Statement recorded U/S 164 of CRPC is not a substantive evidence and it can be used only to corroborate or to contradict the witness

1. This appeal is by the accused who was charged and tried under Sections 504,307, Indian Penal Code but who has been convicted and sentenced under Sections 326 and 324, Indian Penal Code.

2. The accused was charged and tried with the allegation that on 16.04.2005 at about 21.30 hours the accused first assaulted Suraj Chari PW1 with a broken sharp fanta bottle on his hand causing him bleeding injuries and thereafter the accused assaulted with the same bottle Ashok R. Zambaulikar PW2 on his neck in an attempt to murder him. The accused was also charged for having abused the said Ashok Zambaulikar PW2 with filthy words such as “chedyecha”, etc. In support of the charge prosecution had examined 15 witnesses and amongst them was Prashant PW12, the owner of Prashant General Stores where the incident is stated to have taken place, and, his other two brothers, namely, Paresh PW11 and Mahesh PW14.

3. On the other hand, it was the case of the accused that on the said day he had gone to the said shop at about 7-45 P.M. and was standing near the corner of the said shop when about 8.10 P.M. Ashok PW2 came there and in spite of having a distance, to go to the shop dashed against his shoulder, from the back and when Ashok P W2 came out after purchasing something, the accused asked the said Ashok PW2 as to why he had dashed him to which he replied that he could do whatever he wished which was followed by a verbal altercation and thereafter the said Prashant PW12 and Sunil PW15 separated them and thereafter Ashok PW2 went away on his motorcycle and returned with Madhusudan PW8 and his wife and Suraj PW J and one Sanjay Mesta and upon seeing them, Prashant PW12 told him to go inside the shop and he went inside the shop and thereafter the said persons Madhusudan PW8, Suraj PW 1 and Ashok PW2 started calling him to come out of the shop and they were abusing him by bad words such as “Chedyeache bair yo tuka dakoita tu eklo asa”. The accused further stated that he remained inside the shop and the said persons told Prashant PW12 to send him out of the shop and the said Prashant PW12 had told them not to fight and then the said persons told Prashant PW12 that in case he did not send the accused out of the shop they would damage his shop and thereafter they started banging the steel roof of the shop and started breaking the crates containing empty soft drink bottles which were outside the shop and broke the tube light and then Prashant PW12 told him to go out of the shop else the said persons would damage his shop and he came till about the counter of the said shop and seeing the said persons went again inside the shop and thereafter Prashant PW12 told him to go out of the shop as he wanted to close the shop and the moment he went out all the said persons started attacking him and dragging him to the place where there was a paitdal and on his right side there was Suraj Chari PW1 and behind him was Madhusudan PW8 and it is he who was carrying a broken glass bottle in his hand and while the said Madhusudan PW8 attempted to assault him with the broken glass bottle he ducked down and the said broken glass bottle hit the right hand side of Suraj Chari PW3 and the neck and then the left hand side of neck of Ashok PW2. The accused stated that on that day he did not carry any glass bottle in his hand and the said persons also assaulted him with fist blows, kicks and with hands. Accused further stated that at the place where he was assaulted there was a pandal and it was dark there and it was dark because they had broken the tube light outside the shop and beyond the pandal there was a street light and thereafter Madhusudan PW8 started shouting that the accused assaulted Suraj Chari PW 1 and Ashok PW2 with broken glass bottle to which he told them that he was not having any glass bottle in his hand and then Madhusudan PW8 started to give the broken glass bottles in his hands in which he did not take and thereafter he rescued himself and proceeded with one Sandesh to the Police Station and when he reached there he narrated the incident to one hawaldar who kept him waiting there for about half an hour till the arrival of the Police Inspector Siddhant Shirodkar PW15 and when the Police Inspector PW 18 came there, he went in his cabin to meet him but Madhusudan PW8 along with his wife were already there and the said Madhusudan PW8 was having in his hand the same broken glass bottle and then upon the direction of P.I. Shirodkar PW18 he was put in the lock-up. The accused told that he did not know at what time Suraj Chari PW 1 came to the Police Station. The accused also stated that he had suffered injury on the stomach and the skin of his stomach was peeled off and he had also suffered injuries on his knee with minor bleeding. The accused also stated that on the day of incident he was wearing a T-shirt which was torn at the time of assault on the shoulder as well as at the waist level. The accused also stated that there was no enmity between him and the said Suraj Chari PW1 or Ashok PW2 or Madhusudan PW8. The accused stated that he did not assault Suraj Chari PW1 or Ashok PW2. The accused examined himself in support of his defence and the above is the version given by him. in his evidence. The accused also examined Sandesh Shelpekar DW2 to corroborate his version i.e. that the latter had seen the said broken soda bottle in the hands of the said Madhusudan PW8.

