Gauhati High CourtMusst Anjuma Bibi vs The State Of Assam And 2 Ors on 1 December, 2023Page No.# 1/21\n\nGAHC010154012018\n\n\n\n\n                         THE GAUHATI HIGH COURT\n  (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)\n\n                          Case No. : Crl.A./23/2019\n\n         MUSST ANJUMA BIBI\n         W/O- LATE. SANOWAR ALI,\n         R/O- HATIPOTA PART- I (MASKAGURI),\n         P.O- HATIPOTA,P.S.- CHAPAR, DIST- DHUBRI(ASSAM), PIN-783348.\n\n\n\n         VERSUS\n\n         THE STATE OF ASSAM AND 2 ORS\n         REPRESENTED BY PP, ASSAM.\n\n         2:SURAT ALI\n          S/O- LATE. MONSER ALI\n\n         R/O- VILLAGE- HATIPOTA PART-I\n\n         P.O- HATIPOTA\n          P.S.-CHAPAR\n          DIST- DHUBRI\n         ASSAM\n          PIN-783348.\n\n         3:BAHAR ALI\n          S/O- LATE. MONSER ALI\n\n         R/O- VILLAGE- HATIPOTA PART-I\n\n         P.O- HATIPOTA\n          P.S.-CHAPAR\n          DIST- DHUBRI\n         ASSAM\n          PIN-783348\n                                                                                     Page No.# 2/21\n\nAdvocate for the Petitioner   : MR. I H LASKAR\n\nAdvocate for the Respondent : MR. D DAS, ADDL PP, ASSAM\n\n\n\n\n                                  BEFORE\n                HONOURABLE MR. JUSTICE MICHAEL ZOTHANKHUMA\n                   HONOURABLE MRS. JUSTICE MALASRI NANDI\n\n                                          JUDGMENTDate : 01.12.2023\n(Malsari Nandi, J)\n\n\n       Heard Mr. I.H. Laskar, learned counsel for the appellant. Also heard Mr. D. Das, learned\nAdditional Public Prosecutor for the State and Mr. P. Rahman, learned counsel appearing for\nthe respondent Nos.2/3.2.   This appeal has been preferred by the informant in Sessions Case No. 313/2014 under\nSection 372 r/wSection 378of Cr.P.C., against the judgment and order dated 23.05.2018\npassed by the learned Additional Sessions Judge, Bilasipara, whereby learned Additional\nSessions Judge, had acquitted the respondents Nos. 2 and 3 from the charge of the offence\nunderSection 341/326/307/302/34IPC.3.   The factual matrix leading to the case of the informant is that she lodged an FIR before\nthe officer-in-charge Chapar Police Station on 07.02.2012, stating inter alia that on\n06.02.2012 at about 10:30 p.m., when her husband Sanowar Ali was returning from his own\nbrick kiln on his motorcycle bearing No. As-17-8741, a gang of miscreants intercepted him on\nhis way and assaulted him with sharp weapons, as a result of which, he died on the spot. It is\nalso stated in the FIR that when there was hue and cry raised by her husband at the time of\nthe incident, co-villager Sahidul Islam came to the place of occurrence and when he tried to\nrestrain 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\nunderSection 341/326/302/34IPC and investigation commenced. During investigation, the\n                                                                                 Page No.# 3/21\n\ninvestigating officer visited the place of occurrence and recorded the statement of the\nwitnesses. Inquest was conducted on the dead body of the deceased and subsequently the\ndead body was forwarded to the hospital for postmortem examination. During investigation,\nthe injured Sahidul and witness Zakir Hussain were produced before the Magistrate, to record\ntheir statements underSection 164Cr.P.C. After completion of the investigation, charge-sheet\nwas submitted against the respondent Nos. 2 and 3 underSection 341/326/302/34IPC\nbefore the court of learned JMFC, Bilasipara. As the offence underSection 302IPC is\nexclusively triable by the court of Sessions, the case was committed accordingly.5.   During trial, charge was framed undersection 341/326/307/302IPC which was read\nover and explained to the respondent Nos. 2 and 3, to which they pleaded not guilty and\nclaimed to be tried. During trial, the prosecution examined 15 witnesses to prove the guilt of\nthe respondents. However, there was no defence witness in the case. After completion of\ntrial, the statement of both the respondent Nos. 2 and 3 were recorded undersection 313Cr.P.C and incriminating materials found in the statement of the witnesses were put to them,\nto which they stated that they had been falsely implicated in this case and pleaded their\ninnocence. After hearing the arguments advanced by the landed counsel for both the parties,\nthe learned trial court held that after evaluation of the evidence on record, the prosecution\nfailed to bring home the charge against the respondent Nos. 2 and 3 beyond all reasonable\ndoubt and accordingly, they were acquitted.6.   Being aggrieved and dissatisfied with the order of acquittal passed by the learned trial\ncourt, 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.\n3 and P.W. 6 recorded underSection 164Cr.P.C. were found to be consistent and trustworthy.\nFurther, the statements were made before the Magistrate within a short period of time after\nthe incident without any influence and as such, there was no reason to disbelieve the\nprosecution story. Hence, the impugned judgment and order dated 23/05/2018 was liable to\nbe interfered with.Page No.