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Madhya Pradesh High Court · body

2005 DIGILAW 813 (MP)

Morsingh v. State of M. P.

2005-08-03

S.K.GANGELE, S.L.KOCHAR

body2005
JUDGMENT (ORAL) Kochar, J.-- 1. By this appeal the appellant seeks to quash the judgment of conviction and sentence passed by the learned First Additional Sessions Judge, Mhow in Sessions Trial No. 363/93 passed on 25.11.1995 thereby the learned trial Court finding the appellant guilty of the offence punishable under section 302, Indian Penal Code arid sentencing him to suffer imprisonment for life and to pay a fine of Rs. 100/- in default of payment of fine to suffer additional RI for one month. 2. In nutshell the prosecution case against the appellant as un-folded before the trial Court was that on 16.12.1992 in Police Station Manpur (PW 3) Bisan Village Chowkidar lodged the report Ex. P/6 that appellant Morsingh resident of Village Chapariya came to him and disclosed that he assaulted his wife deceased Dhannibai by lathi on her head in the night between 12-12.30 o'clock because of which his wife had died. On this information. Crime No. 205/92 for the offence punishable under section 302 of the Indian Penal Code was registered against the appellant and (PW 5) Station House Officer Police Station Manpur reached on the spot. He prepared spot map Ex. P-7 and effected seizure of blood-stained yellow colton bed (Guddadi), blood-stained earth and control earth through seizure memo Ex. P-9, he also arrested appellant arrest memo is Ex. P-10. On production by appellant he seized one Bamboo Lathi its seizure memo is Ex. P/8. Thereafter he prepared inquest and sent the dead body for postmortem. Post-mortem was performed by (PW 1) Dr. Vasudeo and his post-mortem report is Ex. P-2. Seizure articles were sent for chemical examination to the Forensic Science Laboratory its report is Ex. P-14 and Serologist report is Ex. P-16. After completion of investigation appellant was charge-sheeted for the offence as mentioned above. 3. Appellant denied the charge of commission of murder of his wife and submitted that she fell from scaffold (Dagla) situated near rivulet, he was also accompanied by villagers to take his wife to his house. 4. We have heard the appellant as well as Deputy AG Shri Desai and also perused the entire record of the case and we are of the opinion that it's a case of no legal evidence for convicting the appellant. Total prosecution case is based on the statement of (PW 3) Bisan who lodged the report Ex. 4. We have heard the appellant as well as Deputy AG Shri Desai and also perused the entire record of the case and we are of the opinion that it's a case of no legal evidence for convicting the appellant. Total prosecution case is based on the statement of (PW 3) Bisan who lodged the report Ex. P-6 in the Police Station and according to this report he was informed by the appellant that he assaulted his wife in the night between 12 and 12.30 in the night by lathi. This witness has turned hostile in the Court and on cross-examination by the Prosecutor, refused the contents of the first information report. There is no eye witness of the incident. The whole prosecution case is based on extra-judicial confession made by the appellant before (PW 3) Bisan who has not supported the prosecution case. On perusal of the first information report and seizure memo Ex. P/9. we have noticed some glaring manipulation and concoction by the Investigating Officer. Ex. P-9 seizure memo is a document showing seizure of various articles from the spot that is inside the house of the appellant. According to (PW 5) Investigating Officer Sanjeev Muley after recording the FIR Ex. P-6 at 10:20 a.m. on 16.12.1992, he proceeded to village Chapariya and on inspection of the house of the appellant. seized blood-stained earth, control earth one tin box, yellow colour cotton made bed (Guddadi) with blood stains. In this seizure memo he has mentioned Crime No. 0/92. If FIR Ex. P-6 was written by him on 16.12.1992 at 10:20 a.m. and thereafter he proceeded to the house of the appellant, there was no reason for him to mention Crime No. 0/92. On bare perusal of FIR by naked eyes it can be said very easily that at the first instance time of incident was written 16.12.1992 at 10.20. Thereafter at the place of ten, two was written by overwriting and after another zero the digit five was inserted. In seizure memo Ex. P-9 Crime Number 0/92 was written. This shows that as a matter of fact no such FIR was got written by (PW 3 Bisan who was appointed Chowkidar of that area and more or les performing duty under the concerning Police. In seizure memo Ex. P-9 Crime Number 0/92 was written. This shows that as a matter of fact no such FIR was got written by (PW 3 Bisan who was appointed Chowkidar of that area and more or les performing duty under the concerning Police. It also appears that after receiving information of death of wife of the appellant through (PW 3 Bisan, Station House Officer (PW 5) without recording the same in the printed FIR form as per provision under section 154 of the Indian Pena Code, he kept it blank and reached on the spot thereafter effected seizure of various articles. prepared inquest Ex. P/5. This inquest report is showing the date and time of preparation, 16.12.1992. On the inquest he has no mentioned crime number or inquest number as well as time of inquest proceeding. 5. The learned trial Court has wrongly placed reliance on the contents of the FIR Ex. P-6 because the FIR is not a substantive piece of evidence and its author has .denied the contents mentioned therein, therefore, corroboration to the testimony of (PW 3) in Court could not be sought. The learned trial Court has also committed another glaring legal mistake by seeking corroboration to the medical evidence by contents of FIR. The legal position is that FIR can be used for contradiction and corroboration to the maker thereof. 6. Learned trial Court has also failed to keep in mind that burden was on the prosecution to prove its case beyond all reasonable doubt but shifted the same on the shoulder of the defence by not examining the son of the appellant and other neighbours named Ambaram, Santu and Bhagirath who helped the appellant and his son to bring deceased to his house. As a matter of fact, these witnesses should have been interrogated by the Investigating Officer and thereafter should have been examined by the prosecution in Court. The 10 was cross-examined on these points by the defence and according to him, nobody was disclosing anything about the incident. This reply simpliciter could not satisfy the requirement of effective investigation. The learned trial Court has also overlooked the reply of medical expert (PW 1) saying that deceased could sustain injuries found on her skull and other part of the body by fall on the ground from' reasonably high place and rolling of the body on the ground. This reply simpliciter could not satisfy the requirement of effective investigation. The learned trial Court has also overlooked the reply of medical expert (PW 1) saying that deceased could sustain injuries found on her skull and other part of the body by fall on the ground from' reasonably high place and rolling of the body on the ground. This expert opinion in paragraph 20 is supporting the version of the defence that deceased fell from scaffold and thereafter brought inside the house. The presence of human blood and 'B' group blood on blood stained earth as well as cotton bed seized from inside the house is of no consequence because the appellant has stated specifical1y in his accused statement that he and his son brought the deceased from near rivulet, inside his house. 7. Learned trial Court has also erred in relying on the contents of the spot map Ex. P-7 prepared by Investigating Officer (PW 5) Sanjeev Muley because according to (PW 5) spot map was prepared at the instance on (PW 3) Bisan and (PW 3) Bisan has not stated anything in his statement in Court about the contents mentioned in Ex. P- 7 map. The Ex. P-7 map is a statement of witness to the Investigating Officer, therefore, same can be used to contradict him in the Court as per provision under section 162 of the Criminal Procedure Code. 8. We are constrained to mention here that the learned presiding Judge of the trial Court was not well versed with the basic question of law with regard to use and admissibility of the first information report and the spot map. 9. In view of the above mentioned factual and legal analysis, we do not find any substantive evidence to uphold the conviction of the appellant, therefore his appeal is allowed. His conviction and sentence are hereby set aside. He is on bail his bail bond and surety bond stand discharged.