Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2022 Supreme(SC) 646

SUPREME COURT OF INDIA
N.V. Ramana, CJI., Krishna Murari, Hima Kohli, JJ.
Jai Prakash Tiwari - Appellant
Versus
State of Madhya Pradesh - Respondent
Criminal Appeal No. 704 of 2018
Decided On : 04-08-2022

Advocates appeared:
For the Appellant(s) : Mr. Vikas Upadhyay, AOR Mr. Kaustubh A., Adv.
For the Respondent(s): Mr. Pashupathi Nath Razdan, AOR Mr. Mirza Kayesh Begg, Adv. Mr. Prakhar Srivastav, Adv. Mr. Astik Gupta, Adv. Ms. Ayushi Mittal, Adv. Mr. Pulkit Aggarwal, Adv.

IMPORTANT POINTS
(1) Examination of accused – Object of Section 313 of Cr.P.C. is to establish a direct dialogue between court and accused – A reasonable opportunity entails putting all adverse evidences in the form of questions so as to give an opportunity to accused to articulate his defence and give his explanation.
(2) A close relative cannot automatically be characterized as an “interested” witness.
(3) It is duty of Court to separate grain from chaff and to extract truth from mass of evidence.

Headnote:
(A) Criminal Procedure Code, 1973 – Section 313 – Constitution of India – Article 21 – Examination of accused – Section 313, Cr.P.C. confers a valuable right upon accused to establish his innocence and can well be considered beyond a statutory right, as a constitutional right to a fair trial under Article 21 of Constitution – Object of Section 313 of Code is to establish a direct dialogue between court and accused – A reasonable opportunity entails putting all adverse evidences in the form of questions so as to give an opportunity to accused to articulate his defence and give his explanation – If all circumstances are bundled together and a single opportunity is provided to accused to explain himself, he may not able to put forth a rational and intelligible explanation – Such, exercises which defeats fair opportunity are nothing but empty formality – Non-fulfilment of true spirit of Section 313 may ultimately cause grave prejudice to accused and Court may not have benefit of all necessary facts and circumstances to arrive at a fair conclusion – Such omission does not ipso facto vitiate trial, unless accused fails to prove that grave prejudice has been caused to him. (Paras 19, 25, 26, 27 and 28)
(B) Indian Penal Code, 1860 – Section 307 – Arms Act, 1959 – Sections 25 and 27 – Attempt to murder – Conviction and sentence – A close relative cannot automatically be characterized as an “interested” witness – However, even related witness statements need to be scrutinized more carefully – Mother of complainant claimed to have witnessed incident – It seems highly improbable that mother of complainant instantly recognized Appellant-accused at night – No effort has been made to conduct identification test, to associate accused-appellant with alleged incident – There has been no recovery of any pellet, empty cartridge, or any remains of gunpowder from spot – In absence of a ballistic report, there is no clear connection between seized weapon and alleged incident – There is no linking factor between seized vehicle and alleged incident – Alternate version put forth by appellant-accused could not be ignored – Courts below failed to scrutinize defence version put forward by appellant-accused in his Section 313, Cr.P.C. statement – Evidence of accused has been dealt by Court in a casual manner – When there is absence of independent evidence corroborating statements made by complainant, serious doubts regarding recovery of alleged motorcycle and country made pistol, no connection proved between alleged recovered items and alleged incident, and plausible version put forward by accused-appellant in his Section 313, Cr.P.C. statement has not been satisfactorily responded to by prosecution, case against accused-appellant cannot be sustained – Case of prosecution is based on mere conjectures and surmises – Conviction and sentence passed against appellant set aside. (Paras 10, 12, 13, 17, 19, 30, 31, 32 and 33)
(C) Indian Evidence Act, 1872 – Section 106 – Criminal Procedure Code, 1973 – Section 313 – Burden of proof – Burden of proving guilt of accused beyond reasonable doubt is upon prosecution – Where an accused sets up a defence or offers an explanation, he is not required to prove his defence beyond a reasonable doubt but only by preponderance of probabilities – It is the solemn duty of courts below to consider defence of accused – Same must be considered with caution and must be scrutinised by application of mind by Judge – Court may accept or reject the same, however it cannot be done cursorily – Reasoning and application of mind must be reflected in writing. (Paras 29 and 30)
Facts of the case:
Present appeal arises from the judgment dated 26.05.2017 passed by the High Court of Madhya Pradesh at Jabalpur in Criminal Appeal No. 1870/2005. High Court dismissed the appellant’s appeal against judgment dated 18.08.2005 passed by the First Additional Sessions Judge, Sidhi in Sessions Trial No. 119/2003, confirming his conviction under Section 307 of the Indian Penal Code, 1860 and Sections 25 and 27 of Arms Act, 1959. Appellant was sentenced to undergo three years of rigorous imprisonment with fine of Rs.500/- under Section 307 IPC. He was further sentenced to undergo three years of rigorous imprisonment with fine of Rs.1,000/- under Section 27 of Arms Act and one year of rigorous imprisonment with fine of Rs.500/- under Section 25 of the Arms Act. Appellant has undergone approximately 1 year, 7 months of his sentence and was released on bail by this Court during pendency of the present appeal.
Findings of Court:
High Court and the trial Court failed to consider the circumstances while rendering the judgment convicting the accused. The evidence brought on record by the prosecution is insufficient to prove the case against the appellant beyond reasonable doubt.
Result : Appeal allowed

