of Madhya Pradesh Vs. Dhirendra Kumar  INSC
1399 (5 November 1996)
Ray, B.L. Hansaria Hansaria. J.
appeal is by the State and is directed against the judgment of the Madhya
Pradesh High Court by which the respondent was acquitted, on appeal being
preferred by him against his conviction under section 302 for having caused the
death of one Munibai on 20th
May, 1982 around 9 a.m.
prosecution sought to establish the guilt of the respondent by adducing
evidence relating to the motive of the crime; eye-witness to the occurrence;
dying declaration; and recovery of the revolver from the custody of the
respondent by which death had been caused, which revolver had been stolen by
the respondent, a police constable, from the Police Malkhana in the night of
19th -20 th May, 1982.
the trial court accepted all these facets of the prosecution case, the High
Court disbelieved all.
would examine the material on record qua each of the aforesaid materials.
What led to the killing of Munibai had connection, according to the
prosecution, with the respondent having an 'evil eye ' on her. It may be stated
that the respondent was a tenant and was occupying a part of the house, in
which landlord PW.3- Angad, was living, whose daughter-in-law was deceased Munibai.
The family came to know about the respondent having an 'evil eye' from the
deceased herself, which was reported by her to her mother-in-law PW.2- Kosabai.
This was about 15 days before the occurrence.
in turn stated about this to her husband (PW.3), who asked the respondent to
vacate to premises.
Both PWs.2 and 3 have categorically deposed about these facts. PW.2 had,
however, stated that she had spoken to her husband on the very day Munibai told
about the respondent having an 'evil eye', which was about 15 days before the
occurrence, whereas the evidence of PW.3 is that his wife had stated to him
about this aspect 7-8 days before the occurrence. We do not think if this
little discrepancy is enough to discard the otherwise consistent evidence on
this point, especially when the statement made by PW.3 that he had asked the
respondent to vacate the house has not challenged in cross-examination. We also
do not think that omission of the PW.3 to tell during investigation that his
wife had asked him to get the house vacated is enough to disbelieve PW.2 that
she had asked her husband to do so.
are, therefore, of the view that the High Court's finding on this point is
totally against the weight of evidence on record.
PW.1- Radhabai, a daughter of PW.3, is the only witness to have deposed about
the firing of shots by the respondent at the house in which the deceased was
evidence as to the manner in which Munibai was fired at finds absolute
corroboration from the finding recorded by the autopsy surgeon PW.7. The High
Court, however, disbelieved PW.1 on two grounds. First, by referring to her
evidence that when she saw the respondent firing shots, she had asked him as to
why he was assaulting her bhabhi. To this the answer was "What has
happened so far? I shall kill your whole family". After saying this, the
accused had pressed the barrel of the pistol on her chest. By then the mother
of the witness had arrived, so too a neighbour named Prakash. Uncle Faddi Ram
also came. The High Court has opined that if this was the position, PW.1's
evidence that the respondent had left the premises without being caught cannot
be accepted. Secondly, the High Court was of the view that the evidence of PW.1
about the deceased having made any dying declaration cannot be accepted,
because the deceased was really not in a position to make any statement.
Gambhir has strenuously urged that the High Court's assessment of the evidence
of PW.1 is absolutely reasonable and, in any case, that view being also
possible, we may not find fault with the High Court's judgment so much so to
set aside the acquittal.
are, however, of the view that even if it be accepted that the mother, the neighbour
and uncle had arrived before the respondent had left the house, but as he was
then armed with a revolver and had made his way through the chhajja by passing
through the portico, as stated by PW.1, the failure of these persons to
apprehend the respondent cannot cause any dent to the evidence of PW.1.
respondent having threatened to kill the whole family, nobody could have risked
his life to apprehend such a desperate character.
