Statements recorded under section 164 CrPC are not substantive evidence and can only be used to corroborate or contradict the witness.

This appeal arises out of judgment dated 24.6.96 delivered by learned Sessions Judge, Lakhimpur in Sessions Case No.123 (NL)/97, thereby holding the accused-appellant guilty of offence punishable under section 302 read with section 149IPC and sentenced them to undergo imprisonment for life with fine of Rs. 1,000/- each or in default of payment of fine to suffer six month's impri­sonment. Aggrieved by the same, the accused appellants have preferred this appeal.

2. Prosecution case stated in brief was that on 4.4.89 (which happened to be a market day of the area), around 10.30 AM Habibur Rahman (deceased) while he was sitting in a tea stall belonging to one Abdul Latif, situated at Sonapur Chariali, he was attacked by the accused-appellants along with three others (two of whom have since been acquitted by the trial Court and no State appeal has been preferred against such acquittal and the third one, namely, Kubed Ali was not charged-sheeted and sent for trial by the police), who intruded in the stall being armed with weapons like dao and started assaulting Habibur Rahman, the owner of the tea stall, PW 6 Abdul Latif immediately took to his heels, while others in the neighbourhood, who rushed to the stall on hearing hulla could only find the injured in a precarious condition but none of them claims to have seen the accused.

3. It was PW 2 Saidur Rahman, who lodged the ejahar at Police Station Bihpuria which resulted in registration of a case under section 148/448/302 IPC investigated by PW 7 Sahrab Ali. On completion of investigation the accused appellants along with two others (since acquitted) were put up for trial. Prosecution examined 7 witnesses in support of the charge. The defence stand taken by the, accused was one of false implication. The trial Court however rejected the same as found them guilty and convicted as already noted. Hence this appeal.

4. One significant feature of investigation which to be noted is that the statement of almost all the witnesses including that of PW 2 the younger brother of the deceased were recorded under section 164 CrPC as if he was also doubted. The testimony of these witnesses is not to be doubted from the very beginning but needs to be scrutinised with caution. This recording of statement under section 164 CrPC of the whole lot of witnesses is itself indicative of the fact that there was a stage during investigation where even the investigating agency believed for a while that these witnesses were not likely to support the prosecution case and therefore the necessity to pin them down to a particular statement and the price of any departure therefrom is the prosecution for perjury. All these witnesses PWs 3,4,5 and 6 have testified that they were hauled up by police, detained in custody for the night, tutored and tortured for the statement to be made before the Magistrate next day and released thereafter. Although PW 7, the IO has denied having indulged in any such malpractice, this denial does not help him in face of the equivocal statements made by the witnesses.

5. There is yet another reason for noting this fact. The learned Judge of the trial court has made a liberal use of these statements recorded under section 164 CrPC treating them as if they are substantive evidence. At one stage, in the impugned judgment although it is noted by the learned judge that such statements are not substantive evidence yet, he has fallen into an error by not only allowing these statements to go on record as substantive evidence but also seeking substantial corroborative support of the prosecution case from such statement recorded under section 164 CrPC. Learned counsel appearing for the appellant was highly critical about such approach on the part of the trial Court. He contended that there is no legal evidence to sustain the charge, much less the conviction, as recorded by the trial Court.

6. Learned Public Prosecutor Mr. Goswami, appearing for the respondent State, on the other hand,