Supreme Court has set aside the murder conviction wherein it was found that the High Court had relied upon the statement given under section 161 CrPC. The case is titled as Parvat Singh &Ors. vs State of Madhya Pradesh. “A statement recorded under Section 161 Cr.P.C. can be used only to prove the contradictions and/or omissions.”
Facts of 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 the 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. At this stage, it is also required to be note 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 defence two witnesses were examined by the defence to bring home the theory of alibi in respect of original accused BalKishan.
Submissions on the behalf of both the parties
Shri A.K. Srivastava, learned Senior Advocate appearing on behalf of all the appellants – original accused has vehemently submitted that in the facts and circumstances of the case, the High Court has materially erred in dismissing the appeal and confirming the judgment and order of conviction passed by the Learned Trial Court and convicting them for the offences under Section 302 r/w Section 149 IPC. It is further submitted by Learned Senior Advocate appearing on behalf of the appellants that the High Court has not properly appreciated the fact that it was a black night when the incident took place, there was a dark, and it was not possible for Mullo Bai to recognize/identify the accused the appellants herein. It is further submitted that as such there was material contradiction in the deposition of the insofar as identifying/recognizing the appellants in the light of torch or from the chimney light. It is further submitted by Learned Senior Advocate appearing on behalf of the appellants that the testimony of Mullo Bai suffers from material omissions, which amounts to contradictions as well as material improvements in her statement in Court as regards place of incident where she was sleeping. It is submitted that 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.
Learned Advocate appearing on behalf of the State that there are 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. 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. furthermore, Learned Counsel appearing on behalf of the State stated that in the present case though the conviction of the appellants is solely based upon the deposition of Mullo Bai, however there is no rule that there cannot be any conviction relying upon the sole witness, more particularly an eye-witness. It is submitted that PW8 is a reliable and trustworthy witness. It is 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. It is submitted that as she is the sole eyewitness to the incident, both the courts are justified in convicting the accused relying upon the deposition/evidence of Mullo Bai.
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 374 OF 2020
[Arising out of SLP (Crl) No. 9252 of 2018]
Parvat Singh &Ors. .. Appellant(s)
State of Madhya Pradesh … Respondent(s)
As observed hereinabove in her statement under Section 161 Cr.P.C., she has never stated that accused Santosh and Rakesh caught hold of Bal Kishan, but stated that the appellants herein told to run away as other persons have woken. In the facts and circumstances of the case, there are material contradictions, omissions and/or improvements so far as the appellants herein – original accused are concerned and therefore we are of the opinion that it is not safe to convict the appellants on the evidence of the sole witness of. The benefit of material contradictions, omissions and improvements must go in favour of the appellants herein. Therefore, as such the appellants are entitled to be given benefit of doubt. As the submission on behalf of the State that relying upon the deposition of the original accused was convicted and his conviction has been confirmed up to this Court and therefore to dismiss the present appeal qua other accused is concerned from the evidence on record and having observed hereinabove the case of the appellants original accused is distinguishable on facts. There are material contradictions and omissions so far as the appellants – original accused are concerned. So far as the original accused no 1 is concerned, PW8 is consistent in her statement under Section 161 Cr.P.C. as well as in her deposition before the Court. There was a recovery of axe used in commission of the offence by accused at the instance of accused. Under the circumstances, the case of the original accused is clearly distinguishable to that of original accused.
The impugned judgment and order of conviction passed by the learned Trial Court and confirmed by the High Court convicting the appellants for the offence under Section 302 r/w Section 149 of the IPC are hereby quashed and set aside and the appellants herein – original accused are acquitted of the charges for which they were tried. The appellants herein accused be released forthwith, if not required in any other case.
…………..J. (ASHOK BHUSHAN)
…………………..J. (M. R. SHAH)
New Delhi, March 2, 2020.
Edited by Pragash Boopal
Approved & Published – Sakshi Raje