# 4/218.    The learned counsel for the appellant has submitted that P.W. 3, who was the\neyewitness to the incident, stated before the learned Magistrate mentioning the names of the\nrespondent Nos. 2 and 3 in his statement recorded undersection 164Cr.P.C., but thereafter\nturned hostile before the trial court while adducing evidence. According to learned counsel, it\ntranspires that the respondent Nos. 2 and 3 might have tutored the prime witness i.e. P.W. 3.\nThe learned trial court has failed to properly appreciate the evidence of the witnesses in true\nperspective.9.    It is also submitted by learned counsel for the appellant that the learned trial court\nerred in law as well as on facts in disbelieving the prosecution case and coming to a finding\nthat in the FIR, the names of the respondent Nos. 2 and 3 were not mentioned and P.W.6\nwho was injured has not disclosed the names of the persons before the informant, who\ncaused 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\ncourt did not bother to discuss the evidence of P.W.3, who turned hostile under the pressure\nof the respondent Nos. 2 and 3 and further the learned trial court, in spite of, knowing the\nfact that statement of P.W.3 underSection 164Cr.P.C. was recorded but did not make any\neffort to bring on evidence the said statement which reflects that the learned trial court has\nfailed to perform his duties as enumerated underSection 165of the Evidence Act and which\nhas resulted miscarriage of justice by acquitting the respondent Nos. 2 and 3. As such, the\nimpugned judgment and order is liable to be set aside.11.   In support of his submissions, the learned counsel for the appellant has placed reliance\non the following case laws-(i) (2012) v.11 SCC 196 (Pudhu Raja & Anr. vs. Staterepresented by Inspector of\n      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.# 5/2112.   In response, the learned Additional Public Prosecutor has argued that the learned trial\ncourt had failed to appreciate the evidence brought on record in the proper perspective and\nhad arrived at an erroneous conclusion acquitting the respondent Nos. 2 and 3. He submits\nthat 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\nhas submitted that this is a case of no evidence. According to the learned counsel, the trial\ncourt had meticulously evaluated the evidence on record and rightly acquitted the respondent\nNos. 2 and 3 of the charge framed against them due to lack of evidence. Pointing out the\nlapses in the investigation, the learner counsel for the respondent Nos. 2 and 3 submits that\nthe statements of P.W.3 and P.W.6 were recorded by the investigating officer twice underSection 161Cr.P.C. The first time, when the I/O recorded the statements of the P.W.3 and\nP.W.6, they did not utter a single word regarding involvement of respondent Nos. 2 and 3 in\nthe offence as alleged against them. Subsequently, when the statements of P.W.3 and P.W. 6\nwere recorded by the investigating officers second time, then they implicated the respondent\nNos. 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 undersection 164Cr.P.C. by the learned Magistrate, they also differ from their statements earlier\nrecorded underSection 161Cr.P.C. According to learned counsel for the respondent Nos. 2\nand 3, if the evidence led by the prosecution is taken in its face value, then it would be\nestablished on the face of the record that the charge brought against the respondent Nos. 2\nand 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\nplaced 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.)\n                                                                                  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\nalso perused the case record as well as the judgment of the trial court. On perusal of the\njudgment of the learned trial court, it reveals that the learned trial court acquitted the\nrespondent Nos. 2 and 3 on the ground that by observing the fact that the prosecution mainly\nrelied on the evidence of P.W. 6 who is the injured in the case. The learned trial court\nobserved that P.W.6 has changed his version, while giving statement before the investigating\nofficer, as well as in his statement recorded by the Magistrate undersection 164Cr.P.C. In the\nstatement undersection 164Cr.P.C., P.W.6 did not say before the Magistrate that he noticed\nand saw the incident of assault on Sanowar by the respondent Nos. 2 and 3. He simply stated\nthat hearing hue and cry of Zakir, he came out and at that time he noticed one person\nwearing black jacket and he shouted 'who was that person' and the said person gave a blow\non his left hand and subsequently he identified the person as respondent No. 2 Surat Ali. P.W.\n6 did not mention the name of other accused i.e. respondent No. 3 Bahar Ali before the\nMagistrate and the police.17.   