Holding

The conviction was set aside because the trial was unfair, leading questions were improperly used, and the prosecution failed to prove the appellant’s guilt beyond reasonable doubt.

Summary

Varkey Joseph, the youngest brother of the deceased Mathew, was convicted of murder under Section 302 IPC for killing his brother after a property dispute. The trial court and Kerala High Court upheld the conviction based largely on circumstantial evidence and testimony obtained through leading questions during chief examination. The Supreme Court examined whether the trial was fair, focusing on the improper use of leading questions by the prosecution, the reliability of the circumstantial evidence, and the requirement of proof beyond reasonable doubt under Article 21 of the Constitution. It found that the trial was unfair, the prosecution failed to prove the appellant’s sole participation, and the evidence was tainted by procedural irregularities. Consequently, the Court set aside the conviction, acquitted the appellant, and ordered his release.

Issues considered

Whether the trial court’s reliance on leading questions in chief examination violated the rules of evidence and the appellant’s right to a fair trial.
Whether the circumstantial evidence presented was sufficient to prove the appellant’s guilt beyond reasonable doubt.
Whether the procedural irregularities amounted to a miscarriage of justice warranting reversal of the conviction.

Legislation cited

Constitution of Indias. Article 21
Indian Evidence Act, 1872s. 142, s. 143, s. 145, s. 154, s. 27
Indian Penal Code, 1860s. 302

Subjects

murderconvictionappealleading questionsfair trialcircumstantial evidencearticle 21evidence lawcriminal procedure

Judgment

A VARKEY JOSEPH

v.

STATE OF KERALA, REPRESENTED BY

THE CIRCLE INSPECTOR OF POLICE
B
PUTHENCRUZM,KERALA

APRIL 27, 1993

· [K. RAMASWAMY AND R.M. SAHAI, Jj.J
-
Constitution of India, 1950:
c
Article 134-Appeal-Concurrent findings of trial Court and High
Court-Supreme Court's interference-Whether trial unfair illegal-Prosecwion
case whether proved-Appreciation of evidence by Supreme Court-Leading
q1iestion--What-When to ask-Courr's duty.

D
Penal Code, 1860:
Section 302-Murder-Conviction-Appreciation ofevidence by Supreme
Court in appeal-Leading question- Prosedure-Procec111ion case whether
proved. ,.
Evidence Act, 1872:
0
E Sections 142. 145. 154-Leading question-What-:--When to
ask-Intention-Court's duty.
The prosecution case was that the deceased, a discharged military

F
officer managed to have complete hold of the properties of his father and
excluded his six brothers and four sisters from enjoyment of the p·roperties.
The appellant, the youngest brother of the deceased, resented his conduct.
-
Later on there was reconciliation between the appellant and the deceased. As
the appellant nursing grivance against the deceased for his ohstinance to
exclude him of right ofresidence in their "family property, on 5.8.1988 he came
to their family house and bolting the door inside, killed the deceased inflicting
on the body of the deceased 17 incised injuries and one stab injury.
---
G The appellant was charged under section 302, lPC. Before the trial
Court, the prosecution, rel~·ing on the circumstances, \iamely;to motive of
the accused, (2) preparation, (3) presence of accused in the neighbourhood
and in the locality immediately before the occurrence, (4) presence of the
accused in the house on the date of occurrence, (5) his presence immediately
after th~ occurrence, (6) recoveries pursuant to accused's statement under
H section 27, and (7) injury found on the finger of the accused, claimed to have
390
VARKEY JOSEPH i·. STA TE OF KERALA. 391

· established that the appllant committed the offence of murder. A

The trial Court found the appellant guilty and convicted him under
section 302, IPC and sentenced him to undergo rigorous imprisonment for life
for causing the death of his brother. High Court confirmed the comktion on
appeal. Hence this appeal by special leave.
B
Allowing the appeal, this Court,

