In the Supreme Court of India Criminal appellate jurisdiction Criminal appeal no. 374 of 2020 Arising out of slp (crl) no. 9252 of 2018 Petitioner Parvat Singh Respondent The State of Madhya Pradesh Date of Judgement 2nd March, 2020 Bench Hon’ble Justice M. R. Shah & Ashok Bhushan
Facts of the case:
According to the case of the prosecution, the informant Mullo Bai was sleeping in the cattle shed. At that time, the appellants and one another accused named Bal Kishan, Diman Singh while sharing common object caused murder of Bal Kishan Bhagwan Singh. According to the informant there was a dispute going on between the parties. As per the case of the prosecution and according to the informant, when she was sleeping in the cattle shed in the house, around 4-5 a.m. In the morning due to the barking of the dogs she woke up and in the light of torch, she saw that in the cattle shed, accused Bal Kishan with an axe and other original accused herein with sticks/lathis in their hands were standing. Thereafter, accused Bal Kishan entered in the cattle shed and with an intention to kill her son, Bal Kishan gave a blow of axe. She shouted and the other members of the family and nearby house came there and all the accused ran away from the spot. Investigation was carried out by one Mahesh Sharma, Investigating Officer. He recorded the statements of concerned witnesses. I.O. also obtained the relevant evidences including the medical evidence and also the postmortem report. That all the accused were charge-sheeted for the offences punishable under Section 302 r/w Section 149 and Section 450 of IPC. The case was committed to the Court of Sessions. All the accused pleaded not guilty; therefore, all the accused came to be tried by the Learned Trial Court for the aforesaid offences. The prosecution examined in all 12 witnesses including Mullo Bai –informant mother of the deceased who was the sole eyewitness. At this stage, it is required to be noted that mother of the deceased Mullo Bai was the sole eyewitness. It is also required to be noted that the axe used in the commission of the offence by the original accused was recovered at the instance of the accused himself. Ratan Singh and Pahalwan Singh –did not support the prosecution and therefore, they were declared as hostile by the prosecution. In support of the defense two witnesses were examined by the defence to bring home the theory of alibi in respect of original accused Bal kishan.
Decision of the Trial Court:
The prosecution examined the 12 witnesses including Mulla bai, mother of the deceased who is the sole eye witness. Also, defense examined the two witnesses in his favour. The Trial Court after perusing all the evidences, convicted all the accused for the offences under Section 302 r/w Section 149 of IPC.
Decision of the High Court:
All the accused dissatisfied by impugned judgment of the trial court filed an appeal before the High Court of Madhya Pradesh at Gwalior. The Hon’ble High Court dismissed the appeal.
Issues Raised:
a. Whether the High Court has erred in dismissing the appeal made by the accused?
b. Whether the High Court has not properly acknowledged the facts of the case?
c. Whether the High Court blindly relied on the order/judgement passed by the Trial Court?
Arguments Advanced:
Contentions raised by the appellant:
a. Shri A.K. Srivastava, learned Senior Advocate appearing on behalf of all the appellants contented that the High Court has erred in confirming the judgement of the Trial Court and dismissing the appeal which is made by all the accused.
b. It is further submitted by the learned advocate that the High Court has not properly acknowledged the facts of the case in respect of Mullo Bai (PW8) which is full of contradictions.
c. It is further contented that the High Court has not properly acknowledged the fact that the incident took place in the dark night so it was not possible for Mullo Bai to recognize/identify the accused. Therefore, identifying the appellants in the torch light and chimney light by Mullo Bai (PW8) is materially contradicting. It is also submitted that testimony of Mulla Bai suffers from material omissions and improvements. Also, it was for the first time in the Court that she has stated that accused Santosh and Rakesh caught hold the deceased and that Bal Kishan inflicted axe injury over his neck.
d. It is further submitted that in fact there is no recovery of any torch from the place of incident.
e. It is further contented by the learned advocate that the High Court has erred in observing that the appellants were having lathis by relying upon the statements made by the Mullo Bai under section 161 of Cr.P.C which is not admissible in evidence.
f. It is also contended that there is no material evidence with respect to common object and conspiracy on the part of the accused persons to kill the deceased, even after that the appellants have been convicted for the offences under Section 302 IPC with the aid of Section 149 IPC.
g. It is further said by the learned counsel that the convictions of the accused are completely based on the deposition of PW8 which is full of contradictions and it is not supported by any other independent witness.
Contentions raised by the respondent:
a. Ms. Madhurima Mridul, Learned Advocate appearing on behalf of the respondent vehemently opposed the present appeal made by the appellants.
b. It is submitted that there is a concurrent finding of facts recorded by both the Courts below while convicting the appellants for the offences under Section 302 r/w 149 IPC.
c. Furthermore, it is submitted that the findings recorded by the Learned Trial Court and the High Court are on appreciation of evidence and therefore the same are not required to be interfered with by this Court in exercise of powers under Article 136 of the Constitution of India.
d. It is further stated that though the conviction of the appellants is solely based upon the deposition of Mullo Bai, who is the sole eye witness there is no rule that there cannot be any conviction relying upon the sole witness, therefore, both the courts are justified in convicting the accused under Section 302 IPC with the aid of Section 149 IPC relying upon the deposition/evidence of Mullo Bai.
e. It is submitted that PW8 is a reliable and trustworthy witness. It is also submitted that her presence on the spot is natural as the incident has taken place in her house and near the place where she was sleeping.
Judgment of the Supreme Court:
Justices Ashok Bhushan and MR Shah while setting aside the judgement of conviction given by High Court observed that a statement recorded under Section 161 Cr.P.C. can be used only to prove the contradictions and/or omissions. In her statement under section 161 Cr.P.C she stated that she has identified all the accused in torch light and by voice. Also, the accused no.1 was having an axe and other accused were having lathis. She stated that the accused no.1 blows on the neck of the deceased thereafter all the five accused ran away from behind the cattle shed/house.
But in her deposition, she stated that accused Santosh and Rakesh caught hold of deceased. In her deposition, she has also stated that there was a chimney light in the cattle shed. She has also stated that the accused ran away from the nearby agricultural field of sugarcane. Hence, The Hon’ble Supreme Court while referring the evidence on record, the bench noted that there are material contradictions, omissions and improvements in the statement of the prosecution witnesses recorded under Section 161 Cr.P.C. as well as deposition before the Court qua the appellants. Therefore, as such the appellants are entitled to be given benefit of doubt. Therefore, the Hon’ble bench said: “As per the settled preposition of law a statement recorded under Section 161 Cr.P.C. is inadmissible in evidence and cannot be relied upon or used to convict the accused. As per the settled proposition of law, the statement recorded under Section 161 Cr.P.C. can be used only to prove the contradictions and/or omissions. Therefore, as such, the High Court has erred in relying upon the statement of PW8 recorded under Section 161 Cr.P.C. while observing that the appellants were having the lathis. The bench therefore set aside the conviction observing that the benefit of material contradictions, omissions and improvements must go in favour of the accused.”
Provisions Involved in the case:
SECTION 302 OF INDIAN PENAL CODE, 1860: “Punishment for murder”
SECTION 149 OF INDIAN PENAL CODE, 1860: “Every member of unlawful assembly guilty of offence committed in prosecution of common object.”
SECTION 161 OF THE CODE OF CRIMINAL PROCEDURE, 1973: “Examination of witnesses by police.”
Edited by Sree Ramya
Approved & Published – Sakshi Raje
