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2012 DIGILAW 813 (GAU)

Jitendra Shome v. State of Tripura

2012-06-30

S.C.DAS

body2012
JUDGMENT S.C. Das, J. 1. The criminal appeal, in hand, is directed against the judgment and order of conviction and sentence, dated 28.7.2009, passed by learned Additional Sessions Judge, South Tripura, Belonia, in connection with Sessions Trial Case No. 15 (ST/B) of 2009. The learned Additional Sessions Judge found the accused guilty of committing offence punishable under Sections 498A and 306 of IPC and sentenced him to suffer RI for two years and to pay a fine of Rs. 2,000, in default of payment of fine to suffer RI for six months under Section 498A of IPC and again to suffer RI for five years and to pay a fine of Rs. 5,000, in default to suffer further RI for one year. The substantive sentences were directed to run concurrently. 1.1. Briefly stated, prosecution case is that one Namita Chowdhury, W/o late Balaram Chowdhury of East Charakbai, P.S. Baikora, lodged an FIR in writing with the Officer In-charge, Belonia P.S. on 16.2.2007 at about 18.05 hrs., alleging, inter alia, that her daughter Purnima Chowdhury was given in marriage with accused Jiten Shom of Devipur, P.S. Belonia, South Tripura on negotiation, and the marriage was solemnized on 20.2.2002 AD (6th. of Magh) as per Hindu rites in her house. In the marriage, as per demand of the groom party, she gave golden ornaments, furniture. T.V. and other articles. After about six months of marriage, the accused Jiten Shom started putting pressure on her daughter Purnima to bring Rs. 20,000 from her house and her daughter reported it to her, but due to poverty she could not fulfill the demand, and therefore, her daughter was subjected to physical assault, and such cruelty increased day-by-day. After about a year a female child was born to them but the degree of assault increased. At the instance of accused Rama Shom the accused Jiten Shom assaulted on her and subjected to her to cruelty. Other accused persons, namely Sri Litan Shom, Sri Sanjoy Shom, Sri Ranju Shom, Sri Badal Shom and Smt. Sujata Shom also joined with accused Rama Shom in the process of exercise of cruelty her daughter. At the instance of accused Rama Shom the accused Jiten Shom assaulted on her and subjected to her to cruelty. Other accused persons, namely Sri Litan Shom, Sri Sanjoy Shom, Sri Ranju Shom, Sri Badal Shom and Smt. Sujata Shom also joined with accused Rama Shom in the process of exercise of cruelty her daughter. On 15.2.2007, at evening time, she received information of the death of her daughter and on that information she along with her son and other relatives rushed to her daughter's matrimonial home and found her hanging inside her residential hut with a beam of the hut and she suspected that her daughter might have been killed and thereafter with a view to get rid of the charge of murder her dead body was kept hanged with her 'Saree' inside the hut. 1.2. Based on the FIR, Belonia P.S. Case No. 14 of 2007 was registered and S.I. Anup Kr. Das of Hrishyamukh Police Out Post was entrusted with the charge of investigation, who on completion of investigation submitted charge-sheet against the accused-appellant Jiten Shom for commission of offence punishable under Sections 498A and 306 of IPC and prayed for discharging the other six FIR named persons, namely Sri Litan Shom, Sri Sanjoy Shom, Sri Ranju Shom, Sri Badal Shom, Smt. Rama Shom and Smt. Sujata Shom and, accordingly, on consideration of the charge-sheet, cognizance was taken for commission of offence punishable under Sections 498A and 306 of IPC against Jiten Shom and the other accused persons were discharged from the case. 1.3. On completion of formalities, the case was committed to the Court of Sessions and learned Additional Sessions Judge, Belonia on 6.5.2009 framed charges against accused Jiten Shom for commission of offence punishable under Sections 498A and 306 of IPC, to which he pleaded not guilty and claimed to be tried. 