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2011 DIGILAW 362 (RAJ)

Devi Lal v. State of Rajasthan

2011-02-17

KAILASH CHANDRA JOSHI, PRAKASH TATIA

body2011
Hon'ble TATIA, J.—This appeal has been preferred by the appellant-accused Devi Lal against the judgment and order dated 12.7.2004 by which he has been convicted for committing offence punishable under Section 302 IPC and has been sentenced to undergo life imprisonment, with fine of Rs. 5000/- and in default of payment of fine, to undergo one year's simple imprisonment, in Sessions Case No. 105/2003, by the Court of Additional Sessions Judge (Fast Track) No.1, Dungarpur. 2. Brief facts of the case are that on 14th May, 2003 a written report (Ex.P/1) was submitted by the complainant Smt. Pushpa at Police Station, Ganeshpura of District Dungarpur in the midnight of 13th 14th May 2003 at 2.00 a.m., stating therein that she is married to appellant-accused Devi Lal. Her marriage took place about 6-7 years ago and after this marriage she gave birth to one girl baby. While said girl baby was in the womb, disputes started between the complainant-wife and appellant-husband. However, after one month to the delivery of the baby, the appellant brought another lady, Smt. Sajudi and contracted 'Nata marriage' with her and started torturing the complainant. In the night of previous Diwali, she was thrown out of her husband's house and since then the complainant started living with her parents. The complainant had also lodged a case in Police Station, Ganeshpura earlier, which is doing on and because of above reasons, her husband was having enmity with the complainant. The complainant Smt. Pushpa already had apprehension that her husband may kill her, On 13th 14th May 2003, after taking the meal, her father, mother and brother - all went to sleep in the open courtyard and complainant, with her minor daughter, was sleeping in the room and door of her room was closed. At about 11.00 p.m. in the night of 13th May 2003 the complainant heard some voices of knocking of door and some shouting then she, instead of opening the door, saw from a wreck in the door that her husband was inflicting injuries with a sword upon her father Kanji, mother Smt. Doli Bai and brother Pappu. The appellant-accused tried to get door of room of complainant open, upon which the complainant started shouting. In this situation, the appellant-accused started running. The appellant-accused was accompanied by one more person, to whom the complainant could not recognize. The appellant-accused tried to get door of room of complainant open, upon which the complainant started shouting. In this situation, the appellant-accused started running. The appellant-accused was accompanied by one more person, to whom the complainant could not recognize. On hearing her shouting voice, complainant's uncle Bharta S/o Panna came there, upon which she opened the door of the room. The complainant found that her mother, father and the brother were lying dead on the spot. In her complainant Ex.P/1, she stated that her uncle Bharta also saw Devi Lal running away holding sword in his hand. 3. Upon this report, a case under Section 302 IPC was registered and investigation started. During the investigation, Panchnama of body of Kanji Ex.P/2, Panchnama of body of deceased Pappu Ex.P/3 and Panchnama of dead body of Smt. Doli - mother of the complainant, Ex.P/4 were prepared. Site map Ex.P/6 was also prepared and sample of the blood stained soil Ex.P/8 was taken. The accused was arrested and he gave information under Section 27 of the Evidence Act (Ex.P/19), in furtherance of which the blood stained sword (talwar) was recovered, for which fad Ex.P/21 was prepared. The blood stained shirt of the accused was also recovered and for that a memo Ex.P/25 was prepared. Post-mortems of the three bodies were conducted and reports Exs. P/56, P/57 and P/58 were given. The statements of witnesses were recorded under Section 161 Cr.P.C. Photographs of the site were taken, which were marked Ex.P/28 to P/54 and their negatives were also exhibited. The complainant Smt. Pushpa was examined under Sec. 164 Cr.P.C. and FSL report was also obtained. 4. In the trial Court, the star witness Smt. Pushpa was not examined and ultimately, the trial Court closed evidence of Smt. Pushpa vide order dated 7.5.2004. However, the trial Court observed that said complainant Smt. Pushpa, though did not appear in the witness-box, gave statements under Section 164 Cr.P.C., which is exhibited as Ex.P/64 and can be read in evidence as secondary evidence, as there is no legal bar in doing so and her statements are supported by medical evidence and the evidence of Shri Sandeep Sharma, Additional Chief Judicial Magistrate, Sagwada (PW-19). Therefore, relying upon said statements of Smt. Pushpa recorded under Section 164 Cr.P.C., after observing that there is possibility that Smt. Pushpa might have been abducted, obviously by the accused-appellant or appellant's side, convicted the appellant-accused for committing offence punishable under Section 302 IPC. 5. It will be relevant to mention here that the sword, by which it has been alleged that injuries have been inflicted, was recovered from a well and since in the well there was sufficient quantity of water therefore, it appears that when the sword was sent to the Forensic Science Laboratory, report came that there were no blood stains on the sword. At this juncture, it is relevant to mention here that the witnesses of the recovery memo of the sword - PW-10 Moga and PW-11 Galji, both turned hostile and in the same way, witnesses of the recovery of the cover of sword of accused appellant PW-13 and PW14 also turned hostile. The trial Court was of the view that the prosecution has fully proved the case that the victims died because of the injuries inflicted by sharp-edged weapon, obviously which could have caused by the sword and turning of these witnesses hostile cannot affect merit of he case in proving guilt of the accused. 