Gauhati High Court
Hanu Baistav vs The State Of Assam on 18 September, 2012
Equivalent citations: 2013 CRI. L. J. 286, (2012) 120 ALLINDCAS 924 (GAU), 2012 (5) AIR BOM R 751, 2012 (120) ALLINDCAS 924, 2012 ALL MR(CRI) 3916, 2013 (80) ALLCRIC 21 SOC, (2013) 3 ALLCRILR 368
Bench: I.A. Ansari, P.K. Musahary
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IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MEGHALAYA
MANIPUR, TRIPURA, MIZORAM AND ARUNACHAL PRADESH)
CRIMINAL APPEAL NO.105 (J) OF 2007
HANU BAISTAV ... APPELLANT
-Versus-
State of Assam ... RESPONDENT
PRESENT
THE HON'BLE MR. JUSTICE I.A. ANSARI.
THE HON'BLE MR. JUSTICE P.K. MUSAHARY
For the appellant : Mr. D. Chakraborty,
Amicus Curiae.
For the Respondents : Mr. K.A. Mazumdar,
Addl. Public Prosecutor,
Assam.
Date of hearing and
Judgment & Order : 14.09.2012 & 18.09.2012
JUDGMENT AND ORDER
(ORAL)
( ANSARI, J.) This is an appeal against the judgment and order, dated 26.3.2007, passed, in Sessions Case No.154/2005, by the learned Sessions Judge, Dibrugarh, convicting the accused-appellant, Hanu Baistav, under Section 302 IPC and sentencing him to suffer imprisonment for life and to pay fine of Rs.1,000/- and, in default of payment of fine, to suffer imprisonment for a period of one month.
2. The case of the prosecution, as unfolded at the trial, may, in brief, be described thus: The deceased, Ghutra Murari, was the husband of Asha Baistav, P.W.7. The accused did not have any cordial relationship with his 2 brother-in-law Hanu Baistav. On 25.3.2005, Ghutra, along with his wife Asha, went to the house of his in-laws on being invited. He took meal and liquor there with his in-laws. Thereafter, there was quarrel between him and his in-laws. The in-laws inflicted dao blows causing Ghutra's death. Thereafter, they dragged the dead body by the side of a pond near their house. On being informed by Asha that her husband has been killed by father and brothers including the accused appellant, P.W.3 Anan Murari went to the side where the dead body was lying by the side of the pond. Having been informed by the wife of the deceased, P.W.3 went to Moran Police Station on 26.3.2005 stating that on 25.3.2005 at night, Hanu Baistav, Manu Baistav and Chutu Baistav had killed Ghutra by giving him blow with dao and threw the dead body by the side of the pond. On the basis of the said F.I.R., Moran PS Case No. 31/2005 under Section 302/34 IPC was registered against the said 3 accused persons.
3. During investigation, the police visited the place of occurrence and made inquest over the said dead body, got the postmortem examinations and on the basis of the statements, Ext.6, which the accused appellant Hanu Baistav had allegedly made, the dao, weapon of assault was recovered from the house of Kalyan Machua (PW 10) at the instance of the accused. On completion of investigation, the police registered the case, under Section 302/34 IPC against all the 3 accused persons aforementioned.
4. At the trial, when the charge under Section 302 IPC was explained and read over, all the 3 accused aforementioned pleaded not guilty thereto.
5. In support of their case, the prosecution examined altogether 12 witnesses. The statements of all the 3 accused persons were recorded under Section 313 CrPC. In their examinations, all the 3 accused denied that they 3 had committed the offence, which were alleged to have committed by them. The case of defence is being that of denial. The present appellant, however, in the statement recorded under Section 313 CrPC stated that the villagers had apprehended him and assaulted him and on being assaulted, he brought the dao from the house of another person and handed over the same to the police. There was no evidence adduced by the defence.
6. Having however, found the present appellant guilty of the offence, which he has been charged with, the learned trial Court convicted him accordingly and passed sentence against him, as mentioned above. Being aggrieved by his conviction and sentence passed against him, the convicted person has preferred this appeal.
7. We have heard Mr. B. Chakraborty, learned Amicus Curiae, and Mr. K.A. Mazumdar, learned Addl. Public Prosecutor, Assam.
8. Before entering into the discussion of various incriminating pieces of evidence, which the learned trial Court have, in order to found conviction of the accused-appellant, relied upon, we may refer to the evidence of the doctor (PW11), who had, admittedly, performed post mortem examination on the dead body of Ghutra Murari and found, according to the evidence of the doctor, as follows:
"1. One incised wound measuring 13x3 cm x brain deep present on left side of the neck.
