PARVAT SINGH & ORS. versus STATE OF MADHYA PRADESH on 2 March 2020

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SUPREME COURT REPORTS

[2020] 2 S.C.R.

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PARVAT SINGH & ORS.

v.

STATE OF MADHYA PRADESH

(Criminal Appeal No. 374 of 2020)

BMARCH 02, 2020

[ASHOK BHUSHAN AND M. R. SHAH, JJ.]

Penal Code, 1860 – s. 302 r/w s. 149 – Murder – All theaccused including the appellants came to be tried by the Trial Courtfor the offences u/s. 302 r/w. s. 149 of the IPC for having killed sonCof the informant-PW-8 – The Trial Court convicted appellants-original accused nos. 2 to 5 for the offences punishable u/s. 302 r/w. s. 149 of the IPC – The High court confirmed the conviction ofthe appellants – Before the Supreme Court, the appellants contendedthat the High Court has not properly appreciated the fact that soDfar as the evidence/ deposition of PW-8 is concerned, it is full ofmaterial contradiction and improvements – Held: PW-8 stated inher statement recorded u/s. 161 Cr. P.C. that he had seen all theaccused in the light of the torch – she stated that the accused no. 1was having axe and other four accused were armed with lathis –She also stated that accused no. 1 gave the axe blow on the neck ofEthe deceased due to the enmity and earlier dispute and other accusedwere telling to run immediately – However, in her deposition, PW-8stated that two accused persons caught hold of deceased – Shestated in her deposition that there was chimney light in the cattle5shed and accused ran away from the nearby agricultural field ofFsugarcane – Therefore, the deposition of PW-8 is full of materialcontradictions and improvements so far as original accused nos. 2to 5 are concerned – No other independent witness, even named byPW-8 supported the case of prosecution – In her deposition, shehas not stated anything that the appellants were having lathis – Asper the settled proposition of law, the statement recorded u/s 161GCr. P.C. can be used only to prove the contradictions and/or omissions– Further, according to PW-8, she identified the accused in the lightof the torch, however, there is no recovery of torch – In the factsand circumstances of the case, there are material contradictions,omissions and/or improvements so far as the appellants areH

concerned – Therefore, the benefit of material contradictions,omissions and improvements must go in favour of the appellants –The conviction of the appellants u/s. 302 r/w. s. 149 of the IPC setaside.

Allowing the appeal, the Court

Conclusion

HELD:1. It is required to be noted that it was a black night(Amavasya) at the time of incident. It was a dark night as theincident has happened between 4-5 a.m. PW8 in her statementrecorded under Section 161 Cr.P.C. has stated that she has seenall the accused in the light of the torch. She has stated that originalaccused no.1 was having an axe and other four were armed withlathis. She had also stated in her statement under Section 161Cr.P.C. that original accused no.1 gave the axe blow on the neckof the deceased due to the enmity and earlier dispute and otheraccused were telling to run away immediately and thereafter allthe five accused ran away from behind the cattle shed/house. Shestated that she had identified all the accused in the light of thetorch and also by voice. According to her after she shouted, otherpersons came. However, there is material improvement in herdeposition before the Court. In her deposition, she has statedthat the two accused caught hold of deceased. In her deposition,she has also stated that there was a chimney light in the cattleshed. She has also stated in her deposition that the accused ranaway from the nearby agricultural field of sugarcane. Therefore,the deposition of PW8 is full of material contradictions andimprovements so far as original accused Nos. 2 to 5 is concerned.It is required to be noted that no other independent witness evennamed by PW8 has supported the case of the prosecution. Though,according to PW8, she identified the accused in the light of thetorch, there is no recovery of torch. There is materialimprovement so far as the chimney light is concerned. In herdeposition, she has not stated anything that the appellants –original accused nos. 2 to 5 were having the lathis, though shehas stated this in her statement under Section 161 Cr.P.C. TheHigh Court has observed relying upon her statement recordedunder Section 161 Cr.P.C. that the appellants herein – accusednos. 2 to 5 were having lathis. However, as per the settledpreposition of law a statement recorded under Section 161 Cr.P.C.

