Gauhati High Court
Abdul Kalam vs State Of Tripura on 5 September, 2001
JUDGMENT B.B. Deb, J.
1. Heard Mr. D.C. Roy, learned counsel for the appellant. Also heard Mr. D. Sarkar, learned Public Prosecutor along with Mr. B.R. Das Roy for the respondent.
2. Against the judgment of conviction under Section 304 Part-II IPC and sentence of RI for 7 years and a fine of Rs. 500, in default, further R.I. for 3 months passed by the learned Addl. Sessions Judge, Kailashahar, North Tripura on 22.8.1996 in S.T. No. 26(NT/K)/92, the convict-appellant preferred this criminal appeal.
3. The prosecution case leading to conviction of the appellant could be precisely depicted as under:-
One Sri Molla Mia lodged the FIR with Kailashahar PS bearing No. 39/ 11/88 alleging, inter alia, that on 28.11.1988 at about 11 AM while his son Abdul Salem was grazing buffaloes near Irani bazar, someone caused serious gun-shot injury on the right chest of his son with intent to kill him. the injured was promptly shifted to Kailashahar hospital in unconscious condition, the Police having registered the case under Section 326/307 IPC started investigation. After about 13 days, the injured expired in Kailashahar hospital (11-12-1988). On completion of investigation, Police filed chargesheet against the sole accused-appellant under Section 326/302 IPC read with Section 27 of the Arms Act. The case being exclusively triable by the Sessions Judge, the learned CJM committed the same and eventually the learned Addl. Sessions Judge received the case for trial on transfer. The accused was charged, faced trial under Section 304 IPC and also under Section 27 of the Arms Act.
During trial the prosecution examined as many as 16 witnesses while the defence none. On closure, the accused-appellant was examined under Section 313 CrPC. He adduced no evidence and after hearing the arguments, the learned trial Judge convicted the accused with the sentence as aforementioned.
4. According to the prosecution there were two eye witnesses of the incident, they are PW 2 and PW 13. Their statements were recorded by the Investigating Officer (I.O.) during investigation under Section 161 CrPC. That apart, according to the prosecution, the statements of Md. Akbar Ali and Sri Eaj All (PW-2 and petitioner 13 respectively) have been recorded by the learned CJM during investigation under Section 164 CrPC.
5. During trial the prosecution could not produce any eye witness to the incident. There is no dying declaration of the deceased nor there is any confessional statement of the accused nor any incriminating material was recovered from the possession of the accused-appellant. PWs-3, 5 and 6 deposed that on hearing the sound of firing they went to the spot and found Abdul Salem lying on the spot unconscious with bullet injury. Among others, they also found the presence of Akbar Ali, PW-2 Eaj Ali, PW-13 there. They did not see the incident. Others are only the seizure witnesses. The prosecution relied upon the testimonies of PW-2 and PW-13 and the learned trial Court having believed the statements of those witnesses recorded by the I.O. under Section 161 CrPC and the statements recorded under Section 164 CrPC arrived at the decision convicting the appellant.
6. PW-2 Akbar Ali was declared hostile by the prosecution and he disowned the purported statements recorded under Section 161 CrPC by the I.O. and that contradicted portion of 161 statement of this witness has been put on record by exbt. P/2. This witness also deposed that he could not remember whether he made any statement before the learned Magistrate during investigation. However, the statement purportedly recorded by the learned CJM was put on record vide exbt. P/3. In the same manner the PW-13 has been turned to be hostile during trial and disowned his purported statement made under Section 161 CrPC and the contradicted portion of the 161 statement of this witness was put on record vide exbt. P/11. While this witness has been confronted with his 164 statement recorded by the learned CJM he stated that being tutored by the Police Officer he made incorrect statement before the learned CJM. He affirmed what he stated before the trial Court was correct and not what he stated before the learned CJM. The signature of this witness available in 164 statements remains proved by exbt. P.3/2. Unfortunately, the learned CJM who recorded the 164 statements of those two witnesses was not examined during trial.
7. The learned trial Court accepted the 161 and 164 statements of those two witnesses as admissible substantive evidence, though in view of the proviso to Section 162(1) CrPC, no statement of any witness recorded by a Police Officer during investigation of a criminal case can be used for any purpose during trial of that case save and except for the purpose of contradicting the said witness. A profitable reference may be had to a decision of the Hon'ble Apex Court in Bulu Das v. State of Bihar reported in (1998) 8 SCC 130. In paragraph 6 of the aforesaid case of Bulu Das (surpa), the learned Apex Court held that whatever previous statement of a witness was brought on record after declaring him hostile, the same cannot be treated as substantive piece of evidence.
In that view of the matter, the contradicted portion of the statement recorded during investigation by the I.O. though put on record, cannot be treated to be a substantive evidence and this can only be used to contradict the witness who allegedly made the statement.
8. The learned trial Court having treated the statements of those witnesses (PWs 2 and 13) recorded under Section 164 CrPC by the CJM during investigation as substantive piece of evidence arrived at his decision in convicting the appellant. Unfortunately, the learned CJM who recorded the statement of those two witnesses during investigation was not examined. In view of the definition of "evidence" available under Indian Evidence Act, 1872, the recorded statement of the witnesses during investigation even by the learned Magistrate cannot be treated to be a evidence during trial. In this respect, one can take aid of the decision of the Hon'ble Apex Court in Chinnammal v. State of Tamil Nadu reported in (1997) 1 SCC 145. On careful examination of the aforecited decision in Chinnammal (supra) and having regard to the statutory definition of "evidence", it could at best be said that the statements of any witness recorded by any Magistrate under Section 164 CrPC during investigation is auxiliary evidence either to contradict or to support the substantive evidence recorded during trial by the trial Court. In the present case, there is no substantive evidence available during trial to implicate the appellant in the commission of alleged crime. The trial Court in the impugned judgment held that the statements recorded under Section 164 CrPC of PWs-2 and 13 corroborated the evidence. But on careful examination of the entire case record, it appears that there is not a single piece of substantive evidence suggesting the involvement of the appellant in the commission of alleged crime and as such there is no substantive evidence adduced during trial to be corroborated by the aforesaid auxiliary evidence recorded under Section 164 CrPC during investigation and as such the finding arrived at by the learned trial Court having treated the 164 statement to be a substantive piece of evidence is not tenable under any valid law. According to Chinnammal (supra), the previous statement recorded during investigation could only be used to test the trustworthiness of the testimonies of a witness recorded during trial and for no other purpose.
9. In that view of the matter, I am constrained to hold that the learned trial Court having misconstrued the provisions of Sections 161 and 164 CrPC wrongly took into consideration the previous statements recorded during investigation as substantive evidence and as such the finding arrived at by the learned trial Court stands vitiated.
10. In the present case, there is no legally admissible evidence even to suggest the involvement of the appellant in the commission of crime he charged with and as such the finding of conviction recorded by the learned trial Court is not sustainable.
11. In the result, the appeal succeeds. The conviction and sentence imposed upon the appellant by the learned trial Court by the impugned judgment are set aside and the accused-appellant is acquitted. Set him at liberty, if in confinement or discharge the surety(s), if the appellant is on ball.