Chattisgarh High Court
Jagdish Prasad Pradhan vs State Of Chhattisgarh on 23 November, 2022
Author: Sanjay K. Agrawal
Bench: Sanjay K. Agrawal
1
Cr.A. No. 539 of 2012
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Criminal Appeal No. 539 of 2012
Jagdish Prasad Pradhan S/o Tularam Pradhan, Caste-
Suryavanshi, aged about 36 years, R/o Mahant, P.S. Nawagarh,
Janjgir, District Janjgir-Champa (C.G.)
---- Appellant
Versus
State of Chhattisgarh, Through - Police Station - Nawagarh, District
Janjgir-Champa (C.G.)
---- Respondent
For Appellant : Mr. Vaibhav A. Goverdhan, Advocate
For Respondent : Mr. Sudeep Verma, Deputy Government
Advocate
DB: Hon'ble Shri Justice Sanjay K. Agrawal
Hon'ble Shri Justice Rakesh Mohan Pandey
Judgment on Board
(23.11.2022)
Sanjay K. Agrawal, J.
1. This criminal appeal filed by the appellant/accused herein under Section 374 (2) of Cr.P.C. is directed against the impugned judgment of conviction and order of sentence dated 12.06.2012 passed by the Court of learned Sessions Judge, Janjgir-Champa, District Janjgir-Champa (C.G.) in Sessions Trial No. 180/2011, whereby the appellant has been convicted for offence under Section 302 of IPC and sentenced to undergo life imprisonment with fine of Rs.1,000/- and, in default of payment of fine, he shall undergo further rigorous imprisonment for one month; Section 4 of Tonhi Pradadna Nivaran Adhiniyam and sentenced to undergo rigorous imprisonment for two years with fine of Rs.500/- and, in default of payment of fine, he shall undergo further rigorous imprisonment for fifteen days and Section 5 of Tonhi Pradadna Nivaran Adhiniyam 2 Cr.A. No. 539 of 2012 and sentenced to undergo rigorous imprisonment for three years with fine of Rs.500/- and, in default of payment of fine, he shall undergo further rigorous imprisonment for fifteen days. It is also directed that all sentences to run concurrently.
2. Case of the prosecution is that the appellant used to suspect that his mother-in-law Amol Kunwar-80 years was giving training to his wife Sita Bai (PW-4) for doing witchcraft. On 12.07.2011 at about 09:00 am the appellant assaulted his mother-in-law calling her tonhi by hands, fists and club (lathi) as a result of which Amol Kunwar suffered injuries on her legs, breast and succumbed to those injuries. Further case of the prosecution is that deceased Amol Kunwar, aged about 80 years, was staying in the house of appellant and her daughter Sita Bai for last 2-3 years. In the said house, Jagendra (PW-1) and Monika (PW-6), son and daughter, of the appellant were also residing. When PW-1, PW-4 and PW-6 intervened to protect the deceased, the appellant also assaulted them. The matter was informed by the PW-1 to the Police Station and merg intimation Ex.-P/1 was registered. After reaching at the spot, the police prepared Panchanama vide Ex.-P/21 and the dead body of deceased Amol Kunwar was sent for postmortem. Postmortem examination was conducted by Dr. Rajendra Singhraj (PW-9), and as per the postmortem report (Ex.-P/16), cause of death was external and internal haemorrhage due to injury to the spleen, left leg, right rib and head injury, death was homicidal in nature and mode of death was syncope. Memorandum statement of 3 Cr.A. No. 539 of 2012 the accused/appellant was recorded vide Ex.-P/12 consequent to which bamboo stick (club) was seized at the instance of the appellant vide Ex.-P/13. One baniyan and on lungi of the appellant were also sezied vide Ex.-P/11. Seized articles were sent for examination to FSL, Raipur from where a report was received vide Ex.-P/29. As per FSL report blood was found on bamboo stick (club), baniyan & lungi. After due investigation, the accused/appellant was charge-sheeted for the offences punishable under Section 302 of IPC and Sections 3 & 4 of Tonhi Pradadna Nivaran Adhiniyam which was committed to the Court of Sessions for trial in accordance with law in which the accused abjured his guilt and entered into defence.
3. In order to bring home the offence, prosecution examined 11 witnesses and brought on record 29 documents. The statement of the appellant/accused was examined under Sectin 313 of CrPC wherein he denied guilt, however he examined none in his defence.
4. Learned Sessions Court, after appreciating the oral and documentary evidence on record, convicted the appellant for the aforesaid offences and sentenced him as aforesaid on the basis of the statements of Jagendra (PW-1), Dukaluram (PW-3), Sita Bai (PW-4) and Monika (PW-6) as well as on the basis of their statements recorded under Section 164 of CrPC vide Ex.-4, Ex.-P/7, Ex.-P/9 & Ex.-P/15.