1.4. In course of trial, prosecution examined as many as 11 witnesses, namely P W.1, Sri Jayanta Chakraborty, PW.2 Sri Kajal Bhowmik, PW.3 Sri Mantu Mallik, PW.4 Smt. Namita Choudhury, PW.5 Sri Raju Choudhury, PW.6 Sri Dayamai Choudhury, PW.7 Sri Gouri Sankar Chakraborty, PW.8 Sri Ashoke Choudhury, PW.9 Dr. Pranab Choudhury, PW.10 Sri Anup Kr. Das and PW. 11 Sri Manik Das. Prosecution also proved the documents, namely inquest report, post-mortem report, hand sketch map with index of the place of occurrence, viscera examination report, submitted by the Tripura Forensic Science Laboratory, etc. Pranab Choudhury, PW.10 Sri Anup Kr. Das and PW. 11 Sri Manik Das. Prosecution also proved the documents, namely inquest report, post-mortem report, hand sketch map with index of the place of occurrence, viscera examination report, submitted by the Tripura Forensic Science Laboratory, etc. Out of the witnesses examined, PW.4 is the mother of the deceased Purnima and is the maker of the FIR. PWs. 5, 6 and 8 are the brother, uncle and cousin brother of the deceased. PWs. 1 and 2 are the Pradhan and Member of the Gram Panchayat and are independent witnesses of the case. PW.3 is the scribe of the FIR, a police officer and uncle of deceased Purnima. PW.7 is the photographer who took photographs of the dead body. PW.8 is the Medical Officer who has conducted post-mortem examination over the dead body and PWs. 10 and 11 are the police officers who investigated the case. 1.5. After closure of prosecution evidence the accused was examined under Section 313 of Cr. P.C. and on call the accused declined to adduce any evidence. Defence case, so far transpired from cross-examination of prosecution witnesses as well as from the statement of the accused made while examination under Section 313 of Cr. P.C. is that the accused is a driver by profession, engaged by Assam Oil Corporation, and he used to drive vehicles carrying load of gas from Assam to Bishalgarh Gas Bottling Centre and used to stay at Bishalgarh. He would visit his house at Debipur twice in a month. His wife Purnima wanted to live at Bishalgarh with him to which the accused did not agree since he often used to remain out of the State while driving vehicle of Assam Oil Corporation, for which deceased Purnima might be upset, and therefore, committed suicide. It is the plea of the accused that no such demand of Rs. 20,000 was made and she was never subjected to cruelty. 2. Heard learned Counsel, Mr. S. Sarkar for the appellant and learned Addl. P.P., Mr. P. Bhattacharjee for the State respondent. 3. Learned Counsel, Mr. Sarkar has submitted that the witnesses examined by the prosecution may be classified in three groups i.e. independent witnesses -- PWs. 1 and 2, interested/relative witnesses -- PWs. 4, 5, 6 and 8 and formal/official witnesses -- PWs. 3, 7, 9, 10 and 11. He has further submitted that except PWs. 3. Learned Counsel, Mr. Sarkar has submitted that the witnesses examined by the prosecution may be classified in three groups i.e. independent witnesses -- PWs. 1 and 2, interested/relative witnesses -- PWs. 4, 5, 6 and 8 and formal/official witnesses -- PWs. 3, 7, 9, 10 and 11. He has further submitted that except PWs. 4, 5, 6 and 8, the family members and relatives of the informant, there is no other convincing evidence on record to support that the accused appellant subjected his wife, the deceased Purnima to cruelty, on demand of Rs. 20,000. The statement of demand of Rs. 20,000 is an after thought and made to make out a case against the accused, might be because of sudden death of Purnima. In the evidence of the prosecution witnesses another convincing fact surfaced that the deceased wanted to stay at Bishalgarh with the accused but the accused did not agree to the proposal since he used to remain out of the State often and, therefore, wanted his wife to stay with the other members of his family in his village house, and that for that reason, might be because of frustration or sentiment, she had committed suicide by hanging. Learned Counsel has further submitted that the mother of the deceased and other family members, after the death of Purnima, did not lodge the FIR though they were present on the spot when the police came on 15.2.2007 itself, but thereafter on 16.2.2007, in the afternoon lodged the FIR, making false and fabricated allegation, which has not been supported by any scrap of independent evidence. The witnesses i.e. PWs. 4, 5, 6 and 8 made omnibus statements about the demand and torture, which does not inspire confidence in any manner and the Trial Court committed a serious wrong and injustice in convicting the accused for the offence charged against him. 4. Learned Addl. P.P., on the other hand, has submitted that Purnima is the married wife of the accused appellant and she died an unnatural death within seven years of her marriage. The witnesses i.e. the mother, brother, uncle and cousin brother of the deceased are natural witnesses to say about the illegal demand and torture on her. There is no reason to disbelieve their statements at the threshold. The witnesses i.e. the mother, brother, uncle and cousin brother of the deceased are natural witnesses to say about the illegal demand and torture on her. There is no reason to disbelieve their statements at the threshold. If the evidence of those witnesses is believed, then, a presumption of abatement of suicide should be drawn under Section 113A of the Evidence Act and the Trial Court, in view of the facts and circumstances, committed no wrong in holding the accused guilty of the offence charged. 