1 2025:CGHC:26754-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1327 of 2017 1 - Manoj @ Madud S/o Motilal, Aged About 37 Years R/o Village Lau, Karsupara, Police Station Rajpur, District Balrampur, Ramanujganj, Chhattisgarh. ... Appellant versus 1 - State Of Chhattisgarh Through Station House Officer, Police Station Rajpur, District Balrampur, Ramanujganj, Chhattisgarh. ... Respondent(s) For Appellant : Shri A.K. Yadav, Advocate. For Respondent(s) : Shri Ashutosh Shukla, Panel Lawyer. Hon'ble Shri Sanjay K. Agrawal & Hon'ble Shri Deepak Kumar Tiwari, JJ Judgment on Board (23/06/2025) Deepak Kumar Tiwari, J 1. This Criminal Appeal preferred by the accused/appellant under Section 374(2) of the CrPC is directed against the impugned judgment of conviction and sentence dated 03.06.2017 passed by the 2nd Additional Judge to the Court of Additional Sessions Judge, Ramanujganj, District Surguja in ST No.R 08/2016 by which the appellant has been convicted under Section 302 of the IPC and sentenced to undergo imprisonment for KRISHNA KUMAR BARVE Digitally signed by KRISHNA KUMAR BARVE Date: 2025.06.24 16:03:51 +0530 2 life and to pay a fine of Rs.20,000/-, in default of payment of fine to further undergo additional RI for one year. 2. Case of the prosecution, in brief, is that the appellant is the husband of deceased Lalita Bai. Father of the appellant namely, Motilal (PW-1) has lodged an FIR on 8.12.2015 at about 9.30 am stating that while his daughter-in-law Lalita was cooking food, neighbours namely, Arjun Das (PW-3) and Ravi Das (PW-2) were warming their hands in the courtyard, whereas the appellant was warming himself in the sun light in front of his house. When the father of the appellant went to the house of Ladua for taking tobacco, at that time, the appellant started assaulting the deceased by using wooden plank. Hearing the noise, the father of the appellant reached the spot and saw that blood was oozing out from the head of the deceased. Arjun Das (PW-3) informed the father of the appellant (PW-1) that the appellant raised quarrel with the deceased on the ground that her conduct was not proper, abused her in filthy language and also threatened to kill. Initially, the offence was registered under Sections 294, 506 & 323 of the IPC. The deceased was taken to the Primary Health Centre, Rajpur from where the deceased was referred to the District Hospital, Ambikapur. However, during treatment, she died on 8th December, 2015. 3. On the basis of information given by the hospital, merg intimations were recorded vide Ex.-P/17 & P/23 vide Article ‘A’ respectively. After giving notice (Ex.-P/2) to the witnesses, inquest was conducted vide Ex.- P/3. Crime Details form was prepared vide Ex.-P/4. The Patwari has prepared the spot map vide Ex.-P/6. On the basis of memorandum of the 3 appellant vide Ex.-P/8, the wooden plank which was used for committing crime has been seized vide Ex.-P/9. The deceased was initially examined by Dr. Asrita Kachchap (PW-11) and she gave MLC report (Ex.-P/15) wherein she noticed a lacerated wound (curve sharp) in the size of 6x½ cm on the left side of head, above forehead caused by hard and blunt object. The postmortem was conducted by (PW-13) Dr. K.P. Vishwakarma, who vide his postmortem report (Ex.-P/22), opined that the cause of death is cardio respiratory arrest caused by heard injury and the death is homicidal in nature. 4. Statements of the witnesses were recorded. After completion of the investigation, charge sheet was filed before the jurisdictional criminal Court, which in turn committed the case to the Court of Sessions for trial, in which the appellant abjured his guilt and claimed to be tried. 5. In order to bring home the charges, the prosecution examined as many as 14 witnesses and exhibited 23 documents. In the statement recorded under Section 313 of the CrPC, the appellant has stated that he has been falsely implicated and he did not adduce any defence evidence. 6. The trial Court after appreciating the oral and documentary evidence available on record convicted and sentenced the appellant as mentioned above against which this Appeal has been preferred by the appellant. 7. Learned counsel for the appellant would submit that the trial Court has reached to the conclusion that all the eyewitnesses have turned hostile and not supported the case of the prosecution, however, the trial Court has wrongly relied upon the evidence of I.O. (PW-12) JR Kurre and the statements given by the eyewitness under Section 161 CrPC during the 4 course of investigation, which is bad in law. Learned counsel for the appellant has placed reliance on the judgments of the Hon’ble Supreme Court in the matters of Hazari Lal Vs. State (Delhi Administration)1 and Babu Singh Vs. State of Punjab2 to submit that statement given to the police officer/Investigating Officer under Section 162 CrPC cannot be used as substantive piece of evidence and only that part of his statement, if duly proved, may be used by the accused and with the permission of the Court, by the prosecution, to contradict such witness in the manner provided by the Indian Evidence Act. Therefore, the present Appeal may be allowed. 8. Per contra, learned State Counsel would support the impugned judgment of conviction and submit that the trial Court is absolutely justified in convicting the appellant for offence under Section 302 of the IPC. The appellant is not entitled for acquittal and the Appeal deserves to be dismissed. 9. We have heard learned counsel for the parties, considered their rival submissions and have gone through the records with utmost circumspection. 10. The first and foremost question is as to whether the death of the deceased was homicidal in nature, which the learned trial Court has recorded in affirmative relying on the postmortem report of Ex.