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Ais inadmissible in evidence and cannot be relied upon or used toconvict the accused. As per the settled proposition of law, thestatement recorded under Section 161 Cr.P.C. can be used onlyto prove the contradictions and/or omissions. Therefore, as such,the High Court has erred in relying upon the statement of PW8recorded under Section 161 Cr.P.C. while observing that theBappellants were having the lathis. [Para 14.1][972 F-H; 973 A-F]

2. As observed hereinabove in her statement under Section161 Cr.P.C., she has never stated that the two accused caughthold of the deceased, but stated that the appellants herein told torun away as other persons have woken. In the facts andCcircumstances of the case, there are material contradictions,omissions and/or improvements so far as the appellants herein –original accused nos. 2 to 5 are concerned and therefore thisCourt is of the opinion that it is not safe to convict the appellantson the evidence of the sole witness of PW-8. The benefit ofDmaterial contradictions, omissions and improvements must go infavour of the appellants herein. Therefore, as such the appellantsare entitled to be given benefit of doubt.[Para 142][973 F-H]

Now, so far as the submission on behalf of the State thatrelying upon the deposition of PW8, the original accused no.1Ewas convicted and his conviction has been confirmed upto thisCourt and therefore to dismiss the present appeal qua otheraccused is concerned from the evidence on record and havingobserved hereinabove the case of the appellants – originalaccused nos. 2 to 5, is distinguishable on facts. There are materialcontradictions and omissions so far as the appellants – originalFaccused nos. 2 to 5 are concerned. So far as the original accusedno 1 is concerned, PW8 is consistent in her statement underSection 161 Cr.P.C. as well as in her deposition before the Court.There was a recovery of axe used in commission of the offenceby accused no.1 at the instance of accused no.1. Under theGcircumstances, the case of the original accused nos. 2 to 5 isclearly distinguishable to that of original accused no.1. [Para14.3][974 A-D]

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.374 of 2020.

From the Judgment and Order dated 19.04.2018 of the High Courtof Madhya Pradesh, Bench at Gwalior in Criminal Appeal No. 574 of2006.

A.K. Shrivastava, Sr. Adv., Shishir Kumar Saxena, R.N. Pareek,P.K. Sinha, Brijendra Singh, Praveen Swarup, Advs. for the Appellants.

Ms. Madhurima Mridul, AAG, Yasir Rauf, Rahul Kaushik, HarshParashar, Advs. for the Respondent.

The Judgment of the Court was delivered by

M. R. SHAH, J.

1. Leave granted.

2. Feeling aggrieved and dissatisfied with the impugned judgmentand order dated 19.04.2018 passed by the High Court of Madhya Pradeshat Gwalior in Criminal Appeal No.574 of 2006 by which the High Courthas confirmed the conviction of the appellants herein – original accusedNos.2 to 5 for the offences punishable under Section 302 r/w Section149 of the IPC, the original accused nos.2 to 5 have preferred the presentappeal.

3. All the accused including the appellants came to be tried by theLearned Trial Court for the offences under Section 302 r/w Section 149of the IPC for having killed one Bal Kishan s/o the informant Mullo Baion 01.12.2005 around 4-5 a.m. in the morning at Village Hinotiya Gird.

4. According to the case of the prosecution, the informant MulloBai – PW8 was sleeping in the cattle shed. At that time, the appellantsand one another accused named Bal Kishan, s/o Diman Singh whilesharing common object caused murder of Bal Kishan, s/o BhagwanSingh. According to the informant there was a dispute going on betweenthe parties. As per the case of the prosecution and according to theinformant, when she was sleeping in the cattle shed in the house, around4-5 a.m. in the morning due to the barking of the dogs she woke up andin the light of torch, she saw that in the cattle shed, accused Bal Kishanwith an axe and other original accused Nos. 2 to 5 herein with sticks/lathis in their hands were standing. Thereafter, accused Bal Kishan A

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Aentered in the cattle shed and with an intention to kill her son Bal Kishangave a blow of axe. She shouted and the other members of the familyand nearby house came there and all the accused ran away from thespot. Investigation was carried out by one Mahesh Sharma – InvestigatingOfficer - PW12. He recorded the statements of concerned witnesses.I.O. also obtained the relevant evidences including the medical evidenceBand also the postmortem report. That all the accused were charge-sheeted for the offences punishable under Section 302 r/w Section 149and Section 450 of the IPC. The case was committed to the Court ofSessions. All the accused pleaded not guilty, therefore, all the accusedcame to be tried by the Learned Trial Court for the aforesaid offences.C

5. To prove the case against the accused, the prosecution examinedin all 12 witnesses including PW8 Mullo Bai -informant – mother of thedeceased who was the sole eyewitness. At this stage, it is required to benoted that mother of the deceased Mullo Bai was the sole eyewitness.At this stage, it is required to be noted that the axe used in the commissionDof the offence by the original accused no.1 was recovered at the instanceof the accused no.1 himself. Ratan Singh – PW1 and Pahalwan Singh –PW2 did not support the prosecution and therefore, they were declaredas hostile by the prosecution. In support of the defence two witnesseswere examined by the defence to bring home the theory of alibi inrespect of original accused no.1 - Bal Kishan.E

