SASHI JENA AND ORS. versus KHADAL SWAIN AND ANR.

Citation: [2004] 2 S.C.R. 260 · Decided: 10-02-2004 · Supreme Court of India · Bench: Y.K. SABHARWAL · Disposal: Appeal(s) allowed

Cited by 2 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

A 
B 
SASHI JENA AND ORS. 
v. 
KHADAL SWAIN AND ANR. 
FEBRUARY 10, 2004 
[Y.K. SABHARWAL AND B.N. AGRAWAL, JJ.] 
Evidence Act, 1872-Sections 33 and 157-Code of Criminal Procedure, 
1973-Section 202-Complaint made to Magistrate against appellants for 
C murder of deceased for not bringing sufficient dow1y-lnquiry ordered by 
Magistrate-Case committed to trial court on completion of inquiry-Appellants 
convicted and sentenced to life imprisonment-Confirmed by High Court-
Statement of witness supporting prosecution during the inquiry but turning 
hostile during trial-Admissibility of the statement made during the course of 
inquiry-Held, not admissible since the accused has no right or opportunity 
D to cross-examine the witness during the inquiry-Statement cannot be used to 
corroborate evidence of other witnesses-On facts and evidence. there is no 
circumstantial evidence-Hence appellants-accused are acquitted-JPC-
Section 302 and 34. 
Police received a report that the deceased, wife of appellant no. 2, 
E committed suicide by hanging herself in her house. On the basis of the 
report, an unnatural death case was registered. On receipt of the pos.t-
mortem report of the deceased, a case under Section 302, JPC was 
registered against unknown person. The police, after investigation, found 
the case to be one of suicide and not homicide and submitted a final report 
F accordingly. 
The father of the deceased, PW2, filed a complaint petition to 
Magistrate for prosecution of the appellants for murdering the deceased 
for not bringing sufficient dowry. According to the complaint, the deceased 
was given in marriage to appellant no. 2 with a dowry of Rs. 20,000. The 
G family of appellant no. 2 demanded dowry even after marriage and on its 
non-fulfilment, the deceased was ill-treated and tortured by the appellants. 
On the date of the incident, the deceased asked PW.I, her neighbour, to 
immediately inform her parents about a further demand of Rs. 5000 by 
her in-laws and told him that if the amount was not paid, she would be 
done to death. Before PW 1 could convey the news to the parents of the 
H 
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SASH! JENA v. KHADAL SWAIN 
261 
deceased, he heard the cries coming from the house of the appellants. PW A 
1 found the d_eceased IyingJ on the floor and appellants 1 and 2 were 
pressing a crowbar on her neck till her death while appellants 3 and 4 
were holding her legs. PW.1 thereafter immediately rushed to the village 
of PW.2 and narrated him the entire incident. PW 2 along with his wife 
PW. 4, PW. 1 and PW. 5 went to the house of the appellants. The appellant B 
no. 1 stopped them from entering the house by holding out a Kati (Sword). 
Magistrate directed an inquiry under section 202 CrPC. After 
inquiry, the Magistrate issued processes against the appellants and they 
were committed to the Court of Sessions to face trial. 
During the trial, PW 1 was declared hostile. Relying upon the reports 
of PWs. 2 to 5, the appellants were convicted by trial court under Section 
302 read with Section 34 IPC and sentenced them to undergo life 
imprisonment. In appeal, High Court confirmed the conviction and 
sentence of the appellants awarded by the trial court. 
In appeal to this Court, appellants contended that the statement of 
PW 1, made before the Magistrate during the course of inquiry under 
Section 202 CrPC against the appellants is not admissible in evidence 
under section 33 of the Evidence Act, 1872 since the appellants had neither 
any right nor opportunity to cross-examine PW 1 during the course of 
c 
D 
the inquiry. 
E 
Allowing the appeal, the Court 
HELD: 1. It is well settled that the scope of inquiry under Section 
202 CrPC is very limited one and that is to find out whether there are 
sufficient grounds for proceeding against the accused who has no right to F 
participate therein much less a right to cross-examine any witness 
examined by the prosecution, but he may remain present only with a view 
to be informed of what is going on. As during the course of inquiry under 
Section 202 CrPC an accused has no right much less opportunity to cross-
examine a prosecution witness, statement of such a witness recorded G 
during the course of the inquiry is not admissible in evidence under Section 
33 of the Act and, consequently, the sam~ cannot form the basis of 
conviction of an accused. (267-C-D; 268-A-BI 
V.M. Mathew v. V.S. Sharma and Ors., AIR (1996) SC 109, Chandra 
Deo Singh v. Prakash Chandra Bose@ C

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