1 2025:CGHC:24220-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 265 of 2015 {Arising out of judgment dated 02.04.2013 passed in Sessions Trial No.53/2011 by the learned Additional Sessions Judge, Pendraroad, District Bilaspur} Satyanarayan, S/o. Bundeshwar Gond, Aged About 25 Years, R/o. Village Manwaritola, Marwahi, P.S. Marwahi, District Bilaspur, Chhattisgarh ... Appellant versus State Of Chhattisgarh, Through- P.S. Marwahi, District Bilaspur, Chhattisgarh ... Respondent For Appellant : Mrs. Kiran Jain, Advocate For Respondent : Mr. Vivek Mishra, Panel Lawyer (Division Bench) Hon'ble Shri Justice Sanjay K. Agrawal Hon'ble Shri Justice Deepak Kumar Tiwari Judgment on Board (16.06.2025) ASHOK SAHU Digitally signed by ASHOK SAHU Date: 2025.06.17 11:24:36 +0530 2 Sanjay K. Agrawal, J. 1. This criminal appeal preferred by the appellant under Section 374(2) of Cr.P.C. is directed against the impugned judgment of conviction and order of sentence dated 02.04.2013, passed by the learned Additional Sessions Judge, Pendraroad, District Bilaspur in Sessions Trial No. 53/2011, by which the sole appellant herein has been convicted for offence under Section 302 of Indian Penal Code and sentenced to undergo life imprisonment and fine of Rs.200/-, in default of payment of fine, 1 month’s additional rigorous imprisonment. 2. Case of the prosecution, in brief, is that, on 15.07.2011 at night 10:00 P.M. at village Manwaritola, Police Station- Marwahi, District Bilaspur, the appellant herein assaulted Sunita (now deceased) by lathi, by which she suffered grievous injuries and died; thereby, the offence has been committed. Further case of the prosecution is that, on the date of offence i.e. on 15.07.2011, the deceased along-with her sister Pramila (PW-1) was cooking food, at that time, while the deceased was making conversation with her sister Anita on mobile phone, the appellant came armed with lathi and assaulted Sunita, by which she suffered grievous injuries and 3 became unconcious and thereafter, she was taken to the Government Hospital Marwahi from where she was died truing treatment. The matter was reported to the police, pursuant to which, Merg Intimation was registered vide Ex. P-1, FIR was registered vide Ex.P-11, Naksha Panchayatnama was prepared vide Ex.P-9 and dead body of deceased Sunita was subjected to post-mortem, which was conducted by Dr. O.L.Berman (PW-10), who proved the post-mortem report vide Ex.P-23, according to which, cause of death was stated to be cardio respiratory failure and death was homicidal in nature. The weapon of offence i.e. lathies were recovered vide Ex.P-14 and as per the FSL report (Ex.P-26), blood was found on the lathies i.e. Article C1 & C2. After due investigation, the appellant was charge-sheeted for the aforesaid offence before the jurisdictional criminal court, which was ultimately committed to the Court of Sessions for hearing and disposal in accordance with law, in which, the appellant abjured his guilt and entered into defence stating that he has not committed any offence and he has been falsely implicated. 3. In order to bring home the offence, prosecution examined as many as 12 witnesses and exhibited 26 documents and the 4 appellant-accused in support of his defence has neither examined any witness nor exhibited any document. 4. The trial Court, after appreciation of oral and documentary evidence on record, convicted the appellant herein for the offence under Section 302 of I.P.C. and sentenced him for life imprisonment against which the present appeal has been preferred. 5. Mrs. Kiran Jain, learned counsel for the appellant, would submit that the eye-witness Pramila (PW-1) has turned hostile and has not supported the case of the prosecution and it is the case of the prosecution that Pramila (PW-1) and brother of deceased Deepnarayan (PW-3) both were there in the house and therefore, Section 106 of the Indian Evidence Act would not be applicable and on the basis of statement recorded under Section 164 of Cr.P.C., the appellant could not have been convicted. Therefore, the impugned judgment of conviction and order of sentence is liable to be set aside and the appeal deserves to be allowed. 6. Mr. Vivek Mishra, learned State counsel, would support the impugned judgment and submit that the prosecution has been 5 able to bring home the offence beyond reasonable doubt and the trial Court has rightly convicted the appellant for the aforesaid offence and, therefore, the appeal deserves to be dismissed. 7. We have heard learned counsel for the parties, considered their rival submissions made herein-above and went through the records with utmost circumspection. 