Rajasthan High Court - Jodhpur
Daau Ram vs State on 27 May, 2019
Bench: Sandeep Mehta, Abhay Chaturvedi
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D. B. Criminal Appeal No. 87/2019
Daau Ram son of Goma Ram, by caste Meghwal, aged about 36
years, resident of village Chawa, Baitu, Police Station, District
Barmer.
(Lodged in District Jail, Barmer)
----Appellant
Versus
State of Rajasthan
----Respondent
For Appellant : Mr. Rajesh Panwar with
Mr. Ayush Gehlot
For Respondent : Mr. Anil Joshi, P.P.
HON'BLE MR. JUSTICE SANDEEP MEHTA
HON'BLE MR. JUSTICE ABHAY CHATURVEDI Judgment Reportable Per Hon'ble Mr. Abhay Chaturvedi, J.
27/05/2019 The present criminal appeal under Section 374(2) of Cr.P.C. has been preferred by the accused-appellant against the judgment and order of conviction dated 07.03.2019 passed by the learned Special Judge, SC/ST Act Cases, Barmer in Sessions Case No. 450/2018 [50/2018] whereby, while acquitting the accused- appellant from the charge under Section 450 IPC, the learned trial Judge convicted him for the offence under Section 302 IPC and sentenced him for life imprisonment with fine of Rs.10,000/- and in default of payment of fine to further undergo 02 months' additional Simple Imprisonment.
(Downloaded on 28/06/2019 at 06:34:55 AM)
(2 of 13) [CRLA-87/2019] Brief facts giving rise to this appeal are that on 02.03.2018 at 9:30 am, one Ladha Ram (PW-1) submitted a written report (Ex.P/1) with SHO, Police Station Baitu. In this written report, allegations were set out that on 01.03.2018, at 11:00 pm his younger brother Purkharam son of Jugtaram was at his Rahwasi Dhani. The accused-appellant Daau Ram assaulted him by a lathi. Purkharam sustained injuries on his head and he succumbed to the injuries. The dead body of Purkharam was lying on a cot in his Dhani. It was also alleged that the accused-appellant Daau Ram inflicted blows to Purkharam as he was having an agricultural land dispute with him.
On the basis of this report a formal FIR No.22/2018 (Ex.P/36) was registered at Police Station Baitu for the offences under Sections 450 and 302 IPC and the investigation commenced. During the investigation, the prosecution witnesses were examined and postmortem was conducted and it was opined by the medical Board that Purkharam died due to injuries to vital organ i.e. brain.
After thorough investigation, police submitted a charge-sheet against the accused-appellant for the offences under Sections 450 and 302 IPC before the Magistrate concerned. Since the offence under Section 302 IPC was triable by Court of Sessions, the case was committed to the Court of Sessions Judge for trial. The learned Sessions Judge transferred the case to learned Special Judge, SC/ST Act Cases, Barmer.
Learned trial court framed, read over and explained the charges for the offences under Sections 450 and 302 IPC to the (Downloaded on 28/06/2019 at 06:34:55 AM) (3 of 13) [CRLA-87/2019] accused-appellant who pleaded not guilty and sought trial. The prosecution examined as many as 18 witnesses and exhibited 48 documents in support of its case.
The accused was questioned under Section 313 Cr.P.C. and was confronted with the circumstances appearing against him in the prosecution evidence. He denied the same and claimed to be innocent. However, no evidence was led in defence.
After hearing and appreciating the submissions advanced by the defence and the prosecution and after appreciating and evaluating the evidence available on record, the learned trial Court, proceeded to convict and sentence the appellant as above.