6. Learned counsel for the appellant vehemently submitted that the witness Smt. Pushpa did not appear in the witness box and therefore, has not supported the prosecution case. It is submitted that the other witnesses neither could have been eye-witness nor their evidence proves the connection of the appellant-accused with the crime in any manner because none of the alleged witnesses even saw the appellant running with the sword. It is also submitted that the witness PW-8 Tulsi, in the cross-examination, admitted hat his house was one kilometer away from house of the complainant and therefore, he could not have seen the appellant-accused or the person who inflicted injuries upon victims running with sword, as he could not have reached on the spot nor he could have hard the voices from place of incident so as to wake up and run towards the spot. 7. 7. The other witness PW-7 Bharta is uncle of the complainant and through he denied the suggestion that his house is 1.5 kilometers away from house of the complainant Smt. Pushpa but he admitted that the appellant never visited witness's house nor the witness visited appellant's house. In the cross-examination, he stated that he saw a person running, from 200 feet distance and with him no other person was there; which contradicted the fact stated in the complaint. In the cross-examination, he stated that he found the house of Smt. Pushpa locked when he reached on the spot, which falsifies the prosecution case. The witness, PW-7 Bharta, further admitted that he even did not see face of the person running from there as he saw the person from back side of said person. 8. Learned counsel for the appellant further submitted that Smt. Pushpa and the Investigating Officer have not been examined. The accused arrest memo was not proved, and therefore, the appellant can not be connected with the crime in any manner because before proving the information under Sec. 27 of the Evidence Act it is necessary to prove arrest of the accused and his giving information while in custody, in the case for which he matter was being investigated. The FSL report was not even exhibited. 9. It is also submitted that statement of Smt. Pushpa was recorded under Sec. 164 Cr.P.C. after about 2½ months and furthermore, there is no evidence on record on the basis of which identity of said complainant Smt. Pushpa stand established, so as to find out that she herself gave statements before the learned Magistrate under Sec. 164 Cr.P.C. It is also submitted that the statements under Section 164 Cr.P.C. also re not in better footing than statements recorded under Sec. 161 Cr.P.C. and the statement recorded under Section 164 Cr.P.C. is not substantive piece of evidence. It could have been used only for contradiction/corroboration and can not become part of the evidence simply because it was recorded by the Magistrate. 10. It could have been used only for contradiction/corroboration and can not become part of the evidence simply because it was recorded by the Magistrate. 10. Learned counsel for the appellant relied upon judgment of Hon'ble Supreme Court delivered in the case of Baijnath Shah vs. State of Bihar reported in 2010 Cr.L.R. (SC) 626, wherein it has been held that the statement recorded under Section 164 Cr.P.C. is not substantive piece of evidence and can be utilized only to corroborate or contradict the witness and in a case where the alleged author of the statement under Sec. 164 Cr.P.C. can not be used against the accused. This very plea was upheld in the judgment delivered in the case of Prakash Chand Sen vs. State of Rajasthan, reported in 2005(9) RDD 3928 (Raj.), wherein also same view was taken by a Division Bench of this Court as has been taken by Hon'ble Supreme court in Baijnath Shah's case (supra). 11. Learned Public Prosecutor vehemently submitted that even if the witness Smt. Pushpa has not been examined even then the trial court was fully justified in convicting the appellant for committing murder of three persons in view of reliable evidence. It is also submitted that the Investigating Officer was not examined because he died and therefore, that will not affect the trial in any manner. It is further submitted that Smt. Pushpa gave statement under Sec. 164 Cr.P.C. before the Magistrate and there is no reason to discard that statement of Smt. Pushpa recorded under Sec. 164 Cr.P.C. It is also submitted that there was enmity between the appellant Devi Lal and the complainant Smt. Pushpa and therefore, he prosecution has fully connected the appellant with the crime. The three persons died because of the injuries suffered from sharp edged weapon and that fact has been proved from post-mortem report and the recovery of the sword. 12. We considered the submissions of learned counsel for the appellant and learned Public Prosecutor. We are constrained to observe that the trial court has not tried the matter in accordance with law and miserably failed to look into court's power in summoning of the witness. We are also constrained to observe here that the prosecution failed to discharge their duty before the trial Court. The reason for our above observation are as follows. 13. We are constrained to observe that the trial court has not tried the matter in accordance with law and miserably failed to look into court's power in summoning of the witness. We are also constrained to observe here that the prosecution failed to discharge their duty before the trial Court. The reason for our above observation are as follows. 