Gauhati High Court
Musst Anjuma Bibi vs The State Of Assam And 2 Ors on 1 December, 2023
Author: Malsari Nandi
Bench: Michael Zothankhuma, Malasri Nandi
Page No.# 1/21
GAHC010154012018
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.A./23/2019
MUSST ANJUMA BIBI
W/O- LATE. SANOWAR ALI,
R/O- HATIPOTA PART- I (MASKAGURI),
P.O- HATIPOTA,P.S.- CHAPAR, DIST- DHUBRI(ASSAM), PIN-783348.
VERSUS
THE STATE OF ASSAM AND 2 ORS
REPRESENTED BY PP, ASSAM.
2:SURAT ALI
S/O- LATE. MONSER ALI
R/O- VILLAGE- HATIPOTA PART-I
P.O- HATIPOTA
P.S.-CHAPAR
DIST- DHUBRI
ASSAM
PIN-783348.
3:BAHAR ALI
S/O- LATE. MONSER ALI
R/O- VILLAGE- HATIPOTA PART-I
P.O- HATIPOTA
P.S.-CHAPAR
DIST- DHUBRI
ASSAM
PIN-783348
Page No.# 2/21
Advocate for the Petitioner : MR. I H LASKAR
Advocate for the Respondent : MR. D DAS, ADDL PP, ASSAM
BEFORE
HONOURABLE MR. JUSTICE MICHAEL ZOTHANKHUMA
HONOURABLE MRS. JUSTICE MALASRI NANDI
JUDGMENT
Date : 01.12.2023
(Malsari Nandi, J)
Heard Mr. I.H. Laskar, learned counsel for the appellant. Also heard Mr. D. Das, learned
Additional Public Prosecutor for the State and Mr. P. Rahman, learned counsel appearing for
the respondent Nos.2/3.
2. This appeal has been preferred by the informant in Sessions Case No. 313/2014 under
Section 372 r/w Section 378 of Cr.P.C., against the judgment and order dated 23.05.2018
passed by the learned Additional Sessions Judge, Bilasipara, whereby learned Additional
Sessions Judge, had acquitted the respondents Nos. 2 and 3 from the charge of the offence
under Section 341/326/307/302/34 IPC.
3. The factual matrix leading to the case of the informant is that she lodged an FIR before
the officer-in-charge Chapar Police Station on 07.02.2012, stating inter alia that on
06.02.2012 at about 10:30 p.m., when her husband Sanowar Ali was returning from his own
brick kiln on his motorcycle bearing No. As-17-8741, a gang of miscreants intercepted him on
his way and assaulted him with sharp weapons, as a result of which, he died on the spot. It is
also stated in the FIR that when there was hue and cry raised by her husband at the time of
the incident, co-villager Sahidul Islam came to the place of occurrence and when he tried to
restrain the miscreants, they also inflicted serious injuries on the left hand of Sahidul Islam.
4. On receipt of the complaint, a case was registered vide Chapar P.S. Case No. 33/2012
under Section 341/326/302/34 IPC and investigation commenced. During investigation, the
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investigating officer visited the place of occurrence and recorded the statement of the
witnesses. Inquest was conducted on the dead body of the deceased and subsequently the
dead body was forwarded to the hospital for postmortem examination. During investigation,
the injured Sahidul and witness Zakir Hussain were produced before the Magistrate, to record
their statements under Section 164 Cr.P.C. After completion of the investigation, charge-sheet
was submitted against the respondent Nos. 2 and 3 under Section 341/326/302/34 IPC
before the court of learned JMFC, Bilasipara. As the offence under Section 302 IPC is
exclusively triable by the court of Sessions, the case was committed accordingly.
5. During trial, charge was framed under section 341/326/307/302 IPC which was read
over and explained to the respondent Nos. 2 and 3, to which they pleaded not guilty and
claimed to be tried. During trial, the prosecution examined 15 witnesses to prove the guilt of
the respondents. However, there was no defence witness in the case. After completion of
trial, the statement of both the respondent Nos. 2 and 3 were recorded under section 313
Cr.P.C and incriminating materials found in the statement of the witnesses were put to them,
to which they stated that they had been falsely implicated in this case and pleaded their
innocence. After hearing the arguments advanced by the landed counsel for both the parties,
the learned trial court held that after evaluation of the evidence on record, the prosecution
failed to bring home the charge against the respondent Nos. 2 and 3 beyond all reasonable
doubt and accordingly, they were acquitted.
6. Being aggrieved and dissatisfied with the order of acquittal passed by the learned trial
court, the appellant who is the wife of the deceased Sanowar Ali, has preferred this appeal.
7. The first point raised by learned counsel for the appellant is that the statements of P.W.
3 and P.W. 6 recorded under Section 164 Cr.P.C. were found to be consistent and trustworthy.
