Chattisgarh High Court
Amar Singh vs State Of Chhattisgarh on 21 October, 2022
Author: Sanjay K. Agrawal
Bench: Sanjay K. Agrawal
1
AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
CRA No. 1176 of 2016
Amar Singh S/o Pathari Baiga, Aged About 48 Years R/o
Lamni (Baiga Para), Police Station Gaurela, District Bilaspur,
Chhattisgarh --Appellant.
Versus
State Of Chhattisgarh Through The Station House Officer,
Police Station Gaurela, District Bilaspur, Chhattisgarh
---- Respondent.
For Appellant Mr. Sanjeev Verma, Advocate
For Respondent /State Mr. Sudeep Verma, Dy. GA for the State
DIVISION BENCH
Hon'ble Shri Sanjay K. Agrawal &
Hon'ble Shri Deepak Kumar Tiwari, JJ.
Judgment on Board 21/10/2022 Sanjay K. Agrawal, J.
1. This criminal appeal under Section 374(2) of Cr.PC is directed against the impugned judgment of conviction and order of sentence dated 11.12.2012 passed in Sessions Trial No.36/2011, whereby, learned Additional Sessions Judge, Pendra Road, District Bilaspur (CG) has convicted the appellant under Section 302 of the IPC and sentenced to undergo imprisonment for life and pay fine of Rs.200/-, 2 in default of payment of fine, to undergo additional RI for 1 month.
2. Case of the prosecution, in brief, is that on the fateful day i.e. 5.5.2011, at 2:00 p.m., at village Lamni (Baigapara), scuffle took place between the appellant and his wife Manglibai and during the said quarrel, the appellant assaulted his wife (deceased) with an axe on her neck, which was witnessed by Shakuntala Baiga (PW-4), who is their daughter-in-law. Shankuntala Baiga immediately went to her husband Shiv Nath Singh (PW-3), who was attending a marriage ceremony in the village itself and informed him about the said incident. Thereafter, both reached the place of occurrence and Shiv Nath Singh (PW-3) also saw the dead body of the deceased lying inside the room. Shiv Nath Singh (PW-3) lodged an FIR-Ex.P/1 in the Police Station Gaurela, pursuant to which, offence under Section 302 of the IPC was registered against the appellant. Merg intimation was also given to the Police vide vide Ex.P/14 and thereafter, during investigation, Naksha Panchayatnama was prepared vide Ex.P/2. The Panchas recommended for postmortem and the dead body was sent for postmortem and the postmortem was done by Dr. Kamal Kumar Soni (PW-8), who submitted his report vide Ex.P/13. The postmortem report shows that 3 cause of death was shock and cardio respiratory failure due to vigorous bleeding from the sharp cut injury on the neck and the nature of death was homicidal. Thereafter, from the place of the incident, blood stained soil, plain soil, broken bangles of the deceased and blood stained blanket were seized vide Ex.P/6. The appellant was taken into custody and on his memorandum statement vide Ex.P/7, recorded in presence of Parbhu Ram Baiga (PW-5) and Jethu Ram Baiga (PW-9), the weapon of offence i.e. axe, stained with blood, was seized vide Ex.P/8 and T-Shirt and jeans pant stained with blood was seized vide Ex.P/9 from the possession of the appellant. The statements of the witnesses were recorded under Section 161 of Cr.P.C. The seized articles were sent for FSL examination and the FSL report was received Ex.-P/22 & 23 respectively. As per the FSL report, except Article C' - plain soil, on almost all the articles i.e. Article 'A' & ''B' - soil and blanket and 'FI' & 'F2' - sari and blouse, human blood was found. Thereafter, the accused/appellant was arrested vide Ex.P/17.
3. After usual investigation, the accused/appellant was charge-sheeted for offence under Section 302 of the IPC and the same was filed before the jurisdictional criminal court and the case was committed to the Court of Sessions 4 from where the Additional Sessions Judge, Pendra Road, Bilaspur, received the case on transfer for hearing and disposal in accordance with law.
4. The accused/appellant abjured the guilt and entered into witness box. In order to bring home the offence, the prosecution examined as many as 10 witnesses and exhibited 23 documents. The appellant in his defence examined Dr. R. Singh (DW-1), who examined him and proved his report-Ex.D/1.
5. The trial Court upon appreciation of oral and documentary evidence on record, proceeded to convict and sentence the appellant under Section 302 of the IPC in the manner mentioned in the opening paragraph of the judgment against which the instant appeal has been preferred.
6. Mr. Sanjeev Verma, learned counsel for the appellant, would submit that :
(i) Shiv Nath Singh (PW-3), who lodged the FIR, has turned hostile and even after permitting the prosecution to ask leading question, he has not supported the case of the prosecution and as such, the FIR stands not proved.
Shakuntala Baiga (PW-4), who is the star witness-cum- eye witnesses has also turned hostile and not supported the case of the prosecution at all even when the prosecution has been permitted to ask leading question from her.
5
(ii) Seizure of axe pursuant to the memorandum statement of the appellant vide Ex.P/7, has not been established beyond reasonable doubt as Parbhu Ram Baiga (PW-5) and Jethu Ram Baiga (PW-9), both have turned hostile. In this regard, the trial Court has rightly recorded a finding that the seizure of the axe has not been proved in accordance with law. Even otherwise, as per the finding of the trial Court, the axe was recovered from an open place, that too from the spot, therefore, the FSL Report, in which, blood was found on the axe is of no help to the prosecution since as per the statements of Parbhu Ram Baiga (PW-5) and Jethu Ram Baiga (PW-9), it cannot be held that either the recovery of weapon of offence or the seizure has been proved, which was necessary in view of the principles laid down by Hon'ble the Supreme Court in the matter of Balwan Singh Vs. State of Chhattisgarh and another1. Furthermore, the trial Court has clearly recorded a finding that the motive has not been proved.
