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2009 DIGILAW 7 (GAU)

Md. Abur Ali v. State of Assam

2009-01-06

A.C.UPADHYAY, AFTAB H.SAIKIA

body2009
JUDGMENT Aftab H. Saikia, J. 1. Heard Mr. J.M. Choudhury, Learned Senior Counsel assisted by Mr. B.M. Choudhury, Ms. K. Bora, the Learned Counsel for the appellants as well as Mr. K.C. Mahanta, learned Public Prosecutor, Assam for the State. 2. Five appellants, namely, Abur Ali, Meher Ali, Asmat Ali, Yazed Ali and Latif Ali were found guilty under Section 302, IPC read with Section 34, IPC for committing murder of one Makbul Hussain (hereinafter referred to as, 'the deceased') on 23.4.2002 and accordingly learned Additional Sessions Judge, Fast Track Court, No. 2, Kamrup, Guwahati (for short, 'the learned Judge') vide Judgment and Order dated 18.8.2007 rendered in Sessions Case No. 255(K)/02 sentenced all of them to suffer rigorous imprisonment (for short, 'RI') for life and to pay fine of Rs. 5,000 each, in default, to suffer simple imprisonment for 1 month each. 3. The allegations made against those appellants were found in the FIR lodged by one Abdul Matleb (PW3) with Boko Police Station. In the FIR so lodged above mentioned, the complainant alleged that on 23.4.2002 at around 10:00 P.M., while a cultural function on account of 'Rongali Bihu' was going on at Baua Balijhar village under Boko Police Station, the spectators therein were surprised hearing the sound of firing nearby. On enquiry it was found that the deceased aged about 30 years, a B.Sc. teacher of a local school (Champlupara High School) was lying dead with bullet injury in the middle of the road near Balijhar 'Idgah' at a distance of 100/150 meters west of the Bihu stage. It was also mentioned in the FIR that the deceased was also the Secretary of Barua Mandal Congress (I) Committee. The police on completion of the investigation so ensued on the basis of the above allegations made in the FIR, submitted charge sheet against all the appellants herein. 4. During the trial, the prosecution examined as many as 18 witnesses, out of whom 2 were declared hostile namely, Salem Ali (PW4) and Jabed Ali (PW5) were declared hostile, including PW2, Dr. Kanak Ch. Das who adduced medical evidence to support the injuries so found by him in conducting the post mortem on the person of the deceased. Two persons were examined as court witnesses namely, Sahar Ali (CW1) and Hasan Roshid (CW2). 5. Kanak Ch. Das who adduced medical evidence to support the injuries so found by him in conducting the post mortem on the person of the deceased. Two persons were examined as court witnesses namely, Sahar Ali (CW1) and Hasan Roshid (CW2). 5. Having appreciated and evaluated the testimony of those witnesses so examined by prosecution and also giving due consideration to the arguments so placed on record by the Learned Counsel for the parties, the learned Judge came to the finding that all those appellants were involved in killing the deceased and accordingly convicted and sentenced all of them as indicated above. 6. In support of this appeal and challenging the impugned conviction and sentence of the appellants, Mr. Choudhury, Learned Senior Counsel has strongly contended that the impugned conviction and sentence are not maintainable only on sole ground with the learned Judge wholly relied on the statements made by PW4 and PW5 in their investigation under Section 161, Cr.PC who were later on declared hostile by the prosecution as they negated their statements made before the Investigating Officer. The basic thrust of his contention is that the statements of those witnesses under Section161, Cr.PC, being wholly inadmissible in evidence ought not to have been taken into consideration by the trial court and hence on this sole and only ground alone the impugned conviction and sentence of the appellants deserve to be set aside and quashed. 7. Per contra, Mr. Mahanta learned P.P. has submitted that no infirmities and irregularities have been committed by the trial court in convicting all the appellants as they were found guilty of heinous crime of killing the innocent school teacher. His contention is that relying on the settled law as regards acceptability of the hostile witness, being supported by judicial decisions of the Apex Court as well as of this; court, the trial Judge rightly arrived at a conclusion that merely being a hostile witness, the testimony of those witnesses of PW4 and PW5 cannot be ignored and brushed aside. It is submitted that it was admitted fact, according to the trial court that on the date of occurrence, there was a Bihu function organized in the Balijhar Bazar and on that occasion, the deceased was found to be along with all these five appellants as indicated by PW4 and PW5 in their statements given before the Investigating Officer at the time of investigation. Applying the "last seen together" theory into the facts and circumstances of the case, all the appellants were correctly convicted. According to him, the conviction and sentence of the appellants were wholly justified and totally correct and the same warrants no interference from this Court. 