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Home » Crl.A./167/2017 on 12 July, 2021

Crl.A./167/2017 on 12 July, 2021

IN THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

Crl.A. No. 167/2017

Shri Harekrishna Das,
S/o- Sadiram Das,
R/o- Batikuria, Mouza Nagaon
P.S.- Barpeta,
Dist.- Barpeta, Assam
PIN- 781301.
…… Appellant

-VERSUS-
1. State of Assam

2. Tarani Ch. Das,
S/o: Late Saral Ch. Das,
R/o Batikuria, Mouza Nagaon,
P.S. Barpeta, Dist.- Barpeta,
Assam.
…..Respondents

For the Appellant : Mr. A. K. Bhuyan, Advocate.
For the Respondent No.1 : Mr. M. Phukan, Addl. Public Prosecutor.
For the Respondent No.2 : None.

Date of Hearing : 29.01.2021 & 01.02.2021.

Date of Judgment : 12.07.2021.
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:: BEFORE::
HON’BLE MR. JUSTICE N. KOTISWAR SINGH
HON’BLE MR. JUSTICE SOUMITRA SAIKIA

JUDGMENT & ORDER
(N. Kotiswar Singh, J)

The present appeal has been preferred against the judgement dated
10.03.2017 of the Court of Additional Sessions Judge, Barpeta, passed in Sessions
Case No. 31/2009 by which the present appellant was convicted for committing an
offence under Section 302 IPC and sentenced to imprisonment for life with a fine
of Rs.1000.

2. A First Information Report (FIR) was lodged on 04.07.1997 at around 3.30
pm by Sri Tarani Chandra Das, the brother of the deceased person, late Satish
Chandra Das, alleging that at around 8.30 pm on 03.07.1997 when the said
deceased was returning home from his shop and reached the courtyard of the
complainant, the appellant and three others armed with deadly weapons, struck
his brother from his back with an axe as a result of which he sustained grievous
injury. It was also alleged that after the appellant had dealt the axe blow to him,
the other accused persons started beating him on various parts of his body with
iron rods which they were carrying. It has been also alleged that the accused
persons tore his wearing apparels and looted his money as well. It was also stated
that on hearing hue and cry, people came out and asked them as to why they
were assaulting him. Thereafter, the accused attempted to assault them. The
injured person was taken to Barpeta Civil Hospital and thereafter, to Guwahati for
treatment.

3. Based on the aforesaid FIR, a police case being Barpeta P.S. Case No. 369
of 1997 was registered under Section 447/326/379/34 IPC. It may be noted that
at the time of lodging of the FIR, the victim was undergoing treatment and he
succumbed to injury a few days later on 07.07.1997 and later, offence under
Section 302 IPC was added.
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4. On completion of the investigation, the appellant and two others were
charge sheeted for committing offences under Section 447/379/302/34 IPC.

5. The Ld. Addl. Sessions Judge, Barpeta convicted the appellant under
Section 302 IPC, but acquitted him from other charges. The others charged along
with the appellant, who were his relatives, mother, and elder brother were
however, acquitted from all the charges, as the evidence against them were not
found credible.

6. To secure conviction, the Prosecution examined eight (8) witnesses. Smt.
Joymati Das as PW1, Tarani Chandra Das as PW2 (the complainant), Jogeswar
Das as PW3, Kunjalal Pathak as PW4, Smt. Rinika Das as PW5, Sri Sankar Das as
PW6, Dr. Kanak Chandra Das as PW7 and Jadab Chandra Hazarika, the
Investigating Officer as PW8.

7. The prosecution also exhibited several documents and articles seized in
course of the investigation.

Witnesses PW1, PW2 and PW3 are the ones who claimed to be eye
witnesses of the incident and all of them have claimed to have seen the appellant
hit the deceased on his head with an axe because of which the deceased
succumbed to his injury later on.

8. PW 1, Smt. Joymati Das, gave evidence that the deceased was her younger
brother-in-law. The accused persons belong to Batikuria village, which is the same
village where the deceased and the witnesses resided. According to the PW1, the
incident took place at around 8:30 PM on 03.07.1997. At the time of incident, she
was at her house when she heard the brother of her father-in-law, Kushal Das
(expired before the trial) shouting, “marile marile” (he is being hit/killed). Then
she and her husband came out of the house taking a torch along. She also stated
that a light was burning at the place where the incident took place. Her husband
flashed the torch and they saw the accused striking the deceased with an axe. She
saw the appellant coming running with an axe in his hand. The mother of the
appellant, Sailyabala, his wife, Bimola Das and his elder brother, Ghanakanta were
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along with the appellant. Her brother-in-law, Satish thereafter fell on the ground.
He was then taken to Barpeta Civil Hospital and thereafter to GNRC at Guwahati
for treatment where he died 4 days later. She also stated that the police seized
the torch in her presence.

9. Similar depositions were made by the other two witnesses, PW2 and PW3.

10. All the three witnesses were subjected to meticulous cross examination and
the defence made all endeavours to bring out certain inconsistencies,
contradictions in the statements of the aforesaid witnesses and also
embellishments, which according to the defence would demolish the credibility of
the witnesses and as such in the light of other defects in the investigation, of
which reference will be made in due course, it was submitted that the prosecution
failed to prove the charge against the appellant beyond all reasonable doubts and
as such the conviction of the appellant is liable to be set aside.

11. Before we examine the correctness of the submission advanced by the
learned counsel for the appellant, it may be apposite to revisit the law relating to
discrepancies, contradictions and improvements in the evidence of the witnesses
which would render the evidence of the witness unreliable and thus, vitiate the
trial.

12. Typically in a criminal trial, the statements made by witnesses before the
Investigating Officer (IO) recorded under Section 161 CrPC are pressed into
service to bring out inconsistencies or contradictions or improvements as the case
may be on the part of the defence, to discredit the evidence of the prosecution
witnesses. Thus, what a witness had stated before IO recorded under Section 161
CrPC or a statement recorded under Section 164 CrPC before the Magistrate is
generally compared with what the witness testified before the court to bring out
the inconsistencies, contradictions in the evidence.

13. As regards use during the trial, of a statement made by a witness before IO
during the investigation under Sections 161, the same is covered by the provisions
of Section 162 CrPC read with Section 145 of Evidence Act.
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Important features of Section 162 CrPC are as follows:

(1) Statement made under Section 161 cannot be used for any
purpose, except as provided in Section 162(1).
(2) The only permissible use of such statement is for the purpose of
contradicting the witness who made the statement in the manner
provided under Section 145 of the Evidence Act.
(3) Once used for contradiction, it can be used for the purpose of re-
examination, but only for the purpose of explaining any matter
referred to in the cross examination.
(4) Only such part of the statement which directly leads to the discovery
of a new fact or evidence is admissible during the trial (vide Section
27 of the Evidence Act). As regards this aspect, we are not
concerned in this case.

14. This brings into picture the provisions of Section 145 of the Evidence Act,
which provides that a witness may be cross-examined as to previous statements
made by him in writing or reduced to writing, and relevant to matters in question,
without such writing being shown to him, or being proved; but, if it is intended to
contradict him by the writing, his attention must, before the writing can be
proved, be called to those parts of it, which are to be used for the purpose of
contradicting him.

As we proceed further, it may be noted that Section 145 of the Evidence
Act has been in the statute as it is now, though Section 162 CrPC had undergone
changes from time to time. Thus, Section 145 of the Evidence Act is of general
nature applicable to both civil and criminal proceedings and cannot be restricted to
the provisions of Section 162 CrPC.

Section 145 of the Evidence Act contemplates two courses of action as
regards use of previous statement of a witness.
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A. Such previous written statement can be used in the cross-examination
of the witness. For this purpose, there is no requirement to show the
witness such previous statement.
B. However, if such previous statement is to be used for the purpose of
contradicting the witness, such portion of the previous statement must
be brought to his notice. In other words, such portion must be shown to
him before contradicting him.

It is to be noted that what Section 162(2) CrPC provides is for use of the
previous statement for the purpose of contradiction only and not for any other
purpose. Thus, what Section 162 CrPC permits is the use of the second course of
action contemplated under Section 145 of the Evidence Act and not the first
course of action.

Had the intention of the Legislature been to allow the use of previous
statements for any purpose other than contradiction, it would have been made
very clear in Section 162 of CrPC. However, as provided in the proviso to sub
clause (1) of Section 162 CrPC, the use of a statement recorded under Section 161
CrPC is confined only for the purpose of contradicting the witness and nothing
else. Sub-section (1) of Section 162 CrPC in categorical terms has prevented the
use of such statements for any purpose save as provided therein.