(iii) The trial Court has relied on the statement recorded under Section 161 of Cr.P.C. of Shankuntala Baiga (PW-
4), in light of the principles of the Hon'ble Supreme Court laid down in the matter of Bhagwan Dass Vs. State (NCT) of Delhi2, which is clearly a perverse finding, as it is well settled law that a statement to Police is ordinarily not admissible in evidence in view of Section 162(1) of Cr.P.C. Furthermore, reliance of the trial Court in view of the decision rendered by the Hon'ble Supreme Court in the matter of Trimukh 1 (2019) 7 SCC 781.
2AIR 2011 SC 1863 6 Maroti Kirkan Vs, State of Maharashtra 3 is also not applicable in the facts of the present case since it is not a case of house murder where the appellant and the deceased were present all alone. It is the case of the prosecution that the appellant and the deceased were living together along with their son - Shiv Nath Singh (PW-3) and daughter-in-law - Shakuntala Baiga (PW-4). Hence, the impugned judgment is liable to be set-aside.
7. Mr. Sudeep Verma, learned Dy. Government Advocate would support the impugned judgment and submit that the prosecution has been able to prove the charge against the appellant beyond reasonable doubt, therefore, the trial Court has rightly convicted the appellant for the offence under Section 302 of the IPC. He would further submit that the blood stains were found on the shirt and pant of the appellant. Furthermore, the appellant has given a false explanation under Section 313 of Cr.P.C., which is an additional incriminating circumstance to establish the offence against the appellant herein. The FIR has been lodged promptly by Shiv Nath Sngh (PW-3) and also the principles laid down by Hon'ble the Supreme Court in the matter of Trimukh Maroti Kirkan (supra) has been rightly applied by the trial Court. Hence, the appeal deserves to be dismissed.
3(2006) 10 SCC 681 7
8. We have heard learned counsel for the parties and considered their rival submissions made herein-above and also went through the records with utmost circumspection.
9. The first question for consideration is whether the death of deceased Manglibai was homicidal in nature ?
10. Learned trial Court has recorded an affirmative finding in this regard holding that the death of the deceased was homicidal in nature on the basis of medical opinion of Dr. Kamal Kumar Soni (PW-8), who prepared the Postmortem Report-Ex.-P/13, wherein, it has categorically been mentioned that the cause of death was shock and cardio respiratory failure due to vigorous bleeding from the sharp cut injury on the neck and the nature of death was homicidal. Such finding recorded by the trial Court relying on the Postmortem Report and the statement of Dr. Kamal Kumar Soni (PW-8) is a correct finding of fact based on evidence available on record which is neither perverse nor contrary to the record and we hereby affirm the said finding.
11. Now, the next question for consideration is whether the trial Court was justified in convicting the appellant holding him to be the author of the crime in question? 8
12. The trial Court in order to convict the appellant under Section 302 of the IPC, recorded the following findings :
(1) the motive of the offence has not been established;
(2) Shankuntala Baiga (PW-4), daughter-in-law of the deceased and the appellant, who is an eye-witness, has turned hostile. Despite being declared hostile, the Court permitted the prosecution to ask leading questions from her, but even then, this witness has not supported the case of the prosecution;
(3) Shiv Nath Singh (PW-3), son of the appellant and the deceased and also husband of Shankuntala Baiga (PW-4), who lodged the FIR-Ex.P/1 and is also witness to the Inquest Report (Ex.-P/2), has also been declared hostile.
Despite having been declared hostile, the Court permitted the prosecution to ask leading questions but nothing has been elicited from him to prove the FIR-Ex.P/1; (4) Pursuant to the memorandum statement of appellant- Ex.P/7, blood stained axe has been seized from the possession of the appellant vide Ex.-P/8, which has not been proved as the witnesses to the seizure and memorandum i.e. Parbhu Ram Baiga (PW-5) and Jethu Ram Baiga (PW-9), both have turned hostile. Further, the seizure of axe has been made from an open place/spot and 9 as such, it has also not been established. However, vide FSL report-Ex.-P/22, blood was found on the axe and it has also been mentioned in the query report of Dr. Kamal Kumar Soni (PW-8) that red/brown spot was found on the axe and as such, the weapon of offence has been proved. (5) Though ordinarily the statement of a witness to the Police under Section 161 of Cr.P.C. is not admissible in evidence in view of Section 162(1) of Cr.PC, but in light of the decision of the Supreme Court rendered in the matter of Bhagwan Dass (supra), such police statement can be taken into consideration in view of the proviso to Section 162(1) of Cr.PC and on that basis, the trial Court proceeded to convict the appellant. Furthermore, the decision of the Supreme Court rendered in the matter of Trimukh Maroti Kirkan (supra), would apply as the death of the deceased of the deceased has occurred inside the house.
13. The aforesaid findings bring us to the question for consideration, whether the trial Court has rightly convicted the appellant under Section 302 of the IPC on the basis of the statement of Shakuntala Baiga (PW-4) recorded under Section 161 of Cr.P.C vide Ex.P-5?
