Chandra
Mohan Tiwari & Anr Vs. State of Madhya Pradesh [1992] INSC 24 (22 January 1992)
Pandian,
S.R. (J) Pandian, S.R. (J) Reddy, K. Jayachandra (J)
CITATION:
1992 AIR 891 1992 SCR (1) 313 1992 SCC (2) 105 JT 1992 (1) 258 1992 SCALE
(1)131
CITATOR
INFO :
R 1992
SC1879 (31)
ACT:
Code
of Criminal Procedure, 1973 : Section 379-Scope of.
Supreme
Court (Enlargement of Criminal Appellate Jurisdiction) Act, 1970 : Section
2-Scope of.
Constitution
of India, 1950 : Article 134-Scope of.
Criminal
Trial-Accused-Acquittal by Trial Court- Reversal of acquittal by High Court and
imposition of life sentence-Scope of right of appeal by the accused-Scope of
interference by Supreme Court in such appeals.
Criminal
Trial-Murder-Motive-When motive is equally balanced the Court should look to
surrounding circumstances to find out the truth.
Criminal
Trial-Related witnesses-Reliability of-Murder inside the house at the dead end
of night-It is futile to expect the prosecution to produce independent
outsiders as witness-Parents of the deceased are probable and natural
witness-Held though parents are interested witnesses yet their evidence cannot
be rejected simply on the ground that they are interested witnesses-Interested
witnesses are not necessarily false witnesses.
HEAD NOTE:
The
appellants were alleged to have kidnapped, wrongfully confined and raped S, the
daughter of PWs 5 and 6. They were prosecuted for offences punishable under
section 363, 366 and 376 of the Indian Penal Code. S was examined before the
Magistrate where she stated that because of the threat given by the appellants
and as instructed by them she lodged a false report at the police station
implicating some other persons, whereas infact she was kidnapped, wrongfully
confined and raped by the appellants. The Magistrate, discharged the first
appellant, and committed the second appellant alone to take his trial. On a
revision preferred against the order of discharge of the first appellant both
the appellants were 314 put up for trial before the third Additional Sessions
Judge, Bhopal. During the said trial both
appellants were on bail.
The
case was fixed for 21.8.1972 on which date the victim S was to be examined as a
prosecution witness. While the matter stood thus S lodged a report at the
Police Station complaining that the second appellant had forcibly entered into
the backyard of her house, but took to his heels when she raised a hue and cry.
However,
it was alleged that on the night of 20.8.72, i.e. immediately before the day
when the case was fixed and victim S was to be examined as a prosecution
witness, the first appellant armed with a pistol and the second appellant with
a `farsa' entered into the house of S and the first appellant fired a shot
causing instantaneous death of S. The appellants were prosecuted for murder.
The Sessions Judge acquitted both the appellants. The State preferred an appeal
before the High Court. The High Court allowed the appeal, set aside the
acquittal order and convicted the first appellant under Section 302 and the second
appellant under section 302, read with Section 34 IPC and sentenced each of
them to undergo imprisonment for life.
The
appellants preferred an appeal to this Court under section 379 of the Code of
Criminal Procedure and Section 2 (a) of the Supreme Court (Enlargement of
Criminal Appellate Jurisdiction) Act, 1970 and it was contended on their behalf
(i) that
the High Court erred in reviewing the evidence and reversing the order of
acquittal;
(ii) that
the prosecution has failed to prove the motive of the crime;
(iii) the
victim's parents were inimical towards the appellants and their evidence cannot
be relied upon because they were interested witness.
Dismissing
the appeal, this Court,
HELD :
1. The
Trial Court was wrong in jettisoning the entire evidence in a very scanty and
unsatisfactory manner with unsound reasoning. Whilst the Trial Court's
conclusion was arrived at by abjuring the unimpeachable and reliable evidence
of parents of the deceased on speculative reasons and unreasonable grounds, the
contrary conclusion of the High Court based on the evolution of the evidence
does not suffer from any illegality or manifest error or perversity nor is it
erroneous. Further, independent analysis of the evidence by this Court shows
that there are absolutely no substan- 315 tial and compelling reasons to brush
aside the testimony of these two eye-witnesses and to take a contrary finding
to that of the High Court. [331 C-D; F-G]
1.1
The organic synthesis of the events, circumstances and facts of the case lead
only to one conclusion, namely, that the prosecution has satisfactorily proved
the guilt of the accused beyond any shadow of doubt and consequently the
judgment of the High Court does not call for any interference. [334 C-D-E} Tarachand
v. State of Maharashtra, AIR 1962 S.C. 130 = [1962] 2
S.C.R. 775; Kishan and Ors. v. State of Maharashtra. [1970] 3 S.C.C. 35; Mahebub Beg and Ors. v. State of Maharashtra, (S.C.) (1966 Maharashtra L.J. 12; Babu v. State of UP., AIR 1965 S.C. 1467=[1965] 2 S.C.R. 771; Podda Narayana
and Ors. v. State of Andhra
Pradesh, AIR 1975
S.C. 1252= [1975] Supp. S.C.R. 84; Ram Kumar Pande v. The State of Madhya Pradesh, A.I.R. 1975 S.C. 1026=[1975] 3
S.C.C. 815; Rajendra Prasad State of Bihar A I R SC 10 59 = = [1977]3 SCR 68; Kishore Singh and Anr.
v. The State of Madhya
Pradesh, A.I.R. 1977
S.C. 2267 = [1978] 1.S.C.R. 635; Bhajan Singh and Ors. v. State of Punjab, [1978] 4 S.C.C. 77; Dinanath Singh
& Ors. v. State of Bihar, A.I.R. 1980 S.C. 1199 = [1980] 1
S.C.C. 674; Pattipati Venkaiah v. State of Andhra Pradesh [1985] 4 S.C.C. 80; Sita Ram and Ors. v. State of U.P., [1979] 2 S.C.C. 656; Rajput Ruda Meha and Ors. v.
State of Gujarat, [1980] 1 S.C.C. 677; referred to.
Roop
Singh and ors. v. State of Punjab, A.I.R.