15. In this regard, one may refer to the decision of the Supreme Court in
Tahsildar Singh v. State of U.P.1, wherein it was held that,

“13…………………………………Section 145 of the Evidence Act is in two
parts: the first part enables the accused to cross-examine a witness as to
previous statement made by him in writing or reduced to writing without
such writing being shown to him; the second part deals with a situation
where the cross-examination assumes the shape of contradiction: in other
words, both parts deal with cross examination; the first part with cross-
examination other than by way of contradiction, and the second with cross-
examination by way of contradiction only. The procedure prescribed is that,
if it is intended to contradict a witness by the writing, his attention must,
before the writing can be proved, be called to those parts of it which are to
be used for the purpose of contradicting him. The proviso to Section 162 of

1
1959 Supp (2) SCR 875:AIR 1959 SC 1012 : 1959 Cri LJ 1231
7

the Code of Criminal Procedure only enables the accused to make use of
such statement to contradict a witness in the manner provided by Section
145 of the Evidence Act.It would be doing violence to the language of the
proviso if the said statement be allowed to be used for the purpose of
cross-examining a witness within the meaning of the first part of Section
145 of the Evidence Act. Nor are we impressed by the argument that it
would not be possible to invoke the second part of Section 145 of the
Evidence Act without putting relevant questions under the first part thereof.
The difficulty is more imaginary than real. The second part of Section 145
of the Evidence Act clearly indicates the simple procedure to be followed.
To illustrate: A says in the witness box that B stabbed C; before the police
he had stated that D stabbed C. His attention can be drawn to that part of
the statement made before the police which contradicts his statement in
the witness box. If he admits his previous statement, no further proof is
necessary; if he does not admit, the practice generally followed is to admit
it subject to proof by the police officer. On the other hand, the procedure
suggested by the learned counsel may be illustrated thus: If the witness is
asked “did you say before the police officer that you saw a gas light?” and
he answers “yes”, then the statement which does not contain such recital is
put to him as contradiction. This procedure involves two fallacies: one is it
enables the accused to elicit by a process of cross-examination what the
witness stated before the police officer. If a police officer did not make a
record of a witness’s statement, his entire statement could not be used for
any purpose, whereas if a police officer recorded a few sentences, by this
process of cross-examination, the witness’s oral statement could be brought
on record. This procedure, therefore, contravenes the express provision of
Section 162 of the Code. The second fallacy is that by the illustration given
by the learned counsel for the appellants there is no self-contradiction of
the primary statement made in the witness box, for the witness has yet not
made on the stand any assertion at all which can serve as the basis. The
contradiction, under the section, should be between what a witness
asserted in the witness box and what he stated before the police officer,
and not between what he said he had stated before the police officer and
what he actually made before him. In such a case the question could not
be put at all: only questions to contradict can be put and the question here
posed does not contradict; it leads to an answer which is contradicted by
the police statement. This argument of the learned counsel based upon
Section 145 of the Evidence Act is, therefore, not of any relevance in
considering the express provisions of Section 162 of the Code of Criminal
Procedure.
(emphasis added)
In that view of the matter, the previous statement of a witness recorded
under Section 161 CrPC cannot be used for cross examination under the first part
of Section 145 of Evidence Act except for the purpose of contradicting the witness
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during the cross examination under the second part. How a contradiction has to
be brought out, is to be done only in the manner mentioned in the second part of
Section 145 of the Evidence Act, which will be discussed at a later stage.

16. An important corelated issue which arises is, whether such previous
statement made under Section 161 CrPC could be used for the purpose of
impeaching the credibility of the witness, as provided under Section 155 of the
Evidence Act.

Section 155 (3) of the Evidence Act provides that the credit of the witness
may be impeached by the adverse party, or with the consent of the court, by the
party who calls him by proof of former statements inconsistent with any part of his
evidence which is liable to be contradicted.

Though Section 155 of the Evidence Act provides for impeaching the
credibility of the witness by using the former statement of the witness, since the
use of any statement recorded under Section 161 CrPC has been prohibited except
for the purpose of contradiction as mentioned above in Section 162 CrPC, such
statement recorded under Section 161 CrPC cannot be used for impeaching the
credit of the witness except by way of contradiction, as otherwise, the mandate of
law in preventing the use of statement recorded under Section 161 CrPC will be
defeated. Thus if there be no contradiction, there is no scope for impeachment
under Section 155 of the Evidence Act.

Thus, it is very clear that the statement of a witness recorded under
Section 161 CrPC cannot be used for any other purpose including for impeachment
of the credit of the witness, except for the purpose of contradicting him.
Impeachment by way of demonstrating contradictions will be permissible only by
taking recourse to Section 145 of the Evidence Act.

17. The law relating to contradiction under proviso to subsection (1) of Section
161 was succinctly put by the Constitution Bench of the Hon‟ble Supreme Court as
far back in 1959 in the aforesaid case of Tahsildar Singh v. State of U.P.
(supra), wherein it was held that,
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“11. It is, therefore, seen that the object of the legislature throughout
has been to exclude the statement of a witness made before the police
during the investigation from being made use of at the trial for any
purpose, and the amendments made from time to time were only intended
to make clear the said object and to dispel the cloud cast on such intention.
The Act of 1898 for the first time introduced an exception enabling the said
statement reduced to writing to be used for impeaching the credit of the
witness in the manner provided by the Evidence Act. As the phraseology of
the exception lent scope to defeat the purpose of the legislature, by the
Amendment Act of 1923, the section was redrafted defining the limits of the
exception with precision so as to confine it only to contradict the witness in
the manner provided under Section 145 of the Evidence Act. If one could
guess the intention of the legislature in framing the section in the manner it
did in 1923, it would be apparent that it was to protect the accused against
the user of the statements of witnesses made before the police during
investigation at the trial presumably on the assumption that the said
statements were not made under circumstances inspiring confidence. Both
the section and the proviso intended to serve primarily the same purpose
i.e., the interest of the accused.”
(emphasis added)

18. It would be instructive to note that the Hon‟ble Supreme Court in
Tahsildar Singh (supra) also discussed the change in the legislative policy of
using such former statement for discrediting the witness by bringing about
amendment to section 162 CrPC by an amendment Act 18 of 1923. Section 162
CrPC before the amendment in 1923 stood as follows:

“(1) No statement made by a person to a police officer in the course
of an investigation under this Chapter shall, if taken down in writing, be
signed by the person making it, no one shall such as rioting be used as
evidence:
Provided that, when any witnesses called for the prosecution
whose statement has been taken down in writing as aforesaid, the
court shall, on the request of the accused, refer to such writing, and
may then, if the court thinks expedient in the interests of justice,
direct that the accused be furnished with a copy thereof; and such
statement may be used to impeach the credit of such witness in the
manner provided by the Indian Evidence Act, 1872.”
The aforesaid proviso was subsequently amended by Act 18 of 1923 by
which, instead of allowing such previous statement to be used for impeaching the
credit of the witness, after amendment, such a statement can be used only for the
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purpose of contradicting the witness in the manner provided under section 145 of
the Evidence Act. Thus, it is notable that by the aforesaid amendment, only
Section 145 of Evidence Act as specifically mentioned, as far as the permissible
use of statement recorded under Section 161 CrPC is concerned.

In this regard, it would be notable to reproduce the relevant parts of
para10 of the aforesaid judgement in Tahsildar Singh (supra) as follows;

” 10. ………………………………………………..
Presumably, in view of the aforesaid conflict, to make the legislative
intention clear the section was amended by Act 18 of 1923. Section 162 as
amended by the aforesaid Act reads:
“(1) No statement made by any person to a police officer in the
course of an investigation under this Chapter shall, if reduced into
writing, be signed by the person making it; nor shall any such
statement or any record thereof, whether in a police-diary or
otherwise, or any part of such statement or record, be used for any
purpose (save as hereinafter provided) at any inquiry or trial in
respect of any offence under investigation at the time when such
statement was made:
Provided that, when any witness is called for the prosecution in
such inquiry or trial whose statement has been reduced into writing as
aforesaid, the court shall, on the request of the accused, refer to such
writing and direct that the accused be furnished with a copy thereof,
in order that any part of such statement, if duly proved, may be used
to contradict such witness in the manner provided by Section 145 of
the Indian Evidence Act, 1872. When any part of such statement is so
used, any part thereof may also be used in the re-examination of such
witness but for the purpose only of explaining any matter referred to
in his cross-examination:
Provided, further that, if the court is of opinion that any part of
any such statement is not relevant to the subject-matter of the inquiry
or trial or that its disclosure to the accused is not essential in the
interests of justice and is inexpedient in the public interests, it shall
record such opinion (but not the reasons therefor) and shall exclude
such part from the copy of the statement furnished to the accused.”
Sub-section (1) of the substituted section attempted to steer clear of
the aforesaid conflicts and avoid other difficulties by the following ways: (a)
Prohibited the use, of the statement, both oral and that reduced into
writing, from being used for any purpose at any inquiry or trial in respect of
any offence under investigation; (b) while the earlier section enabled the
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accused to make use of it to impeach the credit of a witness in the manner
provided by the Indian Evidence Act, 1872, the new section enabled him
only to use it to contradict the witness in the manner provided by Section
145 of the said Act; (c) the said statement could also be used for the
purpose of only explaining any matter referred to in his cross-examination;
and (d) while under the old section a discretion vas vested in the court in
the matter of furnishing the accused with a copy of an earlier statement of
a prosecution witness, under the amended section, subject to the second
proviso, a duty was cast upon the court, if a request was made to it by the
accused, to direct that the accused be furnished with a copy thereof. The
effect of the amendment was that the loopholes which enabled the use of
the statement made before the police in a trial were plugged and the only
exception made was to enable the accused to use the statement of a
witness reduced into writing for a limited purpose, namely, in the manner
provided by Section 145 of the Indian Evidence Act, 1872, and the
prosecution only for explaining the matter referred to in his cross-
examination. The scope of the limited use also was clarified. Under the old
section the statement was permitted to be used to impeach the credit of a
witness in the manner provided by the Indian Evidence Act; under the said
Act, the credit of a witness could be impeached either under Section 145 or
under Section 155(3). While the former section enables a witness to be
cross-examined as to a previous statement made by him in writing without
such writing being shown to him, the latter section permits the discrediting
of the witness by proof of his previous statement by independent evidence.
If a statement in writing could be used to discredit a witness in the manner
provided by those two sections, the purpose of the legislature would be
defeated. Presumably in realisation of this unexpected consequence, the
legislature in the amendment made it clear that the said statement can only
be used to contradict a witness in the manner provided by Section 145 of
the Evidence Act. By Act 2 of 1945, the following sub-section (3) was added
to Section 161:
“The police officer may reduce into writing any statement made to
him in the course of an examination under this section, and if he does
so, he shall make a separate record of the statement of each such
person whose statement he records.”
………………………………………………………………………………………………………

……………………………………………………………………………………….”

