Madhya Pradesh High Court
Gabbu And Ors. vs State Of Madhya Pradesh on 13 May, 2003
Equivalent citations: 2004CRILJ2001, 2003(3)MPHT288
JUDGMENT S.L. Kochar, J.
1. Unsuccessful appellants approached this Court against Judgment dated 30th April, 1996 passed by learned Sessions Judge, Indore in Sessions Trial No. 147/94, thereby convicting them for the offence punishable under Sections 302, 302/34, IPC and sentencing them imprisonment for life.
2. Gravamen of the prosecution case is that on 19th January, 1994 at about 9.15 p.m. accused/appellants went to the house of Ramawatar to call him out at that time, Kaushalya (P. W. 5) sister of Ramawatar and Anita (P.W. 7) her sister-in-law were in the house. They told the appellants that Ramawatar had gone to market. On this accused/appellants threatened them to finish Ramawatar and also abused filthily. Thereafter, Ramawatar was seen standing at the square. The accused/appellants surrounded him and was assaulted by lethal weapons. Anita (P.W. 7) wife of Ramawatar, Ranibai mother of Ramawatar, Santosh and Harinarayan reached the spot. Seeing them accused/ appellants ran away. Ramawatar was died on the spot. The incident had taken place due to enmity between accused/appellant No. 1 and deceased Ramawatar.
The offence was registered on the basis of First Information Report (Ex. P-1 1) lodged by Kaushalya (P.W. 5). Post mortem report is Exhibit P-6.
After usual investigation, charge-sheet was filed against accused/ appellants. Accused/appellants abjured their guilt. Their defence was that deceased was bully of that area and facing number of criminal cases along with Dinesh (P.W. 6). He was extorting money from inhabitants of that area and he died in suspicious condition. Later on the police has concocted false case on the basis of interested and partisan witnesses against the applicants though the witnesses have not seen the incident. They put on trial and convicted as indicated above.
3. We have heard Mr. S.K. Vyas, learned Counsel for appellants and Mr. Girish Desai, learned Deputy Advocate General for respondent/State and also perused entire record of the case.
4. Conviction of appellants is based on the statements of Santosh (P.W. 4); Kaushalya (P.W. 5); Dinesh (P.W. 6) and Anita (P.W. 7), they are brother of brother-in-law, sister, friend and widow of the deceased respectively.
5. In this case, Investigating Officer was not examined during the course of trial. This Court while invoking power under Section 391, Cr.PC directed for his examination vide order dated 22-11-99. In pursuance thereof, Trial Court has examined Investigating Officer Mr. J.S. Ahluwalia (P.W. 13).
6. Learned Counsel for the appellants has urged that FIR was brought into existence in ante date and time, therefore, the very basis and foundation of the prosecution case is doubtful. Culling the evidence of author of the First Information Report, Kaushalya (P.W. 5), we glean that in her cross-examination, in Paragraph 13 has stated that on the date of the incident, Mr. J.S. Ahluwalia was the Station House Officer of Police Station, Chandan Nagar. Her say in Paragraph 14 is that when she lodged report in the police station, Mr. Ahluwalia was not present. She was not able to disclose the name of Police Officer, who had written the First Information Report. She has further deposed that the date on which she reached Police Station for lodging report. Sardarji means Station House Officer, Mr. Ahluwalia did not meet her. Mr. J.S. Ahluwalia (P.W. 13) in examination-in-chief in Paragraph 1 has deposed that he had written First Information Report as disclosed by Kaushalya (P.W. 5). He has also deposed that First Information Report (Ex. P-1 1) was written and signed by him. In cross-examination in Paragraph 17 he has stated that except Post Mortem Requisition Form (Ex. P- 20) all other documents were not written by him but the same were written by his junior as per his direction but such note is not mentioned on the documents. In Paragraph 23, he has specifically stated that First Information Report (Ex. P-11) was not written by him and he was also not in a position to say whether copy of the report was received or not by the concerned Magistrate having jurisdiction over the matter. In Paragraph 24, he has deposed that he was also not in a position to disclose the name of his subordinate, who has written the documents. He could be in a position to disclose the name after perusing the case diary but the same was not available. His statement is also disclosing the fact that at the time of his examination, prosecution did not take effective and serious steps to produce the case diary in Court.
