Research › Search › Judgment

Madhya Pradesh High Court · body

2005 DIGILAW 850 (MP)

Dayaram v. State of M. P.

2005-08-11

S.K.GANGELE, S.L.KOCHAR

body2005
JUDGMENT (Oral) Kochar, J. -- 1. By this appeal the appellants seek to quash the judgment of conviction and sentence passed by the VIII Additional Sessions Judge, Ujjain, in Sessions Trial No. 183/95 passed on 29.1.1999 thereby finding the appellants guilty of the offence punishable under section 302, Indian Penal Code and 302/34, Indian Penal Code and sentencing them to suffer imprisonment for life and to pay a fine of Rs. 3,000/- each, and in default of payment of fine, to suffer additional RI for 6-6 months. 2. The factual matrix giving rise to this appeal filed by the four aforesaid appellants in brief is that the relation of the appellant No. 1 Dayaram had purchased land from one Kailash and the said land was in possession of the deceased Tulsiram. He was cultivating the same on the basis of lease given to him by owner of the land, named Kailash. 3. On 1.3.1995 in the night at about 9 p.m., all the four appellants reached at the house of PW2 Mangilal, father of the deceased Tulsiram and asked about the whereabouts of Tulsiram on which PW2 Mangilal replied that Tulsiram had gone to village Dudheshwari to work as labour. On this reply, appellant No.1 Dayaram issued threat to eliminate deceased Tulsiram. Therereafter all the four left the house of complainant PW2 Mangilal. Near Lord Bajrang Bali temple in village Haranykhedi, the house of appellant No.4 Devisingh was situated. All the appellants assembled there, and when deceased Tulsiram was returning back from village Dudheshwari in the night at about 10 p.m., he was wrongfully restrained by appellants on the road and assaulted by knife. The incident was witnessed by Ramchandra Balai (not examined) and he immediately informed Mangilal (PW2) and lanibai (PW5), father and mother of the deceased Tulsiram respectively. After receiving information from Ramchandra, Mangilal and lanibai reached near the temple and in the light of mercury tube saw that all the appellants were assaulting Tulsiram by knife, thereafter deceased was being carried. At that juncture, PW2 Mangilal also raised an alarm for his rescue. Upon hearing the alarm, Devilal Sharma, Sewaram (not examined), Babulal Chowkidar (PW6) also reached over there and witnessed the incident. Appellants Dayaram, Rajaram and Munna ran away towards village Badkummed and appellant Devisingh ran away towards his own house. At that time, appellant Rajaram left his bicycle near the house of Seth lamnalal. Upon hearing the alarm, Devilal Sharma, Sewaram (not examined), Babulal Chowkidar (PW6) also reached over there and witnessed the incident. Appellants Dayaram, Rajaram and Munna ran away towards village Badkummed and appellant Devisingh ran away towards his own house. At that time, appellant Rajaram left his bicycle near the house of Seth lamnalal. The intimation of this incident was given on telephone to PW6 Babulal Chowkidar of village Haranyakhedi and the same was recorded in Police Station Narwar on 1.3.1995 in Sana No. 31 by PW9 ASI Ramsingh. The information was "that in village Haranyakhedi, Tulsiram was assaulted by somebody and he was lying near the house of Devisingh." On the basis of this information, Sub-Inspector PW 12 L.S. Yadav, along,with police force, reached at village Haranyakhedi near Bajrang Bali temple. He recorded the Dehati Nalishi as reported by PW2 Mangilal vide EX.P-3 on 2.3.1995 at 3 a.m. On the basis of this Dehati Nalishi, crime was registered in the police station by PW9 ASI Ramsingh vide FIR EX.P-27. But Sub-Inspector L.S. Yadav prepared inquest report and thereafter he sent the dead body for postmortem and the same was performed by PW1 Dr. Ajay Nigam, PM Report is EX.P-2. Investigating Officer PW10 B.R. Dwivedi, at the instance of PW2 Mangilal prepared spot map and also seized blood stained and controlled earth from the spot. He also recorded the statement of the witnesses and arrested the appellants on 6.3.1995, except appellant No.3 Munna, Investigating Officer seized knives on the basis of their disclosure statement recorded under section 27 of the Evidence Act. 4. After requisite investigation, appellants were charge-sheeted for the offences, as mentioned hereinabove. 5. The appellants have denied the prosecution allegations and according to them, they were falsely implicated. Therefore, they were put on trial. The appellants have examined (DW1) Brijlal in their defence. The learned trial Court relying on the prosecution evidence convicted the appellants as mentioned above. 6. We have heard the learned counsel for the parties and also perused the entire record of the case carefully. 7. The learned trial Court convicted the appellants relying on the testimony of PW2 Mangilal and PW5 Janibai father and mother of the deceased Tulsiram, respectively. The trial Court sought corroboration to testimony of both the witnesses by first information report as well as the medical evidence. 7. The learned trial Court convicted the appellants relying on the testimony of PW2 Mangilal and PW5 Janibai father and mother of the deceased Tulsiram, respectively. The trial Court sought corroboration to testimony of both the witnesses by first information report as well as the medical evidence. The learned trial Court has also given finding in paragraph 22 of the impugned judgment about motive of the appellants and also placed reliance on spot map Ex.P-3 prepared by PW 12 Sub-Inspector L.S. Yadav and another spot map Ex.P-26 proved by Manoharlal Patwari PW8. The spot map was relied to disbelieve the statement of defence witness (DW1) Brijlal. The learned trial Court also placed reliance on Forensic Science Laboratory Report EX.P-33. According to this report, sample blood was found on the knives seized from the appellant Dayaram, Rajaram and Devisingh. 