13. It was duty of the prosecution to not only investigate in the matter and place the material before the Court for trial but it was also duty of the prosecution to prosecute the case with full sincerity because in criminal jurisprudence this task has been given to the State, with a very pious object that the criminal trial should not be influenced by sentiments and investigation should be done by an independent agency and the prosecution in the court should be conducted by the independent agency who may impartially put up the case as per facts found after investigation. 14. It is not the only duty of the prosecution to investigate a crime and place before the Court the documents and it is the duty of the prosecution to see how the case is prosecuted. It appears that in the trial Court the prosecution did not even exhibited the documents, which could have been exhibited and which should have been exhibited, more particularly when this is case of triple murder. It is very unfortunate that in the trial Court, the FSL report itself was not proved and without there being any reason, on the lame excuse of death of the Investigating Officer, the prosecution refrained from proving the documents in accordance with law, which contains provisions for proving the documents prepared in discharge of official duty. Not only this but even he documents, which are not prepared and executed in discharge of official duty and which are private documents and wherein the executant or witness to the documents have died, those documents can also be proved. 15. We are constrained to observe that if the prosecution would have applied their mind for advancing arguments for documents, which have high value of authenticity then they certainly could have find out the way for proving such documents. 15. We are constrained to observe that if the prosecution would have applied their mind for advancing arguments for documents, which have high value of authenticity then they certainly could have find out the way for proving such documents. It is unfortunate that even the arrest memo was not got exhibited and proved, of the accused of a crime of triple murder and the prosecution proceeded to prove the information, alleged to have been given by the accused, under Sec. 27 of the Evidence Act, which contains condition that the information given by he accused in custody to a Police Officer and can be admitted in evidence wherein there is discovery of fact in pursuance of such information. Therefore, the custody of the accused is must for proving the information under Sec. 27 of the Evidence Act, as much as the information must result into discovery of a fact. We do not find any reason for not proving the arrest memo of the accused and that is a serious lapse on the part of the prosecution, as it directly affects the information under Sec. 27 of the Evidence Act, collected by the prosecution during investigation as well as a material piece of evidence, in a criminal trial. 16. It is very unfortunate that FSL report was obtained and has been placed on record as submitted by the prosecution, by application of mind i.e. by moving an application dated 13th August, 2003 because the FSL report must have been received late. During the investigation, total 13 articles were taken for obtaining FSL report, for which the Forensic Science Laboratory gave report on 4th July, 2003 and that report even has not been exhibited. Since that report has not been exhibited, therefore, we can not take into consideration the fact found by the experts of the laboratory from the articles, for which the report was given by the Forensic Science Laboratory. 17. We are constrained to observe that the complainant Smt. Pushpa alleged that she was eye-witness and her evidence was closed by order dated 7th May, 2004, which has not been challenged by the prosecution, for the reasons best known to the prosecution. From the order dated 7th May, 2004, we found that reasons given for not granting more time for production of said star witness Smt. Pushpa are not satisfactory. From the order dated 7th May, 2004, we found that reasons given for not granting more time for production of said star witness Smt. Pushpa are not satisfactory. The offence was committed in the night of 13-14th May, 2003, challan was filed in the court of Magistrate and it was committed to the Court of Sessions only on 14th August, 2003 and it was transferred to the Court of Additional Sessions Judge (Fast Track) and the next date was fixed as 8th September, 2003. The charges were framed on 27th September, 2003 and the witness Smt. Pushpa was summoned to appear on 10th November, 2003. The bailable warrant of Smt. Pushpa was duly served. On 10th November, 2003, the witness Smt. Pushpa did not appear and therefore, evidence of other witnesses - PW-1, PW-2 & PW-3 were recorded. On 11th November, 2003, evidence of PW-4, PW-5 and PW-6 were recorded and the evidence of PW-7 to PW-11 were recorded on 12th November, 2003, as the trial Court had fixed five dates for evidence of the prosecution. Then on 13th November, 2003, statements of witnesses PW-12 to PW-15 were recorded. On 14th November, 2003 no other witness appeared. 