4. We have also very carefully gone through the statements of the two primary witnesses PW-2 Kishori Lal, the father of the victim and PW-10 Rajinder Gaur, her brother. A bare reading of their statements shows that the entire story with regard to the factum of the cruelty, the manner in which the deceased was dealt with, and the behaviour of the accused towards her had been built up during the evidence recorded in Court. We may refer to one significant fact which has been omitted in the statements u/s 161, Code of Criminal Procedure This is with regard to the oral dying declarations made to them by the deceased and when confronted could give no explanation for the omission. In addition, it is clear that the dying declaration recorded Ex.PCC had been maneuvered at the instance of Rajinder Gaur PW. As already indicated above, the trial court as well as the High Court have not placed much reliance on the statements of these two witnesses. We are of the opinion that their statements, in fact, inspire no confidence. We may also refer to the Explanation to Section 162 of the Code of Criminal Procedure The same is reproduced here in below:
Explanation. – An omission to state a fact or circumstance in the statement referred to in Sub-section (1) may amount to contradiction if the same appears to be significant and otherwise relevant having regard to the context in which such omission occurs and whether any omission amounts to a contradiction in the particular context shall be a question of fact.
5. A bare reading of this Explanation would reveal that if a significant omission is made in the statement of a witness recorded u/s 161 of the Cr.P.C., the same may amount to a contradiction and that whether it so amounts is a question of fact in each case. It is clear to us that the ocular evidence with regard to the events preceding the actual incident rested exclusively on the statements of P Ws.2 and 10. The glaring omissions made by them are writ large in the cross-examination. We are, therefore, of the opinion that the present case is one of no evidence and the possibility that the deceased had been burnt in an accident cannot be ruled out. We, accordingly, allow the appeal, set aside the conviction of the Appellant and order his acquittal.
Party: Subhash vs. State of Haryana – Criminal Appeal No.184 of 2006 – 16-12-2010.