The learned trial court also held that P.W.3 Zakir contradicted the statement of P.W.6 on\nmaterial point on identification of the accused persons at the place of occurrence and\nattacking of the deceased by them. P.W.6 in his earlier statement recorded undersection 161and164Cr.P.C. did not state that he had noticed accused i.e. respondent Nos. 2 and 3\nassaulting the deceased and identified them. For the first time before the court, P.W. 6 stated\nthat respondent Nos. 2 and 3 attacked the deceased on the date of incident. The learned trial\ncourt, therefore, held that his evidence was not consistent with his earlier statement and was\nnot cogent and convincing.18.   The learned trial court finally held that a cumulative reading of the statement of P.W. 6\nmade before the I/O which was his first statement and the second statement made before\nthe Magistrate and his final statement made before the court is not consistent with each\nother and upon such inconsistent statements in absence of corroboration, it is not judicious to\n                                                                                 Page No.# 7/21\n\naccept the evidence of P.W.6 beyond all reasonable doubt. The learned trial court, thereafter,\non the basis of the statement of P.W. 6 and other witnesses, acquitted the respondent Nos. 2\nand 3.19.   In the instant case, the prosecution mainly relied on the evidence of P.W.3 and P.W. 6\nand the other witnesses examined by the prosecution are admittedly came to the spot after\nthe incident. P.W.2 who is the informant and the wife of the deceased Sanowar Ali, was also\nnot present at the relevant time of incident According to her, she was informed about the\nincident by the mother of the injured Sahidul Islam. On coming to know about the incident,\nshe went to Chapar Hospital to see her husband. By that time, her husband succumbed to his\ninjuries. Though, P.W.2 alleged in her examination-in-chief that the respondent Nos. 2 and 3\nassaulted her husband by a sharp cutting weapon and also inflicted the injury towards\nSahidul Islam, but subsequently, in her cross-examination, P.W.2 admitted that at the initial\nstage, she stated before the police that some unidentified miscreants had restrained her\nhusband on the way while he was coming from brick factory and had killed her husband by\nsharp weapon. This witness also admitted that she stated before police that Sahidul was\nassaulted by some unknown miscreants. P.W.2 also admitted that she did not disclose the\nname 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\nthe date of incident at about 10 to 10:30 p.m., he was in his house. At that time, he heard a\nbig sound near his house. He came out towards the main road and saw that a motorcycle\nwas lying on the road and two persons were running. He also saw some labourers of brick\nfactory. They were also running behind those two persons. Those labourers were shouting\nand trying to catch those two persons. Thereafter, one, Sahidul Islam was also running along\nwith the labourers. There was hue and cry among those persons. He asked Sahidul Islam to\nstop to know about the incident. Sahidul Islam told him that he was assaulted on his hands\nby somebody else. He took Sahidul Islam to his house and again came back to the place of\noccurrence. Thereafter, he found that some labourers of brick factory were surrounding a\nperson, namely Sanwar Ali. He went ahead and found Sanwara Ali in serious injured\ncondition. Thereafter, he accompanied Sanwar Ali with other labourers to Chapar Hospital. He\n                                                                               Page No.# 8/21\n\nnoticed deep cut injury on the shoulder of Sanwar Ali. This witness was declared hostile on\nthe request of the prosecution.21.   During cross-examination by prosecution, P.W.3 denied the fact that he stated before\npolice that he saw the entire occurrence of killing of deceased Sanowar Ali by both the\naccused persons. He also denied the fact that he saw both the accused namely Surat Ali and\nBahar Ali hitting Sanowar Ali by a dagger. P.W. 3 also denied the fact that he stated before\npolice 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.\nMany people assembled before his arrival. The labourers of brick factory had not disclosed\nthe name of any accused person.23.   P.W.6 is the injured who deposed in his evidence that the incident occurred around 10\nto 10:30 p.m. At that time, he was at home. Then he heard a hue and cry and somebody\nshouting 'catch' 'catch'. Then he came out and saw the accused namely Surat Ali and Bahar\nAli assaulting Sanowar Ali. When he restrained them, the accused persons inflicted injury on\nhis left hand with a dao. When he asked them as to why they made the assault, they\nassaulted him again. Zakir helped him to go home. Then, he was taken to hospital and there\nhe stated before the police that the accused persons, Surat Ali and Bahar Ali had assaulted\nSanowar. Later, he heard that Sanowar had died. After the incident, he was taken to\nBongaigaon and then shifted to Guwahati. Subsequently, he had undergone treatment at\nPatna.24.      In his cross examination, P.W.6 replied that his house and the house of Zakir are\nadjacent to the place of occurrence. At that time, there was no other person except he and\nZakir Hussain. He got injured. He gave statement to police on three occasions. He told Zakir\nabout the occurrence. He witnessed the incident himself. Zakir also raised an alarm and came\nacross him. He tried to catch the accused. Zakir and he ran to a distance of almost 20-30\ncubits to catch the accused.Page No.