Supreme Court of India (Division Bench (DB)- Two Judge)

Appeal (Crl.), 2230 of 2011, Judgment Date: Dec 16, 2015

                                                                  REPORTABLE
                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION
                      CRIMINAL APPEAL NO. 2230 OF 2011

MANGU SINGH            …..                                       APPELLANT(S)

                                   VERSUS

DHARMENDRA & ANR.           …..                                 RESPONDENT(S)

                                    WITH
                      CRIMINAL APPEAL NO.1707  OF  2015
                 (Arising out of SLP(Crl.) No.9148 of 2011)

STATE OF U.P.                     …..                            APPELLANT(S)

                                   VERSUS

DHARMENDRA             …..                                      RESPONDENT(S)



                               J U D G M E N T
Pinaki Chandra Ghose, J.
Leave granted in SLP(Crl.) No.9148 of 2011.
These appeals have been  directed  against  the  judgment  and  order  dated
06.08.2010 passed by the High Court of Judicature at Allahabad  in  Criminal
Appeal No.1417 of 2006, wherein the accused/respondent was acquitted by  the
High Court against the Judgment of  life  imprisonment  as  awarded  by  the
Trial Court.  Criminal  Appeal  No.2230  of  2011  has  been  filed  by  the
complainant/informant and the connected matter, i.e. Special leave  Petition
(Criminal) No.9148 of 2011 is filed by the State against  the  acquittal  of
the accused/respondent.

The brief  facts  necessary  to  dispose  of  these  appeals  are  that  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.

After investigation, charge-sheet  was  filed  against  the  accused.  After
considering the material on record and hearing the counsel, the 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 charges were read over  and  explained  to  the  accused.  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.

The 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.

The Informant PW1 has filed the present appeal before this Court. The  State
is also before us by filing special leave petition   against  the  acquittal
order. The learned counsel for the State has argued in line of the  decision
arrived at by the Trial Court. It is vehemently argued that  the  motive  of
the accused that he wanted to get rid of the victims so that he could  marry
his love, was proved by the testimony of PW1. The respondent was alone  with
the two victims and it was his duty as provided under  Section  106  of  the
Indian Evidence Act, 1872, to give a reasonable  explanation  regarding  the
homicidal death of the two victims. Over this, the respondent took  a  false
plea of loot being committed upon him and his family and he created a  false
minor injury to support his story. He made a written statement  in  his  own
handwriting to the police, confessing  his  crime  which  is  admissible  in
evidence as he was not an accused at  the  time  of  making  the  statement.
Finally it was argued that the recovery of the country-made  pistol  and  an
empty shell was made at the instance of the accused  himself.  Mr.  Ratnakar
Dash, learned senior counsel appearing for the State of  U.P.  substantiated
his case by arguing that in addition to the above, PW4 is  the  eye  witness
of the incident of murder who saw the accused with the gun in his  hand.  It
is further argued that the  medical  reports  and  the  testimonies  of  the
formal witnesses further strengthened the case of the State.

The learned senior counsel for  the  respondent  accused  has  made  various
submissions countering the arguments put forward by  the  appellant.  It  is
argued that the motive was neither  investigated  nor  proved.  PW1  deposed
about the motive that the  accused  wanted  to  get  rid  of  his  wife  and
daughter as he wanted to marry a girl he loved. However, it is  argued  that
the same is hearsay evidence and neither PW1 nor the  Investigating  Officer
inquired upon this fact. Against the second FIR, it was argued that  it  was
ante-timed, false and manufactured, PW1 was not himself an  eye-witness  and
as per his testimony he could not have been in the police station  to  lodge
the FIR at the time stated in the FIR. PW4 was argued to  be  an  interested
witness and his testimony was marked by severe lacunae and is itself  proved
to be self-contradictory and hence, unworthy of  any  reliance.  The  bullet
injury received by the accused is proved not to be self-inflicted and  hence
there exits some truth in the claim of  the  accused  about  the  loot.  The
recovery was proved to be concocted.

In our considered opinion, four main issues are  argued  before  this  Court
and we shall  now  examine  each  and  every  contention  in  light  of  the
arguments adduced before us. It is a  settled  law  that  motive  is  not  a
necessary element in deciding culpability but it  is  an  equally  important
missing link which can be used to corroborate the evidences. In the  present
case, the motive of the accused was stated to be two-fold.  One  being  that
he was in love with a girl, whom  he  wanted  to  marry  but  his  wife  and
daughter were the  hindrance.  The  other  immediate  motive  was  the  non-
fulfillment of dowry demand by PW1 (father of the  girl).  Upon  perusal  of
the records, it appears that PW1 has  deposed  that  the  accused/respondent
was in love with a girl who lives in Ghaziabad and this  fact  was  told  to
him  by  his  wife,  who  got  this  information  from  her  daughter  Geeta
(deceased). Even if the said fact  is  presumed  to  be  true,  still  PW1’s
deposition to this fact is hearsay and in  fact, his wife should  have  been
examined to testify this fact. PW1 neither stated this fact in the  FIR  nor
in the statement made before the police, and it was only after two and  half
years later that this fact was stated in his deposition  before  the  Court.
The Prosecution also laid heavy emphasis on the said fact. However,  in  the
investigation no such fact came to light, nor the wife of PW1  was  summoned
for making statements before the police or before  the  Court.  The  witness
even testified that this alleged relation of the  accused  was  reported  to
the accused's father upon which he apologized for his conduct, however,  the
said fact was not proved. As against the immediate cause, which again  is  a
material addition at the time of deposition before the Court,  neither  such
fact was made before the police nor investigated by the  police.  The  Court
did not even try the accused/respondent for the  alleged  offence  of  dowry
demand, as prima facie no case was made out.