19. Thus, the mandate of law, thus, has been succinctly put in Tahsildar Singh (supra) in the following words:

“16. The object of the main section as the history of its legislation shows and the decided cases indicate is to impose a general bar against the use of statement made before the police and the enacting clause in clear terms says that no statement made by any person to a police officer or any record thereof, or any part of such statement or record, be used for any purpose. The words are clear and unambiguous. The proviso engrafts an exception on the general prohibition and that is, the said statement in writing may be used to contradict a witness in the manner provided by Section 145 of the Evidence Act. ………………”
17. At the same time, it being the earliest record of the statement of a witness soon after the incident, any contradiction found therein would be of immense help to an accused to discredit the testimony of a witness making the statement. The section was, therefore, conceived in an attempt to find a happy via media, namely, while it enacts an absolute bar against the statement made before a police officer being used for any purpose whatsoever, it enables the accused to rely upon it for a limited purpose of contradicting a witness in the manner provided by Section 145 of the Evidence Act by drawing his attention to parts of the statement intended for contradiction. It cannot be used for corroboration of a prosecution or a defence witness or even a court witness. Nor can it be used for contradicting a defence or a court witness. Shortly stated, there is a general bar against its use subject to a limited exception in the interest of the accused, and the exception cannot obviously be used to cross the bar.”
(emphasis added)
20. The Hon‟ble Supreme Court further went on to explain the words “statement in writing” and “to contradict” found in the aforesaid section, by clarifying that statement cannot include which he has not stated. A statement, therefore, is only what had been expressly stated therein and also what is necessarily implied therefrom but not what is not specifically stated. As a corollary, there cannot be contradiction with what had not been stated in the previous statement under Section 161 CrPC with the deposition before the Court except for certain significant omission, as will be discussed below. This is clear from the observations made in para 18 of the aforesaid decision, which is reproduced hereinbelow:
“18. If the provisions of the section are construed in the aforesaid background, much of the difficulty raised disappears. Looking at the express words used in the section, two sets of words stand out prominently which afford the key to the intention of the legislature. They are: “statement in writing”, and “to contradict”. “Statement” in its dictionary meaning is the act of stating or reciting. Prima facie a statement cannot take in an omission. A statement cannot include that which is not stated. But very often to make a statement sensible or self-consistent, it becomes necessary to imply words which are not actually in the statement. Though something is not expressly stated, it is necessarily implied from what is directly or expressly stated. To illustrate: „A‟ made a statement previously that he saw „B‟ stabbing „C‟ to death; but before the court he deposed that he saw „B‟ and „D‟ stabbing „C‟ to death: the court can imply the word “only” after „B‟ in the statement before the police. Sometimes a positive statement may have a negative aspect and a negative one a positive aspect. Take an extreme example: if a witness states that a man is dark, it also means that he is not fair. Though the statement made describes positively the colour of a skin, it is implicit in that statement itself that it is not of any other colour. Further, there are occasions when we come across two statements made by the same person at different times and both of them cannot stand or co exist. There is an inherent repugnancy between the two and, therefore, if one is true, the other must be false. On one occasion a person says that when he entered the room, he saw „A‟ shooting „B‟ dead with a gun; on another occasion the same person says that when he entered the room he saw „C‟ stabbing „B‟ dead: both the statements obviously cannot stand together, for, if the first statement is true, the second is false and vice versa. The doctrine of recital by necessary implication, the concept of the negative or the positive aspect of the same recital, and the principle of inherent repugnancy, may in one sense rest on omissions, but, by construction, the said omissions must be deemed to be part of the statement in writing. Such omissions are not really omissions strictly so called and the statement must be deemed to contain them by implication. A statement, therefore, in our view, not only includes what is expressly stated therein, but also what is necessarily implied therefrom.
21. As to what amounts to “contradiction” has been explained in para 19 of the judgment which is reproduced herein below:
“19. “Contradict” according to the Oxford Dictionary means to affirm to the contrary. Section 145 of the Evidence Act indicates the manner in which contradiction is brought out. The cross-examining counsel shall put the part or parts of the statement which affirms the contrary to what is stated in evidence. This indicates that there is something in writing which can be set against another statement made in evidence. If the statement before the police officer – in the sense we have indicated — and the statement in the evidence before the court are so inconsistent or irreconcilable with each other that both of them cannot coexist, it may be said that one contradicts the other.”
In Para 20 it has been made very categorically clear that this contradiction is to be applied to the recorded statement and unrecorded statement is completely excluded in the following words, “20. It is broadly contended that a statement includes all omissions which are material and are such as a witness is expected to say in the normal course. This contention ignores the intention of the legislature expressed in Section 162 of the Code and the nature of the non-evidentiary value of such a statement, except for the limited purpose of contradiction. Unrecorded statement is completely excluded. But recorded one is used for a specified purpose. The record of a statement, however perfunctory, is assumed to give a sufficient guarantee to the correctness of the statement made, but if words not recorded are brought in by some fiction, the object of the section would be defeated. By that process, if a part of a statement is recorded, what was not stated could go in on the sly in the name of contradiction, whereas if the entire statement was not recorded, it would be excluded. By doing so, we would be circumventing the section by ignoring the only safeguard imposed by the legislature viz. that the statement should have been recorded.”
22. In what manner the contradiction has to be brought out has been explained in para 13 of the aforesaid judgment.

(i) First, the relevant portion of the previous statement which is apparently contradictory to the evidence must be shown to the witness by asking him whether he had made such a statement before the IO.

(ii) If the witness admits it, no further action is required as it would be an admission and the said statement stands proved and can be used to discredit his evidence.

(iii) However, if the witness denies having made it, the portion in the evidence must be brought to his notice so that he can explain the apparent contradiction.

(iv) Thereafter, the said portion of the previous statement must be proved by examining the investigating officer who again by referring to the previous statement has to testify that the witness had indeed made such a statement before him.

(v) By doing so that portion of the previous statement stands “duly proved”, in which case, this contradiction can be used against the witness.

23. This procedure to be followed for contradicting a witness under Section 145 of Evidence Act, was explained in Emperor v. Najibuddin2, as follows:

“16. In Labh Singh v. Emperor [AIR 1925 Lah 337 : 88 IC 513 : 26 Cr LJ 1153 : 6 Lah 24.] , a case of dacoity, the defence sought to discredit the evidence of certain prosecution witnesses by showing that during the investigation they had stated that a certain person was present at the dacoity although, as a matter of fact that person was, at the time, in custody. The method adopted was to ask the investigating officer whether the witnesses had named the person in question and then place on the record a copy of statements purporting to be the statements of those witnesses recorded by the officer. The officer did not depose that the statements of which copies were placed on the record were the statements which be recorded. It was held that as there is no presumption as to the genuineness of the statements of witnesses entered in the police diaries they cannot be used to contradict the evidence given in Court unless they are duly proved. The correct application of the law has been fully stated in Gopi Chand v. Emperor [AIR 1930 Lah 491 : 1930 Cr C 603 : 31 Cr LJ 1071 : 126 IC 573 : 11 Lah 460.] , as follows:
“The proper procedure would, therefore, be to-ask a witness whether he made such and such a statement before the police officer. If the witness-returns the answer in the affirmative, the previous statement in writing need not be proved, and the cross- examiner, may, if he so chooses, leave it to the party who called the witness to have the discrepancy, if any, explained in the course of reexamination. If, on the other hand, the witness denies having made the previous-statement attributed to him, or states that he does not remember having made any such statement, and it is desired to contradict him by the record of the previous statement, the cross-examiner must readout to the witness the relevant portion or portions of the record which are alleged to be contradictory to his statement in-Court and give him an opportunity to reconcile? the same if he can. It is only when the cross-examiner has done so that the record of the previous statement becomes admissible for the purpose of contradicting the witness and can, then be proved in any manner permitted by law.”
24. The Hon‟ble Supreme Court in Tahsildar Singh (supra) also explained the aforesaid procedure in paragraph no. 13 as follows;
“13. The learned counsel’s first argument is based upon the words “in the manner provided by Section 145 of the Indian Evidence Act, 1872” found in Section 162 of the Code of Criminal Procedure. Section 145 of the Evidence AIR 1933 Pat 589 Act, it is said, empowers the accused to put all relevant questions to a witness before his attention is called to those parts of the writing with a view to contradict him. In support of this contention reliance is placed upon the judgment of this Court in Shyam Singh v. State of Punjab [(1952) SCR 812]. Bose, J. describes the procedure to be followed to contradict a witness under Section 145 of the Evidence Act thus at p. 819:
Resort to Section 145 would only be necessary if the witness denies that he made the former statement. In that event, it would be necessary to prove that he did, and if the former statement was reduced to writing, then Section 145 requires that his attention must be drawn to these parts which are to be used for contradiction. But that position does not arise when the witness admits the former statement. In such a case all that is necessary is to look to the former statement of which no further proof is necessary because of the admission that it was made.”
It is unnecessary to refer to other cases wherein a similar procedure is suggested for putting questions under Section 145 of the Indian Evidence Act, for the said decision of this Court and similar decisions were not considering the procedure in a case where the statement in writing was intended to be used for contradiction under Section 162 of the Code of Criminal Procedure………….”
25. The above method of contradicting a witness has been again explained in V.K. Mishra v. State of Uttarakhand3, as follows:
19. Under Section 145 of the Evidence Act when it is intended to contradict the witness by his previous statement reduced into writing, the attention of such witness must be called to those parts of it which are to be used for the purpose of contradicting him, before the writing can be used. While recording the deposition of a witness, it becomes the duty of the trial court to ensure that the part of the police statement with which it is intended to contradict the witness is brought to the notice of the witness in his cross- examination. The attention of witness is drawn to that part and this must reflect in his cross-examination by reproducing it. If the witness admits the part intended to contradict him, it stands proved and there is no need to further proof of contradiction and it will be read while appreciating the evidence. If he denies having made that part of the statement, his attention must be drawn to that statement and must be mentioned in the deposition.
By this process the contradiction is merely brought on record, but it is yet to be proved. Thereafter when investigating officer is examined in the court, his attention should be drawn to the passage marked for the purpose of contradiction, it will then be proved in the deposition of the investigating (2015) 9 SCC 588 officer who again by referring to the police statement will depose about the witness having made that statement. The process again involves referring to the police statement and culling out that part with which the maker of the statement was intended to be contradicted. If the witness was not confronted with that part of the statement with which the defence wanted to contradict him, then the court cannot suo motu make use of statements to police not proved in compliance with Section 145 of the Evidence Act that is, by drawing attention to the parts intended for contradiction.”
26. In this regard, it may not be out of place to mention that there was a discussion in Tahsildar Singh (supra) as to whether any omission in a previous statement can amount to contradiction if the matter omitted was which the witness would have been expected to mention. However, this issue may not detain us any longer for the reason that the same has been clarified by the Explanation subsequently inserted in Section 162 CrPC, which provides that any omission to state a fact or circumstance in the statement referred to in sub-section (1) may amount to contradiction if the same appears to be significant and otherwise relevant having regard to the context in which such omission occurs and whether any omission amounts to a contradiction in the particular context shall be a question of fact.

