Ahmed Ali (MD) and Others vs State of Assam

V.D. Gyani, J.—This appeal arises out of judgment dated 24.6.96 delivered by learned Sessions Judge. Lakhimpur in Sessions Case No. 123 (NL)/94, thereby holding the accused-Appellant, guilty of offence punishable u/s 302 read with Section 149 IPC and sentenced them to undergo imprisonment for life with fine of Rs. 1000/- each or in default of payment of fine to sufifer six month''s imprisonment. Aggrieved by the same, the accused Appellants have preferred this appeal.

Prosecution case stated m brief was that on 4.4.89 (which happened to be a market day of the area) around 10-30 A.M. Habibur Rahman (deceased) while he was sitting in a tea stall belonging to one Abdul Latif, situated at Sonapur Chariali, he was attacked by the accused-Appellants along with three others (two of whom have since been acquitted by the trial Court and no State appeal) has been preferred against such acquittal and the third one, namely, Kubed Ali was not charge-sheeted and sent for trial by the police), who intruded in the stall being armed with weapons like dao and started assaulting Habibur Rahman, the owner of the tea stall. P.W.-6 Abdul Latif immediately took to his heels while others in the neighbourhood, who rushed to the stall on hearing hulla could only find the injured in a precarious condition but none of them claim to have seen the accused.

It was P.W.-2 Saidur Rahman, who lodged the ejahar at Police Station Bihpuria which resulted in registration of a case u/s 148/448/302 IPC, investigated by P.W.-7, Sahrab Ali. On completion of investigation the accused Appellants along with two others (since acquitted) were put up for trial. Prosecution examined 7 witnesses in support of the charge. The defence stand taken by the accused was one of false implication. The trial Court however rejected the same as found them guilty and convicted as already noted abdve. Hence this appeal.

One significant feature of investigation which needs to be noted is that the Statement of almost all the witnesses including that of P.W.-2 the younger brother of the deceased were recorded u/s 164 Code of Criminal Procedure as if he was also doubted. The testimony of these witnesses is not to be devoted from the very beginning but needs to be scrutinised with caution. This recording of statement u/s 164 Code of Criminal Procedure of the whole lot of witnesses is itself indicative of the fact that their was a stage during investigation where even the investigating agency believed for a while that these witnesses were not likely to support the prosecution case and therefore the necessity to pin them down to a particular statement and the price of any departure therefrom is the prosecution for perjury. All these witnesses P.Ws. 3,4,5 and 6 have testified that they were hauled up by police, detained in custody for the night, tutored and tortured for the statement to be made before the Magistrate next day and released thereafter. Although P.W.-7, the I.O. has denied having indulged in any such malpractice, this denial does not help him in fact of the equivocal statements made by the witnesses.

There is yet another reason for noting this fact. The learned Judge of the trial Court has made a liberal use of these statements recorded u/s 164 Code of Criminal Procedure treating them as if they are substantive evidence. At one stage, in the impugned judgment although it is noted by the learned Judge that such statements are not substantive evidence yet, he has fallen into an error by not only allowing these statements to go on record as substantive evidence but also seeking substantial corroborative support of the prosecution case from such statement recorded u/s 164 Code of Criminal Procedure. Learned Counsel appearing for the Appellant was highly critical about such approach on the part of the trial Court. He contended that there is no legal evidence to sustain the charge, much less the conviction, as recorded by the trial Court.

Learned Public Prosecutor Mr. Goswami, appearing for the Respondent-State, on the other hand maintained that even if that of the evidence which relates to Section 164 Code of Criminal Procedure is excluded from consideration, as it ought to be, yet there is sufficient legally reliable evidence available on record to support the conviction. Since the learned Counsel appearing for the Appellants has not disputed the homicidal nature of death of Habibur Rahman, we need not go into the medial evidence and the number and nature of injuries which afford ample corroboration to the fact that a sharp cutting weapon was used for inflicting injuries which resulted in the death of Habibur Rahman. The crucial question before us is, who caused or inflicted these injuries?