5. Learned counsel for the appellant submits that the learned Session Judge is absolutely unjustified in convicting the appellant for the 4 Cr.A. No. 539 of 2012 aforesaid offences in absence of legally admissible evidence of Jagendra (PW-1), Dukaluram (PW-3), Sita Bai (PW-4) and Monika (PW-6), they have not supported the case of prosecution and they have been declared hostile by the prosecution. The learned Session Judge has also erred in relying upon the statements of PW-1, PW-3, PW-4 & PW-6 recorded under Section 164 of CrPC. He further submits that though the seized articles were sent for chemical examination, but the FSL report has been rendered insubstantial as no human blood has been found on the bamboo stick (club), therefore, the conviction of the appellant for offences punishable under Section 302 of IPC and Sections 4 & 5 of Tonhi Pradadna Nivaran Adhiniyam is liable to be set aside.
6. Per-contra, learned counsel for the State supports the impugned judgment and submits that the prosecution has proved the offence beyond reasonable doubt by leading evidence of clinching nature. The Sessions Court has rightly convicted the accused/appellant for the offence mentioned herein above, thus, the present criminal appeal filed by the appellant deserves to be dismissed.
7. We have heard learned counsel for the parties, considered their rival submissions made herein-above and went through the records with utmost circumspection.
8. The first and foremost question is as to whether the death of the deceased was homicidal in nature, which has been answered by the learned trial Court in affirmative by relying upon the postmortem report (Ex.-P/16) duly proved by Dr. Rajendra Singhraj (PW-9). It is 5 Cr.A. No. 539 of 2012 correct finding of fact based on evidence available on record and same is neither perverse nor contrary to the record. We hereby affirmed that finding.
9. The next circumstances is that Jagendra (PW-1), Sita Bai (PW-4) and Monika (PW-6) are the eyewitnesses, but they have not supported the prosecution case and have completely become hostile. They have clearly stated that on account of assault made by some animal/ buffalo to deceased Amol Kunwar, aged about 80 years, due to which she suffered injuries and died. However, the trial Court relying of 164 CrPC statements of Jagendra (PW-1), Dukaluram (PW-3), Sita Bai (PW-4) and Monika (PW-6) holding guilty and relying upon the recovery of bamboo stick in which blood stained was found vide FSL report Ex.-P/29.
10. It is well settled law that a statement made under Section 164 CrPC cannot be used as a substantive piece of evidence. In Brijbhusan Singh v. Emperor1, the Privy Council has observed that a statement made under Section 164 CrPC cannot be used as a substantive piece of evidence and it can be used to cross-examine the person who made it, and the result may be to show that the evidence of the witness is false. But that does not establish that what he stated out of Court under Section 164 CrPC is true. Similarly, in Mamand and others v. Emperor2, it has been observed by the Privy Council that the statement of a witness made under Section 164 CrPC can be used only to discredit the evidence 1 AIR 1946 38 2 AIR 1946 45 6 Cr.A. No. 539 of 2012 given by him in Court, and not for any other purpose. Such a statement cannot be treated as substantive evidence of the facts stated.
11. In the matter of Ram Kishan Singh v. Harmit Kaur and another 3, with regard to the value to be given to a statement under Section 164 CrPC, the Supreme Court has held that "a statement under Section 164 of the Code of Criminal Procedure is not substantive evidence. It can be used to corroborate the statement of a witness. It can be used to contradict a witness."
12. The Supreme Court, in the matter of Sunil Kumar and others v.
State of Madhya Pradesh4, has held that statement recorded under Section 164 of CrPC can be used for corroboration or contradiction.
13. Similarly, in the matter of George and others v. State of Kerala and another5, their Lordships of the Supreme Court have considered the issue as to whether the statement recorded under Section 164 CrPC constitutes substantial evidence and held that a statement of a witness recorded under Section 164 CrPC cannot be used as substantive evidence and can be used only for the purpose of contradicting or corroborating the maker of such statement.
14. Furthermore, in the matter of R. Shaji v. State of Kerala6, similar proposition of law has been laid down by their Lordships of the Supreme Court, which state as under :-
3 AIR 1972 SC 202 4 AIR 1997 SC 940 5 (1998) 4 SCC 605 6 (2013) 14 SCC 266 7 Cr.A. No. 539 of 2012 "27. So far as the statement of witnesses recorded under Section 164 is concerned, the object is twofold; in the first place, to deter the witness from chaingin his stand by denying the contents of his previously recorded statement; and secondly, to tide over immunity from prosecution by the witness under Section 164. A proposition to the effect that if a statement of a witness is recorded under Section 164, his evidence in court should be discarded, is not at all warranted. (Vide Jogendra Nahak v. State of Orissa7 and CCE v. Duncan Agro Industries Ltd.8)
28. Section 157 of the Evidence Act makes it clear that a statement recorded under Section 164 CrPC can be relied upon for the purpose of corroborating statements made by witnesses in the committal court or even to contradict the same. As the defence had no opportunity to cross-examine the witnesses whose statements are recorded under Section 164 CrPC, such statements cannot be treated as substantive evidence."