27. The Hon‟ble Supreme Court, thereafter, summarised the position of law in Tahsildar Singh (supra) as follows:

“25. From the foregoing discussion the following propositions emerge: (1) A statement in writing made by a witness before a police officer in the course of investigation can be used only to contradict his statement in the witness box and for no other purpose; (2) statements not reduced to writing by the police officer cannot be used for contradiction; (3) though a particular statement is not expressly recorded, a statement that can be deemed to be part of that expressly recorded can be used for contradiction, not because it is an omission strictly so-called but because it is deemed to form part of the recorded statement; (4) such a fiction is permissible by construction only in the following three cases: (i) when a recital is necessarily implied from the recital or recitals found in the statement; illustration: in the recorded statement before the police the witness states that he saw A stabbing B at a particular point of time, but in the witness box he says that he saw A and C stabbing B at the same point of time; in the statement before the police the word “only” can be implied i.e. the witness saw A only stabbing B; (ii) a negative aspect of a positive recital in a statement: illustration in the recorded statement before the police the witness says that a dark man stabbed B, but in the witness box he says that a fair man stabbed B; the earlier statement must be deemed to contain the recital not only that the culprit was a dark complexioned man but also that he was not of fair complexion; and (iii) when the statement before the police and that before the court cannot stand together: illustration: the witness says in the recorded statement before the police that A after stabbing B ran away by a northern lane, but in the court he says that immediately after stabbing he ran away towards the southern lane; as he could not have run away immediately after the stabbing i.e. at the same point of time, towards the northern lane as well as towards the southern lane, if one statement is true, the other must necessarily be false.”
28. Having discussed that previous statement of the witness recorded under Section 161 CrPC can be used only for the purpose of contradiction in the manner discussed above, a related issue may be also kept in mind.

One of the grounds for assailing the conviction of the appellant is that there were impermissible improvements, embellishments and inconsistencies in the evidence of the main prosecution witnesses qua their previous statement, which would render their evidence unreliable.

In this regard one may note numerous decisions of the courts in which it has been held that where the material improvements and embellishments has been found, evidence of such witness becomes unreliable.

We are of the view that, improvements, embellishments and inconsistencies in the evidence of the witness may be a ground for impeachment of the credibility of the witness, and the legal basis for such consideration is to be found under proviso to sub-section (1) of Section 161 CrPC with reference to section 145 of the Indian Evidence Act as discussed above, and not with reference to any of the other provisions of the Indian Evidence Act. For, as discussed above, the previous statement can be used only for the purpose of contradiction within the meaning of Section 145 of the Indian Evidence Act and not with reference to any other provision of the Evidence Act.

Thus, if there be any case of material improvement or embellishment or inconsistency in the evidence of the witness, it has to be examined on the anvil of proviso to subsection (1) of Section 161 CrPC with reference to Section 145 of the Indian Evidence Act. In other words, such improvement or embellishment or inconsistency should in effect, amount to contradiction. The improvement or embellishment in evidence, has to be understood, as an omission in the previous statement within the meaning of Explanation to Section 162 CrPC.

Hence, any such improvement or embellishment or inconsistency, unless amounts to contradiction, cannot be pleaded to question the credibility of the witness.

29. In the light of the above legal position, we may examine the issues involved and submission advanced on behalf of the appellant as to whether the evidence of key prosecution witnesses cannot be relied upon, because of the contradictions and inconsistencies with their previous statements.

Contradictions and inconsistencies in the evidence of main prosecutions witnesses, PW1, PW2 and PW3, according to the appellant:

30. Ld. Counsel for the appellant submits that PW1, Smt. Jaymati Das in her deposition before the court stated that at the time of incident, Kushal Das was shouting “marile marile” which statement, PW1 never made before the Investigating Officer (IO) which was recorded under Section 161 CrPC. Further, PW1 also deposed that thereafter, they all came out of the house taking torches along, which assertion is also missing in her previous statement made before the IO. So is the deposition made in the court that a light was burning where the incident took place. This was not mentioned in her previous statement made before the IO. PW1 also deposed that her husband flashed the torch and then they saw the appellant striking the deceased with an axe, which was not mentioned in her previous statement under Sec.161 CrPC.

31. Ld. Counsel for the appellant also submits that PW1 during the cross examination stated that it was not a fact that she did not state before the IO that on hearing Kushal Das shouting “marile marile”, her husband and all of them came out taking a three cell torch along and that light was burning at the place where the incident took place. On the other hand, it has been proved by the IO that such statement was not made before him during the investigation. Accordingly, it has been submitted that this amounts to a vital contradiction. Drawing attention of this Court to the previous statement of PW1, learned counsel for the appellant submits that the version of the incident as recorded in her statement made under Section 161 CrPC cannot be reconciled with her deposition, which goes to the root of the matter. It has been also submitted that in the previous statement made to the I.O., PW1 had stated that the appellant hit the deceased on his head with an axe and other accused Ghanakanta Das and Sailyabala Das were present with a stick.

32. Ld. Counsel for the appellant further submits that during the cross examination, PW1 stated that it is not a fact that while giving statement before the police, she did not state that her husband flashed the torch and they saw the appellant giving blow to the deceased with an axe on the deceased and that the appellant came running with the axe and his mother, and elder brother were along with the appellant. Ld. Counsel for the appellant submits that it has been proved by the IO that the aforesaid statement was not made by the PW1 in her previous statement. This according to the Ld. Counsel is also a contradiction which goes to the root of the case.

33. It has been also submitted that PW1 stated during the cross examination that it was not a fact that she did not state before the police that after receiving the blow the deceased fell down on the ground and that they lifted him and poured water on him and the deceased sustained injury on his head and blood came out from the injury. On the other hand, it was stated before the police that she saw the accused Ghanakanta Das coming with a stick. Thus, many things were added while deposing before the court which amounts to vital contradiction.

34. It has been also submitted that PW1 stated during the cross examination that it is not a fact that she stated before the police that it was totally dark in the place of occurrence and towards the road, at the time of occurrence and she did not see anyone at the place of occurrence, which she stated in the statement before the I.O.

35. Referring to her deposition about Ext.1 relating to the seizure of the torch along with three batteries after 3/4 days of the incident from her residence, it has been submitted that in fact the torch was actually produced by the PW3 in the police station on 31/08/1997 after 2 (two) months and 27 days. The learned counsel for the appellant submits that it clearly shows that PW1 was lying. Further, the torch which was produced before the court did not have a battery, back cover which speaks volumes of the falsity of her statement.

36. Ld. Counsel for the appellant also submits that the fact that PW1 was lying is quite amplified by the fact that while she testified before the court that they did not have any dispute with the appellant over sowing of paddy seeds, though she specifically mentioned about it in her statement under Section 161 CrPC.

37. Coming to the evidence of PW2, learned counsel for the appellants submits that his evidence is also full of contradictions.

It has been submitted that there are inconsistencies regarding the statement of the PW2 made before the police with his deposition made before the court, as regards coming from the shop before the incident had happened. While PW 2 mentioned about certain misbehaviour with him and his elder brother by the appellant regarding plantation of rice, nothing was mentioned in his evidence before the court.

The Ld. counsel for the appellant also has pointed out to certain differences as to what happened after PW2 reached home before the incident. PW2 deposed before the court that he heard Kushal Das shouting “marile marile”, then he and his elder brother Jogeswar Das, PW3 came out of the house and he saw an axe in the hands of the appellant, a dao in the hands of Ghanakanta Das, a lamp in the hands of Sailyabala Devi and the stick in the hands of Bimola Das. However, what he stated before the police was that his deceased brother came home at 8 PM. After some time PW2 also came home and saw the appellant misbehaving with his brother by using filthy language and was holding his brother‟s hand. PW2 saw Sailyabala and Bimola Das near him. There were other persons but he could not see all of them properly. He then brought Satish Das to the house. When they reached near the house, about 30 yards from the road, Satish stopped. The accused Sailyabala Das came to the place following them with the lamp and she asked why they were quarrelling as they were brothers etc. and as PW2 was about to turn towards home, suddenly the appellant came rushing with an axe in his hand and dealt a heavy blow on the head of his brother. He then fell on the ground and the accused persons fled from there. According to learned counsel for the appellant, these facts clearly established vital contradictions as to the manner in which the occurrence took place. According to the Ld. Counsel this version given before the police was different from what he had stated before the court, thus there were two different versions at two different points of time. The differences in the said statement with the contents of the FIR were also emphasised.

According to learned counsel for the appellant, the activities attributed to Sailyabala Das just before the incident in his previous statement was never mentioned in his deposition.

38. Learned counsel for the appellant also has submitted that while PW2 deposed that he recognised the appellant in the light of electric bulb and flash of torch, he stated before the police that there was no electric light and that‟s why he did not see where the accused had fled. This, according to learned counsel is a vital contradiction. In his testimony, PW2 mentioned about the bulb in the house, though in the previous statement before the I.O. he stated that at the time of occurrence there was no electric light and that is why he could not see where the accused had fled.

We have also noted that these aspects have been put to the I.O. during his deposition and as such these could be taken into be consideration as contradictions.

While PW2 also mentioned of blood lying on the ground at the place of occurrence, he did not mention it before the IO. It is to be noted that PW2 mentioned about the blood during the cross examination when he was asked.

Learned counsel for the appellant also has drawn attention of this Court to differences in the statement with regard to taking of the injured to Barpeta Civil Hospital and thereafter to Guwahati.

Learned counsel for the appellant also pointed out to certain denials by the PW2 as regards the quarrel which took place relating to cultivation which he mentioned in the statement before I.O. but did not mention in his evidence before the court. The discrepancy about the existence of electric light at the time of occurrence was also highlighted.

