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2012 DIGILAW 1093 (GAU)

Barun Debbarma v. State of Tripura

2012-09-13

SWAPAN CHANDRA DAS, T.NANDAKUMAR SINGH

body2012
JUDGMENT T. Nanda Kumar Singh, J. 1. The present appeal filed by the appellant-accused is directed against the judgment and order dated 23.06.2005 passed in ST 16 (WT/K)/2003 convicting the appellant-accused for the offence punishable under Section 302 read with 34 IPC and sentencing the appellant-accused to suffer rigorous imprisonment for life and to pay a fine of Rs. 3,000 in default of payment of the fine, a simple imprisonment of 3 (three) months. Heard Mr. R. Datta, learned counsel appearing for the appellant-accused and Mr. Sarkar, learned P.P. for the respondent. 2. The prosecution story as unfolded during the trial is briefly noted On 19.04.1996 one Shri Padip Debnath, PW 1, lodged an ezahar to Kalyanpur Police Station that on 19.04.1996 when he was at his house in the morning at about 5 o'clock his father, Bibhuti Bhushan Debnath, S/o. (Lt) Krishnakanta Debnath, aged about 70 years had gone to the western side of their house in order to answer the call of the nature and he heard the cry of his father that "I am being killed". On hearing the said cry, he and his younger brother, Pandav Debnath, PW 4 proceeded to the place where their father was crying. They saw four persons (extremists) forcibly taking their father towards tilla along the lunge-land to the western side of their house. One of the extremists opened fire, then the villagers had searched their father in the adjacent jungle, but they could not trace their father. On receipt of the ezahar, a criminal case being Kalyanpur P.S. Case No. 16 of 1996 under Section 365 and 27 Arms Act was registered. The case was endorsed to PW 16, Haripada Kar, I.O. for investigation of the case and during the course of investigation, the I.O. prepared hand-sketch-map and index of the place from where the victim, Bibhuti Debnath, was kidnapped and recovered empty case of cartridge from the place of occurrence by preparing seizure memo and the I.O. also examined the available witnesses and recorded their statements under Section 161 CrPC. 3. 3. On 15.05.96 in the morning the I.O. of the case got an information that a dead body of Bibhuti Bhushan Debnath had been lying at Dhupchhera and he rushed to the spot and prepared inquest report of the dead body of the deceased on the spot and arranged for sending the dead body to Kalyanpur PHC for post-mortem examination. Thereafter, Section 302 IPC had been added in the said case. On completion of the investigation, charge sheet under Section 365/ 302 and 27 Arms Act had been submitted against 5 (five) persons, namely (1) Barun Debbarma (present appellant), (2) Binode Debbarma, (3) Ratan Debbarma, (4) Biswajit Debbarma and (5) Malendra Debbarma. The concerned Magistrate had committed the case under 209 CrPC to the Sessions Court as the offences are exclusively triable by the Sessions Courts. The charge was framed against 3 accused, namely Shri Barun Debbarma, Ratan Debbarma and Malendra Debarma under Section 365/ 302 IPC and 27 Arms Act and the appellant-accused denied the charge and claimed for trial. 4. The accused, Malendra Debbarma, was declared absconder. The prosecution, in order to bring home the charge, examined as many as 16 witnesses, namely (1) PW 1 Pradip Debnath, PW 2 Jyotsnamayee Debnath, PW 3 Dilip Debnath, PW 4 Pandav Debnath, PW 5 Ram Ranjan Roy, PW 6 Dilip Nag, PW 7 Puspa Shil, PW 8 Anup Debnath, PW 9 Sukumar Shil, PW 10 Khagendra Debbarma, PW 11 Chan Mohan Rudrapaul, PW 12 Nandalal Gope, PW 13 Shibu Shil, PW 14 Bharat Debbarma, PW 15 Dr. Pranabendu Barman and PW 16 Haripada Kar (S.I.). Out of the 16 witnesses, PW 1, Pradip Debnath, PW 2 Jyotsnamayee Debnath, PW 3 Dilip Debnath and PW 8 Anup Debnath are the sons and wife of the deceased, Bibhuti Bhushan Debnath. The star witness for the prosecution is the PW 8, Anup Debnath. All the important witness are near relatives of the deceased. 5. It is the case of the defence that as all the important witnesses are the near relatives of the deceased, Bibhuti Bhushan Debnath, their statements are not reliable. We are not accepting this particular point of defence inasmuch as merely because important witnesses are near relatives of the victim, their statements cannot be rejected. 6. The Hon'ble Apex Court in Dalip Singh Vs. We are not accepting this particular point of defence inasmuch as merely because important witnesses are near relatives of the victim, their statements cannot be rejected. 6. The Hon'ble Apex Court in Dalip Singh Vs. State of Punjab AIR 1953 SC 364 dispelling the general impression that relatives were not independent witnesses, held at para 26 page 366: ...a witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily, a close relative would be the last to screen the real culprit and falsely implicate an innocent person. It is true when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge alongwith guilty, but foundation must be laid for such a criticism and mere fact of relationship far from being a foundation is sure guarantee of truth. 