Non-indication of inculpatory material in its relevant facets by the trial Court to the accused adds to vulnerability of the prosecution case: Patna High Court

Sessions Judge Mandi dated 24.02.1998 has been set aside Consequently Achhar Singh has been convicted for offences under Sections 452 326 and 323 of the Indian Penal Code 1860and 302 and 452 IPC and sentenced to undergo imprisonment for life The prosecution case in brief is that on the night of 23.02.1996 the complainant Netar Singh’s wifehad attended the marriage function in a nearby village at the house of the bridegroom with whom their neighbour Budhi Singh’s daughter got married. Both the ladies It is relevant to mention here that owing to their social boycott by Budhi Singh and some other villagers Netar Singh’s family did not when the complainant and his family were taking Dhaam Budhi house and bolt their door. The assailants however broke open the Singh had axes while the other accused were armed with sickles hit Beli Ram with an axe due to which the latter fainted. The begged the assailants for mercy and they left threatening that the Meanwhile some villagers including Govind Ram and Bahadur who were standing outside intervened and called on the accused persons to stop the violence whereupon the accused were Sections 147 148 452 506 323 302 and 326 of the IPC. the possibility of false implication. The belatedly exaggerated regard to the role of present appellants it was pointed out that according to the FIR Swari Devi died owing to a single axe blow one head injury on her person. However three prosecution eye­ witnesses namely Netar Singh P.W.1Meera Devi the face by Achhar Singh and Prakash but in their depositions the injured or eyewitnesses have attributed attacks to other co­accused persons also which were not corroborated by the medico legal report of Beli Ram. They also changed the nature of The trial Court also observed that eyewitness Govind Ram D.W.2) did not support the prosecution story and the Gram to contact the police. Noting that no evidence was put forth by the to be fatal to the prosecution. The spot of occurrence was also doubted observing that bloodstains were noticed in the passage the prosecution witnesses coupled with the allegation that about sixteen persons entered a small room and started attacking the not attribute any specific injury to any of the accused and thus though it has upheld the acquittal of the rest of the five accused be extracted from the material on record howsoever messy it was Disregarding the exaggerations and improvements made by the first axe blow by Budhi Singh on the head of Swari Devi was corroborated by the FIR the prosecution witnesses the post­mortem the recovery of axe from him. The High Court noted that the allegations against Achhar Singh with regard to his assault on Beli the occurrence it was held that the evidence regarding the broken windowpanes scattered articles in the room plates with leftover food function could have been underway at Budhi Singh’s house on the hurt to Beli Ram the appellants were held to be liable for their individual acts. Budhi Singh was thus convicted for offences under Sections 302 and 452 IPC and Achhar Singh was convicted for the Relying on Murugesan v. State1 Learned Senior Counsel for ‘possible view’ further scrutiny by the High Court in exercise of powers under Section 378 CrPC was not called for. While citing be set aside merely because the appellate Court’s view is more advantage to judge the credibility of the witnesses and make intangible observations. Learned Senior Counsel highlighted the prosecution witnesses’ tendency to exaggerate and falsely implicate by the eye­witnesses were falsified by the medical evidence which showed only one head injury. It was also accentuated that nine persons who were mentioned in the FIR were let go at the stage of from a public place it could not be held that Budhi Singh was in possession of the article recovered. Additionally no conclusive mid­celebration and attack his neighbours. Doubt was also cast on had deposed that there was a blood trail outside the house. It was further contended that Narinder Singh had also been accused of inflicting a head injury on the deceased with an axe and despite mortem the time between the death and the post­mortem was justified in therefore considered to be innocent in the interregnum between accusation and judgment. History reveals that the burden on the The Babylonian Code of Hammurabi one of the accused. In Woolmington v. Director of Public Prosecutions10 the House of Lords held that the duty of the prosecution to prove the been statutorily dispensed with for example under Section 113­B of the Evidence Act 1872. Regardless thereto the ‘Right of Silence’ of presumed innocence. The constitutional mandate read with the scheme of the Code of Criminal Procedure 1973 amplifies that the presumption of innocence until the accused is proved to be guilty is an integral part of the Indian criminal justice system. This presumption of innocence is doubled when a competent Court analyses the material evidence examines witnesses and acquits the the witnesses and direct interaction with evidence. In such cases interference is not thrusted unless perversity is detected in the It is thus a well crystalized principle that if two views are judgment. However such a precautionary principle cannot be against acquittal11. This Court has held in a catena of decisions Himachal Pradesh14 ) that the CrPC does not differentiate in the 11 Sangappa v. State of Karnataka 3 SCC 686 ¶ 10 power scope jurisdiction or limitation between appeals against The trial Court in the instant case rightly observed that the evidence was chaotic with regard to many accused persons and no regarding the exaggerations and contradictions within the evidence Keeping in mind the attempts by the prosecution witnesses to consistent evidence against some of