1973 S.C. 2617 = [1974] 1 S.C.R. 528; Dargahi and ors. v. State of U.P., A.I.R. 1973 S.C. 2695 = [1974] 3 S.C.C 302; Barati
v. State of U.P., A.I.R. 1974 S.C. 839 = [1974] 3
S.C.R. 570; G.B. Patel v. State of Maharashtra, A.I.R. 1979 S.C. 135 = [1978] 4 S.C.C. 371; Kanwali v.
State of U.P. [1971] 3 S.C.C. 58; referred to.
2.
There is overwhelming evidence both oral and documentary in clearly
establishing a strong motive for the appellants to put an end to the life of
the deceased. The several impelling circumstances attending the case namely,
the prior incident of kidnapping and rape, the conduct of the deceased in
giving her statement supporting the case of the prosecution, the lodging of the
complaint by S against the second appellant and lastly the posting of the case
for recording the evidence of S when taken in conjunction with the evidence of
parents of the victim unevasively and unerringly show that these two appellants
had strong motive to snap the life thread 316 of the victim so that she could
not give evidence on the next date in the case of kidnaping and rape. [327
C-D-E; 328 A-D-C] State of Punjab v. Pritam
Singh. [1977] 4 S.C.C. 56;
relied
on.
3.
Interested witnesses are not necessarily false witnesses though the fact that
those witnesses have personal interest or stake in the matter must put the
court on its guard, that the evidence of such witnesses must be subjected to
close scrutiny and the Court must access the testimony of each important
witness and indicate the reasons for accepting or rejecting it and that no
evidence should be at once disregarded simply because it came from interested
parties. [330 A-B] Siya Ram Rai v. State of Bihar, [1973] 3 S.C.C. 241; Sarwan Singh v. State of Punjab, [1976] 4 S.C.C. 369; Birbal v. Kedar,
A.I.R. 1977 S.C. 1 = [1977] 2 S.C.R. 1; Gopal Singh v State of U.P. A I R 1979 S.C.1822=[1978] 3 S.C.C. 327; Hari Obulla
Reddy & Ors. v. State of Andhra Pradesh,
[1981] 3 S.C.C. 675; Anvaruddin & Ors. v. Shakoor & Ors., [1990] 2
Judgments today S.C. 83; relied on.
3.1
The evidence of parents of the deceased cannot be thrown over-board simply on
the ground that their evidence is of the interested party because when the
occurrence had taken place inside the house, that too at dead of night, it
would be futile to expect of the prosecution to produce independent outsiders
as witnesses. The parents of the victim are the natural and probable
eye-witnesses as the incident had occurred in the odd hours inside their house.
Being
the parents of the victim, they would be the least disposed to falsely
implicate the appellants or substitute them in place of the real culprit. [330
D; 328 E; 331 E]
3.2
The chronology of events narrated and the factual conspectus recounted by the
parents of the deceased are unshakable and the intrinsic quality of the
evidence of these two witnesses compel this Court to implicitly rely on their
testimony and to accept the same. In spite of the fact that these two witnesses
have been subjected to intensive and incisive cross-examination, nothing
tangible has been brought for discarding their testimony. No doubt, the earlier
conduct of the appellants in kidnapping and forcibly raping their daughter, the
victim should have inflicted deeper wounds in minds of these two witnesses, but
that cannot in any way destroy the value of their evidence which is cogent and
trustworthy. [330 H; 331 A-B] 317
CRIMINAL
APPELLATE JURISDICTION: Criminal Appeal No. 36 of 1979.
From,
the judgement and Order dated 17.11.1978 of the Madhya Pradesh High Court in
Criminal Appeal No. 477 of 1973.
A.N. Mulla,
Dhruv Mehta, Aman Vachher and S.K. Mehta for the Appellants.
B.Y. Kulkarni
and Uma Nath Singh for Respondents.
The
Judgment of the Court was delivered by S. RATANAVEL PANDIAN, J. The two
appellants, namely, Chandra Mohan Tiwari and Ram Pal Singh Sengar have filed
this criminal appeal challenging the correctness and legality of the judgment
and order dated 17th of November 1978 of the High Court of Madhya Pradesh at Jabalpur
rendered in Criminal Appeal No. 477 of 1973, whereby the High Court has allowed
the appeal preferred by the State by setting aside the order of acquittal
passed by the Trial Court and convicted the first appellant under Section 302
IPC and the second appellant under Section 302 read with 34 IPC and sentenced
each of them to imprisonment for life.
The
matrix of the case which has led to the filing of this appeal briefly stated is
as follow:
PW-6 Ahiwaransingh
was at the material time, a compounder in the Veterinary Hospital, Budhni. He was residing in one of
the quarters situated in the compound of the Veterinary Hospital. On the opposite side of compound
there are Government quarters. One of which was occupied by appellant Ram Pal
Singh (Appellant No. 2), who was serving as Gram Sevak in the Block Development
office. He is married and distantly related to PW-6. The first appellant
Chandra Mohan Tiwari was wielding high influence in that locality and was well
known to the members of the family of PW-6. It appears that he contested the
election to the Legislative Assembly from Budhni constituency.
The
members of the family of PW-6 included PW-5, the Deceased Saroj aged about 16
years, who are PW-6's wife and eldest daughter respectively. PW-6 had settled
the marriage of his daughter Saroj at Dahiyapur, Etawah District (U.P.).
On
24.5.1970 he along with his deceased daughter, Saroj, left Budhni for Bhopal enroute to Dahiyapur. At Bhopal he stayed with his relative by name
Arjun Singh. On 25.5.1970 at 318 about 11.00 A.M. PW-6 had gone to the market
leaving Saroj alone in the house. According to the prosecution, the second
Appellant came to the house of PW-6 and told Saroj that her father wanted her
presence for selection of clothes. Saroj believing the words of second
appellant and without entertaining any doubt on the representation of the
second appellant accompanied him in a jeep which was driven by the first
appellant. Then she was taken to a house where she was wrongfully confined for
about two and a half months.