-P/22 which is proved by (PW-13) Dr. KP Vishwakarma, stating that the death was homicidal in nature, and we do not find any illegality in the said finding, as the same is neither perverse nor contrary to the record. 1 (1980) 2 SCC 390 2 AIR 1996 SUPREME COURT 3250 5 11. Now the next question would be whether the accused/appellant herein is the author of the crime in question. 12. Admittedly, in the present case, all the material witnesses have turned hostile and not supported the case of the prosecution. They have also not supported the story of the prosecution that the appellant, in any manner, on the date of the incident, quarreled with his wife and during such quarrel, he assaulted the deceased. Father of the appellant (PW-1), who has lodged an FIR (Ex.-P/1) has categorically stated that deceased Lalita fell on the doorframe (Chokhat) of the house and sustained injury. When this witness was confronted with his earlier statement (Ex.-P/5) and the FIR (Ex.-P/1), he has denied that he has given such statement to the police. He has further deposed that when he heard the noise of his wife (PW-4) Sukhni, he reached the spot and found that deceased Lalita had already fallen on the doorframe (Chokhat) and was unconscious. So he called Ambulance and taken her to Rajpur Hospital from where she was referred to the District Hospital, Ambikapur, where she died. Similar is the evidence of other relatives of the deceased and the appellant, namely, (PW-2) Ravidas, (PW-3) Arjun Das, Sukhni (PW-4), Seema (PW-5), Rajaram (PW-6), (PW-7) Smt. Dhodhi Bai & (PW-8) Smt. Budhni Bai. 13. Furthermore, witnesses to the memorandum and seizure namely, Arjun Das (PW-3) and Janki Yadav (PW-10) have also not supported the proceeding of the I.O. regarding memorandum (Ex.-P/8) and seizure of wooden plank (Ex.-P/9). FSL report is also not available on record to establish that the wooden plank which was seized was used in commission of crime. 6 14. The trial Court only on the basis of statements recorded under Section 161 CrPC by (PW-12) JR Kurre has convicted the appellant for the aforesaid offence whereas this witness i.e. PW-12 has only deposed that he has recorded the statements of witnesses as per their own version, but this witness has not been confronted regarding contradictions and omissions in their statements. 15. Further, the law is well settled and is reiterated in the matter of Hazari Lal (Supra) that the statements given by the witnesses during the course of investigation cannot be used as substantive evidence. In para-8 of the said judgment, the Hon’ble Supreme Court has observed thus:- “8. The learned counsel was right in his submission about the free use made by the Courts below of statements of witnesses recorded during the course of investigation. Section 162 of the Code of Criminal Procedure imposes a bar on the use of any statement made by any person to a Police Officer in the course of investigation at any enquiry or trial in respect of any offence under investigation at the time when such statement was made, except for the purpose of contradicting the witness in the manner provided by s.145 of the Indian Evidence Act. Where any part of such statement is so used any part thereof may also be used in the re- examination of the witness for the limited purpose of explaining any matter referred to in his cross-examination. The only other exception to this embargo on the use of statements made in the course of an investigation relates to the statements falling within the provisions of section 32(1) of the Indian Evidence Act or permitted to be proved under section 27 of the Indian Evidence Act. Section 145 of the Evidence Act provides that a witness may be cross-examined as to previous statements made by him in writing and reduced into writing and relevant to matters in question, without such writing being shown to him or being proved but, that if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him. The Courts below were clearly wrong in using as substantive evidence statements made by witnesses in 7 the course of investigation. Shri H. S. Marwah, learned counsel for the Delhi Administration amazed us by advancing the argument that the earlier statements with which witnesses were confronted for the purpose of contradiction could be taken into consideration by the Court in view of the definition of "proved" in section 3 of the Evidence Act which is: "A fact is said to be proved when, after considering the matters before it, the Court either believes it to exist or considers its existence so probable that a prudent man, ought, under the circumstances of the particular case, to act upon the supposition that it exists." We need say no more on the submission of Shri Marwah except that the definition of proved does not enable a Court to take into consideration matters, including statements, whose use is statutorily barred.” 16. On the basis of aforesaid discussion, we are of the considered view that the trial Court has wrongly relied upon the diary statements of the witnesses for basing conviction against the appellant for offence under Section 302 of the IPC and as such, the conviction is not sustainable. 17. In the result, the Appeal is allowed. Conviction and sentence imposed on the appellant under Section 302 of the IPC are set aside and he is acquitted of the said charge. The appellant is on bail. He need not surrender. The bail bonds furnished by the appellant shall remain in operation for a period of 6 months from today in view of the provisions contained under Section 437-A of the CrPC. 18. Let a certified copy of this judgment along with original record be transmitted to the trial Court concerned forthwith. Sd/- Sd/- (Sanjay K. Agrawal) (Deepak Kumar Tiwari) Judge Judge Barve