Madhya Pradesh High Court
State Of Madhya Pradesh Through P.S. ... vs Mahesh And Anr. on 16 August, 2007
Equivalent citations: 2008(1)MPHT151
JUDGMENT Abhay Gohil, J.
1. Appellant-State of M.P. has preferred this appeal under Section 378 of the Code of Criminal Procedure, after obtaining leave from this Court, against acquittal. In Sessions Trial No.186/89 the respondents were tried under Section 302, read with Section 201 of the Indian Penal Code, before the Additional Sessions Judge, Lahar, District Bhind. Vide judgment dated 29.6.96 the trial Court acquitted the respondents, against which the State of M.P. has preferred this appeal.
2. Briefly stated prosecution story is as under:
that accused Kallu was working as Bataidar at the agricultural field of complainant Ajay Kumar at village Machchand. Kallu used to visit the house of Ajay Kumar daily. Ajay's sister Munni was married with one Jainarain. Munni had objected about the visit of Kallu at the house of Ajay Kumar and she was also objecting to keep him as Bataidar. It was also stated that Kallu had also asked for some money on loan from Jainarain, but Munni had refused to give him money. On account of this, Kallu was keeping enmity with Munni. Mahesh is having his house adjoining to the house of Ajay and there was dispute between Ajay and Mahesh for keeping the bullock- cart of Mahesh in front of the house of Ajay. It was also the prosecution case that once Mahesh had hid the plate of Malti and there was dispute on that count and, it was alleged that Mahesh was keeping enmity with the complainant party.
3. In the intervening night of 22nd and 23rd June,1989 Munni and her 8 years' son Amit @ Nanu was sleeping in the house of his Mama at village Machchand, as Munni had come to her Maika on 22.5.1989. On the night of incident Amit was sleeping with Malti, who is the widow maternal aunt. There were some rains in the night, and because of that Malti lifted Amit @ Nanu and lay down him on the cot which was lying in the gallery near Mama Ravindra @ Kishori Radhe. In the morning it was found that Nanu was missing and gate of the house was found open. He was searched and thereafter missing report was lodged by Ajay Kumar at Police Chowki Machchand where missing crime no.01/81 was registered and the missing boy was searched by the police. It is also the prosecution case that on 24.6.89 the deadbody of Amit @ Nanu was found from the well of Sudhare. On the basis of the information given by accused Kallu memorandum of information was prepared and thereafter at the instance of Kallu the deadbody was recovered from the well of Sudhare. The deadbody was referred for medical examination. The doctor found that the cause of death was asphyxia due to drown, nature of death was found as homicidal and duration was within 36 hours. The statements of the witnesses were recorded, matter was investigated and charge sheet was filed. During trial the respondents abjured their guilt. Trial Court found two types of evidence -one was of last seen and for that two witnesses Raghuvanshi (PW2) and Ramkumar (PW8) were examined and another evidence was of memorandum. The memorandum Ex.P/6 was prepared in presence of Shyamkishore Bohre (PW12) and Chandraprakash @ Bhopali (PW14), as the information was given in presence of these witnesses by the accused.
4. Trial Court after considering the evidence of last seen as well as the evidence of memorandum found that both type of evidence is not at all reliable. Trial Court found that the witnesses of last seen had not given information to the Investigating Officer in the next morning when the police and family members were searching the missing boy, that they had seen Kallu who was carrying Amit in his lap in the night and, therefore, has not placed reliance thereon. So far as the evidence of memorandum is concerned, the trial Court found that it was prepared lateron and in presence of both the witnesses who are related to the complainant party, as they both reached lateron on the spot when the deadbody was taken out from the well, and considering the aforesaid evidence found that the prosecution has failed to prove the involvement of the appellant in the commission of crime by producing the evidence beyond reasonable doubt and acquitted the respondents, against which the State of M.P. has preferred this appeal.
5. We have heard the learned Counsel for the parties and perused the evidence of last seen as well as memorandum available on record. Raghuvanshi (PW2) was knowing Kallu, as he was the Bataidar of Ajay Kumar and he is the relative of Ajay Kumar. When he had seen that Kallu was carrying Nanu, he had inquired from Kallu and Kallu had told him that he is taking him for natural call, but next day when he was involved in searching the missing boy has not disclosed this fact to anybody that in the last night he had seen Kallu carrying Nanu. In the cross-examination he has admitted that he had not informed this fact to anyone else, therefore, the trial Court has rightly disbelieved on his evidence and found that he is a concocted witness and so far as the evidence of Mahesh is concerned that he was with Kallu. He had also not informed about the same to anybody and he could only know that Mahesh was also with Kallu when police arrested him.
