Kanchedilal Thakur vs State Of Madhya Pradesh

Appellant has filed this appeal against the judgment dated 12.03.2008 passed by the XII Additional Session Judge, Fast Track Court, Jabalpur in

Session’s Trial No. 364/2007 whereby the appellant has been convicted under Section 302 of the Indian Penal Code and sentenced to undergo

R.I. for life with fine of Rs. 1,000/- with default stipulation.Â

The prosecution story in brief is that the deceased Brijesh Thakur was the step son of the appellant. The character of appellant was not good. He

tried to outrage modesty of his daughter-in-law and other female members of the family. On 23.4.2007, he had tried to molest his daughter-in-law

Manisha Thakur (PW-2) at the night. She and the deceased objected about the aforesaid act of the appellant. Due to this appellant made false

allegation that the deceased had illegal relationship with Manisha who was the wife of younger brother of the deceased.

On 30.4.2007, after taking dinner, all the family members were sleeping in the house. The deceased was sleeping on the floor and on one side

appellant and his brother in law (sadu bhai) Shankarlal Pal (PW-10) was sleeping on a bed. On other side, Radha Bai (PW-3) and Akash (PW-12)

were sleeping. At around 4:30 am in the morning, they had heard some sound. Thereafter, Manisha Thakur (PW-2), Ramratan (PW-1) and Radhabai

(PW-3) had awaken and they had seen the appellant inflicting injuries by axe on the deceased. The appellant also tried to inflict injury on Manisha

Thakur. However, other persons catch hold the appellant and saved Manisha. Ramratan (PW-1) lodged the report of the incident vide Exhibit P/1 at

Police Station and Merg was registered vide Exhibit P/2. Thereafter, the Police conducted investigation and filed charge sheet. The appellant

abjured guilt and pleaded innocence.

The Trial Court held the appellant guilty for commission of offence punishable under Section 302 of I.P.C and awarded the sentence.

Learned counsel on behalf of the appellant has contended that all the prosecution witnesses including the Police personnel turned hostile. The Trial

Court relied on the evidence of Ramratan (PW-1) and Manisha Thakur (PW-2) recorded under Section 164 of Cr.P.C and treated it as substantive

piece of evidence. The Trial Court has commited error of law on this aspect. It is further submitted by the learned counsel that seizure of axe from the

appellant has not been proved. The Trial Court further relied on the F.I.R Exhibit P/1 lodged by Ramratan Singh (PW-1) as substantive piece of

evidence. Ramratan (PW-1) turned hostile and denied the contents of the F.I.R. Hence, the Trial Court has further committed an error in relying

on the F.I.R. Except this piece of evidence, there is no other substantive piece of evidence against the appellant. Hence, the prosecution has failed to

prove the guilt of appellant beyond reasonable doubt. In support of her contentions, the learned counsel relied on various judgments.

Contrary to this, learned Government Advocate has submitted that the appellant had committed murder of his stepson. There was no other person

present on the time at the place of incident except the family members. They turned hostile because they wanted to save the appellant.

The independent witnesses deposed that family members had told them that appellant had committed murder of the deceased. Apart from this, the

F.I.R was lodged on the instructions of Ramratan (PW-1) who is the step brother of the deceased and son of the accused. There is also other

evidence on record to held the appellant guilty for the offence. The Trial Court has appreciated the evidence properly and passed a reasoned

judgment. In support of his contentions, learned Government Advocate relied on the judgment of the Apex Court reported Rohtash Kumar Vs.

State of Haryana reported in (2013) 14 SCC 434.

Radha Bai (PW-3) and Akash Shrivastav (PW12) are the alleged eye-witness because they were sleeping in the same room where the incident

happened.   Ramratan Singh (PW-1) and Manisha (PW-2) were sleeping in another room. They are also eye-witness.