8. The first question for consideration as to whether the death of deceased Sunita was homicidal in nature has been answered by the trial Court in affirmative relying upon the post-mortem report (Ex.P-23) proved by Dr.O.L.Berman (PW-10), according to which, cause of death was stated to be cardio respiratory failure and death was homicidal in nature, which in our considered opinion is a correct finding of fact based on evidence available on record, it is neither perverse nor contrary to the record and accordingly, we hereby affirm the said finding. 9. Admittedly, on the date of offence, in the house, apart from the deceased her sister Pramila (PW-1) was also present who has turned hostile and she has not supported the case of the prosecution at all and on having being asked the leading 6 question, she mainly refuted and has not supported the prosecution case. Therefore, statement of Pramila (PW-1) is of no use to the prosecution. Similarly, Deepnarayan (PW-3) is also the eye-witness who was present in the house of the appellant but as per the prosecution case, he was sleeping. Since it is the case of the prosecution that apart from the deceased, he sister Pramila (PW-1) and her brother Deepnarayan (PW-3) were also present in the house, therefore, Section 106 of the Indian Evidence Act would not apply. 10. Recently, in the matter of Manharan Rajwade v. State of Chhattisgarh 1 their Lordships of the Supreme Court on the point of Section 106 of the Indian Evidence Act have held in paragraph 7 as under:- “7. For invoking Section 106 of the Evidence Act, the prosecution ought to have discharged the burden on it by adducing cogent evidence to prove the appellant’s presence at the relevant time in his house. In this case, going by the evidence of PW-1, the deceased had already died before 5:00 p.m., and the said witness stated that the appellant came back home at 7:00 p.m. There is no evidence to prove the theory of the last seen together. Therefore, the prosecution has not discharged the burden on it to prove that the appellant was last 1 2024 INSC 560 7 seen together with the deceased wife. Thus, Section 106 of the Evidence Act cannot be invoked to shift the burden on the appellant.” 11. Similarly, the trial Court has relied upon the statement of Pramila (PW-1) recorded under Section 164 of Cr.P.C. to base the conviction. It is well settled law that the statement made under Section 164 of CrPC cannot be used as a substantive piece of evidence. In Brijbhusan Singh v. Emperor 2, the Privy Council has observed that a statement made under Section 164 of CrPC cannot be used as a substantive piece of evidence and it can be used to cross-examine the person who made it, and the result may be to show that the evidence of the witness is false. But that does not establish that what he stated out of Court under Section 164 of CrPC is true. 12. Similarly, in Mamand and others v. Emperor 3, it has been observed by the Privy Council that the statement of a witness made under Section 164 of CrPC can be used only to discredit the evidence given by him in Court, and not for any other purpose. Such a statement cannot be treated as substantive evidence of the facts stated. 2 AIR 1946 38 3 AIR 1946 45 8 13. In the matter of Ram Kishan Singh v. Harmit Kaur & Anr. 4, with regard to the value to be given to a statement under Section 164 of CrPC, the Supreme Court has held that “a statement under Section 164 of the Code of Criminal Procedure is not substantive evidence. It can be used to corroborate the statement of a witness. It can be used to contradict a witness.” 14. The Supreme Court, in the matter of Sunil Kumar and others v. State of Madhya Pradesh5, has held that statement recorded under Section 164 of CrPC can be used for corroboration or contradiction. 15. Similarly, in the matter of George and others v. State of Kerala and another6, their Lordships of the Supreme Court have considered the issue as to whether the statement recorded under Section 164 of CrPC constitutes substantial evidence and held that a statement of a witness recorded under Section 164 of CrPC cannot be used as substantive evidence and can be used only for the purpose of contradicting or corroborating the maker of such statement. 