C stated that the marriage of his daughter Km. Anita (deceased) was fixed. He was to take lagan on 25.05.2006. However, on 22.05.2006, the other co-accused / and the appellants in the connected Crl. Appeal No. 3046 / 2012 at around 10.00 pm, comprising of his family members, i.e., Jai Prakash, Gulab Singh, Mahavir, Viresh, Pappu, Banwari and Shyam Sunder entered his house along with illegal arms and took away the bridal goods and cash worth Rs.21,000/- and also abducted him along with his daughter Km. Anita and took them to the jungle where his daughter was thrown in live fire. Deen Dayal who too was present at the scene also succumbed to death on account of having been thrown in live fire. He further stated that the other co-accused persons made him leave the village and forcibly occupied his house and fields. He filed an application u/s 156 (3) Cr P C before the Court, which on 22.03.2007 directed for the registration of FIR in Misc. Case No. 65 of 2007. He further submits that as he does not have any male issues, the co-accused persons in the connected appeal resorted to this abhorrent crime to grab his property.
8. The defence examined solitary witness DW-1 Smt. Omwati w/o Nathu (accused / appellant) who supported the statement u/s 313 Cr P C of her husband.
9. It is submitted by Sri Gopal Swaroop Chaturvedi, learned Senior Counsel and Sri M C Singh for the appellants in their respective appeals, that in view of inherent contradictions and inconsistencies in the case of prosecution itself, the prosecution miserably failed to prove the case beyond reasonable doubt. Sri Chaturvedi further submits that the statement of accused Nathu under Section 313 Cr P C could not in the absence of any opportunity for cross-examination by appellants / co-accused in the appeal partake the character of substantive evidence so as to implicate them. He further submits that the statement of co-accused / appellant Nathu in Crl. Appeal No. 3191/2012 sets up an altogether different story implicating the other co-accused/appellants in Crl. Appeal No. 3046/2012, the statement being self-exculpatory would not be admissible in evidence. He finally submits that the statement of DW-1, wife of Natthu-appellant would not be admissible in evidence as against six appellants of Crl. Appeal No. 3046 of 2012, because the said appellants did not have any opportunity to cross-examine her and secondly, her evidence was not put to the accused-appellants in the statement under Section 313 Cr P C and without doing so, the evidence of DW-1, could not implicate the appellants of Crl. Appeal No. 3046 of 2012. He in support of his contention, places reliance on a recent decision of the Apex Court dated 06.05.2013 in Criminal Appeal No. 931-932 of 2009, Raj Kumar Singh @ Raju @ Batya v. State of Rajasthan and that of S P Bhatnagar v. state of Maharashtra, AIR 1979 SC 826 (para-44), Narayan Swami v. State of Maharashtra, AIR 1968, SC 609 (para-12) and State of Maharashtra v. Dr. R B Chaudhary, AIR 1968, SC 110 (para-5). He also places reliance on Phipson on Evidence (10th Edition) and Criminal Trial (Fundamentals & Evidentiary Aspects) (4th Edition 2008) by Y. R. Rao, that even a defendant may cross-examine a co-defendant, who has given evidence against him and that cross-examination of a witness with the permission of the Court is permissible, if the witness is alleged to have, so to speak, turned hostile.
10. Sri Akhilesh Singh, learned Government Advocate and Sri R S Tripathi, holding brief of Sri A P Tiwari, learned counsel for the complainant / applicant submitted that the statement of accused Nathu under Section 313 Cr P C and that of DW-1, fixes the time and presence of credible prosecution witnesses at the scene of occurrence, which was sufficient to implicate the accused persons, in this abhorrent crime He places reliance on the following decisions of the Supreme Court:-
State of UP v. Babu Ram, 2000 SC Crl 845 (para 21-23), State of Haryana v. Ram Singh, 2002 SCC Crl. 350 (para-19), Banvari Lal v. State, AIR 1956 Alld 385 (para-25), Sohanlal v. Gulabchand, AIR 1966 Rajasthan 229 (para 28), Ashok Kumar v. State of Haryana, 2011(1) SCC Crl 266 (para29-34 and 40-42), Union of India v. VTR Verma, AIR 1957 SC 882(para-8), Lt. Muniappan v. State of Madras, AIR 1961 SC 175 (para 6-7), Dayabhai v. State of Gujrat, AIR 1964 SC 1563 (para-8), Alister Anthony Pariera v. State of Maharashtra, 2012(1) SCC Crl. 953 (para54-56) and State of U.P. v. Lakmi, 1984(4) SCC 336, (para 8 to 11). The relevance of these judgments, if need be, shall be discussed at the appropriate stage.