14. A portion of the statement-Ex.P/5 under Section 161 of Cr.P.C. of Shakuntala Baiga (PW-4) in this regard is reproduced below:
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^^---------rFkk esjh lkl eaxyhckbZ vkSj llqj vejflag vius dejs esa FksA ml nkSjku eSa vkaxu esas fudyh ns[kh fd esjs lkl vkSj llqj nksuksa >xM+s rc esjk llqj Vafx;k ls esjh lkl ds xys dks dkV dj ekj fn;kA eS dejs esa tk dj ns[kh lkl ds xyk dVus ds dkj.k [kwu fudy jgk Fkk vkSj ej xbZ Fkh rks rqjar vius ifr dks 'kknh ?kj esa tkdj crkbZ esjk ifr vk dj ns[kk A xyk dVus ls dkQh [kwu fudyk gS vkSj ej pwdh gSA** The statement made by this witness before the Court is not in line with her statement under Section 161 of Cr.P.C.
and she has been declared hostile. The prosecution has been permitted to ask leading questions, even though she has not support the prosecution, yet the appellant has been convicted by the trial Court with the aid of statement made under Section 161 of Cr.P.C.
15. At this stage, it would be appropriate to reproduce Section 161 and 162(1) and its proviso, which reads as under :
161. Examination of witnesses by police.-
(1) Any police officer making an investigation under this Chapter, or any police officer not below such rank as the State Government may, by general or special order, prescribe in this behalf, acting on the requisition of such officer, may examine orally any person supposed to be acquainted with the facts and circumstances of the case.
(2) Such person shall be bound to answer truly all questions relating to such case put to him by such officer, other than questions the answers to which would have a tendency to expose him to a criminal charge or to a penalty or forfeiture. (3) The police officer may reduce into writing any statement made to him in the course of an examination under this section; and if he does so, he shall make a separate and true record of the 11 statement of each such person whose statement he records :
162. Statements to police not to be signed: Use of statements in evidence.-
(1) No statement made by any person to a police officer in the course of an investigation under this Chapter, 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, save as hereinafter provided, at any inquiry or trial in respect of any offence under investigation at the time when such statement was made:
Provided that when any witness is called for the prosecution in such inquiry or trial whose statement has been reduced into writing as aforesaid, 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 provided by section 145 of the Indian Evidence Act, 1872 (1 of 1872 ); and when any part of such statement is so used, any part thereof may also be used in the re- examination of such witness, but for the purpose only of explaining any matter referred to in his cross- examination."
16. A careful reading of the aforesaid provisions shows that Section 162 of Cr.P.C. ensures that no statement made to the police which is reduced to writing be signed by the person who makes it and that no such statement or any record of such a statement, whether in a police diary or otherwise or a part of such statement or record shall be used for any purpose other than those stated in the section. They may be used by the accused or by the prosecution to contradict such witness in the manner provided under section 145 of the Indian Evidence Act, 1872 and when it is so used, any part thereof may also be 12 used in the re-examination of such witness, but only for the purpose of explaining any matter referred to in his cross-
examination. It means that statements made to the police can be used for contradicting a prosecution witness in the manner indicated in Section 145 of the Evidence Act. Statements to the police are inadmissible in any inquiry or trial.
17. Section 162 of Cr.P.C. and its proviso came up for consideration before the Constitution Bench of the Supreme Court, in the matter of Tahsildar Singh and another Vs. State of U.P4,. In the said matter, their Lordships of the Supreme Court held that the intention of the legislature in framing Section 162 of Cr.P.C. was to protect the accused against user of the statements of witnesses made before the police during investigation at the trial presumably on the assumption that the said statements were not made under circumstances inspiring confidence. Both the section and its proviso intended to serve primarily the same purpose i.e. the interest of the accused. Their Lordships also indicated the procedure prescribed for contradicting a witness by his previous statement and held as under :
"The procedure prescribed for contradicting a witness by his previous statement made during 4AIR 1959 SC 1012 13 investigation, is that, 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 it which are to be used for the purpose of contradicting him. The proviso to S. 162 only enables the accused to make use of such statement to contradict a witness in the manner provided by S. 145 of the Evidence Act. It would be doing violence to the language of the proviso if the said statement be allowed to be used for the purpose of cross- examining a witness within the meaning of the first part of S. 145 of the Evidence Act. The argument that it would not be possible to invoke the second part of S. 145 of the Evidence Act without putting relevant questions under the first part thereof cannot be accepted. The second part of S. 145 of the Evidence Act clearly indicates the simple procedure to be followed. To illustrate : A says in the witness-box that B Stabbed C; before the police he had stated that D stabbed C. His attention can be drawn to that part of the statement made before the police which contradicts his statement in the witness-box. If he admits his previous statement, no further proof is necessary; if he does not admit, the practice generally followed is to admit it subject to proof by the police officer. On the other hand, if the witness is asked "did you say before the police-officer that you saw a gas light?"
and he answers yes, and then the statement which does not contain such recital is put to him as contradiction, the procedure involves two fallacies:
one is, it enables the accused to elicit by a purpose of cross-examination what the witness stated before the police-officer. If a police-officer did not make record of a witness's statement, his entire statement could be brought on record. This procedure, therefore, contravenes the express provision of S. 162 of the Code. The second fallacy is that there is no self-contradiction of the primary statement made in the witness-box, for the witness has yet not made on the stand any assertion at all which can serve as the basis. The contradiction, under the section, should be between what a witness asserted in the witness-box and what he stated before the police-officer, and not between what he said he had stated before the police- officer and what he actually made before him. In such a case the question could not be put at all :
only questions to contradict can be put and the question here posed does not contradict; it leads to an answer which is contradicted by the police statement."14
In para 17 thereto, while highlighting the object to proviso to Section 162 of Cr.P.C., their Lordships held as under :
17. ...............................................................................
................................................The section was, therefore, conceived in an attempt to find a happy 'via media', namely, while it enacts an absolute bar against the statement made before a police- officer being used for any purpose whatsoever, it enables the accused to rely upon it for a limited purpose of contradicting a witness in the manner provided by S. 145 of the Evidence Act by drawing his attention to parts of the statement intended for contradiction. It cannot be used for corroboration of a prosecution or a defence witness or even a Court witness. Nor can it be used for contradicting a defence or a Court witness. Shortly stated, there is a general bar against its use subject to a limited exception in the interest of the accused, and the exception cannot obviously be used to cross the bar."