Insofar as dying declaration is concerned, was find that the evidence of PW.7
(Dr. Badkul) is that the deceased, despite the injuries found on her person,
was in a position to speak for about 10-15 minutes of the assaults on her. As
the mother-in-law was in the ground floor and had immediately come hearing
cries, time taken could not have been more 5-6 minutes. Therefore, the view
taken by the High Court regarding the deceased being not in a position to make
dying declaration was really perverse.
was very emphatically contended by Shri Gambhir that as in the first
Information Report (FIR) there is no mention about the dying declaration, we
should discard the evidence of PWs.1 and 2 regarding dying declaration, because
of what has been pointed out by this Court in Ram Kumar v. State of Madhya Pradesh, AIR 1975 SC 1024. We do not,
however, agree with Shri Gambhir, for the reason that what was observed in Ram
Kumar's case, after noting the broad facts, was that material omission in the
FIR would case doubt on the veracity of the prosecution case, despite the
general law being that statements made in the FIR can be used to corroborate or
contradict its maker. This view owes its origin to the thinking that if there
by material departure in the prosecution case as unfolded in the FIR, which
would so if material facts not mentioned in the FIR are deposed to by
prosecution witnesses in the court, the same would cause dent to the edifice on
which the prosecution case is built, as the substratum of the prosecution case
then gets altered. It is apparent that prosecution cannot project two entirely
different versions of a case. This is entirely different from thinking that
some omission n the FIR would require disbelieving of the witnesses who depose
about the fact not mentioned in the FIR. Evidence of witnesses has to be tested
on its own strength or weakness. While doing so, f the fact deposed be a
material part of prosecution case, about which, however, no mention was made in
the FIR, the same would be borne in mind while deciding about the credibility
of the evidence given by the witness in question.
We, therefore, do not agree with Shri Gambhir that Ram Kumar's case would
require us to disbelieve the evidence of PWs.1 and 2 regarding dying
declaration of the deceased, only because the FIR has not mentioned about it.
It is a settled law that FIRs are not taken as encyclopaedia and omission of a
fact therein, even if material, cannot by itself make the witness deposing
about the fact unbelievable at that point.
PW.1 was thus not a witness to have been disbelieved on the two aforesaid
grounds. Her evidence finds corroboration, as already mentioned, from the
findings of the autopsy surgeon. This apart, her evidence the respondent had
killed Munibai by firing has also received corroboration from the recovery of a
revolver from the possession of the respondent, to which aspect we shall advert
later, supplemented by ballistic expert's report that very revolver had been
used is firing at Munibai.
Recovery of revolver.
to the recovery of the revolver, Shri Gambhir's very strenuous submission was
that we may not accept this inasmuch as out of two witnesses examined on this
point, PW.6 - Santoshilal, did not support the prosecution. It is no doubt
correct that PW.6 had to be declared hostile, but he is a witness who has
destroyed his own veracity because, though he stated in examination-in-chief
that his blank signatures were taken on some papers by calling him to the
police station when he was passing by the road, in cross- examination the
version given was that the signatures had been taken when he had come to the
police station to do hair cut- he being a barber by profession. These two
statements definitely cannot stand together. This apart, it is difficult to
believe that PW.6 would have actually given his signatures on blank papers,
without making any complaint about the same to anybody. The hostility of PW.6
has, therefore, caused no damage to the prosecution case relating to recovery,
about which there is the confidence inspiring evidence of PW.10.
Gambhir has made effort, and strenuous effort at that to persuade us to hold
that the prosecution case that the respondent had stolen the revolver from the
Police Malkhana is unbelievable. This aspect had, however, come to be accepted
by the trial court because of the evidence of PW.11, who was the Head Constable
and was the in-charge of the Malkhana. His evidence is that as nobody can
perform duty all the 24 hours, practice has been that in the night keys of Malkhana
are entrusted to Constable Muharrir, as was the respondent. He has deposed that
on the night intervening 19 and 20 May, respondent was detailed in the night,
which aspect is mentioned in the Rojnamcha. Thereafter, the witness left to his
house around 10 p.m. and returned back next day morning
at about 8.30 a.m. The respondent then handed over the
keys. On this being done, the witness desired that the respondent could go
after checking the Malkhana. The respondent said that he would come back within
five minutes after taking tea and the checking could be done thereafter. As the
respondent did not return, Malkhana was opened and PW.11 found that one
revolver of .455 bore was missing. This was immediately brought to the notice
of the Station House Officer. The reporting was by Ex. 11-C and was around 8.40 a.m. In this exhibit the substance of the aforesaid
evidence finds place and the number of the revolver has also been mentioned,
which is 356354. It is the revolver bearing this number which was subsequently
recovered from the respondent on 20th May itself around 11.30 a.m. This fast movement was because, after receiving the
information of missing of the revolver, the Station House Officer went to the
place where respondent was residing which, as already noted, was a part of the
house it which Munibhai was residing. Gong there, the Station House Officer
knew about the killing and this led to the search of the respondent, about whom
PW.1 had stated that he had left towards the filed.