# 9/2125.   P.W.7 and P.W.8 are the labourers who were working in a brick kiln wherein the\ndeceased Sanowar Ali was working as a Manager. P.W.7 deposed in his evidence that on the\ndate of incident, he along with other labourers and the deceased were working in the same\nbrick kiln. After finishing the work, they went back towards their house and Sanowar Ali was\ngoing on a motorcycle. Later he heard a sound of falling of the motorcycle. Then they rushed\nto the place of occurrence and found Sanowar lying along with the motorcycle. Many people\ngathered 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\np.m. The motorcycle was lying in a ditch. He knew P.W.6 Sahidul but he did not see him\nthere. They lifted Sanowar and thereafter they went to Sahidul's house. On being asked,\nSahidul told that accused persons had injured him and that the accused persons had covered\ntheir 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.,\nSanowar and they were doing accounts related works in the brick factory. Thereafter,\nSanowar went home on his bike. Later they also came out. After a while, they heard hue and\ncry and they rushed to the place of occurrence and found that Sanowar along with his bike\nwas lying in the drain            beside the road. Sanowar was in injured condition. They all\ntook 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\nafter the incident and found Sanowar lying on the ditch near the roadside. But P.W.7 and\nP.W.8 did not find the injured Sahidul on the spot. According to the injured, P.W.6 except him\nand Zakir, none was present on the spot when the incident took place and they did not say\nabout 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\nanything about the incident.30.   P.W.11 is the Medical Officer who conducted post-mortem examination on the dead\n                                                                                    Page No.# 10/21\n\nbody 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\n      following injuries are noted:i) Lacerated injury over the temporal region. Extending from left side to his right\n      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\n      his right side of the occipital bone. Size 25 cm x 2 cm x full depth to the skull. Blood\n      clots are present.iii) Lacerated injury over his left side in front of the chest at the level of the 2nd and 3d\n      rib. Placed horizontally. Size 15cm x 2 cm x 8 cm. cutting soft tissues and left lung 2\n      big vessels. Blood clots are present.iv) Lacerated injury over his right forearm and complete fracture of his joint both\n      bones and soft tissues. Blood clots are present.Cranium and spinal canal:-iv) Scalp & Skull: Blood clots are presentv) Membrane:- There is loss of membrane below his fractured skull bones. Loss of\n      anatomical configuration. Blood clots are present.vi) Brain and spinal cord: There is loss of brain tissues with loss of anatomical\n      configuration. Blood clots are present.Thorax:-(b) Pleurae: Rupture of his left upper lobe. Blood clots are present.(c) Laryax and trachere: Healthy\n                                                                                 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\n      digested food matters.(m) Large intestine and its contents: healthy and contains semisolid faecal matters and\n      gas.(n) Liver: Healthy(o) Spleen: Healthy(p) Kidneys: Healthy(q) Bladder: Healthy and empty\n\n      The Doctor opined that the cause of death was due to shock and haemorrhage as a\n      result of head injury sustained by the deceased. The injuries were anti-mortem in\n      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\n                                                                                    Page No.# 12/21(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,\n       caused by sharp object.32.   P.W.14 is the MVI who inspected the motorcycle of the deceased seized in connection\nwith this case.33.   P.W.15 is the Investigating Officer. He deposed in his evidence that on 06.02.2012, he\nwas serving as In-Charge of Salkocha Outpost under Chapar Police Station. On that day at\nabout 11:00 p.m., he got information over phone from one Nur Salam of Village - Baniapara\nPart II that some miscreants brutally caused severe injury on Sanowar Ali, owner of BTC brick\nfield. After making endorsement in the GD entry book and informing the higher police officials\nabout the incident, he proceeded to the place of occurrence with staff. Though he reached\nthe place of occurrence but due to night, he could not inspect the place of occurrence\nproperly. However, he questioned one Reshma Bibi, wife of Zakir Hussain of Village -\nBanipara Part II who was present at the place of occurrence. Thereafter, he made search to\napprehend the miscreants. On the next day, a written ejahar was lodged by Anjuma Bibi. He\ncame to know that injured Sanowar succumbed to his injuries. One person, Sahidul