Ramratan (PW-1) deposed that, the appellant is my father and deceased was my elder brother. Manisha is my wife. We are living in police

quarter at Police Station, Civil Lines. On 30.04.2007, deceased and other family members were sleeping. At around 4:30 am in the morning, I heard

the sound of my father. He was saying “who is outside the houseâ€. Thereafter, I and my wife Manisha (PW-2) had awakened. We lit the

lamp. I came outside the house. At a distance of two steps from the house, an axe was lying in the courtyard. There was blood on the axe.Â

Thereafter, I came into the house where my father and mother were sleeping. I switched on the light of the room. I noticed that blood was

oozing from the body of my elder brother. Blood was also on the bed and the appellant was sitting on the bed in a trembling state. Then I told my

father (appellant) that he should inform the police about the incident. Thereafter, I had gone with my wife to the police station along with the axe

and informed the police that my brother was killed. Thereafter, two police persons came to my house. Police recorded the report Ex. P/1 and

registered Merg Ex. P/2. Police prepared a spot map Ex. P/3 and I signed the same. The police also seized plain and red earth, one bedsheet,

sando banyan, full pant, mattress etc. and I signed the same. Police recorded my statement Ex. P/7. When the report Ex. P/7 was read to him,

he denied that he had lodged the report and narrated the facts as mentioned in the report. The statement recorded under Section 164 of Cr.P.C.

before the Judicial Magistrate of the witness was also read over to him. He deposed that he had given the statement under the influence of

police. He was declared hostile. He denied the contents of his statement in the cross-examination given by him under Section 164 of Cr.P.C

before the Magistrate. He also denied the contents of FIR Ex. P/1. He further denied the fact that he had seen that the appellant had killed the

deceased.Â

Manisha (PW-2) who is the daughter-in-law of the appellant deposed that, the deceased was my jeth (elder brother of her husband. On the date

of incident, in one room of the house, I was sleeping along with my husband and in another room other persons were sleeping. She deposed the

same facts as deposed by Ramratan (PW-1) that at about 4:30 pm, I heard the noise of my father-in-law (appellant) saying ‘who is there’.Â

Thereafter, I and my husband had awaken. We came out of our room and went to the courtyard. An axe was lying in the courtyard. My

husband switched on the lights. Other persons were sleeping.  We noticed that blood was oozing from the neck of the deceased. Thereafter,

my husband had gone to the police station to inform the police.

Thereafter, police came to the house and conducted investigation. Manisha (PW-2) denied that a map was prepared before her. She was declared

hostile. She denied the statement given by her under Section 164 of Cr.P.C. and deposed that she had given the aforesaid statement under the

pressure of police. She also denied the contents of her statement given under Section 161 of Cr.P.C. before the police. She further deposed that

she is making statement before the Court on her own will.Â

Radha Bai (PW-3) is another witness, who is the wife of the appellant and mother of the deceased. She also turned hostile. She deposed the

same facts as deposed by Ramratan Singh (PW-1) and Manisha Thakur (PW-2). She denied the facts of her statement recorded by the police

under Section 161 of Cr.P.C.

Ram Vinod Shrivastav (PW-4) is another son of the appellant. He also turned hostile. He was not present at the time of the incident at the

house.

Sangeeta Shrivastav (PW-7) is the wife of the deceased. She deposed that she was living along with her family with the appellant in the quarters

at police line. Appellant used to tease the female members of the family. On 23.04.2007, he tried to outrage the modesty of Manisha, who is her

devrani (sister-inlaw) and my husband (deceased) had also witnessed the incident. He protested with the appellant about the act and on that account

the appellant had ill-will against my husband. When I came to the house after the death of my husband on the next day, my mother-in-law and

sister-in-law had told me that the appellant had killed the deceased. At the time of incident, I was not at the house.Â

Vinit Shrivastav (PW-8) is the brother of the wife of the deceased. He deposed the same facts that when he came after hearing about the

incident, the family members told him that the appellant had killed the deceased.Â

Mishrilal Shrivastav (PW-9) is the father-in-law of the deceased. He deposed that the character of the appellant was not proper. However,

on some point he was declared hostile.Â

Shankarlal Pal (PW-10) is another alleged eye-winess who is the sadu bhai (brother-in-law) of the appellant. He was present at the time of the

incident in the house and he was also sleeping in the same room. He deposed that after taking meal, we had slept in the house. I was sleeping

with the appellant and his wife was sleeping on another bed. The deceased was sleeping on the floor. At around 4:30 am when I had awakened,

I went outside the house to answer the call of nature. When I returned, I noticed that the family members were sleeping. Kanchedilal and

Ramratan were not there. When I asked, they told me that they had gone to the police station. Deceased Brijesh was lying on his bed and blood

was oozing from his body. Shankarlal (P-10) was declared hostile.Â

Jitendra Mishra (PW-11) Constable is the neighbour.