2. One incised wound measuring 6x2 cm x brain deep present on left temporal area, cutting the left ear.
3. One incised wound measuring 21x3 cm x brain deep present on left cheek, let occipital area and cutting the left ear.
4. One incised wound measuring 6x1 cm on the left side of the cheek cutting the remiss of mandible on left side."4
9. The nature of injuries, sustained by the said deceased, and the cause of death were not disputed at the trial.
10. Bearing in mind the fact that Ghutra Murari had died by having suffered shock and hemorrhage following as many as four incised wounds, when we turn to the evidence of PW1, a co-villager of the deceased, we find that according to his evidence, it was PW3 (Anani Murari), brother of the said deceased, who had reported to him that his brother had been killed, whereupon PW1 went and saw the dead body of Ghutra Murari lying by the side of a pond located near the house of the accused and, in terms of the information received from PW1, PW3 wrote an Ejahar, which was lodged by PW1.
11. Considering the fact that PW1, writer of the Ejahar, which has been treated as the First Information Report, did not have any personal knowledge as to who had really killed Ghutra and since he derived information from PW1 that the three accused, who faced trial, were the ones, who had killed Ghutra Murari, we turn to the evidence of PW3 and we note that PW3, too, was not an eye witness to the occurrence of assault on his brother Ghutra; rather, his evidence is that it was Asha (PW7), widow of the said deceased, who had informed him (PW3) that Ghutra had been killed by her father and brothers, whereupon he (PW3) saw the dead body of Ghutra lying by the side of the pond aforementioned.
12. Thus, PW3 was also not, as indicated above, an eye witness to the alleged occurrence of assault on the said deceased and he had no personal knowledge as to who had really caused, on the person of Ghutra, the injuries, which were found by the doctor (PW11), and became the cause of 5 his death and it is PW7, who is claimed to have reported the occurrence of assault, on her husband, to PW3.
13. The above discussion of the evidence on record, therefore, brings us to the evidence of PW7 and we notice that according to her evidence, she cannot say as to who had really killed her husband, Ghutra Murari. She has further deposed that on the day of occurrence, she was in her house and the incident took place near the pond, which is at a distance of about 300 meters from her house, and, at night, her husband did not return home, and, on the following day, in the morning, she heard that her husband was lying dead.
14. On the evidence, so given by PW7, as indicated above, prosecution declared PW7 hostile and cross-examined her. In her cross-examination by the prosecution, PW7 denied that she had stated before police that she and her husband were invited for dinner at the house of her father, they accordingly went to her parental house together, where her father and also her brothers, including the present appellant, consumed liquor and, having consumed liquor, her father and brothers initiated quarrel with her husband and, during the quarrel, they went out of the house and at the verandah of the house, her elder brother started giving blows with a dao on her husband and while her husband was being so assaulted, her other brothers held her husband so that her husband could not escape and though she tried to rescue her husband, her father and brothers did not let her intervene and, in consequence of assault on him, her husband received injuries, he fell down and when he fell down, he was dragged by the accused to the pond near their house and, then, the accused fled away and that she reported the occurrence to Anani Murari, brother of the deceased.
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15. There is, admittedly, no witness, other than PW7, who had claimed, during investigation by police, that he or she had seen the occurrence of assault on Ghutra Murari. When PW2 resiled from her previous statement, whether her previous statement could have become the basis of conviction of the accused-appellant? This is an extremely important question.
16. We are surprised to find that though there was no evidence given by any eye witness and no circumstantial evidence, so complete in chain, which could make a Court of law hold the accused-appellant guilty of the offence, which he stood charged with, the learned trial Court relied upon the previous statement, which PW7 had allegedly made to the investigating officer during the course of investigation. The learned trial Court, for this purpose, referred to, and relied upon, Laghu Majhi @ Bharat Vs. State of Assam, reported in 2004(Supp) GLT 335, State of U.P. Vs. Ramesh Prasad Misra and another, reported in (1996) 3 SCC 360, and Koli Lakhmanbhai Chanabhai Vs. State of Gujarat, reported in (1999) 8 SCC 624, to take the view that the evidence, given by a hostile witness, is not washed off the record and cannot be thrown away lock, stock and barrel; rather, the evidence of a hostile witness can be relied upon to the extent the hostile witness's evidence supports the prosecution or favors the defence.
