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SUPREME COURT OF INDIA
B.R. GAVAI, M.M. SUNDRESH, JJ.
Ranvir Singh etc. etc. - Appellants
Versus
The State of Madhya Pradesh - Respondents
Criminal Appeal Nos. 1384-1385 of 2009, 700 of 2011
Decided on : 12-01-2023
(A) Indian Penal Code, 1860 – Section 304 Part II – Culpable homicide not amounting to murder – Life sentence – No test identification parade was done – Wife of deceased identified appellant only in Court – Evidence of PWs is mutually inconsistent – Investigating Officer, this witness was expected to tell truth – Though a report of Investigating Officer would constitute an opinion, very case of prosecution that it is he who recorded statement of deceased taken in form of FIR creates a very serious doubt – His evidence is not only contradictory, but also destructive – Suppression of statement given by other witnesses would go to root of matter – It is highly doubtful as to whether deceased would be conscious enough to give statement, particularly in light of injuries suffered by him – Though test identification parade is not a substantive piece of evidence, at times, it adds strength to case of prosecution by giving more credibility to statements of eye witnesses which is grossly lacking – Trial Court and High Court did not apply their mind to various aspects – Appellants acquitted by conferring benefit of doubt. (Paras 9, 17, 18, 19, 20, 29, 31, 33, 34 and 38)
(B) Indian Penal Code, 1860 – Section 149 – Common object of unlawful assembly – In a case involving applicability of Section 149 IPC, a little more scrutiny is required on part of Court as there may be a tendency to implicate persons along with actual accused who committed offence – Courts will have to be very circumspect while sifting through evidence in such cases – In case on hand, it would be unsafe to implicate accused persons under Section 149 IPC which deals with element of vicarious liability. (Para 35)
Facts of the case:
Conviction and sentence rendered by High Court of Madhya Pradesh, Bench at Gwalior, confirming life imprisonment rendered by 2nd Additional Sessions Judge, Shivpuri, while modifying a similar sentencing to that of seven years, is under challenge in instant criminal appeals.
Findings of Court:
If deceased was so badly injured, and therefore died within few days of his admission into the hospital, nothing prevented P.W.20 to record the statement in the presence of a Judicial Magistrate and duly certified by Doctor.
Result : Appeals allowed. Appellants acquitted.
JUDGMENT :
M.M. Sundresh, J.
1. The application for condonation of delay in filing the application for restoration as well as the application for restoration are allowed in Criminal Appeal No.700 of 2011.
2. Conviction and sentence rendered by the High Court of Madhya Pradesh, Bench at Gwalior, confirming the life imprisonment rendered by the 2nd Additional Sessions Judge, Shivpuri, while modifying a similar sentencing to that of seven years, is under challenge before us.
THE CASE AS UNFOLDED THROUGH THE PROSECUTION’S EYES IS:
3. The appellants, along with his group of men, and the deceased, were having prior enmity. It arose pursuant to a water dispute, as the appellants and the villagers allegedly did not appreciate entry into their village facilitated by the purchase of properties by the deceased. The occurrence took place on 25.07.1992 at about 10.00 a.m. The first information was recorded by P.W.20, the Police Officer, who also conducted the investigation, from one of the deceased, Hukum Singh, who subsequently died on 28.07.1992.
4. Under Ex. P-28, Dehati Nalishi, which was recorded as the first information report, the deceased Hukum Singh allegedly made a statement about the prior incident. The Dehati Nalishi further proceeded to state that when he along with the other deceased Kishori Kachi and the eye witness P.W.12, Hakim Singh, went out to attend the nature’s call, the accused persons armed with weapons, including truncheon and axe, attacked them indiscriminately. In pursuance of the said common objective, all three of them were taken by the attackers to their place, as witnessed by their family members and relatives. This was done despite the request made by one Bhogiram and Bhaggo Bai, P.W.18. They were also attacked, but Bhogiram was dumped on the way. The family members of the deceased Hukum Singh, inclusive of his daughters-in-law, daughters, Bacchu (P.W.13) and Sirnam Kachi were not present at the place of occurrence, during the time of the offence. Complaint could not be lodged as the deceased Hukum Singh was not allowed to leave, while Kishori died.
5. The statement made by the deceased Hukum Singh was recorded by P.W.20 at the place of occurrence. He died subsequently on 28.07.1992, after three days in the hospital. It is to be noted that no attempt was made to record the statement either before the Jurisdictional Magistrate or in the presence of a doctor. On a perusal of the records, we find that the thumb impression of the deceased was affixed in the middle of Dehati Nalishi, and words have been written over it, thus giving an impression that it was an after-thought.
6. The appellants namely, Sardar Singh and Dhola Ram, were convicted along with the other accused for the offences punishable under Sections 148, 302/149 and 324/149 of the Indian Penal Code, 1860 (hereinafter referred to as “IPC”), by the Trial Court for committing the murder of two persons. However, the High Court, while confirming the life imprisonment for the death of the deceased Kishori Kachi, modified the same qua the deceased Hukum Singh, to one punishable under Section 304 Part II IPC. Three of the accused convicted by the Trial Court died during the pendency of the present proceedings, while five of them had completed their sentence, and were therefore released. The appellants have undergone incarceration for a period of nine years.
7. Before the Trial Court, the prosecution examined 21 witnesses, out of which 6 of them were eye witnesses. One eye witness, Bhogiram, died during the pendency of the proceedings, and hence not examined as a witness.
8. We now proceed to discuss the depositions of the prosecution witnesses.
P.W.1:
9. This witness is the wife of the deceased Hukum Singh. She identified the accused persons only in the Court. Admittedly, no test identification parade was done. Her deposition was recorded three years after the incident. Though, she asserted that she was an eye witness, it was obviously contrary to the Dehati Nalishi
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