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2009 DIGILAW 538 (MP)

GOVERDHAN s/o GANPAT v. STATE OF M. P.

2009-04-23

MANJUSHA P.NAMJOSHI, S.L.KOCHAR

body2009
JUDGMENT : S. L. KOCHAR, J. 1. The appellant has, by this appeal under section 374 of the Criminal Procedure Code challenged his conviction under sections 395 and 396 of the Indian Penal Code and sentence of rigorous imprisonment for seven years and imprisonment for life with fine of Rs. 500/-, in default of payment of fine to suffer additional R.I. for six months, respectively vide judgment dated 27-12-2004 passed by the learned Additional Sessions Judge, Agar District Shajapur in Sessions Trial No. 161/2002. 2. According to the prosecution case on 27-11-2001 in the night at 10.00 PM the complainant Kanhaiyalal resident of village Semalkhedi, after taking night meals with his family was sleeping inside his house. In the night at 1.30 AM, he overheard the clamour of miscreants. They were saying that "Looto, Apne Baap Ka Maal Hai". On hearing this, he went to his second old house where other family members were sleeping and saw eight to ten miscreants standing out-side the house and firing gun. They were having farsi and lathi also. When he reached near his old house, he was assaulted by the miscreants. On cry being raised by his family members, none of the villagers reached at their house for their rescue. The miscreants were wearing pants and shirts. There was darkness and they were having torches. The miscreants were speaking local language. Inside the house, four persons entered. After commission of dacoity, the miscreants fled away. Kanhaiyalal found his son Shiv Narayan dead on the terrace because of gun shot injury and other members sustained injuries on their persons. He lodged the report Ex.P/2 on 27-11-2001 in the morning at 4.15 AM about commission of dacoity in his house and taking away of golden, silver ornaments, cash amount and other articles by the miscreants. In total, five persons were arrested by the police, but nothing incriminating was recovered at their instance. They were also not put for identification by the witnesses and inhabitants of the house in test identification parade. On completion of investigation, charge-sheet was filed against five accused persons for the offences punishable under sections 396, 395 read with section 397 and 120-B of the Indian Penal Code. 3. The accused persons denied the charges, therefore, they were put to trial and the learned trial Court, while acquitting all other four accused persons, convicted and sentenced the appellants as mentioned hereinabove. 4. 3. The accused persons denied the charges, therefore, they were put to trial and the learned trial Court, while acquitting all other four accused persons, convicted and sentenced the appellants as mentioned hereinabove. 4. Having heard learned counsel for the appellant and after perusing the entire record as also the impugned judgment, we are of the opinion that the conviction of the appellant is not legally permissible on the basis of the evidence of PW-4 Gopal and PW-8 Jugal. 5. It is the admitted position that the appellant is resident of same village where the complainant and witnesses were residing and incident has taken place. PW-4 Gopal, in his examination-in-chief up to para 4, while describing the entire incident, did not name the appellant. Thereafter, a leading question was put by the Prosecutor that 'what act was committed by appellant Goverdhan'. This question was objected by the learned defence counsel, but the learned trial Court overruled this objection. 6. Learned trial Court should have not permitted the learned Prosecutor to ask leading question in examination-in-chief which is prohibited by the provisions under section 142 of the Indian Evidence Act. For convenience, sections 141 and 142 of the Indian Evidence Act are reproduced hereunder :- "141. Leading questions.- Any question suggesting the answer which the person putting it wishes or expects to receive, is called a leading question." "142. When they must not be asked.- Leading questions must not, if objected to by the adverse party, be asked in an examination-if-chief, or in a re-examination, except with the permission of the Court." 7. Leading question can be permitted as per provision under section 154 of the aforesaid Act. Under this provision the Court has discretion to allow to put leading question which might be put in cross-examination by the adverse party to the person who calls a witness. In the instant case, the witness has no where named the appellant Goverdhan and his name was suggested by the Prosecutor. Therefore, the Court should have not allowed that question. 8. Witness Gopal deposed that appellant Goverdhan caused injury to his brother by gun-shot who was standing on terrace. This witness in para 8 has stated that out of seven to eight miscreants, he identified on the spot the appellant Goverdhan, acquitted co-accused Chintu and third accused resident of village Lalgaon. He also admitted that Chintu and Goverdhan were residing in his village. This witness in para 8 has stated that out of seven to eight miscreants, he identified on the spot the appellant Goverdhan, acquitted co-accused Chintu and third accused resident of village Lalgaon. He also admitted that Chintu and Goverdhan were residing in his village. In cross-examination para 11, he has stated that all the seven to eight persons had covered their faces by clothes, they had tied their heads by clothes and were also wearing spectacles. In cross-examination para 12, he was confronted with his case-diary statement Ex.D/4 about causing of injury by gun-shot by appellant Goverdhan to his brother Shiv. He failed to assign any reason about this material omission which amounts to contradiction