During
this period both the appellants are stated to have forcibly committed sexual
intercourse with Saroj. PW-6 lost his nerve on the sudden disappearance of his
daughter, but he instead of lodging a report with the police, which evidently
he thought would adversely affect the future life of his daughter and her impending
marriage and also bring the family in disrepute, unsuccessfully made a frantic
and intensive search for his daughter. Then he lodged a report Ex. P/10 on
3.8.1970 at the Police Station of Mangalwara, alleging that he had reason to
believe that Saroj might have been kidnapped by both the appellants. The police
did not take any prompt action on the report. By that time, the appellants, on
coming to know of the lodging of the report, devised a plan fore-stall any
action being taken against them. The second appellant took Saroj in a taxi to Hoshangabad
and left her near the police station with an instruction to lodge a false
complaint at the police station that she was kidnapped from Bhopal on 25.5.1970 by one Ramnath and Indrasen
and was wrongfully confined by them.
She
was also threatened that the appellants would be keeping a watch over her and
that in case she divulged the truth, serious consequences would follow. As
instructed by the second appellant, Saroj lodged a complaint Ex. D/15 on
9.8.1970 at Hoshangabad Police Station. However, when she was taken to the
Police Station, Mangalwara in connection with the report, lodged by her father
(PW-6) she told the entire truth to the police and her parents. Even then no
progress was made in the investigation on the report of PW-6 at Mangalwara. So
PW-6 made a fervent plea to the then Chief Minister of the State and requested
him to take action in the matter. It was only thereafter, on the instructions
of the higher authorities wheels of investigation started moving on. The police
after completing the investigation filed the charge sheet before the Additional
District Magistrate (Judicial) Bhopal against
both these two appellants for offences punishable under Section 363, 366 and
376 IPC.
The
victim Saroj, when examined before the Magistrate on 12.7.1971 stated in her
statement Ex. P/25 that she was kidnapped by both the appellants and wrongfully
confined and also subjected to sexual inter course and that she lodged the
false report Ex. D/15 at the Hoshangabad police station under duress and as
instructed by the second appellant 319 herein. The Magistrate discharged the
first appellant, and committed the second appellant alone to take his trial. On
a revision preferred against the order of discharge of the first appellant both
the appellants were put up for trial before the third Additional Sessions
Judge, Bhopal in Sessions Case Nos. 66 and 95 of 1972 for offences punishable
under sections 363, 366 and 376 IPC. During the said trial both appellants were
on bail. The case was fixed for recording evidence from 21.8.1972 on which date
the victim Saroj was to be examined as a prosecution witness. While the matter
stood thus, according to the prosecution, on 20.6.72 Saroj lodged a report Ex.
P/7 at Budhni Police Station complaining that the second appellant had forcibly
entered into the backyard of her house, but took to his heels when she raised a
hue and cry.
In the
above background, the present occurrence had occurred on the intervening night
of 20/21st August 1972.
The
prosecution case is that on that fateful night the first appellant armed with a
pistol and the second appellant with a `farsa' entered into the house of PW-6
through the main door which was kept ajar by PW-5 who went out of the house of
answer call of nature inside the compound and that the first appellant fired a
shot which hit on the chest of the victim Saroj, who was then in her bed and
caused her instantaneous death. Both PWs 5 and 6 identified the appellants as
the assailants. PW-6 tried to chase the appellants, but he stumbled near the
gate of the compound and could not apprehend them. The distress cries of PWs 5
and 6 attracted the neighbours to the scene. PW-6 narrated the incident to PWs
1 and 2 by mentioning the name of the appellants as the assailants and
requested PW-1 to lodge a report at the police station. Accordingly, PW-1
lodged the First Information Report Ex. P/1 at 1.30 A.M. PW-18, the
investigating officer took up the investigation during the course of which he
inspected the scene of the occurrence, held in quest and then sent dead body to
the hospital for necropsy. On the next day i.e. on 21.8.72 both the appellants
were arrested when they had come to attend the hearing of the case of kidnaping
and rape. After completing the investigation both the appellants were put up
for trial.
The
Sessions Judge of Indore found both appellants not guilty of
the offence of murder and consequently acquitted them. Feeling aggrieved by the
judgment of the Trial Court, the State preferred the appeal before the High
Court, which for the detailed discussion made in its judgment held that the
prosecution has satisfactorily established the guilt of both appellants beyond
all reasonable doubts, allowed the appeal by setting aside the judgment of the
Trial Court acquitting the appellants and convicted the first appellant under
section 302 and the second appellant under Section 302 read with Section 34 IPC
and sentenced each of them to undergo imprisonment for life. Hence the present
appeal is preferred by the appellants on being aggrieved by the impugned
judgment of the High Court.
320
Mr. A.N. Mulla, the learned Sr. Counsel appearing on behalf of the appellants
after taking us in detail through the judgment of the courts below, evidence of
the prosecution as well as the defence witnesses and in particular Ex. D/15,
the First Information Report dated 9.8.70 relating to the offence of kidnaping
and rape registered on the basis of the complaint given by the deceased Saroj
at Hoshangabad Police Station, vehemently submitted that the prosecution has
miserably failed to prove the motive for the occurrence. The learned counsel perfervidly
advanced his argument inter-alia contending that the High Court has erred in
reversing the judgment of the Trial Court based on well reasoned and considered
findings of fact, ignoring the settled principles of law as laid down by this
Court as regards the scope of interference of the High Court in an appeal
preferred against an order of acquittal, that the evidence of PWs 5 and 6 who
had developed rancur and were inimically disposed towards the appellants ought
not to have been accepted and implicitly relied upon as their testimony is
highly tainted with interestedness, that the contents of Ex. D-15 whereby the
deceased had implicated Ram Nath Singh and one Indra Sen as assailants of kidnaping
belie the version of PWs 5 and 6 and negative the prosecution story as far as
the motive is concerned, that the evidence of PWs 5 and 6 suffers from the vice
of discrepancies and incongruities, that the non- recovery of any `lota' (a
small vessel) from the place where PW-5 was easing as well as the non-marking
of the place where the said vessel was kept in the site plan falsify the
evidence of PW-5 that she opened the door and went near the compound wall to
answer call of nature , that the recovery of two bullets from the scene is an
indication of the fact that there should have been two shots, that there was
delay in laying the complaint, that the unchallenged claim of the appellants
that they were in Bhopal clearly shows that the appellants would not have come
to Budhni from Bhopal that too at the odd hours with an anticipation that the
door of the scene house would be kept open. The learned counsel further submits
that had the appellants come to the scene house to assassinate the victim Saroj,
they would not have exposed themselves without covering their faces so that
their identity could not be established and that the life of the girl might
have been put to an end by inmates of the said house, particularly her father
on account of some conspiracy since the victim girl wanted to have the case of kidnaping
and rape not to be proceeded with.
