B.K. Behera, J.
1. The petitioner assails the judgment and order passed by Mr. B.N. Patnaik. Assistant Sessions Judge, Puri, convicting him under Section 307 of the Indian Penal Code and sentencing him thereunder to undergo rigorous imprisonment for a period of seven years and the order of dismissal of his appeal recorded by Mr. N. Purohit,. Sessions Judge, Puri.
2. I have considered the convicted prisoner's application in revision from the jail and the evidence on record and have heard the learned Additional Standing Counsel for the State who tried at the initial stage of the hearing of this revision to support the order of conviction and' then left the matter to the judicial determination of this Court in view of the serious infirmities and inconsistencies in the evidence of the victim (P. W. 6) whose statements in this evidence had brought about has condemnation. For the reasons to be recorded hereinafter I am of the view Chat to maintain the order of conviction would mean travesty of justice.
3. The petitioner Gunanidhi Sundara and the co-accused Deban Mohanty stood charged under Section 307 read with Section 34 of the Indian Penal Code with having attempted to commit the murder of Rabindra Kumar Mohanty at Puri on the 25th June, 1980, by inflicting knife blows on his person in furtherance of their common intention and the allegation against them was that having rivalry with the victim Rabindra Kumar Mohanty (P. W, 6) and his friend and associate Santiranjan Mishra (P. W. 1) over the procurement of tourists to board the hired buses, the petitioner, being armed with a knife handed over to him by the co-accused, stabbed the victim on his abdomen quickly followed by further assault on his person on the lips and left hand causing serious internal injuries dangerous to life and then took to his heels. On the basis of the first information report (Ext. 1) lodged by P. W. 1 Santiranjan, the companion of the victim, investigation was taken up in the course of which the dying declaration (Ext. 3) of the victim was recorded by the doctor (P. W. 2) at the headquarters hospital at Puri and the witnesses were examined and some seizures were made. On the completion of investigation, the petitioner and the co-accused Deben Mohanty were prosecuted. To bring home the charge to them, the prosecution had examined eight witnesses of whom the victim (P. W. 6) the first-informant (P. W. 1) and two other persons, namely, Harekrishna Das (P, W. 4) and Bahuda Behera (P. W. 5) had been examined as the witnesses to the occurrence, P. Ws. 2 and 7 were the doctors who had treated the victim P. W. 3 was a witness to the seizures. P. W. 8, the Sub-Inspector of Police, had investigated into the case. The plea of the petitioner and the co-accused person was one of denial. No witness had been examined for the defence.
4. At the trial, P.W. 1 went to the length of disowning the statements said to have been made by him in the first information report naming the petitioner to be the assailant and according to him, owing to police pressure, he had made such a report P. Ws. 4 and 5 did not support the case of the prosecution and were put leading questions by it under Section 154 of the Evidence Act. Even the victim did not, in terms, support the case of the prosecution and made halting, hesitating and prevaricating statements with regard to the identification Of his assailor. Since the maker of the dying declaration survived, Ext. 3 could be used not as a piece of substantive evidence, but only to corroborate or contradict the maker thereof, namely, P. W. 6.
5. The trial Court, while considering the case against the co-accused Deben Mohanty, took note of the fact that none of the prosecution witnesses had stated that he had joined the petitioner or had assisted him in any manner for the commission of the crime and P. W. 5 who had made some incriminating statements with regard to his complicity had turned hostile and had stated that he had not made any statement to the Investigating Officer that this accused had handed over to the petitioner a knife with which the victim; was stabbed. The learned Assistant Sessions Judge went on to observe:
'Of coarse, his statement was confronted in the Court. In. the absence of any corroboration to what he is supposed to have stated before the I. O., it is not safe to rely on his-testimony. Hence, I find that the accused Deben Mohanty did not commit any act so as to be made liable for the offence.'
One wonders what the learned Assistant Sessions Judge could do in case there had been some 'corroboration' of what had been stated by P. W. 5 to the Investigating Officer. The fundamental and elementary legal proposition is that a statement made to a Police Officer by any person examined in the course of investigation recorded under Section 161 of the Code of Criminal Procedure is not and cannot be treated as substantive evidence except when falling within the provisions of Clause (1) of Section 32 of the Evidence Act or with regard to a discovery under Section 27 of the same Act. It may be used only for the purpose of contradicting the evidence of the prosecution witnesses and not for the purpose of corroborating their evidence nor for contradicting a person examined in the course of investigation who later figures either as a Court witness or as a defence witness. With no substantive evidence adduced by the prosecution against the co-accused, the trial Court had to record an order of acquittal in his favour.
