Full Judgment Text
2023 INSC 699
NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1771 OF 2009
VIJAY AND ANR. APPELLANT(S)
VERSUS
STATE OF MADHYA PRADESH RESPONDENT(S)
WITH
CRIMINAL APPEAL NO.286 OF 2010
J U D G M E N T
B.R. GAVAI, J.
1. Both these appeals challenge the judgment and order dated
th
16 September 2008, passed by the Division Bench of the High
Court of Madhya Pradesh at Indore in Criminal Appeal No. 666 of
1999, thereby dismissing the appeal filed by the
Accused/Appellants, namely Vijay s/o Nirbhay Singh, Babbu @
Nandkishore s/o Ramesh and Mahesh s/o Mohan Singh and
th
upholding the order of conviction and sentence dated 19 April
st
1999, as recorded by the learned 1 Additional Sessions Judge,
Signature Not Verified
Digitally signed by
GEETA AHUJA
Indore, M.P. (hereinafter referred to as “the learned Trial Court”)
Date: 2023.08.11
11:29:23 IST
Reason:
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in Sessions Case No. 459 of 1998 in respect of the appellants
herein.
2. Shorn of details, the facts leading to the present appeals are
as under:
nd
2.1 On 2 August 1998, Narendra Singh Bais (PW-12), posted
at the Police Out Post, Vijay Nagar, under Police Station, MIG.,
was informed that a person had been done to death by stabbing
and causing cut wounds in Meghdoot Garden and Prem Narain
(PW-5) had given a Dehati Report with regards to the said incident.
In the said Report, he had stated that he was a resident of
Ramnagar and about 03 months before the date of the aforesaid
incident, his elder son, Jagdish (the brother of the deceased) was
beaten by the Accused/Appellants Babbu @ Nandkishore, Vijay,
Naresh, and Deepak and a Report to that extent was also lodged
at P.S. Hiranagar, and ever since the said incident, the accused
persons were harboring enmity against the brother of the
deceased. On the date of the incident, the younger son of PW-5,
i.e., Dharmendra (deceased) had gone for a walk in the Meghdoot
Garden and had not returned by 8.30 PM; when PW-5 went to
look for him in the said garden, he saw that the
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Accused/Appellants Babbu, Vijay and Mahesh were stabbing the
deceased with knives. When he shouted for help, the accused
persons fled away; following which, he found a large number of
injuries that had been caused to the deceased which resulted in
his death.
2.2 The prosecution case, in a nutshell, is that, on the said
information given by PW-5, PW-12 recorded a Dehati Nalishi at
the Police Choki and a report was accordingly sent to P.S. MIG for
registration of offences punishable under Sections 302/34 of the
Indian Penal Code, 1860 (hereinafter referred to as “IPC”) and
after recording the said information, a First Information Report
(“FIR” for short) vide Crime No. 493 of 1998 was registered. It was
further the case of the prosecution that, Sayyed Azhar Ali Warsi
(PW-9), who was working as the Town Inspector, on receiving the
aforesaid information on wireless, proceeded to the place of the
incident. When he reached the place of occurrence, he saw the
dead body of the deceased and accordingly prepared the Inquest
Memo and the Spot Map. He also seized the blood-stained and
plain earth along with a white colour shirt and forwarded the dead
body of the deceased to the Hospital for post-mortem
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examination. Dr. P.S. Thakur (PW-11), who performed the
autopsy gave a report, which stated that 31 injuries were found
on the body of the deceased out of which 08 injuries were stab
wounds and the rest were incised wounds.
2.3 The Accused/Appellants were arrested and the clothes along
with the murder weapons were seized at their instance. The seized
articles were sent to the Forensic Science Laboratory for analysis
and a report was accordingly received.
2.4 After the investigation, a chargesheet came to be filed in the
Court of learned Judicial Magistrate First Class, Indore which
committed the case to the learned Sessions Court which
forwarded the same to the learned Trial Court for conducting the
trial and deciding over the matter.
2.5 Charges came to be framed by the learned Trial Court for the
offences punishable under Sections 302/34 of the IPC. The
accused pleaded not guilty and claimed to be tried.
2.6 The prosecution examined 12 witnesses to bring home the
guilt of the accused. Their defense was that they were falsely
implicated on account of earlier enmity. After the trial, the learned
Trial Court found that the prosecution had proved the case
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against the accused/appellants beyond reasonable doubt and
accordingly convicted them for offences punishable under
Sections 302/34 IPC and sentenced them to undergo life
imprisonment along with fine.
2.7 Being aggrieved thereby, the Accused/Appellants preferred
an appeal before the High Court. The High Court by the impugned
judgment and order affirmed the order of conviction and sentence
of the Accused/Appellants awarded by the learned Trial Court.
Hence, the present appeals.
3. We have heard Shri Sushil Kumar Jain, learned Senior
Counsel, and Mr. Pradeep Aggarwal, learned counsel for the
appellants, and Ms. Rukhmini Bobde, learned counsel for the
respondent-State of Madhya Pradesh.
4. Shri Sushil Kumar Jain submits that the conviction is based
solely on the testimony of Prem Narain (PW-5), the father of the
deceased. He submits that his testimony is full of contradictions.
It is, therefore, submitted that the conviction, which was solely
based on the testimony of such a witness, is not sustainable in
law.
5. Per contra, Ms. Rukhmini Bobde submits that, merely
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because the conviction was based on the sole testimony of PW-5
cannot be a ground to interfere with. She submits that the
learned Trial Court and the High Court have concurrently found
the testimony of PW-5 to be reliable and as such, no interference
is warranted in the present appeals.