HELD: 1.1. Normally when the Trial Court and the High Court
concurrently found that the accused has committed the crime. this Court
would refrain to appreciate the evidence. On going through the judgments of
the Sessions Court and the High Court this Court entertained doubt regard·
c
ing the conclusiveness of the appellants' complicence. Therefore, this Court
directed the appellant to produce the evidence. Accordingly the typed evi·
dence has been pl'aced on record. From the evidence this Court is satisfied that
the Courts below did not subject the evidence to critical analysis on the
touchstone of human conduct and probabilities and OV\\rfo6ked material D
admissions and obvious unfair trial and incurable irregularities leading to
grave prejudice to the appellant and miscarriage of justice. (395-A-B)

1.2. From the evidence it is clear that prosecution brought on record the
circumstantial evidence from obliging witnesses to the police. Appellant was
said to have been seen before or after the occurrence by several tea shop E
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 state·
ment 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
F
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 weapon. (398-E·F)

1.3. The'criminal trial was unfair to the appellant and the procedure G
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
H
392 SUPREME COURT REPORTS [1993) 3 S.C.R.

A without objection by the defence to put leading questions in the chief exami-
nation itself suggesting all the answers which the prosecutor intended fo get
---
from the witnesses to conect the appellant with the crime. (398-G-H)

1.4. Leading question to be one which indicates to the witnesses the real
or supposed fact which the prosecutor (plaintift) expects and desires to have
B
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
C 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
D 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. (399-
E F -H, 400-A)

1.5. Sections 145 and 154 of the Evidence Act are intended to provide for
cases to contradict the previous statement of the witnesses called by the
prosecution. Sections 143 and 154 provide tlie right to cross-examination of
F 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 intends to speak against the accused and the prosecutor shall not be
G 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 wi~ess will utter
nor in any other way suggest to him the answer which it is desired that the
H
witness would give. The counsel must leave the witness to tell unvarnished tale
VARKEY JOSEPHv. STATEOFKERALA, [K. RAMASWAMY,J.) 393

of his own account. (400-B-C) A

1-6. Leading questions were put to the witnesses to elicit on material part
of the prosecution case in the Chief examination itself without treating any of
the witness hostile. It shows the fact that the prosecutor led the witnesses what

--
he intended that they should say the material part of the prosecution case to
B
. 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. (400-D)

1.7. Suspi{ion is not the substitute for proof. There is a long distance
', ',.
between 'may be true' and 'must be true' and the prosecution has to travel all c
the way to prove its case beyond all reasonable doubt. (400-E)

1.8. The prosecution not only not proved its case but palpably produced
false evidence and· the prosecution has miserably failed to prove its case
againstthe appellantletalone beyond all reasonable doubtthatappellantand
he alone committed the offence. (400-F) D

CRIMINAL APPELLATE JURISDICTION Criminal Appeal No. 326 of
1993.

From the Judgment and Order dated 6.2.1992 of the Kerala High Court in E
Crl. A. No. 349of1989.

M.M. Kashyap for the Appellant.

M.T. George for the Respondent.
F

The Judgment of the Court was delivered by

K. RAMASWAMY. J .: Special Leave granted.

The appellant was charged, found guilty and convicted under section 302 G
LP .C. and was sentenced to undergo rigorous imprisonment for life for causing the
death of his brother Mathew on August 5, 1988 at about 8 a.m. in their Ramanattu
house 1n Mazhuvannur in kerala State. It was confirmed on appeal by High Court
of Kerala in Criminal Appeal No. 349 of 1989 dated February 6, 1992. Thus this
appeal by special leave.
H
SUPREME COURT REPORTS (1993] 3 S.C.R.

-
394

A The prosecution case in nutshell is that Ramanattu Varkey had seven sons
and four daughters. During his life time he executed repeated settlemirnt de~ds
settling his extensive properties of60 acres, double storeyed building and factories
which lead to acrimony among his children. In 1976 the deceased Mathew was
charged for patricide but was acquitted . He was a discharged military officer and
managed to have complete hold of the properties and excluded other brothers and
B sisters from enjoyment of the peorperties. The appellant is the youngest and he
resented the conduct of the deceased. The prosecution case itself was that later on
there was reconciliation between the appellant and the deceased as spoken to by
the widow of the deceased (PW. 10) ~done brother (PW. 12). ,According to the
prosecution the accused nursed grievance against the deceased for his obstinance
to exclude him of right to residence in their family Ramanattu' house. Conse-
C
quently he was living at Ernakulam where from his wife hails. T.he prosecution
case was that on the fateful day the appellant came and killed the deceased in the
Ramanattu house, bolting the door from inside.

