Madhya Pradesh High Court
Ganesh And Ors. vs State Of M.P. on 19 September, 2006
JUDGMENT S.C. Sinho, J.
1. Additional Sessions Judge, Chhindwara in Sessions Trial No. 26/91 vide impugned judgment dated 24-10-1991 recording conviction of appellants under Section 307/34, I. P. C. sentenced them to undergo R.I. for a period of 5 years and to pay fine of Rs. 400/- each, in default to suffer further imprisonment for a period of 4 months. Being aggrieved, appellants have preferred this appeal under Section 374(2) of Cr.P.C.
2. Prosecution case in brief is that on 3-5-1990 complainant Tukadya with Natthu (P.W.3) was waiting for a bus. Meanwhile, appellants Ganesh Gond, Mahadev Gond along with one other person armed with lathis came and started beating to Tukadya with Intention to kill him. Report (Exhibit P-14) was lodged by Tukadya at Police Station Pandurna and he was sent for medical examination treatment. Dr. Ratanchand has examined Tukadya and suggested for Forensic Expert as per report (Exhibit P-2). Dr. S.Z. Shorte (P. W. 13) has taken the X-ray of Injured Tukadya on 4-5-1990. As per X-ray report (Exhibit P-19) he found many lacerated wounds and also fractures on right elbow and left leg of complainant Tukadya. Completing the investigation, appellants have been charge-sheeted under Section 307, I.P.C. Appellants abjured the guilt. However, the Court below vide impugned judgment held that accused/appellants have Inflicted injuries to Tukadya as such, recording conviction under Section 307, I. P. C. sentenced them to undergo R. I and to pay fine in default to suffer further Imprisonment for the period said above.
3. Learned Counsel on behalf of the appellants has strenuously argued that learned Additional Sessions Judge has erred in holding that F. I. R. (Exhibit P-14) should be treated as dying declaration under Section 32(1) of Evidence Act, 1872 because complainant Tukadya died after three months of the Incident due to some other cause.
Learned Additional Sessions Judge in paras 25 and 26 of the Impugned Judgment has held that the F. I. R. (Exhibit P-14) alleged to have been lodged by complainant Tukadya and his statement under Section 161 recorded on 3-5-1990 by Jagmohan Koshta (P. W. 12) have evidentiary value under Section 32(1) of Indian Evidence Act, 1872. He has placed reliance on the Judgment i.e. Munnu Raja and Anr. v. State of Madhya Pradesh and Hari Chunnilal v. State of Madhya Pradesh 1977 MPLJ 321. I would like to quote Section 32(1) of the Evidence Act, 1872:
Section 32(1). When it relates to cause of death - When the 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.
Such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question.
4. In this respect it has been held in State of Orissa v. Chakradhar Behera and Ors. as under:
First information report is not a substantive piece of evidence. It can be used either for corroboration under Section 157, or for contradiction under Section 145 of the Evidence Act, of the maker of the statement. Where the Informer has died a natural death long after the occurrence but prior to the initiation of the commitment proceeding, FIR cannot be used either for corroboration or for contradiction of the maker who is dead. Further, as the statement in F. I. R did not relate to the cause of the Informer's death, or to any of the circumstances of the transaction which resulted in his death and as the cause of his death did not come into question in the trial, the F. I. R. was not admissible under Section 32(1), Evidence Act as a substantive piece of evidence.
5. Further, it has been held by Apex Court in State of Orissa v. Chakradhar (supra) that:
Moreover, if the person making the statement is dead, then he is not in a position to make any statement in Court and there would be no opportunity to test the consistency of the conduct evidenced by the complaint in relation to the one which could have been given in the witness box. In such circumstances there is nothing to confirm or corroborate the statement or the complaint and the statement cannot be proved. Section 8 would not render it admissible. This conclusion is reached not because of the non-applicability of Section 8 but because of the difficulty for testing the consistency when the maker of the statement is dead." It has been held in Umrao Singh and Ors. v. State of M.P. by this High Court as under:
(4) It is true that the first Information report is not by Itself a substantive piece of evidence and the statement made therein cannot be considered as evidence unless it falls within the purview of Section 32 of evidence Act.
It is further held in the judgment that because F. I. R. (Exhibit P-14) was lodged just after the Incident as such, it can be looked into to remove a doubt as the name of the eye-witnesses given in the list of witnesses filed by the prosecution which had been mentioned in the First Information Report by the Informant. For this purpose, the report is admissible under Section 8 of the Evidence Act.
5-A. In view of the above discussions, as per F. I. R. (Exhibit P-14) lodged by complainant Late Natthu, Moreshwar, Tukaram and Baburao were eye-witnesses of this incident but out of these four witnesses only Natthu (P. W. 3) and Moreshwar (P. W. 6) have been produced in the Court. P. W. 3 Natthu with whom complainant Tukadya was standing when quarrel took place has clearly stated that he has no knowledge about this incident, as such declared hostile. Even in his cross-examination, nothing has come out against the appellants. In the same manner, Moreshwar (P. W. 6) who is the nephew of Tukadya has also stated that he has not seen this incident and neither he has given police statement (Exhibit P-8). Other two witnesses Tukaram and Baburao have not been examined as such, other two star witnesses named in the F. I. R. have not supported the prosecution case. Haribhau (P. W. 2) who is said to be eyewitness of the incident has also not supported the prosecution case as such, declared hostile.