11. Sakku (PW-1) is the brother of Deen Dayal (deceased). Km. Anita (deceased) is the daughter of accused Natthu / appellant of Criminal Appeal No. 3191/2012. Accused / appellant Rakesh, Gulab, Pappu, Jai Prakash and Mahavir of Criminal Appeal No. 3046 of 2012 are all nephews of Natthu. Accused Viresh is the grand son of the real brother of Natthu, i.e., Chakkan. Thus all accused are related to each other.
12. Before examining the role of investigators, it would be apt to consider the credibility of PWs 1 & 2, who are none other than the alleged eye witnesses of the horrific incident and real brothers of the deceased Deen Dayal. Both these witnesses admit a promiscuous relationship between his brother Deen Dayal and Km. Anita, due to which, the accused persons felt let down and are alleged to have harboured animosity against the family of PWs 1 & 2. However, what we find from perusal of the FIR and the evidence before the Court, is that there is substantial improvement on most material aspects as regards occurrence of the incident in their respective versions. To recapitulate, the FIR dated 29.5.2006 based on a written report dated 23.05.2006, does not disclose the time of occurrence. It also does not assign any weapon to any of the accused and only proceeds on the premise that upon shrieks of their brother Deen Dayal, who was sleeping at the fields, PW-1 proceeded towards the site along with Vijay Pal, Latoori (none examined) and Pappu (PW-2) to witness that accused-appellants Rakesh, Mahavir, Nathu had caught-hold of their brother, whereas Viresh, Jai Prakash were igniting fire and Pappu and Gulab Singh had caught-hold of Km. Anita and all the accused persons threw the couple in flames of fire. On witnessing this horrific incident, PW-1 shouted, the appellants are alleged to have fired at them and at their witnesses, due to which, PW-1 and other persons returned to their village.
13. However, on entering the witness box, both these witnesses not only specify the time of occurrence as 10 PM, but also assign respective weapons to various accused persons. PW-1 states that Rakesh, Nathu and Mahavir were cutting his brother Deen Dayal into pieces with the help of sword, knife and gandasa, whereas Km. Anita was being cut into pieces with the aid of knife and gandasa by Gulab Singh and Pappu, whereas Jai Prakash and Viresh were igniting fire with the help of stack of cow-dung cakes. After butchering the couple, all the accused persons threw them in flames of fire. Although, PW-2 in his examination-in-chief alleged that the accused Gulab Singh and Pappu cut Km. Anita into pieces with the help of a sword and a kulhadi (axe), but on cross-examination, he resiled as he stated that he could not see what was the weapon possessed by accused Gulab Singh and Pappu. Both PWs 1 & 2 have maintained a stand that upon witnessing this incident and upon a retaliatory fire made by the accused persons, they returned to their village.
14. We, for more than one reason, are not inspired by the credibility of PWs 1 & 2 as reliable witnesses. Firstly, in the ordinary course of human conduct, upon happening of such a horrific incident, PWs 1 or 2 could have rushed to the nearest police station to lodge the FIR, which was only at a distance of 2 kose (6 kms). PW-2 did not even report the matter to the village Chaukidar nor the Pradhan as stated at page 19 of the paper book. The alibi that the accused deliberately obstructed their entry from reaching the police station, is not convincing, as it was not stated how and in what manner it was done so for almost a week. According to PW-2 although he remained at the scene for almost 2 ½ hours, to witness the couple being burnt to death, yet no evidence surfaced that any member of his family was made to rush to the police station, which was only 2 kose (6 km), to report the matter Further, there has been a substantial embellishment on the most material aspects in the case as originally stated in the FIR and the evidence of PWs 1 & 2, as regards the disclosure of time and the nature of weapons used by each assailant. According to PW-2 after submission of final report, just a day after the lodging of the FIR on 29.05.2006, a request for re-investigation was only made after 10 months of the date of incident before the Circle Officer on 28.01.2007, is a strong suspicious circumstance to discredit the prosecution story.
