1. Aggrieved by the judgment passed on 10.8.2002 by Third Additional Sessions Judge (Fast Track Court), Betul, in Sessions Trial No.28/99, this appeal has been preferred. By the impugned judgment, appellant was convicted f o r the offence of Section 304-A IPC and was sentenced to rigorous imprisonment for four months and compensation amount of Rs.1,00,000/-.
2. The prosecution story may be summed up as, Deepak, aged 18 years, had gone to village Charur along with his cattle on 18.9.1998 but did not return home; he was searched in village Charur and in nearby villages and also among the relatives but he was not traced. On 23.9.1998 his father Madhavrao lodged a missing person's report in Police Station, Multai; on the basis of information collected, the appellant and his companion Sudhakar were taken into custody and interrogated; appellant revealed the whereabouts of the body of missing person Deepak and on this information, the body of Deepak was recovered from the well of Parvatrao Baraskar; there were three stones tied around the legs of deceased with wire and cord; the water of well was also sealed in a bottle; the body was sent for post-mortem; it was in decomposed state but there were two injuries on the legs which were of the nature of burn injuries; it was observed by the doctor that the death was caused between a period of five to ten days from the date of post-mortem examination; it was also opined by him that the burn injuries found on the legs of deceased could have been caused by electric shock; live and naked electricity wires were recovered from the agriculture field of appellant on the basis of information given by his companion Sudhakar; the spot map was prepared; it was revealed in investigation that the appellant had erected live electricity wires in his agriculture field for protection of crop and for trapping the animals; the evidence collected also revealed that victim Deepak came in touch with these live wires and was electrocuted; his body was removed and thrown in the well by appellant and his companion; the Khasra of the agricultural land belonging to appellant was obtained from Patwari and after concluding the investigation, the charge sheet was filed in the court against appellant and his companion Sudhakar; they both were tried for the offence of Sections 304 Part II and 201 IPC. Sudhakar was acquitted by the trial court while appellant was convicted for a lesser offence of Section 304 IPC; he was acquitted of the offence of Section 201 IPC.
3 . The grounds raised in this criminal appeal are that the learned trial Judge erred in holding the appellant guilty for the reason that the conviction was based on the basis of contradictory testimony of prosecution witnesses, which was full of omissions and improvements; the conviction was solely based on the fact that deceased was last seen near the field of appellant but that was not an evidence of clinching nature as the body was recovered after a lapse of many days; further the sentence imposed was too severe and uncalled for. It is, therefore, prayed that the appellant should be acquitted and the appeal should be allowed.
4. Learned counsel for the State has opposed the appeal by submitting that from the prosecution evidence, guilt of appellant is clearly proved and, therefore, the trial court did not commit any error in finding the appellant guilty for the aforesaid offence. A prayer for rejection of the appeal was accordingly made.
5. Heard learned counsel for the parties, perused the judgment and the record of the court below.
6 . The record of trial court reveals that prosecution had examined as many as 18 witnesses in this case, among whom Madhavrao (P.W.4) is the father of deceased, who allegedly had the missing person's report given to the police but documents exhibited in evidence do not include any such report. According to prosecution, Deepak went missing on 18.9.1998 and his body was recovered on 23.9.1998. No document prior to the date of 24.9.1998 has been placed as evidence by the prosecution.
7 . It has been claimed by the father of deceased, namely Madhavrao (P.W.4) that he questioned Bhaurao on the whereabouts of Deepak as on last time Bhaurao had accompanied Deepak and it is claimed by Madhavrao that Bhaurao informed him about the electric shock suffered by Deepak in the agriculture field of appellant Govinda. According to Madhavrao (P.W.4), he reached to the agriculture field of appellant Govinda on receiving this information but he did not find Deepak although there was a fresh pit in the field upon which he got suspicious and reported the matter to the police. Incidentally, there is no report or complaint made to the police in which a suspicion was cast upon the appellant by the father of deceased or any other person.