15. Finally, in the matter of Somasundaram alias Somu v. State represented by the Deputy Commissioner of Police 9, a three judge bench of the Supreme Court considered the purport and value of Section 164 CrPC. In paragraph 81 of the report following question was framed by their Lordships :-
"81. Section 164 CrPC enables the recording of the statement or confession before the Magistrate. Is such statement substantive evidence ? What is the purpose of recording the statement of confession under Section 164 ? What would be the position if the person giving the statement resiles from the same completely when he is examined as a witness ? These questions are not res integra. Ordinarily, the prosecution which is conducted through the State and the police machinery would have custody of the person. Though, Section 164 does provide for safeguards to ensure that the statement or a confession is a voluntary affair it may turn out to be otherwise. We may advert to statements of law enunciated by this Court over time."
7 (2000) 1 SCC 272 8 (2000) 7 SCC 53 9 (2020) 7 SCC 722 8 Cr.A. No. 539 of 2012
16. Thereafter, considering the decisions rendered in the matters of George (supra) and R. Shaji (supra), their Lordships held in paragraph 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 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."
17. From the aforesaid principle of law laid down by their Lordships of the Supreme Court in the aforesaid judgments (supra) qua statement under Section 164 CrPC, it is quite vivid that statement under Section 164 of CrPC is not an evidence, much less, substantial evidence within the meaning of Section 3 of the Evidence Act and it can be used only for the purpose of corroboration or contradiction. In absence of any other legally admissible evidence corroborating the evidence under Section 164 of CrPC, no conviction can be recorded. As such in view of the aforesaid judgments of Hon'ble Supreme Court, 164 CrPC statement is not substantive piece of evidence and on the basis of 164 CrPC statement, the conviction can not be made. Furthermore, though the witnesses to the recovery namely Harilal Banjare (PW-5) and Rajuprasad (PW-8), they have not supported the prosecution case. The trial Court relying upon the statement of Investigating Officer Usha Sondhiya (PW-11) has held recovery is proved, but 9 Cr.A. No. 539 of 2012 fact remain that bamboo stick (club) was recovered and in FSL report (Ex.-P/29) club -Article 'C' only blood was found and other articles i.e. baniyan & lungi blood was also found.
18. In the matter of Balwan Singh v. Latel Ram and Another 10, their Lordships of the Supreme Court has 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 in the prosecution shows that the blood found on the articles is of human origin though, even though the blood group is not proved because of disintegration of blood. Their Lordships held in paragraph 24 as under :-
"24. In the instant case, then, we could have placed some reliance on the recovery, had the prosecution at least proved that the blood was of human origin, As observed supra, while discussing the evidence of PWs 9 and 16, the prosecution has tried to concoct the case from stage to state. Hence, in the absence of positive material indicating that the stained blood was of human origin and of the same blood group as that of the accused, it would be difficult for the Court to rely upon the aspect of recovery of the weapons and tabbal, and such recovery does not help the case of the prosecution."
19. Though the recovery has not been found proved beyond doubt as per statement of I.O. Usha Sondhiya (PW-11), blood was found on the seized articles, but in FSL report (Ex.-P/29, human blood has not been found, it would be difficult of the Court to rely upon the aspect of recovery of the weapon, and such recovery does not help the case of prosecution.
10 (2019) 7 SCC 781 10 Cr.A. No. 539 of 2012
20. In view of the aforesaid analysis, since eyewitnesses- Jagendra (PW-1), Sita Bai (PW-4) and Monika (PW-6) have not supported the prosecution case, their 164 CrPC statements are not substantive piece of evidence and in the recovered article bamboo stick (club), no human blood was found, therefore, in the light of decision in case of Balwan Singh (supra) regarding recovery of bloodstained article, there is no incriminating circumstances found proved by the trial Court. We are of the considered opinion that prosecution has miserably failed to bring home the offences punishable under Section 302 of IPC and Sections 4 & 5 of Tonhi Pradadna Nivaran Adhiniyam against the appellant and the trial Court is absolutely unjustified in convicting him for the said offences. We hereby set aside the impugned judgment of conviction and order of sentence passed by the trial Court and acquit the appellant from the charges levelled against him. The appellant is reported to be on bail, therefore, his bail bonds shall remain in force of a period of six months from today in view of the provisions of Section 437-A of Cr.P.C.
21. Accordingly, this criminal appeal stands allowed.
Sd/- Sd/-
(Sanjay K. Agrawal) (Rakesh Mohan Pandey)
Judge Judge
vatti