6. Coming to the case against the petitioner, there was only the evidence of the victim (P. W. 6) who stood self condemned, P. W. 6 began his evidence thus:
'I do not know the accused persons. I cannot identify them, I do not remember if there was any occurrence as alleged in this case on 25. 6. 80.'
In paragraphs 2 and 3 of his evidence, he had deposed:
'2. On 25th June, while I was coming alone on the road from Swargadwar near Puri View Hotel, I was stabbed by accused Gunanidhi Sundara (accused is being identified by the witness) by means of a knife by coming behind me. I sustained a bleeding injury on my stomach. I was treated by Dr. Bamadeb Mohanty. I stayed in the hospital as an indoor patient for a long time. While in the hospital, I have signed on a paper in presence of a Police Officer in which my statement was recorded. Ext. 3/1 is my signature. The statement which has been recorded in Ext. 3 was made by me and it had been correctly written.
3. When I was stabbed by the accused who is in the dock at the said time of occurrence I was wearing a Lungi and a shirt. The Lungi and shirt became blood stained. M. O. I is the Lungi. M. O. II is the shirt.'
In his cross-examination, it had been brought out:
'I have wrongly stated that accused Gunanidhi assaulted me, but a person like him had assaulted me. I was not in a proper state of mind when I was stabbed. I could not identify the person who assaulted me.'
On his own showing, P. W. 6 had made inconsistent statements at different stages in his evidence recorded on the same day continuously and had blown hot and cold in the same breath. Unfortunate as it might seem, the first part of the evidence of P. W. 6 was not even noticed by the trial and appellate Courts in their judgment This part of the evidence must never have been overlooked. While this witness did implicate the petitioner at a later stage in his examination-in-chief, he had, in his cross-examination, stated that a person like the petitioner had assaulted him and as he was not in a proper state of mind when he was stabbed, he was not in a position to identify his assailant. Cross-examination is a part of the evidence as provided in the Evidence Act and while judging the veracity of the testimony of a witness, the statements made by a witness in his cross-examination cannot be brushed aside and only those statements made by him which would lend support to the case of the prosecution are not to be accepted.
7. The learned Assistant Sessions Judge observed in his judgment:
'...In my opinion, the statement made by this witness in the cross-examination is either a chance statement or the same was made under some stress or pressure by the accused out side the Court before he came to the dock....'
This inference, in my view, was unwarranted especially because P. W. 6 was the victim himself and his examination-in-chief in which he had implicated the petitioner in the second part thereof and his cross-examination had been recorded continuously on the same day without any break and after the statement was made by him in his cross-examination that he was not in a position to identify his assailant, neither the prosecution took care to re-examine this witness to ascertain as to how he had made conflicting statements nor did the trial Court put any question under Section 165 of the Evidence Act to get at the truth. In this state of affairs, the trial Court was not at all justified in drawing the inference it did. The trial Court further held:
'...The question that arises for consideration is whether the Court should be guided by the statement made by P. W. 6 in the cross-examination under some possible stress or pressure and treat it as the absolute truth, or should the Court appreciate1 the evidence by taking into consideration all his previous statements as said above including the one made in the Court in the examination-in-chief...'
Then the trial Court quoted an extract from the judgment of the Supreme Court in the case of Inder Singh and Anr. v. The State (Delhi Administration) 1978 S. C. C. (Criminal) 564 in which it was observed and held:
'Credibility of testimony, oral circumstantial, depends considerably on a judicial evaluation of the totality, not isolated scrutiny. While it is necessary that proof beyond reasonable doubt should be adduced in all criminal cases, it is not necessary that it should be perfect. If a case is proved too perfectly, it is argued that it is artificial; if a case has some flaws, inevitable because human beings are prone to err, it is argued that it is too imperfect. One wonders whether in the meticulous hypersensitivity to eliminate a rare innocent from being punished, many guilty men must be callously allowed to escape. Proof beyond reasonable doubt is a guideline, not a fetish and guilty men cannot get away with it because truth suffers from some infirmity when projected through human processes. Judicial quest for perfect proof often accounts for police presentation of fool proof concoction.'