7. In Rizan Vs. State of Chhatishgarh: (2003) 2 SCC 661 the Hon'ble Apex Court held to effect that relationship is not a factor to affect credibility of a witness. It is more often than not a relation would not conceal the actual culprits and make allegations against the innocent person. Foundation has to be laid if plea of false implication is made. In such cases, the Court has to adopt a careful approach and analyse evidence to find out if it is cogent and credible. 8. In Namdeo Vs. State of Maharashtra: (2007) 14 SCC 150 the Apex Court held that a close relative cannot be characterized as an "interested" witness. His evidence must be scrutinized carefully. If on such scrutiny, his evidence is found to be intrinsically reliable, inherently probable and wholly trustworthy, conviction can be passed as the sole testimony of such a witness. Close relationship of witness with the deceased of victim is not a ground to reject his evidence. On the contrary, close relative of the deceased would normally be most reluctant to spare the real culprit and falsely implicate an innocent one. 9. There is no need of referring to other decided cases in respect of the above said settled position of law regarding credibility of evidence of relative witness. On the contrary, close relative of the deceased would normally be most reluctant to spare the real culprit and falsely implicate an innocent one. 9. There is no need of referring to other decided cases in respect of the above said settled position of law regarding credibility of evidence of relative witness. If necessary, one may refer to Bhargavan Vs. State of Kerala (2004) 12 SCC 414 ; Israr Vs. State of U.P.: (2005) 9 SCC 616 ; State of Andhra Pradesh Vs. S. Rayapp (2006) 4 SCC 512 , S. Sudershan Reddy Vs. State of Andhra Pradesh (2006) 10 SCC 163; Salim Sahab Vs. State of Madhya Pradesh (2007) 1 SCC 699 and Mahesh Vs. State of Maharashtra: (2008) 13 SCC 271 . 10. The statements of PWs -1, 2, 3, 4, 5, 6 and 7 are stereo type and are of few sentences. All of them in the same tune and wave-length stated that on 19.04.1996 at about 5 A.M., Bibhuti Bhushan Debnath, came out of his room to answer the call of the nature and they heard his cry and they rushed to his aid. One of the miscreants opened fire but it did not hit them. They saw all the miscreants dragging the victim, Bibhuti Bhushan Debnath towards tilla. Thereafter, they searched for the victim, Bibhuti Bhushan Debnath, but they failed to trace him out. After about 26/27 days of the incident they could trace out the dead body of the victim, Bibhuti Bhushan Debnath at Ramchandraghat. One of the said witnesses could identify the miscreants. The I.O. of the case did not make an endeavour to hold T.I. parade of the accused. From the statements of the said PWs nothing could be spelt out except that four miscreants had kidnapped Bibhuti Bhushan Debnath from his house in the early morning at about 5 a.m. of 19.04.1996. 11. The star witness, PW 8 Anup Debnath, s/o the victim, deposed that his father, Bibhuti Bhushan Debnath was kidnapped by a group of miscreants in the morning of 19.04.1996 from their house. On hearing cry of his father (victim), he woke up from his sleep and rushed to the aid of his father. He saw four miscreants dragging his father (victim) towards tilla. When they approached, two of the miscreants opened fire to them as a result they could not proceed further. On hearing cry of his father (victim), he woke up from his sleep and rushed to the aid of his father. He saw four miscreants dragging his father (victim) towards tilla. When they approached, two of the miscreants opened fire to them as a result they could not proceed further. They also searched for their father and got the information that group of extremists had kidnapped their father. He also contends that Bharat Debbarma, PW 14 and one Srinibash Debnath of Khash Kalyanpur assured that they will contact the extremists to arrange release of his father. He also received letter few days of kidnapping of his father from A.T.T.F. group demanding 10 lakhs for release of his father. Again, he contacted with the Bharat Debbarma, PW 14 who informed him about the contents of the letter. Bharat Debbarma assured that him, his brother and the members of his family that he (Bharat Debbarma) will arrange to release his father on payment of only Rs. 60,000/-. After such assurance from Bharat Debbarma, he and his brother returned home. 12. On returning to home, he found some agents of Ranu Roy awaiting in his house for them. Ranu Roy was also once kidnapped by ATTF extremists. Agents of Ranu Roy were sent by the extremist to have a direct negotiation with them. The PW No. 8's own brother, Pratap Debnath went to Ampur along with the agents of Ranu Roy. His brother, Pratap Debnath, met the extremists; and he was assaulted by them on the ground that he caused delay in