Madhya Pradesh High Court
Malkhan Singh vs State Of Madhya Pradesh on 28 March, 1990
Equivalent citations: 1990CRILJ2763
JUDGMENT S.K. Dubey, J.
1. The appellant Malkhan Singh was charged and tried for an offence under Section 302, Indian Penal Code, for committing the murder of Sudama son of Roopram in village Biloo, P. S. Umri, District Bhind, at about 11.00 a.m. on 5-5-1976. He was also charged and tried for an offence under Section 307, IPC, for attempting to commit murder of Kailash Narayan and Phool Singh by gun-shot fires on the same date and place. Appellant was convicted under Section 302, IPC, and sentenced to life imprisonment. He was also convicted under Section 324, IPC, and sentenced to three years' rigorous imprisonment for causing injuries to Kailash Narayan only : both sentences to run concurrently. The trial Court acquitted the appellant of the charge under Section 307, IPC.
2. The State has not preferred any appeal against the acquittal of the appellant of the charge under Section 307, IPC.
3. The prosecution case in short is that the occurrence took place on 5-5-1976 between 10 and 11 a.m. in front of the house of Ramsnehi (PW. 7), where about 15-20 persons (villagers), some of whom were Kailash Sarpanch, Mewaram, Ranjit, Sudama, Jawahar, Kallu, were sitting. Ramsnehi (PW. 7) was drawing water from a well situated at about 70-75 yards away from his house, he heard gun-shot fires; while he was returning after taking a bucket of water, he saw the persons who were sitting, running helter-skelter to escape themselves and none was seen at his door expect Kailash Narayan, who was lying injured. Ramsnehi asked Kailash Narayan, who told that Malkhan Singh fired his sten gun, pellets of which have caused injuries on his right chest and right hand; Kailash Narayan also told that Sudama has also received gun-shot injuries and is lying on a cot in the room. Ramsnehi saw profuse bleeding from the chest of Sudama and Phool Singh lying injured. Ramsnehi took Kailash Narayan to Police Station, where a written report (Ext. P-5) signed by Kailash Narayan was lodged, on which an offence under Section 302/307, IPC, was registered at Crime No. 38/1976 (Ext. P-7). After investigation, a challan was filed against the accused; as the appellant/ accused was absconding, in S.T. No. 13/1977 a statement of Kailash Narayan was recorded on 26-3-1977 Under Section 299, Cr. P.C. The appellant, after his surrender, was tried for the charges under Sections 302 and 307, IPC.
4. At the trial, Ramsnehi (PW. 7) and Ranjit Singh (PW. 9), the eye-witnesses, were declared hostile. Shahjad (PW. 2) and Ramniwas (PW. 6) who reached the place of occurrence after the incident, stated that Kilash Narayan told them that Malkhan Singh has fired on him. Injured Kailash Narayan and Phool Singh could not be examined by the prosecution, as they died before the commencement of the trial. Prosecution produced at the trial the statement of Kailash Narayan recorded under Section 299, Cr. P.C., on 29-3-1977 in S.T. No. 13 of 1977 which was admitted in evidence and marked as Ext. P-15. The trial Court on appreciation of evidence of witnesses, namely, Ramsnehi (PW. 7) and Ranjit (PW. 9), Shahjad (PW. 2) & Ramniwas (PW. 6) and Ext.P-15, the statement of Kailash Narayan recorded in S.T. No. 13/1977, convicted and sentenced the appellant as aforesaid.
5. Shri J.P. Gupta, learned counsel for the appellant, challenged the conviction and contended that the first information report (Ext. P-5) cannot be treated as a dying declaration under Section 32 of the Evidence Act, nor the statement of Kailash Narayan, recorded in the earlier trial, in the absence of the accused, in the facts of the case, is admissible in evidence, as the identity of the accused is not established to connect the appellant with the commission of the offence of murder of Sudama. The other two witnesses, who are not the eye-witnesses of the incident, on reaching the spot after hearing the gun-shot fires, asked Kailash Narayan as to who fired the gun-shots, who then told that Malkhan Singh has fired on him; Malkhan Singh was not seen at the spot by any of them; therefore, on such evidence, the conviction is not sustainable. Learned counsel placed reliance on Moti Singh v. State of U.P. AIR 1964 SC 900 : (1964 (1) Cri LJ 727); Bharose v. State of M.P. 1988 Jab LJ 57 and Pratap Singh v. State of M.P. 1970 Jab LJ 797 : (1971 Cri LJ 172) Shri H. D. Gupta, learned Government Advocate, supported the conviction and contended that the statement of Kailash Narayan under Section 299, Cr. P.C., was rightly relied on, as there is no doubt about his identity who was a well known individual, besides this evidence, the conviction is well supported from the first information report and the statements of Shahjad (PW. 2) and Ramniwas (PW. 6), which are admissible under Section 6 of the Evidence Act as res gestae.
6. After hearing learned counsel and perusing the record, we are of the opinion that the conviction of the appellant cannot be sustained for the reasons to follow.