17. We find that the learned trial Court has completely misread the decisions, which have been referred to and relied upon.
18. Section 161 Cr.PC empowers an investigating officer to examine orally any person supposed to be acquainted with the facts and circumstances of a given case. Section 162 Cr.PC imposes a bar on the use of the statement, which a person, acquainted with the facts and circumstances of a case, makes before the police during investigation by laying down that 7 no statement made by any person to a police officer, in the course of' an investigation, shall, if reduced to writing, be signed by the person making it, nor shall any such statement or any record thereof, whether in a police diary or otherwise, or any part of such statement or record, be used for any purpose, at any inquiry or trial in respect of any offence under investigation at the time, when such statement was made.
19. However, this limitation is subject to a proviso that when any witness is called for the prosecution, any part of his statement, if duly proved, may be used by the accused and, with the permission of the Court, by the prosecution to contradict such witness in the manner as provided by Section 145 of the Evidence Act.
20. Thus, the prosecution cannot cross-examine its own witness except with the leave of the Court. If a witness either admits a statement, which the prosecution claims to have been made by the witness during investigation or if an investigating officer proves the statement, which the prosecution claims to have been made by the witness during investigation, such a statement is not substantive evidence and cannot become the basis for conviction of an accused person unless and until the witness, on oath, admits at the trial that what he or she had stated, during investigation, to the police, were true. Otherwise, the statement, made during investigation, can be used only for the purpose of contradiction. If statement of a witness is recorded, under Section 164 Cr.PC, by a Magistrate, such a statement can be used not only for contradiction, but also for corroboration provided that there is, otherwise, substantive evidence on record. Resultantly, therefore, even a statement, recorded, under Section 164 Cr.PC, of a witness, cannot be treated as substantive evidence. Reference, in this regard, may be made to 8 Bisheswar Baori @ Khetrapal, reported in 2002 (2) GLT 395, wherein a Division Bench of this Court (to which one of us, Ansari, J was a party), dealing with the subject, laid down, at para 37, as follows:
" 37. What, thus, crystallises from the above discussion is that in their previous statements PWs 2,4,5 and 6 described the occurrence of assault on Binty at the hands of the appellant as eyewitness. However, all these witnesses resiled from their previous statements and asserted in the court to the effect that they had not witnessed the occurrence, but that they had only seen Binti lying hacked. Though, as indicated hereinabove, what they had stated before the Magistrate might have been true, yet in the absence of any admission on their part that what they had stated before the magistrate was true and, at the same time, in the absence of any admission on their part, at the trial, that they had witnessed the appellant giving blows on his wife, binty, it becomes clear that there was no substantive evidence on record before the learned trial Court to show that these four witnesses were eyewitnesses to the occurrence. In the absence of such substantive evidence, question of using their previous statements recorded under section 164 Cr. P. C. as sole basis of conviction was wholly illegal. The course so adopted by the learned trial Court is completely against the provisions of law and consistent judicial pronouncements. "
21. A statement, made under Section 161 Cr.P.C., is not substantive evidence and the same can be used only for the limited purpose of contradicting the maker thereof in the manner as laid down in the proviso to Section 162 (1) CrPC. This position of law can be safely gathered from the decision in Rajendra Singh -vs- State of U.P. and another, reported in (2007) 7 SCC 378, wherein the Supreme Court, at Para 7, has dealt with this aspect of law. Para 7 is, therefore, reproduced herein below:
"7. The High Court has basically relied upon the statements of six witnesses, which had been recorded by the investigating officer under Section 161 CrPC, to record a positive finding that the respondent could not have been present at the scene of commission of the crime 9 as he was present in a meeting of Nagar Nigam at Allahabad. A statement, under Section 161 CrPC is not a substantive piece of evidence. In view of the proviso to sub-section (1) of Section 162 CrPC, the statement can be used only for the limited purpose of contradicting the maker thereof in the manner laid down in the said proviso. Therefore, the High Court committed a manifest error of law in relying upon wholly inadmissible evidence in recording a finding that Kapil Dev Singh could not have been present at the scene of commission of the crime. (Emphasis added)
22. In a recent case of Pebam Ningol Mikoi Devi -vs- State of Manipur and ors., reported in 2011 (1) GLT (SC) 38, the Supreme Court has referred to, and relied upon, at Para 23, on the above statement of law, made in Rajendra Singh (supra).
