Full Judgment Text
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PETITIONER:
VINOD CHATURVEDI ETC. ETC.
Vs.
RESPONDENT:
STATE OF MADHYA PRADESH
DATE OF JUDGMENT05/03/1984
BENCH:
MISRA RANGNATH
BENCH:
MISRA RANGNATH
FAZALALI, SYED MURTAZA
CITATION:
1984 AIR 911 1984 SCR (3) 93
1984 SCC (2) 350 1984 SCALE (1)437
ACT:
Appeal against acquittal under section 386 of the
Criminal Procedure Code, 1973-Conviction by reversal of the
verdict of acquittal relying on the evidence of the same
witnesses, who are close relatives of the deceased and who
in the earlier trial categorically implicated some other
five persons-Appreciation of evidence-Whether the High Court
was correct in relying on the said eye witnesses-Evidence
Act, section 3-Admissibility of Ex. P. 9, the two letters as
corroborative evidence-Penal Code, sections 148, 300, 362
and 367-Conviction Under Applicability of section 148 when
the state counsel conceded that the charge u/s 148 did not
relate to charge of abduction, but to murder taking place
later,
HEADNOTE:
On the basis of the investigation made on a First
Information Report that one Brindaban the deceased son of PW
1 was kidnapped in a jeep from village Budha to the village
Rampura where he was done to death, five persons were put on
trial in Sessions Trial No. 107 of 1973. but they were
acquitted by Judgment dated 29.1.1974. The trial court held
that the investigation was defective and the real accused
had not been brought on trial. After a lapse of three years
in 1977 a fresh investigation was undertaken and it resulted
in the prosecution of the present appellants in the Court of
Sessions as killers of Brindaban. Prosecution examined seven
eye-witnesses. The Trial Court assessed the evidence in a
fair way and was not prepared to rely on it and therefore
directed acquittal of the appellants. In the State appeal
against acquittal, the High Court heavily relying upon two
documents-The first being Ex.P. 1 a letter sent by PW 1
Sunderlal to the Superintendent of Police on 29.4.1973 and
the second being Ex. P 9 a confidential letter of the
Superintendent of police to the Deputy Inspector General of
the Department-found support for the prosecution case as
corroborative evidence with the ocular evidence, and
reversed the acquittal, by convicting the appellants under
section 148 and 367 IPC. Hence the appeals by special leave.
Allowing the appeals, the Court
^
HELD: 1. When in the first trial on the charge of
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murder and abduction the prosecution had alleged that the
deceased had been murdered by a set of five persons
different from the present appellants and let in evidence of
three eye-witnesses being PWs. 1, 3 and 24 of the Second
Trial and who are pamittedly close relations of deceased to
the effect that those five accused
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persons and no others including the appellants were
responsible for the death of the deceased, acceptance of the
evidence of the very same three eye witnesses in the second
trial conducted after a lapse of three years implicating the
present appellants as murderers will be highly improper. The
fact that these alleged eye-witnesses were prepared to
implicate the five persons who were acquitted on the earlier
occasion and the present appellants on the subsequent
occasions in a serious charge like murder is indicative of
the fact that no credence can be given to the evidence of
these witnesses and they were willing to lend their oath to
any story that the prosecution advanced. Therefore, in an
appeal against acquittal the High Court in whose hands there
has been a reversal of the acquittal ought not to have found
the remaining evidence to be good basis for conviction of
the appellants.[96H; 97A-D]
2. The High Court fell into error in relying on the
letter of PW 1 Sunderlal to the Superintendent of Police
dated 29.4.1973 which is subsequent to the commencement of
the investigation of the basis on the First Information
Report. Such a letter written by PW 1 who stood in the place
of the prosecutor would not at all be admissible in
evidence. [97E-F]
Kali Ram v. State of Himachal Pradesh. [1974] 1 SCR
722; followed.
3. To rely on the contents of the letter Ex. P. 9
written by the Superintendent of police to his superior
officer, without examining the writer of the letter and
without affording an opportunity to the defence to cross-
examine the writer, is totally misconceived. The document
was not available to be relied upon for any purpose and the
High Court in the instant case was wrong in seeking support
from it by way of corroboration of the oral evidence. [97G-
H]
4. In view of the express words in the definition of
"abduction" in Section 362 of the I.P.C., the offence of
abduction against the accused has not been fully proved,
since the name of Vinod the leader of the party has not been
mentioned at all during the investigation and even according
to the majority of witnesses, on the persuation of the
accused (appellants) he went inside his house and came
properly dressed and to accompany the group to village
Rampura. [98C-D]
5. The appellants were not liable to be convicted under
section 367 of the Penal Code because from the non
acceptance by the High Court of the story of murder of the
deceased by the appellants and non recording a finding that
the grievous hurt leading to death was caused by them, it
will be clear that the act of picking of the deceased from
his village was unconnected with what happened later. [98F-
G]
6. The charge under section 148 I.P.C. has been
conceded by the counsel for the State to relate to what
followed at Rampura and is not connected with the accusation
of abduction. The common object as stated by the prosecution
would not be available for sustaining the conviction under
section 148 I.P.C. in that background. [98G-H]
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JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal Nos.
