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Madhya Pradesh High Court · body

2005 DIGILAW 954 (MP)

Radheshyam v. State of M. P.

2005-09-08

S.K.GANGELE, S.L.KOCHAR

body2005
Judgment ( 1. ) THE appellant has preferred the aforesaid Criminal Appeal before this Court, dissatisfied with the judgment dated 22nd March, 1996 rendered in Sessions Trial No. 150/93 by Additional Sessions Judge, Kannod, District Dewas, thereby convicting the appellant for the offence punishable under Sections 302 and 201, IPC and sentencing him to suffer RI for life imprisonment and RI for 5 years respectively. ( 2. ) IN short, the prosecution case giving rise to this appeal, is that P. W. 1 Motilal, on 14th June, 1993, lodged missing report of his younger brother named Narmada Prasad aged 35 years in Police Station, Kannod. This report was recorded in Rojnamcha Sanha No. 650, dated 14-6-1993 at 12 noon. As per this report, before 16-17 days, brother of Motilal had left his house for going to Banapur and Bersia Bhopal. He did not return back to his house, therefore, complainant Motilal searched him in Village Banapur and Bersia Bhopal but failed to trace him out. He lodged report of Gumshudgi. On 10th August, 1993, present appellant and co-accused Kanga (died during the course of trial) were apprehended in the case of theft and during the course of interrogation, it is stated that both the appellants had admitted about commission of murder of Narmada Prasad and had hidden the dead body of Narmada Prasad in the rivulet situated in Sannod Forest. This information was recorded under Section 27 of the Evidence Act vide Exs. P-10 and P-l 1, as disclosure statements of appellant and co-accused Kanga in presence of P. W. 2 Chhotelal and Panch witness Prahlad (not examined ). The dead body was recovered from the forest. Recovery memo is Ex. P-22. Present appellant also made a disclosure statement Ex. P-13 before P. W. 3 Manohar Lal and Kailash (not examined) and in pursuance thereof RIN PUSTIKA and PURSE were recovered vide seizure memo Ex. P-8. The dead body was identified by (P. W. 4) Manohar s/o Champalal brother of the deceased on the basis of cloths, Pajama and shoes of the deceased. Its test identification memo is Ex. P-l. Inquest report is Ex. P-l4. Skeleton was sent for post mortem examination vide Ex. P-16. The post mortem of the dead body was performed by P. W. 8 Dr. Its test identification memo is Ex. P-l. Inquest report is Ex. P-l4. Skeleton was sent for post mortem examination vide Ex. P-16. The post mortem of the dead body was performed by P. W. 8 Dr. Maheshwari, who did not give any definite opinion about cause of death and referred for further examination and opinion to the Director Medico Legal Institute, Gandhi Medical College, Bhopal. The Forensic Science Laboratory report is Ex. P-17 and is proved by P. W. 9 Dr. D. S. Badkur. According to this witness, bones were of human origin, the bones were of male of aged 55 years 5 years meaning thereby deceased could be aged about 50 to 60 years and the cause of death was not known because no bony injuries were present, duration of death was also not ascertained. After registration of crime and recording the statements of the prosecution witnesses, charge-sheet was filed against the appellant and co-accused Kanga under Sections 302 and 201, IPC. The appellant has pleaded innocence. According to him, he was involved in the case on suspicion. Therefore, he was put on trial. Learned Trial Court, after examination of the prosecution witnesses relying on the evidence of recovery of the dead body at the instance of the appellant and RIN PUSTIKA and PURSE recovered from the appellant belonged to the deceased Narmada Prasad, convicted and sentenced the appellant as mentioned hereinabove. ( 3. ) LEARNED Counsel for the appellant has submitted that even if complete prosecution case is accepted offence punishable under Section 302, IPC is not made out against the appellant because identity of the deceased and homicidal death have not been proved by the prosecution. Learned Counsel has also submitted that the statement recorded under Section 27 of the Evidence Act about discovery of the dead body and RIN PUSTIKA and PURSE is also not worth placing reliance. ( 4. ) AS against this, Mr. Girish Desai, learned Counsel Deputy Advocate General appearing for the State has supported the judgment and finding of the Trial Court. ( 5. ) WE have perused the entire record and after hearing both the parties we are of the opinion that conviction and sentence passed against the appellant by the learned Trial Court are not based on sufficient and sound evidence. Therefore, the same are not sustainable. ( 5. ) WE have perused the entire record and after hearing both the parties we are of the opinion that conviction and sentence passed against the appellant by the learned Trial Court are not based on sufficient and sound evidence. Therefore, the same are not sustainable. Very important and essential ingredient for convicting the accused under Section 302, IPC, i. e. , homicidal death of deceased, is not proved in the present case. The prosecution case is not based on eye-witness account. There is no evidence of "last seen of the deceased in the company of the appellant". The missing report of the deceased was lodged by his elder brother P. W. 1 Motilal. In this report, the age of the deceased was mentioned 35 years and the age of the complainant was mentioned 40 years whereas FSL Expert P. W. 9 Dr. D. S. Badkur opined that bones were of the person aged between 50-60 years. He gave margin of 5 years; therefore, the prosecution has failed to establish that bones of the deceased were of male person aged about 35 years. The autopsy surgeon P. W. 8 Dr. Maheshwari and FSL Expert P. W. 9 Dr. D. S. Badkur have not given any opinion about cause of death. In this state of expert opinion, it is very difficult to come to the conclusion that the deceased met homicidal death. The evidence of recovery of the dead body is proved by P. W. 10, ASI, Mr. Dushyant Kumar Joshi, Investigating Officer, vide Ex. P-10. This witness deposed that accused disclosed about pointing out the dead body in the forest but this witness has not deposed as to what statement was given by the appellant. Memo is not admissible as substantive piece of evidence unless contents of the same is not deposed