Islam\nsustained injury when he went to apprehend the miscreants. The miscreants gave him blow\nwith a weapon. During investigation, he conducted inquest on the dead body of the\ndeceased. Thereafter, the dead body was sent to Dhubri Civil Hospital for post-mortem\nexamination. P.W.15 also stated that during investigation, he inspected the place of\noccurrence, drew sketch map of the place of occurrence, recorded statement of the witnesses\nand seized some articles from the spot. During investigation, he also forwarded Zakir Hussain\nand Sahidul Ali before the Court to record their statements undersection 164Cr.P.C. Witness\nZakir Hussein gave his statement three times before him. Subsequently, he arrested the\nrespondent nos. 2 and 3 in connection with the case. After collecting post-mortem report,\nfinding sufficient material against the accused persons and on completion of the investigation,\nhe submitted charge-sheet against the            respondent nos. 2       & 3      underSections\n341/326/307/302/34IPC vide Ext. 10.Page No.# 13/2134.   In his cross-examination, P.W.15 replied that he did not record statement of Zakir on\n06.02.2012. He recorded the statement of Zakir on three occasions. First, he examined Zakir\non 07.02.2012 then on 15.02.2012 and last was taken on 22.02.2012. When he recorded the\nstatement of Zakir on 07.02.2012, he did not disclose the name of accused but subsequently\non 15.02.2012 and 22.02.2012 when the statement of Zakir was recorded by him, he\ndisclosed the name of the accused, that is, respondent nos. 2 & 3. P.W.15 also stated in his\ncross-examination that witness Sahidul Ali did not state before him the names of the\nmiscreants 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\nAli, sustained injuries on his person. P.W.11, Medical Officer who conducted autopsy on the\ndead body of the deceased, also supported the fact that the deceased sustained several\ninjuries on his head causing his death.36.   P.W.12, that is, another Doctor who examined the injured also stated that on\nexamination of the victim Sahidul, he found cut injuries on his left hand which was grievous\nin nature and caused by sharp object.37.   Now the question comes who are the perpetrators of the crime. According to learned\ncounsel for the appellant, the respondent nos. 2 & 3 inflicted injury towards the deceased, as\na result of which he died on the spot. P.W.3 and P.W.6 also supported the fact while their\nstatements were recorded underSection 164Cr.P.C. On the basis of the statement recorded\nunderSection 164Cr.P.C., the respondent nos. 2 & 3 should have been convicted by the trial\nCourt. On the other hand, learned counsel for the respondent nos. 2 & 3 pointed out that\nP.W.3 was declared hostile by the prosecution as he did not support the case of the\nprosecution. There was contradictions in the statement of P.W.6 while recorded by the\nInvestigating Officer and his statement before the Magistrate regarding involvement of the\nrespondent nos. 2 & 3. According to learned counsel for the respondent nos. 2 & 3, the\nstatement recorded underSection 164Cr.P.C. or underSection 161Cr.P.C cannot be treated\nas substantive evidence without an opportunity of being given for cross-examination to\ndefence.Page No.# 14/2138.   It hardly needs to be emphasized that one of the main reasons for witnesses to turn\nhostile is that they are not accorded appropriate protection by the State. It is a harsh reality,\nparticularly in those cases where the accused persons/criminals are tried for heinous offences\nor where the accused persons are influential persons or in a dominating position that they\nmake attempts to terrorize or intimidate the witnesses because of which these witnesses\neither avoid coming to Courts or refrain from deposing truthfully. This unfortunate situation\nprevails because of the reason that the State has not undertaken any protective measure to\nensure the safety of these witnesses commonly known as witness protection.39.   The law is well settled that a statement recorded underSection 164Cr.P.C. is not\nsubstantive evidence and it can be used to corroborate the statement of a witness and it can\nbe used to contradict a witness.In Ram Kishan Singh vs. Harmit Kaur and another,\nreported in (1972) 3 SCC 280, it has been laid down that a statement recorded undersection 164of the Code of Criminal Procedure is not a substantive evidence and it can be\nused to corroborate the statement of a witness and to contradict a witness, and nothing else.40.   In the case ofBaij Nath Sah vs. State of Bihar, reported in (2010) 6 SCC 736, the\nHon'ble Apex Court has held that mere statement of the prosecutrix recorded underSection\n164Cr.P.C. is not enough to convict the appellant and it is not substantive evidence and it can\nbe 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\nrecorded the statement of P.W.3 three times i.e. on 07.02.2012, 15.02.2012 and 22.02.2012.