Jagdish Prasad Pradhan vs State Of Chhattisgarh
2022 Latest Caselaw 7035 Chatt

                                      1
                                                           Cr.A. No. 539 of 2012


                                                                       NAFR
                 HIGH COURT OF CHHATTISGARH, BILASPUR
                        Criminal Appeal No. 539 of 2012
      Jagdish Prasad Pradhan S/o Tularam Pradhan, Caste-
       Suryavanshi, aged about 36 years, R/o Mahant, P.S. Nawagarh,
       Janjgir, District Janjgir-Champa (C.G.)
                                                       ---- Appellant
                                    Versus
      State of Chhattisgarh, Through - Police Station - Nawagarh, District
       Janjgir-Champa (C.G.)
                                                          ---- Respondent

  For Appellant          :     Mr. Vaibhav A. Goverdhan, Advocate
  For Respondent         :     Mr. Sudeep Verma, Deputy Government
                               Advocate

           DB: Hon'ble Shri Justice Sanjay K. Agrawal
               Hon'ble Shri Justice Rakesh Mohan Pandey
                       Judgment on Board
                           (23.11.2022)
Sanjay K. Agrawal, J.

1. This criminal appeal filed by the appellant/accused herein under

Section 374 (2) of Cr.P.C. is directed against the impugned

judgment of conviction and order of sentence dated 12.06.2012

passed by the Court of learned Sessions Judge, Janjgir-Champa,

District Janjgir-Champa (C.G.) in Sessions Trial No. 180/2011,

whereby the appellant has been convicted for offence under Section

302 of IPC and sentenced to undergo life imprisonment with fine of

Rs.1,000/- and, in default of payment of fine, he shall undergo

further rigorous imprisonment for one month; Section 4 of Tonhi

Pradadna Nivaran Adhiniyam and sentenced to undergo rigorous

imprisonment for two years with fine of Rs.500/- and, in default of

payment of fine, he shall undergo further rigorous imprisonment for

fifteen days and Section 5 of Tonhi Pradadna Nivaran Adhiniyam

Cr.A. No. 539 of 2012

and sentenced to undergo rigorous imprisonment for three years

with fine of Rs.500/- and, in default of payment of fine, he shall

undergo further rigorous imprisonment for fifteen days. It is also

directed that all sentences to run concurrently.

2. Case of the prosecution is that the appellant used to suspect that

his mother-in-law Amol Kunwar-80 years was giving training to his

wife Sita Bai (PW-4) for doing witchcraft. On 12.07.2011 at about

09:00 am the appellant assaulted his mother-in-law calling her tonhi

by hands, fists and club (lathi) as a result of which Amol Kunwar

suffered injuries on her legs, breast and succumbed to those

injuries. Further case of the prosecution is that deceased Amol

Kunwar, aged about 80 years, was staying in the house of appellant

and her daughter Sita Bai for last 2-3 years. In the said house,

Jagendra (PW-1) and Monika (PW-6), son and daughter, of the

appellant were also residing. When PW-1, PW-4 and PW-6

intervened to protect the deceased, the appellant also assaulted

them. The matter was informed by the PW-1 to the Police Station

and merg intimation Ex.-P/1 was registered. After reaching at the

spot, the police prepared Panchanama vide Ex.-P/21 and the dead

body of deceased Amol Kunwar was sent for postmortem.

Postmortem examination was conducted by Dr. Rajendra Singhraj

(PW-9), and as per the postmortem report (Ex.-P/16), cause of

death was external and internal haemorrhage due to injury to the

spleen, left leg, right rib and head injury, death was homicidal in

nature and mode of death was syncope. Memorandum statement of

Cr.A. No. 539 of 2012

the accused/appellant was recorded vide Ex.-P/12 consequent to

which bamboo stick (club) was seized at the instance of the

appellant vide Ex.-P/13. One baniyan and on lungi of the appellant

were also sezied vide Ex.-P/11. Seized articles were sent for

examination to FSL, Raipur from where a report was received vide

Ex.-P/29. As per FSL report blood was found on bamboo stick

(club), baniyan & lungi. After due investigation, the

accused/appellant was charge-sheeted for the offences punishable

under Section 302 of IPC and Sections 3 & 4 of Tonhi Pradadna

Nivaran Adhiniyam which was committed to the Court of Sessions

for trial in accordance with law in which the accused abjured his

guilt and entered into defence.

