Getting away with murder: The hostile witness

When the sun set on 21st October 1991, Sanicharwa left his village (Chatakpur) informing everyone that he was going to watch the orchestra in the neighbouring village fair. However, he never returned. The following morning Sanicharwa’s father went in search of him and enquired about his whereabouts from his friends but to no avail. Then the family started searching the entire locality only to find Sanicharwa’s dead body in the north of the Chatakpur village lying by the muddy road. The grieving family lodged an FIR on 22nd October 1991 at 15.45

In this case, we will not be exploring the material evidence, but we will be deeply examining the statement by one Dilip Barik – the man on whose words the entire case hinges.

Before the Trial court, the investigating officer deposed that he recorded Dilip Barik’s statement on 04th November 1991 and in the account before him, Dilip Barik had admitted that he was a witness to the ghastly murder of Sanicharwa. 

The details of his statement as recorded before the judicial magistrate is that – 

 On 21.10.91 at 9.00 PM, Dilip Barik along with his friend met with the accused – Jogan, Sanicharwa and three other boys in the fair. All of them went together to a hotel to drink some wine. On their way back to the village, Jogan and his three friends took out their knives and started assaulting Sanicharwa. When Dillip tried to stop them, they threatened him that they will kill him too. And so, in his presence, the four of them attacked, killed and threw away Sanicharwa’s body. After which they went to see the fair. However, out of fear for his own life, he didn’t disclose this to anybody. 

While this statement may seem to be the evidence that would result in the accused’s conviction, the cross-examination of Dilip Barik by the prosecution in the trial court reveals otherwise.

  • In his cross-examination, he stated that he was made to record such an implicating statement after being subjected to grievous hurt by the police.
  • Further, he denied meeting with the accused, the story regarding the wine as well as the fact that he witnessed the killing of Sanicharwa.

However, the trial court observed –

  • That while Dilip Barik had become a hostile witness, his declaration that he made the statement before the magistrate out of fear is wholly unreliable.
  • The court also remarked that it was unbelievable as to why the police should implicate an innocent person in a murder case.
  • Thus the trial court held that even though Dilip Barik had turned into a hostile witness, the whole evidence could not be thrown out.
  • And due to lack of evidence from other witnesses and circumstance, the truth must be found from his evidence vis-a-vis his statement recorded by police and the judicial magistrate.
  • Therefore, the overall effect of his statement is that Dilip Barik had actually seen the accused committing murder.  

And, accordingly, the court sentenced Jogan to rigorous imprisonment for life.

The case in appeal went to the High court, where after going through the facts, the Hon’ble High Court ruled

  • That for conviction the statement recorded under s-164 of 1973 code is unreliable and insufficient (court substantiated it with two case laws).
  • Moreover, there was no other material before the trial court to convict the accused, plus the court had misdirected itself that lack of motive on the part of the police could be a guiding factor in sustaining prosecution case. 

Thus, the High court didn’t agree with the trial court’s opinion and ACQUITTED THE ACCUSED.

[Jogan Barik v. State of Bihar (2019)]

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