Hon''ble Mr. I.S. Shrivastava, J.@mdashThis appeal has been preferred being aggrieved by the judgment dated 9-11-1996 passed by the Court of Shri S.C. Vyas, Sessions Judge, Shajapur, Distt. Shajapur in Sessions Trial No. 234/1994, by which the appellant Ratan Singh has been convicted u/s 304 Part 2 of the IPC and sentenced to rigorous imprisonment of 5 years with fine of Rs. 2,000/- and in default of payment of fine to undergo further rigorous imprisonment of 6 months.
2. According to the prosecution case, on 15-8-1994, at about 6 p.m., Ratansingh came in the Village circumstnees to take his sisters for the festival of Rakhi. He said to his brother-in-law Mansingh that he has to return with his sisters just now, then Dayaram said that he should take them in the morning because at present night is going on, thereafter Ratansingh abused him in anger and said that who is he to interfere, if sisters are not to be sent then his brother-in-law will tell him. Dayaram said that who is he to intervene then Ratansingh in anger abused him then Mansingh and Soma caught both the hands of Dayaram and Ratansingh assaulted by knife in his chest. Thereafter, Mansingh and Soma assaulted him by fists and they all ran away. Madansingh chased them but could not succeed. After returning he saw that Dayaram was dead. Ramnarayan (P.W. 2), Devbai (P.W. 3), Devisingh (P.W. 4) and Madansingh saw the incident, hence on report by Madansingh the above offence was registered at Crime No. 45/94 at Police Station, Sundersi, District Shajapur for the offence u/s 302/34 of the IPC. Challan was filed against Ratansingh, Soma and Mansingh but Soma and Mansingh were acquitted by the Trial Court and appellant Ratansingh has been convicted as mentioned above.
3. Hence, this appeal has been filed.
4. It has been argued by the Counsel for the appellant that the appellant has been falsely implicated in this case. There were serious omissions and contradictions in the evidence. The FIR was not proved. Madansingh (P.W. 5) in his statement deposed that FIR was lodged by Ramdayal. He also did not confirm the A to A and B to B part and C to C part of the FIR about the involvement of Soma and Mansingh. In this way the FIR was suspicious and not proved. The memo (Exh. P-13) and seizure memo (Exh. P-12) was not proved by the evidence of the independent witnesses. The seized knife was not produced in the evidence. As per prosecution story, the incident took place at Otla of Soma but this place has not been confirmed by the spot map (Exh. P-4) because the dead body was lying in the open place and not at the Otla and Soma. There was discrepant evidence in this respect. As per the time of death Dr. D.S. Mehta (P.W. 9) deposed that the time of death was within 34 hours from the time of post-mortem. The incident took place on 15-8-1994 at 6.00 p.m. and the post-mortem was conducted after 20 hours at 2.00 p.m. on 16-8-1994, hence the whole of the incident has become unbelievable.
Under these circumstances, the prosecution evidence was not reliable and the appellant was not liable to be convicted. Hence, the appeal be allowed.
5. It has been argued by the Counsel for the respondent that the case was proved on the basis of the evidence produced before the Trial Court. The appellant has been rightly convicted. Hence, the appeal being devoid of merit be dismissed accordingly.
6. Considered the circumstances and record of the Trial Court produced. As the MR is concerned, the FIR (Exh. P-3) was lodged by Madansingh (P.W. 5). Madansingh in his statement deposed that he went to lodge the report with Ramnarayan and Ganpat Chaukidar and FIR (Exh. P-3) bears his signatures. In cross-examination he has deposed that at the time of writing of the report he was in depression and it was lodged by Ramdayal and he also dictated at that time. Further in cross-examination he has deposed that he went to report with Ramdayal and out of them report was lodged by Ramdayal. In this way, the fact that Madansingh lodged the report, has not been confirmed by him. For the portion "B to B" and "C to C" of the FIR, that Mansingh and Soma caught the hands of the deceased Dayaram and Ratansingh inflicted a knife blow and then Soma and Mansingh assaulted by fists 3-4 times and all the three persons rushed away. Madansingh has not stated anything in his examination-in-chief but was declared hostile on this point and in cross-examination he deposed about "B to B" and "C to C" part of the FIR that he does not remember that whether it was dictated by him or not. In this way he has not confirmed the part "B to B" and "C to C" of the FIR, therefore, the FIR was not confirmed and it was doubtful that who lodged the FIR. It was not proved that FIR (Exh. P-3) was lodged by Madan Singh.
