Vinod Chaturvedi Vs. State of Madhya
Pradesh [1984] INSC 52 (5 March 1984)
MISRA RANGNATH MISRA RANGNATH FAZALALI, SYED
MURTAZA
CITATION: 1984 AIR 911 1984 SCR (3) 93 1984
SCC (2) 350 1984 SCALE (1)437
ACT:
Appeal against acquittal under section 386 of
the Criminal Procedure Code, 1973-Conviction by reversal of the verdict of
acquittal relying on the evidence of the same witnesses, who are close
relatives of the deceased and who in the earlier trial categorically implicated
some other five persons-Appreciation of evidence-Whether the High Court was
correct in relying on the said eye witnesses-Evidence Act, section
3-Admissibility of Ex. P. 9, the two letters as corroborative evidence-Penal
Code, sections 148, 300, 362 and 367-Conviction Under Applicability of section
148 when the state counsel conceded that the charge u/s 148 did not relate to
charge of abduction, but to murder taking place later,
HEADNOTE:
On the basis of the investigation made on a
First Information Report that one Brindaban the deceased son of PW 1 was
kidnapped in a jeep from village Budha to the village Rampura where he was done
to death, five persons were put on trial in Sessions Trial No. 107 of 1973. but
they were acquitted by Judgment dated 29.1.1974. The trial court held that the
investigation was defective and the real accused had not been brought on trial.
After a lapse of three years in 1977 a fresh investigation was undertaken and
it resulted in the prosecution of the present appellants in the Court of
Sessions as killers of Brindaban. Prosecution examined seven eye-witnesses. The
Trial Court assessed the evidence in a fair way and was not prepared to rely on
it and therefore directed acquittal of the appellants. In the State appeal
against acquittal, the High Court heavily relying upon two documents-The first
being Ex.P. 1 a letter sent by PW 1 Sunderlal to the Superintendent of Police
on 29.4.1973 and the second being Ex. P 9 a confidential letter of the
Superintendent of police to the Deputy Inspector General of the Department-found
support for the prosecution case as corroborative evidence with the ocular
evidence, and reversed the acquittal, by convicting the appellants under
section 148 and 367 IPC. Hence the appeals by special leave.
Allowing the appeals, the Court
HELD: 1. When in the first trial on the
charge of murder and abduction the prosecution had alleged that the deceased
had been murdered by a set of five persons different from the present
appellants and let in evidence of three eye-witnesses being PWs. 1, 3 and 24 of
the Second Trial and who are pamittedly close relations of deceased to the
effect that those five accused 94 persons and no others including the
appellants were responsible for the death of the deceased, acceptance of the
evidence of the very same three eye witnesses in the second trial conducted
after a lapse of three years implicating the present appellants as murderers
will be highly improper. The fact that these alleged eye-witnesses were
prepared to implicate the five persons who were acquitted on the earlier
occasion and the present appellants on the subsequent occasions in a serious
charge like murder is indicative of the fact that no credence can be given to
the evidence of these witnesses and they were willing to lend their oath to any
story that the prosecution advanced. Therefore, in an appeal against acquittal
the High Court in whose hands there has been a reversal of the acquittal ought
not to have found the remaining evidence to be good basis for conviction of the
appellants.[96H; 97A-D]
2. The High Court fell into error in relying
on the letter of PW 1 Sunderlal to the Superintendent of Police dated 29.4.1973
which is subsequent to the commencement of the investigation of the basis on
the First Information Report. Such a letter written by PW 1 who stood in the
place of the prosecutor would not at all be admissible in evidence. [97E-F]
Kali Ram v. State of Himachal Pradesh. [1974] 1 SCR 722; followed.
3. To rely on the contents of the letter Ex.
P. 9 written by the Superintendent of police to his superior officer, without
examining the writer of the letter and without affording an opportunity to the
defence to cross- examine the writer, is totally misconceived. The document was
not available to be relied upon for any purpose and the High Court in the
instant case was wrong in seeking support from it by way of corroboration of
the oral evidence. [97G- H]
4. In view of the express words in the
definition of "abduction" in Section 362 of the I.P.C., the offence
of abduction against the accused has not been fully proved, since the name of
Vinod the leader of the party has not been mentioned at all during the
investigation and even according to the majority of witnesses, on the
persuation of the accused (appellants) he went inside his house and came
properly dressed and to accompany the group to village Rampura. [98C-D]
5. The appellants were not liable to be
convicted under section 367 of the Penal Code because from the non acceptance
by the High Court of the story of murder of the deceased by the appellants and
non recording a finding that the grievous hurt leading to death was caused by
them, it will be clear that the act of picking of the deceased from his village
was unconnected with what happened later. [98F- G]
6. The charge under section 148 I.P.C. has
been conceded by the counsel for the State to relate to what followed at
Rampura and is not connected with the accusation of abduction. The common
object as stated by the prosecution would not be available for sustaining the
conviction under section 148 I.P.C. in that background. [98G-H] 95
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal Nos. 192-193 of 1983 Appeals by Special leave from the Judgment and
Order dated the 31st January, 1983 of the Madhya Pradesh High Court in Criminal
Appeal No. 732 of 1980.
