Criminal Trial; State of Madhya Pradesh Vs. Mansingh [13-08-2003] SC

Criminal P.C. 1973 – S.164 – Penal Code, 1860 – Ss. 302/34 – Murder – Injured eyewitnesses – Non mention of name of one of the witnesses in FIR – Non examination of independent witness – Prosecution’s failure to produce statement recorded by Tehsildar – Non-mention of knife recovered from the spot, in FIR – Change of time of lodging FIR -Conviction by Trial Court – Acquittal by High Court – Non-mention of assailants’ name in requisition memo of injury – Held, such omission does not render prosecution case brittle.

(2003) 10 SCC 414 : 2003 (2) Suppl. SCR 460 : 2003 (6) SCALE 429 : JT 2003 (1) Suppl. 252 : 2003 (3) Cri.C.C. 559 : 2003 (6) Supreme 202 : 2003 (4) SLT 927 : 2003 (8) SRJ 309 : 2003 (3) Crimes 381 : 2003 (3) CCR 158 : 2003 (3) JCC 1339 : 2003 (4) RecentCR 232 : 2003 (6) CRJ 642 : 2003 (2) ALT Cri 368

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

Coram: DORAISWAMY RAJU, ARIJIT PASAYAT JJ.

DATE OF JUDGMENT: 13/08/2003

Criminal Appeal No. 825 of 1996

From the Judgment and Order dated 5.11.1992 of the Madhya Pradesh High Court in Crl. A. No. 397 of 1985.

STATE OF MADHYA PRADESH Vs. MAN SINGH AND ORS.

Siddhartha Dave and Ms. Vibha Datta Makhija for the Appellant, Sushil Kumar Jain, H.D. Thanvi, Anil Vyas, Alok Bachawat, Ms. Anjali Doshi and Ms. Ruchi Kohli for the Respondent.

JUDGMENT

Arijit Pasayat, J.

1. Questioning acquittal of the respondents by the impugned judgment of the Madhya Pradesh High Court, Jabalpur Bench at Indore, by which the conviction and sentence imposed by the learned Additional Sessions Judge, Ratlam, were set aside, this appeal has been filed by the State of Madhya Pradesh.

2. Four persons i.e. respondents herein faced trial for allegedly causing homicidal death of Dharamchand (hereinafter referred to as ‘the deceased’) on 6.8.1984.

3. Background facts as highlighted by the prosecution version sans unnecessary details are as follows:

On the fateful day at about 9.30 a.m. deceased accompanied by Mansingh (PW 4) and Gulabsingh (PW 7) was going from his village Talod to Alote. The accused persons were hiding behind bushes on the road near village Gharola. They were armed with lathies and farsies. When the deceased and the aforesaid two persons reached near the Khakhra, the respondents surrounded them and started attacking the deceased with weapons with which they were armed. His nose was cut. PWs. 4 and 7 tried to intervene, but they were also attacked by the accused persons as a result of which they also received injuries. The two witnesses rushed to the police station where PW 4 lodged the FIR (Exhibit P-10). The deceased in injured condition was taken to the hospital, and later he succumbed to the injuries. Post-mortem was conducted and large number of injuries were found on his body. During investigation the alleged weapons of the assailants were seized. After investigation charge sheet was placed. Appellants were charged for commission of offences punishable under

Section 302 read with Section 34 and Section 324 read with Section 34 of Indian Penal Code, 1860

(for short ‘IPC’). During trial accused persons pleaded innocence. They were acquitted for offence punishable under Section 324 read with Section 34 IPC, but were convicted for offence under Section 302 read with Section 34 IPC each, to undergo life imprisonment. Accused Bhanwar Singh was convicted for offence punishable under Section 323IPC, accused Bheru Singh also similar convicted, and each of them were sentenced to undergo six months RI for the offence.