Learned counsel for the appellant has submitted that the judgment passed by the trial Court is based on no evidence. All the witnesses have been declared hostile and they have not supported the prosecution story. It was further urged that the trial Court has convicted the accused-appellant only on the basis of recovery of lathi stained with the same blood group as that of the deceased. Only on the basis of the recovery of weapon of offence, without there being any substantive evidence, conviction cannot be recorded. It was further submitted that the lathi was allegedly recovered in pursuance of the information furnished by the accused-appellant under the provisions of Section 27 of the Evidence Act but during trial such information has not been properly proved by the prosecution. It is also submitted that the trial Court has taken into consideration the fact of abscondance of the accused-appellant to be an incriminating circumstance. The occurrence took place on 01.03.2018 and the accused-appellant was arrested on 05.03.2018. This small period cannot be said to (Downloaded on 28/06/2019 at 06:34:55 AM) (4 of 13) [CRLA-87/2019] be sufficient so as to brand the accused as absconder. There is no evidence which suggests that any attempt was made to arrest the accused and that he evaded arrest. Thus, merely on the basis of absence of accused from 02.03.2018 to 05.03.2018, no adverse inference can be drawn against the accused-appellant. It was also submitted that there is no evidence on record so as to justify the conviction of the accused-appellant for the offence under Section 302 IPC. On these grounds, learned counsel for the appellant implored the Court that the appellant herein is entitled to be acquitted and the impugned judgment deserves to be set aside.
Learned Public Prosecutor, on the other hand, vehemently opposed the submissions advanced by the learned counsel for the appellant and contended that the impugned judgment passed by the learned Court is based on a just and proper appreciation of the facts and evidence available on record and there is no ground to interfere with the findings of the trial Court. Hence, the appeal deserves to be dismissed.
We have given our thoughtful consideration to the submissions advanced at Bar and have gone through the material available on record.
A perusal of the record transpires that the Written Report Ex.P/1 was submitted by PW-1 Ladha Ram in which allegations of beating the deceased Purkharam to death was attributed to the accused-appellant. However, during trial, this witness was declared hostile by the prosecution and he specifically stated that he did not see as to how Purkharam died or who assaulted him etc. Similarly, all the other prosecution witnesses viz. PW-2 Baburam, PW-3 Solaram, PW-4 Hindu Singh, PW-5 Pukhraj, PW-6 (Downloaded on 28/06/2019 at 06:34:55 AM) (5 of 13) [CRLA-87/2019] Maggaram, PW-7 Khairajram, PW-8 Bannaram, PW-9 Dhannaram, PW-10 Devaram, PW-11 Ishraram, PW-12 Sukharam, PW-13 Surjaram, PW-14 Bhanwari, PW-15 Ramaram, PW-16 Gomaram and PW-17 Swaroopsingh did not support the prosecution case and were declared hostile. Hence, there is no evidence of any eye-witness supporting the prosecution case as set out in the charge of murder framed against the accused - appellant.
The learned trial court has convicted the accused-appellant purely on the basis of the recovery of the blood stained lathi vide seizure memo Ex. P/37 in pursuance to the information under Section 27 of the Evidence Act (Ex.P/32). This information (Ex.P/32) was sought to be proved by PW-18-Omprakash, the investigating officer who stated as under:
"....... ckn fxj¶rkjh eqyfte Mkmjke dh bRryk ij /kkjk 27 lk{; vf/kfu;e ij eqyfte }kjk ?kVuk esa iz;qDr dh xbZ ykBh tCr djokus ds fy, lwpuk nh xbZ tks izn"kZ ih 32 gS ftl ij , ls ch esjs gLrk{kj gS rFkk lh ls Mh eqyfte Mkmjke ds gLrk{kj gSA ykBh cjkenxhLFky ij tkdj ykBh cjken dh xbZ gS ftldk uD"kk utjh izn"kZ ih 34 gS ftl ij , ls ch esjs gLrk{kj gS o lh ls Mh eqyfte Mkmjke ds gLrk{kj gS rFkk bZ ls ,Q o th ls ,p ekSrchjku mnkjke o egsUnz dqekj ds gLrk{kj gSA ---- nkSjkus vuqla/kku fnukad 07-03-2018 dks nksigj ikSus ,d cts eqyfte } kjk bRryk nsus ij oDr okdk vfHk;qDr }kjk miHkksx esa yh xbZ ykBh tCr dh ftldh QnZ tCrh rS;kj dh xbZ tks izn"kZ ih 37 gS ftl ij , ls ch esjs gLrk{kj gS rFkk lh ls Mh eqyfte ds gLrk{kj gS rFkk bZ ls ,Q o th ls ,p Øe"k% ekSrchjku mnkjke o egsUnz ds gLrk{kj gSA"
The statement of PW-18 shows that he did not specifically narrate before the Court as to what exactly the accused-appellant stated to him while giving the information under Section 27 of the Evidence Act. Actual words as stated by the accused to the Investigating Officer should have been deposed by the witness during his examination in court. The oral statement given by witness in the Court construed to be a substantive piece of (Downloaded on 28/06/2019 at 06:34:55 AM) (6 of 13) [CRLA-87/2019] evidence to be acted upon while considering the case of the accused.
