Pradesh Vs. Badri Yadav & Anr
 Insc 164 (31 March 2006)
& Dr. Ar. Lakshmanan H.K.Sema,J
appeal filed by the State of Madhya Pradesh is against the judgment and order
of the High Court dated 12.5.2000 passed in Criminal Appeal No.699 of 1996,
whereby the High Court recorded acquittal of respondents-accused herein, by
reversing the judgment of the Trial Court convicting the respondent and others
under Section 302/34 IPC and sentenced them RI for life and a fine of Rs.200/-
and in default to undergo RI for a period of one month.
Briefly stated the facts are as
16.9.1989, the respondents herein were loitering around 'kothi
building' where the courts are situated in order to find out the deceased Lal Mohd. They were all sitting
in an auto rickshaw which was hired by them. Finally, they succeeded in
locating the deceased Lal Mohd.
who was sitting in a tempo. While the tempo stopped
for permitting a lady to alight from it and proceeded ahead, the
accused-respondents obstructed the said tempo and they pulled out the deceased Lal Mohd. from
the said tempo and assaulted him with swords and knives causing number of
injuries, which resulted in his death. The matter was investigated and after a
prima facie case being established the charge was laid before the Additional
Sessions Judge. The learned Sessions Judge after threadbare discussion of the
evidence of prosecution witnesses including the two eye witnesses PW-8 Mohd.Amin and PW-9 Zakir Ali who
later juxtaposed as DW-1 and DW-2, came to the conclusion that an offence
punishable under Section 302 read with 34 was found well established against
the accused and convicted as aforesaid.
the Trial Court four accused had faced the trial namely accused Badri Yadav, Raju,
Mahesh Bhat and Mohan Jayaswal.
Accused Mohan Jayaswal died during the trial. Accused
Mahesh Bhat was acquitted by the Trial Court on
benefit of doubt. Accused Raju died during the pendency of this appeal and, therefore, appeal qua him
only the respondent-accused Badri Yadav
is before us.
High Court by the impugned order relied upon the testimony of DW-1 Mohd. Amin and DW-2 Zakir Ali who were examined as eye witnesses as PW-8 and
PW-9 and acquitted the respondents by reversing the well merited judgment of
the Trial Court convicting the respondents.
facts of this case illustrate a disquieting feature as to how the High Court
has committed a grave miscarriage of justice in recording the acquittal of the
respondents. Few dates would suffice. PW-8 Mohd.Amin
and P.W.9 Zakir Ali's statements were recorded under
Section 164 Cr.P.C. before the Magistrate on
21.9.1989. On 18.12.1990 their statements on oath were recorded before the
Trial Court as prosecution witnesses.
appears that PW-8 and PW-9 filed an affidavit on 16.8.1994 that the statements
made before the Magistrate by them were under pressure, tutored by police of Madhav Nagar and due to their
pressure the statements were recorded. It was further stated that the policemen
threatened them that if they did not make statements as tutored by the police
they would implicate PW-8 and PW-9 in this case and when the statements were
recorded before the Magistrate the policemen were standing outside and
therefore the statements were made as tutored by the police and due to threat
and coercion. By this affidavit they have completely resiled
from their previous statements recorded before the court as prosecution
witnesses. They further stated that they did not see any marpeet
and who had inflicted injuries. They further denied that they
did not see any incident at all nor any person.
the affidavit appeared to be dated 16.8.1994, it was actually signed by both on
17.8.1994. In the affidavit of Zakir Ali PW-9 dated
17.8.1994 it is also stated that his statement was recorded on 18.12.1990
before the Sessions Judge. The affidavit further stated that the statement
recorded on 18.12.1990 was made due to threat and under the pressure of police.
It is further stated that the applicant was going for Haj
and according to the religious rites, he wanted to bid good-bye to all the sins
he had committed. It is further stated that the statements he made before the
court of Magistrate and before the Sessions Judge were false. It is unfortunate
that the said application was allowed by the Sessions Judge on 9.2.1995 and
they were allowed to be examined as defence witnesses
juxtaposed as DW-1 and DW-2. The Sessions Judge, however, on examining the
credibility of PW-8 and PW-9 juxtaposed as DW-1 and DW- 2 rejected it as not
trustworthy, in our view rightly.
