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Madhya Pradesh High Court · body

2005 DIGILAW 109 (MP)

Ashok v. State of M. P.

2005-01-20

A.K.AWASTHY, DEEPAK VERMA

body2005
Judgment ( 1. ) APPELLANTS have filed the appeal under Section 374 of the Cr. PC against the judgment and order dated 30-11-96 in S. T. No. 185/92 by Additional Sessions Judge, Rajgarh against the conviction and sentence under Section 302/34, IPC for the imprisonment for life and payment of fine of Rs. 5,000/- each and in default of payment of fine rigorous imprisonment for 1-1 years. ( 2. ) THE prosecution case is that the appellants and Ashok were staying in Room No. 143 of Anand Lodge, Biaora and on 15-9-92 at about 5 PM on the counter of the Lodge before Manager Suresh (P. W. 5) appellants and Ashok had quarrel on the demand of money and thereafter the appellants accused alongwith said Ashok went to the Room No. 143 of the Lodge. That Manager Suresh (P. W. 5) and the servants of the Lodge Manoj (P. W. 1) and Rambabu (P. W. 6) heard the noise of the quarrel from Room No. 143. That after some time, the appellants were seen by Manoj (P. W. 1), Suresh (P. W. 5) and Rambabu (P. W. 6) carrying the deceased Ashok to the Hospital. That Dr. Chandra Mohan Singh Tripathi (P. W. 3) found the deceased Ashok dead and on 15-9-92 the written report (Ex. P- 5) was sent to the Police Station, Biaora. That the FIR was registered against the appellants under Section 302/34 and the Investigating Officer D. S. Chandel (P. W. 10) reached on the spot and the map was prepared by him. ( 3. ) THAT Head Constable Shivbhuwan Tiwari (P. W. 4) prepared the Panchnama (Ex. P-7) and it was seen that the death of Ashok was on account of throttling and the injury on his body. The dead body of Ashok was sent to the hospital on 16-9-92, and the post-mortem of Ashok was conducted by Dr. Chandra Mohan Singh Tripathi (P. W. 3) who has found that the deceased had the injuries on his neck and other part of the body and the cause of death was throttling. That during the investigation the statement of accused Vijay under Section 27 of the Indian Evidence Act were recorded and a Towel was recovered from his possession. During the investigation register of the Lodge was seized wherein entry of taking the room by the accused was mentioned. That during the investigation the statement of accused Vijay under Section 27 of the Indian Evidence Act were recorded and a Towel was recovered from his possession. During the investigation register of the Lodge was seized wherein entry of taking the room by the accused was mentioned. After usual investigation, the charge-sheet was filed against all the accused persons for the offence punishable under Section 302/34 of the IPC. ( 4. ) THE prosecution has examined eye-witness Manoj (P. W. 1), Dr. B. K. Gupta (P. W. 2), Dr. Chandra Mohan Singh Tripathi (P. W. 3), Head Constable Shivbhuwan Tiwari (P. W. 4), eye-witness Suresh (P. W. 5), eye-witness Rambabu (P. W. 6), Gokal s/o Madan (P. W. 7), Gokal s/o Chhagan (P. W. 8), Rajendra Jain (P. W. 9) and the Investigating Officer D. S. Chandel (P. W. 10 ). The learned Trial Court has held that the eye-witnesses in their statement under Sections 161 and 164 have alleged to the effect that the accused has caused the murder of Ashok and as such, they were convicted and sentenced accordingly. ( 5. ) THE appellant has assailed the conviction that in spite of the absence of eye-witnesses and in spite of the fact that the witnesses to prove the circumstances were hostile, the learned Trial Court has erred in believing the statement of the witnesses recorded during the investigation and in convicting the accused and as such, they should be acquitted. ( 6. ) THERE is no eye-witness in the case. The prosecution has examined Manoj (P. W. 1), Suresh (P. W. 5) and Rambabu (P. W. 6) to prove the following circumstances to bring home the guilt of murder against the accused persons. (1) That on 15-9-92 at about 5 PM at the counter of the Lodge the accused had quarreled with deceased Ashok over the demand of the money. (2) That Manoj (P. W. 1), Suresh (P. W. 5) and Rambabu (P. W. 6) have heard the noise of the quarrel from the room of the Lodge where the accused with deceased were staying. (3) That on 15-9-92 at about 7 PM all the accused were seen carrying the body of Ashok to the Hospital. ( 7. ) THE witness to the aforesaid circumstantial evidence Manoj (P. W. 1), Suresh (P. W. 5) and Rambabu (P. W. 6) had turned hostile. ( 8. (3) That on 15-9-92 at about 7 PM all the accused were seen carrying the body of Ashok to the Hospital. ( 7. ) THE witness to the aforesaid circumstantial evidence Manoj (P. W. 1), Suresh (P. W. 5) and Rambabu (P. W. 6) had turned hostile. ( 8. ) MANOJ (P. W. 1) has admitted in Para 5 of the cross- examination that the quarrel between the accused and the deceased on the counter has not taken place in his presence. He has further stated in Para 9 of the cross-examination that he is unable to say that who were staying in Room No. 143 of the Lodge on 15-9-92. Manoj (P. W. 1) has further admitted that he has not heard the noise of quarrel nor he has seen the accused taking away deceased Ashok from the Lodge. ( 9. ) SURESH (P. W. 5) and Rambabu (P. W. 6) who were working in the Lodge have stated that no incident has taken place on 15- 9-92 before them and they have not seen the accused quarreling with the deceased or taking him away from the Lodge. The prosecution has declared Manoj (P. W. 1), Suresh (P. W. 5) and Rambabu (P. W. 6) as a hostile witness. These witnesses have denied their statement under Sections 161 and 164 of the Cr. PC. ( 10. ) THE learned Trial Court has observed in Para 16 of his judgment that these witnesses have alleged in their statement under Section 164 of the Cr. PC that the accused had quarrel on the counter with the deceased and they have taken the body of deceased after altercation with him in the room of the Lodge and on the basis of the aforesaid circumstances, existing in the statement of these witnesses under Section 164 of the Cr. PC the accused were convicted. ( 11. ) THE learned Trial Court has used the inadmissible evidence to prove the case of the prosecution. The statement under Sections 161 and 164 of the Gr. PC are not admissible in enquiry or trial or for the corroboration of the evidence of a witness in the Court. The provision of Section 162 is a valuable safeguard to the accused. The right guaranteed to an accused under Section 162 is total and absolute and this ban imposed under Section 162 of the Cr. PC is sweeping and wide. The provision of Section 162 is a valuable safeguard to the accused. The right guaranteed to an accused under Section 162 is total and absolute and this ban imposed under Section 162 of the Cr. PC is sweeping and wide. It is held in case of Sat Paul v. Delhi Administration, AIR 1976 SC 294 and in case of Rameshwar Singh v. State of Jandk, AIR 1972 SC 102 that the use of the statement recorded during the investigation for proving the case is barred and it is not a substantive piece of evidence and such statement can not be used even for the corroboration of the evidence of the witness in the Court. The learned Trial Court has acted on the statement recorded under Sections 161 and 164 of the eye-witnesses and he has overlooked the prohibition contained in Section 162 of the Cr. PC. There is no evidence whatsoever against the appellants accused of their involvement in the offence of murder of deceased Ashok. ( 12. ) CONSEQUENTLY, the appeal is allowed. The appellants accused are acquitted from the offence punishable under Section 302/34 of the IPC. The appellants are released forthwith if not required in any other case.