From the evidence it is apparent that Mathew met with a gruesome murder
D with one stab injury and 17 incised injuries, injury No. 14 was a stab injury and was
inflicted on the chest said to be with MO-IV and other incised injuries with MO-
III chopper on his head, face, shoulder, hands and knees etc. There is little doubt
from the prosecution evidence that the deceased met with homicide and the
offender committed gruesome murder with an intention to kill. But the main
question is whether the appellant alone perpetrated the crime. There is no direct
E evidence in proof of the prosecution case. It relies upon circumstantial evidence
to connect the appellant that he alone had committed the offience. The circum-
stances relied on are: (1) motive of the accused; (2) preparation; (3) His presence
in the neighbourhood and in the locality immediately before the occurrence; (4)
presence of the accused in Ramanattu House on the date of occurrence; (5) his
F presence immediately after the ·occurrence; (6) Recoveries pursuant to his
statement under section 27; (7) Injury found on the finger of the accused. From
these circumstances the prosecution claimed to ha\'e. established that the appellant
had committed the offence of murder.

The evidence of PW. 10, widow PW. 11, one sister PWS. 12 and 16 other
G brothers and the documentary evidence Ext. P6 etc. would show that disputes
among the brothers and sisters regarding the properties did exist, in particular, the
evidence of PWs. 10 and 12 establishes that Mathew excluded his brothers and
sisters, took possession of the entire properties and was enjoying. A perlirninary
decree for partition at the behest of PW. 12 was granted but final decree
proceedings were pending. The deceased kept the Ramanattu House locked. In
H this case the evidence of PWs, I. 2, 4 to 7, 14 and 21 is material to connect the
VARKEY JOSEPH v: STATEOFKERALA, [K. RAMASWAMY,J.] 395

-- appellant with the crime. Normally when the Trial Court and the High Court
concurrently found that the accused had committed the crime, this Court would
refrain to appreciate the evidence. On going through the Judgments of the Sessions
A

Court and the High Court we entertained doubt regarding the conclusiveness of the
appellants' complicence. Therefore, we directed the appellant' counsel to produce
the evidence. Accordingly the typed evidence has been placed on record. From the

..._ evidence we are satisfied ~hat the Courts pelow did not subject the evidence to
critical analysis on the. touchstone of human conduct and probabilities and
overlooked material admissions and obvious unfair trial and incurable irregulari-
B

ties leading to grave prejudice to the appellant and miscarriage of justice.

PW. 1 was examined to prove the motive, the subsequent presence of the c
appellant near about the place of occurrence. PW. 1 admittedly is agnate of the
deceased and the appellant. He was also a co-accused with t11e deceased, and had
worked for him. He also admitted that he was enimically disposed towards the
appellant. During the life time of their father he also worked in their fields. It was
suggested that the deceased stabbed Issac and John, other brothers but he denied
the same: While other witness admitted it. He was examined to prove that he was D
said to ~present in the Coffee House of PW. 4 and he saw the appellant with blood
stained clothes at about 7 or 7.30 a . m. and also saw him later while he was sitting
in the coffee hotel;He claimed that he was sitting there from 7 O'Clock onwards.
He found two or three drops of blood on appellant's Dhoti. It is incredible to
believe his evidence for diverse reasons. He was a co-accused with the deceased.
He was enimically disposed towards the appellant and his presence was not E
spoken by PW. 4, the Coffee House owner and it is unimaginable that he had to
remain in coffee hotel from 7 a.m: to 8 a.m. or 8.30 a.m. just to sip coffee. He also
admitted_that Ranjit, another brother had duplicate key of the house. He admitted
in his cross-examination that no body was present ih the tea stall on· that day when
the accused ~ame there: He aiso actmitted that none had seen the appellant at the
F
junctio1,1. He adinits that between 7.30 to 10 a.m. thebusffiess-at the junction was
very busy. It is not has case that he accosted the. appellant the tea stall. ·He
disclaimed knowledge that Mathew was convicted in a case of attempt to murder
of Issac and John, his other brothers. He also admits that Ranjit used to complain
to him that Mathew was not paying his share of income.from the property. From
this evidence it is clear that Ranjit had a duplicate key of the house and other G
brothers equally had motive against the <;leceased. Mathew attempte~I to kill his
two other brothers and was prnsecuted for the said offence. The appellant'and the
deceased had reconciled and there is no evidence of subsequent hostility. PW. 1
had motive to perjure t.he evidence and he.is a chance witness a~ best. Soil is very
difficult to place absolute reliance on his evidence tha( he sa~ t~e appellant before
and after the occurrence in the hotel. PW, 2.was a labourer. He claimed thatat~t _ H
396 SUPREME COURT REPORTS [1993] 3 S.C.R.

