Diganta Gogoi and Ors. Vs. The State of Assam and Ors. - (High Court of Gauhati) (14 Feb 2019)

Statement to police is not a substantive piece of evidence; same cannot form the basis of conviction

MANU/GH/0085/2019

Criminal

In facts of present case, on the basis of the FIR registered, police investigated the case. The necessary witnesses were examined by police under Section 161 of Code of Criminal Procedure, 1973 (CrPC). At the conclusion of the investigation, police submitted charge sheet against the two accused persons Appellants under Section 302/34 of IPC. The accused persons faced the trial and denied the charge that was framed u/s. 302/201/34 of IPC. Statement of accused person was recorded under Section 313 CrPC wherein they have denied all allegations.

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.

The evidence of I/O regarding recovery of weapon of offence, as held by accused is not supported by any of the witness. From the impugned judgment, 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 under Section 161 of CrPC 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 appropriate and has no legal sanctity.

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. 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.

In view of the law laid down that, the statement to police under Section 161 of CrPC is 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. As has been held in Madhusudan Singh, 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 to prove the charge against the accused persons. The conviction rendered is unsustainable and liable to be interfered into. Appeal is accordingly allowed and the accused/Appellants are acquitted from the charge under Section 304(II)/201/34 of IPC.

Relevant : Madhusudan Singh and another vs. State of Bihar MANU/SC/0273/1995

Tags : CONVICTION LEGALITY EVIDENCE CREDIBILITY