meeting them. 13. PW 8 further deposed that the extremists directed his brother, Pratap Debnath for arranging 10 lakhs for the release of their father (victim). On the following day they (PW 8 and his brother Pratap Debnath) met Bharat Debbarma and informed him the beating of his brother, Pratap Debnath, by the extremists for the delay in meeting them (extremists). Bharat Debbarma, after two days brought a letter written by his father (victim) to his brother Pradip Debnath, PW 1. He then wrote a letter to his father and sent it to his father through Bharat Debbarma, who took him to his jungle of Khash Kalyanpur and arranged his meeting with Binode Debbarma. Binode Debbarma who was a member of ATTF told him that he will make an arrangement for meeting with their leader for releasing his father. He then wrote a letter to his father and sent it to his father through Bharat Debbarma, who took him to his jungle of Khash Kalyanpur and arranged his meeting with Binode Debbarma. Binode Debbarma who was a member of ATTF told him that he will make an arrangement for meeting with their leader for releasing his father. As per the direction on 09.05.96 he along with Bharat Debbarma and Srinibas Debnath went to Ampura near ration-shop. Binode Debbarma and Ratan Debbarma were waiting for him. They took him to a rubber plantation where he had seen 4/5 extremists in olive green dress possessing fire arms and he handed over his wrist watch to the extremists. They also demanded Rs. 1 lakh in cash and one automatic camera for release of his father. Barun Debbarma (appellant-accused) and Biswajit Debbarma, who were previously known to him were also found sitting with them (extremists). The extremists directed him to pay cash amount and hand over to them with an automatic camera at 10 AM in the next following day. He and his brother, Pratap Debnath went to Agartala for purchasing one automatic Camera from the shop the extremists directed them to purchase for the release of his father (victim). After purchasing the Camera and arranging Rs. 1 lakh, he went to the house of Bharat Debbarma with Srinibas Deb Nath along with the cash and Camera. Bharat Debbarma told him to proceed to Wandalongbari. He (Bharat Debbarma) also told him that near the shop of Gopal mater, Binode Debbarma will be available. They went towards Akhrabari at a distance of about 4 Km. and met the extremists who had been seen on the last day and they had handed over the cash and the Camera and after receipt of the cash and Camera, the extremists started assaulting them as they could not arrange further amount of one lakh demanded by the extremists. Thereafter, on 15.05.1996 they recovered the dead body of his father. 14. No doubt, on the basis of the solitary witness an accused can be convicted provided the solitary witness is trustworthy and sufficient to prove the prosecution case beyond reasonable doubt. Section 134 of the Indian Evidence Act provides that no particular number of witnesses shall in any case be required for the proof of any fact. 15. The Apex Court in the case of Lallu Manjhi & Anr. Section 134 of the Indian Evidence Act provides that no particular number of witnesses shall in any case be required for the proof of any fact. 15. The Apex Court in the case of Lallu Manjhi & Anr. Vs. State of Jharkhand: (2003) 2 SCC 401 thus held: The law of evidence does not require any particular number of witnesses to be examined in proof of a given fact. However, faced with the testimony of a single witness, the Court may classify the oral testimony into three categories namely, (i) wholly reliable, (ii) wholly unreliable, and (iii) neither wholly reliable nor wholly unreliable. In the first two categories there may be no difficulty in accepting or discarding the testimony of the single witness. The difficulty arises in the third category of cases. The Court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial, before acting upon the testimony of a single witness. The Apex Court in the case of Anil Phukan Vs. State of Assam: (1993) 3 SCC 282 , too held as follows: This case primarily hinges on the testimony of a single eyewitness Ajoy PW 3. Indeed, conviction can be based on the testimony of a single eye witness and there is no rule of law or evidence which says to the contrary provided the sole witness passes the test of reliability. So long as the single eyewitness is a wholly reliable witness the Courts have no difficulty in basing conviction on his testimony alone. However, where the single eyewitness is not found to be a wholly reliable witness, in the sense that there are some circumstances which may show that he could have an interest in the prosecution, then the Courts generally insist upon some independent corroboration of his testimony, in material particulars, before recording conviction. It is only when the Courts find that the single eyewitness is a wholly unreliable witness that his testimony is discarded in toto and no amount of corroboration can cure that defect. It is in the