Crl.A. 95/2003 BEFORE THE HON’BLE MR. JUSTICE RANJAN GOGOI THE HON’BLE MR. JUSTICE B.K. SHARMA R. Gogoi, J The three appellants Uttam Singh Tamang, Kalu Singh Tamang and Lalu Guru ng have assailed the judgement and order dated 04.01.2003, passed by the learned Additional Sessions Judge, Sonitpur in Sessions Case No. 201/2001, by which the y have been convicted under Section 302/34 IPC. Each of the accused appellants h ave been sentenced to undergo rigorous imprisonment for life and to pay a fine o f Rs. 1,000/- each, in default to suffer rigorous imprisonment for 6 (six) month s more. 2. On 17.7.2001, at about 3 PM, the Dekhiajuli Police Station in Sonitpur D istrict received an FIR lodged by PW -1, Sapat Bahadur Tamang, stating that at a bout 8 PM of the previous day i.e. 16.7.2001, there was a quarrel between the ac cused appellant Uttam and his brother the deceased Kalu Singh Tamang over certai n domestic matters. In the FIR filed, it was mentioned that accused Uttam had hi t Kalu Singh Tamang with a lathi, thereby causing serious injuries to him. 3. On the basis of the aforesaid FIR filed and as Kalu Singh Tamang had exp ired in the mean time, Dekhiajuli Police Station case No. 131/2001 under Section 302 IPC was registered. PW-6 Kamal Chandra Bora, SI of Police was entrusted wit h the investigation of the case, in the course of which the police party had vis ited the place of occurrence, prepared sketch map thereof and recorded the state ments of persons acquainted with the incident. Inquest was also held on the dead body, which was sent for post mortem examination. On receipt of the post mortem report, Charge Sheet under Section 302 IPC was submitted against all the accuse d appellants. The offences alleged being exclusively triable by the Court of Ses sions, the learned SDJM(S), Tezpur, by order dated 22.11.2001, committed the cas e for trial to the Sessions Court at Tezpur. The trial court framed charge again st the accused appellants under Section 302/34 IPC, which being read over and ex plained, the accused appellants pleaded not guilty and claimed to be tried. Eigh t witnesses were examined by the prosecution and 3 (three) witnesses were examin ed by the defence including the accused appellant Uttam Singh Tamang. The statem ent of the accused appellants were also recorded under Section 313 Cr.P.C. There after, by the impugned judgement and order, the accused appellants have been con victed and sentenced as aforesaid, giving rise to the present appeal. 4. It would be convenient to notice, at this stage, the code of the evidenc e adduced by the prosecution witnesses in the case. PW-1 Sapat Bahadur Tamang, is the father of the deceased and the accused Uttam S ingh Tamang. According to this witness, in the night of the day of occurrence, h e had gone to the house of his elder son Kalu Singh Tamang and found him dead wi th injuries on his head and back. According to PW-1, the VDP Secretary ( PW-5) i nformed the Police Station about the occurrence after which the police party ar rived. He had lodged the Ejahar (Ext-1) on the next day. PW-1 was declared hosti le by the prosecution. In cross examination by the prosecution he denied making any statement to the Investigating Officer to the effect that the accused Uttam Singh Tamang had assaulted the deceased Kalu Singh Tamang on the head with a lat hi. The aforesaid statement made by PW-1 to the Investigating Officer, however, was proved by examining the IO as PW-6. 5. PW-2 Ms. Sanchamaya Tamang is the wife of the deceased. According to PW- 2, at about 8 PM of the day of occurrence, her deceased husband was sitting in t he courtyard of his house and consuming liquor. At that point of time, accused U ttam Singh Tamang who had a bamboo lathi in his hand, accused Lalu Gurung who ha d a iron rod and accused Kalu Singh Tamang who had a lathi and a kukri, came to the place and started assaulting the deceased. PW-2 had specifically stated that when she had protested, accused Kalu and Lalu had also assaulted her. In her cr oss examination while reiterating the assault on her, PW-2 had specifically stat ed that accused Lalu Gurung had dealt several strokes in the ear and waist of th e deceased with a kukri. It may be noticed at this stage that PW-2 had made a st atement under Section 164 Cr.P.C. before the PW-7, a Judicial Magistrate, wherei n she had stated that the assault on the deceased with the kukri was committed b y the accused Kalu. In the said statement, PW-2 had further stated that the accu sed Kalu had, in fact, wanted to cut the neck of the deceased, which however, wa s prevented by the other two accused. 