To ascertain whether the Appellants were involved in the commission of crime as charged, let us have a look at the first information report, lodged by P.W.-2 who on his own was not an eye witness to the occurrence. Although it was pointed out to us by the learned Counsel for the Appellant that the names of the Appellants, Md. Ishak Ali and Md. Ismail Ali are not to be found in the FIR and to that extent learned Counsel urged that the FIR, Ext. 1 is not reliable. A mere ommission to mention the name of all the accused may not be sufficient to exonerate the accused on this ground alone, more so when the informant lodging the FIR is not an eye witness as in the instant case; urged the learned Public Prosecutor and, to our minds, he is right in his submission P.W/-2 in his evidence testified that it was Abdul Latif, the owner of the tea stall examined as P.W.- 6, who told him about the names of the assailants of his elder brodier Habibur Rahman and it was at the police out-post where he met Abdul Latif, the I.O. has not a word by way ofexplanation as to why Abdul Latif was brought to the police outpost, whether he was one of the suspects. Why was he detained the night before he was produced before the Magistrate, their is no explanation forthcoming either from the prosecution or in the evidence of the I.O. Be that as it may, we are at the moment primarily concerned with the complicity of the accused primarily Appellants and their names as found in the FIR, Ext. 1.

P.W.-2 has stated:

Many people assembled in the Tea Stall but Abdul Latif was not seen. I went to search a vehicle. After a while Joynal Abedin called me and told that the injured had already died. I went to Laluk P.S. where I met the Tea Stall owner, Abdul Latif. He told me that accused Ahmed, Mojid, Atikul, Sahad, Mubarak, Mannas and Subed Ali had killed Habibur Rahman by backing with dao. Except Kubed Ali, all the accused are in the dock (identified). As said by Abdul Latif I had an ejahar written and lodged the same with police station. Ext. 1 is the ejahar Ext. 1(2) is my signahire.

Let us now turn to the evidence of P.W-6 Abdul Latif,who is absolutely silent about this part of his role that he narrated the names of the accused Appellant to P.W.-2 the brother of the deceased. There is no whisper about it in the whole of his statement made before the Court, on the other hand, his evidence shows that hearing hulla he immediately fled away through back door. If that be so, there was no occasion for him to have witness the occurrence and see the accused at any rate. The source of information, as claimed by P.W.-2 can by no stretch be traced to P.W.-6 who is silent on the point, thus rendering his statement purely hearsay, as such, not admissible much less to be acted upon as the learned trial Judge has done.

As for user of the statement of P.W.-6 recorded u/s 164 Code of Criminal Procedure. Before coming to the logic and reason assigned by the learned trial Judge for acting upon such statement, it would be pertinent to note the statement made by witnesses before the Court. P.W.-3 in his examination-in-chief has testified that he was sitting in the Latif''s stall along with one Sattar when "10/12 persons came and made hulla". He has further stated that he being frightened of them ran away from the shop. Later on he come to know that Habibur had been done to death but he could not either identify or name the persons who entered the tea stall. He is also an attesting witness to the inquest report, Ext. 2 and seizure memo Ext. 3. The context and the manner in which the statement recorded u/s 164 Code of Criminal Procedure was put to the witness is worth noting. It was straightaway confironted with without any rhyme or reason to the witness as is evident fom the following statement made by him.

Police took me before the Magistrate and I deposed there before the Magistrate on taking oath. I deposed before the Magistrate that Ahmed had entered the shop with long dao and had caused dao injury on the head of Habibur Rahman and Majid had also come with a sword immediately. I fled away on fear. I also told that while running I had seen Atikul come with a long sword when Exihibit 5 is the statement made before the Magistrate. Ext. 5(1) is my signature.

The law as regards user of statement recorded u/s 164 Code of Criminal Procedure in the course of investigation is well settled by series of decisions of the Supreme Court, to name only a few, State of Delhi Vs. Shri Ram Lohia, wherein the Supreme Court held:

Statements recorded u/s 164 of the Code are not substantive evidence in a case and cannot be made use of except to corroborate to contradict the witness. An admission by a witness that a statement of his was recorded u/s 164 of the Code and that what he had stated there was true would not make the entire statement admissible much less that any part of it could be used as substantive evidence in the case.

The Privy Council as back as 1949, in Bhubani Sahu AIR 1949 PC 267 had pointed out that a statement recorded u/s 164 Code of Criminal Procedure is not substantive evidence, it can be used to contradict or corroborate the maker thereof. It can be used as substantive evidence of the facts stated therein. The view has been reiterated in Ram Kishan Singh Vs. Harmit Kaur and Another,