23. It is time to note that the witnesses are, ordinarily, categorized into three distinct categories. There may be a witness, whom the Court finds wholly reliable. Similarly, there may be a witness, whom the Court considers wholly unreliable. When a witness is wholly reliable, there is no difficulty in placing implicit reliance on his evidence. If the witness is wholly unreliable, there is no difficulty in rejecting his evidence as unsafe. The third category is of those witnesses, who are neither wholly reliable nor wholly unreliable. Witnesses of this category require corroboration of their evidence, in material particulars, by independent evidence, direct or circumstantial. The difficulty, however, is that it is rare to get a wholly reliable witness. Generally, the witnesses are either wholly unreliable or those, who are neither wholly reliable nor wholly unreliable. A hostile witness, ordinarily, falls in the category of those witnesses, who are neither wholly reliable nor wholly unreliable.
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24. What may, now, be noted is that the term, 'hostile witness', is a term of English law. At common law, if a witness exhibited manifest antipathy, by his demeanour, answers and attitude, to the cause of the party calling him, the party was not, as a general rule, permitted to contradict him with his previous inconsistent statement nor was the party allowed to impeach his witness' credit worthiness by general evidence of bad character. This rule had its foundation on the theory that by calling the witness, a party represents him to the Court as worthy of credit and if he, afterwards, attacks his general character for veracity, this is not only mala fide towards the Court, but, it would enable the party to destroy the witness if he spoke against him.
25. The above principle of common law gage rise to a considerable conflict of opinion as to whether it was competent for a party to show that his own witness had made statements out of court inconsistent with the evidence given by him in court. The weight of the ancient authority was in the negative.
26. Though, in English law, the generally accepted view was that to allow a party to contradict its own witness would lend to multiplicity of issues. This theory was resisted by minority view on the ground that the party should be permitted to discard or contradict his own witness, which turns unfavourable to the party calling him. The rigidity of the rule prohibiting a party from discarding or contradicting his own witness was sought to be relaxed by evolving, in English law, the terms, such as, hostile witness or unfavourable witness.
27. The makers of Indian Evidence Act, 1872, avoided using the term, such as, hostile witness. The Evidence Act merely provided, by enacting 11 Section 154, that a Court may, in its discretion, permit a person, who calls a witness, to put any question to him, which might be put, in cross- examination, by the adverse party. Sub-Section (2) of Section 154 further provides that nothing shall disentitle a person, who is so permitted, to rely on any part of the evidence of such a witness. Thus, a discretion has been vested in the Court to permit a person to put such a question, which may be put by an adverse party if the Court deems it appropriate.
28. The Calcutta High Court took the view, while interpreting Section 154 of the Indian Evidence Act, 1872, in Luchiram Motilal v. Radhe Charan, reported in (1921) 34 CLJ 107, E. v. Satyendra Kumar Dutt. (AIR 1923 Cal
463), Surendra v. Ranee Dassi (AIR 47 Cal 1043), Khijiruddin v. E. (AIR 1926 Cal 139) and Panchanan v. R. (AIR 57 Cal 1266), that when a party, who calls a witness, cross-examines the witness with the leave of the Court, the evidence of such a witness must be excluded altogether. This view, proceeded on the doctrine enunciated by Campbell, CJ., in an English case, namely, Faulkner v. Brine, reported in (1858) 1 F&F 254. Dealing with this aspect, the Supreme Court, in Sat Paul v. Delhi Admn., reported in (1976) 1 SCC 727, observed, at Para 41, as under:
"41. Unmindful of this substantial difference between the English law and the Indian law, on the subject, the Calcutta High Court in some of its earlier decisions, interpreted and applied Section 154 with reference to the meaning of the term "adverse" in the English statute as construed in some English decisions, and enunciated the proposition that where a party calling a witness requests the court to declare him "hostile", and with the leave of the court, cross-examines the witness, the latter's evidence should be excluded altogether in criminal cases. This view proceeds on the doctrine enunciated by Campbell, C.J. in the English case, Faulkner v. Brine that the object of cross-examination of his own witness by a party is to discredit the witness in toto and to get rid of his testimony altogether."12
29. The Supreme Court pointed out, in Sat Pal (supra), that the fallacy underlining the above view, taken by the Calcutta High Court, stemmed from the assumption that the only purpose of cross-examination of a witness is to discredit him; it, thus, ignored the hard truth that another equally important object of cross-examination is to elicit admissions of facts which would help build the case of the cross-examiner. The relevant observations, appearing, in this regard, at paragraph 42, in Sat Pal (supra), read as under:
"42. The fallacy underlying this view stems from the assumption that the only purpose of cross-examination of a witness is to discredit him; it ignores the hard truth that another equally important object of cross-examination is to elicit admissions of facts which would help build the case of the cross- examiner. When a party with the leave of the court, confronts his witness with his previous inconsistent statement, he does so in the hope that the witness might revert to what he had stated previously. If the departure from the prior statement is not deliberate but is due to faulty memory or a like cause, there is every possibility of the witness veering round to his former statement. Thus, showing faultness of the memory in the case of such a witness would be another object of cross-examining and contradicting him by a party calling the witness. In short, the rule prohibiting a party to put questions in the manner of cross-examination or in a leading form to his own witness is relaxed not because the witness has already forfeited all right to credit but because from his antipathetic altitude or otherwise, the court feels that for doing justice, his evidence will be more fully given, the truth more effectively extricated and his credit more adequately tested by questions put in a more pointed, penetrating and searching way."
