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2009 DIGILAW 791 (ORI)

Sadan Bhalu v. State of Orissa

2009-10-15

A.S.NAIDU, L.K.MISHRA

body2009
JUDGMENT L.K. MISHRA, J. — In this appeal challenge has been made to the judgment of conviction and order of sentence dated 24.02.2003 passed by the Additional Sessions Judge, Malkangiri in Sessions Case No.14 of 2000 by which he convicted the appellants under Section 302 I.P.C. and sentenced them to imprisonment for life. 2. The facts of the case are that on 09.09.1997 around noon the appellants had been to the place of distillation in village Kalapali along with Biswanath Bhalu (hereinafter called the ‘deceased’). After taking liquor when they were returning the appellants picked up quarrel with the deceased and murdered him by pressing his head and face into water in a paddy field. One Kumuti Barik saw the occurrence and that day evening informed the fact to Sana Bhalu, the brother-in-law of the deceased. Sana Bhalu went to the paddy field of Hari Naik and found the dead body of the deceased and lodged F.I.R. at Kaduluguma police out post on which investigation was taken up. After all necessary investigation, charge sheet was submitted. During investigation on the prayer of the I.O. the learned S.D.J.M., Malkangiri re¬corded the statement of the witness Kumuti Barik under Section 164 of the Code of Criminal Procedure, 1973 (hereinafter called the ‘Cr.P.C.’). 3. The accused persons faced trial being indicated under Section 302/34 of the I.P.C. During trial, their plea was one of total denial. The prosecution examined a total of 15 witnesses and the defence none. On scanning the evidence, the learned trial Court found the accused persons guilty occasioning the present appeal. 4. The learned advocate for the appellants has argued that there is no evidence at all in this case connecting the accused persons and the conviction as such is perverse. In elaborating his points he has stated that the learned Court below has con¬victed the appellants basing only on the statement of Kumuti Barik recorded under Section 164 Cr.P.C. which is legally incor¬rect. The learned Standing Counsel on the other hand supported the impugned judgment of conviction and order of sentence. 5. Homicidal death of the deceased is not challenged before this Court. Therefore, it only remains to be seen whether the appellants are the author of the crime. As mentioned earlier, as many as 15 witnesses have been examined by the prosecution in this case. 5. Homicidal death of the deceased is not challenged before this Court. Therefore, it only remains to be seen whether the appellants are the author of the crime. As mentioned earlier, as many as 15 witnesses have been examined by the prosecution in this case. However, the sole eye-witness, Kumuti Barik could not be examined since he died prior to being examined by the Court. Under the circumstances, the learned Court below thought it fit to convict the appellants basing on his statement under Section 164 Cr.P.C. only. 6. It is alleged that the present accused persons killed the sole eye witness Kumuti Barik and therefore he could not be examined in the case. It has been also mentioned that they were also facing trial for murder of Kumuti Barik in S.C. Case No.12 of 2002. The learned counsel for the appellants as well as the learned counsel for the State have stated that the accused per¬sons (present appellants) were sentenced to death penalty under Section 302 I.P.C. for the murder of Kumuti Barik in S.C. Case No.12 of 2002. It is admitted by both sides that they were ac¬quitted in the appeal by this High Court due to lack of evidence. However, the point to be determined in this case is as to what would be the evidentiary value of a statement recorded under Section 164 Cr.P.C. and whether the judgment of conviction can be based solely on the same. At the cost of repetition we may men¬tion here that there is absolutely no other evidence connecting the appellant with the offence in question except the statement of the deceased Kumutui Barik recorded under Section 164 Cr.P.C. 7. Section 164 of the Cr.P.C. lays down the procedure regarding recording of confession and statement. Sub-Section (1) of the said Section provides that any Metropolitan Magistrate or Judicial Magistrate may, whether or not he has jurisdiction in the case, record any confession or statement made to him in the course of an investigation under the Chapter or under any other law for the time being in force, or at any time afterwards before the commencement of the inquiry or trial. Sub-section (5) pre¬scribes that any statement (other than a confession) made under Sub-section (1) shall be recorded in such manner hereinafter provided for the recording of evidence as is, in the opinion of the Magistrate best fitted to the circumstances of the case and the Magistrate shall have power to administer oath to the person whose statement is so recorded. No where in the Cr.P.C. it has been mentioned as to how such a statement is to be used. 8. It is cardinal principle of law that any oral evidence to be used in a judicial proceeding must be tested by cross-examination. Otherwise the same cannot be called evidence. No doubt there are exceptions to the same such as statement made under Section 32 of the Indian Evidence Act and under Section 299 of the Cr.P.C. Such statements are admissible in evidence without the maker being cross-examined. These are exceptions and not the rule. To provide an exception to the rule, a statutory provi¬sion is necessary and there can be no exception to that. On other words, no statement of a witness can be utilised as evidence without cross-examination unless there is a statutory provision providing for the same. There is no statutory provision making statement recorded under Section 164 of the Cr.P.C. admissible in evidence without the maker of the same being examined in the Court. The statement made under Section 164 of the Cr.P.C. can be used either to corroborate or contradict the maker thereof during trial. It cannot be used for any other purpose in a case. Thus, the learned trial Court committed grave error in law basing the conviction solely on the statement of the deceased witness re¬corded under Section 164 of the Cr.P.C. The impugned judgment and order of sentence are thus vitiated and hereby set aside. The accused appellants be set at liberty forthwith. A.S. NAIDU, J. I agree. Ordered accordingly.