8. Meticulous consideration has been given to the extensive arguments so placed on record by the Learned Counsel for the parties. We have also scrupulously scanned and scrutinized the entire evidence on record including the testimony of PW4 and PW5. It is seen from the close perusal of the evidence on record as well as careful examination of the impugned conviction and sentence that the learned Judge basically and truely relied upon the statements made by PW4 and PW5 recorded under Section 161, Cr.PC and accepted the evidence of PW4 and PW5, though they were declared hostile, relying on the decision of the Apex Court to the effect that evidence of hostile witness could not be effaced and washed off but the same could be accepted to the extent his conversion was found to be tenable on a careful scrutiny thereof. The trial court while arriving at the finding in passing the impugned conviction and sentence observed in its judgment as under: Here in this case, it is an admitted fact that on the date in question, a Bihu function was organized in the Balijhar Bazar. The deceased witnessed it along with one of his family members. Thereafter, somebody called the deceased and after a while the deceased was found to be dead having bullet injuries on his person. The aforesaid hostile witness also confirmed the said story during their examination-in-chief. But, they did not confirm the later part of the prosecution story to the effect that that the accused persons named above took the deceased towards the place of occurrence wherein the deceased was fired upon whereby the deceased died of the gun shot. The aforesaid hostile witness also confirmed the said story during their examination-in-chief. But, they did not confirm the later part of the prosecution story to the effect that that the accused persons named above took the deceased towards the place of occurrence wherein the deceased was fired upon whereby the deceased died of the gun shot. In my opinion, as the concerned I.O., of the case confirmed that the aforesaid hostile witness had narrated the aforesaid part of the prosecution story before him during investigation so, under the facts and circumstances and reasons as stated herein above, the said part of the prosecution story can be deemed to be consistent with the prosecution story and I can conclude that the hostile witnesses in question can be dependent to the extent that the accused persons had forcefully lifted the deceased from the front of their shops towards the place of occurrence where bullet ridden body of the deceased was found, In the result the said piece of evidence of hostile witnesses can be deemed that the accuseds and the deceased were last seen together. 9. Having considered the impugned judgment as well as settled law on the applicability of the statement made under Section 161 Cr.PC, we, with all respect, agree to disagree with the views expressed by the learned Judge. 10. Concededly there was no eye witness to prove the case of the prosecution and the entire conviction has been based on the circumstantial evidence. In the instant case, the learned Judge relied on the testimony of the hostile witnesses of PW4 and PW5 holding that they consistently narrated correct position of the story before the Investigating Officer during the investigation stating that somebody called the deceased and thereafter the deceased was found to be dead having bullet injuries on his person and those hostile witnesses confirmed that part of story in their chief. But amazingly, it was his finding that those witnesses did not confirm that the appellants took the deceased towards the place of occurrence wherein the deceased was shot to death. In the backdrop of this finding, we are disinclined to approve the impugned conviction of the appellants. 11. Law stands settled as regards admissibility of statement made under Section 161, Cr.PC. In the backdrop of this finding, we are disinclined to approve the impugned conviction of the appellants. 11. Law stands settled as regards admissibility of statement made under Section 161, Cr.PC. A statement made in the course of investigation and recorded under Section 161, Cr.PC is not a substantive piece of evidence and the same may be used for limited purpose to contradict or impeaching the credibility of the witnesses. Therefore, reliance cannot be placed on such inadmissible evidence for conviction of an accused. 