39. In this regard, we have noted that in the evidence of PW 1 and PW 2, apart from the aspects of the use of torch and shouting of “marile marile”, many of the alleged contradictions do not appear to be significant and most of these were not “proved” in the manner as discussed above and as such improvements alleged are not taken into consideration.

40. Learned counsel for the appellant also has referred to discrepancies of the deposition of PW3 with the statement made before IO.

Before the court, PW3 testified that at the time of incident he was at home, though in his statement made before IO he stated that he was not present at home and he came to know later and he had no doubt that the accused persons (named in the FIR) were involved in the incident.

Learned counsel for the appellant also referred to the statement of the PW 3 recorded under Section 164 CrPC which was recorded on 16.09.1997 after more than two months and 15 days and as such it was an afterthought and unreliable. Furthermore, his statement in the court that he heard Kushal Das shouting “marile marile” is not mentioned in his statement under Section 164 CrPC. What the PW3 stated in his deposition that a 100 watt bulb was burning at the place of occurrence is also missing in his statement made under Section 161 CrPC as well as under Section164 CrPC. The incident about dispute relating to sowing of paddy seeds stated during the cross examination has not been mentioned in his statement under Section 164 CrPC. Learned Counsel for the appellant also pointed out various other discrepancies and differences in his deposition before the court and statement made before the IO and statement made under Section 164 CrPC, and accordingly, submitted that because of these discrepancies and contradictions in the evidence of PW3, his evidence cannot be relied upon.

41. Learned counsel for the appellant also has pointed out other discrepancies relating to the seizure of the articles and the weapon of crime. Ext.1 shows that seizure of the torch was made on 31.08.1997, which is after 57 days of the date of occurrence and it was seized in the police station. The axe which was alleged to have been used was seized on 06.07.1997 from the house of Smt. Sailyabala Das, though the IO stated that the axe was recovered from the place of occurrence.

42. Learned counsel for the appellant submits in the light of these discrepancies and contradictions, it can be said that the prosecution witnesses, PW1, PW2 and PW3 were lying.

As per their testimonies, PW1, PW2 and PW3 came out together on hearing the shout by Kushal Das and saw the occurrence, though PW3 was not even in the place of occurrence, which has been proved by the evidence of the IO.

According to learned counsel for the appellant, torchlight had been introduced subsequently during their evidence in the court, though there is no whisper of the use of torch by the PWs in their statement made before the IO or under Section 164 CrPC by the PW3. PW1 and PW2 in the previous statements made before the IO stated that there was no electric light and it was completely dark at the time of occurrence. In the sketch map prepared by the IO, presence of electric post or bulb at the place of occurrence has not been shown. The introduction of the alarm raised by Kushal Das, “marile marile” was an afterthought which was never mentioned by the witnesses before the IO. The presence of the PW1, PW2 and PW3 at the place of occurrence is doubtful in as much as the previous statement of PW1 did not support the presence of PW2 and PW3 in the place of occurrence. The witnesses deposed about the use of blunt side of the axe, but it was not mentioned in their previous statements which proves the innocence of the appellant, though PW3 mentioned in his Section 164 CrPC statement which was recorded after 2 months of the incident and was recorded to synchronize with the post-mortem report, thus, an afterthought.

43. As evident from the above, the case of the appellant is based on discrepancies, contradictions, improvements, and embellishments, which according to the appellant exist in the evidences of all these three prosecution witnesses, PW1, PW2 and PW3, which make their evidence unreliable.

44. An analysis of the various discrepancies in the deposition of PW1, PW2 and PW3 before the Court qua their previous statements recorded under Section 161 CrPC/Section 164 CrPC as pointed out by the Ld. Counsel for the appellant as discussed above, would reveal the following features.

Firstly, these witnesses had stated many things before the Court which they did not mention in their statements recorded under Section 161 CrPC. For example, all of them unequivocally deposed before the court that they heard Kushal Das shouting “marile marile”, and then they came out and saw the appellant and others assaulting the deceased. They saw the appellant specifically hitting the deceased on his head with an axe.

All of them also mentioned of the torch light by which they saw the appellant assaulting the deceased, but the use of torch was not mentioned by any of them in their previous statements recorded under Section 161 CrPC. There were also references to other co-accused who were armed with stick and carried gas lamp in their previous statement.

45. In the opinion of this Court also, these are omissions in their previous statements. The question which arises for consideration is whether these omissions amount to contradiction as to come within the ambit of Section 145 of the Evidence Act.

As discussed above, every omission may not amount to a contradiction. It will be so, under the Explanation to Section 162 CrPC, if it is significant and otherwise relevant.

Certainly, these are relevant omissions, as it is with the help of the light emanating from the torch that the witnesses could see the incident of assault of the deceased by the appellant.

To that extent it can be said that these omissions can be said to be contradictions. Yet, the Court has to examine the extent of the effect of this contradiction these omissions will have on the reliability of their testimony, for a mere contradiction cannot have the effect of wiping out the entire evidence of a witness and such contradictions must be significant. It can have the effect of casting doubt on the veracity of such evidence.

46. In this regard, one may refer to the decision in Sunil Kumar Sambhudayal Gupta (Dr.) v. State of Maharashtra4, wherein it was held that, “Material contradictions

30. While appreciating the evidence, the court has to take into consideration whether the contradictions/omissions had been of such magnitude that they may materially affect the trial. Minor contradictions, inconsistencies, embellishments or improvements on trivial matters without effecting the core of the prosecution case should not be made a ground to reject the evidence in its entirety. The trial court, after going through the entire evidence, must form an opinion about the credibility of the witnesses and the appellate court in normal course would not be justified in reviewing the same again without justifiable reasons.

(Vide State v. Saravanan [(2008) 17 SCC 587 : (2010) 4 SCC (Cri) 580 : AIR 2009 SC 152] .)

32. The discrepancies in the evidence of eyewitnesses, if found to be not minor in nature, may be a ground for disbelieving and discrediting their evidence. In such circumstances, witnesses may not inspire confidence and if their evidence is found to be in conflict and contradiction with other evidence or with the statement already recorded, in such a case it cannot be held that the prosecution proved its case beyond reasonable doubt. (Vide Mahendra Pratap Singh v. State of U.P. [(2009) 11 SCC 334 : (2009) 3 SCC (Cri) 1352] )

37. While deciding such a case, the court has to apply the aforesaid tests. Mere marginal variations in the statements cannot be dubbed as improvements as the same may be elaborations of the statement made by (2010) 13 SCC 657 the witness earlier. The omissions which amount to contradictions in material particulars i.e. go to the root of the case/materially affect the trial or core of the prosecution case, render the testimony of the witness liable to be discredited.

Thus, it can be seen that only such improvement, embellishment, inconsistency has been considered to be a significant omission amounting to contradiction, which would affect the credibility of the witness. As a corollary, such improvement, embellishment, inconsistency has to be demonstrated in the same manner a contradiction is to be proved.

In our view, without following the aforesaid procedure contemplated under Section 145 of the Evidence Act, merely alleging improvement, embellishment or inconsistency cannot be the basis for impeaching the credibility of a witness. Each and every such improvement has to be also shown to be contradictory in the manner mentioned under Section 145 of the Evidence Act.

47. In the present case, certainly, the PWs1, 2 and 3 did not mention the use of torch in their statement before the I.O. This aspect had been “proved” by the I.O. in his evidence. But, it is to be noted that these PWs were not seeing a stranger. They knew the appellant well. The accused and accusers were from the same village of Batikuria. Though the witnesses PW1 and PW2 did not mention about any quarrel between them prior to the incident in their deposition, it was specifically suggested to them in the cross examination that these PWs had falsely implicated the accused because of certain dispute over sowing of paddy seeds. PW3 of course, in his cross examination admitted that a dispute arose between the accused Ghanakanta (brother of the appellant) and the deceased Satish over the matter of sowing paddy seeds and his wife Joymati (PW1) heard about it and Tarani (PW2) was aware of that dispute. Thus, it was the specific case of the appellant that there was a dispute between these two families relating to sowing of paddy seeds, in which event, it is clearly evident that they knew one another. This would clearly indicate that there was familiarity amongst the PWs and the appellant and other accused. The PWs were not chance witnesses who happened to be at the place of occurrence at the time of the incident but were familiar witnesses. Since the incident happened near their house, presence of the witnesses at the place of occurrence is not unnatural. Further, in a village where people generally are familiar with one another, identifying another co-villager, with whom one is already familiar, will not be difficult, even if no sufficient light may not have been there, more so when seen from a close vicinity. Under the circumstances, since the incident happened in close vicinity of the house of the PWs, even a dim light can be sufficient for recognition of the assailant who was already familiar to the witnesses. Therefore, even if the use of the torch is considered doubtful as a case of material improvement in the evidence of the witnesses and hence a significant contradiction, in our opinion, it won‟t make much difference as far as the identification of the assailant is concerned.

Further, it was not stated by the PWs that it was only because of the torch light that they could see the appellant assaulting the deceased. Though it was a dark night, yet all the witnesses also testified that there was an electric post near the place of occurrence and an electric bulb was burning. PW1 during the cross examination deposed that “The night of the incident was dark one. There is an electric post beside the road at the place of occurrence and an electric bulb was burning there. We, the three witnessed the incident in the light of the bulb and in the flash of the torch which was in the hands of my husband. It would not be possible to see the incident in absence of light from these two sources”.

It was not the case that they could see the incident only because of the torch light. Thus, even if the use of torch light is to be disbelieved, it was not the case there was no other source of light. Otherwise also, the assault happened near the house of the complainant.

The place of occurrence was near the house of PW2 (the complainant), as also indicated in the sketch map of the place of occurrence (Ext.8). Though the presence of the electric bulb was not shown in the sketch map, in the opinion of this Court, it cannot be fatal.

PW2 also testified that he recognised the appellant in the light of the electric bulb and in the flash of the torch.

Thus, identifying the appellant as the assailant by the PW1 and PW2, being already familiar with the appellant in a near location to their home, cannot be considered to be unbelievable.

