Madhya Pradesh High Court
Champalal Siddh Thru.Lrs.Kalabai vs The State Of M.P. on 30 November, 2015
Author: P.K. Jaiswal
Bench: Subhash Kakade, P.K. Jaiswal
1
CRA No.287/2000
HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE
D.B.: Hon'ble Shri P.K. Jaiswal
Hon'ble Shri Subhash Kakade, JJ.
Criminal Appeal No.287/2000
Champalal Siddh s/o Bhagwandas (deceased)
through legal representative Kalabai wd/o Champalal
Versus
The State of Madhya Pradesh
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Shri Tausif Warsi, learned counsel for the appellant.
Shri Deepak Rawal, learned Deputy Advocate General for the
respondent / State.
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JUDGMENT
(Pronounced on this 30th day of November, 2015) Per P.K. Jaiswal, J.
Five persons namely Champalal Siddh s/o Bhawandas, Balmukund s/o Bhagwandas, Nitin s/o Champalal Siddh, Ajay Singh s/o Beniprasad Verma and Jinendra s/o Shankarlal were tried under Sections 148 and 302 /149 of the Indian Penal Code, 1860 and under Section 25 (1) (B) of Arms Act, 1959 for committing murder of Laxman Patil.
2. Learned trial Court by impugned judgment dated 17.02.2000 passed by the 1st Additional Sessions Judge, Indore in Sessions Trial No.90/1997 convicted all of them under Section 148 of the IPC and sentenced to undergo rigorous imprisonment for one year each;
2 CRA No.287/2000they have also been convicted under Section 302/149 of the IPC and each is sentenced to imprisonment for life with fine of Rs.1,000/-; and in default of payment of fine, each of the appellants has to suffer additional rigorous imprisonment for three months. The substantive jail sentences have been directed to run concurrently.
3. Ajay Singh, Balmukund & Nitin, Jinendra and deceased Champalal Siddh (present appellant) filed four separate appeals challenging the judgment of their conviction vide Criminal Appeal No.280/2000, Criminal Appeal No.329/2000, Criminal Appeal No.356/2000 and Criminal Appeal No.287/2000 respectively.
4. Present appellant Champalal Siddh s/o Bhagwandas had died on 06.06.2006. A Division Bench of this Court by order dated 10.01.2007, dismissed Criminal Appeal No.287/2000, as abated. Thereafter, other three Criminal Appeal No.280/2000, Criminal Appeal No.329/2000 and Criminal Appeal No.356/2000 were heard analogously and by judgment dated 17.11.2009, a Division Bench of this Court considering the genuineness of the First Information Report as doubtful and eye witnesses have also given altogether a different story in the Court 3 CRA No.287/2000 held that the conviction of all the four appellants namely Ajay Singh, Balmukund, Nitin and Jinendra cannot be maintained, and therefore, allowed all the three criminal appeals by setting aside the conviction and sentence passed by the learned trial Court.
5. On coming to know about the judgment of acquittal on 17.11.2009, Smt. Kalabai wife of deceased Champalal Siddh filed an application under Section 482 of the Code of Criminal Procedure, 1973 for restoration of Criminal Appeal No.287/2000, which was dismissed as abated on 10.01.2007. Learned Single Judge considering the fact that appellant Champalal Siddh was a government employee and if appeal is allowed, then wife of the appellant will receive pecuniary benefits and may also be entitled for family pension and other benefits, and therefore, allowed the application, by restoring Criminal Appeal No.287/2000 to its original position.