5. Section 498A of IPC has been inserted and brought into effect with a view to curb the vice of cruelty to a married woman by her husband or in-laws. It has become a burning problem of the society as a whole. It is known to all concern that the greed for dowry and the dowry system, as an institution, is at the root of the offence contemplated in the Section. To deal with the offence with an iron hand. Section 113A has also been introduced in the Evidence Act, raising a presumption against the husband or other relatives of the husband. While dealing with such cases, the Court should be conscious and alive that such matrimonial offences are committed within four walls of the matrimonial home, and therefore, the outsiders may not be readily available to the witnesses of such offence. The Courts also require to take care so that the innocent persons are not entangled in such cases where there is a tendency of the relatives of such deceased to falsely involve the husband and relatives of the husband with false charges. The Supreme Court in a sensational case of bride murder, namely Sharad Birdhichand Sarda vs. State of Maharashtra, reported in (1984) 4 SCC 116 , in paragraph 48 of the judgment observed thus: 48. Before discussing the evidence of the witnesses we might mention a few preliminary remarks against the background of which the oral statements are to be considered. All persons to whom the oral statements are said to have been made by Manju when she visited Beed for the last time, are close relatives and friends of the deceased. In view of the close relationship and affection any person in the position of the witness would naturally have a tendency to exaggerate or add facts which may not have been stated to them at all. In view of the close relationship and affection any person in the position of the witness would naturally have a tendency to exaggerate or add facts which may not have been stated to them at all. Not that this is done consciously but even unconsciously the love and affection for the deceased would create a psychological hatred against the supposed murderer and, therefore, the Court has to examine such evidence with very great care and caution. Even if the witnesses were speaking a part of the truth or perhaps the whole of it, they would be guided by a spirit of revenge or nemesis against the accused person and in this process certain facts which may not or could not have been stated may be imagined to have been stated unconsciously by the witnesses in order to see that the offender is punished. This is human psychology and no one can help it. 6. The Trial Court, considering the evidence of PWs. 4, 5, 6 and 8, held that the deceased Purnima was subjected to cruelty by the accused husband in the matrimonial home on demand of Rs. 20,000 which could not be fulfilled by her mother and accordingly, held the accused guilty and sentenced him as aforesaid. 7. Let us now travel through the evidence on record. Marriage between the accused and the deceased Purnima was solemnized, admittedly, on 20.2.2002 and after marriage they lived and cohabited as husband and wife in the matrimonial home at Debipur along with other members of the family of the accused i.e. the FIR named accused persons. It is an undisputed fact that the deceased Purnima committed suicide in the matrimonial home on 15.2.2007, a Thursday at evening time. It is also an admitted fact that the information about the death of the deceased was reported to her paternal home i.e. to P.W. 4 and on that information P.W. 4 along with PWs. 5, 6 and 8 and others arrived at the matrimonial home of the deceased and found her hanging with the beam of the hut. Police prepared inquest report over the dead body in presence of those witnesses and P.W. 5 signed the inquest report as a witness. On that day, no FIR was lodged alleging that the deceased was subjected to cruelty for dowry or otherwise. The FIR was lodged on 16.2.2007 at 18.05 hrs. Police prepared inquest report over the dead body in presence of those witnesses and P.W. 5 signed the inquest report as a witness. On that day, no FIR was lodged alleging that the deceased was subjected to cruelty for dowry or otherwise. The FIR was lodged on 16.2.2007 at 18.05 hrs. scribed by P.W. 3, a Circle Inspector of Police and uncle