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Madhya Pradesh High Court · body

2010 DIGILAW 196 (MP)

Kailash S/O Dashrath v. State Of M. P.

2010-02-16

S.K.SETH, S.L.KOCHAR

body2010
JUDGMENT : S. L. KOCHAR, J. By this appeal under section 374 of the Code of Criminal Procedure (hereinafter referred to as the 'Code'), the appellants seek to challenge their conviction under section 302 of the Indian Penal Code and consequent sentence of imprisonment for life with fine of Rs. 1,000/- each and in default of payment of fine to suffer additional R.I. for six months vide judgment dated 15-3-2000 passed in Sessions Trial No. 52/1995 by the learned Additional Sessions and Special Judge, (under the provisions of SC/ST (Prevention of Atrocities) Act., Indore. 2. Prosecution case in nut-shell as put forth before the trial Court is that PW-4 complainant Sheikh Siraj was a building contractor and at the relevant time performing construction work of Lord Hanuman temple in Shivaji Nagar, Indore. On 25-8-1994 in the night at 9.00 PM he had gone to inspect the construction work at the temple. At that time, he had seen his brother Moosakhan and witness PW-8 Gopal standing and smoking cigarette at the betel shop of PW-7 Vishnu. At that juncture brother of one Arun also reached at the shop to whom Gopal offered cigarette. At that very moment from the side of Gumti situated adjacent to the betel shop, appellants and deceased appellant Raju having knives in their hands, attacked at Moosakhan and caused several injuries on various parts of his body. Gopal (PW-8) tried to rescue Moosakhan, but he too was assaulted and caused injury by knife by the deceased-appellant Raju. Upon hearing the out cry PW-4 Shekh Siraj and witnesses Chandrakant and Datta, who had also seen the incident, reached on the spot. The appellants fled away from the spot. Complainant Sheikh Siraj, witnesses Datta and Chandrakant took Moosakhan in injured condition in an auto-rickshaw to M. Y. Hospital, On medical examination in M. Y. Hospital by the doctor, Moosakhan was declared dead. PW-4 Sheikh Siraj went to Police Station and lodged the First Information Report Ex.P/4. recorded by PW-12 Station House Officer Shri Vishwanath Singh Sengar. Shri Sengar registered Crime No. 382/94 for the offence punishable under section 302 read with section 34 of the Indian Penal Code. Telephone Operator Sharad Kulkarni of M. Y. Hospital, Indore had sent a telephonic message to the Police Station about death of deceased on the basis of which Merg No. 64/94 under section 174 of the Code was registered. Shri Sengar registered Crime No. 382/94 for the offence punishable under section 302 read with section 34 of the Indian Penal Code. Telephone Operator Sharad Kulkarni of M. Y. Hospital, Indore had sent a telephonic message to the Police Station about death of deceased on the basis of which Merg No. 64/94 under section 174 of the Code was registered. Shri Sengar stepped into investigation and recorded the statements of witnesses named Gopal, Vishnu and Sheikh Siraj as well as sent Gopal to M. Y. Hospital for medical examination. On 26-8-1994, in the morning at 9.00 AM, Station House Officer reached at M. Y. Hospital and prepared inquest report Ex.P/2. Dead body of the deceased was sent for post-mortem examination and the same was performed by PW-13 Dr. Vijay Agrawal, Casualty Medical Officer. Post-mortem Report is Ex.P/25. Viscera, shirt, baniyan, pant and underwear of the deceased were seized and sealed. Shri Sengar reached on the spot and prepared spot map Ex.P/5 at the instance of complainant Sheikh Siraj Ahmed (PW-4) and also effected seizure of blood stained and controlled earth. Appellants were nabbed and at their instance, knives were seized. The seized articles were sent to Forensic Science Laboratory and its report is Ex.P/24. For further examination, the articles were sent to Serological Laboratory, Calcutta. During the course of investigation, Investigating Officer recorded the statements of various witnesses acquainted with the facts of the case and it was revealed that prior to the date of incident, on the day of Rakhi festival, a quarrel had taken place between appellant and deceased Moosakhan while gambling because of which, all the appellants assaulted the deceased Moosakhan on the date of the instant incident resulting into his death. On completion of investigation, the three accused/appellants were charge-sheeted for having committed the offence punishable under section 302 of the Indian Penal Code. 3. The appellants, refuted the charges and their defence was that on account of suspicion they were falsely implicated. They examined two witnesses in their defence. Learned trial Court, after examining the prosecution and defence witnesses and hearing both the parties, found the appellants guilty, convicted and sentenced them as noted hereinabove. During pendency of this appeal, appellant Raju died and his name was deleted from the cause title of memo of appeal as per this Courts order dated 19-11-2007. 