Before
adverting to the contentions, urged by the learned counsel, we would like to
briefly state the legal position regarding the right of appeal of an accused
person sentenced to imprisonment for life by the High Court after reversing the
order of acquittal and the scope of interference in such appeal by this court.
The present appeal is under Section 379 321 of the Code of Criminal Procedure
of 1973 (hereinafter referred to as the `code') and Section 2(a) of the Supreme
Court (Enlargement of Criminal Appellate Jurisdiction) Act of 1970 (hereinafter
referred to as `the Act of 1970') Section 379 of the Code contemplates that
where the High Court has, on appeal, reversed an order or acquittal of an
accused person and convicted him and sentenced him to death or to imprisonment
for life or to imprisonment for the term of ten years of more, that person may
appeal to the Supreme Court. This section in newly introduced in the Code of
1973 (Act 2 of 1974) on the recommendation of the Law Commission of India in
its 41st Report. Article 134 (1) (a) of the Constitution envisages that an
appeal shall lie to the Supreme Court from any judgment, final order or
sentence in a criminal proceeding of the High Court in the territory of India
if the High Court has on appeal reversed an order of acquittal of an accused
person and sentenced him to death.
To say
in other words under Article 134 (1) (a) the absolute right of appeal to the
Supreme Court is restricted only to cases where the High Court reverses an
order of acquittal passed by the Trial Court and awards the sentence of death.
The
right of appeal is also extended under Article 134 (1) (b) to cases where the
High Court has withdrawn for trial before itself any case from any court
subordinate to its authority and has in such trial convicted the accused person
and sentenced him to death, which type of cases are rare and infrequent
occurrence. Under clause (c) of the above said Article an appeal lies to the
Supreme Court on a certificate under Article 134 A by the High Court certifying
that the case is a fit one for appeal to the Supreme Court but, of course,
subject to the proviso to Article 134 (1).
In
this connection, it is pertinent to note that the Government of Madras (as then
called) expressed its view that the limited right of appeal now conferred in
case of the persons sentenced to death by clauses (a) and (b) of Article 134
(1) should be enlarged and that in all cases in which the accused persons are
sentenced to death, there should be a right of appeal to the Supreme Court
without the need of a certificate from the High Court. This view was rejected
by the Law Commission of India in its 14th Report stating that even in cases
not covered by clauses (a) and (b) of Article 134 (1) the High Court has the
power to certify the case as a fit one for appeal to the Supreme Court under
Clause (c) and further there is also the safeguard provided by the wide powers
of the Supreme Court under Article 136 which confers a discretionary power on
the Court to interfere by granting special leave to appeal in suitable cases
including cases where the High court has refused to grant Certificate for
appeal under Article 134 (A). See the decision of the constitution Bench in Tarachand
v. State of Maharashtra AIR 1962 S.C. 130 = [1962] 2 SCR 775 and the later
decision in Krishan and others v. State of Maharashtra. 322 [1970] SCC 35. To
avoid proliferation we are not citing all the decisions on this aspect.
The
reason, given by the Law Commission in its 14th Reports (Volume I at page 52)
for rejecting the view of the Government of Madras is as follows:
"We
are not inclined to accept this view. For over a century such cases have been
dealt with by the High Courts subject to the superintendence of the Privy
Council under its special leave jurisdiction and there is no reason why the
High Courts should not continue to deal with such cases in the same
manner." In 1968 a Private Member's Bill was introduced in Parliament
which proposed that the limited jurisdiction of the Supreme Court contemplated
under Article 134 (1) (a) and (b) should be enlarged to cover cases where the
High Court has, after reversing an order of acquittal, sentenced a person to
imprisonment for life or for 10 years or more. Be that as it may in its 41 st
Report, the Law Commission expressed its view that the limitation of the right
of appeal under Article 134 (1) (a) and (b) applies only to cases of death but
not to cases of imprisonment for life awarded by the High Court or appeal
against acquittal and that limitation "is too stringent and not easily
justifiable and that the convicted persons ought to have a right of appeal in such
cases". The Law Commission, at the same time, was not in favour of
extending this right of appeal in which the High Court has on appeal against
acquittal sentenced a person to imprisonment for a term of 10 years or more,
and proposed a new Section 417 -B restricting such appeal to the Supreme Court
only in cases of sentence of imprisonment for life. While so, the Joint Select
Committee by its report dated 4th December, 1972 drafted clause 379 (original clause 389) of the Code of Criminal
Procedure Bill 1970 (page xxvi) which reads thus:
"The
amendment has been made to bring the provision of the clause in line with the
provisions of the Supreme Court (Enlargement of Criminal Appellate
Jurisdiction) Act, 1970.
Vide
the 14th Report of the Law Commission (at page 52) and the 41st Report of the
Law Commission (paragraphs 31.65 to 31.69 at pages 281-283).
Section
2 of the Act of 1970 reads thus :
2.
Enlarged appellate jurisdiction of Supreme Court in regard to criminal matters.
Without prejudice to the powers conferred on the Supreme Court by clause (1) of
Art. 134 of the Constitution, an appeal shall lie to the Supreme Court from any
judgment, final order of sentence in a criminal proceeding 323 of a High Court
in the territory of India if the High Court- (a) has an appeal reversed an
order of acquittal of an accused person and sentenced him to imprisonment for
life or to imprisonment for a period of not less than ten years ;
(b) has
withdrawn for trial before itself any case from any court subordinate to its
authority and has in such trial convicted the accused person and sentenced him
to imprisonment for life or to imprisonment for a period of not less than ten
years." The right of appeal under the above Section to the Supreme Court
is an addition to those provided under Article 134 (1) of the Constitution. In
cases which do not come under clauses (a) and (b) of Article 134(1) or under
the Act of 1970 or Section 379 of the Code an appeal does not lie as of right
to the Supreme Court against any order of conviction by the High Court. In such
cases, appeal will lie only if a certificate is granted by the High Court under
sub-clause (c) of Article 134 (1) certifying that the case is a fit one for
appeal to the Supreme Court or by way of special leave under Article 136 when
the certificate is refused by the High Court. See Mahebub Beg and others v.