Further, the statements were made before the Magistrate within a short period of time after
the incident without any influence and as such, there was no reason to disbelieve the
prosecution story. Hence, the impugned judgment and order dated 23/05/2018 was liable to
be interfered with.
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8. The learned counsel for the appellant has submitted that P.W. 3, who was the
eyewitness to the incident, stated before the learned Magistrate mentioning the names of the
respondent Nos. 2 and 3 in his statement recorded under section 164 Cr.P.C., but thereafter
turned hostile before the trial court while adducing evidence. According to learned counsel, it
transpires that the respondent Nos. 2 and 3 might have tutored the prime witness i.e. P.W. 3.
The learned trial court has failed to properly appreciate the evidence of the witnesses in true
perspective.
9. It is also submitted by learned counsel for the appellant that the learned trial court
erred in law as well as on facts in disbelieving the prosecution case and coming to a finding
that in the FIR, the names of the respondent Nos. 2 and 3 were not mentioned and P.W.6
who was injured has not disclosed the names of the persons before the informant, who
caused injury to her husband before lodging the FIR.
10. It is also the submission of the learned counsel for the appellant that the learned trial
court did not bother to discuss the evidence of P.W.3, who turned hostile under the pressure
of the respondent Nos. 2 and 3 and further the learned trial court, in spite of, knowing the
fact that statement of P.W.3 under Section 164 Cr.P.C. was recorded but did not make any
effort to bring on evidence the said statement which reflects that the learned trial court has
failed to perform his duties as enumerated under Section 165 of the Evidence Act and which
has resulted miscarriage of justice by acquitting the respondent Nos. 2 and 3. As such, the
impugned judgment and order is liable to be set aside.
11. In support of his submissions, the learned counsel for the appellant has placed reliance
on the following case laws-
(i) (2012) v.11 SCC 196 (Pudhu Raja & Anr. vs. State represented by Inspector of
Police).
(ii) AIR 2013 Supreme Court 651 (R. Shaji vs. State of Kerala).
(iii) (2022) v.10 SCC 226 (Malti Sahu vs. Rahul & Anr.).
Page No.# 5/21
12. In response, the learned Additional Public Prosecutor has argued that the learned trial
court had failed to appreciate the evidence brought on record in the proper perspective and
had arrived at an erroneous conclusion acquitting the respondent Nos. 2 and 3. He submits
that the impugned judgment is vitiated by perversity and as such, liable to be set aside.
13. Opposing the said submissions, the learned counsel for the respondent Nos. 2 and 3
has submitted that this is a case of no evidence. According to the learned counsel, the trial
court had meticulously evaluated the evidence on record and rightly acquitted the respondent
Nos. 2 and 3 of the charge framed against them due to lack of evidence. Pointing out the
lapses in the investigation, the learner counsel for the respondent Nos. 2 and 3 submits that
the statements of P.W.3 and P.W.6 were recorded by the investigating officer twice under
Section 161 Cr.P.C. The first time, when the I/O recorded the statements of the P.W.3 and
P.W.6, they did not utter a single word regarding involvement of respondent Nos. 2 and 3 in
the offence as alleged against them. Subsequently, when the statements of P.W.3 and P.W. 6
were recorded by the investigating officers second time, then they implicated the respondent
Nos. 2 and 3 to be involved in the case.
14. It is also submitted that while the statements of P.W.3 and P.W.6 were recorded under
section 164 Cr.P.C. by the learned Magistrate, they also differ from their statements earlier
recorded under Section 161 Cr.P.C. According to learned counsel for the respondent Nos. 2
and 3, if the evidence led by the prosecution is taken in its face value, then it would be
established on the face of the record that the charge brought against the respondent Nos. 2
and 3 was unsustainable in the eye of law.
15. In support of his contentions, the learned counsel for the respondent Nos. 2 and 3 has
placed reliance on the following case laws-
(i) (2007) v. 4 SCC 415 (Chandrappa & Ors. vs. State of Karnataka).
(ii) (2018) 5 RCR(Criminal) 518 (Amarsing Rupsing Mahida vs. State of Gujarat).
(iii) (2018) v. 14 SCC 513 (Madathil Narayanan & Ors. vs. State of Kerala & Anr.)
Page No.# 6/21
(iv) (2018) 1 GauLJ 112 (State of Assam vs. Biraj Das).