of the deceased Purnima on the request of P.W. 4. The well-drafted FIR consists one item of allegation that after about six months of marriage the accused demanded Rs. 20,000 and put pressure on the deceased to bring the amount from the informant, and on that issue she was subjected to physical assault. There is no allegation in the FIR that at the time of settlement of the marriage, any such demand of Rs. 20,000 was made. The informant made specific statement in the FIR that at the time of marriage as per the demand of the groom party, furniture, golden ornaments and a TV were given. Had there was any such demand of cash money at the time of settlement of the marriage, the informant would reflect it in the FIR, which is well drafted by a police officer, a relative of the informant, and in her deposition also the informant stated that the FIR was written as per her statement. 8. Let us now see what the witnesses stated in their deposition regarding the alleged demand and exercise of cruelty. P.W. 4 stated that at the time of marriage the accused persons demanded Rs. 20,000 cash, furniture, TV, Show-case, sofa, golden ornaments of three 'Vories' and she could satisfy all the demands except the demand of Rs. 20,000. After marriage Purnima went to her matrimonial home. For six months she was all right. After six months her husband started physical torture on her daughter for non-payment of the demand amount of Rs. 20,000. During visit of her daughter to her house she disclosed about the physical torture. P.W. 5 stated that at the time of marriage they gave T.V., furniture, sofa, golden ornaments of three 'Vories' as per the demand of groom party. They also demanded Rs. 20,000 cash but his mother could not pay the same. After six months of marriage his brother-in-law started physical torture on his sister since they could not pay Rs. 20,000. P.W. 5 stated that at the time of marriage they gave T.V., furniture, sofa, golden ornaments of three 'Vories' as per the demand of groom party. They also demanded Rs. 20,000 cash but his mother could not pay the same. After six months of marriage his brother-in-law started physical torture on his sister since they could not pay Rs. 20,000. P.W. 6 stated that as per demand of the accused they gave furniture, sofa, almirah, three 'Vories' of gold at the time of marriage. They also demanded Rs. 20,000 cash before marriage and they agreed to pay the said amount after the marriage. But due to poverty the amount could not be paid, and as a result, the deceased was subjected to physical torture by her husband. P.W. 8 stated that mother of the deceased gave furniture, sofa, three 'Vories' of gold as per demand of the accused during marriage. There was a demand of Rs. 20,000 cash at the time of marriage, but the mother of the deceased could not pay for which the deceased was subjected to cruelty by her husband. The statements made by the witnesses, who are all relatives of the deceased, apparently, made it clear that they made a parrot like statement about the demand of Rs. 20,000 and the consequent exercise of cruelty by the accused on the deceased for non-payment of the amount. All the witnesses made categorical statements that the demand of Rs. 20,000. was made before the marriage i.e. at the time of settlement of the marriage and the amount was due to be paid whereas in the FIR it is just reverse that the demand of Rs. 20.000 was made by the accused after about six months of marriage. This discrepancy has not been clarified by the prosecution in the evidence on record. Another story surfaced in the statements of the witnesses. PWs. 1 and 2 are independent witnesses and are responsible persons of the village, being the Pradhan and Member of the Gaon-Panchayat. P.W. 1 stated that he knew the accused and the deceased Purnima. On hearing about the incident on 15.2.2007 he went to the house of the accused and found the deceased hanging in the dwelling hut of the accused. He came to learn that before the incident some quarrel took place between the accused and the deceased for taking the deceased to Bishalgarh. On hearing about the incident on 15.2.2007 he went to the house of the accused and found the deceased hanging in the dwelling hut of the accused. He came to learn that before the incident some quarrel took place between the accused and the deceased for taking the deceased to Bishalgarh. Besides this, he had no other knowledge in respect of their relation. In cross-examination, he stated that he is the Pradhan of Debipur Gram Panchayat. The house of the accused is within his Panchayat. Marriage was solemnized between the accused and