Penal Code, 1860: s. 302 rw s. 34 – Murder – Prosecution case that three accused, A1, A2 and A3 in furtherance of common intention, attacked, brother of A1 with weapons, resulting in his death – A2 took victim to the hospital and sent information to the police that the assault was committed by PW 6 and 7 – Conviction and sentence of A1, A2 and A3 u/s. 302 rw s. 34 by the courts below – Appeal by A2 and A3 before this Court – Held: Right from the beginning there was an attempt on the part of the prosecution to shield the culprits named in the first FIR, on account of political pressure, as admitted by the IO and corroborated by the main witness – IO carried out the investigation with the intention to turn the informant and her family members as the accused and allow the real culprits named in the FIR to escape – Admissions on the part of the main witness made the prosecution case completely untrustworthy – Prosecution witness who allegedly witnessed the seizure turned hostile – Courts below overlooked the important admissions made by the IO and the main witness – They did not take into account the normal human conduct – There was failure on the part of the prosecution to establish that the blood stains contained on the knife and lathis were that of the deceased – Furthermore, it is unbelievable that the three accused (A-1, 2 and 3) caused the death of the victim due to his failure to return Rs.250/-, due and payable to a third person (PW-7) and that thereafter, they deliberately named PW-7 as the accused – Thus, order of conviction of A2 and A3 by the courts below, set aside – Since the story of the prosecution has been disbelieved in entirety, to deny the benefit of the said conclusion to A1 merely on ground of a technicality that he is not on appeal would be unjustified – Conviction of A12 also set aside. Criminal law: Alibi – Plea of – Effect on investigation – Held: At times persons committing a crime, themselves lodge the first information, to create an alibi of innocence – However, in such cases the investigation would normally proceed first against those named as accused in the FIR and, thereafter, the suspicion may turn against the informant himself.
Constitution of India: Art. 142 – Power under – Scope of – Benefit of the instant appeal to co-accused who has not come up on appeal – Denial of – Held: Denial of the benefit of the conclusion of the matter in the appeal, to the said co-accused merely on the ground of a technicality that he is not on appeal would be gross injustice, when this Court is empowered u/Art. 142 to do complete justice – On facts, this Court has not proceeded on the basis of individual overt acts on the part of accused in appeal, to conclude that they are entitled to acquittal – Thus, conviction and sentence of the co-accused also set aside.
Allowing the appeals, the Court
HELD: 1.1 It is quite strange and completely unfathomable as to how, where, why and at what point of time, the investigation that should have started against PWs 6 and 7 took a U-turn and proceeded towards the very informant and her family members. Right from the beginning, the defence taken by the accused was that due to political influence, they were made accused and the actual accused were made witnesses. This stands corroborated by the admission made by PW-14 (IO) that when he took up the investigation on 14.05.2008, there were demonstrations held by political parties. What is shocking is the admission made by PW14 during cross-examination that he was not aware, at the time when he started the investigation in the morning, whether the accused named in the FIR, namely, PWs 6 and 7 were in police custody. But he admitted that after he took up investigation, he did not arrest both of them. The reason why the IO did not even suspect the role of PWs 6 and 7 in the commission of the crime, remains unexplained. This Court is conscious of the fact that at times persons who commit a crime, themselves make/lodge the first information, so as to create an alibi of innocence. But even in such cases the investigation would normally proceed first against those named as accused in the FIR and, thereafter, the needle of suspicion may turn against the informant himself. [Para 15, 16, 17][460-G-H; 461-A-D]
1.2 It happens at times that the real culprit lodges the first information against known or unknown persons, to misdirect the investigation of an offence. But even in such a case, it is only during the course of investigation into the first FIR that the case may take a U-turn. When it does, the informant may also have to face additional charges for the offences punishable under various provisions of Chapter XI of IPC. This is exactly the reason why, in this case, the prosecution charged A-2 for the offences punishable under sections 194 and 211 IPC. But the trial court acquitted her of the charges under these two provisions. [Para 19][462-D-F]
1.3 The story built by the prosecution was that A-1 had a quarrel with his brother (the deceased), sometime before the commission of the crime, over the non-repayment of a sum of Rs.250/- by the deceased to PW 6 and that in the quarrel, A-1 got injured and that thereafter all the 3 accused attacked the victim resulting in his death. A-1 had no reason to take up the cause of PW 6 and go to the extent of committing the murder of his own brother. But unfortunately, the Trial Court believed this story on the basis of the testimony of DW-1, the mother of both A-1 and the deceased. All that DW-1 stated in her testimony was that A-1 questioned the deceased as to why he was not returning the money due and payable to PW 6. [Para 25][464-E-H]
