High Court · 2012

This appeal is directed against the judgment dated 10-4-2008 passed by t he learned Additional Sessions Judge (FTC), Barpeta in Sessions Case No. 2 of 20 05 convicting the appellant under Sections 302/201 IPC and sentencing him to und ergo rigorous imprisonment for life with a fine of Rs. 2,000/- and, in defaul t thereof, to undergo another RI for two months. The case of the prosecution is that on 7-12-2000, Samsuddin, the decease 2. d, had gone to Guwahati by B.G. Passenger train for selling vegetables, but as h e got down from the train at Barpeta-Road Railway Station on returning home, he was invited by the appellant at the railway station for a chat: he never returne d home thereafter. His dead body with sharp cutting injuries was found on 8-12-2 000 at the place one kilometer away from Barpeta-Road Station. The incident was reported in the FIR lodged by the informant to Barpeta Road Police Outpost on 8- 12-2000, and the same was entered in the G.D. being No. 193 dated 8-12-2000: the FIR was then sent to Rangia GRPS for registering a regular case and investigati on. After investigation of the case, the police charge-sheeted the appellant und er Section 302/201 IPC to stand the trial. The trial court, finding a prima faci e case against the appellant, thereafter framed the charges under the sections s o charged, to which he pleaded not guilty. Subsequently, the offence punishable under Section 34 IPC was added to the charge, to which he also pleaded not guilt y. In the course of trial, the trial court examined 11 prosecution witnesses inc luding the Medical Officer conducting the post mortem examination, the I.O. of t he case and the FSL expert. No evidence was, however, led by the appellant. At the conclusion of the trial, the appellant was convicted as charged and sentence d accordingly by the impugned judgment. Aggrieved by this, the appellant preferr ed this appeal. 3. The case of the prosecution before the trial court was based on circumst antial evidence as there were no eye-witnesses. The following are those circumst ances:- (a) the deceased was last seen together in the company of the appellant and (b) the weapon of assault was recovered at the instance of the appellant whi ch was admissible under Section 27, Evidence Act. It may be noticed at this stag e that some of the prosecution witnesses had turned hostile in the course of tri al. In convicting the appellant, the trial court relied on the evidence of PW 1, who is the brother of the deceased, PW 4, the author of the FIR, who did not co rroborate the contents of his own FIR, PW 5, who was declared hostile, PW 6, who was also declared hostile witness, and the contents of the FIR for convicting t he appellant. In so far as the first circumstances relied on by the prosecution is concerned, the trial court observed that (cid:28) & P.W. 1, P.W. 2, P.W. 3, P.W. 4, P .W. 5 and P.W. 6 have not clearly supported the last seen together theory. The l ink between the deceased Samsuddin went with the accused Sahidul Khan on the rel evant night and his ultimate death becomes visible, though not clearly, yet esta blished (cid:29). In our opinion, such finding of the trial court cannot be approved by us. The trial court seems to have misunderstood or overlooked the well-known fun damental criminal jurisprudence that it is the duty of the prosecution to prove the guilt of the accused beyond reasonable doubt. If the prosecution has failed to produce clinching evidence to bring home the charge against the accused-appel lant, the trial court should not have any hesitation to acquit him. Suspicion, h owsoever grave it may be, cannot take the place of proof, that too, when the req uirement of law is (cid:28)proof beyond reasonable doubt (cid:29). 4. Nevertheless, in order to satisfy ourselves that there is no miscarriage of justice, we have re-examined the entire evidence on record. In the case at h and, the trial court convicted the appellant on the basis of the (cid:28)last seen theo ry (cid:29). For reaching this finding, it first relied on the contents of the F.I.R. In the F.I.R., it was purportedly stated by PW 1, who is the brother of the decea sed, that on 7-12-2000, when the deceased had come home from Guwahati, the appel lant was in the company of the deceased and that on the following day i.e. 8-12- 2000, his dead body was recovered at B.G. rail track about 1 km west of Barpeta Road Railway Station. According to the trial court, the contents of the FIR clea rly implicated the appellant. This is, to say the least, is a bizarre finding. I n the first place, PW 1 in his cross-examination had stated that he did not lodg e the ejahar and that he had not told the police that in Barpeta Road Railway St ation, the appellant had taken away the deceased. The trial court has completely misunderstood the value and admissibility of an FIR. The settled legal position is that the first information report is not a substantive evidence; it can be u sed only to contradict the maker thereof or for corroborating his evidence. In t he instant case, PW 1, who is supposed to be the informant, did not corroborate the contents of the FIR in his evidence, but his evidence was never challenged b y the prosecution so much so that such ejahar cannot be relied on by the prosecu tion for convicting the appellant. That apart, there is no clinching evidence to prove that the FIR was lodged by PW 1, who never deposed in clear terms that he was the one who had lodged the ejahar. PW 1 did not in any manner implicate the appellant apart from what he had allegedly stated in the FIR, which we have ref erred to earlier, and, as such, his statement is not worthy of consideration. So are the statements of PW 2, 3 and 4. PW 5 is the uncle of the deceased. This wi tness was, however, declared hostile by the prosecution: he disowned all the sta tements attributed to him of implicating the appellant in the murder of the dece ased. Similarly, PW 6 also turned hostile while giving his testimony and resiled from all the statement attributed to him of implicating the appellant and had e ven gone to the extent of testifying that the police did not even question him a bout the incident nor have they taken his statement. 