(v) (2021) 4 GauLT 732 (Director C.B.I. vs. Bhagya Kalita)
16. We have considered the submissions of the learned counsels for the parties. We have
also perused the case record as well as the judgment of the trial court. On perusal of the
judgment of the learned trial court, it reveals that the learned trial court acquitted the
respondent Nos. 2 and 3 on the ground that by observing the fact that the prosecution mainly
relied on the evidence of P.W. 6 who is the injured in the case. The learned trial court
observed that P.W.6 has changed his version, while giving statement before the investigating
officer, as well as in his statement recorded by the Magistrate under section 164 Cr.P.C. In the
statement under section 164 Cr.P.C., P.W.6 did not say before the Magistrate that he noticed
and saw the incident of assault on Sanowar by the respondent Nos. 2 and 3. He simply stated
that hearing hue and cry of Zakir, he came out and at that time he noticed one person
wearing black jacket and he shouted 'who was that person' and the said person gave a blow
on his left hand and subsequently he identified the person as respondent No. 2 Surat Ali. P.W.
6 did not mention the name of other accused i.e. respondent No. 3 Bahar Ali before the
Magistrate and the police.
17. The learned trial court also held that P.W.3 Zakir contradicted the statement of P.W.6 on
material point on identification of the accused persons at the place of occurrence and
attacking of the deceased by them. P.W.6 in his earlier statement recorded under section 161
and 164 Cr.P.C. did not state that he had noticed accused i.e. respondent Nos. 2 and 3
assaulting the deceased and identified them. For the first time before the court, P.W. 6 stated
that respondent Nos. 2 and 3 attacked the deceased on the date of incident. The learned trial
court, therefore, held that his evidence was not consistent with his earlier statement and was
not cogent and convincing.
18. The learned trial court finally held that a cumulative reading of the statement of P.W. 6
made before the I/O which was his first statement and the second statement made before
the Magistrate and his final statement made before the court is not consistent with each
other and upon such inconsistent statements in absence of corroboration, it is not judicious to
Page No.# 7/21
accept the evidence of P.W.6 beyond all reasonable doubt. The learned trial court, thereafter,
on the basis of the statement of P.W. 6 and other witnesses, acquitted the respondent Nos. 2
and 3.
19. In the instant case, the prosecution mainly relied on the evidence of P.W.3 and P.W. 6
and the other witnesses examined by the prosecution are admittedly came to the spot after
the incident. P.W.2 who is the informant and the wife of the deceased Sanowar Ali, was also
not present at the relevant time of incident According to her, she was informed about the
incident by the mother of the injured Sahidul Islam. On coming to know about the incident,
she went to Chapar Hospital to see her husband. By that time, her husband succumbed to his
injuries. Though, P.W.2 alleged in her examination-in-chief that the respondent Nos. 2 and 3
assaulted her husband by a sharp cutting weapon and also inflicted the injury towards
Sahidul Islam, but subsequently, in her cross-examination, P.W.2 admitted that at the initial
stage, she stated before the police that some unidentified miscreants had restrained her
husband on the way while he was coming from brick factory and had killed her husband by
sharp weapon. This witness also admitted that she stated before police that Sahidul was
assaulted by some unknown miscreants. P.W.2 also admitted that she did not disclose the
name of any accused persons in her FIR.
20. P.W.3 who appears to be the eyewitness in the case, deposed in his evidence that on
the date of incident at about 10 to 10:30 p.m., he was in his house. At that time, he heard a
big sound near his house. He came out towards the main road and saw that a motorcycle
was lying on the road and two persons were running. He also saw some labourers of brick
factory. They were also running behind those two persons. Those labourers were shouting
and trying to catch those two persons. Thereafter, one, Sahidul Islam was also running along
with the labourers. There was hue and cry among those persons. He asked Sahidul Islam to
stop to know about the incident. Sahidul Islam told him that he was assaulted on his hands
by somebody else. He took Sahidul Islam to his house and again came back to the place of
occurrence. Thereafter, he found that some labourers of brick factory were surrounding a
person, namely Sanwar Ali. He went ahead and found Sanwara Ali in serious injured
condition. Thereafter, he accompanied Sanwar Ali with other labourers to Chapar Hospital. He
Page No.# 8/21
noticed deep cut injury on the shoulder of Sanwar Ali. This witness was declared hostile on
the request of the prosecution.
21. During cross-examination by prosecution, P.W.3 denied the fact that he stated before
police that he saw the entire occurrence of killing of deceased Sanowar Ali by both the
accused persons. He also denied the fact that he saw both the accused namely Surat Ali and
Bahar Ali hitting Sanowar Ali by a dagger. P.W. 3 also denied the fact that he stated before
police that he identified both the accused persons.
22. While P.W.3 was cross-examined by the defence, he replied that the night was dark.
Many people assembled before his arrival. The labourers of brick factory had not disclosed
the name of any accused person.