6. After perusing the evidence led by the parties and solely relyingupon the evidence of Mullo Bai – PW8 the sole eye-witness, the LearnedTrial Court convicted all the accused for the offences under Section 302r/w Section 149 of IPC.F7. Feeling aggrieved and dissatisfied with the judgment and order F7. Feeling aggrieved and dissatisfied with the judgment and orderof conviction by the Learned Trial Court, the appellants herein - originalaccused Nos.2 to 5 preferred Criminal Appeal No.574 of 2006 beforethe High Court. Original Accused No.1 also preferred one separateappeal. By the impugned judgment and order, the High Court hasdismissed the appeal preferred by the accused nos.2 to 5 - appellantsGherein. The High Court also dismissed the appeal preferred by theAccused No.1 – Bal Kishan. It is reported that the SLP against thejudgment and order of conviction of the original accused no. 1 – BalKishan is dismissed by this Court. Feeling aggrieved and dissatisfiedwith the impugned judgment passed by the High Court, the originalHaccused nos. 2 to 5 have preferred the present appeal.

8. Shri A.K. Srivastava, learned Senior Advocate appearing onbehalf of all the appellants – original accused nos. 2 to 5 has vehementlysubmitted that in the facts and circumstances of the case, the High Courthas materially erred in dismissing the appeal and confirming the judgmentand order of conviction passed by the Learned Trial Court and convictingthem for the offences under Section 302 r/w Section 149 IPC.

8.1 It is vehemently submitted by Mr. Srivastava, learned SeniorAdvocate that the High Court has not properly appreciated the fact thatthe Trial Court convicted the appellants solely relying upon the evidence/deposition of Mullo Bai – PW8.

8.2 It is submitted that the High Court has not properly appreciatedthe fact that so far as the evidence/deposition of PW8 is concerned, it isfull of material contradiction and improvements.

8.3 It is further submitted by Learned Senior Advocate appearingon behalf of the appellants that the High Court has not properlyappreciated the fact that it was a black night when the incident tookplace, there was a dark, and it was not possible for Mullo Bai to recognize/identify the accused – the appellants herein.

8.4 It is further submitted that as such there was materialcontradiction in the deposition of the PW8 insofar as identifying/recognizing the appellants in the light of torch or from the chimney light.It is further submitted by Learned Senior Advocate appearing on behalfof the appellants that the testimony of Mullo Bai – PW8 suffers frommaterial omissions, which amounts to contradictions as well as materialimprovements in her statement in Court as regards place of incidentwhere she was sleeping. It is submitted that it was for the first time inthe Court that she has stated that accused Santosh and Rakesh caughthold the deceased and that Bal Kishan inflicted axe injury over his neck.

8.5 It is further submitted that in fact there is no recovery of anytorch from the place of incident.

8.6 It is further submitted that even the observations made by theHigh Court that the appellants herein went with the lathis is contrary tothe evidence on record. It is submitted that in the deposition of PW8 –Mullo Bai, she has not stated anything that the appellants herein werecarrying the lathis. It is submitted that in her statement recorded underSection 161 Cr.P.C. She has stated that the appellants were having lathis,but the statement under Section 161 Cr.P.C. is not admissible in evidence A

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Aand therefore the High Court has committed a grave error in observingthat the appellants were having lathis, solely relying upon the statementof PW8 recorded under Section 161 Cr.P.C.

8.7 It is further submitted by the Learned Senior Advocateappearing on behalf of the appellants that as such there is no cogentBmaterial and/or evidence with respect to the common object and/orconspiracy hatched amongst the accused persons to kill the deceased.It is submitted that the appellants are convicted with the aid of Section149 IPC. It is submitted that, therefore, in absence of theory of commonintention/object, the appellants could not have been convicted for theoffences under Section 302 IPC with the aid of Section 149 IPC.C

8.8 It is further submitted by the Learned Senior Advocateappearing on behalf of the appellants that even as per the deposition ofMullo Bai – PW8 the dispute was going on between the parties. It issubmitted that therefore the false implication of the appellants cannot beruled out. It is submitted that therefore conviction of the accused isDsolely based upon the evidence – deposition of PW8 and no otherindependent witness supports the case of the prosecution and that theevidence – deposition of the PW8 is full of contradictions, omissions andimprovements, it is not safe to convict the appellants solely relying uponthe evidence/deposition of PW8.E