5. This then takes us to the testimony of PW 5, who was declared hostile by the prosecution. According to him, on the fateful day, he along with the deceas ed and PW 4 and other vendors came by train from Guwahati and got down at Barpet a Rd. and he went home and that after he had arisen from bed, he heard that the body of the deceased was lying on the railway track. He then proceeded to the pl ace of occurrence and thence to the Police Station where his statement was taken by the police. At this stage, he was declared hostile by the prosecution. He de nied of having implicated the appellant in any manner. In his cross-examination, he did not admit that he had told the police that the deceased asked them to go home by handing over two baskets in their hands whereafter he left in the compa ny of the appellant. He also deposed in the cross-examination that he had never told the police about his suspicion on the involvement of the appellant in takin g him away at the railway station or in killing him. He also stated in the cross -examination that he did not know as to who had called the deceased after they g ot down from the train. PW 5 was also declared a hostile witness. He specificall y denied that the appellant had made extra-judicial confession that he killed th e deceased or that the police had taken his statement. PW 7 was similarly declar ed as a hostile witness and was cross-examined by the prosecution. He did not ad mit that he had told the police that the police had arrived at his house taking along the appellant and upon being shown to the police by the appellant, a dagge r from under the mud of the drain near the tube well had been recovered. He also did not admit that he had told the police that the appellant told him that he h ad used the said dagger when he killed the deceased. He also denied of having si gned the seizure list at Ext. 2 and deposed that the police had obtained his sig nature on a blank paper at his house. He also deposed that he did not see the ap pellant at his house and that the police did not show him any confessional state ment made by the appellant to the effect that he would come to the place of occu rrence and deliver the dagger. These are the statements of the witnesses who ha ve been declared hostile witnesses by the prosecution. The question is, whether these statements of hostile witnesses can form the basis of conviction of the ap pellant as held by the trial court. 6. The probative value of the evidence of hostile witness depends upon the quality and the confidence it generates in the mind of the Court after being sub jected to a close scrutiny. If the testimony of a witness placed in juxta-positi on to the other evidence on record does not appear to be consistent and acceptab le, the same cannot be relied upon. It is only after assessing the intrinsic wor th of his testimony with utmost care and caution that either the prosecution or the defense may rely on any part thereof which is consistent with its case. The Court should always be slow in acting on the evidence of a hostile witness. It s hould require corroboration by other reliable evidence. But the evidence may not be rejected outright because he makes different statements at different times. It is not quite strange that some witnesses do turn hostile but that by itself w ould not prevent the Court from finding an accused guilty if there is otherwise acceptable evidence in support of the prosecution. In our opinion, with due resp ect, the law has been succinctly summed up by the Apex Court in Sat Paul v. Delh i Administration, (1976) 1 SCC 727 at para 52 of the judgment. This is what it s aid: (cid:28)52. From the above conspectus, it emerges clear that even in a criminal pr osecution when a witness is cross-examined and contradicted with the leave of th e court, by the party calling him, his evidence cannot, as a matter of law, be t reated as washed off the record altogether. It is for the judge of fact to consi der in each case whether as a result of such cross-examination and contradiction , the witness stands thoroughly discredited or can still be believed in regard t o a part of his testimony. If the judge finds that in the process, the credit of the witness has not been completely shaken, he may, after reading and consideri ng the evidence of the witness, as a whole, with due caution and care, accept in the light of the other evidence on the record, that part of his testimony which he finds to be creditworthy and act upon it. If in a given case, the whole of t he testimony of the witness is impugned, and in the process, the witness stands squarely and totally discredited, the judge should, as a matter of prudence, dis card his evidence in toto. (cid:29) 7. In our opinion, in the absence of other evidence connecting the appellan t, which, unfortunately, is the case here, the evidence of hostile witnesses suc h as PW 5, PW 6 and PW 7, who are supposed to be the ocular witnesses, alone can not be sufficient to sustain the conviction of the appellant. Moreover, the prev ious statements of these prosecution witnesses have not been proved in the manne r laid down under Section 145 of the Evidence Act, 1872 and