23. P.W.6 is the injured who deposed in his evidence that the incident occurred around 10
to 10:30 p.m. At that time, he was at home. Then he heard a hue and cry and somebody
shouting 'catch' 'catch'. Then he came out and saw the accused namely Surat Ali and Bahar
Ali assaulting Sanowar Ali. When he restrained them, the accused persons inflicted injury on
his left hand with a dao. When he asked them as to why they made the assault, they
assaulted him again. Zakir helped him to go home. Then, he was taken to hospital and there
he stated before the police that the accused persons, Surat Ali and Bahar Ali had assaulted
Sanowar. Later, he heard that Sanowar had died. After the incident, he was taken to
Bongaigaon and then shifted to Guwahati. Subsequently, he had undergone treatment at
Patna.
24. In his cross examination, P.W.6 replied that his house and the house of Zakir are
adjacent to the place of occurrence. At that time, there was no other person except he and
Zakir Hussain. He got injured. He gave statement to police on three occasions. He told Zakir
about the occurrence. He witnessed the incident himself. Zakir also raised an alarm and came
across him. He tried to catch the accused. Zakir and he ran to a distance of almost 20-30
cubits to catch the accused.
Page No.# 9/21
25. P.W.7 and P.W.8 are the labourers who were working in a brick kiln wherein the
deceased Sanowar Ali was working as a Manager. P.W.7 deposed in his evidence that on the
date of incident, he along with other labourers and the deceased were working in the same
brick kiln. After finishing the work, they went back towards their house and Sanowar Ali was
going on a motorcycle. Later he heard a sound of falling of the motorcycle. Then they rushed
to the place of occurrence and found Sanowar lying along with the motorcycle. Many people
gathered there and with the help of 2/3 persons, they took Sanowar to a hospital.
26. In his cross examination, P.W.7 replied that the incident took place at around 10/11
p.m. The motorcycle was lying in a ditch. He knew P.W.6 Sahidul but he did not see him
there. They lifted Sanowar and thereafter they went to Sahidul's house. On being asked,
Sahidul told that accused persons had injured him and that the accused persons had covered
their faces with black clothes.
27. P.W.8 deposed before the Court that on the date of incident at about 9/09-30 p.m.,
Sanowar and they were doing accounts related works in the brick factory. Thereafter,
Sanowar went home on his bike. Later they also came out. After a while, they heard hue and
cry and they rushed to the place of occurrence and found that Sanowar along with his bike
was lying in the drain beside the road. Sanowar was in injured condition. They all
took him to hospital. However, Sanowar died on the way to the hospital.
28. From evidence of P.W.7 and P.W.8, it reveals that they came to the spot immediately
after the incident and found Sanowar lying on the ditch near the roadside. But P.W.7 and
P.W.8 did not find the injured Sahidul on the spot. According to the injured, P.W.6 except him
and Zakir, none was present on the spot when the incident took place and they did not say
about the presence of P.W.7 and P.W.8 immediately after the incident.
29. P.W.9, P.W.10 and P.W.13 came to the spot after hearing hue and cry but did not say
anything about the incident.
30. P.W.11 is the Medical Officer who conducted post-mortem examination on the dead
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body of the deceased on police requisition and on examination, he found the following :-
(a) External appearance:-
An average built male dead body is examined. Rigor mortise is present. The
following injuries are noted:
i) Lacerated injury over the temporal region. Extending from left side to his right
temporal region. Size: 25 cm x 2 cm x full depth of the skull. Blood clots are present.
ii) Lacerated injury over the occipital region extending from the left occipital region to
his right side of the occipital bone. Size 25 cm x 2 cm x full depth to the skull. Blood
clots are present.
iii) Lacerated injury over his left side in front of the chest at the level of the 2nd and 3d
rib. Placed horizontally. Size 15cm x 2 cm x 8 cm. cutting soft tissues and left lung 2
big vessels. Blood clots are present.
iv) Lacerated injury over his right forearm and complete fracture of his joint both
bones and soft tissues. Blood clots are present.
Cranium and spinal canal:-
iv) Scalp & Skull: Blood clots are present
v) Membrane:- There is loss of membrane below his fractured skull bones. Loss of
anatomical configuration. Blood clots are present.
vi) Brain and spinal cord: There is loss of brain tissues with loss of anatomical
configuration. Blood clots are present.
Thorax:-
(b) Pleurae: Rupture of his left upper lobe. Blood clots are present.
(c) Laryax and trachere: Healthy
Page No.# 11/21
(d) Right lung: Healthy
(e) Left lung: Rupture of his left upper lobe. Blood clots are present.
(f) Pericardium:- Healthy
(g) Heart: Healthy
(h) Walls:- Healthy
(i) Peritonum:- Healthy
(j) Mouth Pharynx, oesophagus: Healthy
(k) Stomach and its contents Healthy and contains semisolid food matters.
(l) Small intestine and its contents: Healthy & contains some custom semisolid partially
digested food matters.
(m) Large intestine and its contents: healthy and contains semisolid faecal matters and
gas.