Despite the aforesaid evidence being on record, Shri Gambhir has urged that the
prosecution case relating to stealing was rightly disbelieved by the High Court
because the rules did not permit giving of Malkhana key to anybody else. Though
this is correct, but then as deposed by PW.11 a practice to that effect had
grown, which came to be adopted because of the physical impossibility of any
body to be at the Police Station throughout 24 hours. It may be pointed out
that when PW.11 deposed about this practice, he was not challenged in cross-examination.
Yet another contention made in this regard by Shri Gambhir what that as a
departmental proceeding against PW.11 is pending regarding this very aspect,
the same shows that even, according to the authorities, PW.11 might have been
responsible for stealing the revolver. As the charge framed in the departmental
proceeding is not available to us, we do not know what precisely has been
alleged against PW.11. It may be that the allegation is that he allowed the
stealing to take place. As, however, the proceeding is said to be pending, we
would observe that whatever we have held in this case relating to stealing of
revolver would not be used by PW.11 in the proceeding to demand his exoneration
from the charge as framed against him.
The second reason given by the High Court to disbelieve this part of
prosecution s that the Rojnamcha had not been properly maintained, as there was
no pagination in it. PW.11 gave valid explanation for this-the same being that
prescribed forms being not available, the Traffic Register was used as Rojnamcha.
Judicial notice can be taken of the fact that many a time prescribed registers
are not available, and so, they are kept in non-prescribed way. Many a time
even a Case Diary is not maintained n prescribed form.
Gambhir then referred to the omission in Ex.P.11-C about the respondent's
statement to PW.11 n the morning of 20th that he would come back after taking
tea, as deposed by PW.11 in court. We do not think if this omission can throw
any doubt on the very prompt report about missing of the revolver and about Malkhana
key having been given to the respondent on the night of 19th May. In Ex.P.11 it
was mentioned that the Head Constable suspected that the respondent had stolen
the revolver. The recovery of that revolver from the person of the respondent
on 20th May itself would bear the statement of PW.11 regarding the respondent
having had been stolen the revolver. It may be pointed about that under
Illustration (a) to section 114 of Evidence Act, it is permissible to presume
that if a man is in possession of stolen goods soon after the theft, he is the
The aforesaid being the position regarding the materials brought on record by
the prosecution to bring home the guilt of the respondent, we are of the firm
opinion that the High Court has taken a view which cannot be called reasonable
at all. The law, therefore, permits this Court to set aside the acquittal,
which we hereby do.
This leaves for consideration the question of sentence.
trial court had awarded the death sentence; but we would refrain from doing so
for two reasons: (1) the present is not a case of "rarest of the
rare" type; and (2) the respondent having enjoyed acquittal ever since
High Court's judgment dated 19.11.1982, death sentence, even if it would have
been merited, would not have been imposed by us. We may refer in this context
to the decision of this Court in State of Haryana vs. Sher Singh, 1981 (2) SCC 300, to which our attention has invited by
Shri Gambhir. In that case t has been stated in para 21 that despite the murder
being ghastly and brutal deserving death sentence, as awarded by the Sessions
Judge, the same was not being awarded because of the acquittal enjoyed by the
convict after High Court's judgment.
impugned judgment is, therefore, set aside and we convict the respondent under
section 302, for which offence we award the sentence of imprisonment for life.
The respondent is on bail; his hail bonds are cancelled. He would be taken in
custody to serve out the sentence.
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