4. As already stated, the prosecution has examined 18 witnesses in support of the charge against the accused. Ravindra Zambulikar PW5 is the father of Ashok PW2 and the latter is the maternal uncle of Suraj PW1 (Ravinidra’s wife’s brother) while Madhusudan PW8 is another brother-in-law of the said Ravindra PW5. In other words, (Supra) PW1. Ashok PW2, Ravindra PW5 and Madhusudan PW8 are all related to one another. The said Prashant PW12, his brothers Paresh PW11 and Mahesh PW14 were declared hostile and cross-examined by the prosecution. Rajesh PW6 who is the brother of Sanjay Mesta was examined partly on 02.11.2006 by the prosecution and after an adjournment was sought, his examination was not continued and later on 08.11.2006 he was dropped, and, it has been contended on behalf of the accused, that he was not further examined and dropped because he was not supporting the case of the prosecution. Similarly, the said Sanjay Mesta who was present both according to the prosecution as well as the accused was not examined by the prosecution. In other words, three witnesses who were natural and probable and in whose shop the incident had taken place had not supported the prosecution and as such were declared hostile by the prosecution. The other two, Rajesh Mesta PW6 and Sanjay Mesta were not examined and the former in the background indicated hereinabove.

5. The learned trial Court did not accept the evidence of Datta Naik PW13 as it did not inspire confidence. Nevertheless, the learned trial Court concluded that from the evidence on record it was clear that the accused while coming out of the shop had carried in his hand a broken glass bottle and at that time Ashok PW2, Suraj Chari PW 1, their family members, relations and others were waiting outside the shop for the accused to come out and when the accused came out of the shop with broken glass bottle in his hand, they all gheraoed him and a scuffle took place and in the scuffle the accused assaulted Suraj PW1 and Ashok PW2 with the broken glass bottle. The learned trial Court also observed that from the evidence of the relations of Ashok PW2 who had gathered outside the shop, the only picture which emerged was that it was none other than the accused who assaulted Suraj PW1 and Ashok PW2 with the broken glass bottle. However, it may be stated that the conclusion arrived at by the learned trial Court that the accused was gheraoed by the said relations of Ashok PW2 and in the scuffle which followed, the accused had assaulted Suraj Chari PW1 and Ashok PW2 was certainly not a version which came from the said related witnesses, namely, Suraj PW1, Ashok PW2, Ravindra PW5 or Madhusudan PW8 nor was, it a version given by the persons who were admittedly present namely Prashant PW 12 and his two brothers Paresh PW 11 and Mahesh PW14 nor of Sunil PW15 who were present till the first part of the incident was over when Ashok PW2 and the accused were separated by them.

6. The learned trial Court in arriving at the said conclusion has also relied extensively on the statement recorded of the accused under Section 313 of the Code of Criminal Procedure, 1973, forgetting for a moment that the accused had stepped into the witness box and had given evidence in support of his case and whatever explanations were required from him could have been elicited from his cross-examination, and, it has been submitted on behalf of the accused, that the prosecution was unable to shake the credibility of the accused, in cross-examination and there was no reason why the version given by the accused ought not to have been accepted. The learned trial Court, after observing that Ashok PW2 was the only witness who had deposed that the accused had broken the fanta bottle, further observed that the accused did not disclose anything in his statement recorded under Section 313, how the glass bottle was broken inside the shop, as to how many broken bottles there were and whether the bottle was broken against the wall or against the floor and since this fact was specially within the knowledge of the accused the burden was on him to prove the same. The learned trial Court entirely lost sight of the fact that the incident of breaking of the bottle was certainly not specially within the knowledge of the accused and it was certainly to the knowledge, of Ashok PW2 who claimed that it was broken by the accused in the manner as stated by him and so also to the knowledge of others who were present there particularly Prashant PW12 and his brothers Paresh PW11 and Mahesh PW14 and there was nothing which the accused was required to explain. The learned trial Court lost sight of the fact that in law the accused is entitled to maintain profound silence and the question of Section 106 of the Evidence Act can be invoked only when there is a duty on the. accused to speak.