deceased Purnima 4/5 years before the incident. The accused Jiten is a driver of Assam Oil Corporation. The accused drives vehicles from Assam to Bishalgarh. In every month the accused used to come to his house. For 4 to 5 days the accused had to stay outside Bishalgarh while he used to go to Assam and for that reason the accused did not agree to keep his wife at Bishalgarh. P.W. 2 stated that he is an elected Member of Debipur Gram Panchayat. The accused is residing within a ward of his Panchayat. On hearing the incident he went to the house of the accused after arrival of police personnel. He heard that deceased wanted to go to Bishalgarh and that was refused by the accused husband. In cross-examination, he stated that he knew the accused for last seven years. His house was adjacent to the house of the accused. He had visiting terms of the family of the accused. The deceased also talked with him. The deceased used to express her unhappiness for not taking her to Bishalgarh. 9. What emerges from the deposition of P Ws. 1 and 2 is that the deceased wanted to stay at Bishalgarh with her husband but her husband did not agree since he used to go to Assam, driving vehicle for carrying gas and therefore he did not want to keep his wife alone at Bishalgarh. The accused did not agree to take his wife to stay at Bishalgarh and for that his wife was unhappy. P.W. 4, the informant, in cross-examination admitted that at the time of marriage the accused used to drive vehicle from Assam to Bishalgarh and occasionally used to come at Gajaria. Her daughter wanted to stay at Bishalgarh but she was not taken to Bishalgarh. In his examination under Section 313 of Cr. P.W. 4, the informant, in cross-examination admitted that at the time of marriage the accused used to drive vehicle from Assam to Bishalgarh and occasionally used to come at Gajaria. Her daughter wanted to stay at Bishalgarh but she was not taken to Bishalgarh. In his examination under Section 313 of Cr. P.C. in reply to the questions put to him, the accused stated that the allegation demand of any dowry is false, and that his wife wanted to stay with him at Bishalgarh but he advised her to stay in his parental home, and that he did not quarrel with her. 10. It is apparent that PWs. 4, 5, 6 and 8 made an omnibus statement about the demand of Rs. 20,000 as dowry and consequent exercise of cruelty on the deceased. There is nothing specific as to the manner of exercise of cruelty by the accused, who according to the prosecution witnesses, used to visit his house about twice in a month. All along, as it appears, the deceased used to stay with other members of the family, but no allegation surfaced that the other members of the family subjected her to cruelty in any manner for which the deceased was not in a position to live in the house of the accused. The statement of the accused, that since he used to go away with vehicle to Assam for carrying gas and therefore he advised his wife to stay at Debipur in his parental home, does not seem to be a false statement. If we believe PW. 1, there might be a quarrel between them on the issue but such a quarrel can in no way be said to be an abatement to commit suicide. The word, 'abatement' is defined in Section 107 of IPC, which should be read together with the provision of Section 498A of IPC. The word, 'cruelty' is explained in Section 498A thus: Explanation -- For the purpose of this Section, 'cruelty' means- (a) Any willful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman. The word, 'cruelty' is explained in Section 498A thus: Explanation -- For the purpose of this Section, 'cruelty' means- (a) Any willful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman. (b) Harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand. Prosecution case, as alleged, may come under the purview of Explanation (b) but the ingredient thereof is missing in the evidence on record. The omnibus statement of the witnesses can in no way be said to be convincing evidence to hold that the deceased was subjected to harassment with a view to coerce her to fulfill the unlawful demand of Rs. 20,000. A mere statement that the deceased was subjected to cruelty on demand of money does not constitute an offence under Section 498A of IPC. If such a demand was actually made, it is further necessary to prove that the degree or intensity of such cruelty on the part of the accused is such, as is likely to cause grave injury or danger to her life or limb or to her mental and physical health. If the deceased was subjected to cruelty by the accused or any member of her matrimonial home during five years of her