\nOn 07.02.2012, P.W.3 did not disclose the name of any person before the Investigating\nOfficer. Subsequently, on 15.02.2012 and on 22.02.2012, he disclosed the names of the\nrespondent nos. 2 & 3 to be involved in the case. It is not clear from the statement of the\nInvestigating Officer or the case record why the statement of P.W.3 was recorded three times\nby the Investigating Officer during investigation. The case diary does not indicate that P.W.3\nwas required to be questioned by the Investigating Officer three times. The Investigating\nOfficer did not mention in the case diary why he recorded the statement of P.W.3 one after\nanother during investigation.Page No.# 15/2142.   The statement of the P.W.3 was recorded by the Magistrate underSection 164Cr.P.C.\nwherein he stated that on the date of incident at about 10:00 p.m., he was at his house.\nSuddenly there was a sound. He came out and saw a motorcycle lying on the road and the\naccused Bahar Ali and Surat Ali assaulting Sanowar with Kris. Surat threatened to kill him if\nhe made any noise. He screamed and ran after the two accused persons. Hearing his scream,\nhis nephew Sahidul came out and he also started running ahead of him. Then in the\ndarkness, someone assaulted Sahidul with sharp weapon. On finding Sahidul in injured\ncondition, he took him to his house. While P.W.3 deposed before the court, he resiled from his\nearlier statement. According to him, after hearing a big sound near his house on the date of\nincident, he came out and saw a motorcycle was lying on the road and two persons were\nrunning. There were some labourers of brick factory also and they were also running behind\nthose two persons. Though P.W.3 met Sahidul on the spot, Sahidal was found in injured\ncondition but P.W.3 did not ask who had caused injury to Sahidul.43.   The Hon'ble Supreme Court has in the cases ofKrishna Mochi and others vs. State\nof Bihar, reported in (2002) 6 SCC 81,State of U.P. vs. Ramesh Prasad Misra,\nreported in (1996) 10 SCC 360 andState of NCT Delhi vs. Sanjeev Nanda, reported in\n(2012) 8 SCC 450, it was held that it is settled law that the evidence of a hostile witness\ncould not be totally rejected, if spoken in favour of the prosecution or the accused, but it can\nbe subjected to closest scrutiny and that portion of the evidence which is consistent with the\ncase 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\nstatement before the Investigating Officer thrice and subsequently before the Magistrate and\nwhile giving his evidence before the trial Court, we are of the view that the evidence of P.W.3\ncannot 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\nat about 10/10:30 p.m. after hearing hue and cry while he came out from his house, he saw\nthe accused Bahar Ali and Surat Ali, assaulting Sanowar Ali. He restrained them and the\naccused persons inflicted injury in his left hand with a dao. P.W.6 also stated that when he\n                                                                                Page No.# 16/21\n\nwas taken to hospital, there he stated before the police that the accused persons i.e. Bahar\nAli and Surat Ali had assaulted Sanowar.46.   The statement of P.W.6 was recorded by the learned Magistrate underSection 164Cr.P.C. wherein he stated before the Magistrate that on the date of incident at about 10/10:30\np.m., he was at his house. In the meantime, he heard Zakir shouting like 'catch catch' 'fled\naway, fled away'. Then he came out and saw a man, clad in a black jacket, running by the\nside of their house. Then he shouted who was that. He ran following him. Then the man\nassaulted him with a sharp weapon and inflicted injury in his right hand. He identified the\nman as Surat Ali.47.   From the statement of P.W.6 before the Magistrate, it reveals that he did not say\nanything about presence of another accused Bahar Ali at the time of incident. He was\nassaulted by only one accused i.e. Surat Ali. The statement recorded underSection 164Cr.P.C. of P.W.6 is also silent regarding any assault hurled by the respondent nos. 2 & 3\ntowards Sanowar Ali. P.W.6 did not utter a single word regarding assault of the deceased by\nthe respondent nos. 2 & 3 before the learned Magistrate.48.   As the learned counsel for the appellant raised the point that the statement recorded\nunderSection 164Cr.P.C. corroborates the medical evidence as well as the post-mortem\nexamination report and thereby found the appellant guilty, it is interesting to note that the\nstatement recorded underSection 164Cr.P.C. of P.W.3 and P.W.6 were not exhibited in this\ncase. The Magistrate who recorded the statement was also not examined to prove the\nstatement 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 underSection 80of Indian\nEvidence Act, 1872 applicable to the statement recorded by a Magistrate underSection 164Cr.P.C. which reads as follows-"Section 80- Presumption as to documents produced as record of evidence- Whenever\n      any document is produced before any Court, purporting to be a record or\n                                                                                 Page No.