A 8 O'Clock he went to Ramanattu house alongwith other labourers tq work in the
fields of the deceased. Accused was seen at the house with a white Dhoti and he
noticed blood drops on it. He claimed that when the appellant came near him, he
made an extra judicial confession that he had a fight with the deceased and he went
· away without saying anying. He was an accused in a complaint laid by Issac
against him. He admitted that Mathew arranged a lawyer for him and the deceased
B looked after his case. He also admitted that in the absence of Mathew, Ranjit was
entering into the house with a duplicate key. He also admitted that the deceased
attempted to kill Issac and John but he claimed that it was hearsay. He. also
admitted that there were many others in the neighbourhood field of Ramanattu
--
house and that nobody had heard the appellant's making an extra judicial
C confession to him that he had a fight with the deceased. He also admitted that he
did not tell any body that he saw blood stained marks. He also admitted that he did
not tell to the police when he was first questioned and that he did not tell the colour
or the border of the towel. From this evidence it is clear that-Oe is an accused and
the deceased arranged dafence counsel to him in a case filed against him by Issac
and that he is a chance witness. It is incredible to believe that the appellant made
D an extra judicial confession. There is no con;oborative evidence that he worked on
th,at day in the field of the deceased.

PW. 4 is the tea shop owner, one km. away from Ramanattu house towards
south. He was examined to prove that the appellant came to him at about 6. p.m.
in the previous day of occurrence. He kept a small bag with him. The next day
E around 8.30 a.m. he came to his shop and asked for the return of his bag. He
changed his dress and thereafter he had a tea and went away. He admitted even to
the leading questions put by the prosecutor that he did not see anything on the
Dhoti. He did not give any special reason as to why the appellant had to come to
his shop alone on the previous day and kept the bag with him. He did not claim to
F have any close friendship with the appellant. He admitted that the bag was kept in
the open place. He did not speak to the presence of PW. I in his stall. when the
appellant had come irnmediatefy after the occurrence and asked for the bag to
change his dress one would expect that PW. 4 would have seen the blood stained
cloths now said to be of the appellant. He admitted to the leading questions that he
did not find any blood stain on the appellant's white Dhoti. He is obviously
G accommodating witness to the police. Therefore, his evidence is of little assistance
to connectthe appellant. We have the evidence of PW. 5 that at about 8 or 8.30 a.m.
he went to the shop of PW.4 for tea and bread toast. He claimed that he reached
there at 7.30 a.m. and remained in the tea shop till 8.30 a.m. His presence too was
not spoken to by PW. 4. He admits in the cross-examination that his house is 112
k. m. to PW. 4' s tea shop. In between thereis anothertea shop belonging to Ithupery
H and to the north of his house there is yet another tea shop and he is a labourer. He
VARKEY JOSEPH v. STA TE OF KERALA, [K. RAMASWAMY,J.I 397

