The use of statements recorded under Section 164 Cr.P.C. as evidence is limited to corroboration or contradiction, and in the absence of substantial evidence, such statements cannot sustain a conviction.

JUDGMENT

B.P. Routray, J. - All the six Appellants in the above appeals have been convicted under Section 302/34 of the I.P.C. in the same trial i.e., S.T.CaseNo.4/82 of 2007. Further, the Appellants in CRLA Nos.241, 234, 289 and 288 have been convicted under Section 27 of the Arms Act additionally. They have been sentenced to undergo R.I. for life for the offence under Section 302 of the I.P.C. and R.I. for a period of seven years under Section 27 of the Arms Act.

2. All the Appellants along with two others were prosecuted in S.T.CaseNo.4/82 of 2007 in the court of learned Additional Sessions Judge, Bhubaneswar.

3. Prosecution case is that, the deceased namely Chuna @Mallik Hanan was killed by Sk Hyder (since dead) and his associates on 31st May, 2005 between 7.30 to 7.45 P.M. by gunshot firing near Stewart School, Bhubaneswar due to group rivalry relating to tender fixing. The Inspector-in-Charge (P.W.47) of Nayapalli Police Station upon receipt of telephonic information of the incident immediately proceeded to the spot and found the deceased lying dead in front of the tyre-shop of one Tahir Alli. P.W.47 drew the plain paper F.I.R., which was registered as Nayapalli P.S.Case No.157 dated 31st May,2005. He held inquest over the dead body and seized one motorcycle, one Nokia mobile set, ten empty cases of cartridges and other articles from the spot. There was arch enmity between Sk Hyder and the deceased, both gangsters.

Subsequently, Sk.Hyder and others were arrested from Nagpur (Maharashtra) on 6th June, 2005 and were brought to Bhubaneswar. P.W. 47 continued with investigation which was later taken over by P.W.48, the Inspector of C.I.D.C.B., Cuttack. P.W.48 submitted the charge-sheet on 2nd October, 2005 for the offences stated above along with offence under Section 120-B of the I.P.C.

4. Prosecution examined 48 witnesses in course of the trial and exhibited 34 documents as well as 8 material objects. Among those witnesses, P.Ws.1 to 5, P.Ws.8 to 18 and P.Ws.20 to 23 were projected as eyewitnesses. But all such witnesses were turned hostile and did not support prosecution version. Similarly P.Ws.27, 28, 32, 33, 34, 36, 37 & 38, the seizure witnesses, were also turned hostile and denied their knowledge about the case as well as the seizures. P.W.9, 24 & 25 - the wife and sisters of the deceased, P.W. 14 & 15 -the brother and brother-in-law of the deceased have all turned hostile and did not support the prosecution case. P.W.26 is the Sub-Inspector of Police of Maharashtra, who arrested the Appellants at Nagpur. P.Ws.43, 44 and 45 are the Officers, who accompanied P.W.47 to the spot on 31st May, 2005 after the occurrence. P.W.46 is the Officer, who registered the F.I.R.

5. It is submitted on behalf of the Appellants that in absence of any substantial evidence with regard to direct eye witnessing of the occurrence or any circumstance connected thereto, the learned trial judge has convicted the Appellants based on the statements of some witnesses recorded under Section 164 Cr.P.C. It is further submitted that the learned trial judge has committed gross illegality by relying on 164 statements of those witnesses viz. P.Ws.2, 13, 14 & 17 despite their retraction in course of trial.

6. Having perused the trial court record, it reveals that the deceased sustained 11 gunshot injuries including entry and exist wounds. As per the opinion of forensic expert as well as ballistic expert marked under Exts.12, 15 & 24, six bullet injuries covering an area of 8" x 8" on the left abdomen were fired from a greater distance of 25ft. and rest of the injuries were fired from a shorter distance of 20ft. Some of the entry wounds do not have corresponding exit wounds due to lodging of the bullets inside the body either in any bonny cavity or bonny canal. The postmortem examination report under Ext. 12 and the expert's opinion under Exts.15 & 24 were not disputed in course of trial and the contents thereof have been admitted by the Appellants. These are al