8.9 It is further submitted by the Learned Senior Advocateappearing on behalf of the appellants – original accused nos. 2 to 5 thatthe case of the original accused nos. 2 to 5 is clearly distinguishable onfacts, from that of original accused no.1. It is further submitted thatthere are no much contradictions and/or improvements in the case soFfar as original accused no.1 is concerned. It is submitted that so far asaccused no.1 is concerned, it can be seen that PW8 is consistent withher statement under Section 161 Cr.P.C. as well as her deposition beforethe Court. It is submitted that even there was a recovery of axe used inthe commission of the offence at the instance of the original accusedno.1. It is submitted that therefore the dismissal of SLP qua originalGaccused no.1 would not come in the way of appeal. It is further submittedthat even otherwise, the SLP was dismissed in limine and therefore it isprayed to consider the present appeal on its own merits.

9. Making the above submissions it is prayed to allow the presentappeal.H

10. Present appeal is vehemently opposed by Ms. MadhurimaMridul, Learned Advocate appearing on behalf of the respondent – State.

11. It is vehemently submitted by the Learned Advocate appearingon behalf of the State that there are a concurrent finding of facts recordedby both the Courts below while convicting the appellants for the offencesunder Section 302 r/w 149 IPC. It is submitted that the findings recordedby the Learned Trial Court and the High Court are on appreciation ofevidence and therefore the same are not required to be interfered withby this Court in exercise of powers under Article 136 of the Constitutionof India.

11.1 It is further submitted by Learned Counsel appearing on behalfof the State that in the present case though the conviction of theappellants is solely based upon the deposition of PW8 – Mullo Bai,however there is no rule that there cannot be any conviction relyingupon the sole witness, more particularly an eye-witness. It is submittedthat PW8 is a reliable and trustworthy witness. It is submitted that herpresence on the spot is natural as the incident has taken place in herhouse and near the place where she was sleeping. It is submitted that asshe is the sole eyewitness to the incident, both the courts are justified inconvicting the accused relying upon the deposition/evidence of PW8 –Mullo Bai.

11.2 It is further submitted by the Learned Counsel on behalf ofthe State that in the present case the presence of appellants herein-original accused nos. 2 to 5 on the spot has been established and provedby the prosecution by examining PW8 who is the eyewitness. It issubmitted that presence on the spot at the time of incident and that toobetween 4-5 a.m. early morning is sufficient to convict the accused forthe offence under Section 302 IPC with the aid of Section 149 IPC.

11.3 It is further submitted by the Learned Counsel appearing onbehalf of the State that even the accused were recognized and identifiedby PW8 – Mullo Bai even from their voice, so stated by PW8 in herdeposition.

11.4 It is further submitted by the Learned Counsel appearing onbehalf of the State that the original Accused no.1 also came to be convictedsolely relying upon the deposition of PW8. It is submitted that theconviction of original Accused no.1 has been confirmed upto this Court.It is submitted that therefore there is no reason not to believe PW8 so AB

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Afar as the appellants – original accused nos. 2 to 5 are concerned. It issubmitted that therefore both the courts below have rightly convictedthe appellants herein for the offences under Section 302 r/w Section 149IPC. Making the above submissions, it is prayed to dismiss the presentappeal.B12. Heard the Learned Counsel for the respective parties at length.We have gone through and considered in detail the entire evidencerecorded by the learned Trial Court as well as the High Court. We havealso considered in detail the evidence on record more particularly thestatement of PW8 – Mullo Bai recorded under Section 161 Cr.P.C. aswell as her deposition before the Court.C

13. At the outset, it is required to be noted that the appellantsherein - original accused nos. 2 to 5 are convicted by the Learned TrialCourt and the High Court solely relying upon the evidence/deposition ofPW8 – Mullo Bai. It cannot be disputed that there can be a convictionrelying upon the evidence/deposition of the sole witness. However, atDthe same time, the evidence/deposition of the sole witness can be reliedupon, provided it is found to be trustworthy and reliable and there are nomaterial contradictions and/or omissions and/or improvements in the caseof the prosecution. Therefore, the question which is posed forconsideration of this Court is whether in the facts and circumstances ofEthe case, can the appellants herein – original accused nos. 2 to 5 beconvicted relying upon the deposition of the sole witness – PW8 andwhether PW8 is a reliable and trustworthy witness to convict theappellants herein- original accused nos. 2 to 5?

14. Having heard Learned Counsel appearing for the respectiveFparties and considering the evidence on record, we are of the opinionthat the evidence/deposition of PW8 is full of material contradictions,omissions and improvements.