7. The material evidence relied upon by the trial Court for convicting the appellant under Section 302 & Section 324, IPC, is the first information report (Ex. P-5) and the statement of Kailash Narayan recorded in S.T. No. 13/ 1977. The appellant has challenged the correctness of the first information report by demonstrating various infirmities, apart from its suspiciousness. But, without going into those, it is well settled that a conviction cannot be based on first information report which is not a substantive piece of evidence. It can be used either to contradict or corroborate the informant or the maker of it under Section 157 of the Evidence Act. The trial Court has treated this FIR as a dying declaration under Section 32 of the Evidence Act, which, in our opinion, is not. It is not disputed that Kailash Narayan did not die of the injuries received by him by gun-shots, but he was killed in the year 1980. Therefore, such a first information report cannot be treated as dying declaration, nor it is a relevant statement admissible in evidence under Section 32(1) of the Evidence Act. In Moti Singh v. State of U.P. (1964 (1) Cri LJ 727) (supra) the apex Court in para 16 has laid down as under:
"Clause (1) of Section 32 of the Evidence Act makes a statement of a person who has died relevant only when that statement is made by a person as to the cause of his death or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes into question. When Gaya Charan is not proved to have died as a result of the injuries received in the incident his statement cannot be said to be the statement as to the cause of his death or as any of the circumstances of the transaction which resulted in his death. This is obvious and is not disputed for the respondent state.
8. The other evidence relied upon by the trial Court is the statement of Kailash Narayan recorded on 26-3-1977 in S.T. No. 13/1977, in the absence of the accused, who was absconding then. This statement (Ex.P-15) was recorded under Section 299, Cr. P.C., on 26-3-1977 on the learned Court being satisfied on 10-3-1977 that the accused is absconding and there is no immediate prospect of arresting him. When the appellant was put up for trial this record of evidence was used against him. It is true that this evidence recorded was in a judicial proceeding, and under Section 80 of the Evidence Act, there is a presumption about genuineness of the document and to statements as to the circumstances under which it was taken, purporting to be made by the person signing it to be true and that such statement was duly taken.
9. Section 299, Cr. P.C. lays down a provision in derogation of the normal procedure, which is an exception to the principle embodied in Section 33 of the Evidence Act, namely, that the evidence of a witness, to cross-examine which a party had no opportunity, is not legally admissible, but before the exception can be availed of the conditions prescribed by statute must be strictly complied with, and the special rule contained in Section 299, Cr. P.C., is to be construed and applied strictly, as the statute gives an exception to the fundamental rule that the statement made against a person in his absence cannot be used as evidence against him in a criminal trial. The record of S.T. No. 13/1977 shows that the learned Sessions Judge after recording of his satisfaction as required under Section 299, recorded the statement and, therefore, such a statement recorded was admissible against the accused under Section 299, Cr. P.C., and that is why learned counsel Shri J.P. Gupta has not seriously challenged the statement recorded under Section 299. But the challenge related to admission against the appellant, placing reliance on a recent decision of a Division Bench of this Court, that the learned trial Court, when received this evidence, did not satisfy itself that the person put up for trial subsequently was an absconding accused and there is no doubt about his identity and of his being implicated in the crime to prove which evidence had been adduced earlier.
10. In our opinion, the contention has got a force on the face of the record. The proceedings dated 27-8-1987 show that on the application of the prosecution, the statement recorded under Section 299, Cr. P.C. was taken on record and was exhibited as Ex.P-15, a copy of which was marked as Ex. P-15-C. It is apparent from the proceeding that the Court before receiving this evidence did not satisfy itself about the identity of the accused, nor the prosecution placed any material for that. This piece of evidence incriminating the appellant was put to him in his statement recorded under Section 313, Cr. P.C. from questions Nos. 76 to 82. The appellants denied all the questions and denied commission of any crime by him. The trial Court discussed this evidence in paras 15 and 16 and raised a presumption under Section 80 of the Evidence Act about the proceedings and statement so recorded under Section 299. The trial Court held that the statement of Kailash Narayan will be deemed to be in relation to Malkhan Singh only, as he gave the statement in that case against Malkhansingh. Further, the trial Court raised a presumption that by one name there can be only one person, and if there are other persons by the same name, it is the burden of the person who asserts it, to prove that. The trial Court observed that the defence has not proved that there are other persons by name Malkhan Singh in the village and at other places; therefore, trial Court gave a finding that the statement of Kailash Narayan recorded under Section 299, Cr. P.C., was in relation to Malkhan Singh only implicating him for the offences under Sections 302 and Section 307, IPC. This approach of the trial Court, in our opinion, was not correct. The trial Court could have raised presumption only and within the four corners of Section 114, Evidence Act. Other presumptions like the one raised by the trial Court, are not available nor such presumptions find place in other statutes, nor any such law was placed before us. It is well known that now-a-days, names are common; therefore, when the Prosecution relied on Ext. P-15 it was its duty to establish that the appellant, who was absconding and was put up subsequently for trial, was the absconding accused and there is no doubt about his identity and of his being implicated in the crime to prove which evidence had been adduced earlier. (See Bharosa v. State (1988 Jab LJ 57) (supra)).
