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Statement recorded under section 161 Cr.P.C is inadmissible in evidence and cannot be relied upon or

Parvat Singh & Ors. Vs State of Madhya Pradesh, CRIMINAL APPEAL NO. 374 OF 2020.

 “The statement recorded under Section 161 Cr.P.C. has stated that she has seen all the accused in the light of the torch. She has stated that Bal Kishan – original accused no.1 was having an axe and other four were armed with lathis. She had also stated in her statement under Section 161 Cr.P.C. that Bal Kishan – original accused no.1 gave the axe blow on the neck of the deceased due to the enmity and earlier dispute and other accused were telling to run away immediately and thereafter all the five accused ran away from behind the cattle shed/house. She stated that she had identified all the accused in the light of the torch and also by voice. According to her after she shouted, other persons came. However, there is material improvement in her deposition before the Court. In her deposition, she has stated that accused Santosh and Rakesh caught hold of Bal Kishan – deceased.In her deposition, she has also stated that there was a chimney light in the cattle shed. She has also stated in her deposition that the accused ran away from the nearby agricultural field of sugarcane. Therefore, the deposition of PW8 is full of material contradictions and improvements so far as original accused Nos. 2 to 5 is concerned.”

The judgment was pronounced by Justice ASHOK BHUSHAN and M. R. SHAH on March 2, 2020.

Facts

As per the case of the prosecution and according to the informant, when she was sleeping in the cattle shed in the house, around 4-5 a.m. in the morning due to the barking of the dogs she woke up and in the light of torch, she saw that in the cattle shed, accused Bal Kishan with an axe and other original accused Nos. 2 to 5 herein with sticks/lathis in their hands were standing. Thereafter, accused Bal Kishan entered in the cattle shed and with an intention to kill her son Bal Kishan gave a blow of axe. Original accused Nos.2 to 5 for the offences punishable under Section 302 r/w Section 149 of the IPC, the original accused nos.2 to 5 have preferred the present appeal.

Contention

It is submitted by appellant that, conviction of the accused is solely based upon the evidence – deposition of PW8 and no other independent witness supports the case of the prosecution and that the evidence – deposition of the PW8 is full of contradictions, omissions and improvements, it is not safe to convict the appellants solely relying upon theevidence/deposition of PW8.Original accused nos. 2 to 5 that the case of the original accusednos. 2 to 5 is clearly distinguishable on facts, from that of original accused no.1. It is further submitted that there are no much contradictions and/or improvements in the case so far as original accused no.1 is concerned.It is submitted that so far as accused no.1 is concerned, it can be seen that PW8 is consistent with her statement under Section 161 Cr.P.C. as well as her deposition before the Court.

It is vehemently submitted by the Learned Advocate appearing on behalf of the State that there are a concurrent finding of facts recorded by both the Courts below while convicting the appellants for the offences under Section 302 r/w 149 IPC. It is submitted that the findings recorded by the Learned Trial Court and the High Court are on appreciation of evidence and therefore the same are not required to be interfered with by this Court in exercise of powers under Article 136 of the Constitution of India.It is further submitted by Learned Counsel appearing on behalf of the State that in the present case though the conviction of the appellants is solely based upon the deposition of PW8, however there is no rule that there cannot be any conviction relying upon the sole witness, more particularly an eye-witness.

The High Court has observed relying upon her statement recorded under Section 161 Cr.P.C. that the appellants herein – accused nos. 2 to 5 were having lathis. However, as per the settled preposition of law a statement recorded under Section 161 Cr.P.C. is inadmissible in evidence and cannot be relied upon or used to convict the accused. As per the settled proposition of law, the statement recorded under Section 161 Cr.P.C. can be used only to prove the contradictions and/or omissions. Therefore, as such, the High Court has erred in relying upon the statement of PW8 recorded under Section 161 Cr.P.C. while observing that the appellants were having the lathis.

The Court held that, in the facts and circumstances of the case, there are material contradictions, omissions and/or improvements so far as the appellants herein – original accused nos. 2 to 5 are concerned and therefore we are of the opinion that it is not safe to convict the appellants on the evidence of the sole witness of PW8.The benefit of material contradictions, omissions and improvements must go in favour of the appellants herein. Therefore, as such the appellants are entitled to be given benefit of doubt.

There are material contradictions and omissions so far as the appellants – original accused nos. 2 to 5 are concerned. So far as the original accused no 1 is concerned, PW8 is consistent in her statement under Section 161 Cr.P.C. as well as in her deposition before the Court. There was a recovery of axe used in commission of the offence by accused no.1 at the instance of accused no.1. Under the circumstances, the case of the original accused nos. 2 to 5 is clearly distinguishable to that of original accused no.1. So far as the submission on behalf of the State that relying upon the deposition of PW8, the original accused no.1 was convicted and his conviction hasbeen confirmed upto this Court and therefore to dismiss the present appeal quaother accused is concerned.

Under the circumstances, the present appeal is allowed. The impugned judgment and order of conviction passed by the learned Trial Court and confirmed by the High Court convicting the appellants herein – accused nos. 2 to 5 for the offence under Section 302 r/w Section 149 of the IPC are hereby quashed and set aside and the appellants herein – original accused nos. 2 to 5 are acquitted of the charges for which they were tried. The appellants herein – accused nos. 2 to 5 be released forthwith, if not required in any other case.

“Having heard Learned Counsel appearing for the respective parties and considering the evidence on record, we are of the opinion that the evidence/deposition of PW8 is full of material contradictions, omissions and improvements. As per the settled proposition of law, the statement recorded under Section 161 Cr.P.C. can be used only to prove the contradictions and/or omissions. we are of the opinion that it is not safe to convict the appellants on the evidence of the sole witness of PW8.”

– Aarthy K

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