MOHAR RAI & BHARATH RAI

THE STATE OF BIBAR

March 22, 1968

[R. S. BACHAWAT AND K. S. ffEGDE, JJ.]

Cri11linal Trial-Trial Court and High Court refusing to exan1int• accused's defence- 01i ground. their 1:ersion had already been rejected in anot!1er case filed on a complaint by accused-if permissible.

Code of Crimirwl Procedure, 1898, ss, 145, 154, 157 & 168-docu- 111e11t containing staten1ent of accus<td in investigation--accused no1 exa- 111i11ed as witness-whether document c.dniissible evidence.

The first appellant was convicted under s. 324 JPC for shooting and injuring PW I, at the instigation of the second appellant, who was himself convicted of an offence under s. 324 read with s, 109 lPC. The existence of enmity between the appellants and most of the prosecution witnesses who spoke to the occurrence was satisfactorily established. The plea of the appellants in their defence was that on the date of the incident when they were returning home in the evening, they were way-laid by PWI and several others and were assaulted; thereafter with a view to foist 8 false case against them, a revolver was forcibly thrust into the hands of the first appellant.

In connection with this incident, the State came to initiate three prosecutions : One case was instituted on the basis of a complaint by the first appellant; a second case was commenced against the first appellant under s, 19(f) of the Indian Arms Act for being armed with a revolver; and the third was the present case.

The case instituted on the first appellant's complaint as well as the case against him under the Arnts Act were both dismissed.

The trial court as well as the High Court refused to examine the defence of the appellants solely on the ground that the case pleaded by them had been rejected by the Magistrate in the prosecution commenced on the basis of the complaint by the first appellant.

In appeal to this Court it was contended on behalf of the appellants that they did not have a fair trial; the High Coµrt as well as the trial court on an erroneous view of the law refused to take their defence into consideration; they ignored important circumstances appearing in favour of the appellants; and furthermore, some of the conclusions reached by them were unsupP.orted by any evidence on record. It was also contended that itn inadmissible document, namely a statement made by the second appellant in the course of the investigation was wrongly admitted; this admission was hit by s. 162 of the Code of Criminal Procedure which had also greatly prejudiced the ca&a of the appellants.

HELD : The appeals must be allowed and the appellants acquitted.

(i) The trial .court as well as the High Court erred in summarily re jccting the defence of the appellants on the sole ground that the version put forward by them having been rejected by the Magistrate in the case filed on the complaint of the first appellant, it could not be considered again.

The defence of the appellants was highly probabilised by three important circumtances, namely. ( l) it was put forward immediately

after the occurrence, (2) it satisfactorily explained the injuries found on the persons of the appellants while the prosecution evidence failed to

526 SUPREME COURT RBPOllTS

(1968] 3 S.C.R.

explain those injuries; and (3) the prose<:ution evidence itself showed that the first appellant couW not have used the revolver exhibited and therefor his version that that weapon was thrust on him was probabilised.

[531 H-532 BJ In both the prosecutic'!s-in the complaint made by the first appellant as well as m the complaint made by P.W.1-the pl-oeecutor before the court was the State. Therefore, the decision in the former case could not operate as an issue-estoppel against the appellants in the present case, because they were not parties in the former case. In other words, the plea taken by the appellants in this case was never before litigated bewteen them and the State, the opposite party in the present case. All that can be said is that the case put forward by the State in the one case was in consistent with that put forward by it in the other, In those circumstances it was wrong to hold that the appellants were estopped from putting forward their defence. [531 B-D]

Prilam Singh v. The State of Punjab, A.l.R. 1956 S.C. 415; Manipur Adniinirtration v. Thokchoni, Bira Singh, (1964] S.C.R. 123; Sa112baSivan1

v. Public Prosecutor, [1950] A.C. 458; and King v. Wilkes; 77 C.L.R. 511 at pp. 518-519, referred to.

(ii) The trial court and the High Court relied on the second appellant's statement in the document admitted in evidence to the effect that it was a particular person who fired a pistol to contradict the statement of the first appellant in his complaint that a pistol was fired bv some other

peon. No portion of this statement could have been used 'for that purpose either s. 157 or s. 145 of the Evidence Act. As the cond appellant was not examined as a witness in the present case, his previous statement could not have been used either to contradict bis evidence of corroborate it even if it were to be held that it was a statement falling under s.154 of the Code of Criminal Procedure. [532 H-533 BJ

Nazir Ali, v. State of U.P. A.l.R. 1957 S.C. 366; distinguished.

CRIMINAL APPELLATE JURISDICTION : Criminal Appeals Nos. 159 and 160 of 1965.

Appeals by special leave from the judgment and order dated July 28, 1965 of the Patna High Court in Criminal Appeal Nos . . 533 and 534 of 1963.

R. K. Garg, D. P. Singh, S. C. Agarwala, S. P. Singh and K. M. K. Nair, for the appellants (in both the appeals).

B. P. Iha, for the respondent (in both the appeals.)

The Judgment of the Court was delivered by Hegde, J. In these connected appeals by special leave the legality of the convictions of the appellants-appellant Mohar Rai under s. 324 of the lndi.n Penal Code and appellant Bharath Rai under s. 324/109 of the Indian Penal Code-is challenged.

In the trial court the former was convicted under s. 307 of the Indian Penal Code and the latter under s. 307/109 of the Indian Penal Code. The High Court of Patna, in appeal, altered their convictions as set out above.

