VIRENDRA versus STATE OF MADHYA PRADESH on 11 July 2022

1. Life imprisonment rendered by the Court of Fourth AdditionalSessions Judge, Chhattarpur, Madhya Pradesh with the imprimatur ofthe High Court of Madhya Pradesh is assailed before us.

FACTS THROUGH THE PROSECUTION EYES

2. On 27.04.2001, the deceased Main Babu was allegedly shotdead and killed by three accused namely, Baijnath, Virendra and Suresh AB

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Aover a long pending property dispute, despite verdicts in their favour.Baijnath, who was the father of the other two accused, died during thetrial. For the occurrence that happened at 07:30 a.m., the First InformationReport (FIR) was lodged by PW14, the father of the deceased at 08:30a.m. PW16, the Investigating Officer, arrested the accused on the nextday followed by recoveries of firearms from Virendra (appellant herein)Band Suresh and thereafter completed the investigation.

3. The accused were charged under Section 302 read with Section34 of the Indian Penal Code (IPC) and the provisions of the Arms Actand tried accordingly. The prosecution examined 17 witnesses as against8 by the defence. The trial court rendered a conviction against theCappellant and the co-accused Suresh. The co-accused did not challengethe conviction and served out his sentence. The appeal filed by theappellant was also rejected by the High Court. Assailing the said convictionsentencing the appellant for life the present appeal by special leave isfiled.DWITNESSES

4. We shall consider the necessary witnesses alone while testingthe conviction rendered:-

(i) PW1: He is an eyewitness who heard the gunshot. He sawEthe deceased lying near the gate. There was nobody else present.Thereafter, he went to inform one Raju and found that the body of thedeceased was not available. PW3 was sitting in his tea stall at the timeof occurrence. He stayed near the corpse for about 10 to 15 minutes.After the occurrence, numerous other people also came to witness thedeceased. He specifically states that PW15 came much later.

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The evidence of PW1 actually supports the case of the defence.Unfortunately, this witness has not been treated as hostile.

(ii) PW3: He is another witness who heard the gunshot. He sawthe deceased lying at the spot. He identified the accused in the court andthereafter deposed that they were not present at the scene of occurrence,Gas the accused was shot by some other one. He heard the gunshot beingfired once by the said person who was actually carrying the weaponwhile running. In his cross-examination he speaks of one Sushil, DW2having tea from his shop. The evidence of PW3 synchronizes with PW1,being the tea stall owner, having heard the gunshot. He asked DW2 toHinform the family members of the deceased. Thereafter, PW15 came to the place of occurrence and made the enquiry as to whether he witnessedthe actual occurrence to which he replied in the negative.

Unfortunately, even the evidence adduced by PW3 despite beingdestructive to the prosecution version has not been impeached either byseeking to declare him as hostile or by way of re-examination and thusallowed to stand as in the case of PW1.

(iii) PW7: He is the doctor who examined the deceased andconducted the post-mortem. Though he deposed that the deceased diedof the external injuries caused, it is his evidence that both the majorinjuries, namely injury nos. 1 and 3 having the same size with similarityqua the nature, it is possible that they are from the same firearm andtherefore, could have been caused by a single shot.

(iv) PW10: This witness is the wife of the deceased, who at thetime of deposing, was living with her brother-in-law, namely the brotherof the deceased. She had not spoken about the presence of PW15 andresiled from the prosecution version. As wisdom dawned, she was treatedas hostile at the request of the prosecution.

(v) PW13: He is the brother of the deceased. He not only deposedthat he came to the place of occurrence on being informed but also sawa girl bleeding along with the deceased. In his chief examination, hestates that he met the appellant on 27.04.2001 in police custody. Thiswitness not only speaks about his presence after the occurrence, havingseen the deceased and the girl with injuries; but was also called to be amahazar witness for the recovery of arms from both the accused. It ishis evidence that the police had called him to depose along with anotherwitness by name Manoj Dixit, who is also a close relative but notexamined. It is his further case that the pistol was recovered from theappellant on the night of the occurrence itself. This evidence of PW13 iscontrary to the evidence of PW16, the investigating officer. This witnesshas not read the contents of the recovery mahazar and stated to havecases pending against him.

The evidence, as discussed above, not only contradicts the onedeposed by PW16 but also that of the prosecution. It is rather strangehow he was called by the police after the arrest of the appellant for thepurpose of recovery when scores of others were available.

