Statement Of Witness Recorded U/S 161 CrPC Is Only For Confrontation In Cross-Examination, Does Not Fall Within Ambit Of Evidence: Allahabad HC

The remarks were made by Justice Om Prakash Tripathi and Justice Manoj Kumar Gupta while dealing with a criminal appeal filed by the appellants against the order of conviction passed by Special Judge, Bulandshahr and sentencing the appellants to undergo life imprisonment under Section 302/34 of IPC with a fine of Rs.10,000/- each.

The Bench noted that in reaching the conclusion of guilt, the trial Court had relied on the statement of a witness recorded under Section 161 CrPC, with the help of Section 33 of Indian Evidence Act. It disagreed with this course of action.

Also Read: Statement U/s 161 CrPC Inadmissible In Evidence And Cannot Be Relied Upon For Conviction: SC

Case Background

The father of the informant was found to be shot in the intervening night. The complainant rushed along with his father to the hospital but he succumbed to death in the way. After the investigation, a chargesheet was filed against the appellants u/s Section 302 IPC, and cognizance of offence was taken by the Court concerned. Later, the charge under Section 302/34 IPC and section 2/3 of Uttar Pradesh Gangsters and Anti Social Activities (Prevention) Act, 1986 was framed against the appellants by the Special Judge and the appellant convicted.

In appeal, the accused stated in his statements recorded under section 313 CrPC that they have been falsely implicated due to an old enmity and hence have been falsely roped in the present matter.

Among other assertions, the prosecution relied on the Section 161 statement of witness Mohd. Pravez, who claimed to have seen the accused persons going in fast paces after the alleged incident and carrying country made pistol.

Findings

At the outset, the court noted that opportunity to cross-examine the chance witness Parvez was not given to the accused.

Further, it noted that his statement was relied upon with the aid of Section 33 of the Evidence Act, which provides that evidence given by a witness in a judicial proceeding is relevant for the purpose of proving, in a subsequent judicial proceeding, or in a later stage of the same judicial proceeding, the truth of the facts which it states, when the witness is dead or cannot be found, etc.

In the instant case, the Court noted that there were not two proceedings between same the parties and no question that issues were substantially the same in the first as in the second proceeding.

"Witness Parvez is not an injured persons or a complainant, so his statement has no relevance in the present facts and circumstances of the case. The incident took place in the season of winter at about 3:00 to 4:00 am and for what purpose, chance witness Parvez was going at the house of Master Niaz Mohd, is not disclosed by this witness in the statement recorded under Section 161 Cr.P.C.. To prove this fact, Master Niaz Mohd. should have been examined but he has not been examined. Thus, the statement of Parvez recorded under Section 161 Cr.P.C. is not relevant or admissible under Section 33 of Indian Evidence Act," the Court held.

It further opined that there is no direct ocular evidence regarding the involvement of the accused-appellants in the crime and this prosecution case is on the basis of circumstantial evidence.

The court placed reliance on the judgement of the Apex Court namely Sharad Birdhi Chand Sarda vs. State of Maharashtra, where five principles were laid factors that have to be taken into account in the adjudication of cases on circumstantial evidence:

"(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established,

(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty,

(3) the circumstances should be of a conclusive nature and tendency,

(4) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused."

In the facts of the instant case, it noted that the prosecution has failed to meet any of the above. Thus, it was of the opinion that the appellants must be given the benefit of doubt. It held,

"The chain of circumstantial evidence is not complete and do not lead to the conclusion that in all human probability, the murder must have been committed by the appellants only. Thus, prosecution has failed to prove its case beyond all reasonable doubts that accused Afzal @ Guddu and Iqbal had committed the murder of Shafaqat Ali at the time, place and in the manner as alleged by the prosecution. It would indeed be unsafe to convict the appellants based on the testimony of circumstantial evidence."

Hence, the court allowed the appeal filed by the appellants and ordered their acquittal.

Case Title : Mohd. Afzal @Guddu and Anr. v. State of U.P.

Citation: 2022 LiveLaw (AB) 78

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