4. Learned trial Court, after examining the prosecution and defence witnesses and hearing both the parties, found the appellants guilty, convicted and sentenced them as noted hereinabove. During pendency of this appeal, appellant Raju died and his name was deleted from the cause title of memo of appeal as per this Courts order dated 19-11-2007. 4. We have heard learned counsel for the parties and also perused the entire record minutely. 5. It is culled out from the record that the conviction of the appellants is based on solitary testimony of eye witness PW-4 Sheikh Siraj, brother of deceased corroborated by his First Information Report Ex. P/4 and medical evidence of PW-13 Dr. Vijay Agrawal. All other eye-witness including injured eye-witness PW-8 Gopal turned hostile and nothing substantial has been brought in their cross-examination by the learned Public Prosecutor in favour of the prosecution. 6. Learned counsel for the appellants has submitted that PW-4 Sheikh Siraj was not the eye-witness and later on he was introduced as an eye-witness as well as First Information Report was brought into existence in ante date and time. To substantiate this argument, learned counsel has pointed out several serious deficiencies in the prosecution case which go to establish that the First Information Report was not recorded on the date and time at the instance of PW-4 Sheikh Siraj brother of deceased. 7. Now the core question for consideration before us is "whether Sheikh Siraj, brother of deceased had witnessed the incident and First Information Report Ex.P/4 is a genuine piece of document or not?" 8. PW-4 Sheikh Siraj has mentioned in the First Information Report Ex. P/4 that he, with the help of other witnesses, lifted the deceased from the spot and immediately taken him to the M. Y. Hospital. At that time, his clothes were soiled with blood and were not seized by the police. Supreme Court has considered this aspect of the matter in the case of Joseph vs. State of Kerala, AIR 2003 SC 507 in para 13 and held that :- "......If really the witness (PW-1) was wearing blood-stained clothes the same would have been certainly seized by the police for appropriate investigation of the same....." 9. In cross-examination, PW-4 Sheikh Siraj has admitted that Riyaz is son of his brother Ishaq who was aged about 16 to 17 years and was residing with them. In cross-examination, PW-4 Sheikh Siraj has admitted that Riyaz is son of his brother Ishaq who was aged about 16 to 17 years and was residing with them. The place of incident was situated at a distance of 1,000 yards from the house of this witness. The statement of solitary eye-witness PW-4 Sheikh Siraj about taking of the deceased to the hospital stood contradicted by PW-12 Investigating Officer Vishwanath Singh Sengar who has deposed in para 6 that from M. Y. Hospital, a telephonic message was sent by Operator to the Police Station that deceased Moosakhan was brought in dead condition by Sheikh Riyaz, but he had not recorded the statement of Sheikh Riyaz and recorded the statement of Sheikh Siraj. On the basis of this information. Merg intimation was recorded wherein name of Sheikh Riyaz is mentioned. Merg-intimation was not proved by the prosecution in Court, but filed it along with the charge-sheet and is lying in the record as unproved document in 'B' file which we have perused and found that body was brought by Riyaz and not by Siraj. 10. Sheikh Siraj, in cross-examination para 21 has deposed that he was not knowing the father's name of appellant Santosh and he had not disclosed the same to the police. He has denied mentioning of name of Narayan at B to B portion of the First Information Report Ex.P/4, which is the name of father of appellant Santosh. In para 22, he has stated specifically that he was not remembering his date of birth, but he disclosed the year of his birth. On confrontation with the contents of the First Information Report Ex.P/4 at C to C portion, he expressed his ignorance as to how his date, month and year of birth was written at portion marked C to C. In para 26, he failed to explain the omission in First Information Report Ex.F/4 in regard to taking of PAN (betel) from the betel shop of Vishnu and hearing of outcry of his brother coming from the side of the road. He has denied mentioning of the fact in the First Information Report at portion D to D that his brother while standing in front of the shop was smoking cigarette. 11. He has denied mentioning of the fact in the First Information Report at portion D to D that his brother while standing in front of the shop was smoking cigarette. 