He has also turned hostile.Â

Akash Shrivastav (PW-12) also turned hostile. He deposed the same fact as deposed by Ramratan Singh (PW-1) and Radha Bai (PW-3).Â

Vinay Prakash (PW-5) Constable is the neighbour who deposed that he came to know from the ladies that the appellant had killed his stepson.Â

Anshuman Pandey (PW-6) Constable also deposed that a constable of civil line had told him that the appellant had killed his son.Â

The eye-witnesses did not support the prosecution case. Unfortunately, they have turned hostile. It is also a fact that they are family

members of the appellant and they want to save the appellant. Ramratan (PW-1) and Manisha (PW-2) denied the contents of their statements

recorded under Section 164 of Cr.P.C. before the Magistrate.Â

The Hon’ble Apex Court in case of R.Shaji Vs. State of Kerala reported in (2013) 14 SCC 266 has held as under with regard to evidentiary

value of statement recorded under Section 164 of Cr.P.C.:

“Evidence given in a court under oath has great sanctity, which is why the same is called substantive evidence. Statements under Section 161

Cr.P.C. can be used only for the purpose of contradiction and statements under Section 164 Cr.P.C. can be used for both corroboration and

contradiction. In a case where the magistrate has to perform the duty of recording a statement under Section 164 Cr.P.C., he is under an obligation to

elicit all information which the witness wishes to disclose, as a witness who may be an illiterate, rustic villager may not be aware of the purpose for

which he has been brought, and what he must disclose in his statements under Section 164 Cr.P.C. Hence, the magistrate should ask the witness

explanatory questions and obtain all possible information in relation to the said case.

So far as the statement of witnessesrecorded under Section 164 is concerned, the object is two fold; in the first place, to deter the witness from

changing his stand by denying the contents of his previously recorded statement, and secondly, to tide over immunity from prosecution by the witness

under Section 164. A proposition to the effect that if a statement of a witness is recorded under Section 164, his evidence in Court should be

discarded, is not at all warranted. (Vide: Jogendra Nahak & Ors. v. State of Orissa & Ors., AIR 1999 SC 2565; and Assistant Collector of Central

Excise, Rajamundry v. Duncan Agro Industries Ltd. & Ors., AIR 2000 SC 2901).

Section 157 of the Evidence Actmakes it clear that a statement recorded under Section 164 Cr.P.C., can be relied upon for the purpose of

corroborating statements made by witnesses in the Committal Court or even to contradict the same. As the defence had no opportunity to cross-

examine the witnesses whose statements are recorded under Section 164 Cr.P.C., such statements cannot be treated as substantive evidence.

During the investigation, the Police Officer may sometimes feel that it is expedient to record the statement of a witness under Section 164 Cr.P.C.

This usually happens when the witnesses to a crime are clearly connected to the accused, or where the accused is very influential, owing to which the

witnesses may be influenced. (Vide: Mamand v. Emperor, AIR 1946 PC 45; Bhuboni Sahu v. King, AIR 1949 PC 257; Ram Charan & Ors. v. The

State of U.P., AIR 1968 SC 1270; and Dhanabal & Anr. v. State of Tamil Nadu, AIR 1980 SC 628).â€​

In the aforesaid judgment Hon’ble Supreme Court has considered the earlier judgments of the Apex Court and Privy counsel in which it has

been held that the statement recorded under Section 164 of Cr.P.C. is not substantive piece of evidence.

The Apex Court has also held that the statement recorded under Section 164 of Cr.P.C. by a witness cannot be treated as substantive piece of

evidence and evidence given in a Court under oath has great sanctity that is why the same is called as substantive evidence. Because the witness

resiled from their statements recorded under Section 164 of Cr.P.C., in our opinion, the statements cannot be used as substantive piece of evidence

and the trial Court has committed an error of law in relying on the statements of Ramratan (PW-1) and Manisha (PW-2) recorded under Section 164

of Cr.P.C.Â

The Trial Court has further relied on the FIR (Ex.P/1). However, Ramratan (PW-1) denied the contents of FIR and he deposed that he

informed the police about the death of the deceased but did not inform the police as to who had killed the deceased.