3. In order to bring home the offence, prosecution examined 11

witnesses and brought on record 29 documents. The statement of

the appellant/accused was examined under Sectin 313 of CrPC

wherein he denied guilt, however he examined none in his defence.

4. Learned Sessions Court, after appreciating the oral and

documentary evidence on record, convicted the appellant for the

aforesaid offences and sentenced him as aforesaid on the basis of

the statements of Jagendra (PW-1), Dukaluram (PW-3), Sita Bai

(PW-4) and Monika (PW-6) as well as on the basis of their

statements recorded under Section 164 of CrPC vide Ex.-4, Ex.-P/7,

Ex.-P/9 & Ex.-P/15.

5. Learned counsel for the appellant submits that the learned Session

Judge is absolutely unjustified in convicting the appellant for the

Cr.A. No. 539 of 2012

aforesaid offences in absence of legally admissible evidence of

Jagendra (PW-1), Dukaluram (PW-3), Sita Bai (PW-4) and Monika

(PW-6), they have not supported the case of prosecution and they

have been declared hostile by the prosecution. The learned Session

Judge has also erred in relying upon the statements of PW-1, PW-3,

PW-4 & PW-6 recorded under Section 164 of CrPC. He further

submits that though the seized articles were sent for chemical

examination, but the FSL report has been rendered insubstantial as

no human blood has been found on the bamboo stick (club),

therefore, the conviction of the appellant for offences punishable

under Section 302 of IPC and Sections 4 & 5 of Tonhi Pradadna

Nivaran Adhiniyam is liable to be set aside.

6. Per-contra, learned counsel for the State supports the impugned

judgment and submits that the prosecution has proved the offence

beyond reasonable doubt by leading evidence of clinching nature.

The Sessions Court has rightly convicted the accused/appellant for

the offence mentioned herein above, thus, the present criminal

appeal filed by the appellant deserves to be dismissed.

7. We have heard learned counsel for the parties, considered their

rival submissions made herein-above and went through the records

with utmost circumspection.

8. The first and foremost question is as to whether the death of the

deceased was homicidal in nature, which has been answered by

the learned trial Court in affirmative by relying upon the postmortem

report (Ex.-P/16) duly proved by Dr. Rajendra Singhraj (PW-9). It is

Cr.A. No. 539 of 2012

correct finding of fact based on evidence available on record and

same is neither perverse nor contrary to the record. We hereby

affirmed that finding.

9. The next circumstances is that Jagendra (PW-1), Sita Bai (PW-4)

and Monika (PW-6) are the eyewitnesses, but they have not

supported the prosecution case and have completely become

hostile. They have clearly stated that on account of assault made by

some animal/ buffalo to deceased Amol Kunwar, aged about 80

years, due to which she suffered injuries and died. However, the

trial Court relying of 164 CrPC statements of Jagendra (PW-1),

Dukaluram (PW-3), Sita Bai (PW-4) and Monika (PW-6) holding

guilty and relying upon the recovery of bamboo stick in which blood

stained was found vide FSL report Ex.-P/29.

10. It is well settled law that a statement made under Section 164 CrPC

cannot be used as a substantive piece of evidence. In Brijbhusan

Singh v. Emperor1, the Privy Council has observed that a

statement made under Section 164 CrPC cannot be used as a

substantive piece of evidence and it can be used to cross-examine

the person who made it, and the result may be to show that the

evidence of the witness is false. But that does not establish that

what he stated out of Court under Section 164 CrPC is true.