light of these settled principles that we shall examine the testimony of PW 3 Ajoy. 16. It is only when the Courts find that the single eyewitness is a wholly unreliable witness that his testimony is discarded in toto and no amount of corroboration can cure that defect. It is in the light of these settled principles that we shall examine the testimony of PW 3 Ajoy. 16. In the given case, on careful appreciation of the statement of PW 8, we are of the considered view that whole testimony of PW 8 cannot be accepted fully and his testimony comes under the third category propounded by the Apex Court in Lallu Manjhi's case and Anil Phukan's case (supra), i.e. testimony of the PW 8 is not wholly reliable. Therefore, this Court is of the considered view that the testimony of PW 8 needs corroboration. 17. On careful perusal of the statements of the other witnesses produced by the prosecution, it is clear that none of the witnesses had corroborated the oral testimony of PW 8, His brother Shri Pratap Debnath, who, according to him (PW 8), had met the extremists and the extremists assaulted him (Pratap Debnath) for his delay in meeting them and also knew the extremists who kidnapped their father as he happened to meet the extremists on 2/3 occasions for releasing their father, was not examined as prosecution witness. Bharat Debbarma, according to PW 8, who made all arrangements for meeting with the extremists and also for releasing the victim on payment of money and Camera and also paid the same to the extremists, was examined as PW 14. 18. Statements of Bharat Debbarma, PW 14, does not corroborate the statements of PW 8, Bharat Debbarma, PW 14 deposed that after 15/16 days of the kidnapping of the victim on the request of the Anup Debnath, PW 8, he arranged to meet Biswajit Debbarma. Biswajit Debbarma demanded a sum of Rs. 1 lakh as ransom for the release of the victim. PW 8, Anup Debnath, agreed to pay the sum on the following day and he also deposed that he did not know anything more than that. As per the statement of PW 8, Anup Debnath, he was the one who took them to Rubber plantation area for meeting the extremists and for releasing the victim. PW 14, Bharat Debbarma was declared as a hostile witness. 19. As per the statement of PW 8, Anup Debnath, he was the one who took them to Rubber plantation area for meeting the extremists and for releasing the victim. PW 14, Bharat Debbarma was declared as a hostile witness. 19. By the Criminal Law (Amendment) 2005, Act No. 2 of 2006, Section 154 of the Evidence Act, 1872 had been amended by inserting clause (ii) which read as Mows: [(2)] Nothing in this section shall disentitle the person so permitted under sub-section (1), to rely on any part of the evidence of such witness] 20. On bare perusal of the newly amended Section 154 of the Evidence Act, it is clear that the prosecution can still rely on the part of the evidence of the hostile witness. Regarding this point, we may refer to the decision of the Apex Court in Koli Lakhmanbhai Chanabhai Vs. State of Gujarat AIR 2000 SC 210 wherein the Apex Court held that evidence of hostile witness to the extent to which it supports prosecution witness can be relied on.' Para 5 of the AIR in Koli Lakhmanbhai Chanabhai's case (supra) read as follows: 5. From the aforesaid evidence on record, in our view, it cannot be said that the High Court erred in relying upon some portion of the evidence of PW 7 who was cross-examined by the prosecution. It is settled law that evidence of hostile witness also can be relied upon to the extent to which it supports the prosecution version. Evidence of such witness cannot be treated as washed off the record. It remains admissible in the trial and there is no legal bar to base his conviction upon his testimony if corroborated by other reliable evidence. [Ref: Bhagwan Singh Vs. State of Haryana (1976) 1 SCC 389 : ( AIR 1976 SC 202 : 1976 Cri.L.J. 203) and Sat Paul Vs. Delhi Administration ( 1976 1 SCC 727 ; ( AIR 1976 SC 294 : 1976 Cri.L.J. 295). In the present case, apart from the evidence of PW 7, the prosecution version that he saw that appellant was having knife in his hand and was quarrelling with the deceased gets corroboration from the evidence of PWs 11 and 12 to whom he disclosed the incident immediately. In the present case, apart from the evidence of PW 7, the prosecution version that he saw that appellant was having knife in his hand and was quarrelling with the deceased gets corroboration from the evidence of PWs 11 and 12 to whom he disclosed the incident immediately. On the basis of the said information, within one hour, FIR was lodged disclosing the name of the appellant as the person who has inflicted the knife blow. Number of incised wounds are found as per the post-mortem report. The prosecution version gets further corroboration from discovery of Muddamal knife containing human blood Group 'A'. Further the bush-shirt and baniyan which were put on by the accused at the time of incident were having extensive blood-stains which were also found containing human blood group 'A'. Learned counsel for the appellant, however, contended that accused is also having blood Group 'A' and that he was having injury on the thigh as per the medical evidence of the Doctor. In our view, there is no substance in his contention because as per the medical evidence, the injuries caused to the accused were minor and that because of such injuries, there would not be extensive blood stains on the bush-shirt and baniyan put on by the accused. In his 313 statement also, accused has not explained how he get blood stains on his bush-shirt and baniyan. He has also not denied the recovery from his person at the time of his arrest. 