Mangu vs Dharmendra & Anr

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 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.

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.