JUDGMENT :

N.V. RAMANA, CJI.

1. The present appeal arises from the judgment dated 26.05.2017 passed by the High Court of Madhya Pradesh at Jabalpur in Criminal Appeal No. 1870/2005. The High Court dismissed the appellant’s appeal against judgment dated 18.08.2005 passed by the First Additional Sessions Judge, Sidhi in Sessions Trial No. 119/2003, confirming his conviction under Section 307 of the Indian Penal Code, 1860 (‘IPC’) and Sections 25 and 27 of the Arms Act, 1959 (‘Arms Act’).

2. The appellant was sentenced to undergo three years of rigorous imprisonment with fine of Rs.500/- under Section 307 IPC. He was further sentenced to undergo three years of rigorous imprisonment with fine of Rs.1,000/- under Section 27 of the Arms Act and one year of rigorous imprisonment with fine of Rs.500/- under Section 25 of the Arms Act. Appellant has undergone approximately 1 year, 7 months of his sentence and was released on bail by this Court during the pendency of the present appeal.

3. The factual matrix as per the prosecution is that, on 14.02.2003 at about 10:30 p.m., the appellant and co-accused went to the complainant’s house and called him outside. When the complainant came out, the appellant fired at him with a country-made pistol. The complainant (PW2) is stated to have run into the house and escaped injury while the appellant and co-accused fled from the spot on their motorcycle. The complainant’s mother (PW3) was allegedly present in the house at the time of the incident and the complainant’s neighbours (PW1, PW10, PW11) arrived upon hearing the sound of gunfire. The firearm used in the alleged incident is stated to have been recovered from the appellant, along with an empty cartridge.

4. The prosecution charged the appellant and co-accused under Section 307/34 IPC and Sections 25(1B) (a) and Section 27(1) of the Arms Act. After perusal of evidence on record and examination of witnesses, the trial Court convicted and sentenced the appellant as specified above while acquitting the co-accused, as the prosecution had failed to prove the charges against him. By way of impugned order dated 26.05.2017, the Madhya Pradesh High Court confirmed the appellant’s conviction and sentence. Aggrieved, the appellant approached this Court in appeal by way of special leave.

5. The learned counsel for the appellant has contended that the entire case of the prosecution is based on the testimony of the complainant (PW2) and the hearsay evidence of his mother (PW3), who is an interested witness, and there is no corroborative evidence or independent witness to support their testimonies. He has submitted that the prosecution witnesses to both the incident as well as the alleged recovery of the firearm have turned hostile. He has also relied on the testimony of the IO (PW9) to state that no empty cartridges or pellets were recovered from the place of incident, which casts a doubt upon the prosecution’s case. Learned counsel for the appellant has submitted that the complainant has a close nexus with the police department as his father is a retired Inspector and his brother and sister are also police officers. He also submits that besides the complainant, no witness has been produced by the prosecution who had seen the appellant at the site of the incident.

6. Learned counsel for the respondent-State, on the other hand, has supported the concurrent judgments of conviction given by the courts below. He has stated that there is no error in relying on the statements of the complainant (PW2) and his mother (PW3), whose testimony is corroborated by ballistic evidence and seizure of the firearm and empty cartridge from the appellant.

7. Heard the learned counsel on merits and perused the material on record.

8. The prosecution strongly relies upon the statement of the complainant and his mother. A perusal of the statement of the complainant reveals that the accused-appellant had come in front of his house and upon asking as to why they were here, the accused-appella