State of Maharashtra, (S.C.) CR. A 120/64 dated
19.3.1965 reported in 1966 Maharashtra Law Journal 12 and Babu v. State of U.P. AIR, 1965 S.C. 1467 = [1965] 2 SCR 771.
The
resultant position of law from the conjoined reading of the above provisions of
the Constitution, the Act of 1970 and the Code of Criminal Procedure is as
follows:
(1)
Under sub-clause (a) of Article 134(1) an appeal lies as of right to the
Supreme Court in a case where the High Court has reversed an order of acquittal
of an accused person and sentenced him to death.
(2)
Under sub-clause (b) of Article 134 (1) an appeal lies as of right to the
Supreme Court in a case where the High Court has withdrawn the case for trial
before itself from any court subordinate to its authority and sentenced him to
death.
(3)
Under Section 2 (a) of the Act of 1970 an appeal lies as of right to the
Supreme Court in a case where the High Court has reversed an order of acquittal
of an accused person and sentenced him to imprisonment for life or imprisonment
for a period of not less then 10 years 324
(4)
Under Section 2 (b) of the Act of 1970 an appeal lies as of right to the
Supreme Court in a case where the High Court has withdrawn for trial before
itself any case from any court subordinate to its authority and has in such
trial convicted the accused person and sentenced him to imprisonment for life
or imprisonment for a period of not less than 10 years.
(5)
Under Section 379 of the Code, which is now newly introduced in line with the
Constitutional provisions of Article 134 (1) (a) and (b) and with Section 2 of
the Act of 1970, an appeal lies as of right to the Supreme Court in a case
where the High Court has on appeal reversed an order of acquittal of an accused
person and convicted and sentenced him either to death or to imprisonment for
life or imprisonment for a term of 10 years or more.
(6) In
cases not covered by Article 134 (1) (a) and (b) or Section 2 (a) and (b) of
the Act of 1970 or by Section 379 of the Code of Criminal Procedure an appeal
will lie only either on a certificate granted by the High Court under Article
134 (1) (c) or by grant of special leave to appeal by the Supreme Court under
Article 136.
The
right of appeal given under Section 379 of the Code is in line with Article 134
(1) (a) and (b) and Section 2 (a) and (b) of the Act of 1970.
This
Court in Podda Narayana and others v. State of Andhra Pradesh AIR 1975 S.C.
1252 = [1975] (Supp) SCR 8 had an occasion to examine the scope of Section 2 of
the Act of 1970 and held thus :
"As
the High Court had awarded the sentence of life imprisonment after reversing
the order of acquittal passed by the Additional Sessions Judge the appeal to
the Supreme Court lies even on facts and as a matter of right under Section 2
of the Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act,
1970".
M.H.
Beg, J. as he then was, speaking for the Bench in Ram Kumar Pande v. The State
of Madhya Pradesh, AIR 1975 S.C. 1026 = [1975] 3 SCC 815 observed as follow.
"Strictly
speaking, no certificate of the High Court is required for such an appeal where
an acquittal has been converted into a conviction under S. 302/34 I.P.C. and a
sentence of life imprisonment imposed upon an accused person. The appeal in,
such a case, lies as a matter of right to this Court under the Act of
1970." 325 This Court in Rajendra Prasad v. State of Bihar, AIR 1977 S.C.
1059 = [1977] 3 SCR 68 while disposing of an appeal preferred under Section
2(a) of the Act of 1970 laid down the following dictum:
"Thus
when two courts, have come to a different conclusion on the same evidence, we
had ourselves to go through the entire evidence carefully in order to see
whether the appreciation of the evidence by the Sessions Judge was so
unreasonable and unrealistic as to entitle the High Court to interfere with the
same." In Kishore Singh and another v. The State of Madhya Pradesh, AIR 1977 S.C. 2267 = [1978] 1 SCR
635 the following view similar to the one taken in Ram Kumar Pande's case was
reaffirmed and it read thus :
"The
High Court is not right in holding that a certificate is necessary under
Article 134 (1) (c) of the Constitution if the appellants have a right of
appeal under Section 2 of the Act." In Ram Kumar Pande's case, the
jurisdiction of the Supreme Court to interfere in a judgment of the High Court
reversing the acquittal of the Trial Court and convicting the accused person
and sentencing him to life imprisonment, in respect of which an appeal to the
Supreme Court lies as of right was examined and the following maxim has been
laid down.
"The
well settled rule of practice in a case of an appeal against an acquittal is
that the appellate Court should not interfere with the acquittal merely because
it can take one of the two reasonably possible views which favours conviction.
But,
if the view of the Trial Court is not reasonable sustainable, on the evidence
on record, the Appellate Court will interfere with an acquittal. If the
Appellate Court sets aside an acquittal and convicts, we have to be satisfied,
after examining the prosecution and defence case and the crucial points
emerging for decisions from the facts of the case, that the view taken by the
Trial Court, on evidence on record, is at least as acceptable as the one taken
by the High Court, before we could interfere with the High Court's
judgment." Kailasam, J. speaking for the Bench in Bhajan Singh and others
v. State of Punjab, [1978] 4 SCC 77 dealing with the scope of the appeal before
the Supreme Court filed under Section 2 (a) of the Act of 1970 observed thus :
"as
a court of appeal this Court has got to go into all the 326 questions of fact
and law and decide the case on its merit. After a right of appeal has been
provided under the said section, the question, whether the High Court
interfered on sufficient ground or not, will not be material, as this Court has
to decide the case on its own merits. The decisions, regarding the scope of
appeal against an acquittal, the powers of the High Court to interfere in an
appeal against acquittal by the State, which may be relevant when the Supreme
Court is acting under Article 136, are not material in deciding an appeal by a
person, whose acquittal has been set aside by the High Court, and who is
entitled to prefer an appeal to this Court." In Dinanath Singh &
others v. State of Bihar, AIR 1980 S.C. 1199 = [1980] 1 SCC 674, an appeal
under Section 2 (a) of the Act of 1970 was directed against the judgement of
the Patna High Court convicting the appellants therein under Section 302 read
with 34 IPC and sentencing them to imprisonment for life by reversing the order
of acquittal of the Trial Court. While disposing the appeal Fazal Ali.
