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IN THE HIGH COURT OF MADHYA PRADESH
Dinesh Kumar Paliwal, J.
Siroman Singh v. The State of M.P.
Criminal Appeal No. 2769 of 1998 (Jabalpur): against the judgment dated 18.11.1998 passed by the Second Additional Sessions Judge, Tikamgarh in Sessions Trial No. 123/1997;
Decided on15.3.2022
(1) Criminal P. C., 1973 -- Ss. 154 and 161 -- Evidence Act, 1872 -- S. 32 -- applicability of S. 32 of Evidence Act -- contents of FIR and statement u/s. 161 of CrPC -- not substantive evidence -- statement made therein cannot be considered as evidence unless it falls within purview of S. 32 of Evidence Act -- deceased did not die because of injuries caused by appellant/accused -- S. 32 of Evidence Act not applicable -- contents of FIR and statement recorded u/s. 161 of CrPC cannot be looked into because appellant/accused had no opportunity to cross examine this witness. (2007) CrLJ 1329 relied on.
[Paras 11 & 12
(2) Criminal P. C., 1973 -- S. 161 -- statement can be put to limited use to impeach credibility of witness -- under no circumstances, statement given by witness to police during investigation could be used as substantive evidence. (1980) 2 SCC 390, (1990) 4 SCC 692, AIR 1959 SC 1012 and AIR 2004 SC 2943 followed. [Para 17
(3) FIR -- not substantive piece of evidence -- prosecution cannot base its case solely on FIR -- can only be viewed as previous statement for either corroborating its maker or for contradicting him. [Para 19
(4) Evidence Act, 1872 -- Ss. 32 and 33 -- dying declaration -- to make statement of dead person admissible u/s. 32, statement must relate to cause of his/her death or to any circumstance resulting in his/her death -- deceased died natural death -- FIR and statement u/s. 161 of CrPC cannot be treated as dying declaration or relevant u/s 33. [Para 20
(5) Penal Code, 1860 -- S. 307 -- Criminal P. C., 1973 -- Ss. 154 and 161 -- Evidence Act, 1872 -- Ss. 32 and 33 -- dying declaration -- contents of FIR and statement u/s. 161 of CrPC -- absolute lack of substantive evidence in support of prosecution story that appellant/accused ever attempted to kill his wife -- no eyewitness produced -- complainant wife died natural death -- trial Court fell in error in treating FIR and statement u/s. 161 of CrPC as dying declaration and substantive evidence -- in absence of substantive evidence, truth of prosecution story becomes doubtful -- appellant/accused acquitted. [Paras 22 to 24
¼1½ naM izfØ;k lafgrk] 1973 && /kkjk 154 rFkk 161 && lk{; vf/kfu;e] 1872 && /kkjk 32 && lk{; vf/kfu;e dh /kkjk 32 dk ykxw gksuk && izFke bfÙkyk fjiksVZ dh varoZLrq rFkk naM izfØ;k lafgrk dh /kkjk 161 ds v/khu dFku && lkjHkwr lk{; ugha && mlesa fd;k x;k dFku lk{; ugha ekuk tk ldrk tc rd fd og lk{; vf/kfu;e dh /kkjk 32 dh ifjf/k esa ugha vk, && e`rdk dh e`R;q vihykFkhZ@vfHk;qDr }kjk dkfjr {kfr;ksa ls ugha gqbZ && lk{; vf/kfu;e dh /kkjk 32 ykxw ugha gksxh && izFke bfÙkyk fjiksVZ dh varoZLrq rFkk naM izfØ;k lafgrk dh /kkjk 161 ds v/khu vfHkfyf[kr dFku ij fopkj ugha fd;k tk ldrk D;ksafd vihykFkhZ@vfHk;qDr dks bl lk{kh dh izfrijh{kk dk volj izkIr ugha gqvkA ¼2007½ lhvkj ,y ts 1329 voyafcrA ¼iSjk 10
¼2½ naM izfØ;k lafgrk] 1973 && /kkjk 161 && dFku dk lhfer mi;ksx lk{kh dh fo'oluh;rk vf/kf{kIr djus ds fy, fd;k tk ldrk gS && fdlh Hkh ifjfLFkfr esa] vUos"k.k ds nkSjku lk{kh }kjk iqfyl dks fn, x, dFku dk mi;ksx lkjHkwr lk{; dh Hkk¡fr ugha fd;k tk ldrk FkkA ¼1980½2 ,l lh lh 390] ¼1990½4 ,l lh lh 692] , vkb vkj 1959 ,l lh 1012 rFkk , vkb vkj 2004 ,l lh 2943 vuqlfjrA ¼iSjk 17
¼3½ izFke bfÙkyk fjiksVZ && lkjHkwr lk{; ugha && vfHk;kstu viuk i{kdFku ,dek= izFke bfÙkyk fjiksVZ ij vk/kkfjr ugha dj ldrk && izFke bfÙkyk fjiksVZ djus okys O;fDr dh laiqf"V ds fy, vFkok mlds [kaMu ds fy, iwoZrj dFku dh Hkk¡fr gh ns[kk tk ldrk gSA ¼iSjk 19
¼4½ lk{; vf/kfu;e] 1872 && /kkjk 32 rFkk 33 && e`R;qdkfyd dFku && e`r O;fDr dk dFku naM izfØ;k lafgrk dh /kkjk 32 ds v/khu xzká cukus ds fy,] dFku mldh e`R;q ds dkj.k ls vFkok mldh e`R;q esa ifj.kr gksus okyh fdlh ifjfLFkfr ls lacaf/kr gksuk vko';d && e`rdk dh izkÑfrd e`R;q gqbZ && izFke bfÙkyk fjiksVZ rFkk naM izfØ;k lafgrk dh /kkjk 161 ds v/khu dFku dks e`R;qdkfyd dFku vFkok naM izfØ;k lafgrk dh /kkjk 33 ds v/khu lqlaxr ugha ekuk tk ldrkA ¼iSjk 20
¼5½ naM lafgrk] 1860 && /kkjk 307 && naM izfØ;k lafgrk] 1973 && /kkjk 154 rFkk 161 && lk{; vf/kfu;e] 1872 && /kkjk 32 rFkk 33 && e`R;qdkfyd dFku
&& izFke bfÙkyk fjiksVZ dh varoZLrq rFkk naM izfØ;k lafgrk dh /kkjk 161 ds vèkhu dFku && vfHk;kstui{k dh bl dgkuh ds leFkZu esa lkjHkwr lk{; dk furkar vHkko fd vihykFkhZ@vfHk;qDr us dHkh viuh iRuh dk o/k djus dh ps"Vk dh
&& dksbZ izR;{kn'khZ lk{kh izLrqr ugha && f'kdk;rdrkZ iRuh dh izkÑfrd e`R;q gqbZ && fopkj.k U;k;ky; us izFke bfÙkyk fjiksVZ rFkk naM izfØ;k lafgrk dh /kkjk 161 ds v/khu dFku dks e`R;qdkfyd dFku rFkk lkjHkwr lk{; ekuus dh xyrh dh