(n) Liver: Healthy
(o) Spleen: Healthy
(p) Kidneys: Healthy
(q) Bladder: Healthy and empty
The Doctor opined that the cause of death was due to shock and haemorrhage as a
result of head injury sustained by the deceased. The injuries were anti-mortem in
nature.
31. P.W.12 is another doctor who examined the injured Sahidul Ali and found the following :
(i) cut injuries in muscles in humorous bone of left hand and
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(ii) cut injury size (2" X 1" X ½") in below and posturing of left hand.
As per the injury report, the injuries sustained by Sahidul Ali was grievous in nature,
caused by sharp object.
32. P.W.14 is the MVI who inspected the motorcycle of the deceased seized in connection
with this case.
33. P.W.15 is the Investigating Officer. He deposed in his evidence that on 06.02.2012, he
was serving as In-Charge of Salkocha Outpost under Chapar Police Station. On that day at
about 11:00 p.m., he got information over phone from one Nur Salam of Village - Baniapara
Part II that some miscreants brutally caused severe injury on Sanowar Ali, owner of BTC brick
field. After making endorsement in the GD entry book and informing the higher police officials
about the incident, he proceeded to the place of occurrence with staff. Though he reached
the place of occurrence but due to night, he could not inspect the place of occurrence
properly. However, he questioned one Reshma Bibi, wife of Zakir Hussain of Village -
Banipara Part II who was present at the place of occurrence. Thereafter, he made search to
apprehend the miscreants. On the next day, a written ejahar was lodged by Anjuma Bibi. He
came to know that injured Sanowar succumbed to his injuries. One person, Sahidul Islam
sustained injury when he went to apprehend the miscreants. The miscreants gave him blow
with a weapon. During investigation, he conducted inquest on the dead body of the
deceased. Thereafter, the dead body was sent to Dhubri Civil Hospital for post-mortem
examination. P.W.15 also stated that during investigation, he inspected the place of
occurrence, drew sketch map of the place of occurrence, recorded statement of the witnesses
and seized some articles from the spot. During investigation, he also forwarded Zakir Hussain
and Sahidul Ali before the Court to record their statements under section 164 Cr.P.C. Witness
Zakir Hussein gave his statement three times before him. Subsequently, he arrested the
respondent nos. 2 and 3 in connection with the case. After collecting post-mortem report,
finding sufficient material against the accused persons and on completion of the investigation,
he submitted charge-sheet against the respondent nos. 2 & 3 under Sections
341/326/307/302/34 IPC vide Ext. 10.
Page No.# 13/21
34. In his cross-examination, P.W.15 replied that he did not record statement of Zakir on
06.02.2012. He recorded the statement of Zakir on three occasions. First, he examined Zakir
on 07.02.2012 then on 15.02.2012 and last was taken on 22.02.2012. When he recorded the
statement of Zakir on 07.02.2012, he did not disclose the name of accused but subsequently
on 15.02.2012 and 22.02.2012 when the statement of Zakir was recorded by him, he
disclosed the name of the accused, that is, respondent nos. 2 & 3. P.W.15 also stated in his
cross-examination that witness Sahidul Ali did not state before him the names of the
miscreants who assaulted him and Sanowar Ali.
35. It is no doubt true that due to the alleged incident, one Sanowar died and P.W.6 Sahidul
Ali, sustained injuries on his person. P.W.11, Medical Officer who conducted autopsy on the
dead body of the deceased, also supported the fact that the deceased sustained several
injuries on his head causing his death.
36. P.W.12, that is, another Doctor who examined the injured also stated that on
examination of the victim Sahidul, he found cut injuries on his left hand which was grievous
in nature and caused by sharp object.
37. Now the question comes who are the perpetrators of the crime. According to learned
counsel for the appellant, the respondent nos. 2 & 3 inflicted injury towards the deceased, as
a result of which he died on the spot. P.W.3 and P.W.6 also supported the fact while their
statements were recorded under Section 164 Cr.P.C. On the basis of the statement recorded
under Section 164 Cr.P.C., the respondent nos. 2 & 3 should have been convicted by the trial
Court. On the other hand, learned counsel for the respondent nos. 2 & 3 pointed out that
P.W.3 was declared hostile by the prosecution as he did not support the case of the
prosecution. There was contradictions in the statement of P.W.6 while recorded by the
Investigating Officer and his statement before the Magistrate regarding involvement of the
respondent nos. 2 & 3. According to learned counsel for the respondent nos. 2 & 3, the
statement recorded under Section 164 Cr.P.C. or under Section 161 Cr.P.C cannot be treated
as substantive evidence without an opportunity of being given for cross-examination to
defence.
