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2002 DIGILAW 224 (GAU)

Mukut Mohammad v. State of Assam

2002-05-24

I.A.ANSARI, R.S.MONGIA

body2002
I. A. ANSARI, J- Seldom it is that a man faces trial on the charge of commission of murder, for, having allegedly put to end his own brother's life and that too following a quarrel arising out of a boundary dispute. The present one is one of such cases. 2. The appellant has impugned, in this appeal, the judgment and order, dated 20.12.96, passed by the learned Sessions Judge, Sibsagar, in Sessions Case No. 42(S-S)/92, convicting the accused-appellant under Section 302 IPC and sentencing him to undergo imprisonment for life and also to pay a fine of Rs. 10007-and in default, to suffer rigorous imprisonment for six months. 3. The case of the prosecution, as unfolded at the trial, may, in brief, be stated thus: on 18.02.92, at about 11 a.m., appellant, Mukut Mohammed, appeared at Nazira Police Station and informed Sub-Inspector Ghana Kanta Bora that some quarrel had taken place among his four brothers, but he was not aware as to which one of them had died. Based on this oral information, G.D. Entry No. 431, dated 18.02.92 (i.e. Ext-4) was made and keeping the appellant at the police station for interrogation, S.I. Bora came to the house of deceased Hassan Ali at Namotigaon and found Hassan Ali lying dead at the backside verandah of his house with injuries on his body. Inquest was held over the said dead body and inquest report (Ext.5) was prepared. A written ejahar (Ext. 1) was, then, formally handed over to S.I. Bora by Rose Mohammed, one of the brothers of the accused, alleging, inter alia, that on 18.02.92, at about 9.30 a.m., appellant had killed Hassan Ali by hacking him with a dao, while the latter was working at his house, and, then, fled away. Treating this ejahar as First Information Report, Nazira P.S. Case No. 24/92 under Section 302 IPC was registered, postmortem examination was conducted on the said dead body and post-mortem report (Ext. 3) was prepared. On completion of investigation, police laid charge sheet against the appellant under Section 302 IPC. 4. During trial, when a charge framed under Section 302 IPC was explained to the appellant, he pleaded not guilty thereto. 5. In all, prosecution examined as many as ten witnesses including the Investigating Officer. 3) was prepared. On completion of investigation, police laid charge sheet against the appellant under Section 302 IPC. 4. During trial, when a charge framed under Section 302 IPC was explained to the appellant, he pleaded not guilty thereto. 5. In all, prosecution examined as many as ten witnesses including the Investigating Officer. The appellant was, then, examined under Section 313 Cr.P.C. In his examination aforementioned, the appellant denied that he had killed Hassan Ali, the case of the defence being an admixture of a plea of denial and a plea of alibi. 6. At the end of the trial, learned trial Court, on finding the appellant guilty of the charge framed against him, convicted him accordingly and passed sentence against him as hereinabove mentioned. Hence, this appeal. 7. The moot point, which arises for consideration in the present appeal, is this: whether the finding of guilt arrived at by the learned trial Court is justified on the basis of the evidence on record and law relevant thereto? 8. We have carefully perused the record including the impugned judgment and order. We have heard Mr J.M. Choudhury, learned senior advocate appearing on behalf of the appellant, and Mr P. Bora, learned Additional Public Prosecutor for the respondent. 9. Upon hearing the appeal and perusal of the records, what we notice is that PW-5 (Banu Arifa Ahmed) is the sole eyewitness of the occurrence examined by the prosecution and though PW-2 (Abdul Rahman) was also examined as an eyewitness, he turned hostile. 10. However, before adverting to the value of the evidence given by PW-2 and PW-5, it is, in our view? necessary, in this case, to commence discussion of the evidence on record with the evidence of the Investigating Officer (PW-10). According to this witness, on 18.12.92 at about 11 a.m., while he was functioning as in-charge of Nazira Police Station, accused Mukut Mohammed appeared before him at the said police station and verbally informed him that a quarrel had taken place among his four brothers and that he did not know which one of them had died following the quarrel. On receiving this information, PW-10 made GD Entry No. 431, dated 18.02.92, which has been proved as Ext. 4. Acting upon this information, PW-10 came to the house of deceased Hassan Ali at village Namati and found many people gathered there. On receiving this information, PW-10 made GD Entry No. 431, dated 18.02.92, which has been proved as Ext. 4. Acting upon this