B.K. Behera, J.
1. The appellant stood charged under Section 302 of the Indian Penal Code (for short, 'the Code), in the Court of Mr. C.P. Panda, Additional Sessions Judge, Rourkela, with having committed the murder of Manik Das, along with the absconding co-accused Rabin Das by means of a sharp cutting weapon during the night of November 24, 1982, near the R.C. Mission Church at Rourkela. It was alleged by the prosecution that having come with Manik Das (to be referred to hereinafter as 'the deceased') from Calcutta when the latter came with Rs. 6,000/- in search of service at Rourkela and after staying in the Blue Star Hotel of which Ram Kripal Singh (P. W. 19) was the Manager, in the name of A. K. Sarkar, where also the deceased stayed in the name of G. Sengupta, the appellant with his companion Rabin Das and the deceased left in a tempo' with Gopal Naik (P. W. 9), Dillip Singh Burma (P. W. 10) and Ajay Singh Burma (P. W. 14) during the fateful night and on the way, the 'tempo' was stopped for fuel when the appellant, the co-accused and the deceased left that place and the deceased was done to death. The murder was said to be for gain. The appellant and his companion returned to the place where the 'tempo' had been halted, but not the deceased and for this, suspicion grew in the mind of the driver (P. W. 10) and he straight drove it to the Tangerpali Police Station where the co-accused Rabin escaped. The Assistant Sub-Inspector of Police (P. W. 13), on the report of P. Ws. 10 and 14 regarding the suspicion entertained by them against the appellant and his companion, made a Station Diary Entry (Ex. 9) and produced the appellant before the Assistant Sub-Inspector of the Jalda Police out-post (P. W. 7) to which area the case related, who drew up the first information report (Ex. 4), sent it to the concerned Raghunathpali Police Station for registration of a case and took up the preliminary investigation which was continued and completed by the Officer-in-charge of the Police Station (P. W. 20).
2. In the course of investigation, P. W. 7 had visited the spot and had sent the deceased in an injured and unconscious state for medical treatment. The deceased succumbed to the injuries sustained by him. P. W. 20 had seized from the person of the appellant a shirt (M. O. VI), a full pant (M. O. VII), a banian (M. O. VIII), a sweater (M. O. IX) and a half-pant (M. O. X) and had collected his nail scarppings as these clothes and the nails of the appellant had suspected stains of blood. On the completion of investigation, a charge-sheet was placed showing the co-accused to be an absconder and the appellant was prosecuted.
3. To bring home the charge, the prosecution had examined twenty witnesses. P. Ws. 9, 10 and 14, who had figured as witnesses to the occurrence in the course of investigation, did not support the prosecution case and were put leading questions under Section 154 of the Evidence Act. There was thus no direct evidence of anyone having seen the commission of murder. The prosecution had relied on some items of circumstantial evidence to be discussed hereinafter.
4. A disquieting feature noticed by this Court is that the reports of the Chemical Examiner and Serologist in respect of the clothes which contained human blood and the nail scrappings of the appellant which contained blood had not been admitted in evidence and the prosecution had taken no steps in this regard. Consequently, no question had been put to the appellant with regard to the finding of the Chemical Examiner and Serologist.
5. On a consideration of the materials placed before him, the learned Additional Sessions Judge found that the charge had been established and accordingly, the appellant was convicted under Section 302 of the Code and sentenced there under to undergo imprisonment for life.
6. There could be no doubt from the evidence of the doctor (P. W. 3) who had first examined the injured person and that of the other doctor (P. W. 1) who had conducted the autopsy over the dead body of that person as per Ext. 1, the post mortem report, that person had died a homicidal death. It would, however, appear from the evidence of P. W. 3 that after the air pipe and the throat of the injured were repaired, he could speak out his name and address and according to this doctor, he had given out his name and address to be Jyoti Sengupta of Satpur, 24 Praganas. The learned Additional Sessions judge was not prepared to place reliance on this part of the evidence of P. W. 3 and held that with the injuries on his person, the deceased would not be able to give out his name and address. The doctor treating the injured person would be in a position to say and had categorically said that after the air pipe and threat were repaired, the patient could speak out his name and address. It was for this reason that the constable (P. W. 4) who had identified the dead body before P. W. 1, had given out the name of the deceased as Jyoti Sengupta and in the post mortem report, the, same name had been mentioned. The evidence from the side of the prosecution was that the deceased had stayed in the hotel of P. W. 19 in the name of G. Sengupta. However, P. W. 5, the widow of the deceased, who came to Rourkela on hearing about the incident, had testified that the photograph of the dead person, which had been taken by P. W. 12 in the course of investigation, was that of her deceased husband whose name was Manik Das.
