Rajasthan High Court - Jodhpur
Jeeva vs State Of Rajasthan on 13 October, 2020
Author: Sandeep Mehta
Bench: Sandeep Mehta
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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Criminal Appeal No. 296/2019
Jeeva S/o Shri Bhagora Meena, Aged About 63 Years, Ganeshpur
Fall Dhekuwa, Dovera Police Station, District Dungarpur. (Lodged
In Central Jail Udaipur).
----Appellant
Versus
State Of Rajasthan, Through P.P.
----Respondent
For Appellant(s) : Mr. J.V.S.Deora
For Respondent(s) : Mr. Anil Joshi, PP
HON'BLE MR. JUSTICE SANDEEP MEHTA
HON'BLE MS. JUSTICE KUMARI PRABHA SHARMA
Judgment
JUDGMENT PRONOUNCED ON ::: 13/10/2020
JUDGMENT RESERVED ON ::: 10/09/2020
BY THE COURT : (As per Mehta, J.)
By the judgment dated 23.07.2019 passed by the learned Sessions Judge, Dungarpur in Sessions Case No.178/2017, the appellant Jeeva herein has been convicted and sentenced under Section 302 IPC to undergo Life Imprisonment with fine of Rs.10,000/- and in default to further undergo six months rigorous imprisonment. He has preferred the instant appeal under Section 374 (2) Cr.P.C. for assailing the above judgment.
Brief facts relevant and germane for the disposal of the appeal are noted hereinbelow:-
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(2 of 15) [CRLAD-296/2019] P.W.1 Smt. Rameela wife of the accused-appellant Jeeva lodged a written report at the General Hospital, Dungarpur on 09.03.2017 at 9:00 a.m. In the report, it was alleged that on 08.03.2017, in the evening at about 7 p.m. Smt. Rameela (P.W.1) alongwith her daughter Reena were sitting outside in the courtyard of their house. Her husband Jeeva often used to quarrel with them in an inebriated state. Being perturbed by this conduct of the accused, the informant used to reside in a separate house in Indra Colony with her two sons Vinod, Mithun and her married daughter Reena. Her husband used to reside separately in the nearby vicinity. On 08.03.2017, he (Jeeva) came to the informant's house at around 7:00 p.m., armed with an axe and launched an assault on Vinod. He hit Vinod on the back of his head with the axe. The first informant Smt. Rameela (P.W.1) and her daughter Reena tried to save Vinod but they could not succeed. After hitting Vinod with the axe, the accused ran after the first informant Rameela and Reena with the intention to kill them, upon which, they ran helter-skelter and somehow saved their lives. Jeeva struck blows by the axe on the head and other body parts of Vinod, causing a number of injuries, after which he ran away from the place of incident. Devi Lal, Suresh and Bhera came to the spot and took Vinod to the General Hospital, Dungarpur, from where he was referred to the Udaipur Hospital. While Vinod was being taken to the Udaipur Hospital, he succumbed to his injuries.
On the basis of this report, an FIR No.47/2017 (Ex.P/2) came to be registered at the Police Station Dovera, District Dungarpur for the offence under Section 302 IPC. The investigation was commenced and usual procedure viz., seizure of (Downloaded on 13/10/2020 at 08:38:45 PM) (3 of 15) [CRLAD-296/2019] the blood stained articles from the place of incident, postmortem of the dead body of Vinod, seizure of his clothes etc. was undertaken. The accused-appellant was arrested and after effecting recoveries of a blood stained axe and the appellant's own blood stained clothes, the Investigating Officer proceeded to file a charge sheet against him for the offence under Section 302 IPC. As the offence under Section 302 IPC was exclusively Sessions triable, the case was committed to the Court of Sessions Judge, Dungarpur, who framed charge against the accused-appellant for the offence under Section 302 IPC. The accused denied the charge and sought trial. The prosecution examined as many as 13 witnesses and exhibited 26 documents to prove its case. Upon being questioned under Section 313 Cr.P.C. and when confronted with the circumstances appearing against him under the prosecution evidence, the accused denied the same and claimed to be innocent. At the conclusion of the trial, the learned trial judge heard and considered the submissions of the Public Prosecutor and the defence counsel, appreciated the evidence available on record and proceeded to convict and sentence the appellant as above by the impugned judgment. Hence, this appeal.
