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2003 DIGILAW 276 (MP)

Hoshyar singh v. State of M. P.

2003-02-13

DEEPAK VERMA, N.K.JAIN

body2003
JUDGMENT Jain, J. -- Appellant Hoshyarsingh who alongwith his younger brother Gyansingh, was put on trial on the charge U/s 302 in alternative 302/34 of the IPC., has alone been convicted U/s 302 of IPC and sentenced to imprisonment for life by 6th Addl. Sessions Judge, Ujjain, vide impugned judgment dated 30.3.1995 in ST. No. 291/92. The entire case of the prosecution against the accused persons was based on circumstantial evidence and it was alleged that in the after-noon of 20th June, 1992, deceased Lal Singh had gone to the field of Chandar Singh, the father of the accused persons, where both the accused were also seen present near the deceased, by Dharmendra Singh (PW 2), eight years old son of the deceased. Later on Dharmendra Singh found his father lying dead in a pool of blood and both the accused persons were missing from the spot. Dharmendra Singh later on informed his other family members about the incident and a report vide Ex. P/3 was lodged by Umraosingh (PW 7), a cousin of the deceased, the same evening at Police Station Bhat Pachlana. During investigation accused were arrested and a blood-stained Dhariya was recovered in- the wake of disclosure made by the appel1ant to the police. After other necessary investigations both the accused were charge-sheeted for trial which ended into conviction of appellant Hoshyarsingh only, thus, giving rise to this appeal. We have heard Shri N.P. Sharma, learned counsel for the appellant and Shri G. Desai, learned PP for respondent State. We have also carefully gone through the evidence. This appeal, in our judgment, must succeed as there is virtually no evidence to sustain the impugned conviction. The Court below has relied upon mainly on the evidence of child witness Dharmendra Singh (PW 2) who in his examination-in-chief claimed to be an eye-witness and testified that he saw accused appellant Hoshyar Singh assaulting his deceased father by means of Dhariya. This statement of him was clearly contrary to the case as set-up by the prosecution in the FIR (Ex. P-3) as also in the statements of the witnesses recorded U/s 161 CrPC. When confronted with his earlier police statement, this child witness Dharmendra Singh (PW 2) in paragraph 4 of his cross-examination, admitted that he did not disclose it to the police that he had seen appellant Hoshyar singh killing his father. P-3) as also in the statements of the witnesses recorded U/s 161 CrPC. When confronted with his earlier police statement, this child witness Dharmendra Singh (PW 2) in paragraph 4 of his cross-examination, admitted that he did not disclose it to the police that he had seen appellant Hoshyar singh killing his father. He in paragraph 8 further admitted that his' father was all alone on the well and he merely saw his father dead when he returned to that well. He further admitted that he did not see the appellant killing his father. It will be, thus, seen that this witness Dharmendra Singh (PW 2) was not an eye-witness to the incident and did not in fact, see any-body killing his father. It is interesting to note that the Court below also was of the same judgment but still convicted the appellant holding that as per evidence of this witness, the appellant was last seen with the deceased on the said well and that later on the appellant was found missing from the scene of occurence. We have very carefully gone through the deposition of Dharmendra Singh (PW - 2) and in no part of his statement, he has deposed that the deceased was last seen in the company of appellant Hoshyarsingh. On the contrary in paragraph 8 of his cross-examination, he clearly admitted that his father was all alone on the said well and that when he returned to the spot, he saw his father lying dead. It is true that in the FIR (Ex. P-3) which the Court below has also taken into consideration, it was stated that the deceased was last seen in the company of the two accused persons including the appellant. But this FIR cannot be treated as a substantive piece of evidence and could be pressed in service only for the purpose of corroborating the evidence of the person who lodged it. Umraosingh (PW 7), who lodged this FIR, was merely a hear-say witness and was informed about the incident by Dharmendra Singh. His evidence also cannot, therefore, be pressed in service to prove the alleged circumstance of last seen. Similar is the nature of evidence of Tufansingh (PW 3) and Lakhansingh (PW 4). Umraosingh (PW 7), who lodged this FIR, was merely a hear-say witness and was informed about the incident by Dharmendra Singh. His evidence also cannot, therefore, be pressed in service to prove the alleged circumstance of last seen. Similar is the nature of evidence of Tufansingh (PW 3) and Lakhansingh (PW 4). So, unless the fact of last seen was testified by Dharmendra Singh (PW 2), the evidence of other witnesses on this point was of no avail and rather rendered inadmissible. As regards recovery of Dhariya at the instance of appellant, it may be mentioned at the out set that the origin and group of the blood found on the said Dhariya could not be ascertained. This piece of evidence was also, therefore, rendered useless. There was no evidence of motive either. It will be, thus, seen that there is no admissible and reliable evidence to connect the appellant with the crime in question. The impugned conviction and sentence are wholly unsustainable. The same are accordingly set-aside and the appellant is acquitted. He is already on bail and his bail bond shall stand discharged.