The trial court then found:
' The isolated statement made by P. W. 6 in the cross-examination in this case cannot out-weigh the statement made by himself at the earliest occasion namely, Ext. 3. The facts mentioned in Ext. 3. corroborate clearly the statement made by P. W. 6 in the examination-in-chief. Ext. 3 is a reliable document. The F. I. R. (Ext. 1) also corroborates the facts mentioned in Ext. 3 and the facts deposed to by this witness in the examination-in-chief. The endorsement in the bed-head ticket on the very day of occurrence by the attending surgeon also goes a long way to show that the injured himself had disclosed to the attending surgeon that it was accused Gunanidhi Sundara who committed the act as alleged. In terms of the aforesaid Court decision, the totality of the evidence on record should be taken into consideration and not some isolated facts or statements made by the witnesses. The total evidence appearing from the testimony of the witnesses and the documents, namely (F. I. R.) statement of P. W. 1, Ext. 3, statement of P. W. 2, Ext. 7 and the statement of P. W. 6 himself in the examination-in-chief coupled with the statements of P. W. 4, leads to the irresistible conclusion that it was accused Gunanidhi Sundara who committed the alleged offence and none else. In view of this unimpeachable evidence, the stray statement made by the injured in the cross-examination becomes insignificant and unreliable.'
8. A first information report cannot be treated as substantive evidence. It can only corroborate or contradict its maker and no one else. Ext. 3 the dying declaration, could not be treated as substantive evidence as the victim survived the assault and could only be considered for corroborating or contradicting the evidence of the maker thoreof under Section 157 of the Evidence Act. Each of these two documents, therefore, was not substantive evidence and while Ext. 3 could corroborate or contradict the evidence of its maker ( P.W.6 ), the first information report could corroborate or contradict the evidence of the first-informant (P.W.I). As earlier indicated, P.W. 1 had not supported the case of the prosecution and had disowned the statements said to have been made by him in the first information report and P. W. 6 had begun by saying that he was not in a position to identify the accused persons, then identified the petitioner as his assailant and ultimately gave a go-by to what had been stated in the examination-in-chief naming the petitioner as the assailant and stated in his cross-examination that he was not in a position to identify the assailant. The evidence of P.W, 6 must be held to be unreliable and unworthy of credence in view of the conflicting and irreconcilable statements made by him at three different stages. No part of the evidence of such a witness can be relied on. It was highly improper on the part of the trial and appellate Courts to pick out only that part of his evidence which supported the case of the prosecution as worthy of acceptance because it found corroboration from the statements made by him in Ext. 3.
9. The appellate Court observed and held:
'...As already seen, the details of the assault and the description of the weapon are shown to be true and correct. There is no reason to doubt the correctness of the identity of the appellant as the assailant, as given in Ext. 3. The position of the signature of P. W. 6, it is obvious, was due to the fact that he was lying in bed in a precarious condition and the signature was put by him in that posture in that physical and mental state and, therefore, sufficiently explained. I agree with the conclusion of the learned trial Judge that the change of front by P. W. 6 himself in his cross-examination to throw the identity of the appellant in doubt, cannot be allowed to nullify the proses of the law and exonerate the appellant from answerability.'
It would be apparent from the conclusion recorded by the appellate Court that it falls into the same errors and its judgment suffered from the same pit-falls as that of the trial Court and no due and proper notice had been taken of the first and last statements made by P.W. 6 which would show that he was not in a position to properly identify his assailant. Regard being had to the quality and effect of the evidence of P. W. 6, it must be held that the petitioner could not be indicated for the commission of the offence with which he stood charged only on the basis of his evidence.
10. A moral conviction regarding the guilt of an individual has no place in criminal jurisprudence. A Court of law is to get at the truth from the legal evidence placed before it by either side and is not to be guided by a moral conviction or influenced by the gravity of the crime. In a case of this nature, one may be convinced morally that the person originally named as the assailant in the previous documents was the author of the crime. But moral conviction cannot lead to a legal conviction of an accused person. An order of conviction can be based only on legal evidence and not on hypothetical propositions or unwarranted inferences. Surmises and suppositions cannot take the place of legal proof in a criminal trial and suspicion, however grave, cannot sustain a criminal charge. In the absence of legal proof, there can be no legal criminality.
11. While I would accept the concurrent findings recorded by the Court below that the murderous assault on the person of P.W. 6 was such that the assailant could legally and reasonably be convicted of an offence of attempting to commit murder, in the absence of legal proof that the petitioner was the author of the crime, an order of conviction could not legally be recorded against him. The impugned orders of conviction recorded by the trial and appellate Courts are illegal, unfounded and misconceived. This is a fit case in which this Court, in its revisional jurisdiction, must set at naught the conviction of the petitioner and free him of the charge.
12. In the result, I would allow the revision, set aside the order of conviction and sentence passed against the petitioner and direct that he be set at liberty forthwith.