11. The prosecution has failed to file Daily Diary, counter file of the First Information Report, Daily Dak Book and proof for compliance of the provision under section 157 of the Code with regard to sending of the copy of the First Information Report to the concerned Magistrate though the trial Court on prayer being made by the defence to produce the same, directed the prosecution to produce these documents, but all these documents were not produced on the pretext that the same were destroyed or eliminated. 12. It is clear from the record that PW-12 Investigating Officer Shri Sengar has served with a summons with instruction to bring all these documents with him for the purposes of cross-examination, but he failed to comply with the order. His cross-examination was deferred, but all these documents were not made available to the defence for the purposes of effective cross-examination to check the authenticity of the First Information Report. In the First Information Report, Ex.P/4 all numerical were written in English at several places, but only at portion marked G to G, Crime Number is written in Hindi numerical i.e. 382/94. For this abnormality, the Investigating Officer Shri Sengar has failed to furnish any reasonable and plausible explanation. We have perused the record carefully and the contents of the Report show that portion marked G to G was written in different handwriting as well as in different ink. The entire First Information Report is in blue ink whereas Crime Number at portion marked G to G is in black ink in Hindi numerical. 13. In column No. 3(C), there is a column meant for mentioning Daily Diary Number (Roznamcha Sanaha Number), but this number has not been written and space is left blank. The purpose of supplying printed First Information Report with blank space in several columns to comply with the instructions and fill these columns at the time of writing of the First Information Report. The purpose of supplying printed First Information Report with blank space in several columns to comply with the instructions and fill these columns at the time of writing of the First Information Report. Shri Sengar has admitted that after writing the First information Report, the procedure is to write immediately in the Daily Diary and Crime Number in column No. 3, but he failed to give any explanation for not doing so though he was specifically cross-examined on this point in para 9 of his deposition. He has denied the defence suggestion that the Daily Diary Number was not written in the First Information Report Ex. P/4 because the same was not recorded on the date and time as shown. 14. There is yet another serious flaw in regard to non mentioning of date and time of sending of copy of the First Information Report as per provision under section 157 of the Code which is prescribed in column No. 13 of the First Information Report Shri Sengar failed to give any explanation for this material non-compliance. In cross-examination para 5, in question to answer, he stated the number and date of sending of the copy of the First Information Report to the concerned Magistrate, but the same was disclosed by him on the basis of written piece (slip) of paper in his possession and in para 6 he admitted that he had brought this slip, but did not bring the Dak Book which is maintained in the Police Station regarding compliance of provision under section 157 of the Code for sending of the copy of the First Information Report forthwith to the concerned Magistrate. 15. Shri Sengar has deposed that at the time of preparation of Inquest Report Ex.P/2, he found the clothes of the deceased smeared with mud, but in the spot map Ex.P/5, there is absolutely no mention about presence of mud on the spot and according to defence version, the clothes of the deceased were smeared with mud because he was lying dead in a gutter situated out side the Akhada of Shankar Ustad. 16. Now we would examine the statement of solitary eye-witness viz. brother of deceased Sheikh Siraj about reasons of his presence near the spot. 16. Now we would examine the statement of solitary eye-witness viz. brother of deceased Sheikh Siraj about reasons of his presence near the spot. According to him, he had gone to inspect the construction work of Lord Hanuman Temple and contract of its construction work was given to him by DW-1 Vishnu Ustad. The prosecution has failed to file any documentary evidence to this effect and DW-1 Vishnu Ustad has denied granting of any contract to Sheikh Siraj for construction work of Lord Hanuman temple. In this view of the matter, the very reason for presence of Sheikh Siraj on or near the scene of occurrence is rendered doubtful. The Investigating Officer Shri Sengar has also stated that on or near the temple instruments which could be used for construction of temple, were not found. 