7. Although an attempt had been made by the prosecution to bring out in the evidence that the deceased and the appellant had left Calcutta for Rourkela when the former had with him Rs. 6,000/-, no one had given evidence that actually both these persons had left Calcutta together. The widow of the deceased (P. W. 5) had stated in her evidence that she had been informed by the deceased that he was going to Rourkela with the appellant in search of service and that the deceased had Rs. 6,000/- with him. The statement of the deceased to P. W. 5 was not to be admitted in evidence as it would not come within the purview of Section 32(1) of the Evidence Act. It could not be said that the statement had been made by a dead person as to the cause of his death or as to any circumstances of the transaction which resulted in his death. The learned Additional Government Advocate has fairly submitted that he would not press this part of the evidence of P. W. 5 into service being inadmissible tinder the law in view of the principles laid down in AIR 1939 P. C. 47. Pakala Narayan Swami v. Emperor, AIR 1964 S. C. 900 : Moti Singh and another v. State of U.P. 35 (1969) C. L. T. 422 : Sadananda Bissoi v. State and 1984 Cri. L. J. 1597 : 1984 (1) O. L. R. 911 : Nilamber Patra v. State.
8. Leaving aside the aforesaid evidence, it is to be as to whether the charge had been established. While Mr. Patnaik for the appellant has submitted that the only other evidence against the appellant was that of P. W. 19, the hotel manager and of P. Ws. 9, 10 and 14 which was highly unsatisfactory and even if accepted, would not bring home the charge to the appellant, Mr. Panigrahi has submitted for the State that the evidence of P. W. 19 could with the circumstance of the appellant being last seen together with the deceased, as testified by P. Ws. 9, 10 and 14, would sustain the order of conviction.
9. Depending as the case does on circumstantial evidence, the five golden principles relating to the appreciation of such evidence aptly put as the 'Panchashil' of the proof of circumstantial evidence by the Supreme Court in AIR 1984 S.C. 1622: Sharad Birdhichand Sarda v. State of Maharashtra may be kept in mind. The five principles are (i) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances must or should and not may be established; (ii) the facts so established should be consistent only with the hypothesis guilty of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty; (iii) the circumstances should be of a conclusive nature and tendency; (iv) they should exclude every possible hypothesis except the one to be proved; and (v) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability, the act must have been done by the accused.
10. P. W. 19 had, no doubt, given evidence that the appellant had come alone with three others and had stayed in the Blue Star Hotel in the name of A. K. Sarkar and that another person had stayed in the name of G. Sengupta, but it had not been established by the prosecution as to who had given out the names. There was no clear evidence that the person who had stayed in the name of G. Sengupta was one of the three persons who had come together with the appellant. While P.W. 19 had identified the photograph (Ex. 8/1) to be of that person who had stayed in the name of G. Sengupta, his evidence would not established any guilt pointing circumstances against the appellants.