The Supreme Court while dealing with the question of transfer of earlier statements made before the committal Court as provided u/s 288 Code of Criminal Procedure (old) to the record of the sessions case has pointed out the procedure to be followed. The Court should see to it that in order to confradict a witness with the earlier statement and parts thereof after declaring him hostile and then to use the record of the earlier statement as evidence (see Periyasamy Vs. State of Madras, The same procedure to be followed has been propounded in State of Rajasthan Vs. Kartar Singh, It was a case where no witness who had given a clear version implicating two accused in his statement before the committal Court, but she turned volte face before the sessions Court, completely denying the statement made by her before the committal Court. She was declared hostile and allowed to be cross-examined. The Public Prosecutor read over to the whole of her statement before the committal Court and asked whether it was true or false? She answered that it was a false taken statement given imder ''police pressure''. An objection was taken as to the admissibility of the statement was that every single passage which differed from her testimony before the trial Court, was not put to her, so as to afford an opportunity to explain why she made a contradictory statement. It was in this context that the Supreme Court observed that the above procedure would have been necessary but for the fact that the witness had admitted that her statement was truly recorded before the committal Court. The Supreme Court further explained that she only denied that it was a true statement because she said that she was made to depose that way. In this situation confronting her with parts'' of her statement would have been useless as her explanation would have been the same. In these circumstances the Apex Court held that requirements of Section 145 Indian Evidence Act, 1872 were fully complied with. What is important to be noted here is the fulfilment of the requirement of Section 145 of the Evidence Act. Although the learned trial Judge has noted as a proposition of law that statement recorded u/s 164 Code of Criminal Procedure are not substantive evidence, yet ignoring the procedure as prescribed by law has made liberal use of the same surreptitiously introducing the statement recorded u/s 164 Code of Criminal Procedure and treating the same as substantive evidence, they have been allowed to go on record in a whole-hog manner without slightest demur, as can be seen from the statement made by P.W.-3, 4 and 6. P.W.-6 in fact one of the suspect, he was arrested by the police in connection with those crime, yet the trial Court without any second thought has believed him on the basis of his statement recorded u/s 164 Code of Criminal Procedure without following the procedure as discussed above. P.W.-6 on his own showing had fled away from the scene and as such could not have been able to see the occurrence yet, the trial Court has taken and treated him as a reliable eye witness with reference to Ext. 7 surreptitiously introducing the statement recorded in his examination-in-chief The same witness in his cross-examination has stated.

The police arrested me at night alleging that I had committed the murder. The police tortured me that if I did not do so they would implicate me as an accused and challan me. Habibur was involved in several dacoity case. His conduct was not good. He bullied the shopkeepers. At the time of occurrence a lot of people entered my shop. I did not notice who those were. I did not tell Saidur the name of any person. I do not know who killed Habib.

Procedural fairness is not merely expected of the Court, it should also be a live concern since it is an essential adjuncts of Article 21 of the Constitution which can and should not be allowed to be defeated or circumvented by ingenuity or dexterity of prosecutor. The Court must guard against it.

Reading the statement of P.W.-6, the question that naturally arises is what was the occasion to put Ext. 7 to P.W.-6? Whether the public prosecutor declared him hostile or obtainfed leave of the Court to put questions in the nature of cross-examination u/s 145 and 157 of the Evidence Act? There is absolutely no indication as to why Ext. 7 was introduced in the examination-in-chief of P.W.-6. Such practice need to be deprecated.

Going by the evidence of P.W.-6 as it is, there are two apparently contradictory statements made by the witnesses and neither the trial Judge nor the Public Prosecutor has given a thought as how this self-conmidictory statement can be reconciled? Assuming that what P.W.-6 stated in his examination-in-chief, he has totally denied the same in his cross-examination. Both the trial Court as well as the public prosecutor have just not bothered for the legal course to be adopted in such a situation An pointed out by the Supreme Court in Dahyabhai Chhaganbhai Thakker Vs. State of Gujarat, a witness can be declared hostile even during cross-examination and the Public Prosecutor can cross-examined him but it simply did not occur to them and the statement recorded u/s 164 Code of Criminal Procedure Ext 7 was surreptitiously introduced as already noted above.

Once this statement as recorded u/s 164 Code of Criminal Procedure and their use not only in Utter contravention of the proviso to Section 162(1) Code of Criminal Procedure and Section 145 and 157 of the Evidence Act, is also violative of the procedural fairness, as enshrined in Article 21 of the constitution are executed from consideration, as they must be, their remain no legal evidence whatsoever in support of the conviction asiecorded by the trial Court. Seeking corroboration of one discrepant unreliable witness fiom the statement of another witness on similar nature is hardly any corroboration, as such, the corroboration must come from legal and reliable sources. The learned Judge has noted that since they have disputed the presence of these four witnesses, namely, P.Ws. 3,4,5 and 6, therefore, the statement made by these witness before the Magistrate as recorded u/s 164 Code of Criminal Procedure should be accepted, This is logic advanced by the learned trial Judge, as can be seen from the following passage of the impugned judgment:

Learned defence counsel has argued that statements of witnesses such as P.W.s 3,4,5 and 6 recorded u/s 164 Code of Criminal Procedure cannot be formed portion of consideration. I wholly agree with Mr. M.C. Hazarika. The statement, that were recorded u/s 164 Code of Criminal Procedure are not considered as substantive evidence but can be used for contradiction and corroboration. The portion of the statement sought to be omitted by the witnesses in course of their depositions are in fact excluded from consideration. But the thing is that P.W.-4 has wholly corroborated his earlier statement and found trustworthy. Defence does not dispute presence of these four witnesses at the site of incident at the relevant time. P.W.-6 was present in the tea stall but his contention is that he was working in the inner portion while the occurrence took place in the outer portion of his tea stall. Although he had earlier stated that as soon as his boy cried out that murder is being committed, he peeped and saw five persons were giving (sic) on the deceased but in his deposition he wanted to say that on hearing cry about commission of murder, he fled through the back of door and reached police station. This portion of his evidence has not been disputed and as such, I have not considered his earlier statement about seeking the assault. Similarly, the portion of statement wanted to be avoided by P.W.-3 has been excluded P.W.-5 has more or less corroborated his earlier statement simply committing the names of accused Atikul and Mazid but the real truth of the matter is that there was 8/10 persons in the assembly and I have aheady found in the testimony of P.W.-4 that accused. Ahmed was in the lead being armed with long dao while accused Atikul Iskah, Muberak, Ismail and Muzid being armed with dao and sword followed him.

Assuming for the sake of argument that the statement recorded u/s 164 Code of Criminal Procedure afforded corroborative evidence, was it even put to the accused so as to say thatthe accused have not disputed it? Apart from the legality that was the minimum expected of the trial Judge, if he was so determined to use the statement against the accused, it should have at least put to the accused in their examination u/s 313 Code of Criminal Procedure otherwise, merely because such user has not been challenged in the cross-examination by the accused that which is per se illegal and inadmissible, does not become admissible. Now adverting to the evidence of the accused u/s 313 Code of Criminal Procedure the learned trial Judge does not appear to be acquainted with the object and purpose of such examination and the manner in which the accused should be examined. A mere reading of the question as framed would go to show that almost every question begins with the introductory part as alleged in the evidence but whose evidence, whose statement is not even indicated (see Question No. 1,3,4,7,9,11). A mere glance at Section 313 Code of Criminal Procedure would convince any one about the object and purpose of such exammation.

The object of questioning an accused persons by the Court is to give him an opportunity of explaining the circimistances that appear against him in the evidence. If for example some article is found in the accused''s house which points to the accused''s responsibility in the crime, he should be asked and give an opportunity to explain the presence of such an article in his house. Where incriminating evidence consists of circumstantial evidence, it such incriminating circumstance pointing towards the guilt of the accused must be specifically put to him before they can be used against him, as has been held by the Supreme Court. A duty is cast upon the Courts to question the accused properly and fairly so that the exact case that the accused had to made is brought home to him in clear words and thereby an opportunity is given to him to explam any point. This is an important salutory provisions. Now look to the compound nature of questioning and without remotest reference to the statements made u/s 164 Code of Criminal Procedure, which has been made the foundation of conviction. What opportunity in fact was given to the accused to explain the incriminating circumstance, as has been made use of by the learned trial Judge and seeking support from previous statement of the witnesses and the ignorance or inability or inexperience of the accused or the learned Counsel roping him, should not be allowed to work injustice to him simply because the accused has failed to dispute a particular piece of evidence. It is the duty of the Court to see whether the evidence is admissible at all. If it is not admissible it hardly matters, whether the accused disputed it or not? It is the duty of the Court, and no Court can shun his duty.

The judgment proceeds on mis-appreciation of evidence so far as previous statement of the witnesses as recorded u/s 164 Code of Criminal Procedure and their use is concerned, and the total misconception about the nature of such statements, the perfimctory nature of examination of the accused making use of inadmissible evidence even without putting it to the accused in its examination u/s 313 Code of Criminal Procedure are gross illegality resulting in miscarriage of justice.

For the foregoing reasons, the appeal deserves to be allowed and it is accordingly allowed. The conviction and sentence recorded by the trial Court is liable to be set aside, it is accordingly set aside. Find if paid or deposited by the accused be refunded to them. They be set at liberty forthwith.