Penal Code, 1860 – s. 302 r/w s. 149 – Murder – All the accused including the appellants came to be tried by the Trial Court for the offences u/s. 302 r/w. s. 149 of the IPC for having killed son of the informant-PW-8 – The Trial Court convicted appellantsoriginal accused nos. 2 to 5 for the offences punishable u/s. 302 r/w. s. 149 of the IPC – The High court confirmed the conviction of the appellants – Before the Supreme Court, the appellants contended that the High Court has not properly appreciated the fact that so far as the evidence/ deposition of PW-8 is concerned, it is full of material contradiction and improvements – Held: PW-8 stated in her statement recorded u/s. 161 Cr. P.C. that he had seen all the accused in the light of the torch – she stated that the accused no. 1 was having axe and other four accused were armed with lathis – She also stated that accused no. 1 gave the axe blow on the neck of the deceased due to the enmity and earlier dispute and other accused were telling to run immediately – However, in her deposition, PW-8 stated that two accused persons caught hold of deceased – She stated 5in her deposition that there was chimney light in the cattle shed and accused ran away from the nearby agricultural field of sugarcane – Therefore, the deposition of PW-8 is full of material contradictions and improvements so far as original accused nos. 2 to 5 are concerned – No other independent witness, even named by PW-8 supported the case of prosecution – In her deposition, she has not stated anything that the appellants were having lathis – As per the settled proposition of law, the statement recorded u/s 161 Cr. P.C. can be used only to prove the contradictions and/or omissions – Further, according to PW-8, she identified the accused in the light of the torch, however, there is no recovery of torch – In the facts and circumstances of the case, there are material contradictions, omissions and/or improvements so far as the appellants are concerned – Therefore, the benefit of material contradictions, omissions and improvements must go in favour of the appellants – The conviction of the appellants u/s. 302 r/w. s. 149 of the IPC set aside.
Allowing the appeal, the Court
HELD:1. It is required to be noted that it was a black night (Amavasya) at the time of incident. It was a dark night as the incident has happened between 4-5 a.m. PW8 in her statement recorded under Section 161 Cr.P.C. has stated that she has seen all the accused in the light of the torch. She has stated that original accused no.1 was having an axe and other four were armed with lathis. She had also stated in her statement under Section 161 Cr.P.C. that original accused no.1 gave the axe blow on the neck of the deceased due to the enmity and earlier dispute and other accused were telling to run away immediately and thereafter all the five accused ran away from behind the cattle shed/house. She stated that she had identified all the accused in the light of the torch and also by voice. According to her after she shouted, other persons came. However, there is material improvement in her deposition before the Court. In her deposition, she has stated that the two accused caught hold of deceased. In her deposition, she has also stated that there was a chimney light in the cattle shed. She has also stated in her deposition that the accused ran away from the nearby agricultural field of sugarcane. Therefore, the deposition of PW8 is full of material contradictions and improvements so far as original accused Nos. 2 to 5 is concerned. It is required to be noted that no other independent witness even named by PW8 has supported the case of the prosecution. Though, according to PW8, she identified the accused in the light of the torch, there is no recovery of torch. There is material improvement so far as the chimney light is concerned. In her deposition, she has not stated anything that the appellants – original accused nos. 2 to 5 were having the lathis, though she has stated this in her statement under Section 161 Cr.P.C. The High Court has observed relying upon her statement recorded under Section 161 Cr.P.C. that the appellants herein – accused nos. 2 to 5 were having lathis. However, as per the settled preposition of law a statement recorded under Section 161 Cr.P.C. is inadmissible in evidence and cannot be relied upon or used to convict the accused. As per the settled proposition of law, the statement recorded under Section 161 Cr.P.C. can be used only to prove the contradictions and/or omissions. Therefore, as such, the High Court has erred in relying upon the statement of PW8 recorded under Section 161 Cr.P.C. while observing that the appellants were having the lathis. [Para 14.1][972 F-H; 973 A-F]
2. As observed hereinabove in her statement under Section
161 Cr.P.C., she has never stated that the two accused caught hold of the deceased, but stated that the appellants herein told to run away as other persons have woken. In the facts and circumstances of the case, there are material contradictions, omissions and/or improvements so far as the appellants herein – original accused nos. 2 to 5 are concerned and therefore this Court is of the opinion that it is not safe to convict the appellants on the evidence of the sole witness of PW-8. The benefit of material contradictions, omissions and improvements must go in favour of the appellants herein. Therefore, as such the appellants are entitled to be given benefit of doubt.[Para 142][973 F-H] Now, so far as the submission on behalf of the State that relying upon the deposition of PW8, the original accused no.1 was convicted and his conviction has been confirmed upto this Court and therefore to dismiss the present appeal qua other accused is concerned from the evidence on record and having observed hereinabove the case of the appellants – original accused nos. 2 to 5, is distinguishable on facts. There are material contradictions and omissions so far as the appellants – original accused nos. 2 to 5 are concerned. So far as the original accused no 1 is concerned, PW8 is consistent in her statement under Section 161 Cr.P.C. as well as in her deposition before the Court. There was a recovery of axe used in commission of the offence by accused no.1 at the instance of accused no.1. Under the circumstances, the case of the original accused nos. 2 to 5 is clearly distinguishable to that of original accused no.1. [Para 14.3][974 A-D]
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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