8. The learned counsel for the appellants have submitted that PW2 Mangilal and PW5 Janibai have completely changed their statement in the Court. According to their statements, it is crystal clear, that they did not witness the incident but only saw that the appellants were carrying deceased Tulsiram after assault and going and when they saw these witnesses, they threw Tulsiram on the road and fled away, whereas, according to the Dehati Nalishi EX.P-3 lodged by PW2 Mangilal, he and his wife PW5 Janibai witnessed the actual assault by knife by the appellants to the deceased. 9. We have perused the statement of both the witnesses and find. substance in the submission of the learned counsel for the appellants (PW2) Mangilal confronted with his report EX.P-3 wherein the fact of seeing appellants going while carrying deceased Tulsiram who was dead and having 50 knife injuries on his stomach and upon seeing both the witnesses, appellants threw deceased on the road and ran away are not mentioned. For omission of these material facts in the FIR as well as in police statement Ex.D-1, this witness gave evasive reply. He was further confronted with his report in paragraph 15 and he has denied the fact mentioned in Ex.P.3 portion 'A to A' as well as in case diary statement D-1 about witnessing the incident and reaching near the temple after receiving information from one Ramchandra. So according to this witness, he did not witness the incident but, in his report EX.P-3 and case diary statement according to the prosecution, he was the eye-witness. So according to this witness, he did not witness the incident but, in his report EX.P-3 and case diary statement according to the prosecution, he was the eye-witness. The fact narrated by this witness as well as his wife PW5 Janibai in the Court, in examination-in-chief that when they went in search of his son Tulsiram, they saw appellants carrying deceased in dead condition having several knife injuries on his person and on seeing them, the appellants threw him on the road and ran away is altogether a new story introduced by both the witnesses. Both the witnesses have also denied about receiving information of assaulting deceased Tulsiram by the appellants from one Ramchandra and thereafter, they reached near the scene of occurrence. According to both the witnesses, when appellant No.1 came to their house along with two un-known persons and inquired about their son and after return of appellant Dayaram and his companions, they waited for his son for five minutes and thereafter proceeded in search of him in the village. Roth the witnesses have introduced altogether a new story which is completely missing in Dehati Nalishi EX.P-3 and statement D-l of PW2 Mangilal and in case diary., statement EX.D-2 of PW5 Janibai. PW5 Janibai has gone to the extent of saying that her statement was not recorded by the Police in the night of the incident on the next day or even thereafter (SCC para 6). When she was shown her case diary statement Ex.D-2, she had denied the same and deposed that the statement was wrong. In paragraph 8 she has admitted the suggestion that the fact of seeing all the four appellants dragging deceased Tulsiram and throwing him seeing that his father and mother reached over there. They also pushed her husband PW2. All these facts she did not disclose to anybody after the incident and disclosed for the first time, in the Court on the date of recording of by statement. In view of these positive admissions of PW5 Janibai, it is crystal clear, that she did not witness the incident and her statement in the Court is completely at variance with her case diary statement. The material omission and contradictions were put to her for which she had replied that she had not given any such statement at all regarding incident to the police. . 10. The material omission and contradictions were put to her for which she had replied that she had not given any such statement at all regarding incident to the police. . 10. In the light of the aforesaid discussion and statement of PW2 Mangilal and PW5 Janibai, it could be easily held that they did not witness the incident of actual assault being given by the appellants to the deceased by knife and both the witnesses introduced altogether a new story in the Court which was not the prosecution case as put forth in the charge-sheet by the police under section 173 of the Criminal Procedure Code. These divergent statements of both the witnesses have corroded, the whole prosecution case and the learned trial Court has committed grave error both of fact and law in holding in paragraph 14 that both the witnesses were the eye-witnesses. Supreme Court in case of Bhagirath v. State of M.P. [ AIR 1976 SC 975 ], held that: "It is well settled that the prosecution can succeed by substantially proving the very story it alleges. It must stand on its own legs. It cannot take advantage of the weakness of the defence. Nor can the Court, on its own make out a new case for the prosecution and convict the accused on that basis." [Also see AIR 2004 SC 2943 , Ramswaroop and others v. State of Rajasthan]. 