30. Later on, however, a Full Bench of Calcutta High Court, in Praphulla Kumar Sarkar v. Emperor (AIR 1931 Cal 401), overruled the law, laid down in its earlier cases, on the value of evidence of a hostile witness. This aspect has been noted and pointed out by the Supreme Court, in Sat Pal (supra), at Para 46 and 49, as follows:
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"46. After answering in the negative, the three questions viz. whether the evidence of a witness treated as "hostile" must be rejected in whole or in part, whether it must be rejected so far it is in favour of the party calling the witness, whether it must be rejected so far as it is in favour of the opposite party, the learned Chief Justice proceeded:
"... the whole of the evidence so far as it effects both parties favourably or unfavourably must go to the jury for what it is worth.
* * * If the previous statement is the deposition before the committing Magistrate and if it is put in under Section 288 of the Criminal Procedure Code, so as to become evidence for all purposes, the jury may in effect be directed to choose between the two statements because both statements are evidence of the facts stated therein. But in other cases the jury may not be so directed, because prima facie the previous statement of the witness is not evidence at all against the accused of the truth of the fact stated therein. The proper direction to the jury is that before relying on the evidence given by the witness at the trial the jury should take into consideration the fact that he made the previous statement, but they must not treat the previous statement as being any evidence at all against the prisoner of the facts therein alleged.
* * * In a criminal case, however, the previous unsworn statement of a witness for the prosecution is not evidence against the accused of the truth of the facts stated therein save in very special circumstances, e.g., as corroboration under Section 157 of his testimony in the witness-box on the conditions therein laid down. If the case be put of the previous statement having been made in the presence and hearing of the accused, this fact might under Section 8 alter the position; but the true view even then is not that the statement is evidence of the truth of what it contains, but that if the jury think that the conduct, silence or answer of the prisoner at the time amounted to an acceptance of the statement or some part of it, the jury may consider that acceptance as an admission King v. Norton, Percy William v. Adams). But apart from such special cases, which attract special principles, the 14 unsworn statement, so far as the maker in his evidence does not confirm and repeat it, cannot be used at all against the accused as proof of the truth of what it asserts."
49. In the case of an unfavourable witness, even in England the better opinion is that where a party contradicts his own witness on one part of his evidence, he does not thereby throw over all the witness's evidence, though its value may be impaired in the eyes of the court. (Halsbury, 3rd Edn., Vol. 15, para 805.)"
(Emphasis added)
31. From a conspectus of law discussed on the subject, the Supreme Court concluded, at Para 52, in Sat Paul (supra), as follows:
"52. From the above conspectus, it emerges clear that even in a criminal prosecution, when a witness is cross-examined and contradicted, with the leave of the court, by the party calling him, his evidence cannot, as a matter of law, be treated as washed off the record altogether. It is for the Judge of fact to consider, in each case, whether, as a result of such cross-examination and contradiction, the witness stands thoroughly discredited or can still be believed in regard to a part of his testimony. If the Judge finds that in the process, the credit of the witness has not been completely shaken, he may, after reading and considering the evidence of the witness, as a whole, with due caution and care, accept, in the light of the other evidence on the record, that part of his testimony, which he finds to be creditworthy and act upon it. If in a given case, the whole of the testimony of the witness is impugned and, in the process, the witness stands squarely and totally discredited, the Judge should, as a matter of prudence, discard his evidence in toto."