Shri J.V.S.Deora, learned counsel representing the appellant vehemently and fervently contended that there is no evidence whatsoever on record of the case to connect the appellant with the crime. The two star prosecution eye-witnesses viz., the first informant Rameela (P.W.1) and Reena (P.W.2), did not support the prosecution case in its entirety and were declared hostile. The trial judge placed reliance on the circumstantial evidence in form of the blood stained recovery and the FSL report for convicting (Downloaded on 13/10/2020 at 08:38:45 PM) (4 of 15) [CRLAD-296/2019] and sentencing the appellant. As per Shri Deora, the FIR is inconsequential as the first informant turned hostile. The process of effecting recoveries is tainted. According to him, even if for a moment, it is to be believed that blood stained recoveries were effected at the instance of the accused and the blood group matched with that of the deceased then also, the FSL report can only be used for seeking corroboration of substantive evidence. His contention is that there is no substantive evidence whatsoever on record of the case so as to connect the appellant with the offence and hence, the blood stained recoveries coupled with the FSL report by themselves are not sufficient to affirm the guilt of the accused. On these grounds, Shri Deora sought reversal of the impugned judgment and craved acquittal of the accused-appellant.
Learned Public Prosecutor, on the other hand vehemently and fervently opposed the submissions advanced by the appellant's counsel. His contention was that the FIR was lodged by Smt. Rameela, wife of the appellant in which, specific allegations were levelled against him for having assaulted his son. The appellant appears to have influenced and won over his family members viz. Rameela and Reena (wife and daughter) following which, they were declared hostile. But as per the learned Public Prosecutor, merely because the eye witnesses including the first informant turned hostile, that by itself would not absolve the burden lying on the appellant to explain as to how blood group same as that of the deceased was found present on his clothes and on the axe, recovered at his instance by the Investigating Officer in furtherance of the information provided under Section 27 of the Evidence Act. On these grounds, he vehemently and fervently sought dismissal of the appeal. (Downloaded on 13/10/2020 at 08:38:45 PM)
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We have given our thoughtful consideration to the
submissions advanced at Bar and have gone through the impugned judgment and have minutely reappreciated the evidence available on record.
Suffice to say that as per the allegations set out in the written FIR lodged by Smt. Rameela PW-1, the accused-appellant assaulted his son Vinod by an axe and the injuries proved fatal. Nonetheless, the fact remains that the FIR (Ex.P/1) is a written document. Smt. Rameela is an illiterate lady and when she was examined as P.W.1 at the trial, she admitted to have appended her thumb impressions on report but emphatically denied that she had seen the appellant assaulting Vinod. It is true that in a given set of circumstances, admissible parts of an FIR can be relied upon even if the first informant turns hostile at the trial. But in the present scenario, since the first informant is an illiterate lady, the contents of the FIR cannot be relied upon, unless the informant fortified the same in her sworn testimony. The prosecution could have examined the scribe of the FIR but it failed to do so. Thus, neither the FIR (Ex.P/2) is admissible in evidence nor the testimony of Smt. Rameela (P.W.1) helps the prosecution even a bit to bring home the charge against the appellant.
The other eye-witnesses PW-2 Reena, daughter of the appellant and sister of the deceased, also turned hostile at the trial and did not utter a single word in her evidence, which could be considered incriminating the appellant. She even denied being present at the spot when the incident took place. Therefore, from the evidence of Reena no incriminating material is borne out against the appellant. P.W.3 Suresh, P.W.4 Bhera and P.W.5 Devi (Downloaded on 13/10/2020 at 08:38:45 PM) (6 of 15) [CRLAD-296/2019] Lal were all declared hostile at the trial and did not support the prosecution story.
P.W.6 Ramesh Chandra was the witness who attested the seizure of the axe effected by the Investigating Officer from the appellant. He supported the recovery proceedings to the hilt.
P.W.7 Dr. Pooranmal Verma proved the postmortem report of the deceased Vinod as Ex.P/20. He found three injuries on the head of the deceased by a sharp weapon and two injuries on his legs by a blunt weapon. The injuries No.1 and 3 were found to be brain deep and the cause of death was opined to be shock and haemorrhage.