Yet, coming to the torch, certainly, it was an introduction in the deposition before the Court, which was not mentioned in their deposition. It is also true that the torch was seized after a long time on 31.08.1997 while the incident happened on 03.07.1997. Thus, there can be an element of doubt as to whether the torch light was used at all.

However, in the opinion of this Court, even if the use of torch is ruled out, and the evidence of PW3 discounted, of whose evidence, this Court is also doubtful, for the reasons hereinafter discussed, considering that the accusers and PWs1 and 2 knew the accused appellant and there was an electric lamp post with a functioning bulb and as the incident happened not in a remote location but near the house of the complainant, their witnessing the assault and identifying the appellant as the assailant cannot be said to be unbelievable and can be said to have been proved beyond reasonable doubt.

The doubt the appellant is seeking to introduce is that the PWs could not have seen the incident. Apart from focussing on the insufficiency of light to be able to see the incident, the defence has made no attempt to show that the PWs 1 and 2 could not have been near the place of occurrence at the time of occurrence or there was no alarm to attract attention of the PW1 and PW 2.

Though the “torch” was introduced as well as the shouting of “marile marile” by Kushal Das, during their testimony, yet it may be noted that these cannot be omission of great significance, as the PWs1 and 2 had stated before the I.O. that they saw the appellant striking the deceased. The fact of raising hue and cry is reflected in the FIR. Thus, these cannot be said to be also considered improvements. But every improvement is not fatal. After all, if the I.O. may not have subjected the witnesses to detail examination, these details may not find recorded in the statement under Section 161 CrPC. For improvement to be a contradiction within the meaning of Section 162 CrPC read with Explanation to be material, such improvement must be one which brings in a totally new version, which are not compatible with the version being put forth in the trial. However, these improvements do not bring in any new version which is contrary to the version put forth during the trial.

48. However, as far as the deposition of PW3 is concerned, his deposition does not inspire much confidence to be relied upon as an eye witness, though, it appears that he arrived at the scene soon thereafter, as he along with others took the injured person to the hospital. The PW3 had been contradicted in a very crucial aspect of the incident as regards his presence as an eye witness of the assault by the appellant, which had been properly brought out by the Defence, and as such not much reliance can be placed on his deposition as an eyewitness.

49. The PW3 in his statement made before the IO under Section 161 CrPC had stated that he was not at home around 8:30 pm when the appellant grievously injured his younger brother by striking a blow on his head with an axe. He had also stated that he came to know of the incident later only. This portion of the statement was put to PW3 during his cross examination, to contradict his evidence before the court that he was at home at the time of incident and came out of the house on hearing Kushal Das shouting “marile marile” and he carried a torch and saw the appellant dealing a blow with an axe on the back side of Satish Das by holding the axe with two hands. Though the PW3 denied having said anything to the contrary before the IO, the IO while examined as PW8 stated that PW3 stated before him that at that time at 8:30 pm when the appellant assaulted Satish Das, he was not present in his house, but later came to know that the accused persons named in the FIR are suspected to be in involved in the offence.

In our opinion, the PW3 had been successfully contradicted by the defence during the cross examination by proving the particular portion of his statement made under Section 161 CrPC though the evidence of PW3. Of course, this is not to suggest that what PW3 stated before the court was false and what he stated before the IO was correct for there is no evidentiary value of the statement made under Section 161 CrPC except for the purpose of contradiction as provided under Section 145 or under Section 27 of Evidence Act. What is to be noted is that the PW3 was contradicted in a very crucial aspect of the incident as to whether he was an eye witness or not, and hence, a reasonable doubt has been created in the mind of this Court also that, perhaps, he might not have been present at the time of occurrence, to witness the assault and as such his evidence of being an eye witness may not be reliable. This Court holds so inspite of his statement recorded under Section 164 CrPC. We have noted the contention of the Ld. Counsel for the appellant that such a statement was recorded after more than two months, on 16.09.1997, of the incident which occurred on 03.07.1997, thus it hardly inspires confidence.

50. Therefore, this Court also considers appropriate not to rely on the evidence of PW3 as an eyewitness. However, that does not necessarily discredit the evidence of PW1 and PW2 as their evidence, otherwise, apart from certain inconsistencies and embellishments have not been shaken. The inconsistencies and embellishments as pointed out by the Ld. Counsel for the appellants have not materially made any difference to the crucial aspect of the incident of they being eyewitnesses.

51. If we discount the evidence of PW3 and the use of torch light, can the evidence of PW1 and PW2 still be relied upon to hold that the appellant had struck the deceased on the head with an axe?

This Court on the basis of the evidence on record is of the view that the evidences of PW1 and PW2 independent of the testimony of the PW3 can sustain the charge that it was the appellant who struck the deceased on the head by an axe on the fateful night.

The reasons are as follows:

1. PW1 was at her residence and the incident occurred near the courtyard of the house. The place of occurrence was not at a remote location but very near the house of the witnesses and if the presence of the witnesses in their house is not doubted, their claim of witnessing the incident cannot be disbelieved.

2. PW1 testified that she witnessed the incident with the help of light from two sources. One from an electric bulb on an electric post beside the road at the place of occurrence. The place of occurrence was about 30 yards from the village road. Another source was the torch light. If torch light is discounted, still it will be possible to see the appellant, as the appellant was not a stranger but was known to the PWs. Mere absence of mentioning in the sketch map prepared by the IO of the said electric post or in the statement under Section 161 CrPC cannot be a reason for not believing the testimony of the PW1 of the existence of the electric post.

3. The appellant was from the same village and the witnesses and the appellant knew one another since prior to the incident. The sustained cross examination of all the PWs by the defence was that the appellant had been falsely implicated because of a dispute over sowing of paddy seeds. This clearly indicates the acknowledgment by the appellant of their prior relationship, though hostile. Therefore, it would not be difficult to identify the appellant even if the place of occurrence might not have been brightly lit without the use of the torch light on the strength of light for the electric bulb.

4. In a village scenario, identifying a familiar person cannot be unusual.

5. PW1 came to the scene immediately on hearing the shout by Kushal Das. Though Kushal Das had expired in the meantime and could not give evidence in the court, the sketch map indicates that he was standing very near the place of occurrence, which was proved by the IO.

6. PW1 had seen the appellant striking the deceased on his head with an axe.

7. Even if the shouting by Kushal Das of “marile marile”, was not mentioned in the previous statements of the PW1 and PW2, it is on record as mentioned in the FIR that on hearing hue and cry, all the people came out. Thus, shouting of “marile marile” by Kushal Das, even if considered to be a contradiction because of its omission in terms of Explanation to Section 162 CrPC, vis a vis the deposition if the PW1, it cannot be said to be of significant nature and disbelieved, as there was a hue and cry. What is important to examine is whether there was any alarm or hue and cry raised. If there was a hue and cry, shouting of “marile marile” by Kushal Das cannot be said to be impossible and a contradiction, but variation in the nature of the alarm. If there is a fight between two persons, shout of such nature is quite possible.

8. PW1 attended to the injured at the place of occurrence, this indicates that PW1 was very much at the place of occurrence in close proximity of time.

As regards PW2,

1. He was also at his house when the incident occurred.

2. He also came out there when he heard the shout, “marile marlie”. For same reasons mentioned above, this alarm cannot be said to be not believable.

3. He also witnessed the appellant striking the deceased with an axe on his head.

4. He also mentioned the presence of a lamp in the hand of Sailyabala Das, another accused.

5. The place of occurrence was by the side of his house which is L-shaped. He reiterated in the cross examination that the place of occurrence was in the close vicinity of their house.

6. He testified that he recognised the accused persons in the light of the electric bulb and in the flash of the torch. He clarified in the cross- examination that he also had a torch in his hand and he did not give the torch to the police nor the police seized it.

Thus, it is clear that the torch which was seized and exhibited before the court was the one which was claimed to have been used by PW3 and not the one used by PW2.

Thus, even by discounting the use of torch, the fact that the incident happened near their house would make it possible to witness the incident.

52. It may be apposite to note that merely because there have been certain discrepancies or improvements in the details of the narration, they cannot render the deposition of the witness unreliable. The maxim falsus in uno, falsus in omnibus has not received general acceptance in India nor has this maxim come to occupy the status of rule of law. The following observation of the Apex Court in Rizan v. State of Chhattisgarh5, in this regard is instructive,

12. ………. Even if a major portion of evidence is found to be deficient, in case residue is sufficient to prove guilt of an accused, notwithstanding acquittal of a number of other co-accused persons his conviction can be maintained. It is the duty of the court to separate the grain from the chaff. Where the chaff can be separated from the grain, it would be open to the court to convict an accused notwithstanding the fact that evidence has been found to be deficient to prove guilt of other accused persons. Falsity of a particular material witness or material particular would not ruin it from the beginning to end. The maxim falsus in uno falsus in omnibus has no application in India and the witnesses cannot be branded as liars. The maxim falsus in uno falsus in omnibus has not received general acceptance nor has this maxim come to occupy the status of a rule of law. It is merely a rule of caution. All that it amounts to, is that in such cases testimony may be disregarded, and not that it must be disregarded. The doctrine merely involves the question of weight of evidence which a court may apply in a given set of circumstances, but it is not what may be called “a mandatory rule of evidence”. (See Nisar Ali v. State of U.P. [AIR 1957 SC 366 : 1957 Cri LJ 550] )……………………………..The doctrine is a dangerous one, specially in India for if a whole body of the testimony were to be rejected, because a (2003) 2 SCC 661 witness was evidently speaking an untruth in some aspect, it is to be feared that administration of criminal justice would come to a deadstop. Witnesses just cannot help in giving embroidery to a story, however true in the main. Therefore, it has to be appraised in each case as to what extent the evidence is worthy of acceptance, and merely because in some respects the court considers the same to be insufficient for placing reliance on the testimony of a witness, it does not necessarily follow as a matter of law that it must be disregarded in all respects as well. The evidence has to be sifted with care. The aforesaid dictum is not a sound rule for the reason that one hardly comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggeration, embroideries or embellishment. (See Sohrab v. State of M.P. [(1972) 3 SCC 751 : 1972 SCC (Cri) 819] and UgarAhir v. State of Bihar [AIR 1965 SC 277 : (1965) 1 Cri LJ 256] .) An attempt has to be made to, as noted above, in terms of the felicitous metaphor, separate the grain from the chaff, truth from falsehood. Where it is not feasible to separate truth from falsehood, because the grain and the chaff are inextricably mixed up, and in the process of separation an absolutely new case has to be reconstructed by divorcing essential details presented by the prosecution completely from the context and the background against which they are made, the only available course to be made is to discard the evidence in toto. (See Zwinglee Ariel v. State of M.P. [AIR 1954 SC 15 : 1954 Cri LJ 230] and Balaka Singh v. State of Punjab [(1975) 4 SCC 511 : 1975 SCC (Cri) 601 : AIR 1975 SC 1962] .) As observed by this Court in State of Rajasthan v. Kalki [(1981) 2 SCC 752 : 1981 SCC (Cri) 593 : AIR 1981 SC 1390] normal discrepancies in evidence are those which are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence and those are always there, however honest and truthful a witness may be. Material discrepancies are those which are not normal, and not expected of a normal person. Courts have to label the category into which a discrepancy may be categorized. While normal discrepancies do not corrode the credibility of a party’s case, material discrepancies do so. These aspects were highlighted recently in Krishna Mochi v. State of Bihar [(2002) 6 SCC 81 : 2002 SCC (Cri) 1220 : JT (2002) 4 SC 186] and Gangadhar Behera v. State of Orissa [(2002) 8 SCC 381 : 2003 SCC (Cri) 32 : (2002) 7 Supreme 276] . Accusations have been clearly established against the accused-appellants in the case at hand. The courts below have categorically indicated the distinguishing features in evidence so far as the acquitted and convicted accused are concerned.”