12. In a case of Ram Swaroop and Ors. v. State of Rajasthan AIR 2004 SC 2943 , the Apex Court, while dealing with the acceptability of the statement made in the course of investigation and recorded under Section 161, Cr.PC, in paragraphs 23 and 24 observed as under: 23. We have also noticed that the High Court has attached undue importance to the statements made in the course of investigation and recorded under Section 161 of the Code of Criminal Procedure. It is well settled that a statement recorded under Section 161 of the Code of Criminal Procedure cannot be treated as evidence in the criminal trial but may be used for the limited purpose of impeaching he credibility of a witness. We find that in paragraph 6 of the judgment, the High Court while dealing with the evidence of PW7 has clearly treated the statement of PW7, recorded in the course of investigation, as substantive evidence in this case. The High Court observed: He is consistent in his statement under Section 161, Cr.PC. that while he along with Kishore (PW10) were sitting in front of the house of Kishore, which is just near the Shiv Temple, Ram swaroop and his sons Ram Kalyan and Hiralal armed wit lathies came and gave beating to Bhanwar Lal and specifically head injury is attributed injuries to Hiralal and Ram Kalyan. Even he is consistent on the fact that while Madan Lal and his mother came and tried to save Bhanwar Lal from these persons, they were caught hold by Dakhan Kanya have given beating to Madal Lal and his mother. 24. In our view the High Court ought to have considered his deposition rather than his statement recorded under Section 161 of the Code of Criminal Procedure. The inconsistency between the two versions is obvious from the fact that the prosecution had to declare the witness hostile. 24. In our view the High Court ought to have considered his deposition rather than his statement recorded under Section 161 of the Code of Criminal Procedure. The inconsistency between the two versions is obvious from the fact that the prosecution had to declare the witness hostile. The approach of the High Court, therefore, is clearly erroneous. 13. The Supreme Court in Rajindra Singh v. State of U.P. and Anr. AIR 2007 SC 2786 in paragraphs 6 and 10 held as under: ...A statement under Section 161 Cr.PC is not a substantive piece of evidence. In view of the proviso of Sub-section (1) of Section 162 Cr.PC, the statement can be used only for the limited purpose of contradicting the maker thereof in the manner laid down in the said proviso. Therefore, the High Court committed a manifest error of law in relying upon wholly inadmissible evidence in recording a finding that Kapil Dev Singh could not have been present at the scene of commission of the crime. 10. Having considered the submissions made by Learned Counsel for the parties, we are of the opinion that the statements of the witnesses under Section 161, Cr.PC being wholly inadmissible in evidence could not at all be taken into consideration. The High Court relied upon wholly inadmissible evidence to set aside the order passed by the learned Sessions Judge.... 14. This Court in a case of Talar Sorum v. State of Aruachal Pradesh 2007 (4) GLT 905 dealing in depth with the scope and ambit of acceptability of statement recorded under Section 161, Cr.PC, in paragraphs 16, 17, 18 and 18(a) ruled that the statement recorded shall not be used for any purpose except to contradict a witness in any manner prescribed in the proviso of Section 161(1), CPC. Such statement is not a substantive piece of evidence and total reliance on the statement recorded under Section 161, Cr.PC in conviction of the accused would be wholly unjustified. 15. Having regard to the above quoted judicial authorities and also taking into account the peculiar facts and circumstances of the case in its entirety, we are of the view that the statement made under Section 161, Cr.PC cannot be applicable and admissible in the instant case to rope in all the appellants herein under Section 302, IPC read with 34, IPC. 16. 16. Since the impugned conviction and sentence were basically structured and founded on the statement of PW4 and PW5 under Section 161, Cr.PC who later on contradicted their statements in their evidence leading to declaration as hostile witnesses, we are of the confirmed view that the impugned conviction and sentence cannot be sustained on such statement under Section 161, Cr.PC. In our opinion, the impugned conviction and sentence of the appellants deserves interference of this Court and we do order accordingly. 17. Consequently, the impugned judgment and order stands quashed and set aside. 18. The appellants, who are in jail be set at liberty forthwith unless they are required in any other case for their further detention. 19. In the result, the appeal succeeds and stands allowed. 20. Send down the LCR forthwith. Appeal allowed.