7. In view of such an affair about the First Information Report when actual scribe has not been examined it creates doubt the date and time lodging of the report. The whole First Information Report was written by some unknown police officer bearing signature of Mr. J.S. Ahluwalia (P.W. 13), Station House Officer of Police Station. Yet we are not aware of such procedure about writing of First Information Report or other documents during the course of investigation, which would be written and prepared by some other officer and signed by Station House Officer and no such note is available on the First Information Report and other documents. If the First Information Report was written by some other police officer, the same police officer could have signed on the said FIR or at least First Information Report bear notes that the contents of the First Information Report were written by such and such officer as per the dictation and direction by the Station House Officer, Mr. Ahluwalia. Kaushalya (P.W. 5) as stated above has denied even presence of J.S. Ahluwalia (P.W. 13) Station House Officer in the police station at the time of lodging of First Information Report. She is very emphatic and clear on this point that while lodging First Information Report Sardar/Mr. J.S. Ahluwalia, Station House Officer of Chandan Nagar, Police Station, was not present at police station. This speaks volumes and creating doubt on the veracity and genuineness of First Information Report, which is the very basis and foundation of prosecution case leading to further investigation. The Supreme Court in the case of Marudanal Aagusti v. State of Kerala (AIR 1980 SC 638) held as under :--
"The High Court seems to have overlooked the fact that the entire fabric of the prosecution case would collapse if the FIR is held to be fabricated or brought into existence long after the occurrence and any number of witnesses could be added without there being anything to check the authenticity of their evidence."
(On this principle also see 1981 SC 1230; 1998 (IV) Supreme Today 285; 1997(II) MPLJ 07; AIR 1980 SC 1160)
8. In the light of the aforesaid factual and legal position we have no hesitation to hold that First Information Report is not a genuine piece of document and brought into existence an ante date and time after due consultation. There is no proof adduced by the prosecution for compliance of Provision of Section 157, Cr.PC regarding sending of copy of the FIR to the concerned Magistrate. This further strengthened the aforesaid conclusion arrived at by this Court. (See Birsingh and Ors. v. State of U.P., AIR 1978 SC 58). Now moot question before us is that whether even after discarding the First Information Report, the conviction can be based on the testimony of above mentioned eye witnesses who all are interested and partisan.
9. In the present case, the First Information Report is disclosing the name of assailants and other eye-witnesses when First Information Report is doubtful then there is absolutely no check in this case to rely upon the statement of other eye witnesses whose names are mentioned in the FIR.
10. Anita (P.W. 7) widow of the deceased, was in fact not the eye witness of the incident. According to her case diary statement (Ex. D-2) she was informed about the incident by Kaushalya (P.W. 5). She has been confronted with her case diary statement by the defence but she did not offer any acceptable explanation to this effect. According to her case diary statement "B" to "B" portion, her mother-in-law, brother-in-law (JETH), Harinarayan (Neighbour) and Santosh (friend) reached the scene of occurrence at that time accused persons were fleeing away. In "A" to "A" portion, she has deposed that thereafter Kaushalya her sister-in-law disclosed the overt act of each appellants to them. In view of this material contradiction in her statement and her case diary statement (Ex. D-2) she could not be relied on as eye witness of the actual assault by the appellants upon the deceased. Another witness Santosh (P.W.4) could not be relied upon for the reason that in Paragraphs 3 and 7 of his deposition he was very assertive on the fact that he did not given any statement to police and also did not disclose about the incident to anybody prior to recording of his statement in Court, i.e., on 2-2-1995. In view of this positive admission of this witness about non-disclosure of the incident before police or any other person and keeping silent over the matter for such a long period, is sufficient to discard the entire evidence as his conduct was highly abnormal. Whether in fact witness Santosh (P.W. 4) was interrogated and his statement was recorded by the police during the course of investigation, is also not deposed by the Investigating Officer, J.S. Ahluwalia (P.W. 13). There is no evidence on record to establish that this witness was interrogated by the police during the course of investigation and his statement was recorded. Witnesses of such abnormal conduct could not be relied upon. (See AIR 1976 SC 989; AIR 1991 SC 1356).
11. Another witness Dinesh Kumar (P.W. 6) also could not be relied on because admittedly, his statement was not recorded under Section 161, Cr.PC during the course of investigation. Therefore, appellants were not aware that on what point and purpose this witness was cited in the charge-sheet and in Court they were taken into surprise when he was examined as eyewitness. Mr. J.S. Ahluwalia (P.W. 13), Investigating Officer was also not in a position to state before the Court whether he was cited as eye-witness in the charge-sheet or not. He has specifically stated that along with charge-sheet, statement of this witness recorded under Section 161, Cr.PC was not filed. Though it is not mandatory to record statement of witness during the course of investigation but when the witness was available and cited in the charge-sheet, the prosecution has to explain as to why his statement was not recorded and on what point he was going to be examined especially when he was one of the important eye-witnesses of the incident.