15. Another startling revelation benefiting the appellants of Crl. Appeal No. 3046 / 2012 was made by PW-3 that at entry no. 42 of the general diary, it was recorded that in respect of this incident, the father of the deceased-girl, i.e., Natthu, appellant had already informed the police about suicide committed by her daughter on 23.05.2006, but in the said application, names of accused persons had not been disclosed. The suicide angle was never investigated.
16. It appears that after submitting the final report on 29.05.2006, an affidavit of the informant Sakku dated 28.01.2007, appears to have been submitted before the Circle Officer, Gunnaur, pursuant to which PW-4 recorded the statement of Sakku (PW-1) and that of PW-2 on 01.03.2007 and 21.03.2007 respectively by visiting the scene of occurrence and prepared the site plans (Ext. ka-6 & ka-7) respectively. He recorded the statement of the father of the deceased Deen Dayal on 24.04.2007. Subsequently, PW-4 abandoned investigation on account of his transfer, but admitted that previously SHO, Gunnaur had submitted a final report. He further stated that neither the informant ever told him that all the accused persons had obstructed their movements nor they submitted any evidence / letters intimating the higher police officers of their complaint. PW-5, the Circle Officer was candid enough to admit that he neither visited the spot nor did he inquire the circumstances under which the previous Investigating Officer submitted a final report.
17. Considering the gravity of the case, we are absolutely aghast to note the casual and lackadaisical approach of the investigating agencies in dealing with this case. The written report is dated 23.05.2006, but it appears that the report was not received at PS Gunnaur and, thereafter, the same was handed over to the higher police authorities, on the basis of which the FIR was registered on 29.05.2006, but curiously enough a final report was submitted on the next day. This is also borne out from the testimony of PWs 4 & 5. PW-1 admits that after submission of the final report on 30.05.2006, he filed an application for further investigation only after 10 months of the occurrence before the Circle Officer. We have discussed in the earlier part of this Judgment as regards the credibility of the evidence of PWs 1 & 2 in failing to convince us as regards the occurrence of the incident in a manner as alleged by them. We do not hold them as reliable witnesses as there were serious loop-holes in the case of the prosecution on most material aspects.
18. Having said so, we cannot resist in observing that the conduct of the police authorities was only a cover-up operation. Firstly, the prosecution miserably failed to establish as to how and on what basis, the final report was filed, on the basis of FIR dated 29.05.2006, just a day after the horrific incident. No effort was made by the I.O. either to contact the SHO Gunnaur, who submitted a final report or to inquire the reasons for submitting the same. Statement of PW-5 is categorical and emphatic on this aspect. PW-4, the then Investigating Officer, visited the spot only on 21.03.2007, i.e., after about 10 months of the date of occurrence. Obviously, after a considerable lapse of time, he was not expected to find any mortal remains of the deceased persons. We condemn the conduct of the Investigating Officers in investigating the offence of this magnitude in the light of the Law declared by the Apex Court in the case of Bhagwan Das v. State (NCT of Delhi), 2011 (6) 396 and that of Arumugam Servai v. State of Tamil Nadu, 2011 (6) SCC 405. The Apex Court in the case of Arumugam Servai (supra) after noticing, increasing trend of "honour killing" expressed its anguish and exalted administrative authorities to ensure that such incidents are prevented or else the offenders should not be spared. The Apex Court observed as under:
12. We have in recent years heard of 'Khap Panchayats' (known as katta panchayats in Tamil Nadu) which often decree or encourage honour killings or other atrocities in an institutionalized way on boys and girls of different castes and religion, who wish to get married or have been married, or interfere with the personal lives of people. We are of the opinion that this is wholly illegal and has to be ruthlessly stamped out. As already stated in Lata Singh's case (supra), there is nothing honourable in honour killing or other atrocities and, in fact, it is nothing but barbaric and shameful murder. Other atrocities in respect of personal lives of people committed by brutal, feudal minded persons deserve harsh punishment. Only in this way can we stamp out such acts of barbarism and feudal mentality. Moreover, these acts take the law into their own hands, and amount to kangaroo courts, which are wholly illegal.