The second issue which is of paramount consideration  is  the  testimony  of
the eye-witnesses. PW1 and PW4 are the eye-witnesses, out of  which  PW1  is
the father of the first victim  and  maternal  grand-father  of  the  second
victim. The police investigation itself disclosed that PW1 came to the  spot
after information was sent to him by the  police.  The  intimation  was  him
after the accused is  alleged  to  have  made  the  written  FIR.  In  these
circumstances, PW1 cannot be said to be an eye-witness to the  offence.  PW4
is the actual eye-witness. At the outset, it was admitted by  PW1  that  PW4
was his distant brother living in the same village. PW1  deposed  that  when
he, along with Ishwar, was going back to their village, they saw the  victim
Geeta (daughter of PW1) lying in the pool of blood in the rear seat  of  the
car with the accused/respondent standing nearby with a country-made  pistol.
The time was about 6:30 pm. He further deposed that the  accused  respondent
threatened both PW4 and Ishwar to flee away or  else  they  would  meet  the
same fate. Upon this threatening, PW4 flew away from the spot  and  did  not
disclose the fact to anybody. Neither he approached  the  police  for  help,
nor did he inform this to PW1. It was only after 3-4 days that  he  narrated
the facts to PW1. Even after that, PW1 and PW4 did not approach  the  police
to get the statement of PW4 recorded. It was only after  one  month  of  the
incident that PW4 was summoned at the  Police  Station,  Babugarh,  and  his
statement was recorded. If one carefully examines the deposition of PW4,  it
seems unnatural and not to be trustworthy.  PW4  in  his  testimony  firstly
stated that victim Geeta was shot in his presence, but he did  not  know  as
to in which part of the body she was shot.  Then  he  corrected  himself  by
deposing that the bullet had pierced her abdomen and  blood  started  oozing
out from her body. This deposition is contradictory to the medical  evidence
as the cause of death of Geeta was strangulation and she never received  any
gun-shot injury. Moreover, the  blood-stained  clothes  of  the  victims  or
bullet ridden car parts were not recovered. It was not investigated  at  all
as to in which portion of the car the victims were killed. Apart from  this,
there appears a material alteration in the  testimonies  of  the  witnesses.
Both PW1 and PW4 deposed that they saw the dead body in  the  rear  seat  of
the car, whereas the police investigation reveals that  the  dead  body  was
lying in the front left side seat of the  car.  PW4  was  thoroughly  cross-
examined but more suspicions arose in his  testimony.  The  conduct  of  PW4
seemed unnatural that he did not sought for any  help,  nor  did  he  inform
anybody in the village that a daughter from  his  village  was  killed.  PW4
admitted that he was accompanied by one Ishwar but he was never examined  in
order to strengthen the prosecution case. PW4 also stated in his  deposition
that he did not remember as to whether victim Geeta was wearing a  saree  or
a suit, yet he remembered the registration number of the car. The  place  of
incident is proved to be secluded one  and  on  a  small  link  road,  which
raises suspicion that PW4 saw the number plate in dark hours of  evening  of
the winter season.

Pertinent here is the FIR lodged by PW1. PW1 deposed that  he  was  informed
at  about  7.00  pm  by  the  police  that  his  son  in-law  has  lodged  a
confessional FIR of having committed the murder of his wife  Geeta  and  his
daughter Rakhi.  Thereafter, PW1 reached the  place  of  incident  at  about
8.00 p.m. and since then he was a witness to  inquest  proceedings  of  both
the victims Geeta and Baby Rakhi. The  inquest  proceedings  of  Geeta  were
recorded from  9:30-10:30 pm and inquest  proceedings  of  Baby  Rakhi  were
recorded from 11-11:55 pm., and thereafter, he proceeded to Police  Station,
Simbhaoli, which under no circumstances can be before 12.00  mid-night.  Yet
the  FIR  is  stated  to  have  been  lodged  at  10:05  pm.  Moreover,  the
jurisdictional police station is of Babugarh and  PW1  specifically  deposed
that he crossed the Police Station, Babugarh, en-route  to  Police  Station,
Simbhaoli, from Madhu Nursing Home, yet he chose not to  lodge  the  FIR  at
the nearest police station but at Simbhaoli Police Station,  which  did  not
even have the jurisdiction. This jurisdictional flaw came to  the  knowledge
of PW1 after 3-4 days, yet he preferred not to go or pursue his case at  the
proper police station. In the FIR the informant (PW1) failed to mention  the
material facts, like he having been  informed  about  the  incident  by  the
police, his participation in the inquest, receiving ornaments seized by  the
police from the place of the incident, two  male  wrist  watches,  he  being
accompanied by two other person to the place of incident from  his  village.
Even the motive was not mentioned in the FIR. This makes the conduct of  PW1
very unnatural and suspicious. The above facts,  clearly  suggest  that  the
second FIR is an outcome of manipulation, deliberation, concoction and is  a
sham ante-timed document.