192-193 of 1983
Appeals by Special leave from the Judgment and Order
dated the 31st January, 1983 of the Madhya Pradesh High
Court in Criminal Appeal No. 732 of 1980.
A.N. Mulla and S.K. Gambhir, for the Appellant in C.A.
192 of 1983.
Rajendar Singh and A.K. Mahajan for the Appellants in
CA. 193 of 1983.
A.K. Sanghi for the Respondent in both the Appeals.
The Judgment of the Court was delivered by
RANGANATH MISRA, J. These appeals by special leave are
directed against the judgment of the High Court of Madhya
Pradesh reversing the order of acquittal passed by the
learned trial Judge. Criminal Appeal No. 192 of 1983 is by
Vinod Chaturvedi while the other is by five of the co-
accused. All of them had been charged for offences
punishable under Sections 148, 364 and 302/149 of the Indian
Penal Code and were acquitted by the Additional Sessions
Judge. The State of Madhya Pradesh carried an appeal being
Criminal Appeal No. 732 of 1980 to the High Court assailing
the acquittal and the High Court allowed the appeal and
while maintaining the acquittal under Section 302/149 of the
Indian Penal Code, convicted the appellants for offences
punishable under Sections 148 and 367 of the Penal Code and
directed each of them to be sentenced 3 years rigorous
imprisonment for each of the offences with a further
direction that the two sentences would run concurrently.
According to the prosecution on 27th April, 1973,
around 4 p.m. the appellants kidnapped Brindaban, the
deceased son of P.W. 1, from village Budha and took him in a
jeep to Rampura about one kilometer away on the pretext that
a pending dispute between Brindaban and some villagers of
Rampura would be settled amicably. It was further alleged
that later in the evening Brindaban was done to death by
being given several blows by blunt and deadly weapons
pursuant to the common object of the appellants of killing
him. The dead body was brought to village Budha on the
following day. Investigation as taken up on the
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basis of the first information report and as a result
thereof five persons were put on trial in session trial No.
107 of 1973 but they were acquitted by the learned trial
Judge by judgment dated 29.1.74. The trial court came to
hold that the investigation was defective and the real
accused persons had not been brought to trial. Nothing
appears to have been done in the matter until 1977 when a
fresh investigation was undertaken and it resulted in
prosecution of the appellants in the court of session as
killers of Brindaban.
Prosecution examined seven eye-witnesses being P.W. 1
Sunderlal, father of the deceased; P.W. 2 Nathu, a co-
villager and claimed to be a servant of P.W, 1 by the
defence; P.W. 3 Kalua, a nephew of the deceased; P.W, 23
Jhallu, a brother of the deceased, P.W 24, Nanhaibai wife of
the deceased, and P.Ws. 13 and 14, two outsiders who have
been declared hostile by the prosecution. The trial court
assessed the evidence in a fair way and was not prepared to
rely upon it. Accordingly he disbelieved the prosecution
case and directed acquittal of the accused persons. The High
Court did not come to the conclusion on the basis of the
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ocular evidence that the same was acceptable and on the
basis thereof a conviction could be recorded, but heavily
relied on two documents-the first being Exhibit P-1, a
letter sent by P.W. 1 Sunderlal to the Superintendent of
Police dated 29.4.73 and the second, being Exhibit P-9 a
confidential letter of the Superintendent of Police to the
Deputy Inspector General of the Department The High Court
found support for the prosecution case from these two
letters and accepting the position that their contents
corroborated the oral evidence of the witnesses proceeded to
reverse the acquittal. It, however, did not accept the
prosecution case relating to the charge of murder. Thus,
while sustaining the acquittal in respect of the charge of
murder the court convicted the appellants under Sections 148
and 367 of the I.P.C.
