Vs.

Judges: K.T. THOMAS & D.P. MOHAPATRA, JJ.

Date of Judgment: Mar 19, 1999

Section 3, 8 – Natural witnesses – Family of victim initiating proceedings against accused persons – Enmity in two factions – Assailants seen by family members and neighbours with A1 and A2 holding axes – Neighbours reaching immediately on hearing cries – Credibility. Held that in incident of murder at night, persons who would normally run to place of occurrence would be those living in neighbourhood. (Para 13 to 16)

Section 27 with Criminal Procedure Code, 1973 – Section 162(1) – Recovery of two axes on information by two accused – Seizure memo signed by accused persons – If seizure is vitiated – Nature of prohibition in section 162 Cr.P.C. Held that seizure is not vitiated as Section 162(1) does not apply to Section 27 of Evi-dence Act.

Section 32(1) – Dying Declarations – Two dying declarations made by two victims to police officer – Both having vertical incised wound of 8.5 x1.5 cm x brain deep and 8.5 x 3.0 cm x brain deep – Brain tissues coming out from the wounds. Held that it is extreme-ly unsafe to rely upon dying declarations as brain functions would have impaired due to brain injury. (Paras 10,11)

The prohibition contained in sub-section (1) of Section 162 is not applicable to any proceedings made as per Section 27 of the Evidence Act. The Investigating Officer is not obliged to obtain the signature of an accused in any statement attributed to him while preparing seizure memo for the recovery of any article covered by Section 27 of the Evidence Act. But, if any signature has been obtained by an investigating officer, there is nothing wrong or illegal about it. The prohibition is in peremptory terms. It is more a direction to the investigating officer than to the court because the policy underlying the rule is to keep witnesses free to testify in court unhampered by anything which the police claim to have elicited from them. But if any Investi-gating Officer, ignorant of the said provision, secures the signature of the person concerned in the statement, it does not mean that the witnesses’ testimony in the court would thereby become contaminated or vitiated. The Court will only reassure the witness that he is not bound by such statement albeit his signature finding a place thereon. (Paras 29, 30 & 28)