the accused which were overlooked by the trial Court amid the chaos. While analysing the 17. Complainant Netar Singh deposed that when the Singh Achhar Singh Narinder Singh were armed with axes Prakash and Hem Singh) were bearing sticks. While mentioning the present the head of my mother while Narender accused gave two axe blows accused gave me danda blows”. It was also mentioned that the accused had broken the door windows and utensils. He then at about 8­9 AM the next morning. He also mentioned that prior animosity existed between the parties because Budhi Singh and Narinder Singh wanted to purchase the land where he had constructed a house and that his father ­ Beli Ram had previously filed a case against the accused persons in which they had been 18. Meera Devi P.W.11 the daughter in law of the deceased stated in her testimony that Budhi Singh and Narinder Singh were armed with axes while Prakash carried a spear and Sodha Ram carried a ear of my mother­in­law and my mother­in­law fell down and died and Hem Singh gave danda blow to my husband Netar Singh.” She stated that her husband escaped to the roof reported the matter to in­law’s body was sent for post­mortem. During her cross­ Injured witness Beli Ramwas also examined and he stated that Budhi Singh Narinder and Achhar Singh came bearing axes while Prakash had a spear Sodha Ram had a sickle and Jai and on my leg….Netar Singh was given beatings by Jai Singh and Hem the roof. It was mentioned that the accused persons had formed a committee to boycott them and thus nobody from the village gave evidence in their favour. He also disclosed that “Narinder Singh accused also gave blow blunt side of the axe on my face near ear.” Thereafter he fell unconscious and was medically examined at the 20. Dr. DD Rana who conducted the post­mortem of the deceased examined as P.W.3. with regard to Swari Devi he described one incised wound on the left temporal region which he stated could have of his skull a lacerated wound on the right foot fracture in the facial Ram could be inflicted by falling on a sharp­edged stone and other even if the exaggerations of multiple axe blows being given to the house of the victims armed with an axe and hit Swari Devi on her witnesses. The same is also supported by the post­mortem report as to who caused Swari Devi’s fatal injury was unwarranted and and posterior skull along with fracture in the facial bone) being a the witnesses have been consistent about Achhar Singh’s attack on of the Doctorand the post­mortem report is unacceptable. As noticed earlier the prosecution witnesses have given an over­ exaggerated version of the injuries suffered by the deceased. They have however consistently deposed that the head injury which proved to be fatal was caused by Budhi Singh. Their statement to this room of occurrence created chaos and some of such persons were that the fatal blow to the deceased was caused by none else than “exaggeration” as “the fact of making something larger more important better or worse than it really is”. Merriam­Webster defines the term Oxford Dictionary defines it as “enlarged or altered beyond normal proportions”. These expressions unambiguously suggest that the genesis of an ‘exaggerated statement’ lies in a true fact to which exaggeration therefore has the ingredients of ‘truth’. No exaggerated Advance Law Lexicon defines “false” as “erroneous untrue opposite of correct or true”. Oxford Concise Dictionary states that “false” is “wrong not correct or true”. Similar is the explanation in other dictionaries as well. There is thus a marked differentia between an contains both truth and falsity whereas a false statement has no make a mountain out of a molehill the molehill shall have to exist primarily. A Court of law being mindful of such distinction is duty of the accused conviction can be based on it. This Court in Hari 15 Sucha Singh v. State of Punjab 7 SCC 643 ¶ 18. maxim falsus in uno falsus in omnibus cannot apply part of the evidence is not found acceptable the remaining part of evidence has to be scrutinised with care and the court must try to see whether the acceptable part of the evidence gets corroborated from There is no gainsaid that homicidal deaths cannot be left to judicium dei. The Court in their quest to reach the truth ought to P.W.1 P.W.11 and P.W.12 are therefore to be analysed accordingly We find that the truth can be effortlessly extracted from their statements. The trial Court apparently fell in grave error and not justified in reversing the trial Court’s judgment unless it was to identify and appreciate material admissible evidence against the appellants. The trial Court misdirected itself to wrong conclusions court has to consider the entire evidence on record so as to arrive at a finding as to whether the views of the trial court were perverse or otherwise unsustainable. The appellate court is entitled to consider whether in arriving at a finding of fact the trial court had failed to take into supra) Triveni Rubber & Plastics v. CCE18 and Basalingappa v Mudibasappa19) where this Court has firmly held that a finding ignorance of the relevant material on record was undoubtedly Court it has to be kept in mind that neither is there a reason on instead falsely implicate the appellants to settle scores on trivial issues. Rather from the very beginningtill their last deposition the complainant and other two injured eye witnesses have been consistently accusing Budhi Singh for committing murder of Swari “26….Ordinarily a close relative would be the last to person. It is true when feelings run high and there is personal cause for enmity that there is a tendency to a grudge along with the guilty but foundation must be laid for such a criticism and the mere fact of guarantee of truth. However we are not attempting any facts. Our observations are only made to combat what is so often put forward in cases before us as a general