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2005 DIGILAW 177 (MP)

Beniram v. State of M. P.

2005-02-04

A.K.AWASTHY, DEEPAK VERMA

body2005
JUDGMENT Awasthy, J. -- 1. Appellants - accused have filed the appeal under section 374 of the Code of Criminal Procedure against the Judgment and order dated 30.10.1995 delivered in Sessions Trial No. 466/1993 by learned First Additional Sessions Judge, Mhow, District Indore, wherein appellants were convicted and sentenced under section 302 read with section 34, IPC to undergo life imprisonment. 2. The prosecution case is that on 20.9.1992 at about 11:00 p.m. in the field of Keshar Singh at village Daloda, accused Beniram and Tularam caused the injuries by an axe to Sohan and at that time accused Dinesh has also struck him by Lathi. That the eye-witnesses Badri (PW 4) and Ramesh (PW 8) made an attempt to intervene and save the deceased Sohan and the accused has also caused the injury to Badri (PW 4) and Ramesh (PW 8) and thereafter the accused persons ran away. That Badri (PW 4) went to the village and apprised the incident to the brother of deceased Sohan, namely, Madanlal (PW 3) and Madanlal (PW 3) went to the field of Keshar Singh where he found his brother Sohan dead. In tae night Madanlal (PW 3) went to the Police Station Simrol and the First Information Report (Ex. P-5) was lodged by him in the night at about 1:00 a.m. ASI Anil Kumar Mishra (PW 12) after recording the FIR, proceeded to the spot and the spot map (Ex. P-11) was prepared by him and thereafter a Panchnama(Ex. P-4) of the dead body was drawn in presence of the witnesses and the dead body was sent for the post-mortem examination to M.Y. Hospital, Indore. 3. Dr. Surendra Dubey (PW 9) conducted the autopsy of the dead body of Sohan aged about 30 years and found 28 lacerated and incised wounds on all parts of the body of the deceased and he has also reported that there was a fracture in the parietal bone of the deceased and the injuries were ante mortem and sufficient in ordinary course of nature to cause the death. The post-mortem report is Ex. P-16-A. 4. The post-mortem report is Ex. P-16-A. 4. The investigating officer ASI Anil Kumar Mishra (PW 12) recorded the statements of accused Beniram, Tularam and Dinesh, in presence of witnesses Shakeel (PW 7) and Prem (PW 11) and on the basis of the statements under section 27 of the Evidence Act the axes were recovered from the possession of Beniram and Tularam and Lathi was seized from the possession of Dinesh. That the seized axes and Lathi were sent for the examination to the Forensic Science Laboratory, Sagar which has reported vide report Ex. P-22 that the items were having the blood and thereafter the property were sent for the examination at Calcutta and the report is Ex. P-25. After the usual investigation, the investigating officer Anil Kumar Mishra (PW 12) has filed the chargesheet before the Court against the accused persons for the offence punishable under section 302 and also under section 302/34, IPC. 5. The learned trial Court has framed the charges under section 302 and under section 302 read with section 34, IPC against all the accused persons and after recording the statements of 12 prosecution witnesses, examined the accused persons under section 313 of the Code of Criminal Procedure. The accused have abjured the guilt and denied the statements of the prosecution witnesses and alleged false implication due to enmity. The accused have not examined any witness in their defence. The learned trial Court has held that the prosecution has proved the case beyond reasonable doubt and it has convicted all the accused persons under section 302 read with section 34, IPC and sentenced as stated above. 6. The prosecution has examined two eyewitnesses, namely, Badri (PW 4) and Ramesh (PW 8) to prove the allegation against the accused persons of causing injuries to deceased Sohan by axe and Lathi Badri (PW 4) has stated that at about 11:00 p.m. when he was sleeping in his field he heard the noise in the field of Beniram and after hearing the noise he went to his house and in the morning he learnt about the murder of Sohan. Badri (PW 4) has further stated that he has not seen the accused persons causing injuries to deceased Sohan. The prosecution has declared Badri (PW 4) as a hostile witness. Badri (PW 4) has further stated that he has not seen the accused persons causing injuries to deceased Sohan. The prosecution has declared Badri (PW 4) as a hostile witness. Badri (PW 4) has stated that the police has not taken his statement and he was threatened by the police to give the evidence against the accused persons. Badri (PW 4) has denied that his statement is Ex. P-6. 7. Eye-witness Ramesh (PW 8) has stated that he has no knowledge of the incident and the police has not recorded his statement. Ramesh (PW 8) has denied that on account of the damage to the electric motor, the accused persons have caused the injuries to deceased Sohan. Ramesh (PW 8) was also declared hostile by the prosecution. There is nothing in the evidence of eye-witnesses Badri (PW 4) and Ramesh (PW 8) to indicate that the accused persons have caused the injuries to the deceased. 