matrimonial life, she would naturally express her plight to her neighbours relatives and other people in the society. In the case at hand, except the mother, brother, uncle and cousin brother of the deceased, there is no other item of evidence to support the allegation of cruelty. Under such circumstances, the prosecution case that the deceased was subjected to cruelty by the accused in the matrimonial home on demand of Rs. 20,000, seems to be extremely doubtful and based on such fractured evidence it was not be proper to hold the accused guilty of the offence charged against him. 11. Under such circumstances, the prosecution case that the deceased was subjected to cruelty by the accused in the matrimonial home on demand of Rs. 20,000, seems to be extremely doubtful and based on such fractured evidence it was not be proper to hold the accused guilty of the offence charged against him. 11. A presumption under Section 113A of the Evidence Act will be available only when the prosecution will be able to establish that the accused subjected his wife to cruelty and that the intensity of cruelty was of such an extent that she was compelled to commit suicide. There is no scrap of evidence that the accused abated his wife to commit suicide or that he has exercised cruelty with such a degree that she was compelled to commit suicide. It might happen that because of utter frustration, while her request to take her to Bishalgarh and to live with the accused was turned down by the accused, she has chosen the extreme path of eliminating her life. No doubt, it is a most shocking incident that young wife committed suicide in the matrimonial home. If it is found, based on cogent evidence, that anybody is responsible for her committing suicide he must be deal with iron hand. At the same time, it is also to be looked into with great care and caution that for commission of suicide by one person another innocent should not put to suffer. 12. In the facts and circumstances of the case, after having careful examination of the evidence on record, I am of the considered opinion that the prosecution case is extremely doubtful and that it might happen that the deceased because of refusal of her request to live with the accused at Bishalgarh, out of utter frustration, has taken the extreme decision to commit suicide by hanging and she executed it and her relatives i.e. her mother, brother and other members of the parental family, because of her such sudden death, could not tolerate it and prompted an allegation of exercise of cruelty by the accused and his family members. The Trial Court was absolutely wrong in holding the accused guilty of the charges framed against him. 13. Learned Counsel, Mr. The Trial Court was absolutely wrong in holding the accused guilty of the charges framed against him. 13. Learned Counsel, Mr. Sarkar in course of argument has drawn my attention to the cross-examination of the witnesses and has submitted that learned Trial Judge committed a serious wrong in recording his own opinion while drawing attention to the previous statement of the witnesses recorded by police. Since it is an issue, what is noticed on many occasions, the Trial Courts commit this mistake while recording contradiction with previous statement of the witnesses. Let us quote here some of such statements recorded by learned Trial Judge: The cross-examination of P.W. 4 recorded by learned Trial Judge reflects thus:- I stated in the complaint about demand of dowry of Rs. 20,000 at the time of marriage. The above statement is not found in the complaint. But it is found in other language that the accused demanded Rs. 20,000 after six months of marriage and created pressure on my daughter. Cross-examination of P.W. 5 reflects thus:- I stated the police that my sister told us about torture. Attention of the witness is drawn, but the above statement is not found in exact language as stated above in his statement. But it is found in some other language that after few months of marriage accused Jiten Som created pressure on my sister for payment of Rs. 20,000. Cross-examination of P.W. 6 reflects thus: I stated to police about torture on the deceased for demand of money. Attention of the witness is drawn to his statement. The above statement is not found in exact language as stated by the witness in his statement. But found in different language that after six months of marriage her husband created pressure on her for payment of money. The above statements show that the attention of the witnesses was drawn to some part of the statements recorded by police in course of investigation or in respect of some omission in