&& lkjHkwr lk{; ds vHkko esa vfHk;kstui{k dh dgkuh dh lR;rk lansgkLin gks tkrh gS && vihykFkhZ@vfHk;qDr nks"keqDrA ¼iSjk 22 ls 24
JUDGMENT
1. This criminal appeal under section 374(2) of Cr.P.C. is preferred by the accused/appellant being aggrieved by the judgment dated 18.11.1998 passed by Second Additional Sessions Judge, Tikamgarh, in S.T. No. 123/1997 (State of MP v. Siromansingh). By the impugned judgment, the trial Judge convicted the appellant for commission of offence under section 307 of IPC and sentenced to undergo R.I. for seven years with fine of Rs. 200/-, in default of payment of fine he shall further undergo simple imprisonment for one month.
2. The prosecution case in brief is that on 25.6.1997, Ram Payari aged about 22 years wife of appellant/ accused Siroman Kushwaha, R/o Village Simtari Kachhi Mohalla, Police Station- Bhander, District-Gwalior lodged an FIR in Police Station-Orchha stating that Siroman Kushwaha is her husband, today he brought her to Orchha for Darshan of Raja Ram temple. Between 11 a.m. to 12 O’clock of day, her husband took her at a secluded place near monuments situated on bank of Betwa River. He tried to press her neck by tying towel and hit a stone on her forehead. She sustained injuries on her left eyebrow and forehead. Blood is oozing from her forehead and nose. She tried to scream but became unconscious. Her husband Siroman Singh with an intention to kill her has caused injuries to her and has fled away by leaving her. At around 4:00 p.m. after regaining consciousness, when she was sitting on the stairs of monuments, other persons saw her and informed the police. FIR (Ex. P-3) was registered at FIR No. 79/1997 of Police Station Orchha for commission of offence under section 307 of IPC by Police Inspector J.P. Uike (PW-4). She was sent for medical examination to Medical College Jhansi. Dr. Prem Bihari Manocha (PW-5) examined her and found two lacerated wounds on her forehead, one contusion over nose and one over lips and prepared MLC report Ex. P-13. After investigation, Police Orchha filed charge sheet against accused Siroman Singh before the Magistrate First Class, Orchha. Learned JMFC in its turn committed case to the Court of Session, which was transferred to Second Additional Session Judge, Tikamgarh for trial.
3. Appellant/accused abjured his guilt and claimed to be tried.
4. In order to bring home the charge against the appellant, the prosecution has examined five witnesses and proved documents Ex. P-1 to P-13 on record. The appellant/accused examined two witnesses in his defence.
5. The learned trial Court after considering the oral and documentary evidence on record convicted the appellant Siroman Singh for commission of offence under section 307 of IPC and sentenced him as stated herein above.
6. Learned counsel for the appellant has assailed the impugned judgment and has urged that prosecution has utterly failed to prove the charges for commission of offence under section 307 of IPC against the appellant/accused as neither injured Ram Payari was examined nor any other eye witness was examined before trial Court in support of the prosecution case. The learned trial Judge erroneously treating the FIR (Ex.P-3) and police statement (Ex. P-9) recorded under section 161 of Cr.P.C. as dying declaration, has convicted and sentenced the appellant/accused. It is a case of no evidence. The findings recorded by the learned trial Judge in impugned judgment treating FIR (Ex.P-3) and Police Statement (Ex.P-9)as dying declaration are against the settled proposition of law. In want of substantive evidence, findings of conviction as recorded by learned trial Judge is not only erroneous but also bad in law. Learned counsel has therefore, prayed that impugned judgment of conviction and sentence be set-aside and appeal be allowed.
7. On the other hand, learned Panel Lawyer for the State has supported the findings recorded by the trial Court and has submitted that conviction recorded by learned trial Judge are in accordance with law. There is no merit in the appeal; He has prayed that this appeal being without merit be dismi
(1) Doctrine of judicial notice is an exception to general rules of evidence applicable for proving any fact by adducing evidence in Court of law – Except in rarest of rare cases, judicial notice of ....
Murder – Non-examination of Doctor who conducted autopsy on dead body of deceased and who prepared post-mortem report is not fatal to case of prosecution.
The prosecution must provide sufficient evidence linking the accused to the crime; statements of a deceased cannot be used to implicate others in unrelated deaths.
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