8. Madanlal (PW 3) has stated that at about 11:00 p.m. in the night when he was sleeping in his house, Badri (PW 4) told him that the accused persons have caused the injuries on the neck, head and other parts of the body of Sohan by axe and Lathi. Madanlal (PW 3) has further stated that he went to the field of Keshar Singh and saw near the hut that the deceased was lying dead. Madanlal (PW 3) has further stated that he proceeded in the night to the Police Station and First Information Report (Ex. P-5) was lodged by him 9. Ramchandra (PW 5) has testified that in the night Madanlal (PW 3) told him that Sohan was beaten by the accused persons in the field of Keshar Singh where he was lying dead. Ramchandra (PW 5) has further stated that he went on the spot and saw Sohan dead. There is nothing in the statements of Madanlal (PW 3) and Ramchandra (PW 5) to disbelieve their statements. The learned trial Court on the basis of the statements of Madanlal (PW 3) and Ramchandra (PW 5) has held that the accused persons have caused the injuries to the deceased Sohan. The statement of Madanlal (PW 3) that accused have caused the injuries is based on the information given to him by Badri (PW 4). The learned trial Court on the basis of the statements of Madanlal (PW 3) and Ramchandra (PW 5) has held that the accused persons have caused the injuries to the deceased Sohan. The statement of Madanlal (PW 3) that accused have caused the injuries is based on the information given to him by Badri (PW 4). Madanlal (PW 3) has not seen the accused persons causing the hurt nor he has seen the accused persons on the spot or running from the place of incident. The statement of Madanlal (PW 3) was hearsay. In the similar manner, the statement of Ramchandra (PW 5) that Madanlal (PW 3) told him in the night about causing the hurt to the deceased by the accused persons is not admissible in evidence to prove that the accused persons have caused the injuries to deceased Sohan. Ramchandra (PW 5) has received the information about the incident from Madanlal (PW 3) who was informed by the eye-witnesses about the incident. The learned trial Court has erred in believing the statements of Madanlal (PW 3) and Ramchandra (PW 5) to prove the fact that the accused persons have caused the injuries to deceased Sohan. 10. It is laid down in section 60 of the Evidence Act that oral evidence must be direct, that is to say, if it refers to a fact which could be seen, it must be the evidence of a witness who says he saw it. This section enacts the general rule that hearsay is no evidence. It is observed in the case of Awadh Behari Sharma v. State of Madhya Pradesh [ AIR 1956 SC 738 ] that evidence of a witness as to what was said to him by another person is not admissible unless that person himself deposes to that fact as witness. Reason of rejection of hearsay evidence is that because original declarant is not put on oath nor he is subjected to cross-examination and the accused loses his opportunity of examining the means of knowledge of original declarant. Thus, the learned trial Court has acted on the statements of Madanlal (PW 3) and Ramchandra (PW 5) which were inadmissible being hearsay. 11. The investigating officer Anil Kumar Mishra (PW 12) has stated that he has recorded the statements of accused Tularam, Dinesh and Beniram under section 27 of the Evidence Act, respectively Exs. Thus, the learned trial Court has acted on the statements of Madanlal (PW 3) and Ramchandra (PW 5) which were inadmissible being hearsay. 11. The investigating officer Anil Kumar Mishra (PW 12) has stated that he has recorded the statements of accused Tularam, Dinesh and Beniram under section 27 of the Evidence Act, respectively Exs. P-15, P-16 and P-17 and on the basis of the statements of accused Beniram and Tularam the axe was recovered from their possession and a Lathi was seized from accused Dinesh. The prosecution has not proved that the axe and Lathi seized from the possession of the accused were having the human blood. It is common in the village that the cultivators keep an axe and Lathi in their house for the purpose of doing work in the field. Consequently from the recovery of such weapons, like axe and Lathi it will not be proper to presume the complicity of the accused in the murder of deceased Sohan. 12. The learned trial Court has observed in para 14 of its judgment that by virtue of observations made in the case of Bhogilal Chunnilal Pandya v. State of Bombay [ AIR 1959 SC 356 ] the statement of Madanlal (PW 3) and FIR Ex. P-5 are admissible in evidence and the conviction can be based on his statement recorded in the Court. The FIR (Ex. P-5) or the statement of Madanlal (PW 3) have the corroborative value and it is not a substantive piece of evidence particularly in the circumstances where the eye-witnesses Badri (PW 4) and Ramesh (PW 8) have not stated a single word against the accused persons. The evidence given by Madanlal (PW 3) is not a substantive evidence and it is not proper to base the conviction on the statement of Madanlal (PW 3). The prosecution has utterly failed to bring home the guilt against the accused persons beyond reasonable doubt. 13. Consequently, the appeal is hereby allowed. The appellants-accused are acquitted from the offence punishable under section 302 read with section 34, IPC. The appellants-accused are on bail. Their bail-bonds stand cancelled.