P.W.8 Bhanu Pratap Singh, was posted as SHO at the Police Station Dovera at the time of the incident. He stated on oath that Smt. Rameela submitted the written report (Ex.P/1) to him at the General Hospital, Dungarpur on 09.03.2017. After receiving the report, the SHO recorded statements of the complainant and other witnesses. He prepared the Panchnama of Vinod's dead body and after postmortem, handed it over to the family members for cremation. He inspected the place of occurrence, prepared the memorandum (Ex.P/15) and collected the blood stained and control soil from the spot. He also collected the blood stained clothes of Vinod and seized the same vide Memorandum Ex.P/18. The witness also prepared the forwarding letter (Ex.P/21) whereby, the articles were to be sent to the FSL. It is relevant to mention here that the witnesses did not speak a single word regarding the deposition of the articles with the Malkhana Incharge.
Further investigation was undertaken by Mangi Lal, Sub Inspector, who was examined as P.W.9 at the trial. He claimed to (Downloaded on 13/10/2020 at 08:38:45 PM) (7 of 15) [CRLAD-296/2019] have arrested the accused-appellant vide Arrest Memo Ex.P/23. The witness further stated that he recorded the information given by the accused under Section 27 of the Evidence Act (Ex.P/24). In furtherance of this information, Shri Mangi Lal claimed to have recovered the blood stained axe which was seized vide Seizure Memo Ex.P/18. The witness stated that he handed over articles A, B, C & D to the Malkhana Incharge for deposition. However, no particular date was stated by him regarding this procedure. Furthermore, as the witness stated to have seized only the axe, there was no occasion for him to have deposited five articles with the Malkahana Incharge. Mangi Lal also did not elaborate on the information provided by the accused leading under Section 27 of the Evidence Act that led to the recovery. Relevant portion of the evidence of Mangi Lal is extracted hereinbelow for the sake of ready reference.
"vfHk;qDr us esjs le{k /kkjk 27 lk{; vf/kfu;e dh lwpuk LoSPNkiwoZd nh] lwpuk dks vfHk;qDr ds dgs vuqlkj eqfrZc dh xbZ] tks izn"kZ ih 24 gS] ftl ij , ls ch esjs o lh ls Mh vfHk;qDr ds gLrk{kj gSA lwpuk ds vk/kkj ij vfHk;qDr thok dks eSa vuqla/kkudrkZ e; tkCrk ds ?kVukLFky ij fNikbZ xbZ [kwu vkywnk dqYgkM+h tCrdj ekSds ij flyphV dj ekdZ Mh vafdr fd;k x;k] QnZ tCrh dqYgkM+h izn"kZ ih 17 gS] ftl ij bZ ls ,Q esjs gLrk{kj gS rFkk th ls ,p eqyfte thok ds gLrk{kj gSA QnZ cjkenxhLFky dqYgkM+h izn"kZ ih 19 gS] ftl ij bZ ls ,Q esjs o th ls ,p eqyfte thok ds gLrk{kj gSA QnZ rLnhd ?kVukLFky izn"kZ ih 18 gS] ftl ij bZ ls ,Q esjs o th ls ,p vfHk;qDr thok ds gLrk{kj gSA"
This court considered the concept of valid and satisfactory proof of information under Section 27 of the Evidence Act in the case of Daau Ram Vs. State of Rajasthan reported in 2019 (3) RLW 1843 (Raj.) and held as below:-
"The statement of PW-18 shows that he did not specifically narrate before the Court as to what exactly the accused-appellant stated to him while (Downloaded on 13/10/2020 at 08:38:45 PM) (8 of 15) [CRLAD-296/2019] giving the information under Section 27 of the Evidence Act. Actual words as stated by the accused to the Investigating Officer should have been deposed by the witness during his examination in court. The oral statement given by witness in the Court construed to be a substantive piece of evidence to be acted upon while considering the case of the accused.
Section 59 and 60 of the Evidence Act read as below :
59. Proof of facts by oral evidence.- All facts, except the [contents of documents or electronic records], may be proved by oral evidence.-All facts, except the [contents of documents or electronic records], may be proved by oral evidence."