7. In Shambhu Nath Mehra v. State of Ajmer MANU/SC/0023/1956 : AIR 1956 SC 404 it is stated by the Apex Court that Section 101 of the Evidence Act lays down the general rule that in a criminal case the burden of proof is on the prosecution and Section 106 of the Evidence Act was certainly not intended to relieve it of that duty but on the contrary it was designed to meet certain exceptional cases in which it would be impossible or at any rate disproportionately difficult, for the prosecution to establish facts which were specially within the knowledge of the accused and which he could prove without difficulty or inconvenience. The word “specially” stresses that it means facts that are pre-eminently or exceptionally within his knowledge. Considering the facts of the case there was nothing which was specially to the knowledge of the accused and only because No. corroboration was forthcoming to the version given by Ashok PW2 as regards the breaking of the bottle the same could not have been made good by placing the onus upon the accused stating that it was for the accused to prove that the bottle was broken by the accused in a manner stated by Ashok PW2. This is an error committed by the learned trial Court.

8. The learned trial Court accepted the statement made by Prashant PW12 under Section 164 of the Code to the effect that the accused had come out of his shop with a broken glass bottle when otherwise Prashant PW12 had not deposed to any such statement in his evidence before the Court. The learned trial Court accepted such a statement by placing reliance on the case of Sachin Shivaji Kadam & Ors. v. State of Maharashtra 2000 (2) MLR 54. As far as this aspect is concerned the law on the use of statements-recorded under Section 164 of the Code appears to be quite well settled in that the said statements can be used only for the purpose of contradiction under Section 145 or for corroboration under Section 157 of the Evidence Act. Learned counsel on behalf of the accused has placed reliance on the case of Gurjant Singh v. State of Rajasthan, MANU/SC/0198/1970 : AIR 1970 SC 1305 wherein the Apex Court has stated that the statements recorded under Section 164 of the Code Could not be considered as evidence but were corroborative of what was stated earlier in the committal Court. Some other decisions on the same point could also be referred to. Generally, statements under Section 164 of the Code are recorded with the avowed hope that the witnesses will not resile from the earliest versions given by them in respect of an incident out of fear of punishment. The Apex Court in Ram Kishan Singh v. Harmit Kaur Anr. MANU/SC/0169/1971 : AIR 1972 SC 468 has reiterated that the statement recorded under Section 164 of the Code is not a substantive evidence and it can be used only to corroborate or to contradict the witness. The same is also the view held by a learned Division Bench of Allahabad High Court in the case of Ram Lakhan Sheo Charan & Anr. v. State of U.P. MANU/UP/0302/1991 : 1991 Cri LJ 2790 wherein the learned Division Bench after considering catena of cases (more particularly referred to in para 12 of the judgment) came to the conclusion that the statements under Section 164 of the Code cannot be used as substantive piece of evidence. The learned trial Court therefore was not right on relying on any part of the statement of Prashant PW12 as recorded earlier under Section 164 of the Code when such a statement was not adhered to by him in his evidence before the Court, Moreover, Prashant PW12 had clearly stated that he had given such statement earlier because he was threatened by the police. This is another error committed by the learned trial Court.