information, PW-10 came to the house of deceased Hassan Ali at village Namati and found many people gathered there. Those people reported to PW-10 that Mukut Mohammed (i.e. appellant) had fled away to the thana after hacking Hassan to death. PW-10 found Hassan's dead body lying at the back side verandah of his house. PW-10 held inquest over the said dead body, which bore injuries, and prepared the inquest report (Ext. 5) and, then, after sending the said dead body to hospital for post-mortem examination, PW-10 examined the witnesses and recorded their statements. PW-10 also prepared a sketch map (Ext. 6) of the place of occurrence. On receiving formally an ejahar (Ext. 1) from deceased Hassan's brother, Rose Mohammed (PW-1) at the place of occurrence, PW-10 sent the same to Nazira Police Station and on the basis of this ejahar, Nazira P.S. Case No. 24/92 under Section 302 IPC was registered against the accused-appellant. On returning back to his police station, PW-10 placed the appellant under arrest and recorded his statement in presence of two witnesses. It is in the evidence of PW-10 that during interrogation, accused told him that the dao with which he had cut Hassan Ali had been thrown by him in the Dikhow river and the accused, then, led him to the said river and though they tried to recover the dao by using net and engaging local divers, they could not recover the same and, on completion of investigation, he submitted charge sheet against the accused. 11. From a bare reading of the evidence of P W-10, it becomes abundantly clear that though the ejahar (Ext. 1), presented to PW-10, at the place of occurrence, by PW-1 (Rose Mohammed) has been treated as FIR, the same is, at the most, a statement made, in writing, by PW-1 to the police during the investigation of the case inasmuch as the investigation had actually commenced on the basis of the said oral information received from the appellant himself and Ext. 1 (i.e., so-called FIR) was lodged after the police investigation had made great headway inasmuch as the inquest over the said deadbody had already been held, necessary sketch map of the place of occurrence had already been prepared and statements of witnesses already stood recorded. 1 (i.e., so-called FIR) was lodged after the police investigation had made great headway inasmuch as the inquest over the said deadbody had already been held, necessary sketch map of the place of occurrence had already been prepared and statements of witnesses already stood recorded. Thus, the oral information given to the police by none other than the appellant himself is really the FIR of this case and this FIR merely reveals that the appellant informed the police that a quarrel had taken place among his four brothers, but he did not know which one of them had died following the quarrel. 12. It also of immense importance to note that PW-10 has stated that the accused had made a statement to the effect that the dao with which he had cut his brother had been thrown by him in Dikhaw river. This statement, indeed, amounts to confession, but it is not clear from the evidence of PW-10 whether this statement had been reduced into writing or not. No contemporaneous record has been produced by PW-10 to prove this statement. Moreover, it is worth emphasising that to make admissible in evidence, under Section 27 of the Indian Evidence Act, a statement made by accused amounting to confession, the confession must lead to discovery of the incriminating material, because such discovery leads to the inference that what the accused had stated was true. It needs to be borne in mind that Section 27 is in the nature of aprovilc^ to Sections 25 and 26 Evidence Act inasmuch as Sections 25 and 26 make confession made by accused to police or in presence of police inadmissible in evidence, but Section 27 removes this restriction for a limited purpose and lays down that confession made to even police will be admissible if the confession leads to discovery of fact. 13. 13. In the case at hand, in the absence of any statement, in writing, as to what exactly the accused had stated before the police coupled with the failure of the PW-10 to recover the dao, which the accused had reportedly said to have been thrown by him into the river, the bare assertion of PW-10 that the accused had told him that the dao by which he had cut his brother was thrown by him into the river is really not admissible and can be given no evidentiary value at all, particularly, because PW-10 claims that the statement of the accused was recorded in presence of two witnesses, but no witness has been produced by PW-10 to show that before any attempt was made by PW-10 to recover the dao, any statement was made by the accused in presence of any such witness. That apart, even if such a statement was v made to any Police Officer in presence of ^ witnesses, such a statement, which amounted to confession, is not admissible in evidence, because the accused was in police custody, when he had made the alleged statement, and no 'fact', within the meaning of Section 27, has been discovered in pursuance of any such alleged statement. 