Similarly, in Mamand and others v. Emperor2, it has been

observed by the Privy Council that the statement of a witness made

under Section 164 CrPC can be used only to discredit the evidence

1 AIR 1946 38 2 AIR 1946 45

Cr.A. No. 539 of 2012

given by him in Court, and not for any other purpose. Such a

statement cannot be treated as substantive evidence of the facts

stated.

11. In the matter of Ram Kishan Singh v. Harmit Kaur and another 3,

with regard to the value to be given to a statement under Section

164 CrPC, the Supreme Court has held that "a statement under

Section 164 of the Code of Criminal Procedure is not substantive

evidence. It can be used to corroborate the statement of a witness.

It can be used to contradict a witness."

12. The Supreme Court, in the matter of Sunil Kumar and others v.

State of Madhya Pradesh4, has held that statement recorded

under Section 164 of CrPC can be used for corroboration or

contradiction.

13. Similarly, in the matter of George and others v. State of Kerala

and another5, their Lordships of the Supreme Court have

considered the issue as to whether the statement recorded under

Section 164 CrPC constitutes substantial evidence and held that a

statement of a witness recorded under Section 164 CrPC cannot be

used as substantive evidence and can be used only for the purpose

of contradicting or corroborating the maker of such statement.

14. Furthermore, in the matter of R. Shaji v. State of Kerala6, similar

proposition of law has been laid down by their Lordships of the

Supreme Court, which state as under :-

3    AIR 1972 SC 202
4    AIR 1997 SC 940
5    (1998) 4 SCC 605
6    (2013) 14 SCC 266

                                                                 Cr.A. No. 539 of 2012

"27. So far as the statement of witnesses recorded under Section 164 is concerned, the object is twofold; in the first place, to deter the witness from chaingin his stand by denying the contents of his previously recorded statement; and secondly, to tide over immunity from prosecution by the witness under Section 164. A proposition to the effect that if a statement of a witness is recorded under Section 164, his evidence in court should be discarded, is not at all warranted. (Vide Jogendra Nahak v. State of Orissa7 and CCE v. Duncan Agro Industries Ltd.8)

28. Section 157 of the Evidence Act makes it clear that a statement recorded under Section 164 CrPC can be relied upon for the purpose of corroborating statements made by witnesses in the committal court or even to contradict the same. As the defence had no opportunity to cross-examine the witnesses whose statements are recorded under Section 164 CrPC, such statements cannot be treated as substantive evidence."

15. Finally, in the matter of Somasundaram alias Somu v. State

represented by the Deputy Commissioner of Police 9, a three

judge bench of the Supreme Court considered the purport and

value of Section 164 CrPC. In paragraph 81 of the report following

question was framed by their Lordships :-

"81. Section 164 CrPC enables the recording of the statement or confession before the Magistrate. Is such statement substantive evidence ? What is the purpose of recording the statement of confession under Section 164 ? What would be the position if the person giving the statement resiles from the same completely when he is examined as a witness ? These questions are not res integra. Ordinarily, the prosecution which is conducted through the State and the police machinery would have custody of the person. Though, Section 164 does provide for safeguards to ensure that the statement or a confession is a voluntary affair it may turn out to be otherwise. We may advert to statements of law enunciated by this Court over time."

7    (2000) 1 SCC 272
8    (2000) 7 SCC 53
9    (2020) 7 SCC 722

                                                       Cr.A. No. 539 of 2012

16. Thereafter, considering the decisions rendered in the matters of

George (supra) and R. Shaji (supra), their Lordships held in

paragraph 84 as under :-

"84. Thus, in a case where a witness, in his statement under Section 164 CrPC, makes culpability of the accused beyond doubt but when he is put on the witness stand in the trial, he does a complete somersault, as the statement under Section 164 is not substantial evidence then what would be the position ? The substantive evidence is the evidence rendered in the court. Should there be no other evidence against the accused, it would be impermissible to convict the accused on the basis of the statement under Section 164."