9. The learned trial Court apart from the fact of coming to the conclusion that there was a scuffle after the accused was gheraoed and in that scuffle that Suraj PW1 and Ashok PW2 were assaulted also concluded that the accused had not taken the plea of self defence or the plea of grave and sudden provocation and hence the same could not be taken into consideration, as if to say that in case the accused had taken such a plea of self defence, the accused would be acquitted. As far as this aspect of the case is concerned the law is very clear. The Apex Court in Shivanna & Ors. v. State of Karnataka, 2007 (1) CCC 696 (S.C.) : 2007 (1) CCC 91 has held that whether in a particular set of circumstances, a person legitimately acted in the exercise of the right of private defence is a question of fact to be determined in the facts and circumstances of each case and no test in the abstract for determining such a question can be laid down and it is riot necessary for the accused to plea in so many words that he acted in self defence, and, if the circumstances show that the right of private defence was legitimately exercised, it is open to the court to consider such a plea and in a given case, the court could consider it, even if the accused has not taken it, if the same was available to be considered from the material on record. The Apex Court also noted that it is for the accused to place necessary material on record either by himself adducing positive evidence or by eliciting necessary facts from the witnesses examined by the prosecution and the question in such a case is a question of assessing the true effect of the prosecution evidence and not a question of the accused discharging any burden. This is yet another error committed by the learned trial Court.

10. Reverting to the case of the prosecution, and, the main version given by Ashok PW2, it can be seen that he had stated that Suraj PW1 was his maternal uncle and resides in his house. He had stated that after returning home at about 8.15 P.M. he was asked by his mother to bring milk packet and accordingly he came to Prashant General Stores and after parking his scooter he went inside the shop where he saw Prashant PW12, Mahesh PW14, Sunil PW15 and Shivaji (accused) at the counter. According to him, as he was going inside the shop the accused dashed his shoulder against his and while he was coming out from the shop after purchasing the milk packet the accused gave him bad words and he listened to them and started his motor-cycle when the accused came there and caught hold of his neck tightly and was not allowing him to go away when Sunil PW15 came there and told the accused to leave him and the accused left his neck. He stated that it is the said Sunil PW15 who relieved him from the clutches of the accused and thereafter the accused ran inside the shop and after going inside the. shop he broke a fanta glass bottle after removing the same from the fridge and he remained inside the shop and after getting the information regarding the fight, Madhusudan PW8, his wife and daughter came on the spot and he told Madhusudan PW8 to ask the accused as to why he was fighting with him and following them, his maternal uncle, Suraj PWl and Sanjay Mesta also came there and he also asked them to ask the accused as to why he was fighting with him and thereafter his mother, sisters and aunty came to the spot and he told them also to ask the accused as to why he was fighting with him and thereafter his father (Ravindra PW5) and Madhusudan PW8 told the accused to come out of the shop and to tell them as to what had happened and as to why the accused was fighting with him and the accused was not ready to come out of the shop and was behind the counter Thereafter, Prashant PW12 who was standing outside the counter told the accused to come out and told him that he would see what would happen and thereafter the accused came running out of the shop and came charging towards him and at that time Suraj PW1 who was standing in front of him. tried to stop the accused by holding his hand in which he had held the said broken glass bottle and then the accused assaulted Suraj Chari PWl with the said broken glass bottle on his right hand and thereafter he assaulted him on the left hand side of the neck. In cross-examination he stated that the accused had broken the said bottle against the wall but he did not remember whether it was the left or the right wall. He further stated that he did not know whether any liquid fanta fell on the wall but stated that the fridge was next to the wall where the bottle was broken. According to him when the bottle was broken Paresh PW11. Prashant PW12, Mahesh PW 14 and Suni IP W15 were present in the shop and the other persons came after breaking the bottle. He also stated that he had not seen the liquid fanta fallen inside the shop. He also stated that he did not know where the bottom part of the broken bottle had fallen but the bottle had remained in his hands which he saw till he was assaulted by the accused. Thereafter a number of omissions, in relation to his statement recorded earlier have been brought on record, on behalf of the accused.