cannot, therefore, b e admissible in evidence for any purpose. Thus, as a matter of prudence, on the facts of this case, it would be hazardous to use the evidence of these witnesses , who have been thoroughly cross-examined, and have denied of making any stateme nt of having last seen the deceased together with the appellant before the death of the latter, for the purpose of convicting the appellant. Coming now to the e videntiary value in respect of the recovery of the dagger used for the murder of the deceased on production by the appellant, even if we assume for the sake of argument that the recovery has been sufficiently proved also, such recovery with out anything more cannot be the basis of conviction of the appellant. It is well -settled that in a case dependent wholly on circumstantially evidence, the Court before recording a conviction on the basis therefor must be firmly satisfied: that the circumstances are of a determinative tendency unerringly pointi that the circumstances from which the inference of guilt is to be drawn that the circumstances, taken collectively, are incapable of any reasona (a) have been fully established by unimpeachable evidence beyond a shadow of doubt; (b) ng towards the guilt of the accused; and (c) ble hypothesis save that of the guilt sought to be proved against him. After hearing the learned counsel for both the parties, we are of the fi 8. rm view that in the instant case, none of the aforesaid conditions have been sat isfied. Apart from recovery of the murder weapon, the prosecution is unable to e stablish the connection between the crime and the appellant. As already found by us, the remaining evidence adduced by the prosecution could not establish the i nvolvement of the appellant in the crime. The solitary circumstance of recovery of the dagger alleged to have been used for commission of the crime on productio n by the appellant cannot by any stretch of imagination be held to unerringly po int towards the guilt of the appellant nor are there other proved circumstances, which, taken collectively, are capable of any reasonable hypothesis save that o f the guilt sought to be proved against him. In other words, there are no other circumstances to complete the chain of events resulting in the murder of the dec eased. That apart, we have also carefully gone through the record and do not fin d any recorded statement of the appellant under Section 27, Evidence Act leading to the discovery of the dagger. In Bodhraj v. State of J&K, (2002) 8 SCC 45, th e Apex Court held that what is admissible under Section 27, Evidence Act being t he information, the same has to be proved and not the opinion formed on it by th e police officer. In other words, the exact information given by the accused whi le in custody which led to recovery of the articles has to be proved. It is, the refore, necessary for the benefit of both the accused and the prosecution that i nformation given should be recorded and proved and if not so recorded, the exact information must be adduced through evidence. In the case at hand, there is adm ittedly no disclosure statement separately recorded by the police. 9. True, the seizure list at Ext. 2 purportedly had mentioned that the dagg er was recovered from the compound of the appellant upon his leading the police and the witnesses to that place after his confession. Ext. 9 is the statement of the appellant recorded under Section 161 CrPC. The question to be decided is, w hether the statement of the appellant under Section 162 CrPC about the recovery of the dagger can be admissible in evidence for the purpose of Section 27, Evide nce Act. Following the insertion of the words (cid:28)or to affect the provisions of se ction 27 of that (Evidence) Act to sub-section (2) of Section 162 CrPC by the 19 41 amendment, the legislature has now amply made it clear that Section 27 of the Evidence Act is not affected by Section 162 CrPC. Thus, the embargo against the use of the statement recorded under Section 162 CrPC has also been lifted for t he purpose of Section 27, Evidence Act. What the appellant had state therein are thus: (cid:28) &. After the police arrested me, I showed the place of occurrence to the m the dagger by taking it out from the place when I had kept it buried. Police p hotographed that dagger and seized it right at the P.O. in presence of the witne sses. (cid:29) In our judgment, this is no statement leading to the discovery of fact; this is a statement given by the appellant after the fact had already been disco vered, namely, the place where the dagger was buried, which was not known to the police and to the knowledge of the appellant as to it. No disclosure statement was evidently made by him prior to recovery of the dagger in question. The legal position is that no statement relating to a relevant fact is admissible under t he section if it is made after the discovery of the fact. Thus, as found by us, Ext. 9 does not pass the test of Section 27, Evidence Act and the so-called disc losure statement purportedly made therein cannot, therefore, be held to be admis sible in evidence. As the two pieces of circumstantial evidence on which the pro secution has based its case for convicting the appellant are found to be too sha ky, suspicious and fragile, we are not inclined to uphold the impugned judgment of conviction. The appellant is, therefore, entitled to be acquitted. 10. For what has been stated in the foregoing, we allow this appeal. The imp ugned judgment of conviction and sentence dated 10-4-2008 is hereby set aside. C onsequently, the appellant is set at liberty forthwith unless he is required in connection with some other case. Transmit the L.C. record forthwith.