8. Madhavrao (P.W.4) has claimed that he was informed by Bhaurao four days after Deepak went missing and during these four days, he had lodged the missing person's report but again it needs to be mentioned that no missing person's report is available on record. Further, the statements made by Madhavrao (P.W.4) have not been corroborated by Bhaurao (P.W.11). According to this witness, on the date when Deepak went missing, he was with Deepak and had reached to the agriculture field of appellant Govinda but from this spot, they were separated and Deepak had gone ahead of him. According to this witness, he did not see Deepak thereafter nor found his body lying anywhere. He has denied to have information about the death of Deepak or sharing any such information either with father of deceased, namely Madhavrao (P.W.4) or with any other person. Thus, the statements of Madhavrao (P.W.4) have not been corroborated by the statements of Bhaurao (P.W.11) from whom he allegedly obtained the information.
9 . The prosecution has relied upon the testimony of Neelesh (P.W.1) who has claimed that an extra-judicial confession was made to him by the companion of appellant Govinda, namely Sudhakar, who faced the trial along with the appellant. According to this witness, he came to know about the incident on 18.9.1998 and had conversation with the appellant on this incident but no explanation is given by the prosecution for not lodging the report immediately and/or for the exceptional delay of six days in registration of crime.
10. Gyandev (P.W.6) is another witness examined by prosecution who was allegedly informed by Bhaurao about the death of Deepak in the agriculture filed belonging to appellant. He has claimed that he had gone to Multai police station along with Madhavrao (P.W.4), the father of deceased, for reporting the matter. The statements of this witness recorded before the trial court reveal that this information was given to him by Bhaurao in private but again Bhaurao (P.W.11) has denied of giving any such information to Gyandev or to anyone else and he had also denied to have seen the body of deceased Deepak in the field of appellant. In the light of these circumstances of facts, the statements of Gyandev (P.W.6) are merely hearsay and have not been corroborated by the source from whom he allegedly heard the story. It has also been claimed by Gyandev (P.W.6) that Sudhakar and Neelesh were seen running away from the filed of Govinda by Manjura, wife of Bhaurao, but Manjura was not examined as witness by the prosecution. Therefore, the statements of Gyandev are of the category of hearsay evidence, hence they do not have any credibility to hold the appellant guilty.
11. Atmaram (P.W.2) was examined to prove the notice given by police (Ex.P-1), inquest report (Ex.P-2), memorandum of statement given by Sudhakar (Ex.P-3) and seizure of wires (Ex.P-4). He is a hostile witness, hence nothing much can be inferred from his statements. Khushal (P.W.3) is the witness to the spot map (Ex.P-5). Doma is a witness who had signed the documents of Exs.P 2, P-3 and P-4. He has also admitted his signatures on documents of Exs.P-5 to P-8 but he is a hostile witness who despite being a close relative of deceased has not been consistent on his statement. Bhaiya (P.W.7) has merely stated that he was informed by Madhavrao that his son Deepak was missing and in front of this witness, the dead body of Deepak was fetched from the well. Chandrashekhar (P.W.8) is a witness to the documents of Exs.P-1, P-2 and P-6 to P-8. The statements of this witness is hit by Section 27 of the Indian Evidence Act so far they relate to the information given by appellant on throwing the dead body in the well. Premlal (P.W.9) is a seizure witness in whose presence viscera and bone of deceased were seized. Thus, the statements of these witnesses neither independently nor cumulatively bring home the fact of guilt against the appellant.
12. Sahib Rao (P.W.10) has claimed that 2-4 days after Deepak went missing, he came to know that Deepak died of electrocution in the agriculture field of Govinda but he has not disclosed the source from whom he received this information. According to him, there was rumor in the village about the death of Deepak in the agriculture field belonging to appellant on account of electrocution but that alone is not sufficient to prove the prosecution case. Patwari Umesh (P.W.12) has only established the fact that the appellant is the owner of agriculture field bearing Survey No.92/2 but it was not the place from where the body of Deepak was recovered.
13. Shyamrao Bagarde (P.W.13) had the FIR written in Police Station, Multai, on the basis of Dehati Nalishi. That Dehati Nalishi is Ex.P-10 and the FIR is Ex.P-11. The missing person's report was allegedly written by Head Constable Shiv Baksh (P.W.16) on 23.9.1998 in Police Station, Multai, but that report is not produced in evidence. S. N. Dwivedi (P.W.18) was the officer who inquired on the basis of missing person's report. According to him, a suspicion was cast upon appellant Govind by the father of deceased, therefore appellant was interrogated. According to this witness, on the basis of information recovered from appellant, which was written down as memorandum in Ex.P-6, the body of deceased Deepak was recovered from the well belonging to Parvat. It is revealed by this witness that the well was around half a kilometer away from the field of appellant. This witness has also claimed that in the presence of witnesses, the body of Deepak was recovered from the well with big stones tied to the legs of the body.The statements of S. N. Dwivedi (P.W.18) may bring to the conclusion that on the basis of information given by appellant, the body of deceased was recovered from the well of another person named Parvat and there were three big stones tied to the body. The question arises whether this evidence is sufficient to prove the guilt of appellant.