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38. It hardly needs to be emphasized that one of the main reasons for witnesses to turn
hostile is that they are not accorded appropriate protection by the State. It is a harsh reality,
particularly in those cases where the accused persons/criminals are tried for heinous offences
or where the accused persons are influential persons or in a dominating position that they
make attempts to terrorize or intimidate the witnesses because of which these witnesses
either avoid coming to Courts or refrain from deposing truthfully. This unfortunate situation
prevails because of the reason that the State has not undertaken any protective measure to
ensure the safety of these witnesses commonly known as witness protection.
39. The law is well settled that a statement recorded under Section 164 Cr.P.C. is not
substantive evidence and it can be used to corroborate the statement of a witness and it can
be used to contradict a witness. In Ram Kishan Singh vs. Harmit Kaur and another ,
reported in (1972) 3 SCC 280, it has been laid down that a statement recorded under
section 164 of the Code of Criminal Procedure is not a substantive evidence and it can be
used to corroborate the statement of a witness and to contradict a witness, and nothing else.
40. In the case of Baij Nath Sah vs. State of Bihar, reported in (2010) 6 SCC 736, the
Hon'ble Apex Court has held that mere statement of the prosecutrix recorded under Section
164 Cr.P.C. is not enough to convict the appellant and it is not substantive evidence and it can
be utilised only to corroborate or contradict the witness vis-à-vis statement made in court.
41. Reverting to the instant case, according to P.W.15, that is, the Investigating Officer, he
recorded the statement of P.W.3 three times i.e. on 07.02.2012, 15.02.2012 and 22.02.2012.
On 07.02.2012, P.W.3 did not disclose the name of any person before the Investigating
Officer. Subsequently, on 15.02.2012 and on 22.02.2012, he disclosed the names of the
respondent nos. 2 & 3 to be involved in the case. It is not clear from the statement of the
Investigating Officer or the case record why the statement of P.W.3 was recorded three times
by the Investigating Officer during investigation. The case diary does not indicate that P.W.3
was required to be questioned by the Investigating Officer three times. The Investigating
Officer did not mention in the case diary why he recorded the statement of P.W.3 one after
another during investigation.
Page No.# 15/21
42. The statement of the P.W.3 was recorded by the Magistrate under Section 164 Cr.P.C.
wherein he stated that on the date of incident at about 10:00 p.m., he was at his house.
Suddenly there was a sound. He came out and saw a motorcycle lying on the road and the
accused Bahar Ali and Surat Ali assaulting Sanowar with Kris. Surat threatened to kill him if
he made any noise. He screamed and ran after the two accused persons. Hearing his scream,
his nephew Sahidul came out and he also started running ahead of him. Then in the
darkness, someone assaulted Sahidul with sharp weapon. On finding Sahidul in injured
condition, he took him to his house. While P.W.3 deposed before the court, he resiled from his
earlier statement. According to him, after hearing a big sound near his house on the date of
incident, he came out and saw a motorcycle was lying on the road and two persons were
running. There were some labourers of brick factory also and they were also running behind
those two persons. Though P.W.3 met Sahidul on the spot, Sahidal was found in injured
condition but P.W.3 did not ask who had caused injury to Sahidul.
43. The Hon'ble Supreme Court has in the cases of Krishna Mochi and others vs. State
of Bihar, reported in (2002) 6 SCC 81, State of U.P. vs. Ramesh Prasad Misra,
reported in (1996) 10 SCC 360 and State of NCT Delhi vs. Sanjeev Nanda , reported in
(2012) 8 SCC 450, it was held that it is settled law that the evidence of a hostile witness
could not be totally rejected, if spoken in favour of the prosecution or the accused, but it can
be subjected to closest scrutiny and that portion of the evidence which is consistent with the
case of the prosecution or defence may be accepted.
44. As it appears that P.W.3 has changed his version in various occasions while giving his
statement before the Investigating Officer thrice and subsequently before the Magistrate and
while giving his evidence before the trial Court, we are of the view that the evidence of P.W.3
cannot be taken into consideration what had exactly done by the learned trial Court.
45. Regarding P.W.6, though he deposed before the trial Court that on the date of incident
at about 10/10:30 p.m. after hearing hue and cry while he came out from his house, he saw
the accused Bahar Ali and Surat Ali, assaulting Sanowar Ali. He restrained them and the
accused persons inflicted injury in his left hand with a dao. P.W.6 also stated that when he
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was taken to hospital, there he stated before the police that the accused persons i.e. Bahar
Ali and Surat Ali had assaulted Sanowar.
46. The statement of P.W.6 was recorded by the learned Magistrate under Section 164
Cr.P.C. wherein he stated before the Magistrate that on the date of incident at about 10/10:30
p.m., he was at his house. In the meantime, he heard Zakir shouting like 'catch catch' 'fled
away, fled away'. Then he came out and saw a man, clad in a black jacket, running by the
side of their house. Then he shouted who was that. He ran following him. Then the man
assaulted him with a sharp weapon and inflicted injury in his right hand. He identified the
man as Surat Ali.