21. The Apex Court is also of similar view in the case of Leela Srinivas Rao Vs. State of Andhra Pradesh: AIR 2004 SC 1720 that declaration of a witness hostile by the prosecution does not result in automatic rejection of the evidence; even evidence of hostile witness, if it finds corroboration from facts of case may be taken into account while judging guilt of an accused. Para 14 of the AIR in Leela Srinivas Rao's case (supra) read as follows: 14. We have earlier noticed the evidence examined by the prosecution in support of its case that the deceased as treated with cruelty by both the accused. However, the witnesses including the father of the deceased have not supported this case. Para 14 of the AIR in Leela Srinivas Rao's case (supra) read as follows: 14. We have earlier noticed the evidence examined by the prosecution in support of its case that the deceased as treated with cruelty by both the accused. However, the witnesses including the father of the deceased have not supported this case. In fact, the father of the deceased namely, PW 1, in his deposition stated that misunderstandings arose between his daughter and her husband on account of the fact that three children of the deceased sister of the appellant were being brought up in the house of the appellant which was objected to by the deceased. If in those unfortunate circumstances the three children of the deceased sister of the appellant were being brought up on his family, one cannot blame the appellant or his parent for having shown compassion towards the children of his deceased sister. If that is what caused annoyance to the deceased, one cannot equate such conduit with cruelty or harassment. We also find no reason why on this aspect of the matter the father of the deceased should not speak three truth. In any event, he and his family members were the only persons who could have deposed about the treatment meted out to the deceased. All of them have denied the suggestion that the appellant or his mother in-law treated the deceased with cruelty. The fact that these witnesses have been declared hostile by the prosecution does not result in the automatic rejection of their evidence. Even the evidence of a hostile witnesses if it finds corroboration from the facts of the case may be taken into account while judging the guilt of an accused. In any event, if their evidence is kept out of consideration, there is no other evidence to prove the prosecution allegation of cruelty and harassment meted out to the deceased. Having regard to the inconsistence in the two dying declarations we do not find it safe to act solely on them to convict the appellant, and for that reason even accused No. 2, the mother of the appellant who has since served out her sentence. 22. Having regard to the inconsistence in the two dying declarations we do not find it safe to act solely on them to convict the appellant, and for that reason even accused No. 2, the mother of the appellant who has since served out her sentence. 22. Even if the part of the statement of PW 14 can be relied on, it can be only to the extent of the statement of the PW 8 that his father (victim) had been kidnapped by the extremists and arrangement had been made to pay sum of Rs. 1 lakh as ransom for release of his father. Now, the point to be decided in this case is that who are the extremists who kidnapped the victim and to whom the PW 8 paid the said ransom. Even if the oral statement of PW 8 is accepted in toto, what the PW 8 stated is that he saw the appellant-accused sitting with the extremists in the jungle. But, none of the witnesses corroborated that portion of the statement of the PW 8, None of the witnesses could identify the extremists who kidnapped the victim. But PW 5, Shri Ranu Ranjan Roy deposed: I was kidnapped by a group of extremists and confined in a secluded place. After six days of my kidnap another person named Bibhuti Bushan Debnath was also been kidnapped by the same extremists group and kept with me. The miscreants have kept us in confinement by trying our hands by rope. I was released by the miscreants after 28 days on payment of ransom. After two days of my release the miscreants killed Bhibuti Bhushan Debnath and threw his dead body on road. I could identify one of the miscreants who have kidnapped me. His name is Barun Debbarma. Witness identified accused Barun Debbarma in the dock. Barun Debbarma always present in the place where myself and Bhibuti Bhushan Debnath were kept in confinement. Cross-examination. I did not state to I/O that I could not identify any of the miscreants. Attention of the witness is drawn to his previous statement recorded by I/O and such portion of statement is found there. The said portion is marked Ext. A subject to prove by I/O. It is not a fact that I am deposing falsely. 