# 17/21\n\n      memorandum of the evidence, or of any part of the evidence, given by a witness in a\n      judicial proceeding or before any officer authorized by law to take such evidence, or to\n      be a statement or confession by any prisoner or accused person, taken in accordance\n      with law, and purporting to be signed by any Judge or Magistrate, or by any such\n      officer as aforesaid, the Court shall presume that the document is genuine; that any\n      statement as to the circumstances under which it was taken, purporting to be made by\n      the person signing it, are true, and that such evidence, statement or confession was\n      duly taken."50.   The said aspect has elaborately dealt with by a three-Judges Bench inSheo Raj vs.\nState, reported in (1963) SCC OnLine All 123, and held that a statement made underSection 164Cr.P.C. is not 'evidence', is not made in a 'judicial proceeding' and is not given\nunder oath. It has been held therein as under -"......it is open to any person to make a statement or confession before a Magistrate\n      into course of an investigation, or at any time thereafter, but before the\n      commencement of an enquiry or trial and the statement or confession will be recorded\n      by the Magistrate underSection 164and is not subject to the bar imposed by Section162. Such a statement, being a previous statement, may be used only to contradict\n      the person when he appears as a witness at the enquiry or trial of the offence or to\n      corroborate him...........When a Magistrate records a statement underSection 164, there are only two\n      proceedings in which it can possibly be said to have been recorded, (1) the\n      investigation by the police and (2) the proceeding of recording the statement itself.\n      The investigation by the police is not a judicial proceeding. 'Judicial proceeding' is not\n      defined in theEvidence Act, but since we are concerned with a statement recorded\n      underthe Codeof Criminal Procedure, the question whether it was recorded in a\n      judicial proceeding or not must be decided in the light of the definition given inthe\n      Code. 'Judicial proceeding' is defined inSection 4(1)(m)to mean any proceeding in the\n      course of which evidence is or may be legally taken on oath......"Page No.# 18/2151.   The principles laid down in the above decision makes it clear that the presumption\nunderSection 80of the Evidence Act cannot be drawn to rely upon the statements of\nwitnesses recorded underSection 164Cr.P.C. during investigation to render a conviction.52.   Coming to the question of power of the appellate court on appeal against acquittal, We\nwould like to quote the relevant portion of the recent judgment of the Hon'ble Supreme Court\ninJafarudheen and others vs. State of Kerala, reported in (2022) SCC Online SC\n495, which reads as follows -"25. While dealing with an appeal against acquittal by invokingSection 378of the\n      Cr.P.C., the Appellate Court has to consider whether the Trial Court's view can be\n      termed as a possible one, particularly when evidence on record has been analyzed.\n      The reason is that an order of acquittal adds up to the presumption of innocence in\n      favour of the accused. Thus, the Appellate Court has to be relatively slow in reversing\n      the order of the Trial Court rendering acquittal. Therefore, the presumption in favour\n      of the accused does not get weakened but only strengthened. Such a double\n      presumption that ensures in favour of the accused has to be disturbed only by\n      thorough scrutiny on the accepted legal parameters."53.   In another case, Mohan alias Srinivas alias Seena aliasTailor Seena vs. State\nof Karnataka, reported in (2021) SCC OnLine SC 1233, it has been held as under -"20.Section 378Cr.P.C. enables the State to prefer an appeal against an order of\n      acquittal.Section 384Cr.P.C. speaks of the powers that can be exercised by the\n      Appellate Court. When the trial court renders its decision by acquitting the accused,\n      presumption of innocence gathers strength before the Appellate Court. As a\n      consequence, the onus on the prosecution becomes more burdensome as there is a\n      double presumption of innocence. Certainly, the Court of first instance has its own\n      advantages in delivering its verdict, which is to see the witnesses in person while they\n      depose. The Appellate Court is expected to involve itself in a deeper, studied scrutiny\n      of not only the evidence before it, but is duty bound to satisfy itself whether the\n      decision of the trial court is both possible and plausible view. When two views are\n                                                                                  Page No.# 19/21\n\n      possible, the one taken by the trial court in a case of acquittal is to be followed on the\n      touchstone of liberty along with the advantage of having seen the witnesses.Article 21of the Constitution of India also aids the accused after acquittal in a certain way,\n      though not absolute. Suffice it is to state that the Appellate Court shall remind itself of\n      the role required to play, while dealing with the case of an acquittal."54.   