11. As regards the first part of the incident, namely the accused dashing the shoulder of Ashok PW2 the learned trial Court has observed that there are conflicting versions and that it was not clear from the deposition as to who had dashed against whom or whether the dash was intentional or accidental. As already seen, the accused has stated in his evidence that the dash was given by Ashok PW2 to the accused in spite of the fact that there was sufficient distance for him to go to the shop. The prosecution was unable to shake the credibility of the accused, at least on the said version, and it appears that Ashok PW2 twisted the facts and has put the blame on the accused as the person who gave a dash on his shoulder when in fact what happened is on the contrary. Prashant PW12 in his statement recorded under Section 164, assuming it could be looked into, had stated that it is the accused who had questioned Ashok PW2 as to why he had given a dash to him and thereafter they had started abusing one another. Pravin Shetkar PW10 had categorically admitted in his cross-examination and without any murmur or demur from the prosecution, that it was Ashok PW2 who had dashed his shoulder against his shoulder of the accused. That was also the version given by Paresh PW11, Mahesh PW14 and Sunil PW15 who were admittedly present at the shop. That was also the version given by Sunil PW15 in his statement recorded under Section 164 of the Code. Even Ravindra PW5, father of Ashok PW2 accepted this position when he stated that Ashok PW2 had told him that as per accused Ashok PW2 had given him a dash. It was therefore obvious that it was Ashok PW2 who provoked the accused and although nothing has come on record, that certainly must have been due to some strange relations between them for there can be no other explanation as to why Ashok PW2 should have dashed the shoulder of the accused on purpose when otherwise there was sufficient place for him to go to the counter of the said shop. It is therefore obvious that it is Ashok PW2 who gave the dash to the accused on his shoulder and has turned the tables against the accused and therefore the first part of his version has to be considered as false and could not have been accepted.

12. The learned trial Court has not accepted the second part of Ashok PW2’s version as regards the accused giving abuses. The learned trial Court after considering the evidence of Prashant PW12, Mahesh PW14 and Sunil PW15 wherein they had stated that both Ashok PW2 and the accused had abused each other held that the accused could not have been held guilty of abusing Ashok PW2. The version of Ashok PW2 considering the overall evidence on record could not have been said as free from doubt

13. As regards, the breaking of bottle, the Learned trial Court had rightly observed that except for Ashok PW2 no other person had deposed as regards the accused breaking the bottle inside the shop, and in fact had placed the onus on the accused to prove the same. The learned trial Court had gone to the extent of observing that there was some discrepancy as to the fact whether the bottle was broken by the accused on the floor or on the wall and even if Ashok PW2 stated that he did not remember whether it was the left wall or the right wall and further that he did not know whether liquid fanta fell on the wall or not, much importance could not be given to the said discrepancy since Ashok PW2 was outside the shop and the accused was inside the shop. In fact, except for the version of Ashok’PW2 as regards the breaking of the fanta bottle on the wall none of the other witnesses has subscribed to his version. That the bottle was broken by accused is a version which was not supported by Mahesh PW14 either in his statement recorded under Section 161 or Section 164 of the Code or in his evidence before the Court. Likewise, Prashant PW12 had also not supported such a story at any of the said three stages of his statement/evidence-. If the accused had broken the fanta bottle against the wall, some liquid fanta was bound to be spilled over the wall. However; Suraj Zambaulikar PW3 has stated that there was fanta liquid on the ground and not on the wall. He had also stated that from inside the shop the bottom part of the broken glass bottle was attached by the police and mat Siddhant Shirodkar PW18 had told them that the glass pieces pertained to me bottom part of the fanta glass bottle and except the said pieces no other glass pieces were found in the shop. The Panchanama was drawn soon after the incident at about 22.15 hours. Suraj Zambaulikar PW3 had also stated that Suraj Chari PW1 had showed the place of assault and had also shown the broken upper part of the fanta glass bottle which was lying on the muddy ground of the shop with number on the lid which was 11186. However, Shirodkar PW18 when questioned on the aspect of the said bottle had stated that since the glass pieces were scattered at the scene of offence it was difficult to match the upper part of the glass bottle with its lower base. He had also stated that no fanta liquid was found in the glass bottom base. In other words, it appears that the Investigating Officer Shirodkar PW18 did not even make a cursory effort to find out whether the bottom part and/or glass pieces found inside the shop matched with the top part found outside the shop. On the other hand, Paresh PW11 had stated that the police had attached from his shop broken glass bottle and broken glass pieces but the same glass bottle was accidentally broken while removing from the crate and it was an empty broken bottle. On the face of the evidence of Paresh PW11 and in the absence of any other evidence to corroborate the version of Ashok PW2 that it is the accused who had broken the bottle against the wall and in the absence of any liquid fanta having fallen on the wall as well, the version of Ashok PW2 could not be accepted as free from doubt that the accused had broken the bottle while inside the shop of PrashantPW12.