1.4 Coming to the testimony of PW-9, projected as the star witness for the prosecution, the explanation given by the IO for recording her statement, after 21 days of the occurrence of the crime, is unbelievable. In any case, if her evidence is to be accepted, it should be accepted in total. One portion of her evidence is extracted, where she categorically admitted that PW
6 and 7 were originally taken into custody and that there were protests from the people of the caste to which they belonged and that those people also put pressure on the police to give a clean chit to PW 6 and 7. These admissions on the part of PW-9, made the prosecution case completely untrustworthy. [Para 26][464G; 465-A-B]
1.5 Apart from the fact that the witnesses in whose presence the seizure of the weapons was allegedly effected, had turned hostile, there was also one more thing. There is nothing on record to show that the blood stains said to have been present in those weapons, matched with the blood of the deceased. Unfortunately, the High Court proceeded on a wrong premise that there was scientific evidence to point to the guilt of the accused, merely because as per the FSL Report, the knife and lathis said to have been seized by the police, contained stains of human blood. The prosecution has not established either through the report of FSL or otherwise, that the blood stains contained in the knife and lathis were that of the deceased. [Para 27][465-B-E]
1.6 PW-1, who allegedly witnessed the seizure had turned hostile. Right from the beginning there has been an attempt on the part of the prosecution to shield the culprits named in the first FIR, on account of political pressure, as admitted by PW-14 and corroborated by PW-9, whom the prosecution considered to be a star witness. Unfortunately, both the Sessions Court and the High Court completely overlooked these aspects. [Para 33][467B-D]
1.7 The investigation in this case was carried out by PW14, not with the intention of unearthing the truth, but for burying the same fathom deep, for extraneous considerations and that it was designed to turn the informant and her family members as the accused and allow the real culprits named in the FIR to escape. Both the Sessions Court as well as the High Court completely overlooked some of the important admissions made by PWs 9 and 14. They have not even taken into account the normal human conduct. It is unbelievable that A-1, A-2 and A-3 caused the death of A-1’s brother due to the failure of the victim to return an amount of Rs.250/- due and payable to PW-7 and that thereafter, they deliberately named PW 7 as the accused. It is equally unbelievable that one of the persons who killed the victim, in the presence of witnesses, took the body of the victim to the hospital in an autorickshaw. The normal human behaviour in such circumstances will be either to flee the place of occurrence or to go to the police station to surrender, except in cases where they are intelligent and seasoned criminals. Neither did happen. [Para 35][467-E-H; 468-A]
1.8 It is noted that A-1 has not come up on appeal. Though the counsel for the State submitted that A-1’s case stands on a completely different footing and that therefore, in the absence of an independent appeal by him, he cannot be granted any relief, cannot be accepted. This is not a case where this Court have proceeded on the basis of individual overt acts on the part of A2 and A-3-appellants to conclude that they are entitled to acquittal. This is a case where in entirety, the story of the prosecution is disbelieved. Therefore, to deny the benefit of the said conclusion to A-1 merely on the ground of a technicality that he is not on appeal would be to close eyes to a gross injustice, especially when this Court is empowered under Article 142 to do complete justice. [Para 36][468-A-D]
1.9 The conviction by the Sessions Court and upheld by the High Court as against all the three accused including A-1 are set aside. [Para 37][468-D]
Kari Choudhary v. Mst. Sita Devi & Ors. (2002) 1 SCC
714 : [2001] 5 Suppl. SCR 588; Raghav Prapanna Tripathi v.The State of Uttar Pradesh AIR 1963 SC 74 : [1963] SCR 239; Kansa Behera v.State of Orissa (1987) 3 SCC 480 : [1987] 2 SCR 1096; Surinder Singh v. State of Punjab (1989) 2 Suppl. SCC 21; Raghunath, Ramkishan & Ors. v. State of Haryana (2003) 1 SCC
398 : [2002] 4 Suppl. SCR 130; Sattatiya v. State of Maharashtra (2008) 3 SCC 210; State of Rajasthan v. Teja Ram and Others (1999) 3 SCC 507; Gura Singh v. State of Rajasthan (2001) 2 SCC 205 : [2000] 5 Suppl. SCR 408; Prabhu Dayal v. State of Rajasthan (2018) 8 SCC 127; R. Shaji v. State of Kerala (2013)
14 SCC 266 : [2013] 3 SCR 1172; Prabhu Babaji Navle v. State of Bombay AIR 1956 SC 51; John Pandian v. State (2010) 14 SCC 129 : [2010] 15 SCR 1012; Sunil Clifford Daniel v. State of Punjab (2012) 11 SCC 205 : [2012] 7 SCR 1100; Balwan Singh v. State of
Chhattisgarh (2019) 7 SCC 781 : [2019] 11 SCR 1 – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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