Section 59 and 60 of the Evidence Act read as below :
59. Proof of facts by oral evidence.--All facts, except the [contents of documents or electronic records], may be proved by oral evidence.--All facts, except the [contents of documents or electronic records], may be proved by oral evidence."
60. Oral evidence must be direct.-- Oral evidence must, in all cases whatever, be direct;
that is to say-- If it refers to a fact which could be seen, it must be the evidence of a witness who says he saw it; If it refers to a fact which could be heard, it must be the evidence of a witness who says he heard it; If it refers to a fact which could be perceived by any other sense or in any other manner, it must be the evidence of a witness who says he perceived it by that sense or in that manner; If it refers to an opinion or to the grounds on which that opinion is held, it must be the evidence of the person who holds that opinion on those grounds:
Provided that the opinions of experts expressed in any treatise commonly offered for sale, and the grounds on which such opinions are held, may be proved by the production of such treatises if the author is dead or cannot be found, or has become incapable of giving evidence, or cannot be called as a witness without an amount of delay or expense which the Court regards as unreasonable: Provided also that, if oral evidence refers to the existence or condition of any material thing other than a document, the Court may, if it thinks fit, require the production of such material thing for its inspection.
The direct implication of these two mandatory provisions is that a witness who steps into the witness box for proving a fact which he has seen or observed must give oral evidence to prove such fact. Manifestly, a memorandum prepared by the Investigating Officer under Section 27 of the Evidence Act refers to a fact which the Investigating Officer has seen and heard while (Downloaded on 28/06/2019 at 06:34:55 AM) (7 of 13) [CRLA-87/2019] interrogating the accused. Thus, for proving the contents of memorandum, the Investigating Officer must state the exact narration of facts in such document in his own words while deposing before the Court.
This Court in the case of Dharma Vs. The State reported in AIR 1966 Raj 74 observed in paras 17 to 21 as under:
17. Now as regards the proving of such information, the matter seems to us to be governed by Sections 60, 159 and 160 of the Evidence Act. It is correct that statements and reports prepared outside the court cannot by themselves be accepted as primary or substantive evidence of the facts stated therein. Section 60 of the Evidence Act lays down that oral evidence must, in all cases whatever, be direct, that is to say, if it refers to a fact which could be seen, it must be the evidence of a witness who says he saw it, and if it refers to a fact which could be heard, it must be the evidence of a witness who says he heard it and so on. Section 159 then permits a witness while under examination to refresh his memory by referring to any writing made by himself at the time of the transaction concerning which he is questioned, or so soon afterwards that the court considers it likely that the transaction was at that time fresh in the memory.
Again, with the permission of the court, the witness may refresh, his memory by referring to a copy of such document. And the witness may even refer to any such writing made by any other person but which was read by him at the time the transaction was fresh in his memory and when he read it, he knew it to be correct. Section 160 then provides for cases where the witness has no independent recollection say, from lapse of memory, of the transaction to which he wants to testify by looking at the document and states that although he has no such recollection he is sure that the contents of the document were correctly recorded at the time they were. It seems to us that where a case of this character arises and the document itself has been tendered in evidence, the document becomes primary evidence in the case. See Jagan Nath v. Emperor, AIR 1932 Lah 7.
The fundamental distinction between the two sections is that while under Section 159 it is the witness's memory or recollection which is (Downloaded on 28/06/2019 at 06:34:55 AM) (8 of 13) [CRLA-87/2019] evidence, the document itself not having been tendered in evidence; under Section 160, it is the document which is evidence of the facts contained in it. It has been further held that in order to bring a case under Section 160, though the witness should ordinarily affirm on oath that he does not recollect the facts mentioned in the document, the mere omission to say so will not make the document inadmissible provided the witness swears that he is sure that the facts are correctly recorded in the document itself. Thus in Partab Singh v. Emperor, AIR 1926 Lah 310 it was held that where the surrounding circumstances intervening between the recording of a statement and the trial would as a matter of normal human experience render it impossible for a police officer to recollect and reproduce the words used, his statement should be treated as if he had prefaced it by stating categorically that he could not remember what the deceased in that case had said to him. Putting the whole thing in somewhat different language, what was held was that Section 160 of the Act applies equally when the witness states in so many words that he has no independent recollection of the precise words used, or when it should stand established beyond doubt that that should be so as a matter of natural and necessary conclusion from the surrounding circumstances.