6. So far as the evidence of Ramkumar (PW8) about last seen is concerned, he is also relative of Raghuvanshi (PW2). Similarly he had not disclosed this fact that in the previous night Kallu was carrying Nanu and he had asked him as to where he is going, he had told him that he was taking him to attend the natural call and on that count the Court has also not placed reliance on the aforesaid evidence as the same is also found not reliable. Therefore, looking to the aforesaid version of the witnesses, there is no clinching and reliable evidence of last seen on record.
7. So far as the evidence of memorandum under Section 27 of the Evidence Act is concerned, on the basis of the information given by accused Kallu and Mahesh, deadbody was recovered from the well of Sudhare. Shyamkishore Bohre (PW12) and Chandraprakash @ Bhopali (PW14) are the witnesses of memorandum. Shyamkishore Bohre (PW12) has admitted in the cross-examination that after seeing the crowd he had gone to Police Chowki where police has recorded his statement. In the cross-examination he has admitted that after seeing the crowd he had gone on the well and crowd had told him that some deadbody is lying in the well. He has admitted that there is some overwriting in the date without his signatures, but he does not know as to who made this overwriting. Chandraprakash @ Bhopali (PW14) has stated that he had also reached the well as soon as the police had reached there. He had not gone to police and crowd was there at the well. Vinod had gone into the well to take out the deadbody.
8. From the record it is not clear that when accused Kallu was arrested on 25.6.89 then how the memorandum could be prepared on 24.6.89. This shows that even if he was taken into custody, he was not arrested and without complying the legal formality of arrest if memorandum was prepared, that will raise a doubt in the prosecution case, therefore, the evidence of memorandum is also doubtful.
9. Admittedly, under Section 27 of the Evidence Act, four conditions are necessary to prove discovery --(i) there must be discovery of fact albeit relevant fact in consequence of information received from a person accused of an offence; (ii) discovery of such fact must be deposed to; (iii) at the time of receipt of the information the accused must be in the police custody; and, (iv) that only so much of the information as relates distinctly to the fact thereby discovery is admissible. In case of Suresh Chand Bahri v. State of Bihar , the Supreme Court has held that two essential requirements for the application of Section 27 of the Evidence Act are that (1) the person giving information must be an accused of any offence, and (2) he must also be in police custody. In case of Earabhadrappa v. State of Karnataka, , the Supreme Court has held that for the applicability of Section 27 two conditions are pre-requisite, namely (1) the information must be such as has caused discovery of the fact; and (2) the information must 'relate distinctly' to the fact discovered. Therefore, only that part of the statement of the accused made to the police could be admissible in evidence which led to discovery of a particular fact. In case of Jaffer Hussain v. State of Maharashtra , the Supreme Court has considered the question of admissibility of the evidence under Section 27 of the Evidence Act and held -
In order that the section may apply the prosecution must establish that the information given by the appellant led to the discovery of some fact deposed to by him. It is evidence that the discovery must be of some fact which the police had not previously learnt from other sources and that the knowledge of the fact was first derived from information given by accused.
In the case in hand from the evidence it appears that both the witnesses of memorandum came to know about the discovery of the dead body from the well when the dead body was taken out from the well. Therefore, the aforesaid evidence does not fulfill the requirement laid down under Section 27 of the Evidence Act and when the fact disclosed by accused already known to police and was not in exclusive knowledge of accused, the same is inadmissible in evidence and, thus, the learned trial Court has not committed any illegality in discarding the aforesaid evidence.
10. Learned Counsel for the respondents also submitted that in the document, Ex.P/2, which is the memorandum for post-mortem, the name of the accused persons have not been mentioned when it was known to the police after taking out the deadbody from the well and before referring the deadbody for post-mortem. Therefore, this conduct of the police also raises a serious doubt that names of the accused were not known to the police till the deadbody of the deceased was taken out from the well. Therefore, as has been held, it is also clear that the evidence of memorandum was prepared lateron after taking out the body from the well. Thus, the evidence of memo is doubtful and it cannot be held that the deadbody was recovered on the basis of the information given by the accused persons and at their instance. There is no evidence on record about motive. The prosecution has not examined Kunwar Singh, who was the witness of last seen and the prosecution witnesses could not prove any of the motive mentioned by them against the accused. There is no evidence on record that Kallu, who was Bataidar was a person of suspicion character or inimical to the complainant party. When he was Bataidar why he will commit such a crime for the small thing. Whatever the motives have been shown by the prosecution are not believable and do not inspire confidence. Therefore, after considering the prosecution evidence it appears that the trial Court has not committed any illegality in recording the finding of acquittal. There cannot be any interference in appeal against acquittal even in a case where two views are possible from the same set of evidence. There also cannot be any interference in appeal against acquittal on the ground that the one view taken by the trial Court is erroneous and the other view was also possible.
11. Considering the totality of the facts and circumstances of the case, no case is made out for interference. There is also no compliance of Section 157 Cr.P.C. Thus, the State appeal being devoid of any merit and substance fails and is hereby dismissed.