18. Thereafter, in the matter of Sat Paul Vs. Delhi Administration5, their Lordships of Hon'ble Supreme Court clearly held that the statement made to the Police can be used only for the purpose of contradicting a prosecution witness in the manner indicated in Section 145 of the Evidence Act and cannot be used for the purpose of seeking corroboration. The following was observed in para 55 by their Lordships :
"55. Nor was the High Court competent to use the statements of these witnesses recorded by the police during investigation, for seeking assurance for the prosecution story. Such use of the police 5 (1976) 1 SCC 727 15 statements is not permissible. Under the Proviso to Section 162, Cr. P.C. such statements can be used only for the purpose of contradicting a prosecution witness in the manner indicated in Section 145, Evidence Act, and for no other purpose. They cannot be used for the purpose of seeking corroboration or assurance for the testimony of the witness in court."
19. Similarly, in the matter of Hazari Lal Vs. State (Delhi Administration)6 , it has been held that the statement made by the witness during the course of investigation cannot be used as substantive evidence and observed as under :
"Section 162 of the Code of Criminal Procedure imposes a bar on the use of any statement made by any person to a Police Officer in the course of investigation at any enquiry or trial in respect of any offence under investigation at the time when such statement was made, except for the purpose of contradicting the witness in the manner provided by Section 145 of the Indian Evidence Act. Where any part of such statement is so used any part thereof may also be used in the re- examination of the witness for the limited purpose of explaining any matter referred to in his cross-examination. The only other exceptions to this embargo on the use of statements made in the course of an investigation relates to the statements falling within the provisions of Section 32(1) of the Indian Evidence Act or permitted to be proved under Section 27 of the Indian Evidence Act. Section 145 of the Evidence Act provides that a witness may be cross-examined as to previous statements made by him in writing and reduced into writing and relevant to matters in question, without such writing being shown to him or being proved but, that 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 it which are to be used for the purpose of contradicting him."
6 (1980) 2 SCC 390 16
20. Thereafter, in the matter of Ram Prasad Vs. State of Maharashtra7, the following has been held in para 15 :
15.Be that as it may, the question is whether the court could treat it as an item of evidence for any purpose. Section 157 of the Evidence Act permits proof of any former statement made by a witness relating to the same fact before any authority legally competent to investigate the fact but its use is limited to corroboration of the testimony of such a witness. Though a police officer is legally competent to investigate, any statement made to him during such investigation cannot be used to corroborate the testimony of a witness because of the clear interdict contained in Section 162 of the Code. But a statement made to a magistrate is not affected by the prohibition contained in the said Section. A magistrate can record the statement of a person as provided in Section 164 of the Code and such statement would either be elevated to the status of Section 32 if the maker of the statement subsequently dies or it would remain within the realm of what it was originally.
A statement recorded by a magistrate under Section 164 becomes usable to corroborate the witness as provided in Section 157 of the Evidence Act or to contradict him as provided in Section 155 thereof.
21. In the matter of Omkar Namdeo Jadhao and others vs. Second Additional Sessions Judge, Buldana and another8, , it has been held by the Supreme Court that the statement recorded under Section 161 of Cr.PC can be used at the trial only for the purposes of contradictions or omissions when the witnesses are examined in the Court. 7(1999) 5 SCC 30 8(1996) 7 SCC 498 17
22. Further, in the matter of Vijender Vs. State of Delhi9, it has been held by the Supreme Court that a statement made before a police officer during investigation cannot be used for any purpose whatsoever; except when it attracts the provisions of Section 27 or Section 32(i) of the Evidence Act. If, however, such a statement is made by a witness examined by the prosecution it may be used by the accused to contradict such a witness, and with the permission of the Court, by the prosecution in accordance with Section 145 of the Evidence Act.
23. Similarly, in the matter of V.K. Mishra and another Vs. State of Uttarakhand and another10, their Lordships of Supreme Court has held that the statement recorded under Section 161(1) Cr.P.C. is inadmissible in evidence and cannot be relied upon to contradict the statement and the same can be used only to prove the contradictions and/or omissions and the following was observed in para 16, 17, 18 & 19 :
16. "Section 162 Cr.P.C. bars use of statement of witnesses recorded by the police except for the limited purpose of contradiction of such witnesses as indicated there. The statement made by a wit-
ness before the police under Section 161(1) Cr.P.C. can be used only for the purpose of contradicting such witness on what he has stated at the trial as laid down in the proviso to Section 162 (1) Cr.P.C. The statements under Section 161 Cr.P.C. recorded 9(1997) 6 SCC 171 10(2015) 9 SCC 588 18 during the investigation are not substantive pieces of evidence but can be used primarily for the lim- ited purpose:- (i) of contradicting such witness by an accused under Section 145 of Evidence Act; (ii) the contradiction of such witness also by the prose- cution but with the leave of the Court and (iii) the re-examination of the witness if necessary.
17. The Court cannot suo moto make use of state- ments to police not proved and ask question with reference to them which are inconsistent with the testimony of the witness in the court. The words in Section 162 Cr.P.C. "if duly proved" clearly show that the record of the statement of witnesses can- not be admitted in evidence straightway nor can be looked into but they must be duly proved for the purpose of contradiction by eliciting admission from the witness during cross-examination and also during the cross-examination of the investigating officer. Statement before the investigating officer can be used for contradiction but only after strict compliance with Section 145 of Evidence Act that is by drawing attention to the parts intended for con- tradiction.
18. Section 145 of the Evidence Act reads as under:
145. Cross-examination as to previous statements in writing.- A witness may be cross-examined as to previous state-
ments 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 it which are to be used for the purpose of contradicting him.