rule of prudence. There is no such general rule. Each case must be This decision has been usually followed by this Court in various cases such as Mohd. Rojali Ali v. State of Assam21 Laltu Ghosh v State of West Bengal22 Khurshid Ahmed v. State of J&K23 and 31. Coming to the arguments of Learned Senior Counsel for the appellants that since the axe was recovered from a public place it was sought) it is clear from the facts that this was a farming community in rural Himachal where tools like axes are found in everyone’s homes. The argument that the spot of incident was P.W.16 ­ ASI Jaisi Ram carries no force. The presence of random blood marks elsewhere could not put in doubt the fact that the incident happened in the house of the complainant from where the same witness recovered sticks blood­stained stone glass splinters it necessary or even material to investigate the blood marks shows pertinent to note that independent witness P.W.14 ­ Lauhalu Ram also corroborated the recovery of broken pieces of the door broken bulb stones blood­stained soil etc. from the house of the it is clear from the facts that the complainant’s family had prior boycotted the victim’s family. The fact that nine persons who were not arrayed as prosecution witnesses is understandable. It is not necessary for the prosecution to examine every cited or possible proof beyond doubt non­examination of all or every witness is This Court in Sarwan Singh v. State of Punjab25 was of the the prosecution and it follows as a logical corollary that the to prove its case. The court cannot compel the prosecution to inference against the prosecution…The law is well­settled that the prosecution is bound to produce only such witnesses as are essential for unfolding of the prosecution narrative. In other words before an adverse inference against the prosecution can be drawn it must be than the quantity of the evidence that matters. In the from any infirmity or any manifest defect on its intrinsic was ‘within 10 hours’ has also deposed that the time between the death of Swari Devi and the injury was ‘within 5­10 minutes’ thereby 35. Coming to the case of Narinder Singh whose acquittal has been FIR though not an encyclopedia of the entire incident is the most spontaneous account of it. It is very hard to believe that the complainant who walked seven hours overnight to reach the police Singh as well. Such a major omission on the complainant’s part is High Court has only acted on consistent and corroborated evidence against Budhi Singh and Achhar Singh which was conspicuously at the relevant time. Even Budhi Singh has not said so in his Court and has prevented miscarriage of justice by separating grain are maintained. Their bail bonds are cancelled and they are

Summary: It is settled law that incriminating circumstances appearing against the accused in prosecution evidence must be put to the accused at the time of statement under Section 313 Cr.P.C. Unless such statements are put to the accused to give opportunity to meet the same with explanation, such incriminating circumstances cannot be used against the accused. This was said in the case of Shivjee Sah And Anr vs The State Of Bihar [CRIMINAL APPEAL (SJ) No.4273 of 2018] by Mr. Justice Birendra Kumar in the High Court of Bihar. The facts of the case are that the appellants were found guilty for offence under Section 304-B of the Indian Penal Code by judgment dated 25.09.2018. Appellant was sentenced to undergo rigorous imprisonment for 10 years and other appellants were sentenced to undergo rigorous imprisonment for 7 years. The judgment of conviction and order of sentence are challenged in these appeals. The appellant contended that there is no acceptable evidence of demand of dowry and torture for the same after fulfillment of the demand of a gold chain as alleged by the prosecution. The prosecution case suffers from non-corroboration of claim of the prosecution that the victim was throttled to death by the medical evidence. Further, the specific question on incriminating material as to nature of dowry demand and nature of torture is missing in the statement of accused under Section 313 Cr.P.C. Hence prosecution evidence, if any, cannot be relied upon. The State contended that plurality of the witness on any specific point is not the requirement of law. Prosecution witness 4 and 5 have specifically deposed that even after fulfillment of earlier demand of gold chain, further demand of motorcycle continued. The victim died within a year of her marriage in unnatural circumstances in the matrimonial house. Hence, the burden was on the appellants to dispel the presumption that this was not a case of dowry death. The Court referring to the case of Sunil Bajaj Vs. State of Madhya Pradesh [2001 CRI. L. J], said that “In the case on hand, there is no independent corroboration, of any torture to the deceased, by any neighbor who had occasion to watch the relationship of the deceased with her in-laws nor there is any evidence that the deceased while she was in her parents house from 20.09.2013 to 23.09.2013, made any complaint of demand and torture nor the doctor found any external injury on the person of the deceased to corroborate the claim of the prosecution witnesses that the deceased telephonically informed that she was bitterly assaulted by the in- laws and after few hours report of her death was received. Thus, the prosecution evidence is very shaky and clumsy to prove the ingredient of demand of dowry and torture for the same and on such evidence conviction would not be safe”. Furthermore, the Court said that “The learned trial Judge has not considered correctly that the prosecution has failed to prove a case of demand of dowry and torture for non-fulfillment of the same. As such the prosecution failed to establish the charge under Section 304-BIPC beyond reasonable doubt”. Hence, the judgment of the Trial Court is set aside.