A.N. Mulla and S.K. Gambhir, for the
Appellant in C.A. 192 of 1983.
Rajendar Singh and A.K. Mahajan for the
Appellants in CA. 193 of 1983.
A.K. Sanghi for the Respondent in both the
Appeals.
The Judgment of the Court was delivered by
RANGANATH MISRA, J. These appeals by special leave are directed against the
judgment of the High Court of Madhya Pradesh reversing the order of acquittal
passed by the learned trial Judge. Criminal Appeal No. 192 of 1983 is by Vinod
Chaturvedi while the other is by five of the co- accused. All of them had been
charged for offences punishable under Sections 148, 364 and 302/149 of the
Indian Penal Code and were acquitted by the Additional Sessions Judge. The
State of Madhya Pradesh carried an appeal being Criminal Appeal No. 732 of 1980
to the High Court assailing the acquittal and the High Court allowed the appeal
and while maintaining the acquittal under Section 302/149 of the Indian Penal
Code, convicted the appellants for offences punishable under Sections 148 and
367 of the Penal Code and directed each of them to be sentenced 3 years
rigorous imprisonment for each of the offences with a further direction that
the two sentences would run concurrently.
According to the prosecution on 27th April,
1973, around 4 p.m. the appellants kidnapped Brindaban, the deceased son of
P.W. 1, from village Budha and took him in a jeep to Rampura about one
kilometer away on the pretext that a pending dispute between Brindaban and some
villagers of Rampura would be settled amicably. It was further alleged that
later in the evening Brindaban was done to death by being given several blows
by blunt and deadly weapons pursuant to the common object of the appellants of
killing him. The dead body was brought to village Budha on the following day.
Investigation as taken up on the 96 basis of the first information report and
as a result thereof five persons were put on trial in session trial No. 107 of
1973 but they were acquitted by the learned trial Judge by judgment dated 29.1.74.
The trial court came to hold that the investigation was defective and the real
accused persons had not been brought to trial. Nothing appears to have been
done in the matter until 1977 when a fresh investigation was undertaken and it
resulted in prosecution of the appellants in the court of session as killers of
Brindaban.
Prosecution examined seven eye-witnesses
being P.W. 1 Sunderlal, father of the deceased; P.W. 2 Nathu, a co- villager
and claimed to be a servant of P.W, 1 by the defence; P.W. 3 Kalua, a nephew of
the deceased; P.W, 23 Jhallu, a brother of the deceased, P.W 24, Nanhaibai wife
of the deceased, and P.Ws. 13 and 14, two outsiders who have been declared
hostile by the prosecution. The trial court assessed the evidence in a fair way
and was not prepared to rely upon it. Accordingly he disbelieved the
prosecution case and directed acquittal of the accused persons. The High Court
did not come to the conclusion on the basis of the ocular evidence that the
same was acceptable and on the basis thereof a conviction could be recorded,
but heavily relied on two documents-the first being Exhibit P-1, a letter sent
by P.W. 1 Sunderlal to the Superintendent of Police dated 29.4.73 and the
second, being Exhibit P-9 a confidential letter of the Superintendent of Police
to the Deputy Inspector General of the Department The High Court found support
for the prosecution case from these two letters and accepting the position that
their contents corroborated the oral evidence of the witnesses proceeded to reverse
the acquittal. It, however, did not accept the prosecution case relating to the
charge of murder. Thus, while sustaining the acquittal in respect of the charge
of murder the court convicted the appellants under Sections 148 and 367 of the
I.P.C.
The peculiar features of this case are that
the prosecution had alleged that Brindaban had been murdered by a set of five
persons different from the present appellants and had made them face a regular
trial. Three most material witnesses being P.Ws. 1, 3 and 24 of the present
trial who are close relations of deceased Brindaban had then testified before
the Court that those five accused persons and no others including the
appellants were responsible for the death of Brindaban. After the acquittal in
1974 nothing happened in the matter for three years and suddenly 97 on the same
old allegations in the hands of the police, fresh investigation was undertaken
and the present set of accused persons were arrayed as murderers of Brindaban.