18. Again, in Krishnama v. Emperor, AIR 1931 Mad 430 a Sub-Assistant Surgeon recorded the statement made by the deceased just before his death, which took place in April, 1930, and the former was called upon to give evidence some time in July, 1930. In the Sessions Court he just put in the recorded statement of the deceased which was admitted in evidence. On appeal it was objected that such statement was wrongly admitted inasmuch as the witness did not use it to refresh his memory nor did he attempt from recollection to reproduce the words used by the accused. It was held that he could not have been expected to reproduce the words of the deceased, and therefore, he was entitled to put in the document as a correct record of what the deponent had said at the time on the theory that the statement should be treated as if the witness had prefaced it by stating categorically that he could not remember what the deceased had said.
19. Again in Public Prosecutor v. Venkatarama Naidu, AIR 1943 Mad 542, the question arose how the notes of a speech taken by a police officer be admitted in evidence. It was held that it was not (Downloaded on 28/06/2019 at 06:34:55 AM) (9 of 13) [CRLA-87/2019] necessary that the officer should be made to testify orally after referring to those notes. The police officer should describe his attendance, the making of the relevant speech and give a description of its nature so as to identify his presence there and his attention to what was going on, and that after that it was quite enough it he said "I wrote down that speech and this is what I took down," and if the prosecution had done that, they would be considered to have proved the words. This case refers to a decision of the Lahore High Court in Om Prakash v.
Emperor, AIR 1930 Lah 867 wherein the contention was raised that the notes of a speech taken by a police officer were not admissible in evidence as he did not testify orally as to the speech and had not refreshed his memory under Section 159 of the Evidence Act from those notes. It was held that instead of deposing orally as to the speech made by the appellant, the police officer had put in the notes made by him, and that there would be no difference between this procedure and the police officer deposing orally after reference to those notes, and that for all practical purposes, that would be one and the same thing.
20. The same view appears to us to have been taken in Emperor v. Balaram Das, AIR 1922 Cal 382 (2).
21. From the discussion that we have made, we think that the correct legal position is somewhat like this. Normally, a police officer (or a Motbir) should reproduce the contents, of the statement made by the accused under j Section 27 of the Evidence Act in Court by refreshing his memory under Section 159 of the Evidence: Act from the memo earlier prepared thereof by him at the time the statement had been made to him or in his presence and which was recorded at the same time or soon after the making of it and that would be a perfectly unexceptionable way of proving such a statement. We do not think in this connection, however, that it would be correct to say that he can refer to the memo under Section 159 of the Evidence Act only if he establishes a case of lack of recollection and not otherwise. We further think that where the police officer swears that he does not remember the exact words used by the accused from lapse of time or a like cause or even where he does not positively say so but it is reasonably established from the surrounding circumstances (chief of which would be the intervening time between the making of the (Downloaded on 28/06/2019 at 06:34:55 AM) (10 of 13) [CRLA-87/2019] statement and the recording of the witness's deposition at the trial) that it could hardly be expected in the natural course of human conduct that he could or would have a precise or dependable recollection of the same, then under Section 160 of the Evidence Act, it would be open to the witness to rely on the document itself and swear that the contents thereof are correct where he is sure that they are so and such a case would naturally arise where he happens to have recorded the statement himself or where it has been recorded by some one else but in his own presence, and in such a case the document itself would be acceptable substantive evidence of the facts contained therein. With respect, we should further make it clear that in so far as Chhangani, J.'s 27-05-2019 (Page 10 of 14) www.manupatra.com Raj. High Court Jodhpur judgment holds to the contrary, we are unable to accept it as laying down the correct law. We hold accordingly."
