Telangana High Court
The State Of A.P. Rep., By Its Pp vs Gurle Istari 7 Others on 25 August, 2022
Author: Shameem Akther
Bench: Shameem Akther
THE HON'BLE Dr. JUSTICE SHAMEEM AKTHER
AND
THE HON'BLE SRI JUSTICE E.V.VENUGOPAL
CRIMINAL APPEAL No.584 OF 2013
JUDGMENT:(Per Hon'ble Dr.SA,J) This Criminal Appeal, under Section 374(2) of the Code of Criminal Procedure, 1973 (for short, 'Cr.P.C'), is filed by the appellant/State, aggrieved by the judgment, dated 07.12.2010, passed in Sessions Case No.591 of 2009 by the learned III Additional Sessions Judge (FTC), Asifabad, in acquitting the respondents/A.1 to A.4, A.6 to A.8 for the offences punishable under Sections 147, 148, 427, 302, 307, 324 r/w 149 IPC.
2. Heard Sri C.Pratap Reddy, learned Public Prosecutor for the appellant/State, Sri T. Balajayasri, learned legal aid counsel for the respondents/A.1 to A.8 and perused the record.
3. A perusal of the impugned judgment dated 07.12.2010 passed by the Court below reveals that statements of PWs.1 to 3 were recorded by Judicial Magistrate of First Class, Asifabad and those statements were taken as substantial piece of evidence by the Court below and discussed in Paras 17, 18 and 19 of the impugned judgment.
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4. Here, it is apt to refer the decision in Ram Kishan Singh v. Harmit Kaur and others1, wherein the Hon'ble Apex Court held as follows:
"A statement under Section 164 of the CrPC is not substantive evidence. It can be used to corroborate the statement of a witness. It can be used to contradict a witness. The first information report was considered by the Sessions Judge. Any special consideration of the statement of Hazura Singh under Section 164 of the CrPC could not have produced a different result by reason of the conclusions of the Sessions Judge as to rejecting the oral evidence of Nihal Knur, Harmit Kaur and Hazura Singh as unreliable, untruthful and unworth of credence."
In the instant case also the Court below compared the evidence on record with the statements of PWs.1 to 3 recorded under Section 164 Cr.P.C and held that there are variations, contractions and omissions in the evidence of prosecution witnesses. The statements of the witnesses recorded under Section 164 Cr.P.C can only be used to corroborate or contradict the statement of a witness. If there are such omissions and contradictions, they may influence the result of the case. The Court below without putting such questions to the witnesses as well as to the Magistrate who recorded the statements of the witnesses under Section 164 Cr.P.C had considered the recitals 1 AIR 1972 SC 468 3 Dr.SA,J & EVV,J Crl.A.No.584 of 2013 made in 164 Cr.P.C as substantive evidence and arrived at a conclusion, which is not permissible under law. Under these circumstances, an opportunity is required to be given to the respondents/A.1 to A.4 and A.6 to A.8 to further cross-examine PWs.1 to 3 and to examine the Magistrate, who recorded the statements of witnesses under Section 164 Cr.P.C.
5. For the above mentioned reasons, the impugned judgment, dated 07.12.2010, passed in Sessions Case No.591 of 2009 by the learned III Additional Sessions Judge (FTC), Asifabad, is set aside and the subject Sessions Case is restored to the file of the Court below to further cross-examine PWs.1 to 3 and to examine the Magistrate, who recorded the statements of witnesses under Section 164 Cr.P.C. It is needless to say that an opportunity is required to be given to the respondents/A.1 to A.4 and A.6 to A.8 to further cross-examine PWs.1 to 3 and examine the Magistrate, who recorded the statements of witnesses under Section 164 Cr.P.C. Thereafter, the Court below shall hear both parties and determine the charges framed against the respondents/ A.1 to A.4 and A.6 to A.8, in accordance with law. The respondents/ A.1 to A.4 and A.6 to A.8 shall appear before the Court below, as and when the subject Sessions Case is taken up for hearing.
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6. With the above directions, this Criminal Appeal is disposed of.
Miscellaneous petitions, if any, pending in this appeal, shall stand closed.
______________________ Dr. SHAMEEM AKTHER, J ______________________ E.V.VENUGOPAL, J Date: 25.08.2022 scs