J.
speaking for the Bench pointed out thus:
"It
is now well settled by the long course of decisions of this Court that where
the view taken by the trial court in acquitting the accused is reasonably
possible, even if the High Court were to take a different view on the evidence,
that is no ground for reversing the order of acquittal." This court while
disposing an appeal filed under Section 379 of the Code in Pattipati Venkaiah
v. State of Andhra Pradesh, [1985] 4 SCC 80 affirmed the order of conviction
passed by the High Court on the ground that the judgment of the Trial court
acquitting the accused was extremely perverse and no other reasonable view was
possible than the guilt of the accused.
Reference
also may be had to Sita Ram and Others v. State of U.P. [1979] 2 SCC 656 and Rajput Ruda Meha and Others v.
State of Gujarat, [1980] SCC 677.
This
Court in a catena of decisions have dealt with the power of the High Court to
review evidence and reverse order of acquittal and laid down the guidelines in
exercising that power. Though it is not necessary for us in the present case to
deal with all those decisions, the following may be referred to :
327 Roop
Singh and others v. State of Punjab. AIR 1973 S.C. 2617 = [1974] 1 SCR 528; Dargahi
and others v. State of U.P., AIR 1973 S.C. 2695 = [1974] 3 SCC 302; Barati v.
State of U.P., AIR 1974 S.C.839 = [1974] 3 SCR 570; G.B. Patel v.
State
of Maharashtra, AIR 1979 S.C. 135 = 1978 (4) SCC
371; and Kanwali v. State of U.P. [1971] 3
SCC 58.
Having
regard to the above principle of law, we shall now carefully scrutinize the entire
evidence adduced by the prosecution and examine the contentions advanced by Mr.
Mulla and decide the case on its merit, independent of the views expressed by
the High Court in its impugned judgment :
Motive
for the murder:
There
is overwhelming evidence both oral and documentary in clearly establishing a
strong motive for the appellants/accused to put an end to the life of the
deceased Saroj, who when examined before the Magistrate on 12.7.1991 had
deposed under Ex. P/25 that she was kidnapped by both the appellants,
wrongfully confined and subjected to sexual intercourse, though she initially
lodged a report under Ex. D-15 on 9.8.70 at the Hoshangabad police station
against some other persons exculpating these two appellants.
Earlier
to her examination before the Magistrate the deceased lodged a report Ex. P-7
on 20.6.1972 at Budhni police station complaining that the second appellant had
forcibly entered into the backyard of her house and on her raising a cry he
took to his heels. The trial of the case against both the appellants before the
Additional Sessions Judge, Bhopal in Sessions Case Nos. 66 and 95 of 1972 under
Sections 363, 366 and 376 IPC was fixed for recording the evidence of the
victim in that case, namely, the deceased herein from 21.8.1972. Both the
appellants were on bail in the case of kidnaping and rape during the period of
the occurrence in question which occurred on the intervening night of 20/21st
August 1972. The learned counsel for the appellants has submitted that PWs 5
and 6 had sufficient motive to implicate both the appellants in this heinous
crime of murder as these two appellants according to both PWs had spoiled the
future career of their daughter, deceased Saroj by kidnaping and committing
rape on her even if the identity of the real assailant/assailants was or were
not known and further there was every possibility of PW-6 falsely implicating
these two appellants on strong suspicion. As stated by Fazal Ali, J. in State
of Punjab v. Pritam Singh, [1977] 4 SCC 56
"when the motive was equally balanced, the Court had to look to
surrounding circumstances in order to find out the truth." 328 This is not
a case solely based on circumstantial evidence, but on the other hand there are
two eye-witnesses to the occurrence, namely, PWs 5 and 6. The several impelling
circumstances attending the case namely, the prior incident of kidnaping and
rape, the conduct of the deceased Saroj in giving her statement under Ex. P. 25
supporting the case of the prosecution registered on the complaint given by
PW-1 at the instance of PW-6, the lodging of the complaint under Ex. P-7 by Saroj
on 20.6.72 against the second appellant and lastly the posting of the case for
recording the evidence of Saroj on 21.8.72-when taken in conjuction with the
evidence of PWs 5 and 6, unevasively and unerringly show that these two
appellants had strong motive to snap the life thread of the victim so that she
could not give evidence on the next day in the case of kidnapping and rape.
The
contents of Ex. D-15 cannot be said to have whittled down the veracity of the
prosecution case as regards the motive for the occurrence. On the other hand,
the subsequent statement made by the deceased under, the Ex. P/25 explaining
under what circumstances she was forced to give Ex. D-15 would also serve as a
corroborating piece of evidence in establishing the motive for the occurrence.
Ocular
Testimony :
As per
the prosecution, due to the above motive the appellants have resorted in
perpetrating this dastardly and heinous crime, PWs 5 and 6 though the parents
of the victim, are the natural and probable eye witnesses as the incident had
occurred in the odd hours inside their house wherein these two witnesses and
their 4 daughters including the deceased Saroj were the inmates. According to
these two witnesses by about 12 or 12.30 mid-night PW-5 went out of the house
by opening the main door to answer call of nature within the compound. Besides
moon-light, there was electric light within the compound. Added to that there
was also electric light burning in the residential quarter of Doctor Sahib
shedding light inside the compound of the scene house.
PW-5
sighting the two appellants yelled out. She found the appellant Chandra Mohan Tiwari
having a small gun and the second appellant Rampal Singh being armed with a farsa.
On hearing the cry of PW-5, Saroj woke up. PW-6 who had earlier been awakened
by his wife (PW-5) saw both the appellants entering into his house with their
respective weapons. The deceased Saroj on seeing the two appellants hardly
uttered `Babaji'. Suddenly the first appellants fired a shot which hit Saroj.
On receipt of the injury Saroj fell down on her cot. Thereafter both the
appellants fled away. PW-5 witnessed both the appellants entering into the room
and heard the sound of a gun shot and the 329 appellants thereafter running out
of the house. While PW-5 yelled out, PW-6 ran after the appellants up to the
compound shouting that the appellants had fired a gun shot at Saroj.