14. We may pause here to point out that the evidence of PW-7 shows that in the month of February, 1992, police met him at the bank of Dikhow river, accused was with the police party and as per statement of the accused, police searched for a dao, which the accused had stated to have been thrown by him in the river, but the dao was not found. It is not clear from the evidence of PW-7 whether the accused had made any such statement as deposed to by PW-7, on being brought to the said river by the police or whether PW-7 had been informed by PW-10 that the accused had made such a statement. 15. Situated thus, no credence can be given to the evidence of PW-7. Moreover, in the absence of discovery of any fact in consequence of what the accused had allegedly stated, the evidence given by PW-7 as to what the accused had stated, while in the police custody, remains inadmissible even under Section 27 of the Evidence Act. In no way, therefore, the evidence of PW-7 can help the prosecution's case. 16. Moreover, in the absence of discovery of any fact in consequence of what the accused had allegedly stated, the evidence given by PW-7 as to what the accused had stated, while in the police custody, remains inadmissible even under Section 27 of the Evidence Act. In no way, therefore, the evidence of PW-7 can help the prosecution's case. 16. In short, for the reasons discussed above, we keep excluded from the purview of our consideration the evidence given by PW-7 and PW-10 regarding what the appellant had allegedly stated before PW-10 about the alleged weapon of offence. 17. Moreover, while the appellant was examined under Section 313 CrPC, no part of the evidence of PW-7 was put to the appellant. Since the evidence given by PW-7 was not put to the appellant, the evidence given by him against the appellant cannot be considered against the appellant. Reference may be made in this regard to Sarad Birdhi Chand- Vs-State of Maharashtra (AIR 1984SCI622), which lays down succinctly the law on the subject of examination of accused under Section 313 Cr.P.C. in the following words. "This has been consistently held by this Court as far as back in 1953, where in the case of Hate Singh BhagatSing- Vs-State ofMadhya Bharat, AIR 1953 SC 468 , this Court held that any circumstance in respect of which an accused was not examined under Section 342 of the Criminal Procedure Code cannot be used against him. Ever since this decision, there is a catena of authorities of this Court uniformly taking the view that unless the circumstance appearing against an accused is put to him in his examination under Section 342 or Section 313 of the Criminal Procedure Code, the same cannot be used against him.... It is not necessary for us to multiply authorities on this point as this question now stands concluded by several decisions of this Court. In this view of the matter, the circumstance which are not put to the appellant in his examination under Section 313 of the Criminal Procedure Code have to be completely excluded from consideration." (Emphasis is added by us) 18. Thus, the evidence of PW-10 and PW-7 do not show that the appellant had assaulted Hassan Ali. What, however, the evidence of PW-10 does show is that Hassan All's deadbody was found lying at the backside verandah of his house. Thus, the evidence of PW-10 and PW-7 do not show that the appellant had assaulted Hassan Ali. What, however, the evidence of PW-10 does show is that Hassan All's deadbody was found lying at the backside verandah of his house. This verandah has also been shown in the sketch map (Ext. 6) as the place of occurrence. 19. Keeping in view the above aspects of the evidence on record, when we turn to the evidence of PW-1 (Rose Mohammed), we notice that according to this witness, deceased Hassan's house is situated at a distance of about 4 feet from this witness's house and on the day of the occurrence at about 9.30 a.m., on hearing cries 'Katile-o-Katile' (Has Cut, Has Cut) from Hassan's house, he (PW-1) immediately reached the verandah, located at the back side of Hassan's house, and found Hassan lying there smeared with blood, but no one else was present there, whereupon he (PW-1) started screaming and as injured Hassan was moaning, he (PW-1) put water into Hassan's mouth. PW-1 has also deposed that upon hearing his screams, Magrib Ali (PW-4) and Jahiruddin (not examined) came there and they tied Hassan's injuries with cloth, a vehicle was brought, but immediately after Hassan was put in the vehicle, he died and, then, he (PW-1) came to the police station and lodged there an ejahar, which is Ext. 1, and, then, the police took away the deadbody. 