53. A close scrutiny of the cross examination of witnesses, PW1 and PW2, reveals that the focus of the defence was on the issue of visibility, more particularly with reference to the alleged use of torchlight by which the PWs witnessed the incident as well as about the alleged discrepancies in the evidence before the court with the previous statement of the witnesses. However, except for the alleged use of torchlight and hearing of shouting by Kushal Das, “marile marile”, no contradiction of any significance has been brought to the notice of this court as far as the crucial fact about the witnessing of the appellant hitting the deceased on the head with an axe is concerned. As regards the alleged contradiction of shouting of “marile marlie”, we do not consider it to be a material contradiction.

54. Other contradictions which the Defence wanted to bring out were as regards the role imputed to other accused in the incident, of which we are not presently concerned with, as they have been acquitted, and about the motive for falsely implicating the appellant, which, in our opinion, does not dent the most critical part of the case, that is, of the appellant being seen by PW1 and PW2 assaulting the deceased. The presence of other co-accused has not been questioned by the appellant, though they had been acquitted from all of the charges.

55. Ld. counsel for the appellant has also pointed to several aspects of the case, which according to him would cast a doubt on the veracity of the prosecution case, as discussed below.

It has been contended that in the FIR, the complainant, PW2 implicated the appellant as well as Ghanakanta Das of hitting the deceased with iron rod but in substantive evidence he does not implicate Ghanakanta Das which, according to the appellant, is a vital contradiction with reference to the statement made under Section 161 CrPC. However, perusal of the FIR does not mention the use of dao. What was stated in the FIR was that after the accused no.1 (the appellant) had dealt the axe blow to him, the other accused started beating him on various parts of his body with iron rods they had in their hands. In the opinion of this Court, the variation from the FIR cannot be said to be substantially contradictory to the evidence. At best it can be said that the other accused have been falsely accused, which does not distract from the fact that the appellant had assaulted the deceased.

Learned counsel for the appellant also has submitted that it has not been clearly stated how the deceased was initially treated and subsequently taken to GNRC. This Court is of the view that inability of the prosecution to narrate the incident in a systematic manner from the time the deceased got injured till his hospitalization does not in any way affect the proof as regards the assault of the deceased by the appellant which has been proved by the evidence of PW1 and PW2.

Learned counsel for the appellant also has submitted that though the axe was seized on 06.07.1997 from the house of Smt. Sailyabala Devi as per Ext.6, the IO of the case PW8 stated that he seized from the place of occurrence, which clearly indicates that the story of the use of the aforesaid axe is a concocted one. As regards this submission, this discrepancy on the part of the IO as regards the place of seizure does not materially affect the case of the prosecution as the IO was giving evidence after about 19 years of the incident. The seizure of the axe was made on 06.09.1997 and the IO was giving his evidence on 09.12.2016. Thus, such kind of memory lapse can occur with such time lapse.

Learned counsel for the appellant has also submitted that though the witnesses had stated that the appellant had hit the deceased by the blunt side of the axe, no such mention was made while giving their statement under Section 161 CrPC. Further PW3 had mentioned about it in his statement recorded under Section 164 CrPC on 16.09.1997 after two months and 27 days by which time the contents of the post-mortem report became available to everyone and thus was fabricated to suit the contents of the post-mortem report.

Since this Court has already discounted the evidence of PW3 as an eye witness, it may not be necessary to dwell on this issue. As far as the evidences of PW1 and PW2 are concerned, these had been already discussed above. Merely because PW1 and PW2 did not specifically mention the use of the blunt side of axe to hit the deceased by the appellant, it does not render their evidence unreliable. It is not necessary that whenever an axe is used to assault somebody, the blunt side of the axe is seldom used. Even if the witnesses had improved upon the description of the assault, it does not make much difference as axe was used and it is possible to use the blunt side of it for striking.

Learned counsel for the appellant also submits that the weapon of crime was never sent for forensic examination. In the opinion of this Court failure of the investigating agency to get the weapon forensically examined does not vitiate the prosecution case. The fact that the injury was caused by a blunt weapon is on record and proved by the medical evidence. There is already the evidence of the eyewitnesses that an axe was used to assault the deceased.

It has been also submitted on behalf of the appellant that, since on the basis of the same set of evidence, the other accused has been acquitted, there is no reason why the appellant should not be given the same benefit of acquittal. As regards this submission, it is to be noted that while the other accused were also charged of assaulting the appellant, there were insufficient evidence of their act in terms of the medical evidence. On the other hand, the specific charge against the appellant was of using the axe to strike the deceased on his head, of which not only there is ocular but also medical evidence. Hence, the case of the appellant cannot be equated with those of the other accused who were acquitted. If the other accused have been given the benefit of doubt, it does not necessarily mean that the same benefit has to be given to the appellant also, in as much as, so far as the appellant is concerned there are sufficient credible evidences against him for sustaining the charge against him.

56. The next crucial question which thereafter arises to be answered is who had caused the head injury which led to the death of the deceased. This is the issue with which we are primarily concerned with in this appeal.

57. In a criminal case involving the offence of murder punishable under Section 302 IPC, what is required, first of all, is to prove that a death had occurred. In the present case, the death of Satish Das had occurred has been proved beyond any doubt. Thereafter, it has to be proved that it was homicidal in nature and not a natural death nor a suicide. There is sufficient medical evidence on record to show that the death was due to head injury, which was antemortem and caused by blunt weapon and homicidal in nature, as per the post-mortem report which was duly proved by PW7, who was the medical officer who conducted the post-mortem on the dead body of the deceased. Thus, as regards the death and the cause of death and that it was homicidal, there is no doubt about it.

The next question to be considered is who had caused such a fatal injury.

We have already come to this conclusion that it was the appellant who had caused the said injury leading to the death of Satish Das. Thus, we hold that the appellant was responsible for the homicidal death of Satish Das.

58. The issue now to be considered is whether the said homicide would amount to murder punishable under section 302 IPC or a homicide not amounting to murder which is punishable under section 304 IPC. In deciding this issue, we may take a cue from the decision in Vineet Kumar Chauhan v. State of U.P.6, where certain guidelines have been suggested as follows:

“16. The academic distinction between “murder” and “culpable homicide not amounting to murder” has been vividly brought out by this Court in State of A.P. v. Rayavarapu Punnayya [(1976) 4 SCC 382 : 1976 SCC (Cri) 659] . It has been observed that the safest way of approach to the interpretation and application of Sections 299 and 300 IPC is to keep in focus the key words used in various clauses of the said sections. Minutely comparing each of the clauses of Sections 299 and 300 IPC and drawing support from the decisions of this Court in Virsa Singh v. State of Punjab [AIR 1958 SC 465 : 1958 SCR 1495] and Rajwant Singh v. State of Kerala [AIR 1966 SC 1874 : 1966 Supp SCR 230] , speaking for the Court, R.S. Sarkaria, J. neatly brought out the points of distinction between the two offences, which have been time and again reiterated. Having done so, the Court said that whenever a court is confronted with the question whether the offence is “murder” or “culpable homicide not amounting to murder”, on the facts of a case, it will be convenient for it to approach the problem in three stages. The question to be considered at the first stage would be, whether the accused has done an act by doing which he has caused the death of another. Proof of such causal connection between the act of the accused and the death, leads to the second stage for considering whether that act of the accused amounts to “culpable homicide” as defined in Section 299. If the answer to this question is prima facie found in the affirmative, the stage for considering the operation of Section 300 IPC, is reached. This is the stage at which the court should determine whether the (2007) 14 SCC 660 facts proved by the prosecution bring the case within the ambit of any of the four clauses of the definition of “murder” contained in Section 300. If the answer to this question is in the negative the offence would be “culpable homicide not amounting to murder”, punishable under the first or the second part of Section 304, depending, respectively, on whether the second or the third clause of Section 299 is applicable. If this question is found in the positive, but the case comes within any of the exceptions enumerated in Section 300, the offence would still be “culpable homicide not amounting to murder”, punishable under the first part of Section 304 IPC. It was, however, clarified that these were only broad guidelines to facilitate the task of the court and not cast-iron imperative.”
59. Following the aforesaid guidelines, in the context of the present case,

(i) the first question to be considered is whether the appellant has done an act by doing which he has caused the death of another. The answer to the said question is in the positive as discussed above.