6. Harman Kirkita (P. W. 10), Executive Magistrate has stated that on 13-5-1990 while he was posted in Tahsil Pandurna. District Chhindwara as Executive Magistrate, an Identification parade (Exhibit P-4) was performed by him and witnesses have identified one of the appellants Kailash out of four other persons. According to Harman Kirkita, above identification parade was held in Thasil court but independent witness of identification parade Haribhau (P. W.-2) has stated that above identification parade was held in police station. Moreover, no eye-witness has supported this incident therefore, this identification parade is also of no use for the prosecution. Kailash is even not named in F. I. R. (Exhibit P-14) by Late Natthu.
7. P. W. 7 Naresh as per prosecution is the witness of memorandum statement (Exhibits P-9 and P-12) given by appellants Ganesh and Mahadeo respectively on the basis of which, recovery of lathis were made as per seizure (Exhibits P-10 and P-11). These memorandum statements and seizure memos were recorded by P. W.-12 Jagmohan Koshta. Another witness of memorandum statements and seizure Subhash (P. W.-8) has stated that neither any appellant has given any memorandum statement in front of him nor he has signed on these memorandum statements and seizure (Exhibits P-9 to P-12). He has also been declared hostile. P. W.-7 Naresh was not an eye witness, his statement under Section 161 of Cr. P. C. has not been recorded. He was declared hostile by the prosecution. In para 9 of his cross-examination, Naresh (P. W. 7) has admitted that these three appellants were beating Tukadya, because his statement under Section 161 of Cr. P. C. was not recorded, therefore his evidence does not carry any weight.
8. P. W. 1 Dr. Ratanchand has examined the complainant Tukadya on 3-5-1990 and found the following injuries on his person as per M. L. C. report (Exhibit P-18):
(i) Lacerated wound - on the middle of the scalp 6" x 1/2" bone deep, continuous bleeding.
(ii) Lacerated wound - 2" x 1/2" bone deep on the left ear, continuous bleeding.
(iii) Small abrasions on the chest.
(iv) Compound fractures of Rt. Elbow joint, continuous bleeding.
(v) Suspected fracture of Rt. Tibia, advise X-ray.
(vi) Suspected fracture of Lt. Tibia, advise X-ray.
9. P. W. 13 Dr. S. Z. Shorte, Radiologist, Indira Gandhi Medical College, Nagpur has performed the x-ray of Tukadya. He found the following fractures on the person of Tukadya as per M. L. C. report (Exhibit P-19):
(i) One fracture on the lower end of fibula left Side.
(ii) One fracture over the elbow on right arm.
10. Learned Counsel for the appellants has argued that P. W. 1 Dr. Ratanchand is a private doctor at Pandurna and as per his admission in para 10, Government Hospital is also located at Pandurna. Therefore, it was necessary for the prosecution to get him examined in Govt. Hospital of Pandurna. In this regard, as per F. I. R. (Exhibit P-14) persons on the spot brought Tukadya to private doctor because Tukadya was serious as such, from there he was sent to Medical College, Nagpur. In this respect, submission of learned Counsel on behalf of the appellants is that complainant Tukadya was examined by Dr. Ratanchand (P. W.-1) who is a private doctor and the Govt. Hospital is very close to Dr. Ratanchand's dispensary therefore, complainant could have been examined by Government Doctor. Complainant Tukadaya was taken to private doctor by witnesses /persons who were on the spot and because he was serious, shifted from there to Medical College, Nagpur. At Nagpur, he was examined by Dr. S. Z. Shorte (P. W. 13). As such, medical examination by private doctor at Pandurna is not fatal for prosecution.
Learned Counsel for the appellant has not challenged that injuries described in M.L.C. report (Exhibit P-18) and X-ray report (Exhibit P-19) and on the basis of statement of Dr. Ratanchand (P. W.-1) the injuries were dangerous to life. Dr. Ratanchand Jain (P. W-.1) has clearly stated that when he examined Tukadya his pulse were missing, blood pressure was very much down and these injuries were dangerous for his life.
11. On the basis of above discussion, learned trial Court has wrongly viewed F.I.R. (Exhibit P-14) lodged by complainant Tukadya who died after three months of the incident due to some other cause as dying declaration under Section 32(I) of Indian Evidence Act. None of the named eye witnesses in F. I. R. (Exhibit P-14). Natthu (P.W. 3) and Moreshwar (P. W.-6) who is nephew of complainant Tukadya have supported the prosecution case. Another eyewitness Haribhau (P. W.-2) has also not supported the prosecution case. Two other named eye-witnesses Tukaram and Baburao in F. I. R. (Exhibit P-14) were not produced by prosecution as witnesses in Court to support the prosecution case. As such, the Court below erred in recording conviction of appellants under Section 307/34 of I. P. C.
12. Consequently, the appeal is allowed setting aside the conviction sentence passed by Court below vide impugned judgment in S. T. No. 26/91, appellants stand acquitted of the charge under Section 307/34 I. P. C. Their bail bonds shall stand cancelled.