19. Under Section 145 of the Evidence Act when it is intended to contradict the witness by his previ- ous statement reduced into writing, the attention of such witness must be called to those parts of it which are to be used for the purpose of contradict- ing him, before the writing can be used. While recording the deposition of a witness, it becomes the duty of the trial court to ensure that the part of the police statement with which it is intended to contradict the witness is brought to the notice of the witness in his cross-examination. The attention of witness is drawn to that part and this must re- flect in his cross- examination by reproducing it. If the witness admits the part intended to contradict 19 him, it stands proved and there is no need to fur- ther proof of contradiction and it will be read while appreciating the evidence. If he denies having made that part of the statement, his attention must be drawn to that statement and must be men- tioned in the deposition. By this process the contra- diction is merely brought on record, but it is yet to be proved. Thereafter when investigating officer is examined in the court, his attention should be drawn to the passage marked for the purpose of contradiction, it will then be proved in the deposi- tion of the investigating officer who again by refer- ring to the police statement will depose about the witness having made that statement. The process again involves referring to the police state- ment and culling out that part with which the maker of the statement was intended to be contra- dicted. If the witness was not confronted with that part of the statement with which the defence wanted to contradict him, then the court cannot suo moto make use of statements to police not proved in compliance with Section 145 of Evidence Act that is, by drawing attention to the parts in- tended for contradiction."
24. The principles of law laid down by their Lordships of the Supreme Court in V.K. Mishra (supra), has been followed with approval by their Lordships in the matter of Krishan Chander Vs. State of Delhi11. The similar proposition has been laid down by Hon'ble Supreme Court recently in the matter of Parvat Singh Vs. the State of Madhya Pradesh12, holding that a statement recorded under Section 161 of Cr.P.C. is inadmissible in evidence and cannot be relied upon or used to convict the accused.
13.1 It is required to be noted that it was a black night (Amavasya) at the time of incident. It was a 11(2016) 3 SCC 108 12(2020) 4 SCC 33 20 dark night as the incident has happened between 4- 5 a.m. PW8 in her statement recorded under Section 161 Cr.P.C. has stated that she has seen all the accused in the light of the torch. She has stated that Bal Kishan - original accused no.1 was having an axe and other four were armed with lathis. She had also stated in her statement under Section 161 Cr.P.C. that Bal Kishan - original accused no.1 gave the axe blow on the neck of the deceased due to the enmity and earlier dispute and other accused were telling to run away immediately and thereafter all the five accused ran away from behind the cattle shed/house. She stated that she had identified all the accused in the light of the torch and also by voice. According to her after she shouted, other persons came. However, there is material improvement in her deposition before the Court. In her deposition, she has stated that accused Santosh and Rakesh caught hold of Bal Kishan - deceased. In her deposition, she has also stated that there was a chimney light in the cattle shed. She has also stated in her deposition that the accused ran away from the nearby agricultural field of sugarcane. Therefore, the deposition of PW8 is full of material contradictions and improvements so far as original accused Nos. 2 to 5 is concerned. It is required to be noted that no other independent witness even named by PW8 has supported the case of the prosecution. Though, according to PW8, she identified the accused in the light of the torch, there is no recovery of torch. There is material improvement so far as the chimney light is concerned. In her deposition, she has not stated anything that the appellants - original accused nos. 2 to 5 were having the lathis, though she has stated this in her statement under Section 161 Cr.P.C. The High Court has observed relying upon her statement recorded under Section 161 Cr.P.C. that the appellants herein - accused nos. 2 to 5 were having lathis. However, as per the settled preposition of law a statement recorded under Section 161 Cr.P.C. is inadmissible in evidence and cannot be relied upon or used to convict the accused. As per the settled proposition of law, the statement recorded under Section 161 Cr.P.C. can be used only to prove the contradictions and/or omissions. Therefore, as such, the High Court has erred in relying upon the statement of PW8 recorded under Section 161 Cr.P.C. while observing that the appellants were having the lathis.
13.2 As observed hereinabove in her statement under Section 161 Cr.P.C., she has never stated that 21 accused Santosh and Rakesh caught hold of Bal Kishan, but stated that the appellants herein told to run away as other persons have woken. In the facts and circumstances of the case, there are material contradictions, omissions and/or improvements so far as the appellants herein - original accused nos. 2 to 5 are concerned and therefore we are of the opinion that it is not safe to convict the appellants on the evidence of the sole witness of PW8. The benefit of material contradictions, omissions and improvements must go in favour of the appellants herein. Therefore, as such the appellants are entitled to be given benefit of doubt.
25. In the matter of Virender Singh Vs. State of Harayana13, it has been held by the Supreme Court that a statement recorded under Section 161 of Cr.P.C. does not constitute substantive evidence under Section 3 of the Evidence Act and it can be relied upon by the Court to convict the accused in absence of substantive evidence.
26. In the matter of Somasundaram Alias Somu Vs. State represented by the Deputy Commissioner of Police 14, it has been held by the Hon'ble Supreme Court that the substantive evidence is the evidence rendered in the Court and the statement recorded under Section 164 of Cr.PC is not a substantive evidence to convict the accused on the said basis and held in para 84 as under :
"84. Thus, in a case where a witness, in his statement under Section 164 CrPC, makes culpability of the accused beyond doubt but when he is put on the witness stand in the trial, he does a complete somersault, as the statement 13(2017) 11 SCC 126 14(2020) 7 SCC 722 22 under Section 164 is not substantial evidence then what would be the position? The substantive evidence is the evidence rendered in the court. Should there be no other evidence against the accused, it would be impermissible to convict the accused on the basis of the statement under Section 164."