7. According to the statement of Anil Sharma (P.W. 10) ASI, Ratansingh gave him information vide memo (Exh. P-13) that the knife has been hidden in the heap of rubbish and thereafter on the indication of Ratansingh the knife was seized vide seizure memo (Exh. P-12) from the heap of rubbish. In this respect, only Bhagwansingh (P.W. 6), the independent witness was examined. The other independent witness Hindusingh was not examined. According to the statement of Bhagwansingh, Ratansingh was arrested by police and at that time on inquiry about the knife he presented the knife. He has not confirmed the fact that knife was seized from the heap of rubbish. In this way, the memo (Exh. P-13) and seizure memo (Exh. P-12) was not proved by the independent witnesses. The seized knife was not produced during the evidence and article was not marked on it, therefore, the seizure of knife was not legally proved. As also in the case of
8. As regards the spot map (Exh. P-4), at place "A" in the open field in between the houses of villagers the dead body of Dayaram was found at place "A". According to the statement of Devbai (P.W. 3) wife of deceased, at the time of incident Ratansingh, Mansingh, Soma, Madansingh, Ramnarayan, Bhagwansingh, Hindusingh, Ladsingh and her husband deceased Dayaram all were sitting on the Otla of Soma. Devisingh (P.W. 4) has deposed that before the house of Dayaram at the Otla of Soma, he, Ramnarayan, Madan, Dayaram, Soma and Mansingh were sitting and Ratansingh was also there and he was saying that he just want to take his sisters, at that time Madansingh (P.W. 5) also deposed that he was sitting at the Otla of Chander with Devisingh, Ramdayal, Modsingh, Soma and Mansingh and Ratansingh was also standing there when the incident took place.
9. In this way, except Madansingh (P.W. 5) all the witnesses have supported the fact that they all were sitting on the Otla of Soma where the incident took place. There is no evidence that Dayaram ran from that place and fell down in the open field where as per the spot map (Exh. P-4) dead body of Dayaram was found which is 10 paces away from the house of Soma and 15 paces away from the house of Dayaram. Madansingh (P.W. 5) in this respect has deposed that at the Otla of Chander they all were sitting where the incident took place. In the spot map (Exh. P-4) the Otla of Chander has not been shown but at the item No. 13 and 14 house of Shankar has been shown which is not the place of incident. If the word Chander is taken to be the word of Shankar then the statement of Madansingh is not in conformity with the evidence of Devbai (P.W. 3) and Devisingh (P.W. 4). Hence, by the evidence of the above witnesses it has not been proved that the incident took place at place "A" an open field where the dead body was found. As per the prosecution story, since deceased Dayaram was assaulted at the Otla of Soma, hence the dead body must have been there. These circumstances are also suspicious.
10. As regard the time of death is concerned the incident took place at 6.00 p.m. of 15-8-1994. The FIR was lodged at 12.00 p.m. on the same day. The post-mortem was conducted on 16-8-1994, at 2.00 p.m., as per the statement of Dr. D.S. Mehta (P.W. 9). Hence, after 20 hours of the death of deceased Dayaram the post-mortem was conducted but Dr. D.S. Mehta has mentioned in the post-mortem report (Exh. P-15) the time of death within 34 hours. In his statement he has deposed that the duration of death was 34 hours. In cross-examination he replied that it is wrong to say that in post-mortem report by over writing he has made word 24 as 34. This shows that the time bf death was 34 hours from the post-mortem. This fact does not confirm the time of incident. This discrepancy goes to the root of the case hence whole of the prosecution story becomes unreliable.
11. Therefore, on the basis of the above discussion I come to the conclusion that the case was not proved on the basis of the prosecution evidence. The time of death was not confirmed by the post-mortem report. The place of incidence was doubtful. The FIR was not proved and it was pot proved that Madansingh lodged it. The seizure of knife was not proved. Therefore the appellant was not liable to be convicted.
12. Hence, the appeal is allowed and the appellant Ratansingh is acquitted from the charges u/s 304 Part 2 of the IPC, his bail bonds are discharged, fine if deposited be returned to him.
Hence, ordered accordingly.