11.The only other evidence is that of P. Ws. 9,10 and 14. Dealing with their evidence, the learned trial judge has observed and held:
' On a consideration of the evidence of these three witnesses, the facts disclosed from the evidence shows that this accused and his friends namely the other accused Rabi Das and another one in that tempo with them near the church at Baligodi where they got down from the tempo and Ajay left the place for filling the tempo with petrol. It is also further disclosed from the evidence that after Ajay left that place for filling the tempo with petrol, this accused and his friend by showing knives chased to assault the other one who was with them and seeing that P. W. 9 Gopal and P. W. 10 Dilip left the place and when they returned with the tempo then found this accused and Rabi Das boarding the tempo whereas the other friend was not there. So far as this fact is concerned, there is no controversy but the evidence of P. Ws. 9 and 10 that this accused and his friend Rabi showing knives chased the other one and seeing that these two witnesses left the place remains to be considered. In this respect, this P. Ws. 9 and 10 when confronted with their earlier statement made before the I. O. and the Magistrate they admitted to have stated so before the I. O. and the Magistrate saying that having been tutored by the Police, they made such statement before the Magistrate. Except their own statements Chat they were tutored by the I. O. and the Police to say so before the Magistrate, there is no material on record to believe the same. If really that was the case, they could have stated to the Magistrate that the Police compelled them to make such statement but nothing is there in evidence to that effect. Under these circumstances, I am to believe that these witnesses although made true statements before the I. O., and the Magistrate, they now suppress the truth for the purpose of helping the accused in this case as well as for making themselves free from any doubt. Taking into consideration of their evidence I hold, now there remains no doubt that after taking liquor in Blue Star Hotel, they all proceeded towards Bali Jodi and near the Church they got down from the tempo and sent the tempo for filling with petrol and in the mean time as deposed to by these two witnesses this accused Santosh and the other one Rabin stabbed the deceased by means of knife.
12. The learned trial judge did not take due notice of the fact that none of these witnesses had given evidence that the appellant had gone in the company of the deceased. They had not identified the photograph (Ex. 8/1) to be of that person, who had accompanied the appellant and his companion.
13. It is unfortunate that the learned Additional Sessions Judge has relied on the statements made by P. Ws. 9, 10 and 14 under Section 161 and before the Magistrate under Section 164 of the Code of Criminal Procedure as substantive evidence. A statement made by any person in the course of investigation to a police officer is hit under Section 162 of the Code of Criminal Procedure except when it comes under the purview of Section 27 or 32 of the Evidence Act A statement under Section 161 can only be used for the purpose of contradicting the evidence of a prosecution witness. It cannot be used for corroborating the evidence of a prosecution witness. A statement under Section 164 stands on a slightly different footing in that it can be used both for corroborating or contradicting the evidence of the maker of it. But one fundamental thing which the learned trial judge has not kept in mind is that statements made under Sections 161 and 164 cannot be treated as substantive evidence against an accused person. This elementary and fundamental principle should not have been lost sight of. The learned, trial Judge treated the statements of P. Ws. 9, 10 and 14 as substantive evidence, asked the appellant to answer questions relating to such statements, which under the law he was not competent to do as an accused person could be put to notice regarding the circumstances appearing in the evidence against him and such statements made under Sections 161 and 164 could not be treated as evidence and he even relied on those statements made under Sections 161 and 164 in basing a conviction.
14. We would, however, record a few words about the duties of the prosecution and the defence. The learned counsel appearing for both the sides ought to have brought to the notice of the trial Court when the appellant was being examined that such statements ought not to have been put to the appellant as they could not constitute substantive evidence. If a trial Court proceeds on a wrong track or on incorrect lines, it is the duty of the public prosecutor and the defence counsel to invite the attention of the Court to the relevant provisions of law.
15. Even assuming, on the basis of the evidence of the Hotel Manager (P. W. 19) and that of P. Ws. 9, 10 and 14, that the appellant with another co-accused had been seen last with the deceased the fact that an accused and the deceased had been last seen together, by itself, cannot sustain a charge of murder. If there be other evidence on which a conclusion of guilt can be rested, this can be an additional Jink. [See AIR 1979 S. C. 1620 : Lakhanpal v. The State of Madhya Pradesh, AIR 1982 S. C. 1157 : Gambhir v State of Maharashtra, 1985 (1) OLR 4 Mantu alias Sunil Kumar Bhuyan v. State and 1983 Cri. L. J. 1854 (Cal) Mahadev Ghose v. The State.
16. Judged in the light of the principles laid down by the Supreme Court relating to the appreciation and probative value of circumstantial evidence, the evidence in the instant case was far short of the mark. In our view, the order of conviction was unfounded on facts and misconceived in law.
17. We thus find that there was no evidence against the appellant to bring home the charge of murder and he was entitled to an acquittal.
18. In the result, the appeal succeed and is allowed. The order of conviction and sentence passed against the appellant is set aside. The appellant be set at liberty forthwith.
P.C. Misra J.
19. I agree.