(vi) PW-14: PW14 is the author of the FIR. He is the father ofthe deceased. He has stated that the deceased died on the spot. This A

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Astatement is obviously against the evidence of PW13. He was informedby PW15 about the occurrence. When he went to the place ofoccurrence, the police were also there. However, the FIR was recordedneither at the place of occurrence nor at the hospital as it is his case thatpolice told him to come to the police station from the hospital. It is alsostrange to note as to how the police could reach the place of occurrenceBsince the source of information is not known.

(vii) PW-15: PW-15 is the star witness for the prosecution. It isthe testimony of this witness which made the courts to render theconviction. In the chief examination, this witness states that between 8to 8.15 a.m., he left his house to meet the deceased for the purpose ofCseeking some monetary help. Thereafter, he went in search of thedeceased. We do not know as to how he could be an eyewitness whenthe prosecution case is very specific that the occurrence took place at7.30 a.m. This very witness was facing cases of varying types startingfrom theft, dacoity, double murder and the cases under the NDPS Act.DHe is also a dismissed police constable.

According to this witness, he saw only Suresh carrying the gunand shooting the deceased. This testimony was not corroborated by allthe prosecution witnesses. Even his presence is doubted as he was seenat the place of occurrence much after the incident. He is the one whoEopposed the bail application of the appellant apart from filing an FIR fora subsequent event that he was threatened not to depose. Despite beingan ex-policeman, he did not bother to go to the police station nearby or toinform PW10, the wife of the deceased who was residing nearby. Instead,he went home and thereafter informed PW14 and others. It is hisevidence that there was no tea stall near the place of occurrence. In oneFof the criminal charges against this witness, the accused was a witness.He admits that it would take 15 minutes to reach the place of thedeceased. Despite his evidence that another girl was also injured, therewas no investigation on this aspect by the prosecution particularly whenmost of the prosecution witnesses do not speak about her presence.

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From the nature of the testimony and the background surrounding,this witness certainly cannot be relied upon as the reputation and conductof a man is a fact under Section 3 of the Indian Evidence Act and thus,becomes relevant. It is highly improbable that this witness would havebeen present at the place of occurrence.

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(viii) PW-16: He is the investigating officer. The investigatingofficer speaks about arrest and recoveries from all the accused. In sofar as the recovery of arms from the appellant is concerned, this witnessstates that he did not prepare the recovery memo under Section 27 ofthe Indian Evidence Act. There is absolutely no evidence to show as tohow the recovery was made. To many of the queries raised, he feignedignorance. The trial court did find that the original FIR was torn, and theserial numbers did not tally. He admits that there may be some changesin the paragraph numbers between the one available in the police stationand the other sent to the jurisdictional magistrate.

The evidence of PW16, having the characteristics of an opinion,cannot be put against the appellant in the light of the assessment of theother evidence available on record, as discussed.

(ix) DW-1 & 2: Now, we shall come to the evidence of the defencewitnesses. DW1 is the milk vendor whose presence was also spoken ofby PW3. Similarly, the presence of DW2 who was having tea in the teastall belonging to PW3 was also spoken of by him. These two witnessesstate that the person who committed the offense was not the accused.However, the court rejected the evidence placing the onus heavily onthe defence and approving the statement of PW15. We may also notethat DW1 has deposed in tune with the evidence of PW1 and PW3 in sofar as the delayed presence of PW15 is concerned. Further, DW1 hasstated in the same lines as that of PW3 that the said witness has askedDW2 to inform the family members of the deceased.

FORENSIC SCIENCE LABORATORY (FSL) REPORT

5. The FSL report given by the State Forensic Science Laboratory,Sagar, Uttar Pradesh, states that Exhibit A-1 is a .12 bore locallymanufactured pistol and Exhibit A-2 is a .12 bore single barrel gun. It isthe case of the prosecution that the shot was fired from Exhibit A-1while the opinion of the officer concerned indicates that the emptycartridge was fired from Exhibit A-2. Though the courts made relianceupon this report, we do not wish to give our seal of approval as we findcertain contradictions which have not been dispelled by the presence ofthe officer who authored it.