60. Oral evidence must be direct.- Oral evidence must, in all cases whatever, be direct; that is to say-
If it refers to a fact which could be seen, it must be the evidence of a witness who says he saw it; If it refers to a fact which could be heard, it must be the evidence of a witness who says he heard it; If it refers to a fact which could be perceived by any other sense or in any other manner, it must be the evidence of a witness who says he perceived it by that sense or in that manner; If it refers to an opinion or to the grounds on which that opinion is held, it must be the evidence of the person who holds that opinion on those grounds: Provided that the opinions of experts expressed in any treatise commonly offered for sale, and the grounds on which such opinions are held, may be proved by the production of such treatises if the author is dead or cannot be found, or has become incapable of giving evidence, or cannot be called as a witness without an amount of delay or expense which the Court regards as unreasonable: Provided also that, if oral evidence refers to the existence or condition of any material thing other than a document, the Court may, if it thinks fit, require the production of such material thing for its inspection.
The direct implication of these two mandatory provisions is that a witness who steps into the witness box for proving a fact which he has seen or observed must give oral evidence to prove such fact. Manifestly, a memorandum prepared by the Investigating Officer under Section 27 of the Evidence Act refers to a fact which the Investigating Officer has seen and heard while interrogating the accused. Thus, for proving the contents of memorandum, the Investigating Officer must state the exact narration of facts in such (Downloaded on 13/10/2020 at 08:38:45 PM) (9 of 15) [CRLAD-296/2019] document in his own words while deposing before the Court.
This Court in the case of Dharma Vs. The State reported in AIR 1966 Raj 74 observed in paras 17 to 21 as under:
17. Now as regards the proving of such information, the matter seems to us to be governed by Sections 60, 159 and 160 of the Evidence Act. It is correct that statements and reports prepared outside the court cannot by themselves be accepted as primary or substantive evidence of the facts stated therein. Section 60 of the Evidence Act lays down that oral evidence must, in all cases whatever, be direct, that is to say, if it refers to a fact which could be seen, it must be the evidence of a witness who says he saw it, and if it refers to a fact which could be heard, it must be the evidence of a witness who says he heard it and so on. Section 159 then permits a witness while under examination to refresh his memory by referring to any writing made by himself at the time of the transaction concerning which he is questioned, or so soon afterwards that the court considers it likely that the transaction was at that time fresh in the memory. Again, with the permission of the court, the witness may refresh, his memory by referring to a copy of such document. And the witness may even refer to any such writing made by any other person but which was read by him at the time the transaction was fresh in his memory and when he read it, he knew it to be correct. Section 160 then provides for cases where the witness has no independent recollection say, from lapse of memory, of the transaction to which he wants to testify by looking at the document and states that although he has no such recollection he is sure that the contents of the document were correctly recorded at the time they were. It seems to us that where a case of this character arises and the document itself has been tendered in evidence, the document becomes primary evidence in the case. See Jagan Nath v.
Emperor, AIR 1932 Lah 7.
The fundamental distinction between the two sections is that while under Section 159 it is the witness's memory or recollection which is evidence, the document itself not having been tendered in evidence; under Section 160, it is (Downloaded on 13/10/2020 at 08:38:45 PM) (10 of 15) [CRLAD-296/2019] the document which is evidence of the facts contained in it. It has been further held that in order to bring a case under Section 160, though the witness should ordinarily affirm on oath that he does not recollect the facts mentioned in the document, the mere omission to say so will not make the document inadmissible provided the witness swears that he is sure that the facts are correctly recorded in the document itself. Thus in Partab Singh v. Emperor, AIR 1926 Lah 310 it was held that where the surrounding circumstances intervening between the recording of a statement and the trial would as a matter of normal human experience render it impossible for a police officer to recollect and reproduce the words used, his statement should be treated as if he had prefaced it by stating categorically that he could not remember what the deceased in that case had said to him.
Putting the whole thing in somewhat different language, what was held was that Section 160 of the Act applies equally when the witness states in so many words that he has no independent recollection of the precise words used, or when it should stand established beyond doubt that that should be so as a matter of natural and necessary conclusion from the surrounding circumstances.