On
coming out of the compound, PW-6 fell down. PWs 1, 2 and others who rushed to
the scene on hearing the shrieks and shouts of PWs 5 and 6 lifted PW-6 and
brought him inside the house. PWs 1, 2 and others asked PW-6 as to what had
happened. PW-6 told them that the first appellant had fired a shot at his daughter
Saroj and thereafter both the appellants had fled away from the scene. The
victim Saroj by that time was struggling for breathing and gasping. PW-1 has
testified to the fact that he arrived at the scene on hearing the shouting of
PW-6 "killed, killed' and found PW-6 lying down outside the main gate of
his compound, that PW-1 and others lifted PW-6 and brought him inside the
house, that on being asked PW-6 informed PW-1 and others that Sengar and "Tiwari
(referring to both appellants) had shot at his daughter and that PW-6 requested
him to lay a complaint at Budhni Police Station.
The
Trial Court for the reasons given in its judgment observed that the evidence of
PW-5 as regards to the identity of the appellants is "totally
unreliable" and that of PW-6 appears to be "absurd and
fantastic" and finally concluded thus:
"..........I
find the two accused persons had no motive to perpetrate the crime in question,
that one Gungasingh and possibly the father of the girl Ahivaransingh might
have had stronger motive for perpetrating the murder, that it was impossible
for the accused persons to have been present at Budhni at 12.30 that night and
that it is most likely that they have been falsely implicated in the murder by
the political rivals of the accused Chandra Mohan Tiwari and with the motive of
preventing the accused Ram Pal Singh over-getting married to Saroj." The
entire prosecution as indicated ibid mainly rests on the evidence of PWs 5 and
6 who are the unfortunate parents of the victim and who speak about the motive
of the occurrence and give a full detailed account of the entire incident. In
addition to the ocular testimony of PWs 5 and 6 the prosecution also relies
upon the evidence of PWs 1 and 2, who came to the scene spot immediately after
the occurrence and learnt from PWs 5 and 6 that the appellants were the
perpetrators of the crime.
No
doubt, it is true that the evidence of PWs 5 and 6 is that of the interested
party in that both of them are the parents of the victim and that they had
animus towards the appellants. As dexterously emphasised by the 330 Supreme
Court on many occasions that interested witnesses are not necessarily false
witnesses though the fact that those witnesses have personal interest of stake
in the matter must put the Court on its guard, that the evidence of such
witnesses must be subjected to close scrutiny and the Court must assess the
testimony of each important witness and indicate the reasons for accepting or
rejecting it and that no evidence should be at once disregarded simply because
it came from interested parties. Vide Siya Ram Rai v. State of Bihar, [1973] 3
SCC 241; Sarwan Singh v. State of Punjab, [1976] 4 SCC 369; Birbal v. Kedar,
AIR 1977 S.C.1 = [1977] 2 SCR 1; Gopal Singh v. State of U.P. AIR 1979 S.C.1822
= [1978] 3 SCC 327 ; Hari Obulla Reddy & Others v. State of Andhra Pradesh,
[1981]3 SCC 675; and Anvaruddin & Ors. v. Shakoor & Ors. [1990]2 Judgements
Today S.C. 83.
After
carefully scanning the evidence of PWs 5 and 6, we unreservedly come to the
conclusion that their evidence cannot be thrown overboard simply on the ground
that their evidence is of the interested party because when the occurrence had
taken place inside the house, that too at dead of night, it would be futile to
expect of the prosecution to produce independent outsiders as witnesses.
It was
contended by Mr. Mulla that PWs 5 and 6 could not have identified the
assailants since according to PW-6 both assailants had covered their faces so
that faces behind the mask could never be known to others and remain mystery
for ever. But a careful reading of the evidence of PW-6 in our opinion does not
support the conclusion sought to be arrived at by the learned defence counsel.
What PW-6 had admitted in the cross-examination is that both the appellants had
tied a towel on their heads, but their identity was visible.
It
transpired from the evidence of PWs 1, 2 and 6 that PWs 1 and 2 who immediately
came to the scene of the occurrence were informed by PW-6 that the assailants
were the two appellants. The spontaneous declaration to Pws 1 and 2 by PW-6
without premeditation or any deliberation or artifice by naming the appellants
as assailants can be admitted as resgestae and acted upon. It is significant to
note in this connection that PW-1 who laid the First Information Report Ex-P-1
within an hour from the time of the occurrence has mentioned the names of these
two appellants as having been given by PW-6 at the scene immediately after the
occurrence. The FIR has been lodged without any loss of time though it has been
hesitatingly stated that there was a delay. The chronology of events narrated
and the factual conspectus recounted by PWs 5 and 6 are unshakable and the
intrinsic quality of the evidence of these two witnesses compel 331 this Court
to implicitly rely on their testimony and to accept the same. In spite of the
fact that these two PWs have been subjected to intensive and incisive cross-
examination, nothing tangible has been brought for discarding their testimony.
No doubt, the earlier conduct of the appellants in kidnaping and forcibly
raping their daughter, the victim should have inflicted deeper wounds in the
minds of these two witnesses, but that cannot in any way destroy the value of
their evidence which is cogent and trustworthy.
PWs 3
and 4 who were examined by the prosecution to speak about the movements of the
appellants near the scene at or about the time of the occurrence have resiled
from their earlier statements and have not supported the prosecution case. The
evidence of Pws 5 and 6 which is corroborated by various other circumstances
would in our opinion suffice of record a conviction against the appellants. The
Trial Court appears to have gone wrong in jettisoning the entire evidence in a
very scanty and unsatisfactory manner with unsound reasoning. The non- recovery
of `lota' (a small vessel for taking water) and the non-marking of the place
where the said vessel was kept in the site plan are too tenuous and they do not
in any way belittle the veracity of the prosecution case. The recovery of the
pellets below the dead body and the cork, usually fixed on cartridges from the
chest of the girl under the Memo Ex. P-4 as spoken by PWs 1 and 18 amply
corroborate the evidence of PW-6 and support the prosecution case that the girl
was shot dead in close range while she was on her bed.