20. The evidence of PW-1 shows as if it was on the information given by him to the police that PW-10 came to the place of occurrence and took away the deadbody. Belying these assertions of PW-1, however, PW-10 has, in no uncertain words, deposed, as already indicated above, that he (PW-10) received ejahar (Ext. 1) from PW-1 at the place of occurrence. That apart, the evidence of PW-10 clearly shows that the,police had reached the place of occurrence not in pursuance of the said ejahar (Ext. 1), but in pursuance of the oral information, which PW-10 had received from the accused himself. 21. Be that as it may, what the evidence of PW-1, in tune with the evidence of PW-10, clearly shows is that Hassan was found lying injured and moaning at the backside verandah of his house. No indication is, however, received from the evidence of PW-1 as to what had injured Hassan. 22. 21. Be that as it may, what the evidence of PW-1, in tune with the evidence of PW-10, clearly shows is that Hassan was found lying injured and moaning at the backside verandah of his house. No indication is, however, received from the evidence of PW-1 as to what had injured Hassan. 22. Broadly in tune with PW-1, PW-3, who is younger brother of the appellant, has deposed that on the day of occurrence at about 9.30 a.m., on hearing 'nullah' from the house of the deceased, he came to.the house of the deceased and saw Hassan lying dead at the back side verandah of his house. 23. Thus, even the evidence of PW-3 shows that Hassan was found lying at the backside verandah of his house. 24. Coming to the evidence of PW-4 (Magrib Ali), we find that this witness has deposed that on the day of occurrence at about 8/9 a.m., while threshing paddy, he heard hulla from the house of Hassan, he came to Hassan's house and saw Hassan: lying in a pool of blood at the backside verandah of his house and at that time, Hassan was bleeding from the injuries, which he had received on his head and his right hand stood severed and as Hassan was moaning and asking for water, he gave water by pouring the same into Hassan's mouth and bandaged his hand by tearing the lungi which was lying near fencing. 25. The evidence of PW-4 too, if we may emphasise, shows that Hassan was found lying injured at the backside verandah of his house. 26. As far as the evidence of PW-6 (Smti Tulu Begum) is concerned, her evidence is that Hassan was her husband's younger brother and on the day of occurrence at about 9 a.m., on hearing hulla "Hassan Mori Lay - Hassan Mori Lay" (i.e., Hassan has died," Hassan has died"), she came to Hassan's house and found him lying at his backside verandah with injuries on his person, which were bleeding, Hassan was moaning and their co-villagers had already gathered there. 27. Thus, the consistent and overwhelming evidence on record exists showing that the place of occurrence was the backside verandah of Hassan's house, where Hassan was found lying injured by the witnesses, who had come to the ,said house on tearing hulla. 28. 27. Thus, the consistent and overwhelming evidence on record exists showing that the place of occurrence was the backside verandah of Hassan's house, where Hassan was found lying injured by the witnesses, who had come to the ,said house on tearing hulla. 28. Keeping in view the above highly significant aspects of the evidence on record, let us, now, come to, and deal with, the evidence of PW-5 (whom prosecution has examined as the sole eyewitness). 29. When we consider the evidence of PW-5, we find that her evidence is that the accused is her paternal uncle, deceased Hassan Ali was also her paternal uncle, Hassan Ali used to stay separately in a house contiguous to her house and that the accused also used to stay separately. 30. As regards the occurrence, the evidence given by PW-5 is highly inconsistent inasmuch as she initially deposed that on the day of occurrence at about 9.30 a.m., while she was playing at the house of one Akon, situated in front of her house, she heard that Mukut (i.e., the appellant) had killed Hassan Ali and, on coming to the house of Hassan, she found Hassan lying injured in a pool of blood and some people from neighbourhood had also assembled there. It is in evidence of PW-5 that there is a verandah at the front side of Hassain's house and Hassan was found lying dead there with injuries on his body. 31. Thus, the evidence initially given by PW-5 rules out completely the possibility that she had witnessed the occurrence inasmuch as her evidence shows that when she arrived at the place of occurrence, she did not find the appellant there and what she found was Hassan's dead body lying .at the front side verandah of Hassan's house. In her next breath, however, PW-5 asserted that on witnessing accused Mukut dealing dao blows on deceased Hassan, she had raised alarm and run away to her house. 