17. From the aforesaid principle of law laid down by their Lordships of

the Supreme Court in the aforesaid judgments (supra) qua

statement under Section 164 CrPC, it is quite vivid that statement

under Section 164 of CrPC is not an evidence, much less,

substantial evidence within the meaning of Section 3 of the

Evidence Act and it can be used only for the purpose of

corroboration or contradiction. In absence of any other legally

admissible evidence corroborating the evidence under Section 164

of CrPC, no conviction can be recorded. As such in view of the

aforesaid judgments of Hon'ble Supreme Court, 164 CrPC

statement is not substantive piece of evidence and on the basis of

164 CrPC statement, the conviction can not be made. Furthermore,

though the witnesses to the recovery namely Harilal Banjare (PW-5)

and Rajuprasad (PW-8), they have not supported the prosecution

case. The trial Court relying upon the statement of Investigating

Officer Usha Sondhiya (PW-11) has held recovery is proved, but

Cr.A. No. 539 of 2012

fact remain that bamboo stick (club) was recovered and in FSL

report (Ex.-P/29) club -Article 'C' only blood was found and other

articles i.e. baniyan & lungi blood was also found.

18. In the matter of Balwan Singh v. Latel Ram and Another 10, their

Lordships of the Supreme Court has held that if the recovery of

bloodstained articles is proved beyond reasonable doubt by the

prosecution, and if the investigation was not found to be tainted,

then it may be sufficient in the prosecution shows that the blood

found on the articles is of human origin though, even though the

blood group is not proved because of disintegration of blood. Their

Lordships held in paragraph 24 as under :-

"24. In the instant case, then, we could have placed some reliance on the recovery, had the prosecution at least proved that the blood was of human origin, As observed supra, while discussing the evidence of PWs 9 and 16, the prosecution has tried to concoct the case from stage to state. Hence, in the absence of positive material indicating that the stained blood was of human origin and of the same blood group as that of the accused, it would be difficult for the Court to rely upon the aspect of recovery of the weapons and tabbal, and such recovery does not help the case of the prosecution."

19. Though the recovery has not been found proved beyond doubt as

per statement of I.O. Usha Sondhiya (PW-11), blood was found on

the seized articles, but in FSL report (Ex.-P/29, human blood has

not been found, it would be difficult of the Court to rely upon the

aspect of recovery of the weapon, and such recovery does not help

the case of prosecution.

10 (2019) 7 SCC 781

Cr.A. No. 539 of 2012

20. In view of the aforesaid analysis, since eyewitnesses- Jagendra

(PW-1), Sita Bai (PW-4) and Monika (PW-6) have not supported the

prosecution case, their 164 CrPC statements are not substantive

piece of evidence and in the recovered article bamboo stick (club),

no human blood was found, therefore, in the light of decision in

case of Balwan Singh (supra) regarding recovery of bloodstained

article, there is no incriminating circumstances found proved by the

trial Court. We are of the considered opinion that prosecution has

miserably failed to bring home the offences punishable under

Section 302 of IPC and Sections 4 & 5 of Tonhi Pradadna Nivaran

Adhiniyam against the appellant and the trial Court is absolutely

unjustified in convicting him for the said offences. We hereby set

aside the impugned judgment of conviction and order of sentence

passed by the trial Court and acquit the appellant from the charges

levelled against him. The appellant is reported to be on bail,

therefore, his bail bonds shall remain in force of a period of six

months from today in view of the provisions of Section 437-A of

Cr.P.C.

21. Accordingly, this criminal appeal stands allowed.

                       Sd/-                                      Sd/-

            (Sanjay K. Agrawal)                       (Rakesh Mohan Pandey)
                  Judge                                       Judge

vatti