(ii) the second question is whether on the facts proved by the prosecution, does the case come within the ambit of any of the four clauses of the definition of “murder” contained in Section 300. a. Coming to the first clause, whether the death was caused with the intention of causing death, from the evidence on record, it cannot be said with certainty that the appellant had caused the death with the intention of causing death. The intention of the appellant has not come out clearly on records. Thus, it does not come within this first clause.

b. Coming to the second clause, whether it was done with the intention of causing such bodily injury as the offender knows likely to cause death, it is not possible to arrive at such a conclusion that the appellant had intentionally wanted to cause such injury on the body of the deceased, and as such, it does not come within the second clause.

c. As regards the third clause, it is not necessary to prove the intention to cause death, as explained under illustration (c) to Section 300 IPC, but there must be intention to cause such injury which in ordinary course would be sufficient to cause death. However, this intention to cause this bodily injury on his head has not come out very clearly on record, though the fact of striking the deceased on the head was witnessed. Thus, by giving benefit of doubt, it can be said that the case of the appellant is not covered by the third clause.

d. The fourth clause provides that if the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause the death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of death or such injury, it amounts to murder.

The incident happened in the evening. The PW 1 and PW 2 according to their deposition came out after hearing the alarm raised by Kaushal Das and they came out of their house. It is not the case that they were present at the place of occurrence beforehand before witnessing the assault. What transpired just before the assault has not come out very clearly in the evidence. If the appellant had really intended to cause the death of the deceased or cause such serious injury on the head which would in normal course would lead to death, he could have accomplished by hitting with the sharp edge of the axe and by the blunt side. The fact also remains that using the blunt side of the axe to hit on the head of a person will in all likelihood cause the death of the person. But, the doubt still remains, in absence of clear evidence whether the appellant really intended to hit the deceased on the head by the axe. There is a lurking doubt that the appellant really intended to hit him on the head of the deceased. It is also possible that he might not have intended to hit him on the head and he might have intended to hit him on other parts of the body, but ultimately the weapon landed wrongly on his head. Even though the PW 1 and PW 2 witnessed the assault by the appellant on the deceased, they were not present at the place of occurrence with the deceased. They did not witness what transpired immediately before the assault which would have clearly indicated the intention or the motive of the appellant, in using the axe to strike the deceased. The immediate surrounding circumstances, if properly brought out on record, could have given a clue to the real motive or intention of the appellant as to whether he knowingly hit the deceased on the head. But it is not clear from the record. Thus, in absence of clinching and credible evidence that the appellant really intended to hit the deceased on the head which ultimately caused his death and since the incident happened not in a broad day light, this Court is inclined to give the benefit of doubt to hold that the present case is also not covered by fourth clause of Section 300 IPC to make the appellant guilty of murder punishable under Section 302 IPC.

60. This takes us to next issue as indicated in the decision of the Apex Court in Vineet Kumar Chouhan (supra) that if the case of the prosecution cannot be brought within the ambit of any of the four clauses under Section 300 IPC, it would be a case of “culpable homicide not amounting to murder” punishable under the first or second part of Section 304 IPC, depending upon whether the second or the third clause of Section 299 IPC is applicable.

In the present case, on the basis of the evidence on record it can be said the third part of Section 299 IPC will be applicable. Even though any intention to cause death or intention to cause such injury was not established, it can be said that the appellant had at least the knowledge that by committing such an act it was likely to cause death. He was using an axe to hit another person and it certainly can be said that he knew that use of the axe could lead to cause injury which could also cause death, which unfortunately happened.

Accordingly, we hold that the appellant is guilty of committing culpable homicide not amounting to murder and is convicted under second part of Section 304 IPC.

61. Before concluding, this Court would like to deal with the following case laws relied upon by the appellant.

i. Shri Sat Kumar Vs. State of Haryana7, wherein it was held that believing the prosecution case for one accused and not believing for the other accused is wrong.

It may be noted that in the present case, only the appellant has been accused of assaulting the deceased with an axe. The other accused were not charged with the same offence. They were accused of being complicit with the appellant of which the trial court did not find enough evidence to convict them. What the trial court observed was that mere presence of the members of the family with the main accused will not be a ground to implicate without proper evidence of their involvement with the offence. The trial court also held that it cannot be said that the other members of the family took part in the offence with the common intention to kill Satish Das. Perusal of the evidence on record would also show that the evidence against other members of the appellant are sketchy and the prosecution witnesses were more focussed on the role of the appellant. The evidence against others are not sufficient to sustain the charge against them. Thus, this decision does not help the appellant.

ii. Shaik Nabab Babu Musalman and Ors. Vs. State of Maharashtra8, on the basis of which it has been submitted that not attributing specific overt act to some of the accused makes it likelihood of false implication.

(1974) 3 SCC 643 AIR 1993 SC 169/1993 Supp(2) SCC 217 In our opinion, this decision will be not much of assistance to the appellant, as the PWs1 and 2 had been consistent as far as their allegation against the appellant is concerned. Merely, because their evidence is not clear about the role of other accused, who were acquitted, does not make much difference as far as the evidence against appellant is concerned where there is sufficient evidence to convict him under Section 304 IPC.

iii. Harchand Singh and Anr. Vs. State of Haryana9, has been pressed into service to contend that when one witness contradicts the other, their evidence should not be relied upon. As discussed above, there is no material contradiction amongst the witnesses as far as the two prime witnesses, PW1 and PW2 are concerned as regards the crucial factum of witnessing the appellant hitting the deceased.

iv. Bandi Mallaiah and Ors. Vs. State of Andhra Pradesh10, relying on this decision, it has been submitted that material part of the evidence is not part of the previous statement recorded under Section 161 Cr.P.C. and as such it is a doubtful case.

As discussed above, the contents of the statement recorded under Section 161 CrPC is not admissible except for the purpose mentioned under Section 162 CrPC. Hence, other than use for contradiction, which has been discussed above, the statement recorded under Section 161 CrPC cannot be used for any purpose including any omission, unless covered by Explanation provided in Section 162 CrPC. These omissions have been already discussed to be of not much significance except of the use of torch to witness the incident.

AIR 1974 SC 344/(1974) 3SCC 397 AIR 1980 SC1160/(1980) 3 SCC 136 v. Ram Charan and Ors. Vs. State of U.P.11, wherein it was held that statement of witnesses recorded under Section 164 CrPC should be looked into with caution. In the present case, this Court has considered PW 3, whose statement was recorded under Section 164 CrPC, to be an unreliable witness and the evidences of PW 1 and PW 2 independently were sufficient to uphold the charge against the appellant.

vi. Shahid Khan Vs. State of Rajasthan12, relying on this decision, it was submitted that no explanation has been given for recording of the eyewitness account after 3 days of the filing of the FIR.

In the present case, it may be noted that though the incident happened on 03.07.1997, the injured was undergoing treatment and the death occurred only on 07.07.1997. From the evidence, it has been revealed that the main witnesses were occupied with the medical treatment of the injured and as such recording of evidence after three days cannot under the circumstances of the case be considered fatal.

vii. D. Thamodaran Vs. Kandasamy and Anr.13, in which it was held that where there are material discrepancies and no independent witness was examined, it would be fatal to the prosecution case.

In the present case, there were no material discrepancies amongst the main prosecution witnesses. Hence, non-examination of independent witnesses would not be fatal.

viii. Bhola Singh Vs. State of Punjab14, relying on this decision, it was submitted that eyewitness version that the assailant used blunt side AIR 1968 SC 1270:1968 Cri LJ 1473 (2016) 4 SCC 96.

(2015) 16 SCC 758 (1999) 9 SCC 50 weapon was set out only to fit in what has been found in Post Mortem Report.

In the present case, it was not introduction of any new weapon to suit the findings of the post mortem report. The use of axe was already mentioned in the FIR, in the statements recorded under Section 161 CrPC as emerged during the cross examination and also in their evidence. Hence there was no inconsistency or contradiction. Since there was no specific mention of the use of the sharp edge of blade of the axe in any previous statement, the evidence that the appellant struck the deceased with the blunt side of the axe does not make any material difference or contradiction so as to render the evidence untrustworthy.

ix. Gentela Vijayavardhan Rao and Anr. Vs. State of A.P.15, this case law has been relied upon to discredit the evidence of PW 6. In our view, it may not be necessary even to refer to the evidence of PW 6 who was not an eye witness. His evidence can be considered only for the purpose of ascertaining whether the deceased was taken to the hospital for treatment and other subsequent events. His evidence is not relevant as far as the most crucial part of the prosecution case is concerned, that is, the assault of the deceased by the appellant on the head by an axe, of which the evidences of PW1 and PW2 are on record to support the case of the prosecution.

x. Prabhat alias Bhai Narayan Wagh and Ors. Vs. State of Maharashtra16, this is a decision dealing with contradictions. The issues relating to contradictions have been already discussed extensively as above.

(1996) 6SCC241 2013 (10) SCC 391 xi. Sujit Biswas Vs. State of Assam17, wherein, it was held that the act of absconding is not a ground to convict. In the present case, it was not the sole ground but considered by the trial court in conjunction with the other evidences on record. The evidences of PW 1 and PW2 with other medical evidences were the basis for conviction of the appellant and the act of absconding was merely referred by the Trial Court to show his intention to evade the law. Even if this aspect is ignored, the prosecution case does not get weakened.

62. For the reasons discussed above, this Court sets aside the conviction of the appellant under Section 302 IPC and consequently, the imposition of sentence of imprisonment of life and fine of Rs.1,000/- (Rupees one thousand) only by court of learned Additional Sessions Judge, Barpeta in Sessions Case No.31/2009 is also set aside and instead, this Court convicts the appellant under Section 304 IPC and considering the facts and circumstances of the case, this Court sentences him to undergo 5 (five) years of rigorous imprisonment with a fine of Rs.10,000/- (Rupees ten thousand).

63. Resultantly, the appellant has to undergo 5 (five) years of rigorous imprisonment with a fine of Rs.10,000/-, and on failure to pay the fine, the appellant shall undergo sentence for another six months of simple imprisonment. The period of imprisonment already undergone including during the trial will be set off against the aforesaid prison term.

The appeal is, accordingly, partly allowed.

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