The information memo (Ex.P/32) which bears a narrative of the statement given by the accused-appellant to the investigating officer, cannot be construed to be a substantive piece of evidence. Hence, the Ex.P/32 is not admissible in evidence. In the case of Mohd. Abdul Hafeez Vs. State of Andhra Pradesh reported in AIR 1983 SC 367, the Apex Court held as under :
"...... It is impossible to believe that all spoke simultaneously. This way of recording evidence is most unsatisfactory and we record disapproval of the same. If evidence otherwise confessional in character is admissible under Section 27 of the Indian Evidenct Act, it is obligatory upon the investigating officer to state and record who gave the information; when, he is dealing with more than one accused, what words were used by him so that a recovery pursuant to the information received may be connected to the person giving the information so as to provide incriminating evidence against that person."
(Emphasis Supplied) (Downloaded on 28/06/2019 at 06:34:55 AM) (11 of 13) [CRLA-87/2019] There is one more important aspect of the case that all the eye witnesses have been declared hostile and have not supported the prosecution case. Even if it is assumed for a moment that blood stained lathi having the same blood group as that of the deceased was recovered in pursuance of the information under Section 27 of the Evidence Act by the accused - appellant, even then, the mere recovery of a weapon of offence cannot be made a basis of conviction without there being any substantive evidence.
The Apex Court in the case of Mustkeem Vs. State of Rajasthan reported in AIR 2011 SC 2769 held in para 23 as under:
"The AB blood group which was found on the clothes of the deceased does not by itself establish the guilt of the appellant unless the same was connnected with the murder of deceased by the \Appellants. None of the witnesses examined by the prosecutiion could establish that fact. The blood found on the sword recovered at the instance of the Mustkeem was not sufficient for test as the same had already disintegrated. At any rate, due to the reasons elaborated in the following paragraphs, the fact that the traces of blood found on the deceased matched those found on the recovered weapons cannot ipso facto enable us to arrive at the conclusion that the latter were used for the murder."
Thus, the evidence of recovery of blood stained lathi is not sufficient to hold the accused - appellant guilty for the offence under Section 302 IPC.
The trial court has also observed that the accused-appellant absconded from the scene of occurrence and was arrested on 05.03.2018 which strengthens the case of the prosecution that the accused - appellant Daau Ram committed the murder of the deceased Purkharam. This observation of the trial court is not (Downloaded on 28/06/2019 at 06:34:55 AM) (12 of 13) [CRLA-87/2019] sustainable as mere absconding by itself does not necessarily lead to a firm conclusion of guilty mind. Even an innocent man may feel panicky and try to evade arrest when wrongly suspected of a grave crime such is the instinct of self- preservation.
In the present case, there is no evidence on record to the effect that accused - appellant was absent intentionally or ran away so as to evade his arrest. PW-18 - Om Prakash, the Investigating Officer have not stated a single word about such conduct of the accused - appellant. He has not stated that he tried to apprehend the accused but he intentionally evaded the arrest and absconded.
In view of the above, we are of the firm view that there is no evidence on record so as to connect the accused - appellant with the offence under Section 302 IPC. The judgment passed by the trial court convicting the accused - appellant deserves to be set aside.
Resultantly, the criminal appeal is allowed. The impugned judgment dated 07.03.2019 passed by the learned Special Judge, SC/ST Act Cases, Barmer in Sessions Case No. 450/2018 [50/2018] is hereby quashed and set aside. The appellant Daau Ram is acquitted of all the charges. The appellant is in custody. He shall be released from prison forthwith if not required in any other case.
However, keeping in view the provisions of Section 437-A CrPC, the accused appellant is directed to furnish a personal bond in the sum of Rs.15,000/- and a surety bond in the like amount before the learned trial court, which shall be effective for a period of six months to the effect that in the event of filing of a Special (Downloaded on 28/06/2019 at 06:34:55 AM) (13 of 13) [CRLA-87/2019] Leave Petition against the present judgment on receipt of notice thereof, the appellant shall appear before the Supreme Court. (ABHAY CHATURVEDI),J (SANDEEP MEHTA),J Anil/ (Downloaded on 28/06/2019 at 06:34:55 AM) Powered by TCPDF (www.tcpdf.org)