4 AIR 1972 SC 202 5 AIR 1997 SC 940 6 (1998) 4 SCC 605 9 16. Furthermore, in the matter of R. Shaji v. State of Kerala 7, similar proposition of law has been laid down by their Lordships of the Supreme Court, which state as under :- “27. So far as the statement of witnesses recorded under Section 164 is concerned, the object is twofold; in the first place, to deter the witness from changing his stand by denying the contents of his previously recorded statement; and secondly, to tide over immunity from prosecution by the witness under Section 164. A proposition to the effect that if a statement of a witness is recorded under Section 164, his evidence in court should be discarded, is not at all warranted. (Vide Jogendra Nahak v. State of Orissa, (2000) 1 SCC 272, and CCE v. Duncan Agro Industries Ltd., (2000) 7 SCC 53) 28. Section 157 of the Evidence Act makes it clear that a statement recorded under Section 164 CrPC can be relied upon for the purpose of corroborating statements made by witnesses in the committal court or even to contradict the same. As the defence had no opportunity to cross-examine the witnesses whose statements are recorded under Section 164 CrPC, such statements cannot be treated as substantive evidence.” 17. Finally, in the matter of Somasundaram alias Somu v. State represented by the Deputy Commissioner of Police8, a three judge bench of the Supreme Court considered the purport and value of Section 164 of CrPC and further considered the issue 7 (2013) 14 SCC 266 8 (2000) 1 SCC 272 10 which is similar to the issue in hand before us as to, what would be the position if the person giving the statement resiles from the same completely when he is examned as a witness ? In paragraph 81 of the report following question was framed by their Lordships :- “81. Section 164 CrPC enables the recording of the statement or confession before the Magistrate. Is such statement substantive evidence? What is the purpose of recording the statement of confession under Section 164? What would be the position if the person giving the statement resiles from the same completely when he is examined as a witness? These questions are not res integra. Ordinarily, the prosecution which is conducted through the State and the police machinery would have custody of the person. Though, Section 164 does provide for safeguards to ensure that the statement or a confession is a voluntary affair it may turn out to be otherwise. We may advert to statements of law enunciated by this Court over time.” 18. Thereafter, considering the decisions rendered in the matters of George (supra) and R. Shaji (supra), their Lordships held in paragraph 84 as under :- “84. Thus, in a case where a witness, in his statement under Section 164 CrPC, makes culpability of the accused beyond doubt but when he is put on the witness stand in the trial, he does a complete somersault, as the statement under Section 164 is not substantial evidence then what 11 would be the position? The substantive evidence is the evidence rendered in the court. Should there be no other evidence against the accused, it would be impermissible to convict the accused on the basis of the statement under Section 164.” 19. From the aforesaid principles of law laid down by their Lordships of the Supreme Court in the aforesaid judgments qua statement under Section 164 of CrPC, it is quite vivid that the statement under Section 164 of CrPC is not an evidence much less substantial evidence within the meaning of Section 3 of the Indian Evidence Act, 1872 and it can be used only for the purpose of corroboration or contradiction. In absence of any other legally admissible evidence corroborating the evidence under Section 164 of CrPC, no conviction can be recorded. As such, in view of the aforesaid judgments of Hon'ble Supreme Court, Section 164 CrPC statement is not substantive piece of evidence and on the basis of Section 164 CrPC statement, conviction cannot be made. 20. In view of the above, we are of the considered opinion that the appellant is entitled for acquittal on the basis of benefit of doubt. The trial Court is totally unjustified in convicitng and sentencing the appellant for the offence under Section 302 of I.P.C. Accordingly, the impugned judgment of conviction and 12 order of sentence dated 02.04.2013 is hereby set aside. Consequently, the appellant stands acquitted giving him benefit of doubt from the charge framed against him for the offence under Section 302 of I.P.C. The appellant is already on bail, he need not surrender; however, his bail bond shall remain in force for a period of six months in view of the provision contained in Section 437-A of the Cr.P.C. 21. In the result, this criminal appeal is allowed. 22. Let a certified copy of this judgment along-with the original record be transmitted to the concerned trial Court forthwith for necessary information & action, if any. Sd/- Sd/- (Sanjay K. Agrawal) (Deepak Kumar Tiwari) Judge Judge Ashok