Sessions Judge came to a finding that the statements of DW-1 and DW-2 were
recorded under Section 164 Cr.P.C. before the
Magistrate on 21.9.1989 as PW-8 and PW-9. Thereafter, their statements were
recorded before the Sessions Judge on 18.12.1990 and after four years on
17.7.1995 they gave a different version resiling from
their previous statements on grounds of threat, coercion and being tutored by
the police. It will be noticed that in between 18.12.1990 the day on which
their statements were recorded before the Sessions Judge as PWs
and their statements as defence witnesses which were
recorded on 17.7.1995 as DWs, no complaint whatsoever
was made by DW-1 and DW-2 to any Court or to any authority that they gave
statements on 18.12.1990 due to coercion, threat or being tutored by the
police. This itself could have been a sufficient
circumstance to disbelieve the subsequent statements as DW-1 and DW-2 as held
by the Sessions Judge, in our view, rightly.
High Court, while reversing the order of conviction recorded by the Sessions
Judge gave the following reasons in support of the reversal in paragraph 16 as
under: - "This case has focused
a very strange phenomenon before us. The witnesses were examined initially as
trial was not completed within short span of time. It lingered on for about
five years. After lapse of five years these witnesses stated in favour of the accused and against the prosecution. The
question arises whether the prosecutor in charge of the prosecution was
vigilant enough to see that all prosecution witnesses are examined within
reasonable time span, so as to see that the case is completed within that time
span. The question arises whether the court was vigilant enough to see that the
trial is conducted day by day system. The both answers would be negative.
the Sessions Trial was not conducted day by day. The prosecution witnesses were
not produced by making them to remain present for day by day trial. The
adjournments were sought by defence and they were
also granted liberally. All this resulted in strange situation where those two
witnesses stated something as prosecution witnesses and after lapse of
sufficient time, they appeared before the court and gave the evidence as defence as witnesses and stated against the
prosecution." In our view, the reasoning recorded by the High Court,
itself would have been sufficient to reject the testimony of DW-1 and DW-2.
However, having said so the High Court reversed the order of conviction and
recorded the order of acquittal, which is perverse.
this case the application under Section 311 Cr.P.C.
for recalling PW-8 and PW-9 and re-examining them was rejected by the Court on
2.9.1994. Therefore, the question with regard to recalling PW-8 and PW-9 and
re- examining them stood closed. There is no provision in the Code of Criminal
Procedure that by filing affidavit the witnesses examined as PWs (PW-8 and PW-9 in this case) could be juxtaposed as
DW-1 and DW2- and be examined as defence witnesses on
behalf of the accused.
Mr.A.T.M. Rangaramanujam, learned senior
counsel for the respondent, however, contended that the accused is entitled to
enter upon defence and adduce evidence in support of
his case as provided under Section 233 Cr.P.C.
particularly Sub-Section (3) of Section 233. Sub-Section (3) of Section 233
"(3) If the accused applies for the issue
of any process for compelling the attendance of any witness or the production
of any document or thing, the Judge shall issue such process unless he
considers, for reasons to be recorded, that such application should be refused
on the ground that it is made for the purpose of vexation or delay or for
defeating the ends of justice." (emphasis supplied)
Section 233 itself deals with entering upon defence
by the accused. The application for recalling and re-examining persons already
examined, as provided under Section 311 Cr.P.C., was
already rejected. The power to summon any person as a witness or recall and
re-examine any person already examined is the discretionary power of the Court
in case such evidence appears to it to be essential for a just decision of the
case. Under Section 233 Cr.P.C. the accused can enter
upon defence and he can apply for the issue of any
process for compelling the attendance of any witness in his defence.
The provisions of sub-section (3) of Section 233 cannot be understood as
compelling the attendance of any prosecution witness examined, cross-examined
and discharged to be juxtaposed as DWs. In the
present case PW-8 and PW-9 were juxtaposed as DW-1 and DW-2. This situation is
not one what was contemplated by sub-section 3 of Section 233 Cr.P.C.
such frivolous and vexatious petitions are filed, a Judge is not powerless. He
should have used his discretionary power and should have refused relief on the
ground that it is made for the purpose of vexation or delay or for defeating
the ends of justice. In the present case, the witnesses were examined by the
prosecution as eyewitnesses on 18.12.1990, cross-examined and discharged.