6. After restoration of Criminal Appeal No.287/2000, today the matter has been listed for final hearing.
7. Learned counsel for the appellant has drawn our attention to the judgment dated 17.11.2009 and submitted that the case of the deceased Champalal was better than the case of other four co-accused persons, 4 CRA No.287/2000 because he was not identified by Umashankar (PW-1), Mathuralal (PW-2) and Suresh (PW-13), eye witnesses of the case. He further submitted that learned trial Court has committed illegality in relying upon the statement under Section 164 of the Code of Criminal Procedure, 1973 of all the eye witnesses for convicting the deceased Champalal as well as other co-accused persons. It is further submitted that the law is well settled that the statement of the witnesses' recorded under Section 164 of the Code of Criminal Procedure, 1973 can only be used for contradiction and corroboration to their statement given in Court. Statement recorded under Section 164 of the Code of Criminal Procedure, 1973 cannot be used as substantive piece of evidence. All the eye witnesses have neither named the appellants nor have identified as assailants of the deceased Laxman Patil in the Court, therefore, there is no substantive evidence against the present appellant. He further submitted that these points have been considered while acquitting other four appellants on 17.11.2009 and prayed that on the same grounds, the present appeal be allowed and the impugned judgment of conviction, which was passed against the deceased appellant (Champalal Siddh) be set aside.
8. Per contra, Shri Deepak Rawal, learned 5 CRA No.287/2000 Deputy Advocate General appearing for the respondent / State, made a statement at Bar that the case of the present appellant and Ajay Singh Verma (Criminal Appeal No.280/2000) is same and identical and once the appellant in Criminal Appeal No.280/2000 and other co-accused persons have been acquitted by this Court, the same principle will be applicable in the present case also and submitted that judgment dated 17.11.2009 will squarely apply in the case of the present appellant also.
9. We have heard the arguments of the learned counsel for the parties.
10. Paragraphs No.3 to 12 of the judgment passed in Criminal Appeal No.280/2000 are relevant, which reads, as under: -
"3. According to the prosecution case on 15.10.96 at 09.30 a.m. deceased Laxman Patil reached to the house of PW-1 Umashankar and told him that he was called by appellant Vijay Verma for settlement of land dispute, situated near Gayatri Nagar. Witness Umashankar, deceased Laxman Patil, PW-2 Mathuralal and PW-13 Suresh reached in a Maruti Car near a temple situated in Gayatri Nagar. They met Ajay Verma, Balmukund, deceased accused Champalal, Nitin and Jitendra Kala. Deceased had talk about land with Ajay Verma and Ajay Verma told him that he may come to his house in the evening at 05.00 p.m. along with Satyanarayan Malpani and they will settle the issue. After shaking 6 CRA No.287/2000 hand with Ajay Verma, deceased Laxman and witnesses took turn to go from that place, at that very moment appellants took out swords lying in Tata Sieara Jeep and surrounded them. Ajay Verma told that dispute of land would be settled in future, but they would settle the score with them right now and all the accused started assaulting Laxman Patil. PW-1 Umashankar tried to intervene to save Laxman, but appellant Jinendra pressed his neck and prevented him to intervene. Laxman fell unconscious on the ground because of injuries and appellants ran away in Tata Sieara Jeep. Immediately after the incident PW-27 the then Station House Officer Shri Saligram Patidar of Police Station Annapurna Nagar received information from control room about the incident and he reached on the spot where A.S.I. Shri Khan, Constable Dayashankar and Head Constable Saligram were already present. Shri Saligram sent deceased Laxman immediately along with constable Dayashankar to M.Y. Hospital for examination and treatment.
04. Shri Saligram also recorded dehati nalishi Ex.P/1 at the instance of PW-1 Umashankar, Dehati Nalishi Ex.P/1 was sent to the police station for registration of the crime with Head Constable PW-28 Shri Saligram and on the basis of dehati nalishi, First Information Report Ex.P/36 was recorded by Head Constable Shri Saligram himself. Investigating Officer PW-27 Shri Saligram Patidar prepared the spot map Ex.P/4 and also effected seizure of blood stained and controlled earth. When investing officer reached in M.Y. Hospital, he found the deceased Laxman in dead condition and he sent intimation to this effect to police station, on the basis of which merg No.33/1996 was registered in the police station. The 7 CRA No.287/2000 Investigating Officer prepared the inquest report Ex.P/2 of the deceased and sent his dead body for postmortem examination which was conducted by the PW-25 Dr. P.C. Jain. Postmortem report is Ex.P/31. Appellants were arrested and on their disclosure statements, weapons were seized. Shri Saligram recorded the statements of the prosecution witnesses who were acquainted with the facts of the case and sent the seized articles for examination to Forensic Science Laboratory. Forensic Science Laboratory report is Ex.P/40 and P/41 is serologist report. On due investigation charge sheet was filed against appellants and deceased appellant Champalal for the offences under Section 302, 307/149 and under Section 147 and 148 of the IPC as well as under Section 25 (1)(B) of the Arms Act.