as per provision under section 162 Explanation of the Code of Criminal Procedure. Learned trial Court failed to consider this aspect of the matter and relied upon this witness only on this point that he identified the appellant on the spot as per his case-diary statement recorded by the police under section 161 of the Code of Criminal Procedure. In our view, the material available in the statement recorded under section 161 of the Criminal Procedure Code, cannot be relied upon for the purposes of conviction. The statement can be used only to impeach the credibility of a witness in Court and it cannot be used as a substantive piece of evidence as well as for corroborating his statement given in Court as per provision under section 162 of the Code of Criminal Procedure, which is reproduced as under : - "162. The statement can be used only to impeach the credibility of a witness in Court and it cannot be used as a substantive piece of evidence as well as for corroborating his statement given in Court as per provision under section 162 of the Code of Criminal Procedure, which is reproduced as under : - "162. Statements to police not to be signed : Use of statements in evidence.- (1) No statement made by any person to a police officer in the course of an investigation under this Chapter, shall, if reduced to writing, be signed by the person making it, nor shall any such statement or any record thereof, whether in a police diary or otherwise, or any part of such statement or record, be used for any purpose, save as hereinafter provided, at any inquiry or trial in respect of any offence under investigation at the time when such statement was made." Provided that when any witnesses is called for the prosecution in such inquiry or trial whose statement has been reduced into writing as aforesaid, any part of his statement, if duly proved, may be used by the accused, and with the permission of the Court, by the prosecution, to contradict such witness in the manner provided by section 145 of the Indian Evidence Act, 1872 (1 of 1872), and when any part of such statement is so used, any part thereof may also be used in the re-examination of such witness, but for the purpose only of explaining any matter referred to in his cross-examination. Nothing in this section shall be deemed to apply to any statement falling within the provision of clause (1) of section 32 of the Indian Evidence Act, 1872 (2 of 1872), or to affect the provision of section 27 of that Act. Explanation : An omission to state a fact or circumstance in the statement referred to in sub-section (1) may amount top contradiction if the same appears to be significant and otherwise relevant having regard to the context in which such omission occurs and whether any omission amounts to a contradiction in the particular context shall be a question of fact." 9. PW-8 Jugal has also been specifically relied upon by the trial Court who has deposed in Court that the appellant Goverdhan was present on the spot along with the miscreants, but the learned trial Court has failed to consider the contradiction with his case-diary statement Ex.D/5 wherein it is mentioned that this witness saw a person like Goverdhan, therefore, he was not sure whether appellant Goverdhan was present on the spot and took part in the incident of dacoity. In para 15, witness Jugal was confronted with his case-diary statement Ex.D/5 and he failed to assign any reason for mentioning this fact that he saw the person like Goverdhan, meaning thereby that he was not sure that the appellant was present on the spot and took part in the incident. It is settled legal principle that suspicion how-so-ever may be strong shall not take place of proof. [See : Narasappa vs. State of Karnataka, 2007(3) SCC (Cri) 674]. 10. PW-4 Gopal and PW-8 Jugal are the brothers and son of complainant Kanhaiyalal who lodged the report and in the said report name of this appellant does not find place. Kanhaiyalal himself had a talk with his family members who had sustained injuries in the incident and if both these witnesses had seen the appellant, they would not have failed to mention his name to Kanhaiyalal and Kanhaiyalal would not have failed to mention his name in the First Information Report. Both the witnesses have admitted that they were interrogated by the police after four to five days. The Supreme Court in the case of Ramkumar Pandey vs. State of U. P., AIR 1975 SC 1026 (para 9) has observed thus :- "No doubt, an FIR is a previous statement which can, strictly speaking, be only used to corroborate or contradict the maker of it. But, in this case, it has been made by the father of the murdered boy to whom all the important facts of the occurrence so far as they were known up to 9.15 p.m. on 23-3-1970 were bound to have been communicated. If his daughters had seen the appellant inflicting a blow on Harbinder Singh, the father would certainly have mentioned it in the FIR. If his daughters had seen the appellant inflicting a blow on Harbinder Singh, the father would certainly have mentioned it in the FIR. We think that omissions of such important facts, affecting the probabilities of the case, are relevant under section 11 of the Evidence Act in judging the veracity of the prosecution case." 11. In view of the above, in our considered view, the prosecution has failed to establish its case against the appellant beyond reasonable doubt, hence, this appeal is allowed. The conviction and sentences of the appellant as passed by the learned trial Court are hereby set aside. The appellant is in jail. Learned trial Court is directed to release him forthwith unless required in connection with any other criminal case. Officer is directed to send a copy of this judgment to the trial Court along with its record for immediate compliance.