In the recent decision ofVijay Mohan Singh vs. State of Karnataka, reported in\n(2019) 5 SCC 436, the Hon'ble Supreme Court again had an occasion to consider the scope\nofSection 378Cr.P.C. and the interference by the High Court in an appeal against acquittal.\nThe Hon'ble Supreme Court considered in a catena of decisions right from 1952 onwards. It\nwas observed and held as under -"31. An identical question came to be considered before this Court inUmedbhai\n      Jadavbhai vs. State of Gujarat, reported in (1978) 1 SCC 228. In the case before\n      this Court, the High Court interfered with the order of acquittal passed by the learned\n      trial court on reappreciation of the entire evidence on record. However, the High Court,\n      while reversing the acquittal, did not consider the reasons given by the learned trial\n      court while acquitting the accused. Confirming the judgment of the High Court, this\n      court observed and held as under -10. Once the appeal was rightly entertained against the order of acquittal, the High\n      Court was entitled to reappreciate the entire evidence independently and come to its\n      own conclusion. Ordinarily, the High Court would give due importance to the opinion of\n      the Sessions Judge if the same were arrived at after proper appreciation of the\n      evidence. This rule will not be applicable in the present case where the Sessions Judge\n      has made an absolutely wrong assumption of a very material and clinching aspect in\n      the peculiar circumstances of the case."55.   In the case ofN. Vijayakumar vs. State of Tamil Nadu, reported in (2021) 3 SCC\n687, it was held that-"20. Mainly it is contended by Shri Nagamuthu, learned Senior Counsel appearing for\n                                                                            Page No.# 20/21\n\nthe appellant that the view taken by the trial court is a 'possible view', having regard to\nthe evidence on record. It is submitted that the trial court has recorded cogent and\nvalid reasons in support of its findings for acquittal. UnderSection 378Cr.P.C., no\ndifferentiation is made between an appeal against acquittal and the appeal against\nconviction. By considering the long line of earlier cases, this court in the judgment inChandrappa vs. State of Karnataka, [(2007) 4 SCC 415] has laid down the general\nprinciples regarding the powers of the appellate Court while dealing with an appeal\nagainst an order of acquittal, which is relevant reads as under:42. From the above decisions, in our considered view, the following general principles\nregarding powers of the Appellate Court while dealing with an appeal against an order\nof acquittal emerge:(1)      An appellate court has full power to review, reappreciate and reconsider the\nevidence upon which the order of acquittal is founded.(2)The Codeof Criminal Procedure, 1973 puts no limitation, restriction or\ncondition on exercise of such power and an appellate court on the evidence before it\nmay reach its own conclusion, both on questions of fact and of law.(3)       Various expressions, such as, "substantial and compelling reasons", "good\nand sufficient grounds", "very strong circumstances", "distorted conclusions", "glaring\nmistakes", etc. are not intended to curtail extensive powers of an appellate court in an\nappeal against acquittal. Such phraseologies are more in the nature of "flourishes of\nlanguage" to emphasise the reluctance of an appellate court to interfere with acquittal\nthan to curtail the power of the court to review the evidence and to come to its own\nconclusion.(4) An appellate court, however, must bear in mind that in case of acquittal, there is\ndouble presumption in favour of the accused. Firstly, the presumption of innocence is\navailable to him under the fundamental principle of criminal jurisprudence that every\nperson shall be presumed to be innocent unless he is proved guilty by a competent\ncourt of law. Secondly, the accused having secured his acquittal, the presumption of\n                                                                                    Page No.# 21/21\n\n         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,\n         the appellate court should not disturb the finding of acquittal recorded by the trial\n         court."56.      By applying the aforesaid principles and the evidence on record in the case on hands,\nwe are of the considered view that having regard to material contradictions, which we have\nalready discussed above and also as referred to in the trial court judgment, it can be said that\nacquittal is a plausible verdict. By applying the ratio as laid down by the Hon'ble Supreme\nCourt in the judgments stated above, even assuming another view is possible, the same is no\nground to interfere with the judgment of acquittal and to convict the respondent nos. 2 & 3\nfor the offence alleged. To conclude, we must say that all the aspects have been considered\nby the trial court. We do not find any perversity in it and the law presumes double\npresumption in their favour i.e. respondent Nos. 2 and 3 after a due adjudication by the trial\ncourt.57.      In the result, the appeal is dismissed. Send back the LCR.JUDGE                      JUDGE\n\n\n\n\nComparing Assistant