The Apex Court in case of Chandra Bhal Vs. State of UP reported in (1971) 3 SCC 983 has held as under in regard to evidentiary value of the

FIR :

“No doubt the first information report being on early record and the first version of the alleged criminal activity conveyed to the police officer with

the object of putting the police in motion in order to investigate, is an important and valuable document. But it has also to be remembered that it is not a

substantive piece of evidence and it can only be used for the purpose of corroborating or contradicting its maker. The Statute does not provide that it

must be made by an eye witness to the commission of the alleged offence or that it must give full and precise details. It is, therefore, not intended to

be treated as the last word of the prosecution in the matter. It merely marks the beginning of the investigation into the reported offence and its value

must accordingly depend on the circumstances of each case including the nature of the crime, the position of the informant and the opportunity he had

of witnessing the whole or part of the commission of the alleged offence. Now, if this be the legal position then the contents of the first information

report cannot serve as the sole and conclusive test for determining the question whether there should be one or several trials of the several offences

disclosed in the report. The matter has to be determined on the basis of the result of the investigation in the light of the provisions of the Code of

Criminal Procedure.â€​

When Ramratan (PW-1) has denied the contents of the FIR, only on the basis of evidence of R.D.Tripathi (PW-18) Investigating Officer who

recorded the FIR (Ex. P/1) and Merg (Ex. P/2), it cannot be held that the contents of the FIR are proved. The Hon’ble Apex Court has

considered the evidentiary value of police official in case of Rohtash Kumar Vs. State of Haryana (supra) and held as under :

“The term witness, means a person who is capable of providing information by way of deposing as regards relevant facts, via an oral statement, or

a statement in writing, made or given in Court, or otherwise. In Pradeep Narayan Madgaonkar & Ors. v. State of Maharashtra, AIR 1995 SC 1930,

this Court examined the issue of the requirement of the examination of an independent witness, and whether the evidence of a police witness requires

corroboration. The Court herein held, that the same must be subject to strict scrutiny. However, the evidence of police officials cannot be discarded

merely on the ground that they belonged to the police force, and are either interested in the investigating or the prosecuting agency. However, as far

as possible the corroboration of their evidence on material particulars, should be sought.â€​

In the aforesaid case, the Hon’ble Supreme Court has held that as far as possible, the corroboration of the evidence of a police officer on

material particulars be sought for.

Ramratan Singh (PW-1) denied lodging the FIR.

Hence, merely on the basis of evidence of Laxmikant (PW-16) ASI and R.D.Tripathi (PW-18) Investigating Officer, the contents and facts are not

sufficient to held the appellant guilty for commission on an offence of murder beyond reasonable doubt.

It is alleged that the axe was seized from the appellant, however Vinit Shrivastav (PW-8) and Mishrilal Shrivastav (PW-9) denied the fact that any

seizure was made before them. Mishrilal (PW-9) had specifically deposed that Ramratan (PW-1) had gone to the police station with an axe. Â

There is another piece of evidence in regard to recovery of clothes of appellant. R.D.Tripathi (PW-18) Investigating Officer in paragraph 14

deposed that the pant of the appellant, banyan and underwear were seized. Those seized articles were not sent for examination to FSL, it is clear

from the letter Ex. P/34 dated 05.07.2007. No answer has been placed by the prosecution to this aspect as to why these articles were not sent to

the FSL.

It is unfortunate that the witnesses have turned hostile. The appellant was inside the room however, there were other persons also in the same

room of the house when the deceased was murdered. In our opinion, the Trial Court has committed an error in holding the appellant guilty for the

offence beyond reasonable doubt on the basis of the statements of Ramratan (PW-1) and Manisha (PW-2) recorded under Section 164 of Cr.P.C.

and FIR Ex. P/1. In our considered opinion, the evidence produced by the prosecution is not sufficient to hold the appellant guilty for commission of

offence punishable under Section 302 of the Indian Penal Code.Â

Consequently, the appeal filed by the appellant is hereby allowed. The judgment and sentence passed by the Trial Court is hereby set aside.Â

He is acquitted from the charge under Section 302 of Indian Penal Code. Appellant is in jail. He shall be released forthwith if not required in any

other case.Â

Copy of this judgment be sent to the Court below for information and compliance along with its record.