32. Again, on coming to the cross-examination of PW-5, we notice that PW-5 has deposed that she was tutored by some people and that is why, she stated before the police that she had seen accused Mukut dealing dao blow on the deceased, while she was playing in .the front verandah of the house of the deceased. 33. 32. Again, on coming to the cross-examination of PW-5, we notice that PW-5 has deposed that she was tutored by some people and that is why, she stated before the police that she had seen accused Mukut dealing dao blow on the deceased, while she was playing in .the front verandah of the house of the deceased. 33. However, notwithstanding-the hesitant assertions of PW-5, at the end of her examination-in-chief, that on witnessing assaults taking place on the deceased at the hands of the appellant, she had raised alarm, the fact remains that her candid admission is that she had been tutored by some people and that is why, she had stated before the police that she had seen the accused dealing dao blows on Hassan's deadbody. Viewed from this angle, we find it highly unsafe to place implicit reliance on the evidence of PW-5 depicting herself as an eyewitness of the, occurrence. 34. Be that as it may, even if one momentarily ignores the inconsistencies with which stands woven the evidence of PW-5, what transpires, at the most, from her evidence is that according to her, when she was playing at the front side verandah of the deceased, she, on witnessing the appellant giving dao blows on the deceased, raised alarm and ran away to her house. 35. Curiously enough, however, the evidence of PW-5 gives no indication at all as to how she happened to witness the occurrence, which, according to all the witnesses (who came to the place of occurrence) had taken place at the backside verandah of Hassan's house, when PW-5 (according to her own evidence) was present at the front side verandah of the house. This apart, PW-5 reiterates that Hassan was lying at the front side verandah of his house. This assertion of PW-5 stands wholly belied by the evidence of other prosecution witnesses, namely, PWs 1,3,4 and 6. Apart from these disquietening features, it is also worth noticing that at no point of time, PW-3 (i.e., the father of PW-5) and/or PW-6 (i.e., the mother of PW-5) claimed that PW-5 told them that she had witnessed the occurrence and/or that she had seen the accused coming to the place of occurrence with a dao in his hand. Apart from these disquietening features, it is also worth noticing that at no point of time, PW-3 (i.e., the father of PW-5) and/or PW-6 (i.e., the mother of PW-5) claimed that PW-5 told them that she had witnessed the occurrence and/or that she had seen the accused coming to the place of occurrence with a dao in his hand. It will be, to our mind, highly unnatural on the part of a child, aged about 11 years (as PW-5 was at the time of occurrence) not to reveal the truth to her parents, if she had really witnessed the occurrence. 36. Because of what have been discussed above, we find it extremely difficult and unsafe to place reliance on the sole testimony of PW-5 and even if we do not reject her evidence as wholly unbelievable, her evidence will fall, at the most, in the category of those witnesses, who are regarded, in criminal law, as "neither wholly reliable nor wholly unreliable". If evidence of such a witness is to be relied upon, his/her evidence must receive corroboration, in material particulars, from other credible evidence on record. In the case at hand, however, there is absolutely no indication from the evidence on record that it was the accused, who had injured Hassan Ali leading to latter's death. In fact, if the evidence of PW-5 is kept excluded from consideration as unsafe or unreliable, there remains really no clinching evidence on record even to show, far less prove, that the accused had come to the house of Hassan Ali on the day of occurrence inasmuch as none of the prosecution witnesses except PW^5 claims to have seen the accused, on the day of occurrence, at the house of the deceased. 37. It is also of great importance to note that with regard to the oral information, which the accused, lodged with the police, the accused has stated; during his examination under Section 313 CrPC, that on his way, he met a man, who had informed him that a quarrel had taken place at his house and on receiving this information, he went to Thana to inform the police. This explanation offered by the accused may not be true, but this explanation cannot be brushed aside, because there is no credible evidence on record to prove presence of the appellant at the scene of occurrence. This explanation offered by the accused may not be true, but this explanation cannot be brushed aside, because there is no credible evidence on record to prove presence of the appellant at the scene of occurrence. And if this statement is not thrown away, then, this statement made by the accused gives reasonable explanation as to why he came to the police station and could not help, but lodge a vague kind of information with police that some quarrel had taken place among his brothers, but he did not know which one of them had died following the quarrel. 