17. The conviction of the appellants is based on solitary testimony of an eye-witness who is real brother of the deceased, therefore, he was interested in the success of prosecution. Supreme Court in the case of Marudanal Augusti vs. State of Kerala, AIR 1980 SC 638 , while considering the importance of First Information Report has observed thus :- "The High Court seems to have overlooked the fact that the entire fabric of the prosecution case would collapse if the F.I.R. is held to be fabricated or brought into eixstence long after the occurrence and any number of witnesses could be added without there being anything to check the authenticity of their evidence." 18. In the instant case, there are numerous serious infirmities about First Information Report Ex.P/4 as discussed hereinabove and we find substance in the arguments advanced by the learned counsel for the appellants. According to the M.P. Police Regulations, (Regulation No. 970(f) and 971 which has the force of law. (See: Shyambabu vs. State of M.P. and others, 1996 Cr.L.J. 2696,) counterfoil of the First Information Report, Daily Diary and Dak Book showing despatch of copy of the First Information to be sent to the concerned Magistrate are required to be preserved for two years from the date of its writing, but in the instant case, when the Court allowed the application of defence for production of all these documents, the same were not produced on the ground that they were destroyed or eliminated. It is a legal requirement that substance of the First Information Report about cognizable offence has to be recorded in Daily Diary and its entry number must be mentioned in the First Information Report. Same is the requirement regarding despatch of copy of the First Information Report to the concerned Magistrate as per provision under section 157 of the Code of Criminal Procedure Supreme Court in the case of Veer Singh vs. State of Uttar Pradesh, AIR 1978 SC 59 in para 11 has held that burden lies on the prosecution to prove compliance of section 157 of the Code of Criminal Procedure regarding sending of copy of the First Information Report forthwith to the concerned Magistrate and Court cannot take judicial notice of this fact, but the prosecution is required to prove the same like any other fact. All this is clear from the printed proforma of First Information Report supplied to every Police Station by the Police Head Quarters through the Superintendent of Police or other in-charge of the Department. These provisions are made for putting check and counter check so that First Information Report and investigation may not be concocted and prepared in ante date and time. As a matter of fact copies of these documents should have been filed by the investigating agency along with the charge-sheet. If there is non-compliance of these provisions, the same can be taken into consideration for judging the authenticity of the First Information Report. In the case in hand, there is not only one or two infirmity/infirmities, but several infirmities are noted, as discussed hereinabove which are sufficient to hold that the First Information Report was brought into existence in ante date and time. 19. Sheikh Siraj (PW-4) has admitted in his statement that the Police Station was situated near the place of incident and that distance could be crossed within ten minutes, but he did not prefer to go to the Police Station and lodge the report, because of serious condition of his brother to whom, he wanted to take immediately to the hospital. Sheikh Siraj (PW-4) has admitted in his statement that the Police Station was situated near the place of incident and that distance could be crossed within ten minutes, but he did not prefer to go to the Police Station and lodge the report, because of serious condition of his brother to whom, he wanted to take immediately to the hospital. This explanation or the reason stated by the eye-witness is not acceptable in the facts and circumstances of the case in hand as it is clear from his statement that while taking the deceased from the spot to M. Y. Hospital, there were several big well equipped hospitals and Nursing Homes situated and if really he was taking his brother and wanted to provide him immediate medical aid he could have taken him immediately at a nearest hospital, but instead of doing so he crossed a long distance Sheikh Siraj has also admitted that on the way to M. Y. Hospital, there was a Police Station, but he did not go there and lodge any report. 20. In the wake of foregoing serious infirmities in the prosecution case, in our considered view the solitary testimony of interested witness Sheikh Siraj, brother of the deceased, cannot be relied upon for proving the guilt of the appellants. Consequently this appeal deserves to be and is hereby allowed. Conviction and sentences of the appellants as passed by the trial Court are set aside. The appellants are on bail, their bail and surety bonds shall stand discharged. 21. Let a copy of this judgment be sent to the trial Court along with its record for compliance in due course.