Statement Recorded U/S 161 CrPC Only For Confrontation In Cross Examination, Cannot Replace Evidence: Gujarat HC Upholds Murder Acquittal

"Such evidence is only for confrontation in the cross examination. Statement of witnesses recorded under section 161 of the Code of Criminal Procedure being wholly inadmissible in evidence and cannot be taken into account. As per the settled proposition of law, statement recorded under section 161 of the Code of Criminal Procedure can be used only to prove the contradictions and/or omissions."

Aside from these observations, the Bench found that the deceased had died an unnatural death which could have been a homicidal death but the Prosecution had not been able establish their case basis cogent and convincing evidence. There was no eyewitness and no one had seen the deceased with the Accused.

The Appellant/Complainant had filed the instant appeal under Section 378 of CrPC challenging the acquittal of the Accused for beating his brother to death. The Appellant averred that though the Accused persons' sister had turned hostile but in her statement before the IO, she had narrated the entire sequence of events against the Accused persons. The postmortem also established that death was caused due to head injuries. The State had not challenged the acquittal.

The High Court reiterated the narrow scope of jurisdiction in criminal appeals. Subsequently, the Bench opined that all witnesses presented by the Prosecution were 'hearsay' witnesses which could not be admitted. There was also conjecture by one of the witness that her brother-in-law was having an affair with the sister of the Accused and hence, the son-in-law (deceased) was killed by the Accused. Again, this amounted to hearsay evidence per the Bench.

As regards the statement of the sister of the Accused, it could not be admitted since the statement recorded by the IO cannot take the place of evidence. Merely basis such a statement, the entire chain of circumstance could not be proved. The Bench admitted that there were blood stains at the place of incident, the Prosecution had collected the mud with blood, slippers with blood stains and the stick with blood stains. However, these could not point the finger to the Accused for the commission of the offence. Even the Panch Witness had turned hostile.

Thus, emphasizing the limited scope of appeal, the High Court upheld the acquittal of the Accused.

Case No.: R/CR.A/632/2022

Case Title: DAJABHAI S/O LUMBABHAI v/s MANCHARAM DWARKADAS SADHU

Citation: 2022 LiveLaw (Guj) 352

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