05. The learned Trial Court read over, the charges framed against the appellants, to them and they denied the same, their defence was that they were falsely implicated on suspicion. Defence of deceased appellant Champalal was of alibi, but he did not examine any witness in his defence. Learned trial Court after examining the prosecution witnesses and hearing both the parties convicted and sentenced the appellants as noted herein above.
06. We have heard learned Counsel for the parties and also perused the entire record carefully. It is clear from the record and impugned judgment that conviction of the appellants Ajay Singh, Balmukund and Nitin is based on statement of eye witnesses recorded under Section 164 of the Criminal Procedure Code and the conviction of appellant Jinendra is based on testimony of three eye witnesses PW-1 Umashankar, PW-2 Mathuralal and PW- 3 Suresh. Learned Trial Court sought 8 CRA No.287/2000 corroboration to their testimony from their statements recorded under Section 164 of the Criminal Procedure Code as well as medical evidence of Dr. P.C. Jain PW-25.
07. It is evident from the record that all the three eye witnesses have not supported the prosecution case against appellant Ajay Singh, Balmukund and Nitin. They were declared hostile by the prosecution and contradicted with their previous statements. All the three eye witnesses have deposed that they had not named Ajay Singh, Balmukund and Nitin, in their earlier statements recorded by the police and also by the learned Magistrate. They have given explanation about their statement before learned Judicial Magistrate First Class that because of pressure and fear of police, they had given the statement before the learned Magistrate. Umashankar has deposed specifically that in FIR he mentioned the names of these three appellants under pressure by police and in fact these appellants were not on the spot. All the three witnesses have deposed against appellant Jinendra and according to them along with Jinendra other unknown persons had taken part in the incident causing injuries to deceased.
08. Learned Trial Court in paragraph 25 of the impugned judgment has held that statements of all the three eye witnesses are fully corroborated by their statements recorded under Section 164 of the Criminal Procedure Code and relied on the statement under Section 164 for the purpose of conviction on the strength of Supreme Court judgment passed in the case of Khujji alias Surendra Tiwari v. State of Madhya Pradesh AIR 1991 Supreme Court 1853. We have gone through this judgment and in our considered view in the given facts and circumstances of the instant case judgment rendered by the 9 CRA No.287/2000 Supreme Court in Khujji's case is not at all helpful to the prosecution. In this case Supreme Court has placed reliance on the testimony of the prosecution witness who after taking oath in Trial Court supported the entire prosecution case but in cross-examination after some months by defence Counsel, on the question of identity of the accused he tried to twist and modulate his statement. After cross- examination witness was declared hostile by the prosecution and contradicted with his earlier statements. Supreme Court while appreciating the statement of the witnesses given in Court has relied upon the statement given in examination-in-chief supporting the prosecution case and held that because of lapse of time probably witness was influenced by the defence and in cross-examination, to oblige the defence he changed his version on the question of identity whereas looking to the entire scenario of the incident, the presence of the eye witness on or near the spot and his identification of the accused was beyond doubt and fully established.
09. In the light of these facts of the case, the ratio decidendi of Khujji's case (supra) is not at all applicable in the instant case. In the case at hand all these three eye witnesses right from the beginning in examination-in- chief have not supported the prosecution case against four accused and they have deposed only against appellant Jinendra.