38. Turning to the evidence of PW-2 (Abdul Rahman), who too, according to prosecution, was an eyewitness to the occurrence, we find that this witness has deposed that on the day of the occurrence, in the morning, he came to the house of the deceased Hassan Ali to work on daily wages basis, but at about 8.30 a.m., he went back to his house to answer the call of nature and at about 10 a.m., when he returned back to Hassan's house, he found many people present at the courtyard of the said house and Hassan lying dead in his courtyard with some injuries on his person. PW-2 has also deposed that Ulai, Bhanu and others told him that accused Mukut had cut Hassan. PW-2 has further deposed that he, then, left for his house, he did not meet police after the occurrence and police did not record his statement. At this stage, PW-2 was declared hostile and was cross-examined, with the permission of the Court, by prosecution. We must pause here to point out that merely because PW-2 has been declared hostile, his entire evidence cannot be thrown away and to the extent substantive evidence given by him supports the case of the prosecution, the same may be adopted by the Court. 39. Keeping in view the above position of law, when we revert to the evidence of PW-2, we notice that though in his cross-examination by the prosecution, PW-2 had denied, Investigating Office (PW-10) has confirmed that PW-2 stated before him, "On the day of occurrence, in the morning, I was working with Hassan for making fences. I went to the backside to fetch bamboo, for making "Khabua" (supporting bar) for the fences. Upon my return with bamboo for "Khabua", I found Hassan mixing tobacco, sitting at his verandah. I went to the backside to fetch bamboo, for making "Khabua" (supporting bar) for the fences. Upon my return with bamboo for "Khabua", I found Hassan mixing tobacco, sitting at his verandah. About this time, his elder brother Mukut Mohammed, armed with a "Copi Dao" in his hand, dealt a cut blow on Hassan and severed his right hand. I seized Mukut. When Mukut threatened to cut me, I screamed "Mukute Katile", Mukute Katile" and fled and, immediately thereafter, people came up. I could not notice who came and from where, because, I was very much scared to see such an occurrence taking place under my nose." 40. In his further cross-examination by prosecution, we notice that PW-2 has admitted that on 15.02.93, he did appear in the Court, filed his attendance and submitted a bill for having attended the Court. PW-2 has also admitted that he filed an application, which is Ext. 4, before the learned trial Court stating that accused had threatened to kill him, if he gave evidence in the case. It is in the evidence of PW-2 that showing a dao to his wife, the accused had also threatened that he would cut him, if he (PW-2) became a witness, PW-2, however, admits that at the time, when the accused had so threatened, he (PW-2) was not at -home. It is also in the evidence of PW-2 that the threats given by the accused still lurks in his mind and that he is still scared that he might be assaulted by the accused, if he (PW-2) told the truth. 41. It is important to note that if we have to determine as to whether the appellant had really issued threats as deposed to by PW-2, the evidence given by the PW-2 that the accused had threatened his PW-2's) wife is nothing but hearsay inasmuch as PW-2's wife, whom the appellant is claimed to have threatened, has not been examined as a witness to prove the factum of threat. However, in the face of the admission of PW-2 that he is scared to speak the truth, there is no escape from conclusion that PW-2 might not have told the whole truth before the Court. However, in the face of the admission of PW-2 that he is scared to speak the truth, there is no escape from conclusion that PW-2 might not have told the whole truth before the Court. It, therefore, logically follows that the evidence given by him to the effect that he had not seen the occurrence at all, which is contrary to what is shown to have been stated by him before the Police, can be given no credence at all, but this fact alone, we must hasten to add, does not, as a corollary, prove that what PW-2 had stated before the police was the truth, particularly, when PW-2 does not admit that what he had stated before the police was the truth. 