Being
the parents of the victim, they would be the least disposed to falsely
implicate the appellants or substitute them in place of the real culprits. In
our considered opinion, whilst the conclusion arrived at by the Trial Court
abjuring the unimpeachable and reliable evidence of PWs 5 and 6 on speculative
reasons and unreasonable grounds, the contrary conclusion of the High Court
based on the evolution of the evidence does not suffer from any illegality or manifest
error on perversity nor is it erroneous. Further, on our independent analysis
of the evidence we see absolutely no substantial and compelling reasons to
brush aside the testimony of these two eye- witnesses and to take a contrary
finding to that of the High Court.
Based
on the evidence of DW-1, an advocate at Bhopal, who defended the appellants
herein in the kidnaping case and who had deposed that on the night of 20.8.72
the first appellant was with him from 9/9.30 P.M. to 12 mid-night and who had filed
Ex. P30, and application before the court stating that the first appellant was
with him, an argument was advanced that the appellants could not have gone to
the scene village 332 Budhni from Bhopal, when the distance between the two
places is about 40 miles and committed the offence of murder. In support of the
evidence of DW-1 reliance has been placed on the testimony of DWs 2 to 4 of
whom DW 3 was the Proprietor of Chetna Lodge, who had testified to the effect
that the first appellant was in his lodge from 18th to 21st August as borne out
from the entry in Ex.D-11. A similar contention of alibi was also raised before
the High Court on the basis of the evidence of the defence witnesses and the
High Court after discussing and deeply examining the testimony of the defence
witnesses made the following observations:
1.
"It is with regret that we have to say that the testimony of this witness
(PW 1) does not inspire any confidence."
2.
"It is surprising that the learned trial Judge should have placed reliance
on the testimony of DW- 2 Ramakant and D.W.7 Durgaprasad and come to the
conclusion that accused Rampalsingh could not have been at the scene of
occurrence as he was at Bhopal, forty miles away from the scene of occurrence,
at the relevant time." Further the High Court was correctly rejected the
finding of the Trial Court as an unreasonable one holding:
".......it
is most likely that they have been falsely implicated in this murder by the
political rivals of the accused Chandramohan Tiwari and with the motive of
preventing the accused Rampalsingh ever getting married to Saroj." We also
after going through the evidence of the defence witnesses are unable to accept
the plea of alibi and are in total agreement with the reasons given by the High
Court for rejecting not the plea of alibi but also the defence that these
appellants were implicated on account of political rivalry.
Medical
Evidence:
PW-17
who conducted autopsy on the dead body of the deceased found a lacerated wound
on the chest just left the mid-line at the level of nipple over the third,
fourth and fifth inter-costal space. The wound was slightly oval shaped
measuring 1-1/2" x 2" deep and opening into thoraic cavity. The
surrounding skin was ecchymost, but no tattooing of gun powder was noticed. The
wound as described by the Doctor is a slit like small lacerated wound on the
medial end of clavicle. On internal examination PW-17 he found comminuted
fracture of sternum and second, 333 third ribs of left side chest. There was a
punctured wound on the medial border of left lung near its appex. He found one
rounded pellet (which has been recorded as bullet, but has been clarified in
the further chief examination as pellet which receives support from the
evidence of PW-19, the ballistic expert) in the left cavity of the chest,
embedded in the posterior wall of chest at scapular region at the level of
second and third ribs. The Medical Officer is of the opinion that the death was
due to severe fatal injuries to vital organs like left lung and heart resulting
in profuse bleeding and shock. PW-19 after examining the two pellets and two
wads marked as Ex.P1 and P-2 and W1 and W2 respectively gave his opinion that
the holes, found on the saree, chader (bed-sheet) and the blouse were gun shot
holes and there was presence of blackening surrounding the holes on the chader
and that the distance of firing should have been within one yard.
The
evidence of the Medical Officer (PW-17) and of the Ballistic expert (PW-19)
amply corroborates the testimony of PWs 5 and 6 that the assailants whomsoever
they had been should have entered into the room and shot at the victim standing
within a close range.
Mr. Mulla
advanced an argument that the recovery of the two pellets and two wads from the
scene place is an indicative of the fact that there would have been two shots,
and that the presence of only one injury on the body of the deceased as per the
evidence of PW-17 falsifies the present prosecution case that the victim was
shot at only once.
The
presence of the pellets and two wads, of course, indicate that there ought to
have been two shots, but it does not necessarily follow that both the shots,
should have hit the victim, probably one of the shots must have missed target.
From the mere absence of two injuries on the body of the deceased, no
conclusion would be arrived at that the entire prosecution case is liable to be
rejected. The further submission of the learned counsel that the appellants
should not have come at the odd hours anticipating that the main door of the house
would have been kept open does not appeal to us. Probably, the appellants who
came there with the intention of putting an end to the life of the victim by
any other design should have taken this opportunity to enter into the house and
shot at the deceased.
Lastly
a feeble argument was put forth by the defence stating that the father of the
deceased and other inmates of the house on being aggrieved at the conduct of
the victim should have put an end to the life of the girl by conspiring
together. This submission has to be mentioned for 334 simply rejecting the same
because had the father and other inmates of the house had already conspired to
murder the girl, they would not have waited for such a long time and ultimately
killed her by shooting at her chest. No father, however grave be the
provocation at the hands of his daughter would resort, in the normal course to
kill his daughter or participate in any conspiracy to murder her.
Moreover,
there is no circumstance in the present case even feebly or remotely indicating
that the inmates of the house were responsible for the cause of the death of
the deceased.
In
spite of our best efforts and great deal of pondering over the matter, we find
absolutely no reason, much less compelling reason to disagree with the
conclusion of the High Court since the organic synthesis of the events,
circumstances and facts of the case lead only to one conclusion, namely, that
the prosecution has established that this preplanned and cold blooded murder,
executed in very cowardly and dastardly manner at a helpless and defenceless
young girl was perpetrated by the appellants.
We,
quite apart from the reason of the High Court, even on our independent
assessment and evaluations of the evidence hold that the finding of the Trial Court
is not reasonably sustainable and that the prosecution has satisfactorily
proved the guilt of the accused beyond any shadow of doubt and consequently the
judgment of the High does not call for any interference.
In the
result, the impugned judgment of the High Court is affirmed and the appeal is
dismissed.
T.N.A
Appeal dismissed.
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