THAVRIYA Vs. STATE OF M.P.

JUDGEMENT

(1.) THIS appeal has been directed by the appellant against the judgment of conviction and sentence passed by the learned Addl. Sessions Judge, Manawar, District Dhar in Sessions Trial No. 193/2002, thereby convicting the appellant under section 302 of the Indian Penal Code and sentencing him to undergo imprisonment for life with fine of Rs. 200/ -, in default whereof to undergo six months imprisonment. Scenario of the prosecution case before the trial Court was that Anitabai (PW.4), daughter of the appellant along with his maternal uncle Nawalsingh and village Choukidar lodged a report in police station on 9 -4 -2002 in the noon that when his younger sister Gorabai and mother deceased Kekdibai were in the house, his father appellant Thavriya came to the house from the village and asked money from deceased Kekdibai to consume liquor. Kekdibai did not give money to him on which appellant told her that she was roaming with her male friends and thereafter tied her with the rope and assaulted her by lathi. Anitabai and her sister tried to intervene into the matter but they were also threatened. The appellant assaulted deceased by lathi and caused several injuries on her person. Anitabai disclosed all these incidents before her aunt Dhannabai and maternal uncle Navalsingh. They reached at the house of the appellant and found his wife in dead condition. Thereafter they informed village choukidar Kunwarsingh. She could not go to lodge the report immediately because of the night hours. On this report, Crime No. 53/2002 under section 302 of Indian Penal Code was registered vide FIR (Ex.P.9) and Ranvir Singh Chouhan (PW.10) commenced investigation. F.I.R. was recorded by Nanhevir (PW.9), Head Constable. The Inquest (Ex.P.14) of the dead body was prepared and thereafter body was sent for post -mortem examination. Autopsy was performed by Dr. Harish Chandra Arya (PW.1), who found external injuries like contusions and bruise on the person of the deceased and according to him deceased died because of grievous injuries on her both the arms resulting into cardiac respiratory failure. After investigation, charge -sheet was filed. Before the trial Court, appellant has abjured his guilt, therefore, put on trial. Prosecution has examined ten witnesses whereas appellant has not examined any one.

(2.) WE have heard the learned counsel for appellant Shri Qayamuddin, learned Dy. A.G. Shri G. Desai for State and also perused the entire record. In the present matter, the conviction of the appellant is mainly based on the FIR (Ex.P.9), Inquest Report (Ex.P.14), medical evidence of Dr. Harish Chandra Arya and the circumstance of presence of dead body inside the house for which according to the learned trial Court, appellant has not given any explanation, though his wife died inside the house. On perusal of the record, we found that all the material witnesses i.e. Suka (PW.3) about seizure, Anita (PW.4), daughter of the appellant and deceased who lodged the report (Ex.P.9), Dhannabai (PW.6), Kallu (PW.7) and Naval Singh (PW.8) have turned hostile. Another daughter of the appellant Shantabai (PW.5) has deposed that when she returned to her house in the evening, she came to know that the dead body of her mother was lying in the rivulet. Thereafter she went to see the dead body and brought the same to the house. She was not interrogated by the police. She has denied the suggestion given by the prosecution regarding beating to deceased by appellant. The star witness Anitabai (PW.4), the another daughter of the appellant has also not supported the prosecution case. She has been declared hostile. She has also stated that the dead body of the deceased mother was lying in the village rivulet which was situated behind their house. It emerged from the record that there is no admissible evidence on record to make out a case of commission of murder of wife by the appellant. But the learned trial Court has convicted him relying on the FIR (Ex.P.9), Inquest report (Ex.P.14) and medical report. The learned trial Court has also placed reliance on the case diary statement recorded under section 161, Criminal Procedure Code and held that there was no reason for the Investigating Officer (PW.10) Ranveer Singh Chouhan to record the false statements of the witnesses. The learned trial Court has held that the witnesses did not support the prosecution case because of the close relation with the appellant and they have turned hostile in the Court. According to us, the approach of the learned trial Court is just contrary to the basic principle of criminal jurisprudence. There are three cardinal principle of criminal jurisprudence, Firstly, prosecution has to prove its case beyond all reasonable doubt against the accused, Secondly, prosecution has to stand on its own legs and it cannot take advantage of weakness of the case of the defence. Thirdly when there are two views possible on the basis of the evidence on record, the view in favour of the appellant has to be taken into consideration.

(3.) IN the instant case, as a matter of fact there is no admissible evidence against the appellant to establish his guilt, the learned trial Court has failed to consider the legal position that the F.I.R. and the statements of the witnesses recorded under section 161, Criminal Procedure Code vis -a -vis the inquest report cannot be considered as a substantive piece of evidence. The FIR can be used for contradicting to its lodger and to corroborate his statement in Court as per provision under section 157 of Evidence Act. The statement under section 161, Criminal Procedure Code can be used by the parties to contradict the witnesses with the permission of the Court in view of the provision under section 145 of Evidence Act and the same cannot be used for the purpose of corroboration. The Inquest Report of the dead body can be used under section 159 of the Criminal Procedure Code for refreshing the memory of the witnesses. The contents in the inquest report itself would not be admissible. It has to be proved in Court like any other fact. The learned trial Court, ignoring these basic legal position about F.I.R. statements of the witnesses recorded during the course of investigation and Inquest Report, placed reliance on the same, has committed glaring defect and caused flagrant miscarriage of justice by passing the judgment of conviction on this basis. This also shows that the learned Judge has lack of basic knowledge and principle of criminal jurisprudence. The learned trial Court has put much emphasis on the circumstance that appellant in his accused statement did not explain as to how his wife has died when the dead body was found inside the house. We have perused the evidence of all the witnesses and it has come in the statements of Anita (PW.4), Shantabai (PW.5), Dhannabai (PW.6), Kallu (PW.7) and Naval Singh (PW.8) that dead body was found lying in the rivulet situated in the village and this body was thereafter brought by the witnesses at the house of the appellant. Thereafter Anita (PW.4) went to lodge the report and on her report, Ranveer Singh Chouhan (PW.10) reached in the village and prepared the Inquest Report (Ex.P.14). He has also prepared the sketch of the spot (Ex.P. 19) at the instance of the witnesses but the witnesses have not deposed anything about preparation of sketch and details of the sketch has not been narrated on oath in Court by this witness Ranveersingh Chouhan. Therefore, the contents of sketch (Ex.P. 19) itself cannot be looked into being hit by the provisions of section 162, Criminal Procedure Code because the contents mentioned in the sketch is the statement of witness given to the Investigating Officer.