"No Substantial Evidence Found": Orissa High Court Acquits Alleged Associates Of Gangster Sk. Hyder In Chuna Murder Case

While passing order of acquittal in favour of alleged associates of gangster Sk. Hyder (since dead), the Division Bench of Chief Justice Dr. S. Muralidhar and Justice B.P. Routray observed,

"…it is clear that 164 statement of the witness is not substantive evidence of facts and the same cannot be used so. The earlier statement recorded under Section 164 Cr.P.C. can only be used for corroboration or contradiction. If the witness while giving evidence in Court sticks to his earlier statement recorded under Section 164 Cr.P.C, such statement can be acted upon subject to rule of caution. But when the witness resiles from his earlier statement, procedure is that he should be cross-examined and his statement made earlier as recorded under Section 164 Cr.P.C. should be confronted to him in extenso. The prosecution can place reliance on such statement only for the purpose of corroboration and that too, subject to rule of caution and if there are other sufficient evidence before the Court."

Background:

The six Appellants in the appeals were convicted under Section 302/34 of the IPC in the same trial. Additionally, four of them had been convicted under Section 27 of the Arms Act. They were sentenced to undergo rigorous imprisonment ("R.I.") for life for the offence under Section 302 of the IPC and R.I. for a period of seven years under Section 27 of the Arms Act.

The deceased namely Chuna @Mallik Hanan was allegedly killed by Sk Hyder and his associates on 31st May, 2005, by gunshot firing near Stewart School, Bhubaneswar due to group rivalry relating to tender fixing. A FIR was registered, inquest was held over the dead body and some materials were seized.

Subsequently, Sk. Hyder and others were arrested from Nagpur (Maharashtra) on 6th June, 2005 and were brought to Bhubaneswar. Investigation was later taken over by the C.I.D.C.B., Cuttack. The charge-sheet was submitted for the offences stated above along with offence under Section 120-B of the IPC.

Prosecution examined 48 witnesses in course of the trial and exhibited 34 documents as well as 8 material objects. Among those witnesses, some were projected as eyewitnesses. But all such witnesses turned hostile and did not support the prosecution case. Similarly, the seizure witnesses also turned hostile and denied their knowledge about the case as well as the seizures. Even the wife, sisters, brother and brother in-law of the deceased had all turned hostile.

It was contended on behalf of the Appellants that in absence of any substantial evidence with regard to direct eye witnessing of the occurrence or any circumstance connected thereto, the trial judge has erroneously convicted the Appellants based on the statements of four witnesses recorded under Section 164 Cr.P.C. 

Findings of the Court:

The Court reiterated that statement made under Section 164 of the Cr.P.C. is not substantive evidence. It can be used to corroborate or contradict the statement of a witness. However, the evidence by a witness cannot be discarded for the mere reason that his statement was recorded under Section 164. It is always open to the Court to accept the evidence of a witness whose statement was earlier recorded under Section 164, but the salient rule of caution must always be borne in mind. For such observation, the Court relied on the judgments of the Apex Court in Balak Ram v. State of U.P., AIR 1974 SC 2165 and Ram Charan v. State of U.P., AIR 1968 SC 1270.

It also cited R. Shaji v. State of Kerala, (2013) 14 SCC 266, where it was held,

"During the investigation, the police officer may sometimes feel that it is expedient to record the statement of a witness under Section 164 CrPC. This usually happens when the witnesses to a crime are clearly connected to the accused, or where the accused is very influential, owing to which the witnesses may be influenced."

It further held that though the statement under Section 164 Cr.P.C. is recorded before a Judicial Magistrate on oath, but the witness is not cross-examined there. When the statement of a witness is not tested through cross-examination, truthfulness of his statement is not ascertained. It is the test of knowledge of the witness what he testifies. This is a major difference between the statement of a witness made under Section 164 Cr.P.C. and his deposition recorded by the Court under Section 137 of the Indian Evidence Act and the provisions contained in Chapter XXIII of the Cr.P.C.

Then, the Court observed that when the aforesaid witnesses resiled from their Section 164 statements during trial, none of them were confronted with their previous statements nor any suggestion was given to them by the prosecutor if they were subject to any threat by any of the accused persons. No other material was also produced in evidence to suggest any threat or pressure used by the accused persons on the witnesses. Therefore, the observation of the learned Judge to presume any threat to life and property on any of the witness compelling to resile them from their earlier statement is seen unfounded. Such a presumption canvassed by the trial court is without merit and without material. Again, it held,

"It needs to be mentioned here that no fire-arm was produced before the trial court and none of the independent witnesses have stated about seizure of the same. The circumstances of the seizure of the fire arm have not been explained by the investigating officer. The bullets recovered from the dead body are not substantially connected to the Appellants nor recovery of the fire-arms and their use to commit the offence are substantially established by the prosecution. None of the witnesses have stated about anything to connect the possession of any firearm by any of the Appellants. The presence of the Appellants in the Bolero vehicle at the spot or even presence of the vehicle during the occurrence cannot, at any stretch, be inferred from the evidence of P.W.26. In other words, the circumstances discussed by the learned trial court as residual materials to connect the Appellants to the alleged crime are found unsatisfactory."

Consequently, the Court concluded that as there is no substantial evidence against the Appellants, the question of corroboration through Section 164 statements does not arise at all. Thus, in absence of substantial evidence and keeping in view the nature of evidences in entirety, the conviction founded on the earlier statement of hostile witnesses recorded under Section 164 Cr.P.C. is bound to fail and liable to be set aside.

Resultantly, the conviction and sentences as imposed by the Trial Court in respect of the Appellants were set aside. All the Appellants were acquitted from the aforesaid charges.

Case Title: Tuku @ Abdul Naim Khan v. State of Odisha and other connected matters

Case No.: CRLA No. 288 of 2011 & other connected appeals.

Date of Judgment: 4^th February 2022

Coram: Chief Justice Dr. S. Muralidhar and Justice B.P. Routray

Citation: 2022 LiveLaw Ori 13