Those three eye-witnesses who on the earlier
occasion had deposed that five named assailants were the murderers of the
Brindaban changed their version and now spoke that the present appellants were
the murderers. The fact that these alleged eye-witnesses were prepared to
implicate the five persons who were acquitted on the earlier occasion and the
present appellants on the subsequent occasion in a serious charge like murder
is indicative of the fact that no credence can be given to the evidence of
these witnesses and they were willing to lend their oath to any story that the
prosecution advanced. Once the evidence of P.Ws. 1, 3 and 24 is brushed aside
on that ground, the residue by itself would not be adequate to support the
charge. We have grave doubts whether the High Court in whose hands there has
been a reversal of the acquittal would have found the remaining evidence to be
good basis for the conviction.
The High Court fell into a clear error in
relying on the two letters marked as Exhibit P-1 and Exhibit P-9.
Exhibit P-1 was a letter of P.W. 1, Sunderlal
to the Superintendent of Police. Admittedly by 29.4.73 when this letter said to
have been written, investigation had started on the basis of the first
information report and therefore, a letter written by P.W. 1 who stood in the place
of the prosecutor would not at all be admissible in evidence. No detailed
reasons are warranted for this conclusion as the position is clearly covered by
a decision of this Court in the case of Kali Ram v. State of Himachal Pradesh,
Learned counsel for the State did not refute this conclusion.
So far as the other document is concerned, as
already indicated by us, it is a letter written by the Superintendent of Police
to this administrative superior.
The writer of the letter has not been
examined as a witness.
No opportunity has been given to the defence
to cross- examine the writer. To rely on the contents of that letter in such
circumstances is totally misconceived. The document was not available to be
relied upon for any purpose and the High Court clearly went wrong in seeking
support from it by way of corroboration of the oral evidence.
98 There are several other unsatisfactory
features in the prosecution case which the trial had taken note of but
strangely enough those did not commend themselves to the High Court even for
consideration. Vinod had not been named as the leader of the party which came
to village Budha to pick up Brindaban in the statements given during
investigation by several witnesses. These witnesses had been confronted as
required by law and apart from pleading either innocence or helplessness, no
other answer was given. Some witnesses had deposed that Vinod the main
architect of the incident came armed with a gun while others claimed that he
was armed with a lathi. There is considerable divergence in the evidence as to
whether Brindaban came into the jeep of his own accord or had been forcibly put
into it. Most of the witnesses have stated that on being persuaded by the
accused persons and Vinod, in particular, he went inside his house and came
properly dressed to accompany the group to village Rampura. In that event, it
cannot be said that Brindaban was abducted by the accused persons. This is so
in view of the definition of 'abduction' in Section 362 of the Code where it
has been said:
"Whoever by force compels, or by any
deceitful means induces, any person to go from any place, is said to abduct
that person".
The High Court has convicted the appellants
for the offence punishable under Section 367 of the Penal Code which could be
possible if there is abduction with a view to subjecting the abducted person to
grievous hurt or slavery etc. The High Court did not accept the story of murder
of Brindaban by the appellants nor did it record a finding that the grievous
hurt leading to death was caused by the appellants. The resultant position from
it should have been that the act of picking of Brindaban from his village was
unconnected with what happened to Brindaban later. From it should have followed
that the appellants were not liable to be convicted under Section 367 of the
Penal Code.
The charge under Section 148, I.P.C. has been
conceded by the counsel for the State to relate to what followed at Rampura and
is not connected with the accusation of abduction. The common object as stated
by the prosecution would not be available for sustaining the conviction under
Section 148, I.P.C. in that background.
There are many other aspects with reference
to which the trial court had found fault with the prosecution case.
While we 99 accept the submission advanced
for the State that we should not reassess the whole evidence with reference to
minor details, we are satisfied that the prosecution had failed to establish
the charges and the High Court without a proper appraisal of the materials and
without meeting the findings reached by the trial court reversed the acquittal.
We accordingly allow the appeals, set aside
the judgment of conviction recorded by the High Court by reversing the
acquittal of the trial court and while restoring the judgment of the trial
court, we direct that the appellants are acquitted of both the charges and the
sentences of imprisonment are set aside. Each of the appellants is discharged
from his bail-bond.
S.R. Appeal allowed.
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