(Emphasis added)
32. What follows from the above discussion is that a hostile witness's evidence is not completely washed off the record and his evidence cannot, therefore, be thrown away lock, stock and barrel. If, as a result of cross- examination by prosecution, prosecution's witness admits the statement, 15 which he had made before the police and also admits that the said statement was true, then, such a statement is evidence of not only of the statement having been made, but also evidence of the fact that what had been stated, in the past, was, according to the witness, true; or else, the previous statement of the witness can only be used for contradiction. The principle, that a hostile witness's evidence cannot be thrown away lock, stock and barrel, does not mean that the Court will rely on his previous statement to found conviction of the accused, no matter whether the witness admits to have made the previous statement, which was contended to have been made by him and no matter whether the witness admits that his previous statement is true. Even if the previous statement of the witness is proved by the Investigating Officer as statement made by the witness, this previous statement can be used, under the proviso to Section 162(1) CrPC, only for the purpose of contradicting the witness. Notwithstanding such contradiction, if there is any evidence, which such a hostile witness gives in the court, at the trial, such evidence would not be washed off the record and can be used to the extent his evidence favours the prosecution or supports the defence's case. There has to be, therefore, substantive evidence on record in order to enable a Court to use previous statement. The statement of a witness, made during investigation, to a police officer, is not substantive evidence and no conviction can be based on previous statement made by a prosecution's witness to a police officer during investigation.
33. The decisions, in Laghu Majhi @ Barat vs. State of Assam, reported in 2004 (Suppl) GLT 335, State of UP v. Ramesh Prasad Misra and Another, reported in (1996) SCC 360, and Koli Lakhmanbhai Chanabhai v. State of Gujarat, reported in (1999) 8 SCC 624, which the learned trial Court 16 has relied upon, which lay down that a hostile witness's evidence is not washed off the record or cannot be thrown away lock, stock and barrel merely because he was allowed to be cross-examined by prosecution and that his evidence can be made use of to the extent that the same supports either the prosecution or the defence has to be understood in its correct perspective, the correct perspective being that a hostile witness's evidence can be used to the extent that it support the case of the prosecution or the defence; but his previous statement, recorded under Section 161 Cr.P.C., cannot be treated as substantive evidence even if such a statement is proved by the investigating officer to have been made so long as the witness, who is cross-examined, admits two things, namely, (i) that the statement, in question, was made by him and (ii) that the statement, which he had made, was true.
34. In the case at hand, PW7 denied that she had made the previous statement, which was alleged to have been made by her. Even when the investigating officer proved the statement, in question, it remained as the previous statement of PW7 and the said statement, in the absence of any admission by PW7 that the said statement was true, could not have been treated and ought not to have been treated as substantive evidence. The said previous statement, in question, could have been used only for contradiction and not for corroboration of the evidence given by PW7.
35. In the peculiar circumstances of the present case, when PW7 was the sole eye witness and she had resiled from her previous statement and there was no such evidence, sufficient to hold the accused-appellant-responsible for having killed his brother-in-law, Ghutra Murari, prosecution had really no substantive evidence on record to seek conviction of the accused- 17 appellant. We have noted with great anxiety that the learned trial Court freely relied on the previous statement, which PW7 had allegedly made to the investigating officer, for the purpose of basing conviction of the accused-appellant on the charge of murder. This was a wholly incorrect approach and cannot be approved.
36. In the case at hand, there is no difficulty in concluding, as agreed to by the prosecution too, that without the previous statement of PW7 being treated as substantive evidence, there was really no evidence to prove that the present appellant had killed his brother-in-law, Ghutra Murari.
37. Because of what have been discussed and pointed out above, when we keep the previous statement of PW7, made to the police, during investigation, excluded, as not being substantive evidence, there is no substantive evidence to convict the accused-appellant.
38. Situated thus, it becomes clear, and we do conclude, that the evidence on record was wholly deficient in holding the accused-appellant guilty of the charge of murder. His conviction and the sentence, passed by the judgment and order under appeal are, therefore, set aside. The accused- appellant is held not guilty of the charge of murder and is acquitted of the same.
39. Let the accused-appellant be set at liberty, forthwith, unless he is required to be detained in connection with any other case.
40. The learned Amicus Curiae be paid a sum of Rs. 5,000/- for his valuable assistance rendered to this Court.
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41. Send back the LCR with a copy of this judgment and order.
JUDGE JUDGE
dutt/rk
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