claims that due to rush he remained there but none had spoken about the rush in A
the tea stall let alone PW 4. He also admitted t.ftat Ranjit was visiting Ramanattu
house. It was also admitted that Ranjit was assisting the prosecution and he was
instructing him to give evidence. From this evidence it is clear that he was a
.brought up witness and has no regard for truth. When there are two tea shops
nearby his house it is incredible-to believe that he went to the shop "6t PW. 4 at II~··
km only to see that the appellant had come between 8 and 8.30 a.m. with a white B
Dhoti and blood stained drop. He also spoke that the appellant had thereafter
changed the dress and he wore pant and shirt. His wearing pant and shirt was not
even spoken by_ PW. 4. Therefore, he is a false witness brought up to corroborate
the evidence of PW' s. 1 & 4. Then we have the evidence of PW 6. He is another

-- tea stall owner a~a distance of 1-1/4 k.m. from the place of occurrence. He claims
that he had seen the appellant around 5-5 .30 a.m. in his shop. He admitted that there
are other tea stiops nearby and there was no special reasons for the appellant to
come to his shop. He admitted that he cannot say how many other persons came
c

to his tea shop on that day. He also admitted that no body from Ramanattu house
took tea in his shop, either before or thereafter none from the village had taken tea
from that shop. He also admitted that near Ramanattu house there are other tea D
shops. Police had examined him after two or three days after the death. It is,
therefore clear that he is an obliging witness to ~he police.

PW. 7 claims to be an auto-rickshaw driver. He was examined to prove that
the deceased allighted at Ramanattu house from a bus by name Raja and he
travelled in the bus and alighted at junction to take the auto-rickshaw which he was E
driving and thereafter the appellant had travelled in his auto-rickshaw at 8.45 a.m.
and paid him Rs. I 0 as fare. He admitted that he is a labourer and had no licence •
to drive auto. He claime~ that he had driven auto for three years and said that he
had taken auto on hire from several people but he did not remember even the
number o(any one of the auto which he claimed to have-Uriven nor the owner's
F
name of even one of the vehicles. He did not claim any prior acquaintance with
either the deceased or the appellant. He also did not know even the fare he was
. collecting per k.m. He admitted that he did notknow the changes in the rates of the
auto-rickshaw. It was suggested that he was giving false evidence at the instance
of the police. The suggestion appears to be well j?stified. This witness was
examined to connect that the deceased came to Ramanattu house on that day and G
the appellant left the scene around 8.45 a.m. This is nothing but false evidence as
he had no prior acquaintance with either the appellant or the deceased and it is
anybody's guess as to how it was possible for him toremember them on that day.
There is no evidence that he also travelled by that bus and why? Thus this evidence
is not only false but incredible.to believe. PW. 14 is another owner of tea shop at
Valakam. He claimed that the appellant had placed a coffee coloured bag with him H
398 SUPREME COURT REPORTS (1993] 3 S.C.R.

A promising that he would collect it·on the next day. About 10 or 20 days thereafter
he came to the shop and collected it. He admitted that the police came and placed
the bag in his shop before making panchnama and thereafter they came with the
accused and Panch witness; prepared the Mahazar and recovered blood stained
clothes. This was elicited the chief examination itself to the leading question put.
to him. He was neither treated hostile nor was cross-examined by the prosecution.
B He admitted that the appellant did not pay any money for the tea he had taken. The
bag said to have contained white Dhoti, coloured towel with blood stain. He did
-.
not say that the accused kept those clothes in the bag. He admitted that he had seen
the clothes in the bag when the Mahazar was prepared and before that he did not
open the bag. He also admitted that he did not tell the police about the identity and
C contents of the bag. PW. 21 is the doctor who had examined the appellant to
establish that the appellant was found healed wound in the medial left finger. The
Mahazar sent to him contained a statment that injury was sustained while causing
the injuries to appellant's brother ori August 5, .1988 at 8 a.m. It is, therefore,
-
obvious that the police prepared the Mahazarand se~t him to be examined by PW.
21. He admitted that he cannot say the age of the wound.
D
From the above evidence it is clear that pros~cution brought on record the
circumstantial evidence from obliging witnesses to the police. Appellant was said
to have 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 Stal.I owners.
labourers were examined that they had seen the appellant with blood stained
E clothes and same were recovered pursuant to the statement under s. 27 of Evidence
Act. It is preposterous to place absolute reliance on such suspectevidence. 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 eihther before or after committing the offence. It is highly
F unbelievable that he had used two types of weapons one stabbing and another
cutting weapon.