The peculiar features of this case are that the
prosecution had alleged that Brindaban had been murdered by
a set of five persons different from the present appellants
and had made them face a regular trial. Three most material
witnesses being P.Ws. 1, 3 and 24 of the present trial who
are close relations of deceased Brindaban had then testified
before the Court that those five accused persons and no
others including the appellants were responsible for the
death of Brindaban. After the acquittal in 1974 nothing
happened in the matter for three years and suddenly
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on the same old allegations in the hands of the police,
fresh investigation was undertaken and the present set of
accused persons were arrayed as murderers of Brindaban.
Those three eye-witnesses who on the earlier occasion had
deposed that five named assailants were the murderers of the
Brindaban changed their version and now spoke that the
present appellants were the murderers. The fact that these
alleged eye-witnesses were prepared to implicate the five
persons who were acquitted on the earlier occasion and the
present appellants on the subsequent occasion in a serious
charge like murder is indicative of the fact that no
credence can be given to the evidence of these witnesses and
they were willing to lend their oath to any story that the
prosecution advanced. Once the evidence of P.Ws. 1, 3 and 24
is brushed aside on that ground, the residue by itself would
not be adequate to support the charge. We have grave doubts
whether the High Court in whose hands there has been a
reversal of the acquittal would have found the remaining
evidence to be good basis for the conviction.
The High Court fell into a clear error in relying on
the two letters marked as Exhibit P-1 and Exhibit P-9.
Exhibit P-1 was a letter of P.W. 1, Sunderlal to the
Superintendent of Police. Admittedly by 29.4.73 when this
letter said to have been written, investigation had started
on the basis of the first information report and therefore,
a letter written by P.W. 1 who stood in the place of the
prosecutor would not at all be admissible in evidence. No
detailed reasons are warranted for this conclusion as the
position is clearly covered by a decision of this Court in
the case of Kali Ram v. State of Himachal Pradesh, Learned
counsel for the State did not refute this conclusion.
So far as the other document is concerned, as already
indicated by us, it is a letter written by the
Superintendent of Police to this administrative superior.
The writer of the letter has not been examined as a witness.
No opportunity has been given to the defence to cross-
examine the writer. To rely on the contents of that letter
in such circumstances is totally misconceived. The document
was not available to be relied upon for any purpose and the
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High Court clearly went wrong in seeking support from it by
way of corroboration of the oral evidence.
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There are several other unsatisfactory features in the
prosecution case which the trial had taken note of but
strangely enough those did not commend themselves to the
High Court even for consideration. Vinod had not been named
as the leader of the party which came to village Budha to
pick up Brindaban in the statements given during
investigation by several witnesses. These witnesses had been
confronted as required by law and apart from pleading either
innocence or helplessness, no other answer was given. Some
witnesses had deposed that Vinod the main architect of the
incident came armed with a gun while others claimed that he
was armed with a lathi. There is considerable divergence in
the evidence as to whether Brindaban came into the jeep of
his own accord or had been forcibly put into it. Most of the
witnesses have stated that on being persuaded by the accused
persons and Vinod, in particular, he went inside his house
and came properly dressed to accompany the group to village
Rampura. In that event, it cannot be said that Brindaban was
abducted by the accused persons. This is so in view of the
definition of ’abduction’ in Section 362 of the Code where
it has been said:
"Whoever by force compels, or by any deceitful
means induces, any person to go from any place, is said
to abduct that person".
The High Court has convicted the appellants for the
offence punishable under Section 367 of the Penal Code which
could be possible if there is abduction with a view to
subjecting the abducted person to grievous hurt or slavery
etc. The High Court did not accept the story of murder of
Brindaban by the appellants nor did it record a finding that
the grievous hurt leading to death was caused by the
appellants. The resultant position from it should have been
that the act of picking of Brindaban from his village was
unconnected with what happened to Brindaban later. From it
should have followed that the appellants were not liable to
be convicted under Section 367 of the Penal Code.
The charge under Section 148, I.P.C. has been conceded
by the counsel for the State to relate to what followed at
Rampura and is not connected with the accusation of
abduction. The common object as stated by the prosecution
would not be available for sustaining the conviction under
Section 148, I.P.C. in that background.
There are many other aspects with reference to which
the trial court had found fault with the prosecution case.
While we
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accept the submission advanced for the State that we should
not reassess the whole evidence with reference to minor
details, we are satisfied that the prosecution had failed to
establish the charges and the High Court without a proper
appraisal of the materials and without meeting the findings
reached by the trial court reversed the acquittal.
We accordingly allow the appeals, set aside the
judgment of conviction recorded by the High Court by
reversing the acquittal of the trial court and while
restoring the judgment of the trial court, we direct that
the appellants are acquitted of both the charges and the
sentences of imprisonment are set aside. Each of the
appellants is discharged from his bail-bond.
S.R. Appeal allowed.
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