47. From the statement of P.W.6 before the Magistrate, it reveals that he did not say
anything about presence of another accused Bahar Ali at the time of incident. He was
assaulted by only one accused i.e. Surat Ali. The statement recorded under Section 164
Cr.P.C. of P.W.6 is also silent regarding any assault hurled by the respondent nos. 2 & 3
towards Sanowar Ali. P.W.6 did not utter a single word regarding assault of the deceased by
the respondent nos. 2 & 3 before the learned Magistrate.
48. As the learned counsel for the appellant raised the point that the statement recorded
under Section 164 Cr.P.C. corroborates the medical evidence as well as the post-mortem
examination report and thereby found the appellant guilty, it is interesting to note that the
statement recorded under Section 164 Cr.P.C. of P.W.3 and P.W.6 were not exhibited in this
case. The Magistrate who recorded the statement was also not examined to prove the
statement of P.W.3 and P.W.6 recorded under Section 164 Cr.P.C.
49. Now the question as to whether presumption can be taken under Section 80 of Indian
Evidence Act, 1872 applicable to the statement recorded by a Magistrate under Section 164
Cr.P.C. which reads as follows-
"Section 80- Presumption as to documents produced as record of evidence- Whenever
any document is produced before any Court, purporting to be a record or
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memorandum of the evidence, or of any part of the evidence, given by a witness in a
judicial proceeding or before any officer authorized by law to take such evidence, or to
be a statement or confession by any prisoner or accused person, taken in accordance
with law, and purporting to be signed by any Judge or Magistrate, or by any such
officer as aforesaid, the Court shall presume that the document is genuine; that any
statement as to the circumstances under which it was taken, purporting to be made by
the person signing it, are true, and that such evidence, statement or confession was
duly taken."
50. The said aspect has elaborately dealt with by a three-Judges Bench in Sheo Raj vs.
State, reported in (1963) SCC OnLine All 123, and held that a statement made under
Section 164 Cr.P.C. is not 'evidence', is not made in a 'judicial proceeding' and is not given
under oath. It has been held therein as under -
"......it is open to any person to make a statement or confession before a Magistrate
into course of an investigation, or at any time thereafter, but before the
commencement of an enquiry or trial and the statement or confession will be recorded
by the Magistrate under Section 164 and is not subject to the bar imposed by Section
162. Such a statement, being a previous statement, may be used only to contradict
the person when he appears as a witness at the enquiry or trial of the offence or to
corroborate him.
..........When a Magistrate records a statement under Section 164, there are only two
proceedings in which it can possibly be said to have been recorded, (1) the
investigation by the police and (2) the proceeding of recording the statement itself.
The investigation by the police is not a judicial proceeding. 'Judicial proceeding' is not
defined in the Evidence Act, but since we are concerned with a statement recorded
under the Code of Criminal Procedure, the question whether it was recorded in a
judicial proceeding or not must be decided in the light of the definition given in the
Code. 'Judicial proceeding' is defined in Section 4(1)(m) to mean any proceeding in the
course of which evidence is or may be legally taken on oath......"
Page No.# 18/21
51. The principles laid down in the above decision makes it clear that the presumption
under Section 80 of the Evidence Act cannot be drawn to rely upon the statements of
witnesses recorded under Section 164 Cr.P.C. during investigation to render a conviction.
52. Coming to the question of power of the appellate court on appeal against acquittal, We
would like to quote the relevant portion of the recent judgment of the Hon'ble Supreme Court
in Jafarudheen and others vs. State of Kerala , reported in (2022) SCC Online SC
495, which reads as follows -
"25. While dealing with an appeal against acquittal by invoking Section 378 of the
Cr.P.C., the Appellate Court has to consider whether the Trial Court's view can be
termed as a possible one, particularly when evidence on record has been analyzed.
The reason is that an order of acquittal adds up to the presumption of innocence in
favour of the accused. Thus, the Appellate Court has to be relatively slow in reversing
the order of the Trial Court rendering acquittal. Therefore, the presumption in favour
of the accused does not get weakened but only strengthened. Such a double
presumption that ensures in favour of the accused has to be disturbed only by
thorough scrutiny on the accepted legal parameters."
53. In another case, Mohan alias Srinivas alias Seena alias Tailor Seena vs. State
of Karnataka, reported in (2021) SCC OnLine SC 1233, it has been held as under -
"20. Section 378 Cr.P.C. enables the State to prefer an appeal against an order of
acquittal. Section 384 Cr.P.C. speaks of the powers that can be exercised by the
Appellate Court. When the trial court renders its decision by acquitting the accused,
presumption of innocence gathers strength before the Appellate Court. As a
consequence, the onus on the prosecution becomes more burdensome as there is a
double presumption of innocence. Certainly, the Court of first instance has its own
advantages in delivering its verdict, which is to see the witnesses in person while they
depose. The Appellate Court is expected to involve itself in a deeper, studied scrutiny
of not only the evidence before it, but is duty bound to satisfy itself whether the
decision of the trial court is both possible and plausible view. When two views are
Page No.# 19/21
possible, the one taken by the trial court in a case of acquittal is to be followed on the
touchstone of liberty along with the advantage of having seen the witnesses. Article 21
of the Constitution of India also aids the accused after acquittal in a certain way,
though not absolute. Suffice it is to state that the Appellate Court shall remind itself of
the role required to play, while dealing with the case of an acquittal."