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 triai is obviously
. illegal and unconstitutional. The Sessions Court in fairness recorded the evidence
G in the form of questions put by the prosecutor and defence counsel and answers
given by each witness. As seen the material partofthtprosecution case to connect
the apellant 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
H the evidence of PW. I. "Then I saw Jose (appellant) coming from the north and
VARKEY JOSEPH v. STATE OF KERALA, [K. RAMASWAMY,J.J 399

going towards south". Did you notice his dress then? Yes. He had worn a white A
dhoti .............. Did you notice his dhoti? Yes. I had seen two orthree drops ofblood
on his dhoti. Suddenly I had a doubt". Similarly PW. 4 also at that time "Did any
one from Ramanattu house came for tea? Yes. Jose came. When did Jose came to
have tea? I do not remember.. ........... Did Jose came on the previous day. Yes came
ahout 6 p.m. in the evening. Did he say anything? He brought a bag and said let
it be here I shall take this bag after some time ..... What was the dress of the accused B
when he came to the shop? He was wearing white dhoti and tied a cloth on his hand.
Have you noticed anyting particular on the dhoti? No". Similar leading questions
were put to other witnesses also to elicit on material part of the prosecution case
in the Chief examination itself without treating any of the witness hostile. Section
14 I of the Indian Evidence Act, 1872 defined leading question to mean "any
c
question suggesting the answer which the person putting it wishes or expects to
receive, is called a leading question. Section 142 Leading questions must not, if
ohjected to by the adverse party, be asked in an e)tamination-in-Chief or_in a re-
examination, except with the permission of the Court. The Court sball permit
leading questions as to matters which are introductory or und\~puted, or which
have, in its opinion, been already sufficiently proved. Section F43 envisages that D
Leading questions may be asked in cross-examination. Section 145 gives power
tl) put to the witnesses in the cross-examination as to previous statement made by
him in writing or reduced into writing, and relevant to matters in question, without
such writing being shown to him, or being proved; but if it is intended to contradict
him by the writing, his attention must, before the writing can be proved, be called
to those parts of which are to be used for the purpose of contradicting him. E

Leading question to be one which indicates to the witnesses the real or
supposed fact which the prosecutor (plaintiff) expects and desires to have
rnnfirmed by the answer. Leading question may be used to prepare him to give the
answer to the questions about to be put to him for the purpose of identification or F
to lead him to the main evidence or fact in dispute. The attention of the witness
cannot be directed in Ch.ief 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 G
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 ~s
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 H
400 SUPREME COURT REPORTS [1993] 3 S.C.R.

A 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.
Sections 145 and 154 of the Evidence Act is intended to provide for cases to
contradict the previous statemen~ 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
B 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 witness intends to speak against the accused anathe
prosecutor shall not be allowed to frame questions in such a manner to which the
C witness by answer 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
D account. Sample leading questions extracted hereinbefore clearly show the fact
tilat the prosecutor led the ~itnesses what he intended that they should say the
material part of the prosecution case to prove against the appellant which is illegal
ang obviously unfair to the appellant offending his right to fair trial enshrined
under Art. 21 of the .constitution. It is not a curable irregularity.

E Suspicion is not the substitute for proof. There is a long distance between
'may be true' and 'must be true' and the prosecution has to travel all the way to
prove its case beyond all reasonable doubt. We have already seen that the
propsecution not only has not proved its case but palpably produced false evidence
and the prosecution has miserably failed to prove its case against the appellant let
F alone beyoud all reasonable doubt that the appellant and he alone committed the
offence. We had already allowed the appejtl and acquitted him by our order dated
April 12, 1993 and set the appellant at liberty which we have little doubt that it was
carried out by date. The appeal is allowed and the appellant stands acquitted of the
offence under section 302 I.P.C.

V.P.R. Appeal allowed.