In the case of In re Bheemavarapu Subba Reddi and another [AIR (35) 1948 Mad. 23] Division Bench of Madras High Court (Comprising Horwill and Bell, JJ) held as under :--
"Although no irregularity was committed by the taking of notes for the preparation of the case diary instead of recording statements, it seems desirable that statements should be recorded where reasons of urgency do not preclude this course. It can easily be seen that if the practice adopted in this case were generally followed and statements never produced, the discretion given to the police under Section 161, Cr.PC, might be much abused, an unscrupulous Investigating Officer might record statements, draw up notes suitable for the preparation of the case diary, and then suppress the statements, denying their existence. It is often of great assistance to the Court to know what the earlier statements of witnesses were; and an accused who cannot point to contrary statements made by witnesses when first examined, because these statements were not recorded, labours under a disadvantage that should be avoided unless the exigencies of the investigation make the recording of statements undesirable."
12. Learned Counsel appearing for the appellants has vehemently argued that according to the map (Ex. P-21), proved by Mr. J.S. Ahluwalia (P.W. 13) the place of the incident is shown in front of the house of Dr. Wadhwani whereas eye-witnesses have deposed that the incident had taken place at the square of the main road. The map (Ex. P-21) is nowhere disclosing the fact that at whose instance, the same was prepared and again this map bears signature of Mr. J.S. Ahluwalia (P.W. 13). The other contents are written by somebody else, who is not known and examined.
13. Mr. J.S. Ahluwalia (P.W. 13) in Paragraph 15 of his deposition, has stated that map (Ex. P-21) was prepared as per disclosure of Kaushalya (P.W. 5) but no such recital is available on the map. Kaushalya (P.W. 5) in Paragraph 5 of her statement disown the statement of Mr. J.S. Ahluwalia. Apart from this, if mark of the sketch map was put by the Investigating Officer, on the basis of the statement made to him by the witness, the same is not admissible in view of the Provisions under Section 162 of the Code of Criminal Procedure.
14. Supreme Court in Jagdeesh Narayan v. State of M.P. (AIR 1996 SC 3135) held as under:--
"...... the mark of sketch map was put by the Sub Inspector who was obviously not an eye witness to the incident. He could only have put it there after taking the statements of the spot on the sketch map. I really bringing on record the conclusion of the Sub Inspector on the basis of the statements made by the witnesses to him. This in our opinion would not be admissible in view of the provisions of Section 162 of the Code of Criminal Procedure, for it is in effect nothing more than the statement of the Sub Inspector for that eye witnesses told him that the deceased was at such and such place at the time, when he was hit. The sketch map would be admissible so far as it indicates all that the Sub Inspector saw himself at the spot; but any mark put on the sketch map based on the statements made by the witnesses to the Sub Inspector would be inadmissible in view of the clear provisions of Section 162 of the Code of Criminal Procedure, as it will be no more than a statement made to the police during investigation."
15. It would be apposite to mention here that Investigating Officer Mr. J.S. Ahluwalia (P.W. 13) had adopted the procedure of recording FIR contrary to the Provision under Section 154, Cr.PC and also proceeded into investigation following the provisions foreign to the Cr.PC, M.P. Police Act and P.P. Police Regulations. We have mentioned material part of his deposition hereinabove about the investigation establishing this position. Further, it is also clear from very important, i.e., defence Counsel has put a very specific question in his cross-examination that in Chamkor Singh's murder case, the Trial Court had issued notice under Section 193, IPC to him. On this specific question, the witness disclosed his ignorance. He did not deny this fact. This shows that notice must have been issued to him but neither he has denied nor accepted the same. When again, the question was put to him that he had deliberately saying that he is not able to recollect. On this question, he answered that the present case has no connection with that case. Again this answer is showing that the Trial Court in the aforesaid Chamkor Singh's case issued notice under Section 193, IPC to him. In the case on hand, he has prepared map (Ex. P-21) but nowhere he has mentioned the distance of material points, place at which witnesses were present though incident had taken place in a thickly populated locality of Indore city.
16. After visualizing the prosecution evidence on record on an anvil of law of appreciation of evidence and cardinal principle of criminal jurisprudence we are unable to concur with the judgment of conviction passed by the Trial Court on the strength of interested and partisan witnesses and on tainted investigation. (See Ruresh Rai v. State of Bihar, AIR 2000 SC 2207). As such we allow this appeal and set aside the conviction and sentence passed by the Trial Court.
17. Appellant No. 1 Gabbu and appellant No. 3 Tukaram are in jail. They are ordered to be released forthwith, if not required in any other case. Appellant No. 2 Premnarayan and appellant No. 4 Bhanwarsingh are bailed out, their bail bonds stands discharged.