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2009 Supreme(MP) 1370
IN THE HIGH COURT OF MADHYA PRADESH
S. L. KOCHAR, MANJUSHA P. NAMJOSHI, JJ.
GOVERDHAN s/o GANPAT – Appellant
Versus
STATE OF M. P. – Respondent
Cri. Appeal No. 115 of 2005
Decided On : 23-04-2009
Advocate Appeared:
For the Appellant : V. S. Chouhan
For the Respondent: Girish Desai
The judgment underscores the significance of credible and admissible evidence in establishing guilt beyond reasonable doubt.
Headnote:
Indian Penal Code - Conviction under sections 395 and 396 - Sections 141, 142, 154, 162 of the Indian Evidence Act discussed
Fact of the Case:
The appellant challenged his conviction under sections 395 and 396 of the Indian Penal Code based on a dacoity incident. The prosecution failed to establish the appellant's involvement beyond reasonable doubt.
Finding of the Court:
The court found that leading questions were impermissibly asked, witness statements were unreliable, and contradictions were not adequately addressed. The conviction and sentences of the appellant were set aside.
Issues: The issues revolved around the admissibility and reliability of witness statements, the use of leading questions, and the failure to establish the appellant's guilt beyond reasonable doubt.
Ratio Decidendi: The court emphasized the importance of reliable and admissible evidence, highlighting the provisions of sections 141, 142, 154, and 162 of the Indian Evidence Act.
Final Decision: The appeal was allowed, and the conviction and sentences of the appellant were set aside. The appellant was directed to be released from jail unless required in connection with any other criminal case.
JUDGMENT :
S. L. KOCHAR, J.
1. The appellant has, by this appeal under section 374 of the Criminal Procedure Code challenged his conviction under sections 395 and 396 of the Indian Penal Code and sentence of rigorous imprisonment for seven years and imprisonment for life with fine of Rs. 500/-, in default of payment of fine to suffer additional R.I. for six months, respectively vide judgment dated 27-12-2004 passed by the learned Additional Sessions Judge, Agar District Shajapur in Sessions Trial No. 161/2002.
2. According to the prosecution case on 27-11-2001 in the night at 10.00 PM the complainant Kanhaiyalal resident of village Semalkhedi, after taking night meals with his family was sleeping inside his house. In the night at 1.30 AM, he overheard the clamour of miscreants. They were saying that "Looto, Apne Baap Ka Maal Hai". On hearing this, he went to his second old house where other family members were sleeping and saw eight to ten miscreants standing out-side the house and firing gun. They were having farsi and lathi also. When he reached near his old house, he was assaulted by the miscreants. On cry being raised by his family members, none of the villagers reached at their house for their rescue. The miscreants were wearing pants and shirts. There was darkness and they were having torches. The miscreants were speaking local language. Inside the house, four persons entered. After commission of dacoity, the miscreants fled away. Kanhaiyalal found his son Shiv Narayan dead on the terrace because of gun shot injury and other members sustained injuries on their persons. He lodged the report Ex.P/2 on 27-11-2001 in the morning at 4.15 AM about commission of dacoity in his house and taking away of golden, silver ornaments, cash amount and other articles by the miscreants. In total, five persons were arrested by the police, but nothing incriminating was recovered at their instance. They were also not put for identification by the witnesses and inhabitants of the house in test identification parade. On completion of investigation, charge-sheet was filed against five accused persons for the offences punishable under sections 396, 395 read with section 397 and 120-B of the Indian Penal Code.
3. The accused persons denied the charges, therefore, they were put to trial and the learned trial Court, while acquitting all other four accused persons, convicted and sentenced the appellants as mentioned hereinabove.
4. Having heard learned counsel for the appellant and after perusing the entire record as also the impugned judgment, we are of the opinion that the conviction of the appellant is not legally permissible on the basis of the evidence of PW-4 Gopal and PW-8 Jugal.
5. It is the admitted position that the appellant is resident of same village where the complainant and witnesses were residing and incident has taken place. PW-4 Gopal, in his examination-in-chief up to para 4, while describing the entire incident, did not name the appellant. Thereafter, a leading question was put by the Prosecutor that 'what act was committed by appellant Goverdhan'. This question was objected by the learned defence counsel, but the learned trial Court overruled this objection.
6. Learned trial Court should have not permitted the learned Prosecutor to ask leading question in examination-in-chief which is prohibited by the provisions under section 142 of the Indian Evidence Act. For convenience, sections 141 and 142 of the Indian Evidence Act are reproduced hereunder :-
"141. Leading questions.- Any question suggesting the answer which the person putting it wishes or expects to receive, is called a leading question."
"142. When they must not be asked.- Leading questions must not, if objected to by the adverse party, be asked in an examination-if-chief, or in a re-examination, except with the permission of the Court."
7. Leading question can be permitted as per provision under section 154 of the aforesaid Act. Under this provision the Court has discretion to a