6. PW-3 Narayan Orang, is a relation of the deceased who came to the place of occurrence on the following day. He is a witness to the seizure of two lathi s, a kukri and a rod, made by seizure list Ext-4. The seized articles were exhib ited before the trial court as material Ext. 1, 2, 3 & 4 respectively. PW-4, who also came to the place of occurrence on the day following the incident, is also a witness of the said seizure made by Ext-4. 7. PW-5 Padam Bahadur Newar is the VDP Secretary. According to this witness , at about 9 PM of the day of occurrence, PW-1 had come and informed him that a quarrel had taken place in the house of the deceased Kalu Singh and that a marpi t was going on. He has also deposed with regard to the information conveyed by h im to Dekhiajuli Police station over telephone. PW-5 had also made a statement w hich was recorded by PW-7 under Section 164 Cr.P.C. In the said statement PW-5 h ad stated that when PW-1 had come to inform him of the incident, he had stated t hat his youngest son, accused Uttam, had assaulted the deceased Kalu Singh Taman g. 8. PW-8, Kamal Chandra Bora, is the Investigating Officer of the case, who apart from deposing on the different steps taken in the investigation of the cas e had also stated that the statement of PW-1, Sapat Bahadur Tamang, as recorded by him, was as per the version given by the said witness in the course of invest igation of the case. Specifically, PW-6 has stated that when he had gone to the place of occurrence, he had not seen any injuries on the person of PW-2 ; nor PW -2 had informed him that she had sustained any injuries. It would also be necess ary to notice, at this stage, that PW-6 had proved a GD Entry (DE No. 438 dated 17.7.2001) which was exhibited by the prosecution as Ext-7 in the case. A readin g of the aforesaid GD Entry indicates that immediately after the incident, accus ed Uttam Singh Tamang had appeared in the Police Station and had made a statemen t that he had hit the deceased Kalu Singh Tamang on his head with a lathi, as a result of which the said person had died. 9. PW-7, as already noticed, is the learned Judicial Magistrate, who record ed the statements of PW-2 and 5 under the provisions of Section 164 Cr.P.C. 10. PW-8 Dr. D.K. Bora who was working at the relevant point of time in the Kanaklata Civil Hospital, Tezpur as a Senior Medical Officer, had conducted the autopsy on the dead body of the deceased Kalu Singh Tamang. He has proved the po st mortem examination report, which was exhibited by the prosecution as Ext-8 in the case. The findings of injuries sustained by the deceased including the opin ion as to the cause of death, may be conveniently extracted below :- Injuries :- Eyes and mouth closed. Rigor Mortis present. 1. Lacerated injury of 1 X 2 X ‰ size on the right side of chin. 2. Abrasion of 12 cm on right maler commence. 3. Left eye was block and a lacerated injury of ‰ X ‰ X ‰ size on left a ngle of left eye. 4. Lacerated injury of 1 X ‰ X ‰ over left temporal region. 5. Lacerated injury of 3 X ‰ X ‰ in front of left ear. 6. Left pinn was torn at top by a lacerated injury of ‰ X ‰ X ‰ . 7. Lacerated injury of 1 X ‰ X1 on the left side of occipital near lobe. 8. Lacerated injury of 2 X 1 X ‰ on the left side of occiput 2 above a d posterior to left ear. 9. Right temporal region echymosed. Cranium and Spinal : Tissue of right and left side of occiput were echymosed. Blood seen under skull or right side occiput. Occipital found cracked under lacerated injury No.8. Sub - dural haemotoma seen right side of occiput region. Spleen torn laterally for a large area. Pariatial cavity was filled by blood. All the injuries were ante-mortem in nature. Opinion : Death was due to head injury and splenic rupture. The injuries was suf ficient to cause the death of a person in the ordinary cause of nature. Ext.8 is my report. Ext. 8(1) is my signature. (FOR ALL) Injuries Nos. 1 to 9 were not sufficient to cause death of a person. Haemotoma m ay be caused by fall on hard substance, injury No.1 to 9 may be caused by some b lunt object. Excepting head injury the deceased could have survive, if proper tr eatment would have been provided. 