2015 Supreme(SC) 1193

SUPREME COURT OF INDIA
Pinaki Chandra Ghose, R.K. Agrawal, JJ.
MANGU SINGH – APPELLANT
VERSUS
DHARMENDRA & ANR. – RESPONDENTS
CRIMINAL APPEAL NO. 2230 OF 2011
WITH
STATE OF U.P. – APPELLANT
VERSUS
DHARMENDRA – RESPONDENT
CRIMINAL APPEAL NO.1707 OF 2015 (Arising out of SLP(Crl.) No.9148 of 2011)
Decided on : 16-12-2015

IMPORTANT POINT
The defence needs to only establish its case based on probability, whereas the prosecution has to prove the guilt of the accused beyond reasonable doubt.

Headnote:(a) Indian Evidence Act, 1872 – Section 27 – How much of information received from accused may be proved – It is not material recovery which has to be proved, but disclosure based upon which recovery is made – Pivotal fact is making of statement to police which leads to recovery – No statement disclosing fact/material to be discovered was proved before Court – Held – High Court is correct to point out this serious lacunae. (Para 13)

       (b) Criminal Trial – Appreciation of evidence – Indian Evidence Act, 1872 – S. 101, 106 – Burden of proof – Trial Court laid undue stress on non-explanation of fact of death of the victims by accused respondent – Trial Court based conviction upon testimony of PW4, yet it took a 'U' turn to shift burden on accused under Section 106 of the Indian Evidence Act, 1872, to prove incident – Section 106 does not absolve prosecution's burden under Section 101 to prove its case of guilt of accused beyond reasonable doubt – Prosecution miserably failed to explain facts and circumstances surrounding lodging of both the FIRs, and the testimony of PW4 is proved to be crooked – Prosecution case was never a case of circumstantial evidence, till end it laid stress on the testimonies of eye-witnesses – Held – High Court rightly reversed the finding on this point of law. (Para 11)

       (c) Criminal Trial – Indian Penal Code, 1860 – S.302 r/w S.27 Arms Act – Acquitted by High Court against conviction by trial court for Murder – Delay in lodging of FIR – Motive not proved – PWs hearsay witnesses, not eye witnesses – Series of events cast doubt on lodging of FIR – Prosecution failed to prove its case beyond reasonable doubt – Held – Acquittal by trial court does not suffer from vice of perversity. (Paras 8 to 14)

       Facts of the case:

       The respondent/accused came on 18.11.2003 to Police Station, Simbhaoli, District Ghaziabad, and confessed vide a written report Ext. Ka 22, of having killed his wife and daughter. The accused's father in-law (PW1) was informed and subsequently inquest proceedings were conducted to which the PW1 is the formal witness. PW1 then lodged another FIR against his son-in-law for having committed the murder of his daughter through a gun-shot injury and also of his wife by throttling. Investigation was thrown into the offence and at the instance of the accused a country-made 12-bore pistol and empty shell Ext. A-6, were recovered on 19.11.2003. Since the occurrence was found to have taken place in territorial jurisdiction of Police Station, Babugarh, the senior officers sought to get the investigation conducted through Police Station, Babugarh after about one month since the FIR was lodged.

       Charge-sheet was filed against the accused. Accused was charged for the offences punishable under Sections 302 of the Indian Penal Code, 1860 (hereinafter referred to as “IPC”) and also Section 25 of the Arms Act. The accused pleaded not guilty and in his statement under Section 313, rebutted that the alleged murder was due to loot in which his daughter and wife were killed and he had sustained gun-shot injury in his thigh. The confessional written statement which formed the basis of the first FIR was replied by the accused to be under threat from the police and he claimed to be falsely implicated in the case.

       Trial Court by its judgment and order dated 25th January, 2006, convicted the accused for both the offences charged and sentenced him to imprisonment for life. The convictions were based on the evidences of the eye witnesses and the recovery of the weapons used which were further corroborated by the admission made to the police officers, the motive being established and also non-explanation by the accused of the facts within his knowledge as mandated under Section 106 of the Indian Evidence Act, 1872. The accused challenged the conviction order before the High Court and the High Court by the impugned judgment and order allowed the appeal on the ground that the prosecution failed to bring home the guilt of the accused beyond reasonable doubt. The acquittal was based on ground that both the FIRs were ante-timed and the eye witnesses who were relied upon by the Trial Court were interested and unreliable witnesses. The motive was neither investigated nor established and the conviction order was perverse and against the sound legal principles.

       Finding of the Court:

       High Court was justified in doubting the veracity of the prosecution case and recording the verdict of acquittal, which does not suffer from the vice of perversity.

       Result: Appeals dismissed.