11. It is the fundamental principle of criminal jurisprudence that when an accused is put up for trial, the burden to prove the offence to the hilt by legal and cogent evidence remains on the prosecution, which never shifts. Only in exceptional cases where a special defence or plea is raised by the accused, the burden is to be discharged by him either by leading evidence or by demonstrating from the record that such special defence is made out. In a case where special provision of Section 299, Cr. P.C., is invoked, it is the bounden duty of the prosecution to strictly satisfy the court that the person who is put up for trial subsequently is not only the absconding accused but is the accused who committed the crime and there is no doubt about his identity and of his being implicated in the crime to prove which evidence had been recorded earlier. In this case there is no positive finding about the identity of the appellant either in the proceedings or in the judgment, but the finding rests only on presumption. Therefore, in the circumstances of the case and the material on record, it cannot be held that the statement recorded in the earlier trial and produced under Section 299 against the accused, can be availed of by the prosecution for implicating and convicting the appellant.
12. The other evidence which remains to be considered, is Shahjad (PW. 2) and Ram-niwas (PW. 6). According to Shahjad, his statement under Section 161, Cr. P.C., was recorded after 16 days, though this fact is denied by the investigating officer. But, even if his statement is considered, still it does not implicate the appellant for killing Sudama. In para 1 of his examination-in-chief, he has stated:
"Phool Singh Mujh Se Kewal Yeh Kahata Tha Hum Chala Gaya Tha Ki Goli Chal Gayi Hai. Bas Pnir Main Kailash ke Pas Pahuncha Tha to Usne Kaha Tha Ki Malkhan Singh Ne Uspe Goli Mari Hai. Main Ne Kailash Se Yah Nahin Puchha Tha Ki Sudama Ko Kisne Mara Hai."
In cross-examination the witness has admitted that Kailash Narain did not tell him the father's name of Malkhan Singh or the village of his residence. He has also admitted that in his police statement the surname of the accused 'Mirdha' is not written. Thus, the testimony of Shahjad (PW. 2) does not implicate the appellant for the offence under Section 302, IPC. The other witness Ramniwas (PW. 6) has stated that he was informed by Ramsiya and Brijnarayan (both not examined) that Malkhansingh has fired on Kailash Narayan, and when he reached the spot, where Kailash Narayan was lying, on questioned by him, Kailash Narayan told, Malkhansingh has fired on him. Kailash Narayan did not tell that Sudama was killed by gun-shots fired by appellant. Admittedly, the witness is on inimical terms with Malkhansingh because of party faction. There is another glaring feature that the first information report was written by him over which Kailash Narayan put his signature. But this does not seem to be true as from the note in the FIR it is clear that Kailash Narayan was not in a condition to sign because of his hand's stiffness.
13. In these circumstances, it was the bounden duty of the prosecution to examine the two independent witnesses, Ramsiya and Brijnarayan, who informed Ramniwas (PW. 6) about the firing. The said witnesses were present at the spot at the time of occurrence. The prosecution has not given any explanation for not examining these material witnesses. Besides, the statements of Shahjad (PW. 2) and Ramniwas (PW. 6) are contradictory and inconsistent with each other. Shahjad in so many words has said that Kailash Narayan did not tell that Malkhansingh has killed Sudama, while Ramniwas stated that Kailash Narayan told that Malkhansingh fired gunshots on Sudama, who is lying on a cot in the room. On a close scrutiny, it is clear that Ramniwas (PW. 6) is an interested witness; he wrote the report and got the signatures of Kailash Narayan, while the latter was not in a position even to sign. There is another infirmity pointed out by Shri Gupta, learned counsel for the appellant, that compliance of Section 157(1), Cr. P.C., was not made as the report was not sent forthwith to the Magistrate concerned. It was challenged by the defence in the cross-examination of Pukhraj Singh Sisodia (PW 8); therefore, it was the bounden duty of the prosecutioji to positively and affirmatively establish due compliance of the requirement of Section 157(1), Cr. P.C. non-compliance of which makes the FIR and case of prosecution doubtful.
14. In the last, Shri H.D. Gupta, learned Government Advocate, contended that the statements of Ramniwas (PW. 6) and Shahjad (PW. 2) are admissible as res gestae under Section 6 of the Evidence Act. In our opinion, in the facts of the case and in the light of the discussion of the evidence of these two witnesses, which does not inspire confidence and also the fact that the statement of Kailash Narayan made to these witnesses is not spontaneous nor is contemporaneous but the same was made in answer to a query after some time of the occurrence, when the witnesses reached the spot, the statements of these witnesses cannot be considered as res gestae. (See Pratap Singh v. State of M.P. (1971 Cri LJ 172) (supra).
15. Therefore, on the evidence, we are of the opinion that the prosecution has failed to prove beyond doubt the offences under Sections 302 and 324, IPC. The appellant deserves benefit of doubt.
16. In the result, the appeal is allowed; the conviction of the appellant under Section 302 and Section 324, IPC, and the sentences imposed thereunder by the trial Court are set aside and the appellant is acquitted. He shall be set at liberty forthwith if not required in connection with any other offence.