42. In other words, though the evidence of PW-2 that he was not present at the place of occurrence, when the occurrence took place, may not be true, the fact remains that his previous statements cannot be used by prosecution as proof of the fact that he was an eyewitness to the occurrence and/or that what he had stated before the police was the truthful version of the occurrence. 43. We also notice that though PW-3 has deposed that before the occurrence, he saw Abdul Rahman and deceased Hassan creating a bamboo fencing at the backside verandah of Hassan's house and after some time, he heard "Hasanak Mukutey Kattile" (i.e., Hassan has been cut by Mukut), his evidence gives no indication that he found Abdul Rahman (PW-2), at the place of occurrence, when he (PW-3) came there. Similarly, though PW-4 claims that Abdul Rahman (PW-2) reported to him that accused Mukut had cut Hassan to death by dao, this assertion of PW-4 is nothing but hearsay inasmuch as PW-2 has nowhere deposed that he reported to PW-4 what PW-4 claims to have been reported to him by PW-2 nor has PW-2 deposed that he had seen the assaults on the deceased. 44. 44. We may also point out that even from the evidence of PW-6, whose evidence is that the deceased was erecting some bamboo fencing with Abdul Rahman (PW-2) and it was Abdul Rahman, who had-raised hulla that "Katiley-o-Katiley" and when she reached the place of occurrence, she was told by those, who had gathered at the place of occurrence, that the accused had cut Hassan, it is clear that her evidence tools nothing but hearsay, because no one has asserted in the Court that he or she had reported to PW-6 that Mukut had cut Hassan. 45. It is, now, well settled that the previous statement of a witness recorded under Section 161 CrPC can be used for the purpose of only contradicting his evidence given in the Court and that the previous statement of such a witness is not substantive evidence and cannot be used for the purpose of corroboration by prosecution. In the case at hand, learned trial Court has, sadly enough, freely relied on the previous statement of PW-2 for the purpose of seeking corroboration for the case set up by the prosecution, which is wholly impermissible in law. Reference in this regard may be made to Baldev Singh-Vs-State of Punjab ( AIR 1991 SC 31 ) wherein it has been laid down as under: "Needless to stress that the statement recorded under S. 161 of the Code of Criminal Procedure shall not be used for any purpose except to contradict a witness in the manner prescribed in the proviso to Sec. 162(1) and o that the First Information Report is not a substantial piece of evidence." 46. In case of appreciation of evidence of hostile witness, there is only one deviation from the past in the position of law. While in the past, if a witness was declared hostile by the party calling him, the evidence of such a witness was treated as wholly unreliable on the ground that even the party, who called such a witness to prove his case, declares the witness as unworthy of trust. The evidence of hostile witness was, therefore, used to be treated non-existent, but over a period of time, Courts have realised that it is difficult to always get "wholly reliable witnesses". The evidence of hostile witness was, therefore, used to be treated non-existent, but over a period of time, Courts have realised that it is difficult to always get "wholly reliable witnesses". The remedy, therefore, did not lie in rejecting lock, stock and barrel evidence of such a witness and to-day, the position of law is that if a witness is declared hostile, his evidence does not get washed away and the extent to which a hostile witness's evidence supports prosecution's case, the same may be adopted by the Court. 47. In the case at hand, however, the evidence of PW-2 (who has been declared hostile) does not, for reasons indicted above, help the prosecution in proving it's case against the appellant. 48. What, therefore, crystallizes from the above discussion is that the prosecution could not adduce sufficiently credible and convincing evidence to enable a prudent person hold that Hassan AH died as a result of assaults at the hand of the appellant. 49. Situated thus, we have no hesitation in holding that the prosecution has failed to bring home the charge beyond all reasonable doubt and the appellant ought to have been given, at least, benefit of doubt. 50. In the result and for the reasons discussed above, this appeal succeeds. The impugned judgment and order shall stand set aside and the appellant is acquitted of the charge framed against him under benefit of doubt. 51. Let the appellant be set at liberty forthwith unless he is required to be detained in connection with any other case. 52. Send back the LCRs with a copy of this judgment and order.