RECOVERY

6. PW13 and one Manoj Dixit were made as witnesses to therecovery memo from the appellant. We have already discussed the AB

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Aevidence of PW13 which is in contradiction with that of PW16. Theother witness, who is also a close relative of the deceased was notexamined for reasons unknown. PW13 has stated that the appellantwas arrested on the same day therefore, his evidence creates a seriousdoubt on the arrest and recovery. The place and time of arrest andrecovery could not be spoken with clarity by PW16. The prosecutionBtried to put up a case that shots were fired from both the weapons whichwere not proved even with the evidence available. The recovery of gunmade from the co-accused was owned by the appellant. How the weaponcame into the possession of the co-accused and who used it, has notbeen proved by the prosecution. Even the evidence of PWs-13 & 15 isCto the effect that only one was carrying a gun and that could be the co-accused Suresh. We have already held that from the evidence producedby the prosecution, leaving alone that of the defence, the presence ofappellant in the place of occurrence is highly improbable.

REASONING OF THE TRIAL COURT AND THE HIGH

DCOURT

REASONING OF THE TRIAL COURT AND THE HIGH

DCOURT

7. Both the courts shifted the burden on the defence. The evidencerendered by the prosecution witnesses was rejected, either as that ofindifferent witnesses or as irrelevant evidence. We may note that theseare all prosecution witnesses who were not treated as hostile. No attemptwhatsoever was made either to treat them as hostile or to re-examineEthem except that of PW10. Not even a suggestion was put to them onthe presence of PW15. In such a scenario, the statement made by theprosecution witnesses in favour of the accused would certainly inure tohis benefit. Our view is fortified by the decision of this Court in RajaRam v. State of Rajasthan, (2005) 5 SCC 272:F“

“9. But the testimony of PW 8 Dr. Sukhdev Singh, who is anotherneighbour, cannot easily be surmounted by the prosecution. Hehas testified in very clear terms that he saw PW 5 making thedeceased believe that unless she puts the blame on the appellantand his parents she would have to face the consequences likeGprosecution proceedings. It did not occur to the Public Prosecutorin the trial court to seek permission of the court to heard (sicdeclare) PW 8 as a hostile witness for reasons only known tohim. Now, as it is, the evidence of PW 8 is binding on theprosecution. Absolutely no reason, much less any good reason,has been stated by the Division Bench of the High Court as toHhow PW 8’s testimony can be sidelined.”

It is reiterated in Javed Masood v. State of Rajasthan, (2010) 3SCC 538:

“20. In the present case the prosecution never declared PWs 6,18, 29 and 30 “hostile”. Their evidence did not support theprosecution. Instead, it supported the defence. There is nothing inlaw that precludes the defence to rely on their evidence.”

Reliance was made on the recovery from the appellant. The factremains that there was sufficient evidence to conclude that only oneshot was fired which could be seen even from the evidence of PW15.While assessing the evidence produced by the defence, courts discardedthem without appreciating the fact that it has to be seen only on thedegree of probability.

SUBMISSIONS

8. Ms. Nitya Ramakrishnan learned senior counsel appearing forthe appellant reiterated the infirmities noted by us above. Additionally, ithas been submitted that literature produced before the Court on theprocedure to test the firearms, the FSL Report is found wanting. It beingan opinion, at its best, ought not to have been relied upon by the courts,particularly when the other has not been examined.

9. Per contra, Ms. Ankita Choudhary, learned Deputy AdvocateGeneral, appearing for the State submitted that the defective trial andinconsistency in the statement made by the prosecution witnesses perse would not absolve the accused of guilt. There is evidence sufficientlyin place to implicate the appellant. As both the courts have consideredthem in extenso, there is no interference required at the hands of thisCourt.

CONCLUSION

10. We have already discussed the evidence produced both bythe prosecution and the defence and the manner in which they are dealtwith by the courts. Certainly, the evidence of PW15 cannot be reliedupon as against the other prosecution witnesses themselves, which stooduncontroverted. The recovery having not been proved in the mannerknown to law, coupled with inadequate evidence on record to implicatethe appellant, we have no hesitation in overturning the conviction renderedas we do believe that the prosecution has failed in its attempt to provebeyond reasonable doubt, that the appellant has committed the offence.

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472SUPREME COURT REPORTS

AThus, the conviction rendered by Fourth Additional Sessions Judge,Chhattarpur, Madhya Pradesh in Sessions Trial No. 129 of 2001 asconfirmed by the High Court of Madhya Pradesh in Criminal AppealNo. 1367 of 2005 stands set aside and the appellant is set at liberty. Theappeal stands allowed. Pending applications, if any, are disposed of.

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Nidhi Jain

Appeal allowed.

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