14. Admittedly, the well from where the body of deceased was recovered was not within the precincts of the agriculture field of appellant. This well was about a half a kilometer away from the field of appellant. The well was an open place and it is not proved that the knowledge of body of Deepak lying in that well was exclusively with the appellant. Recovery of dead body from an open place is itself not a very inculpatory evidence, therefore prosecution was under a liability to prove its case by corroborative evidence of credible nature.
15. The statements of S. N. Dwivedi (P.W.18) reveal that on the basis of information given by the companion of appellant, namely Sudhakar, wire was seized from the agriculture field of appellant and this seizure memo is Ex.P-4. The seizure memo reveals that the length of wire recovered from Sudhakar were not measured, therefore it cannot be ascertained whether the recovered wire were multiple in numbers or was it just a single wire and exactly what was the length of recovered wire. The seizure was made on 24.9.1998.
16. Veer Singh Baghel (P.W.14) was the Sub-Engineer posted in the Electricity Department. According to him, upon receiving the information about death on account of electrocution he went to the spot and inspected it. He has claimed that there were naked electricity wires installed in two sides of the sugarcane field and they were attached to LT line which was around 125 feet away. According to this witness, the motor pump for irrigation belonging to Govinda was also installed there. According to this witness, appellant Govinda had informed him that he used to pass current in the wires during night to hunt the animals and at around 10:00 a.m. on 18.9.1998 the servant of Govinda, namely Sudhakar, went to the field to switch off the current when he saw deceased Deepak in the field. This witness has also claimed that the wires were removed before he reached on the spot. According to him, this inspection was done on 24.9.1998 and the report of Ex.P-12 was prepared on 27.9.1998. The statements of this witness reveal that he did not find any live wire or any electric wire which were allegedly installed and caused the death of deceased Deepak.
17. Although the seizure of electricity wire under Ex.P-4 is also of the same date i.e. 24.9.1998 but strangely no opinion of this witness was obtained whether the seized wires were of the length which could have been used to erect the boundary of live wires and connect it directly to the LT line. Further, seizure memo does not reveal whether these wires were in stalled state or were lying somewhere. In the absence of measurement of seized wires, it cannot be claimed that the same were being used for erection of illegal electric installation. Both Veer Singh Baghel (P.W.14) and S. N. Dwivedi (P.W.18) have accordingly failed to establish that the wires recovered from the field of appellant at the behest of information given by Sudhakar were used on the date of incident to flow electric current through them and were the cause of death of Deepak.
18. Prosecution has also relied upon the testimony of Dr. P. K. Tiwari (P.W.17) who conducted the post-mortem examination. In the post-mortem report, marked as Ex.P-13, there is no opinion given about the cause of death. The diatom test report was also not produced in evidence. According to this witness, a query was made to him through letter, marked as Ex.P-14A, in answer to which he has opined that the black marks found on the legs of deceased could have been caused by the live electric wires. He has made it clear in cross-examination that the period of this injury was not ascertained by him. Thus, the testimony of Dr. P. K. Tiwari (P.W.17) who conducted the postmortem does not conclusively prove that the cause of death was electrocution. Besides these two burn marks on the legs, he did not find any other medical evidence to support the claim that the death of Deepak was caused by electrocution.
19. On the basis of above discussion, it appears that the conviction of appellant is based purely on suspicion and there is neither any direct evidence or any circumstantial evidence available on record to show involvement of appellant in the death of Deepak. The conviction of appellant, therefore, under the offence of Section 304 IPC is set aside and the appellant is acquitted.
20. The compensation amount, if any, paid by the appellant shall be recovered and repaid to him.
21. Let a copy of this judgment be sent to the trial court along with its record for information and necessary compliance.
