Criminal Appeal No.182 of 2011

20th July, 2011

Petitioner Counsel: Mr. N.A. Badar , Dr.(Mrs.) U.K. Kalsi
Respondent Counsel: Mrs. B.P. Maldhure

Cases Cited:
Ram Kishan Singh Vs. Harmit Kaur, (1972) 3 SCC 280 [Para 6]
Audumbar Digambar Jagdane Vs. State of Maharashtra, 1998 ALL MR (Cri) 1363=1999 Cri.L.J. 1936 [Para 6]
AIR 1946 PC 38 : 1946(47) Cri.L.J. 336 [Para 6]
Dasu & oth. Vs. State of Maharashtra, 1985 Cri. L.J. 1933 [Para 9]

JUDGMENT

Mrs. V. K. Tahilramani, J. :- The appellants/original accused Nos.1 and 2 have preferred this appeal being aggrieved by the common judgment and order dated 22.03.2011 passed by learned Adhoc Additional Sessions Judge, Amravati in Sessions Trial Nos.12/2009 and 134/2009. By the said judgment and order the learned Additional Sessions Judge acquitted accused No.4 and convicted the appellants-original accused Nos.1, 2 and original accused No.3 for the offence punishable under Section 302 r/w. 34 of the Indian Penal code. For the said offence, the learned Sessions Judge sentenced them to suffer imprisonment for life and fine of Rs.Five Thousand each in default to suffer rigorous imprisonment for six months.

2. The prosecution case, briefly stated, is as under :

Suresh Shinde (P.W.1) was residing along with his family including his son Sagar (deceased) in Mahajanpura at Amravati. The appellants along with coaccused were also residing in the same locality. On 22.09.2008 at about 8.00 a.m. Sagar was sleeping in the house, at that time original accused No.4 Prakash Thakur came to the house of P.W.1 Suresh and took Sagar with him. Prakash said that they would return within a short time. At about 10.30 a.m. P.W. 3 Vikram Sadavarte came to the house of P.W. 1 Suresh and informed that P.W. 2 Chandrapal informed him that accused No.1 Mahendra, accused No.2 Dinesh Thakur and accused No.3 Dinesh @ Tanvesh committed murder of Sagar behind Gadgadeshwar Temple. P.W.1 Suresh visited the spot and saw his son lying in injured condition. He then went to the Police Station and lodged his F.I.R. (Exh.31). Thereafter investigation commenced. Dead body of Sagar was sent for post mortem. In the opinion of the Doctor the cause of death of Sagar was shock due to trauma to large major vessels of heart, upper part of left lung esophagus coils of intestine & multiple injuries over face & body. After completion of investigation the charge sheet came to be filed against original accused Nos. 1 to 3. The case was committed to the Sessions Court and it was numbered as sessions Trial No.12/2009. Original accused No.4 was traced later on, his case was also committed to the Sessions Court and it was numbered as Sessions Trial No.134/2009.

3. Charge came to be framed against the appellants/ original accused Nos.1 and 2 and original accused Nos. 3 and 4 under Section 302 read with Section 34 of the Indian Penal Code. The appellants and other co-accused pleaded not guilty to the said charge and claimed to be tried. Their defence was that of total denial and false implication. After going through the evidence, the learned Sessions Judge acquitted original accused No. 4 and convicted and sentenced the appellants and original accused No.3 as stated in paragraph 1 above, hence, this appeal.

4. We have heard the learned Advocate for the appellants and the learned Additional Public Prosecutor for the respondent/ State. We have perused the judgment and order passed by the learned Sessions Judge as well as evidence in this case. After carefully considering the matter, for the reasons stated herein below, we are of the opinion that this appeal deserves to be allowed.

5. According to the prosecution P.W. 4 Vishwanath is an eyewitness to the incident. He saw accused 1 to 3 assaulting Sagar and informed P.W. 2 Chandrapal. Chandrapal informed the incident to P.W. 3 Vikram, who in turn informed P.W. 1 Suresh. However, it is noticed that P.W. 4 Vishwanath has not supported the prosecution. So also P.W. 2 Chandrapal has not supported the prosecution. It is further the prosecution case that P.W. 1 Suresh was informed by P.W. 3 Vikram that P.W. 2 Chandrapal told him that Accused Nos. 1 to 3 assaulted Sagar. However, in view of the fact that Chandrapal and Vishwanath have not supported the prosecution the evidence of Suresh falls in the realm of hearsay evidence and it cannot be taken into consideration.