14. The learned trial Court has exposed the falsity of the case of the prosecution as regards the arrest of the accused namely that he was arrested on 17.04.2002 while the accused was moving suspiciously near the State Bank of India near Zambaulim. The learned trial Court referred to the version of the accused that immediately after the incident he along with Sandesh Shelpekar DW2 had gone to the Police Station on 16.04.2005 and on that day itself he was put in the police lock-up and the said version of the accused was corroborated by none other than the complainant Suraj Chari PW1 himself who had stated that when he had gone to lodge the complaint, the accused was already there at the Police Station and was arrested and was in the lock-up. The learned trial Court therefore had concluded that the story of Shirodkar PW18 that the accused was arrested on 17.04.2005 while he was moving suspiciously near State Bank of India, Zambaulim had to be discarded totally and so also the so-called admission made by the accused to the Investigating Officer that he had wiped the blood stains on his T-shirt. This is not a simple case of discarding the version of the Investigating Officer but his story of subsequent arrest shows that Shirodkar PW18 also indulged in fabrication of a document namely the arrest Panchanama Ex.14 in support of which the said Suraj Zambaulikar PW3 was examined. Learned counsel on behalf of the accused has also submitted that if Panchanama Ex. 15 regarding the attachment of clothes of Ashok PW2 was conducted between 00.00 hours and 00.45 hours on 17.04.2005 at GMC then certainly Shirodkar PW18 could not have reached back to the Police Station to conduct the said Panchanama of arrest of the accused at 2.00 hours. Since the arrest of the accused was manipulated by Shirodkar PW18 that gives credence to the story of the accused that the case is manipulated against him. Once it is shown that investigations are tainted, it would be unsafe to rely on such investigations.

15. Learned counsel on behalf of the accused has also submitted that this a fit case to draw adverse inference against dropping of Rajesh PW6 and non-examination of his brother Sanjay Mesta who were independent witnesses and in that regard learned counsel has placed reliance on the case of Bir Singh & Ors. v. The State of U.P. MANU/SC/0082/1977 : AIR 1978 SC 59 wherein the Apex Court has stated that although it is true that it is not incumbent on the prosecution to examine each and every witness so as to multiply witnesses and burden the record, this rule will not apply where the evidence of the eyewitnesses suffers from various infirmities and could be relied only when properly corroborated. In this case, there have been two versions given, one supported by the relatives of Ashok PW2 and the other by the persons who were present there, namely, Mahesh PW14, his two brothers and others and in such a situation it was certainly incumbent upon the prosecution to examine the said two witnesses and in the absence of examination this would be a fit case to draw adverse inference against the prosecution for their non-examination.

16. That the injury on Suraj PW1 was accidental is a version given by the accused as well as Madhusudan PW8, though for different reasons. As per the accused that injury was caused when Madhusudan PWS wanted to assault the accused. As per Madhusudan PW8 himself that injury was caused when Suraj PW1 was obstructing the accused from assaulting Ashok PW2, and, therefore it could not have been said to have been intentionally caused to Suraj PWI and on that count the accused could not have been convicted. If the version of Ashok PW2 or for that matter the case of the prosecution could not be accepted thus far, benefit of doubt ought to have been given to the accused as far as die injury to Ashok PW2 was caused. The evidence clearly shows that it is me accused who was taking shelter inside the shop out of fear of Ashok PW2 and his relatives who were outside the shop and who were demanding mat he comes out. If they had anything to question the accused they could have certainly gone inside the shop and questioned him about it. On the contrary, it appears that they wanted the accused to come out only to assault him. The learned trial Court did come to a conclusion that the injuries were caused in a scuffle. The fact that the T-shirt of accused was torn was evidence good enough of the scuffle and which also shows that his version that he was assaulted could not be ruled out. Considering the totality of the facts and circumstances of the case, in my view, this was a fit case to give benefit of doubt to the accused.

17. Consequently, the appeal succeeds. The impugned judgment and order is hereby set aside and the accused is acquitted under Sections 324 and 326, Indian Penal Code as well. The bail bonds of the accused, if any, shall stand cancelled.