LAW FOR ALL

conviction basing on 161 statement is erroneous in law= placing reliance upon their statements under Section 161 [who turned hostile ] by the High Court to record the finding of conviction is erroneous in law. = The material evidence on record does not reveal anything which incriminates both the appellants. Further, the depositions of parents of the deceased i.e., PW-13 and PW-14 in no way implicate both the appellants as the offenders. Rest of the prosecution witnesses have turned hostile and have not supported the prosecution story on material facts to show that both the appellants are involved in the crime as alleged against them.In the instant case, the prosecution has failed to prove the guilt of both the appellants beyond reasonable doubt. Though the prosecution witnesses Nos. 1,2,3,4,5,7,8,9,10,11,12,18,29,20,21 and 23 have turned hostile, their alleged statements made to the police under Section 161 of CrPC were not confronted to them and marked as exhibits and further the I.O. has not spoken in his evidence anything about the alleged statements of the above hostile witnesses recorded under Section 161 as held by this Court in three Judge Bench in the case of V.K. Mishra v. State of Uttarakhand[10]. Thus, placing reliance upon their statements under Section 161 by the High Court to record the finding of conviction is erroneous in law. The High Court has failed to appreciate the same in arriving at different conclusion other than the Trial Court in exercise of its appellate jurisdiction. Therefore, the impugned judgment and order passed by the High Court must be set aside by this Court in exercise of its appellate jurisdiction. For the reasons stated supra, this criminal appeal is allowed. The impugned judgment and order dated 09.06.2009 passed by the High Court of Kerala at Ernakulam in Criminal appeal No. 1898 of 2005 is set aside and the judgment and order of acquittal passed by the Trial Court is restored. Both the accused-appellants are acquitted of all the charges levelled against them.