27. From the principles of law laid down by their Lordships of the Supreme Court in the aforementioned judgments, it is quite vivid that the statement made to the police officer by a person under Section 161 of Cr.PC is not/cannot be treated to be substantive evidence being inadmissible in evidence except when the same falls under the provisions of clause (1) of Section 32 of the Evidence Act or with regard to discovery under Section 27 of the Evidence Act.
28. Reverting back to the facts of the present case, in light of the aforesaid principles of law laid down by the Hon'ble Supreme Court, it appears that the star-cum-eye-witness Shakuntala Baiga (PW-4) has turned hostile and not supported the case of the prosecution and no part of her statement can be used to convict the appellant as the same is not a substantive piece of evidence. The decision of the Supreme Court in the matter of Bhagwan Dass (supra) is clearly distinguishable and not applicable in the facts of the present of the case, therefore, the finding recorded by the trial Court in this regard is liable to be set-aside. 23
29. The trial Court has further relied upon the fact that the deceased died inside the house and thereafter, relying upon the decision of the Hon'ble Supreme Court rendered in the matter of Trimukh Maroti Kirkan (supra), has convicted the appellant vide para 22 of its impugned judgment.
30. Section 106 of the Indian Evidence Act, 1872, states as under: -
"106. Burden of proving fact especially within knowledge.--When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him."
31. This provision states that when any fact is specially within the knowledge of any person the burden of proving that fact is upon him. This is an exception to the general rule contained in Section 101, namely, that the burden is on the person who asserts a fact. The principle underlying Section 106 which is an exception to the general rule governing burden of proof applies only to such matters of defence which are supposed to be especially within the knowledge of the other side. To invoke Section 106 of the Evidence Act, the main point to be established by prosecution is that the accused persons were in such a position that they could have special knowledge of the fact concerned. 24
32. In the matter of Shambhu Nath Mehra v. The State of Ajmer15, their Lordships of the Supreme Court have held that the general rule that in a criminal case the burden of proof is on the prosecution and Section 106 of the Evidence Act is certainly not intended to relieve it of that duty. On the contrary, it is designed to meet certain exceptional cases in which it would be impossible, or at any rate disproportionately difficult, for the prosecution, to establish facts which are "especially" within the knowledge of the accused and which he could prove without difficulty or inconvenience. The Supreme Court while considering the word "especially" employed in Section 106 of the Evidence Act, speaking through Vivian Bose, J., observed as under: -
"11. ... The word "especially" stresses that it means facts that are preeminently or exceptionally within his knowledge. If the section were to be interpreted otherwise, it would lead to the very startling conclusion that in a murder case the burden lies on the accused to prove that he did not commit the murder because who could know better than he whether he did or did not. It is evident that that cannot be the intention and the Privy Council has twice refused to construe this section, as reproduced in certain other Acts outside India, to mean that the burden lies on an accused person to show that he did not commit the crime for which he is tried. These cases are Attygalle v. The King, 1936 PC 169 (AIR V 23) (A) and Seneviratne v. R. 1936-3 ER 36 AT P. 49 (B)."
15 AIR 1956 SC 404 25 Their Lordships further held that Section 106 of the Evidence Act cannot be used to undermine the well established rule of law that save in a very exceptional class of case, the burden is on the prosecution and never shifts.
33. The decision of the Supreme Court in Shambhu Nath Mehra (supra) was followed with approval recently in the matter of Nagendra Sah v. State of Bihar16 in which it has been held by their Lordships of the Supreme Court as under: -
"22. Thus, Section 106 of the Evidence Act will apply to those cases where the prosecution has succeeded in establishing the facts from which a reasonable inference can be drawn regarding the existence of certain other facts which are within the special knowledge of the accused. When the accused fails to offer proper explanation about the existence of said other facts, the court can always draw an appropriate inference.
23. When a case is resting on circumstantial evidence, if the accused fails to offer a reasonable explanation in discharge of burden placed on him by virtue of Section 106 of the Evidence Act, such a failure may provide an additional link to the chain of circumstances. In a case governed by circumstantial evidence, if the chain of circumstances which is required to be established by the prosecution is not established, the failure of the accused to discharge the burden under Section 106 of the Evidence Act is not relevant at all. When the chain is not complete, falsity of the defence is no ground to convict the accused."
16 (2021) 10 SCC 725 26
34. Similarly, the Supreme Court in the matter of Gurcharan Singh v. State of Punjab17, while considering the provisions contained in Sections 103 & 106 of the Evidence Act, held that the burden of proving a plea specially set up by an accused which may absolve him from criminal liability, certainly lies upon him, but neither the application of Section 103 nor that of 106 could, however, absolve the prosecution from the duty of discharging its general or primary burden of proving the prosecution case beyond reasonable doubt. It was further held by their Lordships that it is only when the prosecution has led evidence which, if believed, will sustain a conviction, or which makes out a prima facie case, that the question arises of considering facts of which the burden of proof may lie upon the accused. Their Lordships also held that the burden of proving a plea specifically set up by an accused, which may absolve him from criminal liability, certain lies upon him.
35. The principle of law laid down by their Lordships of the Supreme Court in Gurcharan Singh (supra) has been followed with approval by their Lordships in the matter of Sawal Das v. State of Bihar18 and it has been held that burden of proving the case against the accused was on the 17 AIR 1956 SC 460 18 AIR 1974 SC 778 27 prosecution irrespective of whether or not the accused has made out a specific defence.