14.1 It is required to be noted that it was a black night (Amavasya)at the time of incident. It was a dark night as the incident has happenedbetween 4-5 a.m. PW8 in her statement recorded under Section 161GCr.P.C. has stated that she has seen all the accused in the light of thetorch. She has stated that Bal Kishan – original accused no.1 was havingan axe and other four were armed with lathis. She had also stated in herstatement under Section 161 Cr.P.C. that Bal Kishan – original accusedno.1 gave the axe blow on the neck of the deceased due to the enmityHand earlier dispute and other accused were telling to run away immediately and thereafter all the five accused ran away from behindthe cattle shed/house. She stated that she had identified all the accusedin the light of the torch and also by voice. According to her after sheshouted, other persons came. However, there is material improvementin her deposition before the Court. In her deposition, she has stated thataccused Santosh and Rakesh caught hold of Bal Kishan – deceased. Inher deposition, she has also stated that there was a chimney light in thecattle shed. She has also stated in her deposition that the accused ranaway from the nearby agricultural field of sugarcane. Therefore, thedeposition of PW8 is full of material contradictions and improvementsso far as original accused Nos. 2 to 5 is concerned. It is required to benoted that no other independent witness even named by PW8 hassupported the case of the prosecution. Though, according to PW8, sheidentified the accused in the light of the torch, there is no recovery oftorch. There is material improvement so far as the chimney light isconcerned. In her deposition, she has not stated anything that theappellants – original accused nos. 2 to 5 were having the lathis, thoughshe has stated this in her statement under Section 161 Cr.P.C. The HighCourt has observed relying upon her statement recorded under Section161 Cr.P.C. that the appellants herein – accused nos. 2 to 5 were havinglathis. However, as per the settled preposition of law a statement recordedunder Section 161 Cr.P.C. is inadmissible in evidence and cannot berelied upon or used to convict the accused. As per the settled propositionof law, the statement recorded under Section 161 Cr.P.C. can be usedonly to prove the contradictions and/or omissions. Therefore, as such,the High Court has erred in relying upon the statement of PW8 recordedunder Section 161 Cr.P.C. while observing that the appellants were havingthe lathis.

14.2 As observed hereinabove in her statement under Section161 Cr.P.C., she has never stated that accused Santosh and Rakeshcaught hold of Bal Kishan, but stated that the appellants herein told torun away as other persons have woken. In the facts and circumstancesof the case, there are material contradictions, omissions and/orimprovements so far as the appellants herein – original accused nos. 2to 5 are concerned and therefore we are of the opinion that it is not safeto convict the appellants on the evidence of the sole witness of PW8.The benefit of material contradictions, omissions and improvements mustgo in favour of the appellants herein. Therefore, as such the appellantsare entitled to be given benefit of doubt.

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A14.3 Now, so far as the submission on behalf of the State thatrelying upon the deposition of PW8, the original accused no.1 wasconvicted and his conviction has been confirmed upto this Court andtherefore to dismiss the present appeal qua other accused is concernedfrom the evidence on record and having observed hereinabove the caseof the appellants – original accused nos. 2 to 5, is distinguishable onBfacts. There are material contradictions and omissions so far as theappellants – original accused nos. 2 to 5 are concerned. So far as theoriginal accused no 1 is concerned, PW8 is consistent in her statementunder Section 161 Cr.P.C. as well as in her deposition before the Court.There was a recovery of axe used in commission of the offence byCaccused no.1 at the instance of accused no.1. Under the circumstances,the case of the original accused nos. 2 to 5 is clearly distinguishable tothat of original accused no.1.

15. For the reasons stated hereinabove, we are of the firm opinionthat in view of the material contradictions, omissions and improvementsDin the statement of PW8 recorded under Section 161 Cr.P.C. as well asdeposition before the Court qua the appellants – accused nos. 2 to 5 andthat there was a prior enmity and no other independent witness hassupported the case of the prosecution, we are of the opinion that theappellants herein – original accused nos. 2 to 5 are entitled to be giventhe benefit of doubt. Under the circumstances, the present appeal isEallowed. The impugned judgment and order of conviction passed by thelearned Trial Court and confirmed by the High Court convicting theappellants herein – accused nos. 2 to 5 for the offence under Section302 r/w Section 149 of the IPC are hereby quashed and set aside andthe appellants herein – original accused nos. 2 to 5 are acquitted of the Fcharges for which they were tried. The appellants herein – accusednos. 2 to 5 be released forthwith, if not required in any other case.

Ankit Gyan

Appeal allowed.

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