10. In our considered view learned Trial Court has committed illegality by relying upon statement recorded under Section 164 of the Criminal Procedure Code of the eye witnesses for convicting the appellants Ajay Singh, Balmukund and Nitin. It is settled legal position that statements of the witnesses recorded under Section 164 of the Criminal Procedure Code can only be used for 10 CRA No.287/2000 contradiction and corroboration to their statement given in Court. Statement recorded under Section 164 of the Criminal Procedure Code cannot be used as substantive piece of evidence (see George v. State of Kerala 1998 Supreme Court Cases Vol-IV 605 Para-36). All the eye witnesses have neither named these three appellants nor even identified them as assailants of the deceased in Court, therefore, there is no substantive evidence in Court given by the witnesses on oath against these appellants. Hence, question of corroboration, to their testimony from their statements under Section 164 of the Criminal Procedure Code, would not arise.
11. Now the moot question for us to decide whether testimony of all the three witnesses can be relied upon against appellant Jinendra or not? It is true that legal maxim "falsus in uno falsus in omnibus", false on one point would be treated as false on all the points, is not applicable in our country. But all the three eye witnesses have given altogether a new story in Court about the incident. They have described major role against appellants Ajay Singh, Balmukund and Nitin for causing injuries by sword to the deceased in their case diary statements as well as statements recorded by the learned Magistrate, but in Court, they have denied their statements. They have been confronted with their statements and their explanation is that under pressure of police, they had given the statements. Fabrication in first information report is also clear from the statement of PW-28 Head Constable Saligram who has deposed in paragraph-5 that printed book of FIR is supplied to the police station by SP Office, but he brought the FIR book which was prepared in the police station. He was called with the counter file of the FIR. For writing and 11 CRA No.287/2000 preparation of FIR the prevalent rule is to prepare three copies in one stroke meaning thereby at the time of recording of FIR, two copies would be the carbon copy out of which one copy will go to the concerned Magistrate as per provision under Section 157 of the Criminal Procedure Code. Original will remain in the case diary and third will remain as a counter part in the FIR book. Printed FIR book is containing printed page number. In the instant case, First Information Report Ex.P/36 is not a printed copy of the FIR supplied by the S.P. Office, but it is a photostat copy of the printed FIR wherein the FIR was recorded in writing by Head Constable. He has admitted that counter file of the FIR is not in serial number, sequence and it was recorded in photocopy of the printed FIR. The counter file is not the carbon copy of FIR Ex.P/36 but it was also recorded in handwritten that shows that same were prepared later on. When printed book of FIR is supplied why photocopy of the same book was kept in the police station, has not been explained by the prosecution. This shows that the original printed book must have been fully used and some different facts were mentioned in that book about the incident, report of which was received on telephone and later on in photostat copy of the original FIR book the FIR was written later on. It appears that nobody had gone to the police station for lodging the report and nobody was available on the spot when the deceased was found and later on a case has been concocted against the appellants by creating dehati nalishi and recording of FIR in photocopy of the original printed FIR book.
12. PW-28 Head Constable Shri Saligram has described the procedure of preparing FIR and about FIR book as well as counter file of the FIR in Paragraph-4 of his 12 CRA No.287/2000 statement and he fails to explain as to why FIR Ex.P/36 was recorded in photostat copy. Genuineness of the FIR is doubtful and eye witnesses have also been given altogether a different story in Court as discussed herein above, therefore, we do not find it to be a fit case for maintaining the conviction of the appellants, on the basis of shaky and doubtful evidence as well as investigation, hence all these three appeals are allowed. Conviction and sentences passed by the learned Trial Court against the appellants are hereby set aside. Appellants are on bail, their bail bonds and surety bonds stand discharged."
11. All the three eye witnesses right from the beginning in examination-in-chief have not supported the prosecution against four accused and have deposed only against appellant Jinendra. In our considered view, learned trial Court has committed illegality by relying statement recorded under Section 164 of the Code of Criminal Procedure of the eye witnesses for convicting the appellant. We are of the view that the conviction and sentence passed against the present appellant (deceased Champalal Siddh) is liable to be set aside and accordingly set aside.
12. Consequently, Criminal Appeal No.287/2000 is allowed.
(P.K. Jaiswal) (Subash Kakade)
Judge Judge
Pithawe RC