The third issue is the  confessional  FIR.  The  Trial  Court  proceeded  to
believe the FIR as admission of guilt by the accused. Not only  the  lodging
of the FIR was delayed but it was suspected to  be  ante-timed.  The  police
investigation  disclosed  that  FIR  (Ext.  Ka  22/23)  was  lodged  by  the
accused/respondent  and  thereafter  at  about  8:30pm  PW1  was   informed.
However, as per the deposition of PW1, he  received  the  information  about
the FIR at about 7.00 pm, thereafter he proceeded to the place  of  incident
and was a witness to inquest proceedings. The accused respondent  has  taken
the defence that he was  forced  to  scribe  it  at  the  dictation  of  the
Investigating Officer, after being assaulted at the police  station  and  it
was registered ante-timed. The series of events  above  stated,  thus,  cast
doubts on the time of the FIR. The facts of the FIR remained  disproved  and
hence Ext. Ka 22/23 is not reliable. The Trial Court laid  undue  stress  on
the non-explanation  of  fact  of  death  of  the  victims  by  the  accused
respondent. It is established that the  Trial  Court  based  the  conviction
upon the testimony of PW4, yet it took a 'U' turn to  shift  the  burden  on
the accused respondent under Section 106 of the Indian Evidence  Act,  1872,
to prove the incident. The High  Court,  in  our  considered  view,  rightly
reversed the finding on this point of law. Section 106 does not absolve  the
prosecution's burden under Section 101 to prove its case  of  guilt  of  the
accused beyond reasonable  doubt.  As  stated  above,  the  prosecution  has
miserably failed to explain the  facts  and  circumstances  surrounding  the
lodging of both the FIRs, and the testimony of PW4 is proved to be  crooked.
The prosecution case was never a case  of  circumstantial  evidence  as  the
prosecution, till the end laid stress on the testimonies of eye-witnesses.

At this juncture the defence version  needs  to  be  examined.  The  accused
respondent stated that they were stopped  by  two  unknown  persons  and  he
stopped only because his wife  recognized  those  persons  to  be  from  her
village. The two persons then attempted to loot them,  and  in  the  process
two  gun-shots  were  fired  –  one   at   Baby   Rakhi   and   another   at
accused/respondent. Victim Geeta was strangulated to death. Upon perusal  of
the medical evidences, the gun-shot injury to Baby Rakhi was  proved  to  be
at point blank range, whereas no such assertion was made in case of  accused
respondent's gun-shot wound. The accused respondent stated that he  was  hit
by one fire-shot and he neither knew upon whom second shot  was  fired,  nor
did he know as to how his wife was killed. The  accused  respondent  further
deposed that he ran towards the nearby hotel for seeking help. The  sequence
of events and the injuries do not exclude  the  defence  version.  It  is  a
settled law that 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.

The next aspect for our consideration is the recovery  of  the  country-made
pistol and an empty cartridge. To begin with,  it  is  undisputed  from  the
ballistic report that the gun was the same from which  the  shot  was  fired
and also the formal witnesses stood the test which established that the  gun
was recovered in their presence. The prosecution  strongly  relied  on  this
evidence, and even the trial court was convinced by this piece of  evidence.
However the High Court pointed out the relevant provision  i.e.  Section  27
of the Indian Evidence Act, 1872, and clarified that it is not the  material
recovery which has to be proved, but the disclosure  based  upon  which  the
recovery is made. The pivotal fact is making of the statement to the  police
which leads to recovery. The High Court rightly pointed out that during  the
investigation, no statement disclosing the fact/material  to  be  discovered
was proved before the Court. In our opinion, the High Court  is  correct  to
point out this serious lacunae.

We have  given  our  careful  and  thoughtful  consideration  to  the  rival
contentions put forward by either sides and have also  scanned  through  the
entire materials available on record, including the  impugned  judgment.  It
appears that the prosecution has failed to prove its case beyond  reasonable
doubt against the accused and the 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.

Thus, in the light of the  above  discussion,  we  find  no  compelling  and
substantial reasons to interfere  with  the  judgment  passed  by  the  High
Court. The appeals are, accordingly, dismissed.

                                      …....................................J
                                                      (Pinaki Chandra Ghose)



                                       …...................................J
                                                              (R.K. Agrawal)
New Delhi;
December 16, 2015.