4. At this juncture it is to be noted that ten witnesses were examined to further the prosecution version. Apart from PWs. 4 and 7 who claimed to be eye witnesses, one Jaswant Singh (PW 8) was also examined to substantiate the claim that an oral dying declaration was made by the deceased before the said witness implicating the accused persons to be his assailants. The Trial Court accepted the prosecution version and convicted the accused-appellants and sentenced them as noted supra. The matter was carried in appeal by the accused persons. Several circumstances were highlighted to attach vulnerability to the prosecution version. One of the circumstances was alleged manipulation of the FIR to indicate as if the same was lodged at 10.25 a.m. The evidence of PWs. 4, 7 and 8 were also subjected to criticism on the ground that they did not inspire confidence. It was pointed out that the evidence of PWs 4 and 7 were recorded under

Section 164 of the code of Criminal Procedure, 1973

(for short ‘the Cr.P.C.’) and that was a highly suspicious circumstance. It was also submitted that though during trial, there was mention about use of knife in the FIR, the statements under Sections 161 and 164 of the Code, there was no mention about them. Though knife was stated to have been found at the spot, thee was no investigation directed to find out as to how it came there at the spot of occurrence. A plea was raised by learned counsel for the accused that Section 34 has no application to the fact of this case. With reference to the statement of the witnesses it is pointed out that the accused persons did not come together, and first two persons came followed by two others. The High Court accepted stand of the accused persons and recorded the following findings:-

(1) There was manipulation about the time of occurrence in Exhibit P-10.

(2) Undisputedly knife was recovered from the spot when investigation was conducted. As to how it happened to be at the place of occurrence no mention is there.

(3) Though the accused persons were named in the FIR they were not arrested till 24.12.1984.

(4) The name of PW 8 did not find place in the FIR.

(5) There was no explanation as to the need for recording the statement of injured witnesses PWs 4 and 7.

(6) There was no proof of compliance with provisions of Section 157 of the Code.

(7) The names of the accused persons did not find place in the requisition for injury reports.

5. In view of the afore-noted alleged discrepancies, the accused persons were held to be not guilty and the order of acquittal was passed by allowing the appeal.

6. In support of the appeal, learned counsel for the appellant-State submitted that the circumstances relied by the High Court to direct acquittal are clearly not supportable in law. The factual scenario has not been considered in the proper perspective and, therefore, the order of the High Court deserves to be set aside and that of the Trial Court restored.

7. In response, learned counsel for the accused persons submitted that the High Court has analysed the legal and factual positions in the proper perspective, and the deficiencies in the prosecution version have been clearly highlighted. It was submitted that there was manipulation in the FIR about the time of recording it, and the same was not recorded at the police station. Genesis of the prosecution case is doubtful. An independent witness Hira Lal who, according to PW 8, was present, has not been examined. Non-mention of the names of the accused in the requisition shows that the names of the assailants were not known. PWs 4 and 7 are not reliable witnesses. Presence of PW 8 is doubtful and there is no explanation as to why the statement made by the deceased before Tashildar, as deposed by some witnesses, has not been brought on record. Alternatively, it was submitted that the case is not one which is covered by Section 302 read with Section 34 IPC and at the most the case cannot travel beyond Section 324/325 or in the worst case under Section 304 Part II IPC.

8. In our considered opinion, the High Court judgment is indefensible for more reasons than one. It has not been indicated as to why and how the High Court came to the conclusion about non-compliance with the requirements of Section 157 Cr.P.C. It was only stated that there was no proof of compliance of Section 157 Cr.P.C. It has not been indicated as to what is the requirement and what proof was required to be adduced. Similarly importance does not appear to have been attached to the evidence of injured witnesses PWs 4 and 7, on the ground that their statements were recorded under Section 164 Cr.P.C. IN a catena of decisions this Court has held that evidence of witnesses cannot be discarded merely because their statements were recorded under Section 164 of the code (See: Balak Ram and Anr. v. State of U.P. ).