2010 Supreme(All) 3749

[2010(10) ADJ 10 (NOC)]
ALLAHABAD HIGH COURT
BEFORE : S.C. AGARWAL, J.
OMKAR AND ANOTHER ....Appellants (In Jail)
Versus
STATE OF U.P. ....Respondent
(Criminal Appeal No. 1769 and 1915 of 1981, decided on 22nd October, 2010)

Headnote:(A) (Indian) Penal Code, 1860—Section 307/34—Criminal Procedure Code, 1973—Sections 161 and 162—Evidence Act, 1872—Sections 145, 32(1), 33 and 3—Attempt to murder—Conviction—Sustainability of—Delay in FIR—Clearly shows that witnesses and injured were not able to decide—As to which are persons to be named in FIR—Statements recorded by police officer are merely statements—And are not signed by witnesses—In terms of Section 162 of Cr.P.C. such statements can only be used by accused—With permission of Court—By prosecution to contradict such witnesses in manner provided by Section 145 of Act—When such witnesses are called for prosecution in an enquiry or trial—In view of Section 3 of ACt “Evidence” means statement given in Court—Section 33 of Act was not applicable in present case—Injured witness could not see accused persons—Because they were in a fast sleep—Prosecution failed to prove case beyond reasoanble doubt.

       (B) Evidence Act, 1872—Section 33—Applicability—Statement of witness—Prior statement of witness must be evidence given in a judicial proceedings—Or before any person authorised by law to take it.

       (C) Criminal Procedure Code, 1973—Section 161—Statement thereunder—Evidentiary value of—Statements recorded by I.O. under Section 161—Are merely statements and do not amount to evidence.

       Appeal Allowed.