36. In Trimukh Maroti Kirkan (supra), their Lordships of Hon'ble Supreme Court held in para 22 as under :
22. Where an accused is alleged to have commit-
ted the murder of his wife and the prosecution suc- ceeds in leading evidence to show that shortly be- fore the commission of crime they were seen to- gether or the offence takes placed in the dwelling home where the husband also normally resided, it has been consistently held that if the accused does not offer any explanation how the wife received in- juries or offers an explanation which is found to be false, it is a strong circumstance which indicates that he is responsible for commission of the crime. In Nika Ram v. State of Himachal Pradesh AIR 1972 SC 2077 it was observed that the fact that the accused alone was with his wife in the house when she was mur- dered there with 'khokhri' and the fact that the rela- tions of the accused with her were strained would, in the absence of any cogent explanation by him, point to his guilt. In Ganeshlal v. State of Maharashtra (1992) 3 SCC 106 the appellant was prosecuted for the murder of his wife which took place inside his house. It was observed that when the death had oc- curred in his custody, the appellant is under an obli- gation to give a plausible explanation for the cause of her death in his statement under Section 313 Cr.P.C. The mere denial of the prosecution case cou- pled with absence of any explanation were held to be inconsistent with the innocence of the accused, but consistent with the hypothesis that the appellant is a prime accused in the commission of murder of his wife.
In State of U.P. v. Dr. Ravindra Prakash Mittal AIR 1992 SC 2045 the medical evidence disclosed that the wife died of strangulation during late night hours or early morning and her body was set on fire after sprinkling kerosene. The defence of the husband was that wife had committed suicide by burning herself and that he was not at home at that time."
37. Even otherwise, in Trimukh Maroti Kirkan (supra), the Supreme Court has relied upon the case of Nika Ram v. 28 State of Himachal Pradesh.19, and observed that the fact that the accused alone was with his wife in the house when she was murdered and the fact that the relations of the accused with her were strained would, in the absence of any cogent explanation by him, point to his guilt.
38. In this regard, the trial Court recorded the findings in para 21 & 22 applying Section 106 of the Evidence Act, which reads as under:
^^21- mDr nksuksa U;k;n`"Vkarkaas ds fu.kZ;lkj dks bl izdj.k ds rF; vkSj ifjLFkfr ds lkFk ykxw dj fopkj fd;s tkus ij ;g Li"V gksrk gS fd ?kVuk ds nks egRoiw.kZ lk{kh v-lk- 03 f'koukFk flag] v-lk- 04 'kdqUryk cSxk] vfHk;qDr ds dze'k----iq= o iq=o/kw gSaA v-lk- 03 f'koukFk flag us ¼izn'kZ ih&01½ ds izFke lwpuk fjiksVZ esa eaxyhckbZ dks vfHk;qDr }kjk gR;k djus dh ckr crk;k FkkA ;g lk{kh U;k;ky;hu dFku esa vius mDr fjiksVZ ds rF; ls eqdj x;kA v-lk- 10 ds-,l-
dqoaj] foospd ds dFku ls ;g lkfcr gksuk gS fd mlus ¼izn'kZ ih&01½ dk fjiksVZ ntZ fd;k Fkk rFkk vUos"k.k ds nkSjku mDr lk{kh 'kdqUryk cSxk o f'koukFk flag dk c;ku muds crk;s vuqlkj ys[kc) fd;k FkkA lk{kh 'kdqUryk ckbZ us vfHk;qDr }kjk eaxyhckbZ dks >xM+s ds ckn Vafx;k ls dkVdj ekj nsus dh ckr crk;k FkkA bl rjg v-lk- 04 'kdqUryk cSxk] vfHk;qDr dk djhch fj'rsnkj gksus ds dkj.k] mls n.M ls cpkus ds vk'k; ls i'pkorhZ lksap ds vk/kkj ij vius iwoZ ys[kc) iqfyl dFku ls U;k;ky; esa eqdj xbZ] Bhd mlh rjg vfHk;qDr dk iq= v-lk- 03 f'koukFk flag Hkh ¼izn'kZ ih&01½ ds fjiksVZ ds] mls firk }kjk mldh ekW dh gR;k djus ds rF; ls eqdj x;kA ;fn okLro esa vfHk;qDr viuh ifRu eaxyhckbZ dh gR;k u fd;k gksrk rks] fdlh Hkh fLFkfr esa mldh cgw v-lk-04 'kdqUrykckbZ] gR;k dk xaHkhj vkjksih vius 'olqj ij yxkdkj feF;k iqfyl dks dFku ugha djrh] Bhd mlh rjg vfHk;qDr dk iq= v-lk- 03 f'koukFk Hkh vius firk dks brus xaHkhj vijk/k esa izFke lwpuk fjiksVZ ntZ djkdj vkfyIr ugha djkrkA ;fn okLro esa bl vijk/k esa dfFkr pUnzHkku dh dksbZ Hkwfedk ;k lgHkkfxrk gksrh] rks bl rF; dk mYys[k v-lk- 03 f'koukFk flag] vo'; ¼izn'kZ ih 01½ ds fjiksVZ esa djrkA vr% pUnzHkku }kjk ;k vfHk;qDr dks NksM+ fdlh vU; O;fDr }kjk eaxyhckbZ dh gR;k fd;s 19 AIR 1972 SC 2077 29 tkus] dh fdlh laHkkouk ij vk/kkfjr jgdj] vfHk;qDr dks lansg dk ykHk nsdj nks"keqDr fd;k tkuk laHkao ugha gSA Hkxokunkl ds iwokZsDr U;k;n`"Vkar ds vkyksd esa& v-lk- 04 'kdqUryk cSxk] dk iqfyl ds le{k fn;k x;k dFku izn'kZ ih& 5 dk ^^v** ls ^^v** dk egRoiw.kZ dk egRoiw.kZ Hkkx] tks vfHk;qDr dks vijk/k esa mRrjnk;h Bgjk;s tkus ds laca/k esa gS] n0iz0la0 dh /kkjk 162 ¼1½ ds rgr~ fopkj esa fy;s tkus ;ksX; gSA ;g mYys[kuh; gS fd v-lk- 04 'kdqUryk cSxk o v-lk- 03 f'koukFk flag] tks vfHk;qDr ds djhc fj'rsnkj o ,d gh ifjokj ds O;fDr gS] lkekU; rkSj ij vius 'olqj@firk ds fo:) lk{; nsus dk lkgl ugha djsaxs] ;gh dkj.k gS fd os lHkh rF;ksa ls voxr gksus gq, lR;Hkk'kh Lo:i dk lk{; ugha fn;s gSA fdUrq bldk ;g vFkZ ugha fd fnu&ngkM+s dejs ds vUnj gq, bl t?kU; gR;k ds vijk/k esa mudh bPNk ds vuq:i vfHk;qDr dks nks"keqDr dj fn;k tkosA 22- f=eq[k ekjksfr fdjdu ds iwoksZDr U;k;n`"Vkar ds vkyksd esa& mDr U;k;n`"Vkar ds vkyksd esa vfHk;qDr o mldh iRuh eaxyhckbZ ?kVuk LFky ij jgus] vijk/k vfHk;qDr ds ?kj esa dejs ds vUnj gksus] vfHk;qDr }kjk vijk/kh ds laca/k esa feF;k Li"Vhdj.k nsus vkfn ifjfLFkfr;ksa ij fopkjksijkUr ;g LFkkfir gks tkrk gS fd vfHk;qDr gh og O;fDr Fkk] ftlus viuh iRuh eaxayhckbZ dh gR;k dhA"