13. Hence, we direct the administrative and police officials to take strong measures to prevent such atrocious acts. If any such incidents happen, apart from instituting criminal proceedings against those responsible for such atrocities, the State Government is directed to immediately suspend the District Magistrate/Collector and SSP/S Ps of the district as well as other officials concerned and charge sheet them and proceed against them departmentally if they do not (1) prevent the incident if it has not already occurred but they have knowledge of it in advance, or (2) if it has occurred, they do not promptly apprehend the culprits and others involved and institute criminal proceedings against them, as in our opinion they will be deemed to be directly or indirectly accountable in this connection.
19. A perusal of the aforesaid judgment would manifest that conviction of an accused, alleged to be responsible for honour killing could be brought about only after a fair, prompt and independent investigation, or else on account of lackadaisical approach of the investigating agencies, vital evidence could be lost which could have nailed the accused. This Court is pained to observe that even though the present case may have been a case of "honour killing" or a suicide, yet on account of motivated lethargy of the investigating agencies, vital evidence in the form of recovery of mortal remains of the deceased, submission of final report in the first instance and virtually 10 month delayed inspection of the site, actual perpetrators could not be nailed. The Investigating Authorities cannot shirk from their responsibility and have to be appropriately dealt with.
20. The Court now proceeds to examine as to whether on a statement made by the appellant Natthu under Section 313 Cr P C, the co-accused-appellants of the connected appeal could have been implicated.
21. The statement of Natthu (the appellant and father of the deceased-girl Km. Anita) under Section 313 Cr P C is extracted hereunder:-
"izz'u&18 D;k vkidks dqN vkSj dguk gSA
mRrj eSusa viuh iq=h vuhrk dk fookg r; fd;k FkkA 25&05&2006 dks eq>s yxqu ysdj tkuk FkkA fn0 22&05&2006 dh jkf= 10 cts esjs ifjokjhtu t;izdk'k] xqykc flag] egkohj] ohjs'k] iIiw] cuokjh] ';kelqUnj vkfn us esjs ?kj esa /kqldj voS| vlykgks ds cy ij vuhrk dh yxqu dk lkeku o 21000 #i;s uxn ywVdj esjh iq=h vuhrk dks o eq>s idM+dj taxy esa ys x;s taxy esa igys ls ty jgh vkx esa esjh vka[kksa ds lkeus esjh iq=h vuhrk dks ftUnk vkx esa Qsad fn;kA ogkW jkds'k igus ls ekStwn FkkA ftldh vkx esa tydj ekSr gks x;hA eqfYtekuksa us eq>s viuh fxj¶r esa rc rd j[kk tc rd vuhrk tydj jk[k ugha gks xbZA
eqfYtekuksa us eq>s xkao ls Hkxk fn;k gS vkSj esjs edku o tehau ij mDr eqfYtekuksa us dCtk dj fy;k gSA
?kVuk dh fjiksVZ ds fy, izkFkhZ us U;k;ky; Jheku fo'ks"k U;k;k/kh'k ¼nL;q izHkkfor {ks=½ cnk;Ww esa /kkjk 153 ¼3½ lh0vkj0ih0lh0 ds vUrxZr izkFkZuk i= fn;k ftl ij ekuuh; U;k;ky; }kjk 22&03&2007 dks iz0 lwpuk fjiksVZ vafdr dj foospuk djus dk vkns'k ikfjr fd;k Fkk] ftldk izdh.kZ okn [email protected]] uRFkw cuke t;izdk'k vkfn Fkkuk xqUukSj gSA
;g fd izkFkhZ ds dksbZ iq= ugha gS bl dkj.k lEfRr ds ykyp esa mDr eqfYtekuksa us esjh iq=h dks tykdj gR;k dj nh FkhA
izekf.kr fd;k tkrk gS fd vfHk;qDr dh mijksDr izPNk esjh mifLFkfr ,oa Jo.k xkspjrk esa Lo;a }kjk o esjs LVsuksxzkQj }kjk esjs cksyus ij fyfio) dh x;h vkSj ;g fd mijksDr i`PNk esa vfHk;qDr }kjk fn;s x;s dFku dk iw.kZ ,oa lgh o`rkUr ekStwn gS] ftldks vfHk;qDr us lqudj rLnhd fd;kA"
22. A perusal of the aforesaid statement of Natthu under Section 313 Cr P C, would manifest that he exonerated himself from the commission of the alleged offence, but implicated the appellants of the connected appeal. His wife (DW-1) also supported the statement of Natthu under Section 313 Cr P C, but she included two more persons as accused, namely, Shyam Sunder and Banwari. Before we dwelve on this aspect, it would be apt to consider the scope and ambit of a statement made by an accused under Section 313 Cr P C.