11. The learned trial Court has also erred in seeking corroboration to the statement of both the witnesses by the contents of FIR (Dehati Nalishi) EX.P-3. The law is very clear that FIR can be used to corroborate and contradict its lodger when he is examined in the Court. The corroboration cannot be sought from FIR to any other witness than its author. The learned trial Court has committed error on this count, also. 12. The further illegality committed by the learned trial Court is about placing reliance on the contents of spot map EX.P-3 prepared by L.S. Yadav PW 12 Investigating Officer because this spot map was prepared at the instance of PW2 Mangilal, therefore, the facts mentioned in the map EX.P-3 .is the statement of PW2 Mangilal recorded by the Investigating Officer PW 12 L.S. Yadav and the same can be used only to contradict PW2 Mangilal as per provision under section 162 of the Criminal Procedure Code. The contents of spot map EX.P-3 has not been stated by PW2 Mangilal. Even he has not deposed in his Court statement about preparation of map EX.P-3l by the Investigating Officer at his instance [See 2003(7) SCC 291 , State of Rajasthan v. Bhawani]. Another spot map EX.P-26 prepared and proved by PW8 Manoharlal Patwari. According to the statement of this witness, he prepared the spot map as pointed out by village Chowkidar Babulal and two other villagers but, he has also not proved the contents mentioned in the spot map EX.P-26. Without proving the same, or without stating the contents of the spot map EX.P-26 in the Court, by this witness, the same are not automatically admissible in the evidence. This spot map can at the most be used for refreshing the memory of the witness as per the provision under section 159 of the Evidence Act and to contradict and corroborate him in the Court. The version of PW8 Manoharlal Patwari is not at all supported by PW6 Babulal village Chowkidar at whose instance, Manoharlal prepared spot map EX.P-26. Therefore, on. this count also the spot map EX.P-26 could not be used in favour of the prosecution. 13. The learned trial Court placed reliance on Forensic Science Laboratory Report EX.P-33 regarding presence of sample blood on the three knives seized from the possession of the appellants Dayaram, Rajaram and Devisingh. The presence of sample blood is not at all a circumstance which can be used against the appellants. unless the blood group is found tallying with the blood group of the deceased. This evidence could be used as a corroborative piece of evidence to substantive evidence. The learned trial Court has failed to consider the daily diary report (Rojnamcha) No. 31 recorded by Head Constable Shivmangal Gupta as deposed by PW12 L.S. Yadav in paragraph 24 on 1.3.1995 at 11:45 pm on the basis of the telephonic message sent by village Chowkidar PW6 Babulal that Tulsiram was assaulted by somebody. ' 14. Though specific questions were put to the Investigating Officer .PW)2 L.S. Yadav regarding compliance of section 157 of the Criminal Procedure Code by sending the copy of the FIR forthwith to the concerned Magistrate having jurisdiction over the matter, but this witness has not given any positive reply about compliance of this provision and also not filed any document to this effect. This also shows that the Dehati Nalishi or FIR was recorded on the next day in the police station that is why PW2 Mangilal has stated in paragraph 7 that on the next day morning he went to police station Narwar and lodged the report. This fact has been stated specifically by PW9 Assistant Sub-Inspector Ramsingh in paragraph 3 and PW12 L.S. Yadav Sub-Inspector in paragraph of his statement. Though copy of this document was filed along with the charge-sheet, but the same was not got exhibited in the Court. This report is clearly indicating the fact that telephonic message was sent by village Chowkidar PW6 Babulal of the murder of deceased Tulsiram but he was not knowing the names of the assailants whereas according to the statement of PW2 Mangilal, in paragraph 6 on cry raised by him and his wife PW5 Janibai, PW6 village Chowkidar Babulal and other villagers named Siddu and Mannulal also reached over there and further in paragraph 7 PW2 Mangilal has deposed that his wife PW5 Janibai and village Chowkidar PW6 Babulal went to village Badkummed and sent telephonic message about the incident to Police Station Narwar. This witness has also deposed that on the next day. he went to Police Station, Narwar and lodged the report but, no such report has been filed by the prosecution. 15. The prosecution has also failed to establish by cogent and reliable evidence for proving motive because of which the appellants could involve themselves in such a serious crime like murder. According to PW2 Mangilal, appellant No.1 Dayaram had purchased the land from one Kailash (not examined) and the said land was being cultivated by his son Tulsiram on lease or contract basis given to him by Kailash and appellants wanted the deceased Tulsiram to leave the possession over the said land. For this purpose, no sale-deed has been filed showing the fact of purchase of disputed land from Kailash by appellant No.1 Dayaram, Kailash has also not been examined as witness in the Court. No entries of land record have been tiled by the prosecution to 'show the settled possession or cultivation of the deceased Tulsiram on the said land. No independent witness of the village has supported regarding dispute on this count between appellants and deceased Tulsiram. No entries of land record have been tiled by the prosecution to 'show the settled possession or cultivation of the deceased Tulsiram on the said land. No independent witness of the village has supported regarding dispute on this count between appellants and deceased Tulsiram. In these circumstances, ipse dixit of these two witnesses PW2 Mangilal and PW5 Janibai is not sufficient to hold about motive for the appellants to commit murder of the deceased. . 16. In the wake of aforesaid factual and legal analysis, we are unable to concur with the judgment and finding of conviction of the appellants by the learned trial Court. Therefore, this appeal is allowed. The conviction .and sentence of the appellants are, here by, set-aside. They are on bail, their bail bond and surety bond stand discharged.