Rumi Kumari Phukan DECISION
Rumi Kumari Phukan, J.
1. Present two appeals have been preferred against the judgment and order dated 19.05.2017 passed in Sessions Case No. 131(S-S)/2012 by the learned Addl. Sessions Judge, Sivsagar convicting the present two accused/appellants Dignata Gogoi and Junumoni Gogoi u/s. 304 (II)/201/34 of the IPC and sentencing both of them u/s. 304(II)/34 IPC to RI for 7 (seven) years with a fine of Rs. 20,000/- each, in default RI for 6 (six) months. Further, their sentence with RI for 1 year each and fine of Rs. 5,000/- each u/s. 201/34 of the IPC, in default RI for 3 (three) months.
2. The prosecution case in brief is that one Md. Jamaruddin Ahmed, Secretary of the VDP, Nepali Basti lodged an FIR on 11.04.2012 to the effect that on 10.04.2012 in the evening about 7 pm they found one Birsa Gogoi @ Nabin Gogoi lying dead inside his house campus with a cut injury on his head. He and the local people along with the Gaonburah went to the place of occurrence and informed police. They along with police went inside the kitchen of the Manju Gogoi (mother of the deceased) and they saw some blood stain on the floor and wall of the kitchen and the same was seem to have washed away before arrival of police. The brother of the deceased i.e. Dignata Gogoi although admitted that he was in the house of Manju Gogoi but denied to have any knowledge as to how the occurrence took place. Suspecting that mother of the deceased Manju Gogoi, his brother Diganta Gogoi and his wife Junumoni Gogoi were involved, the FIR was filed.
3. On the basis of the FIR Halwating PS Case No. 14/12 u/s. 302/34 of IPC was registered and police investigated the case. The necessary witnesses were examined by police u/s. 161 of Cr.P.C. and recovered a piece of bamboo as well as machete from the place of occurrence and it was seized. At the conclusion of the investigation, police submitted charge sheet against the two accused persons namely Dignata Gogoi and Junumoni Gogoi u/s. 302/34 of IPC. The accused persons faced the trial and denied the charge that was framed u/s. 302/201/34 IPC.
4. To substantiate the charge prosecution 9 witnesses and the defence examined none. Plea of defence is of total denial. The statement of accused person was recorded u/s. 313 Cr.P.C. wherein they have denied all the allegation.
5. At the conclusion of the trial, the learned trial Court found and held the accused persons guilty and convicted them as aforesaid. Being aggrieved with such conviction and sentence, the present two appeals have been preferred by them. As both the appeals relates to the same judgment so, they are taken together and disposed of by this common order.
6. Heard Mr. MK Das, learned counsel appearing for and on behalf of the appellants as well as Mr. S. Islam and Mr. Z. Hussain (amicus Curiae). Also heard Mr. D. Das, learned Addl. Public Prosecutor, Assam for the State respondent.
7. The learned counsels appearing on behalf of the appellants has vehemently submitted that the learned trial Court has failed to appreciate the evidence in proper perspective of law as well as fact and by placing reliance upon the testimony of hostile witnesses u/s. 161 of Cr.P.C. and the FIR, despite having no eye witness as well as circumstantial evidence has illegally convicted the accused persons, which is liable to be quashed and set aside. To bolster their argument reliance has been placed in MANU/SC/0273/1995 : 1996 11 SCC 248 Madhusudan Singh and Anr. Vs. State of Bihar to submit that the FIR itself is not a substantive piece of evidence and conviction on the basis of allegation contained in the FIR which is not substantiated by oral evidence, is not sustainable. Further, reliance has been placed in MANU/SC/0087/2013 : (2013) 14 SCC 266 R. Shaji Vs. State of Kerala wherein it has been held that the statement u/s. 161 Cr.P.C. can be used only for the purpose of contradiction and it is not a substantive piece of evidence as the evidence given in the Court under oath.
8. The learned counsel for the State/respondent made no any forceful submission.
9. Before entering into the discussion as about the evidence on record on the basis of which the trial Court has arrived at the guilt of the accused, let us take a overview of the matters on record. As a matter of fact, it is a case where there is no eye witness but nature of injury and the cause of death of the deceased is not disputed. The FIR was filed by the VDP Secretary, who first saw the dead body lying inside the house of campus and the other witnesses arrived later on. From the trend of evidence, it can also be said that there is no circumstantial evidence. Let us have brief look at the evidence on record.
10. The informant as PW-1 has stated that on the day of accident at about 7.30 pm while he saw an ambulance going towards the residence of accused, he went there and found the dead body of Nabin Gogoi lying in the drain inside the homestead of the accused, with injury marks on his neck and head. He heard that there was an incident of assault in the house of the accused, so he informed the police and accordingly police arrived. As no one can say as to how Nabin was killed so the police took all the accused persons and also seized a machete from the residence of accused and bamboo piece found near the dead body vide Ext-3 & 4 he filed the ejhar vide Ext-1 on the next day. He was declared hostile by prosecution and although he denied any statement before police the prosecution has exhibited his statement u/s. 161 of Cr.P.C. as Ext-5.
11. In cross-examination, he has clearly stated that he has no idea what was written in the Ext-5 nor he knows anything about the murder of Nabin Gogoi.
12. Similar is the status of other witnesses PW-2, PW-5. Both of them have given similar statement as of PW-1 that as 108 vehicle reached the house of the accused, they went there and saw the dead body of the deceased Nabin with injury on his person and on the next day police seized dao and lathi through Ext-3 & 4. They were declared hostile by the prosecution wherein they have denied any statement given before police u/s. 161 of Cr.P.C. but the prosecution has exhibited the signature of PW-2 as Ext-6 but however statement of PW-5 was not exhibited. Both of them have specifically stated in cross-examination that neither they have seen the occurrence nor they have given any statement before police.