such statement. It is not the function of the Presiding Officer to record his own observation in culling out some part from the police statement while recording contradiction. The Presiding Officer is to ensure that the attention of the witness is drawn to such previous statement and to record the answer given by the witness in respect of such previous statement, and not his own observation. The Presiding Officer is to ensure that the attention of the witness is drawn to such previous statement and to record the answer given by the witness in respect of such previous statement, and not his own observation. A previous statement recorded by I.O. is only to be used for contradiction and nothing else. It cannot be regarded as a substantial evidence and the Court is not required to record any part of such statement with a view to show what the witness stated earlier before the police. Any statement made by a witness to the police recorded under Section 161 of Cr. P.C. is not admissible in view of the provision of Section 162 of Cr. P.C. Such statement cannot be used for any purpose except for contradiction, strictly in the manner prescribed in Section 145 of the Evidence Act. The Apex Court in the case of Tahsildar Singh & another vs. The State of Uttar Pradesh, reported in AIR 1959 SC 1012 , laid down the law which still holds good in respect of cross-examination of a witness as to his previous statement in writing. The Division of this Court elaborately discussed the issue in the case of Goutam Das & another vs. State of Tripura & another, reported in 2008 (3) GLT 625, and in paragraphs 44, 45 and 46, the Court held thus:- 44. On use of police statement -- We, now, resume our discussion on the use of police statement. Any police officer making an investigation, under Chapter-XII of the Code, may examine orally any person supposed to be acquainted with the facts and circumstances of the case and may reduce into writing any such statement. This power is given under Section 161, Cr. P.C. Section 162, Cr. P.C. provides that such statement shall not be signed by the person making it and shall not be used for any purpose at any inquiry or trial in respect of any offence under investigation save as provided therein. This power is given under Section 161, Cr. P.C. Section 162, Cr. P.C. provides that such statement shall not be signed by the person making it and shall not be used for any purpose at any inquiry or trial in respect of any offence under investigation save as provided therein. The proviso to the said Section, being relevant, is quoted below:- Provided that when any witness is called for the prosecution in such inquiry or trial whose statement has been reduced into writing as aforesaid, any part of his statement, if duly proved, may be used by the accused, and with the permission of the Court, by the prosecution to contradict such witness in the manner provided by Section 145 of the Evidence Act, 1872 (1 of 1872); and when any part of such statement is so used, any part thereof may also be used in the re-examination of such witness but for the purpose only of explaining any matter referred to in his cross-examination. It would appear from above that the police statement of a witness can be used only to contradict such witness (i) by the accused; (ii) by the prosecution with the permission of the Court; and (iii) in the manner provided by Section 145 of the Evidence Act. It is, thus, clear that such statement cannot be used by the accused or prosecution for the purpose of corroboration and cannot be treated as substantive evidence in favour of or against either the accused or the prosecution. 45. Application of Sections 145 and 155 of Evidence Act -- The manner of using such statement for the purpose of contradiction only must be in terms of Section 145 of the Evidence Act, which reads as follows:- 145. Cross-examination as to previous statements in writing -- A witness may be cross-examined as to previous statements made by him in writing or reduced into writing, and relevant to matters in question, without such writing being shown to him, or being proved; but, if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him. Though Section 155 of the Evidence Act provides in Clause (3) that the credit of a witness can be impeached by proof of his former statement which is inconsistent with any part of his evidence before the Court, the same is controlled by Section 145 which provides the manner of contradicting such a witness. It is well settled that if it is intended to contradict a witness by his previous statement in writing, his attention must, before the writing is