18. Again, in Krishnama v. Emperor, AIR 1931 Mad 430 a Sub-Assistant Surgeon recorded the statement made by the deceased just before his death, which took place in April, 1930, and the former was called upon to give evidence some time in July, 1930. In the Sessions Court he just put in the recorded statement of the deceased which was admitted in evidence. On appeal it was objected that such statement was wrongly admitted inasmuch as the witness did not use it to refresh his memory nor did he attempt from recollection to reproduce the words used by the accused. It was held that he could not have been expected to reproduce the words of the deceased, and therefore, he was entitled to put in the document as a correct record of what the deponent had said at the time on the theory that the statement should be treated as if the witness had prefaced it by stating categorically that he could not remember what the deceased had said.
19. Again in Public Prosecutor v. Venkatarama Naidu, AIR 1943 Mad 542, the question arose how the notes of a speech taken by a police officer be admitted in evidence. It was held that it was not necessary that the officer should be (Downloaded on 13/10/2020 at 08:38:45 PM) (11 of 15) [CRLAD-296/2019] made to testify orally after referring to those notes. The police officer should describe his attendance, the making of the relevant speech and give a description of its nature so as to identify his presence there and his attention to what was going on, and that after that it was quite enough it he said "I wrote down that speech and this is what I took down," and if the prosecution had done that, they would be considered to have proved the words. This case refers to a decision of the Lahore High Court in Om Prakash v. Emperor, AIR 1930 Lah 867 wherein the contention was raised that the notes of a speech taken by a police officer were not admissible in evidence as he did not testify orally as to the speech and had not refreshed his memory under Section 159 of the Evidence Act from those notes. It was held that instead of deposing orally as to the speech made by the appellant, the police officer had put in the notes made by him, and that there would be no difference between this procedure and the police officer deposing orally after reference to those notes, and that for all practical purposes, that would be one and the same thing.
20. The same view appears to us to have been taken in Emperor v. Balaram Das, AIR 1922 Cal 382 (2).
21. From the discussion that we have made, we think that the correct legal position is somewhat like this. Normally, a police officer (or a Motbir) should reproduce the contents, of the statement made by the accused under j Section 27 of the Evidence Act in Court by refreshing his memory under Section 159 of the Evidence: Act from the memo earlier prepared thereof by him at the time the statement had been made to him or in his presence and which was recorded at the same time or soon after the making of it and that would be a perfectly unexceptionable way of proving such a statement. We do not think in this connection, however, that it would be correct to say that he can refer to the memo under Section 159 of the Evidence Act only if he establishes a case of lack of recollection and not otherwise. We further think that where the police officer swears that he does not remember the exact words used by the accused from lapse of time or a like cause or even where he does not positively say so but it is reasonably established from the surrounding circumstances (chief of which would be the intervening time between the making of the statement and the recording of the witness's deposition at the trial) (Downloaded on 13/10/2020 at 08:38:45 PM) (12 of 15) [CRLAD-296/2019] that it could hardly be expected in the natural course of human conduct that he could or would have a precise or dependable recollection of the same, then under Section 160 of the Evidence Act, it would be open to the witness to rely on the document itself and swear that the contents thereof are correct where he is sure that they are so and such a case would naturally arise where he happens to have recorded the statement himself or where it has been recorded by some one else but in his own presence, and in such a case the document itself would be acceptable substantive evidence of the facts contained therein. With respect, we should further make it clear that in so far as Chhangani, J.'s holds to the contrary, we are unable to accept it as laying down the correct law. We hold accordingly."
The information memo (Ex.P/32) which bears a narrative of the statement given by the accused- appellant to the investigating officer, cannot be construed to be a substantive piece of evidence. Hence, the Ex.P/32 is not admissible in evidence. In the case of Mohd. Abdul Hafeez Vs. State of Andhra Pradesh reported in AIR 1983 SC 367, the Apex Court held as under :
"...... It is impossible to believe that all spoke simultaneously. This way of recording evidence is most unsatisfactory and we record disapproval of the same. If evidence otherwise confessional in character is admissible under Section 27 of the Indian Evidenct Act, it is obligatory upon the investigating officer to state and record who gave the information; when, he is dealing with more than one accused, what words were used by him so that a recovery pursuant to the information received may be connected to the person giving the information so as to provide incriminating evidence against that person."