23. Cross-examination. I did not state to I/O that I could not identify any of the miscreants. Attention of the witness is drawn to his previous statement recorded by I/O and such portion of statement is found there. The said portion is marked Ext. A subject to prove by I/O. It is not a fact that I am deposing falsely. 23. From the statement of the PW 5, it is clear that he could identify the appellant accused for the first time in the Court. He did not even state to the I.O. when his statement was recorded under Section 161 CrPC that he could identify any of the miscreants. His statement recorded under Section 161 CrPC was confronted to him. Relevant part of the statement under Section 161 CrPC was marked as Ext. A. His statement marked Ext. A was proved by the I.O. PW 16. 24. The statements of the witnesses recorded under Section 161 CrPC could be used for the purpose of contradiction and confrontation under proviso to Section 162 (2) of the CrPC in the manner provided by Section 145 of the Evidence Act, 1872. Requirements to be fulfilled for such contradiction and its effect had been discussed by the Apex Court on Tahsildar Singh & Anr. Vs. State of Uttar Pradesh: AIR 1959 SC 1012 . In Tahsildar Singh's case (supra) the Hon'ble Apex Court indicated the procedure to be followed in contradicting a witness by confronting him with his previous statement. At para 13 page 1021 of the above said judgments, the Hon'ble Apex Court held: 13. ...The procedure prescribed is that, if it is intended to contradict a witness by the writing, his attention must, before the writing can be proved, be called to those parts of its which are to be used for the purpose of contradicting him. The proviso to Section 162 of the Code of Criminal Procedure only enables the accused to make use of such statement to contradict a witness in the manner provided by Section 145 of the Evidence Act. The proviso to Section 162 of the Code of Criminal Procedure only enables the accused to make use of such statement to contradict a witness in the manner provided by Section 145 of the Evidence Act. It would be doing violence to the language of the proviso if the said statement be allowed to be used for the purpose of cross-examining; a witness within the meaning of three first part of Section 145 of the Evidence Act, Nor are we impressed by the argument that it would not be possible to invoke the second part of Section 145 of the Evidence Act without putting relevant questions under the first part thereof. The difficulty is more imaginary than real. The second part of Section 145 of the Evidence Act clearly indicates the simple procedure to be followed. To illustrate; A says in the witness-box that B stabbed C; before the police he had stated that D stabbed C. His attention can be drawn to that of the statement made before the police which contradicts his statement in the witness-box. If he admits his previous statement, no further proof is necessary, if he does not admit, the practice generally followed is to admit it subject to proof by the police officer. On the other hand, the procedure suggested by the learned Counsel may be illustrated thus: if the witness is asked "did you say before the police-officer that you saw a gas light?" and he answers "yes', then the statement which does not contain such recital is put to him as contradiction. This procedure involves two fallacies: one is it enables the accused to elicit by a process of cross-examination what the witness stated before the police officer. If a police-officer did not make a record of a witness's statement, his entire statement could not be used for any purpose, whereas if a police officer recorded a few sentences, by this process cross-examination, the witness's oral statement could be brought on record. This procedure therefore, contravenes the express provision of Section 162 of the Code. The second fallacy is that by the illustration given by the learned counsel for the appellants there is no self-contradiction of the primary statement made in the witness-box, for the witness has yet not made on the stand any assertion at all which can serve as the basis. The second fallacy is that by the illustration given by the learned counsel for the appellants there is no self-contradiction of the primary statement made in the witness-box, for the witness has yet not made on the stand any assertion at all which can serve as the basis. The contradiction, under the section, should be between what a witness asserted in the witness-box and what he stated before the police-officer, and not between what he said he had stated before the police officer and what he actual made before him. In such a case the question could not be put at all: only questions to contradict can be put and the question here posed does not contradict; it leads to an answer which is contradicted by the police statement. This argument of the learned counsel based upon Section 145 of the Evidence Act is, therefore, not of any relevance in considering the express provisions of Section 162 of the Code of Criminal Procedure. 