11. As already noticed, three witnesses including the accused Uttam Singh Ta mang have been examined as defence witnesses in the case. The version unfolded b y the aforesaid defence witnesses is that in the evening of the day of occurrenc e, at about 8-9 PM, hearing a halla, the witnesses had come to the house of the deceased and found 3/4 unidentified youths leaving the place in motor cycles. It is the consistent version of the three defence witnesses that, thereafter, they found Kalu Singh lying dead in the courtyard of his house. 12. In the present case PW-1 was declared hostile by the prosecution. While it is correct that the evidence of a hostile witness need not be discarded in to to and the credible part, if duly corroborated, can be acted upon, what has to b e noticed in the present case is that PW-1 in his deposition in Court had not im plicated any of the accused appellants, though in the FIR he had named Uttam as responsible for the assault on the deceased. In his statement recorded by the IO , as proved by the said officer (PW-6), PW-1 had again implicated the accused Ut tam. However, neither the FIR nor a statement made in the course of investigatio n is strictly evidence which can be relied upon by the court for the purpose of conviction. A distinction must be made between what had been stated by a hostile witness in court and the statements made by him to the IO, as may have been pro ved by examining the IO. Only statements that fall in the first category would c onstitute legal evidence, whereas those in the second category, even if proved, will not amount to admissible evidence. On a careful analysis we find nothing in the evidence of PW-1 which can be salvaged so as to give strength to the prosec ution version. 13. This will bring us to a consideration of the evidence of PW-2, the sole eyewitness, examined in the case. PW-2 with a certain degree of clarity has impl icated all the three accused. However, we have noticed that there are certain un acceptable exaggerations in the evidence of PW-2. Firstly, PW-2 claims that she was also assaulted by the accused. No medical evidence to the above effect is av ailable. That apart, PW-6, the IO, in his evidence had clearly deposed that when he had gone to the place of occurrence, he did not find any injuries on PW-2 ; neither he was informed by PW-2 that she was assaulted by the accused. PW-2 in h er deposition had also stated that the deceased was assaulted with a kukri sever al times. While in her deposition in Court, she had implicated the accused Lalu for the assault by the kukri, in her statement recorded under Section 164 Cr.P.C ., she had implicated the accused Kalu. Not only the aforesaid inconsistency is too significant to be ignored, the medical evidence tendered by PW-8 does not in dicate that any injury caused by a kukri was found on the body of the deceased i n the course of the post mortem examination. We are, therefore, inclined to take the view that the evidence of PW-2, because of exaggerations contained therein, will not be a sale basis for the conviction of the accused-appellants without t here being any corroborative evidence on record, which is conspicuously absent. 14. In so far as the GD entry bearing No. 438 dated 17.7.2001 is concerned, it will be suffice to say that the said GD entry amounts to a confession made b efore the Police which clearly is inadmissible in law under the provisions conta ined in Section 25 of the Evidence Act. 15. The net result of the above discussion is that PW-2 on whose evidence th e edifice of the prosecution case rests has been found by the court to be an unr eliable witness and therefore, unworthy of credence. There is no evidence or any other material to corroborate PW-2. In such a situation, we are of the view tha t all the three accused appellants should be entitled to be benefit of our reaso nable with regard to their culpability for the offence alleged. 16. Consequently, we allow this appeal, set aside the judgement and order da ted 4.1.2003 and acquit the accused appellants who will now be released from pr ison forthwith. 17. Let the LCR be sent down to the court below alongwith copies of this jud gement and order immediately.