39. However, the question is, whether the prosecution has discharged its initial or general burden or primary duty of proving the guilt of the accused beyond reasonable doubt.
40. From the careful perusal of the record, it is quite vivid that though the death of the deceased was homicidal in nature and it has been proved beyond reasonable doubt, which is a correct finding as held by us in the preceding paragraphs, but thereafter, the motive has not been established. Eye-
witness Shakuntala Baiga (PW-4) has turned hostile and her husband Shiv Nath Singh (PW-4), who lodged the FIR, has also turned hostile and not proved the FIR-Ex.P/1 and Naksha Panchayatnama-Ex-P/2. It has been rightly held by 30 the trial Court that the axe was found in an open place and in the FSL report-Ex.-P/22, only blood has been found on the axe.
41. In the matter of Balwan Singh (supra), while summarizing the law on the point and failure to establish origin of human blood as the human origin or its blood group, their Lordships held that if the recovery of bloodstained articles is proved beyond reasonable doubt by the prosecution, and if the investigation was not found to be tainted, then it may be sufficient if the prosecution shows that the blood found on the articles is of human origin even though the blood group is not proved because of disintegration of blood.
42. However, in the instant case, the axe has been recovered from an open place and even the recovery has not been proved beyond reasonable doubt, therefore, even if in the FSL report-Ex.-P/22, blood has been found on the material object, it cannot be held that the material object was the weapon of offence actually used in the offence in question.
43. It is apparent on record that on the fateful day, as per the prosecution version, apart from the appellant and the deceased in the house, Shiv Nath Singh (PW-3), son of the appellant and deceased, who lodged the FIR and his wife 31 Shakuntala Baiga (PW-4), who is said to be an eye-witness, were present and as such, the prosecution has failed to discharge its primary burden of proving its case beyond reasonable doubt. Therefore, in light of the decision laid down by their Lordships of the Supreme Court in the matter of Bhagwan Dass (supra), the provisions of Section 106 of the Evidence Act can be applied only when the prosecution has led evidence, which is believed to sustain conviction or make out a prima facie case, thereafter comes the question of discharging the burden of proof on the accused.
44. In our considered opinion, the prosecution has failed to discharge its primary burden of proving its case beyond reasonable doubt and merely on the basis of proving the death to be homicidal in nature, Section 106 of the Evidence Act cannot be invoked and the appellant cannot be held guilty for the offence under Section 302 of the IPC . In a case of circumstantial evidence, if the chain of circumstances required to be established by the prosecution are not established, the failure of the accused to discharge the burden under Section 106 of the Evidence Act is not relevant at all.32
45. The alleged false explanation of an accused can be used as an additional link to the chain of circumstantial evidence but it has been held by their Lordships of the Supreme Court in the matter of Sharad Birdhichand Sarda Vs. State of Maharashtra20, that the following essential conditions must be satisfied :
(i) various links in the chain of evidence led by the prosecution have been satisfactorily proved;
(ii) The said circumstance points to the guilt of the accused with reasonable definiteness and ;
(iii) the circumstance is in proximity to the time and situation.
46. In the instant case, five golden principles which constitute the panchsheel of the proof of a case based on circumstantial evidence have not been established as laid down in Sharad Birdhichand Sarda (supra), except giving false explanation in his statement under Section 313 of Cr.P.C. and the said false explanation given by the appellant in his statement under Section 313 of Cr.P.C. cannot be used against him, in absence of three essential conditions laid down in the same judgment noticed herein-above (see para 45). Therefore, it is clearly unsafe to convict the appellant for the offence under Section 302 of the IPC. 20 (1984) 4 SCC 116 33
47. In view of the aforesaid discussion and legal analysis, we are unable to hold that the trial Court is justified in convicting and sentencing the appellant for offence under Section 302 of the IPC. Conviction and sentence imposed on the appellant under Section 302 of the IPC are set-aside and he is acquitted of the said charge. The appellant is in jail. He be released forthwith if not required to be detained under any other process of law.
48. The criminal appeal is accordingly allowed.
Sd/- Sd/-
(Sanjay K. Agrawal) ( Deepak Kumar Tiwari)
Judge Judge
Shyna