6. The learned Additional Public Prosecutor pointed out that statement of P.W. 4 Vishwanath was recorded under Section 164 of the Code of Criminal Procedure and in the crossexamination of P.W. 4 by the learned Additional Public Prosecutor and through the evidence of Executive Magistrate P.W. 19 Shri Thombre who recorded the statement under Section 164 of Cr.P.C. statement of P.W. 4 under Section 164 was got proved. She submitted that though the evidence of P.W. 4 Vishwanath before the Court is to the effect that he did not know anything about the incident, his statement under Section 164 which has been proved through Judicial Magistrate First Class P.W. 19 Shri Thombre shows that he saw original accused Nos. 1, 2 and 3 assaulting Sagar. The learned Additional Public Prosecutor contended that though P.W. 4 Vishwanath turned hostile, his statement given on oath under Section 164, which is proved by the prosecution through P.W. 19, cannot be totally ignored. We cannot accept this submission of the learned Additional Public Prosecutor. In our opinion, once P.W. 4 Vishwanath has not supported the prosecution, his statement under Section 164, even if proved, can never be accepted as substantive evidence. The stand we are taking is fortified by the Apex Court, in Ram Kishan Singh Vs. Harmit Kaur, reported in (1972) 3 SCC 280. In the said decision it is observed that statement under Section 164 of the Code of Criminal Procedure is not substantive evidence. In that behalf reference to a decision of the Privy Council reported in AIR 1946 PC 38 : (1946 (47) Cri. L.J. 336) would be extremely fruitful. The Committee of the Privy Council speaking through Sir John Beaumont, J in the aforesaid decision on page 41 (of AIR) : (at p. 338 of Cri.LJ) of the report has observed as under :

".... The learned Judges discussed in great detail the statements made by Haliman and Mahabir under S. 164 and gave reasons for accepting the facts, or most of the facts, deposed to in those statements, in preference to the evidence given by the witnesses in Court, which in no way helped the prosecution. This was an improper use of such statements. A statement under S. 164 can be used to cross-examine the person who made it, and the result may be to show that the evidence of the witness is false. But that does not establish that what he stated out of Court under S. 164 is true."

In the decision of the Division Bench of this Court in the case of Audumbar Digambar Jagdane Vs. State of Maharashtra, reported in 1999 CRI. L.J. 1936 : [1998 ALL MR (Cri) 1363]. also similar view has been taken, that as statements under Section 164 Cr.P.C. are not substantive evidence a conviction cannot be based only on a statement under Section 164.

7. The learned Additional Public Prosecutor has pointed out that even though the eyewitness has not supported the prosecution, there is sufficient material to connect the appellant with the crime. As far as appellant/ original accused No.1 Mahendra Thakur is concerned she pointed out that there is seizure of blood stained clothes from him. In this connection she relied on the evidence of P.W. 13 Pyarelal, who is panch witness in relation to the seizure. Pyarelal has stated that on 28.09.2008 blood stained shirt came to be seized from accused Mahendra. As far as accused No.2 Dinesh is concerned the learned Additional Public Prosecutor pointed out that there is seizure of blood stained clothes from him on 23.09.2008 and there is recovery of blood stained Farsha at his instance on 27.09.2008. In this connection also she relied on the evidence of panch witness P.W. 13 Pyarelal. Pyarelal has stated that on 27.09.2008 Farsha came to be recovered at the instance of accused Dinesh. On careful perusal of the examinationinchief of Pyarelal it is noticed that he has stated that he was standing on the road. Police were passing by that road with the accused. On the request of the police he sat in the vehicle. They went behind a Mandir from where accused Dinesh took out a Farsha and handed it over to the police. Thus, from the evidence of P.W. 13 Pyarelal it cannot be said that Farsha was 'recovered' at the instance of the appellant. On going through the evidence of Pyarelal it cannot be said to be recovery under Section 27 of the Evidence Act. As far as recovery of clothes of appellant Dinesh as well as appellant Mahesh is concerned, the same is again not a recovery under Section 27 of the Evidence Act.

8. Looking to the fact that the prosecution is only relying on the evidence of seizure of weapon and the clothes at the instance of accused persons, we find it necessary to minutely scrutinize the evidence in relation to the same. One interesting aspect has emerged in this case. Clothes of accused Dinesh were seized on 23.09.2008, Farsha was seized on 27.09.2008 and blood stained shirt of accused Mahendra was seized on 28.09.2008 but it is noticed from all the panchnamas on these three different dates that the panch witness was the same i.e. P.W. 13 Pyarelal. This raises some doubt whether P.W. 13 Pyarelal is an independent witness or he is a stock panch. Thus, we find great hesitation in relying on his evidence.

9. The prosecution has also relied on the aspect that Chemical Analyzer's report shows that human blood stains were found on Farsha, and on shirt of Dinesh and on the shirt of accused Mahendra, Blood of group A was detected. It is interesting to note here that the panch witness has not stated that any of the articles were sealed on the spot. This Court in the case of Dasu & oth. Vs. State of Maharashtra, reported in 1985 Cri. L.J. 1933 has observed that if blood stained clothes are not wrapped and sealed immediately after the seizure in presence of the panchas, it is bound to affect the probative value of the findings of the Chemical Analyzer. Thus, in the facts of the present case we find that the C.A. report would not be of much help to the prosecution.

10. Looking to all these facts, we are of the opinion that in the facts of the present case it would be risky to place reliance on the evidence of seizure of clothes and weapon from the appellants. There being no other reliable evidence to connect the appellants with the crime, we are of the opinion that the conviction under Section 302 r/w 34 deserves to be set aside. Hence, the following order.

11. The appeal is allowed. The conviction of both the appellants under Section 302 r/w 34 of the Indian Penal Code is set aside. The appellants are acquitted of the offence punishable under Section 302 of the Indian Penal Code. They be released, if not required in any other case.

Appeal allowed.