24.1 In the same judgment, at para 26 and 27 at page 1026, the Hon'ble Apex Court held: 26. This argument of the learned counsel based upon Section 145 of the Evidence Act is, therefore, not of any relevance in considering the express provisions of Section 162 of the Code of Criminal Procedure. 24.1 In the same judgment, at para 26 and 27 at page 1026, the Hon'ble Apex Court held: 26. From the foregoing discussion the following prepositions emerge: (1) A statement in writing made by a witness before a police officer in the course of investigation can be used only contradict his statement in the witness box and for no other purpose; (2) statements not reduced to writing by the police: officer cannot be used for contradictions; (3) though a particular statement is not expressly recorded, a statement that can be deemed to be part of that expressly recorded statement can be used for contradiction, not because it is an omission strictly so-called but because it is deemed to form part of the recorded statement (4) such a fiction is permissible by contradiction only the following three cases (i) when a recital is necessarily implied from the recital or recitals found in the statement; illustration: in the recorded statement before the police the witness states that he saw A stabbing B at a particular point of time, but in the witness box he says that he saw A and C stabbing B at the same point of time; in the statement before the police the word "only" can be implied, i.e. the witness saw A only stabbing B; (ii) a negative aspect of a positive recital in a statement: illustration: in the recorded statement before the police the witness says that a dark man stabbed B, but in the witness box he says that a fair man stabbed B; the earlier statement must be deemed to contain the recital not only that the culprit was a dark complexioned man but also that he was not of fair complexion; and (iii) when the statement before the police and that before the Court cannot stand together; illustration: the witness says in the recorded statement before the police that A after stabbing B ran away by a northern lane, but on the Court he says that immediately after stabbing he ran away towards the southern lane, as he could not have run away immediately after the stabbing, i.e. at the same point of time, towards the northern lane as well as towards the southern lane, if one statement is true, the other must necessarily be false. 27. The aforesaid examples are not intended to be exhaustive but only illustrative. The same instance may fall under one or more heads. It is for the trial Judge to decide in each case, after comparing the part or parts of the statement recorded by the police with that made in the witness box to give a ruling, having regard to the aforesaid principles, whether the recital intended to be used for contradiction satisfies the requirements of law. 24.2. In Shashidhar Puran Hedge & Anr. Vs. State of Karnataka (2004) 12 SCC 492 the Hon'ble Apex Court held at para 12 page 498; 499:- 12. The word "contradiction" is of a wide connotation which takes within its ambit all material omissions and under the circumstances of a case, a Court can decide whether there is one such omission as to amount to contra-diction. (See State of Maharashtra Vs. Bharat Chaganlal Raghani, (2001) 9 SCC 1 and Rajkishore Jha Vs. State of Bihar (2003) 11 SCC 519 . The explanation to Section 162 of the Criminal Procedure Code, 1973 (in short "the Code") is relevant, "Contradiction" means the setting up of a statement against another and not the setting up of a statement against nothing at all. As noted in Talsildar Singh Vs. State of U.P. AIR 1959 Cri.L.J. 1231, all omissions are not contra-dictions. As the explanation to Section 162 of the Code shows, an omission to state a fact or circumstance in the statement referred to in sub-section (1) may amount to contradiction if the same appears to be significant or otherwise relevant having regard to the context in which the omission occurs. The provision itself makes it clear that whether any omission amounts to contradiction in the particular context is a question of fact. 25. The said portion of the statement of the PW 5 Ram Ranjan Roy, in his chief had been very much weaken down for the reasons discussed above inasmuch as the said portion of his statement in the chief had not been stated by him when his statement was recorded by the I.O. under Section 161 CrPC and contradicted in the manner provided under proviso to Section 162(2) of the CrPC. Over and above, PW 5, Ram Ranjan Roy, was examined as the 5th witness of the prosecution and the appellant-accused was in the dock while the statements of the PWs 1, 2, 3 and 4 were recorded, there is no material or the indication from the side of the prosecution that the PW 5 was not present in the Court while statements of PW 1 to 4 were recorded. 