18. It is clear from the above facts that after framing the charge on 27th September, 2003, five continuous dates were given for recording statements of prosecution witnesses and only on 10th November, 2003 Smt. Pushpa was supposed to appear and she did not appear on 10th November, 2003. Upto 14th November, 2003 date was fixed for evidence of other witnesses and only on 14th November, 2003 order was passed to summon the witness Smt. Pushpa through bailable warrant for giving evidence on 12th December, 2003. Smt. Pushpa did not appear on 12th December, 2003 as per bailable warrant for Smt. Pushpa was issued, that too was not served upon Smt. Pushpa. In this way, ultimately since the summon on Smt. Pushpa was not served for any of the dates, the trial Court passed the order on 7th May, 2004, stating therein that efforts were made for serving bailable warrant upon said Smt. Pushpa but they have returned back without service. In this way, ultimately since the summon on Smt. Pushpa was not served for any of the dates, the trial Court passed the order on 7th May, 2004, stating therein that efforts were made for serving bailable warrant upon said Smt. Pushpa but they have returned back without service. In the order sheet dated 7th May, 2004, it has been noticed that ASI Bhanwar Singh of the Police Station, Ganeshpura informed that the witness may have been living in the State of Gujarat and thereafter, it has been recorded that in view of that fact it is not possible to find out the witness because the Police could not find out present address of the witness. 19. We may observe here that the trial Court in the impugned judgment itself, in para No.26, expressed opinion that the witness Smt. Pushpa either might have been abducted or might have been kept away and this could have been done only by the person who is interested in not allowing the statement of Smt. Pushpa to be recorded by the Court. then it was duty of the trial Court to direct the State to secure attendance of the witness as well as to provide sufficient security to such lady for which the trial Court had apprehension that she might have either been abducted or might have been taken in hide by some other persons. In a case where during the investigation it is found that the star witness is the eye-witness and has seen the commission of three murders then it was duty not only of the State but also of the Court to see that such witness should be provided sufficient protection so that such witness can give true and correct statement in the Court. 20. At this juncture, we may further observe that an application was submitted by the prosecution under Sec. 311 Cr.P.C. and permission was sought to summon the Additional Chief Judicial Magistrate Mr. Sandeep Sharma as witness, whose name was not in the list of witnesses and that application was allowed by the trial Court vide order dated 3rd March, 2004. Be it as it may, the statement of the Additional Chief Judicial Magistrate Mr. Sandeep Sharma as witness, whose name was not in the list of witnesses and that application was allowed by the trial Court vide order dated 3rd March, 2004. Be it as it may, the statement of the Additional Chief Judicial Magistrate Mr. Sandeep Sharma could not have made the statement of Smt. Pushpa recorded under Sec. 164 Cr.P.C. as substantive piece of evidence in the criminal trial and therefore, by this way serious lapse on the part of the prosecution has not met with. 21. It goes without saying that the Court is not the prosecutor and is not supposed the guide the prosecution agency and therefore, it was sole duty of the prosecution to conduct trial of the case in accordance with law and it was duty of the prosecution alone to secure the attendance of the witness through process of law and to prove the evidence collected by the prosecution during the investigation. We are of the view that the trial Court itself should have issued sufficient orders and directions for securing attendance of the witness in the case and when the case is of murder and, in the present case, when the case was in relation to offence of triple murder, of the members of one family; the trial Court itself should have issued sufficient directions to the State for securing the presence of the witness in the Court, instead of closing the evidence merely on the basis that the witness could not be found out by Police, in short time of about seven months only. 22. Speedy trial does not mean that in all cases where trial Court can not proceed in the case, the Court should find out a way for disposal of the case instead of doing justice. We do not find any reason in the trial Court's proceeding in not passing appropriate order against the authorities concerned for securing attendance of the witness. 23. In sum and substance, because of the reasons mentioned above, the trial in the instant case can not be said to be a trial in accordance with law, where in spite of availability of evidence collected during the investigation on record, those evidence have not been proved, because of the lapse on the part of the prosecution and where the Court failed to secure attendance of the principal witness. In view of the above reasons, the impugned judgment of the trial Court is set aside and the matter is remanded to the trial Court, for making more efforts for securing the attendance of witness Smt. Pushpa and for recording her statement and further opportunity be granted to the prosecution for proving the documents - arrest memo and the FSL report, by recalling the witness Duli Chand, because of the reason that the Investigating Officer Shanti Lal has died and therefore, his statement was recorded. 24. We may make it clear that, for any reason, if said Duli Chand (PW17) is not found then he State may be permitted to produce a witness, who can prove the documents/signature of the I.O. Shanti Chand, who prepared other documents as well as the prosecution may be given sufficient opportunity to prove the FSL report. 25. The trial Court is, therefore, directed to comply with the above directions expeditiously and may proceed in accordance with law and pass fresh judgment and order in the matter. The accused-appellant shall remain present before the trial Court on 14th March, 2011. The appeal stands disposed of accordingly.