6. Since it is not disputed that the death of the deceased is
homicidal, it is not necessary to refer to the medical evidence.
7. Apart from Prem Narain (PW-5), who is the father of the
deceased, Virender Sahu (PW-4) and Jagdish (PW-8), who are the
brothers of the deceased, were also examined as eye-witnesses.
However, testimonies of Virender Sahu (PW-4) and Jagdish (PW-
8) have been disbelieved by both the learned Trial Court as well
as the High Court.
8. Kamal Singh (PW-1) and Kalidas (PW-2), who were Police
Constables, posted at the Meghdoot Garden where the incident
was alleged to have taken place, have not supported the
prosecution case. Dildar Singh (PW-3), the Kulfi Vendor, has also
not supported the prosecution case. The guard Ram Kishor Singh
(PW-6), posted at the Meghdoot Garden, who had informed about
the dead body, has also not supported the prosecution case and
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has turned hostile. The rest of the witnesses are either
Investigating Officer (I.O.) or other Police officers conducting the
investigation.
9.
As such, it is only the testimony of Prem Narain (PW-5), the
father of the deceased, which is required to be taken into
consideration.
10. No doubt, that the conviction can be based on the evidence
of a solitary witness. However, for resting the conviction on the
basis of such testimony, the evidence of such a witness has to be
found to be wholly trustworthy, reliable, and cogent. It is further
to be noted that Prem Narain (PW-5) has admitted to the previous
enmity between his family on the one hand and the accused
persons on the other hand. As held by this Court in a catena of
judgments, previous enmity is a double-edged weapon. On one
hand, it provides motive, and on the other hand, the possibility of
false implication cannot be ruled out.
11. In this background, we will have to examine the testimony
of Prem Narain (PW-5).
12. Prem Narain (PW-5) in his examination-in-chief stated that,
nd
on 2 August 1998, which was a Sunday, at around 8.45 P.M.,
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he had gone in the Meghdoot Garden to search for his younger
son Dharmender. When he went there, he saw that three boys
were killing his son. He named them to be Babbu @ Nandkishore,
Mahesh and one of them a Rajput whose name he did not
remember. He later identified the said person to be ‘Vijay’. He
also stated that when he reached the spot, the crowd had
gathered at a distance from his son upon which he had seen the
accused persons present in the court fleeing from there. They
were armed with knives and the clothes of these three persons
were stained with blood. He further stated that though he raised
an alarm, nobody from the crowd came to save him. When he
reached near his son, he saw him lying in a pool of blood on the
ground. He stated that thereafter he became nervous. After some
time, Police came there and asked him the names of the accused
persons.
13. In his examination-in-chief, he stated about the prior
incident wherein his elder son Jagdish (PW-8) was beaten up by
these three accused persons along with one Deepak.
14. In his cross-examination, he admitted that his house is at a
distance of about 200 meters from the Meghdoot Garden. He
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submitted that since his brother-in-law Tula Ram had come to
his house, all the members of his family were present. He stated
that when his brother-in-law asked about Dharmender, he alone
went in search of him. He stated that he had not been told by
anyone that his son is in Meghdoot Garden, but he went there on
his own accord. The reason given by him is that his son used to
go to Meghdoot Garden to take a walk.
15. It is relevant to refer to his admission in his cross-
examination, which is as under:
“It is correct that I had gone to see
Dharmender in Meghdoot Garden by chance
because he used to go there only. My wife had
not said that he had gone Meghdoot Garden
and therefore to bring him back.”
16. He further admitted that when he entered Meghdoot
Garden, he saw the crowd and there were about 7-8 persons. He
stated that he could not identify the said 7-8 persons. He stated
that only after reaching near the dead body, he could recognise
that the said dead body was that of his son.
17. He further admitted that only a few people come towards the
bridge when it gets dark. It is further his admission that there is
no light near the bridge. It is his clear admission that there was
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darkness from the bridge towards Ram Nagar in which direction
the accused persons, according to him, fled.
18. As already stated herein above, there is an admitted previous
enmity between Prem Narain (PW-5)’s family on one hand and the
accused persons on the other hand. The learned Trial Court and
the High Court have disbelieved the evidence of Virender Sahu
(PW-4) and Jagdish (PW-8), who are the other sons of Prem Narain
(PW-5).
19. As discussed herein above, there are material contradictions
in the testimony of Prem Narain (PW-5). From the tenor of the
evidence, it is doubtful, as to whether he has really witnessed the
alleged incident or not. Can it be a mere coincidence that Prem
Narain (PW-5) goes to the Meghdoot Garden to search for his
younger son Dharmender and at the same time, he finds the
appellants assailing the deceased and thereafter run away? It is
also questionable, as to whether in the darkness he could see who
the assailants were?
20. As discussed herein above, no doubt that the conviction can
be rested on the testimony of a sole eye-witness. However, the
evidence of such a witness has to be found to be wholly
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trustworthy, reliable, and cogent. We do not find that the
evidence of Prem Narain (PW-5) is of such a quality that would
inspire confidence in the Court.
21.
We are, therefore, of the considered view that the appellants
are entitled to the benefit of doubt.
22. The appeals are accordingly allowed. The judgment and
th
order dated 19 April 1999 of the learned Trial Court thereby
convicting and sentencing the appellants for offences punishable
under Section 302/34 IPC as well as the judgment and order
th
dated 16 September 2008 of the High Court affirming the same,
are set aside.
23. The appellants are acquitted of all the charges. The bail
bonds of the accused shall stand discharged.
24. Pending application(s), if any, shall stand disposed of.
..............................J
(B.R. GAVAI)
..............................J
(M.M. SUNDRESH)
NEW DELHI;
JANUARY 11, 2023
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