(Emphasis Supplied) Thus the recovery of axe which Mangi Lal claims to be effected in furtherance of the information provided by the accused under Section 27 of the Evidence Act is inadmissible as the information was not proved as per law. That apart, as stated above, Mangi Lal did not utter a single word regarding the date on (Downloaded on 13/10/2020 at 08:38:45 PM) (13 of 15) [CRLAD-296/2019] which, he deposited the axe with Takhat Singh, Malkhana Incharge.
P.W.10 Takhat Singh stated in his evidence that he was posted as Malkhana Incharge, at the Police Station Dovera on 09.03.2017. On that day, the Investigating Officer of the case handed him four sealed packets, which were kept in the Malkhana after making an entry in the Malkhana Register. However, none of the prosecution witnesses examined by the prosecution gave evidence regarding deposition of the axe recovered at the instance of the accused in the Malkhana of the Police Station Dovera. Thus, in addition to the fact that the recovery of the axe was not proved as per law, the prosecution also failed to lead requisite link evidence so as to satisfy the Court that the axe recovered at the instance of the accused having been kept in self-same sealed condition right from the date of seizure till the date it was received at the FSL, Udaipur.
Argumenta pro virili, that a blood stained axe matched with the blood group as that of the deceased was recovered in pursuance of the information provided by the accused under Section 27 of the Evidence Act, mere recovery of the blood stained weapon cannot be construed as providing acceptable proof for the murder without there being any substantive evidence. The Hon'ble Supreme Court considered this aspect in the case of Mustkeem @ Sirajudin vs. State of Rajasthan reported in AIR 2011 SC 2769 and held as under:
23. "The AB blood group which was found on the clothes of the deceased does not by itself establish the guilt of the Appellant unless the same was connected with the murder of deceased by the Appellants. None of the (Downloaded on 13/10/2020 at 08:38:45 PM) (14 of 15) [CRLAD-296/2019] witnesses examined by the prosecution could establish that fact. The blood found on the sword recovered at the instance of the Mustkeem was not sufficient for test as the same had already disintegrated. At any rate, due to the reasons elaborated in the following paragraphs, the fact that the traces of blood found on the deceased matched those found on the recovered weapons cannot ipso facto enable us to arrive at the conclusion that the latter were used for the murder."
Thus, after thoroughly reappreciating the evidence on record, we have no hesitation in holding that :-
(a) That there is no direct evidence to connect the appellant with the crime;
(b) The prosecution failed to prove the factum of recovery of the axe at the instance of the accused, since the information provided by the accused under Section 27 of the Evidence Act to the Investigating Officer was not proved in accordance with law and;
(c) Quid ultra, the prosecution failed to lead satisfactory evidence to prove that the axe seized allegedly from the appellant remained in the self-same condition right from the date of the seizure till the same was received at the FSL and in this fashion, the FSL report (Ex.P/22) loses sanctity.
Thus, there remains no evidence whatsoever which can connect the accused-appellant Jeeva with the crime of murdering his son Vinod. As a consequence, there is no option left with us but to hold that the impugned judgment is bad in facts as well as in the eyes of law, as the trial court erred in appreciating the evidence on record on the touchstone of the settled principles of Criminal Jurisprudence.
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(15 of 15) [CRLAD-296/2019] Accordingly, the instant appeal deserves to be and is hereby allowed. The impugned judgment dated 23.07.2019 passed by the learned Sessions Judge, Dungarpur in Sessions Case No.178/2017 is hereby quashed and set aside. The accused appellant is acquitted of the charge. He shall be released from prison forthwith, if not wanted in any other case.
However, keeping in view the provisions of Section 437-A CrPC, the appellant is directed to furnish a personal bond in the sum of Rs.40,000/- and a surety bond in the like amount before the learned trial court, which shall be effective for a period of six months to the effect that in the event of filing of a Special Leave Petition against the present judgment, on receipt of notice thereof, the appellant shall appear before the Supreme Court. (KUMARI PRABHA SHARMA),J (SANDEEP MEHTA),J Mamta (Downloaded on 13/10/2020 at 08:38:45 PM) Powered by TCPDF (www.tcpdf.org)