23. The Apex Court in a recent decision in the case of Raj Kumar Singh @ Raju @ Bati (supra), after considering the previous decisions on the scope, relevance and admissibility of a statement made by an accused under Section 313 Cr P C, summarized the legal position in paragraph 36 thereof, which is quoted as under:-
36. In view of the above, the law on the issue can be summarised to the effect that statement under Section 313 Cr.P.C. is recorded to meet the requirement of the principles of natural justice as it requires that an accused may be given an opportunity to furnish explanation of the incriminating material which had come against him in the trial. However, his statement cannot be made a basis for his conviction. His answers to the questions put to him under Section 313 Cr.P.C. cannot be used to fill up the gaps left by the prosecution witnesses in their depositions. Thus, the statement of the accused is not a substantive piece of evidence and therefore, it can be used only for appreciating the evidence led by the prosecution, though it cannot be a substitute for the evidence of the prosecution. In case the prosecution's evidence is not found sufficient to sustain conviction of the accused, the inculpatory part of his statement cannot be made the sole basis of his conviction. The statement under Section 313 Cr.P.C. is not recorded after administering oath to the accused. Therefore, it cannot be treated as an evidence within the meaning of Section 3 of the Evidence Act, though the accused has a right if he chooses to be a witness, and once he makes that option, he can be administered oath and examined as a witness in defence as required under Section 315 Cr.P.C.
An adverse inference can be taken against the accused only and only if the incriminating material stood fully established and the accused is not able to furnish any explanation for the same. However, the accused has a right to remain silent as he cannot be forced to become witness against himself.
24. Thus, the statement of an accused under Section 313 Cr P C has a very limited purpose, where accused is given an opportunity to furnish an explanation as regards the incriminating material, which has surfaced against him during trial. This statement is not a substantive evidence, as the accused is not put on oath. However, if he chooses to be a witness, he can be administered oath as a witness in defence as required under Section 315 Cr P C.
25. The plea as to whether the evidence of DW-1 could have formed the basis for convicting the co-appellants in Crl. Appeal No. 3046/2012 is to be considered after examining the provisions of the Evidence Act. Section 138 of the Evidence Act lays down the manner of examining a particular witness and provides examination-in-chief, cross-examination and re-examination in so far examination of a witness is concerned. Right of cross-examination available to opposite party is a distinct and an independent right. The testimony of DW-1 was in sharp conflict with that of the other co-accused, of the connected appeal as there was a conflict of interest inasmuch as, DW-1 had stated that it was the appellants/co-accused of Crl. Appeal No. 3046/2012 along with 2 more persons i.e. Shyam Sunder and Banwari who had visited their house a day before the alleged incident and had looted the lagan items of their daughter's marriage and had also abducted her husband and her daughter Km. Anita (deceased). Thus, DW-1 implicated the co-accused-appellants of the connected appeal for the alleged offence. In order to test the veracity of the statement of DW-1, it was incumbent on the part of the court below to extend a right of cross-examination to the co-accused-appellants under Section 138 of the Evidence Act. In this connection, reference may be made to Field's Commentary on the Law of Evidence, 12th Edition, Vol. 5-
"31-. Right of co-accused to cross-examine witness called by another accused. --- One accused person may cross-examine a witness called by another accused for his defence when the case of the second accused is adverse to that ..... first.
In Taylor's Evidence, para-1430, the law is stated to be as follows:-
"when two or more persons are separately defended, any witness called by one of them may be cross-examined, on behalf of the others, if he gives any testimony tending to criminate them."