54. In the recent decision of Vijay Mohan Singh vs. State of Karnataka , reported in
(2019) 5 SCC 436, the Hon'ble Supreme Court again had an occasion to consider the scope
of Section 378 Cr.P.C. and the interference by the High Court in an appeal against acquittal.
The Hon'ble Supreme Court considered in a catena of decisions right from 1952 onwards. It
was observed and held as under -
"31. An identical question came to be considered before this Court in Umedbhai
Jadavbhai vs. State of Gujarat, reported in (1978) 1 SCC 228. In the case before
this Court, the High Court interfered with the order of acquittal passed by the learned
trial court on reappreciation of the entire evidence on record. However, the High Court,
while reversing the acquittal, did not consider the reasons given by the learned trial
court while acquitting the accused. Confirming the judgment of the High Court, this
court observed and held as under -
10. Once the appeal was rightly entertained against the order of acquittal, the High
Court was entitled to reappreciate the entire evidence independently and come to its
own conclusion. Ordinarily, the High Court would give due importance to the opinion of
the Sessions Judge if the same were arrived at after proper appreciation of the
evidence. This rule will not be applicable in the present case where the Sessions Judge
has made an absolutely wrong assumption of a very material and clinching aspect in
the peculiar circumstances of the case."
55. In the case of N. Vijayakumar vs. State of Tamil Nadu , reported in (2021) 3 SCC
687, it was held that-
"20. Mainly it is contended by Shri Nagamuthu, learned Senior Counsel appearing for
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the appellant that the view taken by the trial court is a 'possible view', having regard to
the evidence on record. It is submitted that the trial court has recorded cogent and
valid reasons in support of its findings for acquittal. Under Section 378 Cr.P.C., no
differentiation is made between an appeal against acquittal and the appeal against
conviction. By considering the long line of earlier cases, this court in the judgment in
Chandrappa vs. State of Karnataka, [(2007) 4 SCC 415] has laid down the general
principles regarding the powers of the appellate Court while dealing with an appeal
against an order of acquittal, which is relevant reads as under:
42. From the above decisions, in our considered view, the following general principles
regarding powers of the Appellate Court while dealing with an appeal against an order
of acquittal emerge:
(1) An appellate court has full power to review, reappreciate and reconsider the
evidence upon which the order of acquittal is founded.
(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or
condition on exercise of such power and an appellate court on the evidence before it
may reach its own conclusion, both on questions of fact and of law.
(3) Various expressions, such as, "substantial and compelling reasons", "good
and sufficient grounds", "very strong circumstances", "distorted conclusions", "glaring
mistakes", etc. are not intended to curtail extensive powers of an appellate court in an
appeal against acquittal. Such phraseologies are more in the nature of "flourishes of
language" to emphasise the reluctance of an appellate court to interfere with acquittal
than to curtail the power of the court to review the evidence and to come to its own
conclusion.
(4) An appellate court, however, must bear in mind that in case of acquittal, there is
double presumption in favour of the accused. Firstly, the presumption of innocence is
available to him under the fundamental principle of criminal jurisprudence that every
person shall be presumed to be innocent unless he is proved guilty by a competent
court of law. Secondly, the accused having secured his acquittal, the presumption of
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his innocence is further reinforced, reaffirmed and strengthened by the trial court.
(5) If two reasonable conclusions are possible on the basis of the evidence on record,
the appellate court should not disturb the finding of acquittal recorded by the trial
court."
56. By applying the aforesaid principles and the evidence on record in the case on hands,
we are of the considered view that having regard to material contradictions, which we have
already discussed above and also as referred to in the trial court judgment, it can be said that
acquittal is a plausible verdict. By applying the ratio as laid down by the Hon'ble Supreme
Court in the judgments stated above, even assuming another view is possible, the same is no
ground to interfere with the judgment of acquittal and to convict the respondent nos. 2 & 3
for the offence alleged. To conclude, we must say that all the aspects have been considered
by the trial court. We do not find any perversity in it and the law presumes double
presumption in their favour i.e. respondent Nos. 2 and 3 after a due adjudication by the trial
court.
57. In the result, the appeal is dismissed. Send back the LCR.
JUDGE JUDGE
Comparing Assistant