by the ascribe of the memo in Court. This High Court had occasioned to deal with this legal position in the case of Bhagirath and Ors. v. State of M. P. 1958 MPLJ 745 Para 13, wherein it is held that-The lists or memoranda or Panchnamas are not themselves evidence. They can only be used by persons who signed them or prepared them to refresh memory under Section 159 of the Evidence Act. Any statement, attributed to the accused as leading to discovery must be proved by witnesses like any other fact. They can only be used by persons who signed them or prepared them to refresh memory under Section 159 of the Evidence Act. Any statement, attributed to the accused as leading to discovery must be proved by witnesses like any other fact. (Also see 1962 MPLJ Short Note No. 43 Girdhari v. State) ( 6. ) FURTHER this witness has proved identification memo of the skeleton vide Ex. P-l but he had not deposed that who had identified dead body/skeleton and on what basis. He has further proved inquest report Ex. P-4. This witness has not proved and stated about contents of memo recorded under Section 27 of the Evidence Act and discovery of the dead body at the instance of the appellant in pursuance of his statement recorded under Section 27 of the Evidence Act. Therefore, recovery of the dead body is also not proved by the prosecution by adducing cogent and reliable evidence. It is a matter of great regret that AGP who was conducting the prosecution in Court and P. W. 10 Mr. Dushyant Kumar Joshi, Investigating Officer, were not aware of legal position regarding matter of proof of memorandum statements of the accused recorded under Section 27 of the Evidence Act and discover of the dead body in pursuance thereof. Panch witness of memorandum P. W. 2 Chhotelal has not supported the prosecution case therefore declared hostile. Another Panch witness Prahlad has not been examined. Thus, there is no legal and admissible evidence on record on the point of recovery of the dead body at the instance of the appellant. Further recovery of RIN PUSTIKA and PURSE on the basis of disclosure statement of the appellant under Section 27 of the Evidence Act vide Ex. P-13 is also not proved in Court by P. W. 10 Investigating Officer. He has deposed in Paragraph 7 only this much that on the information given by the appellant about recovery of RIN PUSTIKA and PURSE, he prepared memo Ex. P-13 and same bears his signature at portion "a" to "a". Merely proving the signatures of the ascribe of the documents, contents of the documents will not be considered as proved. The ascribe of the document has to speak on oath before the Court. Further this witness has no where stated that in pursuant to the memorandum Ex. P-3, the appellant got recovered RIN PUSTIKA and PURSE. Merely proving the signatures of the ascribe of the documents, contents of the documents will not be considered as proved. The ascribe of the document has to speak on oath before the Court. Further this witness has no where stated that in pursuant to the memorandum Ex. P-3, the appellant got recovered RIN PUSTIKA and PURSE. In Paragraph 14, Investigation Officer has deposed that a place from where RIN PUSTIKA and PURSE were recovered is not mentioned in memorandum statement as well as in seizure memo. In Paragraph 15 he deposed that he did not prepare memorandum statement under Section 27 of the Evidence Act and seizure memo in pursuance thereof. What is the meaning of this statement made in Paragraph 15, we are unable to understand, whether this statement is for recording of some particular memorandum statement and recoveries are with regard to all memorandum statements and recovery effects in this case. ( 7. ) IN view of the aforesaid discussion we are unable to maintain conviction and sentence passed by the learned Trial Court as the prosecution has failed to adduce cogent and reliable evidence to prove the guilt of the accused/appellant. As a matter of fact, not a single circumstance is proved against the appellant in the present case. ( 8. ) HONble Apex Court as well as this High Court has observed in series of judgment that the Trial Court/judge is not required to act as referee or an umpire but he must take active participation in the trial for bringing out truth on record and for that purpose legislation has given ample powers to him. Under Section 165 of the Evidence Act, it is the duty of the Judge to put specific question to the witness or witnesses to clarify ambiguity. Under Section 311 of the Cr. P. C. power is given to recall any witness at any stage before delivery of judgment for examination, cross-examination or re-examination but it is crystal clear that the learned Trial Court failed to discharge its sacrosanct and pious duty while recording the statement of P. W. 10 Dushyant Kumar Joshi, Station House Officer, who was posted on the date of recording of his statement, i. e. , 5-2-1996 at Police Station, Bhavgarh District Mandsaur. Honble Apex Court in the case of Ramchander v. The State of Haryana , AIR1981 SC 1036 , 1981 Crilj609 , 1981 (1 )SCALE428 , (1981 ) 3 SCC191 , [1981 ]3 SCR12 has observed as under : the adversary system of trial being what it is there is an unfortunate tendency for a Judge presiding over a trial to assume the role of a referee or an umpire and to allow the trial to develop into a contest between the prosecution and the defence with the inevitable distortions flowing from combative and competitive elements entering the trial procedure. If a Criminal Court is to be an effective instrument in dispensing justice, the Presiding Judge must cease to be a spectator and a mere recording machine. He must become a participant in the trial by evincing intelligent active interest by putting questions to witnesses in order to ascertain the truth. But this he must do without unduly trespassing upon the functions of the public prosecutor and the defence Counsel, without any hint of partisanship and without appearing to frighten or bully witnesses. Any questions put by the Judge must be so as not to frighten, coerce, confuse or intimidate the witnesses. " Also see Imran Khan v. State of M. P. 1994 MPLJ 862 . ( 9. ) IN the result, this appeal is allowed. The conviction and sentence of appellant are hereby set aside. Learned Trial Court is directed to release the appellant forthwith if not required in any other criminal case.