The only reason for allowing one accused to cross-examine the witness of other co-accused is that the evidence of the witness may be used against the accused.
The appellant had the opportunity of cross-examining Po Htein and utilized.
Held that there was no reason why this man's evidence should not be taken on account.
Where in cross-examining a witness questions are disallowed by the Court the deposition should show what the questions are and the reasons for disallowing them."
26. Similarly, Phipson on Evidence, 10th Edition held as under:-
1538- Co-defendants. A defendant may cross-examine a co-defendant or any other witness who has given evidence against him, and reply on such evidence, though there is no issue joined between them. And the same right exists between respondent and co-respondent in divorce cases, provided either is hostile to the other, for if friendly, e.g., where both deny the adultery each can only be examined as the other's witness and not cross-examined. So, where several prisoners are tried on the same indictment and separately defended, any witness, whether a co-defendant or not, called by one may be cross-examined by the others against whom they have given incriminatory evidence, or by the Crown to elicit such evidence and the parties against whom such evidence is given have a right to reply thereon."
27. Viewed from the aforesaid perspective, we find that the exculpatory statement made by accused Natthu under Section 313 Cr P C or DW-1 wherein he sets up a completely new story as regards the occurrence of the event, as against the other co-accused, could not have formed the basis for conviction of the appellants, as it was neither a substantive evidence nor were they afforded any opportunity of cross-examination.
28. We have carefully gone through the authorities cited by the learned AGA and find that none of them are applicable on the facts and circumstances of the present case.
29. The Trial Court convicted the appellants on the strength of the statement of accused Natthu under Section 313 Cr P C and that of DW-1 in view of provisions of Section 133 r/w Section 114 (b) and that of Section 30 of the Evidence Act. We in the earlier part of the Judgment have already indicated that the statement of accused Natthu under Section 313 Cr P C and that of DW-1 in support thereof was not a substantive acceptable evidence which could have nailed the other set of accused persons. Further we are also of the view that the said evidence cannot be made admissible under Section 133 r/w Section 114 (b) and Section 30 of the Evidence Act as accused Natthu neither turned an approver nor was his statement inculpatory so as to make it admissible under Section 30 of the Evidence Act. The Trial Court was swayed by the fact that as Natthu in his statement under Section 313 Cr P C had admitted his presence at the scene of occurrence, was itself sufficient to implicate the accused persons. This approach was absolutely de hors the law. The prosecution had failed to prove the case, in the mode and manner as alleged by them beyond a reasonable doubt.
30. We are of the considered view that for the reasons stated above, the appeals are liable to be allowed and the judgment of conviction and order of sentence passed against the appellants is accordingly set aside. We also negative the reference made by the learned trial judge to confirm the death sentence passed upon appellants-Natthu, Rakesh, Mahavir, Viresh, Jai Prakash, Pappu and Gulab Singh. All appellants stand acquitted of charges they had been found guilty of. Since appellants are in custody, we direct the release of appellants Natthu, Rakesh, Mahavir, Viresh, Jai Prakash, Pappu and Gulab Singh forthwith, if not wanted in any other case.
31. Before parting with the case, the Court would be failing in its duty if it does not passes an appropriate order to prevent the recurrence of the mischief which had taken place in the instant case. Honour killing seems to be spreading its tentacles in certain section of the society. It connotes a certain mind-set, that the chastity of the girl belongs to her family. This is a dangerous trend, which is not only to be deprecated but a holistic effort is to be made by all sections of the society to eliminate it completely. The role of police is of considerable significance for conducting prompt, efficient and independent investigation so that the real perpetrators of the crime are brought to book. Going by our experience in the instant case, we are of the view that in a case pertaining to honour killing, the investigating agency should not submit a final report unless the same has an approval of an officer not below the rank of Superintendent of Police. This is with a view to prevent the mischief of submission of a motivated final report. We, accordingly direct the Director General of Police, U.P. to pass appropriate directions in this regard, to be complied by the subordinate police officers, both in letter and in spirit.
Order Date:- July 12, 2013
Chandra (Pankaj Naqvi,J) (Amar Saran,J)