proved, be drawn to that part of it which are to be used for the purpose of contradicting him. The proper procedure would, therefore, be -- (i) to ask a witness first whether he made such a statement before the police officer; (ii) if the witness answers in the affirmative, the previous police statement, in writing, need not be proved; (iii) the cross-examiner may, if he so chooses, leave it to the party, who called the witness to have the discrepancy, if any, explained in course of re-examination; (iv) if, on the other hand, the witness denies to have made such a previous statement attributed to him or states that he does not remember having made any such statement, and it is intended to contradict him with reference to his previous statement, the cross-examiner must read out to the witness the relevant portion or portions of the record which are alleged to be contrary to his statement in Court and give him an opportunity to reconcile the same, if he can; (v) the best way of putting a statement is to put it in the actual words in which it stands recorded within quotation marks. A Division Bench of this Court, as far back as in 1963, had laid down, in the State vs. Md. Misir Ali and Others, AIR 1963 Ass. 151, the procedure for putting contradiction to a witness and the manner of proving the same. In Md. Misir Ali (supra), the Division Bench, speaking through C.K. Nayudu, C.J. had observed as follows:- We also regret to note that the procedure to be followed in the case of proving the contradictions appearing in the statements made by prosecution witnesses to the police during investigation is not being followed by subordinate Courts, as well as by the Counsel appearing in criminal cases. We had occasion to point out the correct procedure more than once and it would be worth while restating it. If it is intended by an accused to contradict the evidence given by a prosecution witness at the trial, with a statement made by him before the police during the investigation, the correct thing to do is to draw the attention of the witness to that part of the contradictory statement, which he made before the police, and question him whether he did in fact make that statement. If the witness admits having made the particular statement to the police, that admission will go into evidence and will be recorded as part of the evidence of the witness and can be relied on by the accused as establishing the contradiction. If, on the other hand, the witness denies having made such a statement before the police, the particular portion of the statement recorded under Section 162. Criminal Procedure Code should be provisionally marked for identification, and when the investigating officer who had actually recorded the statement in question comes into the witness box, he should be questioned as to whether that particular statement had been made to him during the investigation, by the particular witness, and obviously after refreshing his money from the Police Case Diary the investigating officer would make is answer in the affirmative. The answer of the investigating officer would prove the statement which is then exhibited in the case and will go into evidence, and may, therefore, be relied only correct procedure to be followed, which would be conformity with Section 145 of the Evidence Act. 46. We fully agree with the above observations made in Md. Misir Ali (supra), and reiterate the same as the correct procedure for proving of contradictions. 14. It is expected that the Trial Courts must have a fair conception about the use of previous statement recorded in course of investigation and the settled position of law thereof. Recording of own observation of the Court referring to a previous statement of the witness is absolutely wrong and is discouraged. 15. In view of the discussions made above, the appeal is allowed. The judgment and order of conviction and sentence dated 28.7.2009, passed by learned Additional Sessions Judge, South Tripura, Belonia, in connection with Sessions Trial Case No. 15 (ST/B) of 2009, is set aside and quashed. 15. In view of the discussions made above, the appeal is allowed. The judgment and order of conviction and sentence dated 28.7.2009, passed by learned Additional Sessions Judge, South Tripura, Belonia, in connection with Sessions Trial Case No. 15 (ST/B) of 2009, is set aside and quashed. It is submitted by learned Counsel, Mr. Sarkar that the accused is still in the jail custody and suffering the sentence. If it is so, he be set at liberty at once, if not required in any other case. Send back the L.C. record along with a copy of the judgment. Appeal allowed.