Thereafter, an application under Section 311 Cr.P.C.
was rejected. They were recalled purportedly in exercise of power under sub-
section (3) of Section 233 Cr.P.C. and examined as
DW-1 and DW-2 on behalf of the accused on 17.7.1995. This was clearly for the
purpose of defeating the ends of justice, which is not permissible under the
In the case of Yakub Ismail Bhai Patel vs. State of
Gujarat, (2004) 12 SCC
229 in which one of us Dr.AR. Lakshmanan,J. was the author of the judgment, in somewhat
similar case to the facts of the present case it was held that once a witness
is examined as a prosecution witness, he cannot be allowed to perjure himself
by resiling from the testimony given in court on oath
by filing affidavit stating that whatever he had deposed before court as PW was
not true and was done so at the instance of the police. In that case the
evidence of PW-1 was relied upon by the Trial Court and also by the High Court.
He was examined by the prosecution as an eyewitness. He also identified the
appellants and the co- accused in the Court. After a long lapse of time he
filed an affidavit stating that whatever he had stated before the Court was not
true and had done so at the instance of the police. In those facts and
circumstances this Court in paragraphs 38 and 39 at SCC pp.240-241 held as
under: - "38. Significantly this witness, later on filed an affidavit,
wherein he had sworn to the fact that whatever he had deposed before Court as
PW 1 was not true and it was so done at the instance of the police".
The averments in the affidavit are rightly rejected by the High Court and also
the Sessions Court. Once the witness is examined as a prosecution witness, he
cannot be allowed to perjure himself by resiling from
the testimony given in Court on oath. It is pertinent to note that during the
intervening period between giving of evidence as PW 1 and filing of affidavit
in court later, he was in jail in a narcotic case and that the accused persons
were also fellow inmates there." In the present case, both PW-8 and PW-9
are related to the deceased. PW-8 is the elder brother of the deceased and PW-9
is the friend of the deceased. Being the close relative and friend of the
deceased there is no rhyme and reason to depose falsely against the accused and
allowing the real culprit to escape unpunished. On 21.9.1989, their statements
were recorded under Section 164 Cr.P.C. before the
Magistrate. On 18.12.1990, their depositions were recorded before the Sessions
Judge. In both the statements they have stated that they were eyewitnesses and
witnessed the occurrence. Both of them have stated that they saw the accused
assaulting the deceased with knives and swords.
were subjected to lengthy cross-examination but nothing could be elicited to
discredit the statement-in-chief. Their examination as defence
witnesses was recorded on 17.7.1995 when they resiled
completely from the previous statements as prosecution witnesses. It,
therefore, clearly appears that the subsequent statements as defence witnesses were concocted well an after thought.
They were either won over or were under threat or intimidation from the
accused. No reasonable person, properly instructed in law, would have acted
upon such statements.
contention of counsel for the respondent is being noted only to be rejected. It
is contended that accused Mahesh who suffered disclosure statement was
acquitted by the Trial Court on benefit of doubt and, therefore, the same
yardstick should have been applied to the case of the respondent herein. The
Trial Court acquitted the accused Mahesh by giving him the benefit of doubt
because his name does not figure in the F.I.R. One Gopal
Yadav was mentioned in the F.I.R. as an accused.
Whether the Gopal Yadav
mentioned in the F.I.R. was the same Mahesh was not explained by the
prosecution and this was the reason for the acquittal of Mahesh. The name of
the respondent herein was named in the F.I.R. as one of the assailants and he
was also identified by PW-8 and PW-9.
facie PW-8 Mohd. Amin and
PW-9 Zakir Ali in their subsequent affidavits made a
false statement which they believed to be false or did not believe to be true.
Hence, they are liable for perjury for giving false evidence punishable under Section
193 IPC. We direct the Vth Additional Sessions Judge,
Ujjain, Madhya Pradesh, to file a
complaint under Section 193 of the Indian Penal Code and initiate proceedings
against Mohd.Amin PW-8 and Zakir
Ali PW-9 juxtaposed as DW-1 and DW-2 and pass necessary orders in accordance
facts and circumstances aforesaid, the High Court was not justified in
reversing the conviction recorded by the Trial Court. The order of the High
Court dated 12.5.2000 is accordingly set aside and the order of the Trial Court
convicting the respondent under Section 302/34 IPC is restored. The appeal is
allowed. The respondent is on bail.
bail bond and surety stands cancelled. He is directed to be taken back into
custody forthwith to serve out the remaining part of the sentence. Compliance report within one month.