13. PW-3 Prabhat Gogoi and PW-6 Azad Ali and PW-7 Ramjan Ali and PW-8 Nasar Alam are all heresay witness and they have no knowledge as to how the deceased died. PW-3 simply signed the Ext-3 & 4 seizure list without narrating as to wherefrom such seizure was made. The evidence of PW-3 further reveals that Ext-1 ejahar was written by him as told by ASI Saikia and Jamaluddin Ahmed but the FIR does not bear his signature. PW-6, PW-7 and PW-8 have simply stated that they have heard from others that deceased Birsa was killed by the accused but none of them went to the place of occurrence nor have any knowledge about the incident.
14. The medical officer/PW-4 testified that he conducted the autopsy on the dead body of Nabin Gogoi and he found mark of injury on head, neck, back and shoulder of the deceased and deceased died due to shock and hemorrhage, as a result of injury sustained by him. Lastly, PW-9 is the investigating officer who has stated all about the investigation after receipt of the FIR. According to him he recovered and seized the offending articles machete and bamboo stick as led by accused and it was seized through Ext- 3 & 4 and the accused persons admitted their guilt before him. He has proved the statement of PW-1, PW-2 and PW-5 recorded by him u/s. 161 Cr.P.C.. However, evidence of I/O regarding recovery of weapon of offence, as held by accused is not supported by any of the witness.
15. From the impugned judgment para 30 it reveals that the learned trial Court has relied upon the statement of PW-1, PW-3 and PW-5 (who were declared hostile) given before police u/s. 161 Cr.P.C. to be reliable, trustworthy and rational as well as relied upon the content of FIR Ext-1. It is apparent that the approach of the learned trial Court while appreciating the evidence is not at all appropriate and has no legal sanctity. It has been discussed above that those hostile witnesses have fully denied to have given any such statement before police as has been shown by police. The whole discussion of the trial Court centered around the testimony of the hostile witnesses PW-1, PW-2 and PW-5 and on the basis of their evidence coupled with the allegation in the FIR, the Court has arrived at the guilt of accused persons.
16. It is noted with concern that the learned trial Court has completely failed to appreciate the legal provision as regards the value of statement of the witness recorded u/s. 161 Cr.P.C..
17. As per Section 161 Cr.P.C., the investigating officer is empowered to examine orally any person acquainted with the facts and circumstances of the given case. On the other hand, Section 162 Cr.P.C. imposes a bar on the use of such statement made before the police during investigation by laying down that no statement made by any person to a police officer in course of an investigation, 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 enquiry or trial in respect of any offences under investigation. However, such limitation is subject to provision that when any witness is called for the prosecution, any part of his statement is 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.
18. The law provides that the prosecution cannot cross-examine its own witnesses except with the leave of the Court. Further, if such a witness admits such a statement which the prosecution claims to have been made by witness during the investigation or if an investigating officer proves such statement which the prosecution claims to have been made by the witness during investigation, such a statement cannot be treated as substantive evidence nor it can be the basis of conviction of an accused unless the witness on oath admits in the course of trial that the statement he has given is true.
19. As has been held in R. Shaji (supra) that the statement made u/s. 161 Cr.P.C. is not a substantive piece of evidence and same can be used only for the limited purpose of contradicting the maker thereof in the manner as laid down in the proviso to the Section 162 (1) Cr.P.C..
The said position of law in R. Shaji (supra) is reiterated in the case of V.K. Mishra Vs. State of Uttrakhand MANU/SC/0792/2015 : (2015) 9 SCC 588 that statement u/s. 161 recorded during investigation are not substantive piece of evidence.
20. We can also take note of the fact that a hostile witness can neither be treated as wholly reliable or wholly unreliable and placing reliance upon such evidence of hostile witness as a sole basis of conviction would be wholly illegal and against the provision of law and inconsistent with the judicial pronouncement. Now in the present case the learned trial Court has arrived at the conclusion of guilt of the accused on the basis of 3 numbers of hostile witnesses while they have totally denied to have given any statement before police. That apart, the evidence of IO that the accused made confession before him is totally devoid of law in view of Section 25 of the Evidence Act. The other evidence on record is of no help to prosecution to support the charges.
21. In view of the law laid down that the statement to police u/s. 161 Cr.P.C. not a substantive piece of evidence, same cannot form the basis of conviction. In the instant case, there is neither any direct or circumstantial evidence to link the accused/appellant with alleged offence. So far as the reliance placed by the learned trial Court on the FIR without there being any corroborative evidence and even the author of the FIR has not supported the content of the same, the whole approach by the learned trial Court to form an opinion about the guilt of the accused only on assumption and presumption, beyond evidence on record cannot at all be appreciated and upheld. As has been held in Madhusudan Singh (supra) FIR by itself is not a substantive piece of evidence. It can be used either to contradict or corroborate the maker thereof in the manner provided under the evidence act. In the present case nothing has been brought on record from which it can be held that allegation in the FIR has been substantiated by cogent evidence. The allegation contained in the FIR not proved, at the trial and FIR itself was filed only on the basis of suspicion and there is no evidence at all to prove the charge against the accused persons. That being the position the conviction rendered is unsustainable and liable to be interfered into.
22. Appeal is accordingly allowed and the accused/appellants are acquitted from the charge u/s. 304(II)/201/34 IPC and set at liberty forthwith, if not wanted in any other case. Issue R.O accordingly. Return the LCR with a copy of judgment.
23. Appreciating the assistance by the learned Amicus Curiae Mr. S. Islam and Mr. Z. Hussain, the State Legal Service Authority is hereby directed to provide an amount of Rs. 7,000/- each to the learned Amicus Curiae.
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