26. From the statement of PW 16, it is clear that statement of such an important witness, i.e. PW 8 Anup Debnath was recorded under Section 161 CrPC only on 10.06.1996, i.e. two months after the occurrence. As per the prosecution story, PW 8, Anup Debnath, was all along available at his house and he was the one who made the arrangement for releasing the victim. No reason is given why there was such a delay in recording statement of the PW 8 under Section 161 CrPC. 27. The learned counsel appearing for the appellant-accused strenuously contends that recording the statement of PW 8 under Section 161 CrPC was an after-thought and his statement is not at all trustworthy only on this score. In support of his contention he relies on the decision of the Apex Court in Jagjit Singh @ Jagga, Appellant Vs. State of Punjab: 2005 Cri.L.J. 955 Para 30 of the Jagjit Singh's case (supra) is quoted below: 30. This has to be viewed in the light of the fact that her statement was recorded by the Investigating Officer for the first time three days after the occurrence, and her statement was recorded by the Judicial Magistrate six day after the occurrence. The Courts below have taken the view that delay in examining her has caused no prejudice to the defence. Counsel for the appellant, submitted that this period was utilized by the prosecution for tutoring the witness, and therefore, the delay of three days in her examination under Section 161. CrPC is significant. No explanation is forthcoming as to why she was not examined for three days when the Investigating Officer knew that a statement of her's had been recorded by the doctor on 30th August, 1996. The Trial Court took the view that since she was under a shock she was not in a position to make a statement and, therefore, her statement was recorded later. The Trial Court took the view that since she was under a shock she was not in a position to make a statement and, therefore, her statement was recorded later. This is clearly erroneous because the case of the prosecution is that she regained consciousness on 30th August, 1996 and, therefore, she was fully conscious. The evidence of Dr. Bhupinder Singh, PW 7 who gave a certificate of her fitness to make a statement is also to the same effect. The reasoning of the Trial Court that the victim, PW 6 was under a great shock and was not in a position to make the statement, cannot be sustained. Neither the Trial Court nor the High Court cared to closely examine the evidence on record to find out whether there was any evidence on record to prove that the appellant was known to PW 6 or that PW 6 had any reason to know his name so as to be able to identify him by name. The explanation furnished by PW 6 five years after the occurrence, that she knew the appellant because he happened to be the son of Amar Singh at whose tube well her grand parents resided, is unacceptable particularly, in view of the fact that there is no evidence to establish that she had ever earlier seen the appellant and in none of the three statements made by her earlier the name of Amar Singh is mentioned. The delay in examining her in the course of investigation also creates a serious doubt in the absence of any explanation for her late examination after three days, when admittedly she was the sole eye witness who was also injured in the course of the occurrence. We are, therefore, of the view that though she may have witnessed the occurrence she did not know the appellant by name as she had no opportunity of knowing or seeing him earlier, and that she has involved the appellant at the instance of her father, who was the person who suggested the involvement of the appellant when her statement Ex. PW 6/A was being recorded. 28. For the foregoing discussion, we are of the firm view that the prosecution has utterly failed to prove the prosecution case. Accordingly, this appeal is allowed; the judgment and order of conviction and sentence dated 23.06.2005 passed by the learned Judge, Khowai, is set aside. PW 6/A was being recorded. 28. For the foregoing discussion, we are of the firm view that the prosecution has utterly failed to prove the prosecution case. Accordingly, this appeal is allowed; the judgment and order of conviction and sentence dated 23.06.2005 passed by the learned Judge, Khowai, is set aside. Consequently the appellant-accused is acquitted from the charge levelled against him. He shall be set at liberty forthwith. Bail bond and security bond, if any, shall stand discharged. Registry is directed to send the copy of this judgment and order to the Trial Court immediately. Appeal is allowed.