In order to appreciate the contentions advanced on behalf of the appellants, it is n_ecessary to state briefly the prosecution as

well as the defence version. The case made out by the prosecution is that because of previous enmity Mohar Rai shot and injured P.W. 1 Balli Ahir, at the instigation of Bharath Rai,. on the evening of October 8, 1961, in Natwar Bazar. The existence of enmity between the &ppellants and most of the prosecution witnesses who speak to the occurrence, is satisfactorily established. Many of the prosecution witnesses appear to have been proceed~ against under s. 107 of the Code of Criminal Procedure at the instance of the appellants. The plea of the appellants was that on the day of incident when they were returning to their house in the evening they were way-laid by P.W.l and several others; one of those persons fired shots at Mohar Rai, but it missed him; to save himself he (Mohar Rai) ran away from the scene, subsequently two more shots were fired; meanwhile he got into the house of Lal Bahadur Mistri (P.W.9), but his assailants pursued him, forced their entry into the house of .P. W. 9 and there assaulted him; thereafter with a view to foist a false case against him forcibly thrust into his hands the revolver (Ex.III) and then handed him over with Ex.III to Janardan Singh (P.W. 15), the palice constable. The plea of Bharath Rai was that during the incident mentioned by Mohar Rai, he was caught hold of and assaulted by some of the prosecution witnesses. The. High Court and the trial court have rejected the plea of the appellants and relying on tqe prosecution evidence convicted the appellants as mentioned earlier. This Court being a Court of special jurisdiction does not re-assess the evidence in a case except under .exceptional circumstances.

It was urged on behalf of the appellants that they did not have a fair trial, the High Court as well as the trial court on an erroneous view of the Jaw refused to take into consideration their defence, they ignored important circumstances appearing in their favour and further some of the conclusions reached by them are unsupported by any evidence on record. We have to see how far these submissions are well-founded.

Out of the incident mentioned above, the State came to initiate as many as three prosecutions. G. R. Case 1370/TR-20 of 61/63 in the Court of the Munsif-Magistrate I Class, Sasaram was instituted on the basis of the coi; nplaint loifged by Mohar Rai.

G.R. 506 of 1962 on the file of the Munsif-Magistrate I Class, Sasaram was a case under s. l 9(f) of the Indian Arms Act against Mohar Rai for being arn1ed with a revolver at the time of the incident mentioned earlier. The third case is the one with which we are concerned in these appeals.

The case instituted on the basis of the complaint made by Mohar Rai was acquitted on February 1, 1963. The Arms-Act case ended in acquittal on May 13, .1964. The appeal against that order was dismissed by the High Court of Patna on September 5, 1966. A copy of the judgment in that appeal was pr?<1uced at the hearing of these

appeals and received as additional evidence with our permission.

The trial court as well as the High Court refused to examme the defence of the appellants solely on the ground that the case pleaded by them had been rejected by_the learned Munsif-Magistrate I Class, Sasaram in the prosecution commenced at the insta11ce of Mohar Rai.

The prosecution case was that immediately after the occurrence, Mohar Rai was chased and caught and at that time he had in his hands the revolver (Ex.III). Very soon thereafter he was produced before Audeshwar Prasad Singh (P. W.19) with the revolver in question. The further case of the prosecution was that P.W. 19 seized that revolver; later during investigation he seized the three cartridges said to have been fired by Mohar Rai as well as a misfired cartridge; the revolver as well as the seized cartridges were sent to the ballistic expert for examination. These facts were spoken to by the prosecution witnesses, in particular by P.W. Janardhan Singh, the constable to whom Mohar Rai was handed over immediately after the occurrence and P.W. 19 the investigating officer. P.W. 19 deposed that the number of the revolver seized is 545465. He is positive that the revolver seizea from Mohar Rai is Ex. III, though in his report to the ballistic expert he had given the number of the revolver sent for examination as 545466, but in that report itself he had added a note to say that the last two digits were not clear. The prosecution proceeded on the basis-there is no ambiguity about it-that Ex: III was the weapon that was used in the commission of the offence. The ballistic expert who was examined as D.W. 1 was positive that the seized empties as well as the l)lisfired cartridge could not have been fired from Ex.III. The evidence of this witness has been accepted both by the trial court as well as by the High Court. From that it follows that the prosecution case that Mohar Rai fired three shots from Ex.III cannot be accepted as true. If this part of the prosecution case fails then very little remains in the prosecution case.

The trial court and the High Court have brushed aside this important aspect on a wholly untenable basis: They opined that by some mistake a revolver different from that seized from Mohar Rai might have been sent to the ballistic expert. The conclusion has no basis on the material on record.

It is just a speculation-a process not open to" courts. E_yidently overwhelmed by the evidence of the large number of witnesses who deposed in favour of the prosecution case, forgetting the fact that most of them belong to tl1e faction opposed to the appellants. the trial court and the High Court ignored the probabilities and lost sight of the evidence afforded by the circumstances appearing in the case. Both those courts failed to realise that the fact that Ex. III was not the revolver that was used during the

• E

incident went .to probablise the plea taken by Mohar Rai. At this stage we may recall the fact that both the trial Magistrate as well as the High Court rejected the prosecution case and acquitted Mohar Rai in the case against him under s. 19 (f) of the Anns Act.

It is true that the decision of the trial court in that .case was rendered after the Assistant Sessions Judge, Sasaram, convicted the appellants in the present case and therefore it may be that the appellants cannot take the benefit of the rule laid down by this Court in Pritam Singh v. The State of Punjab(') and affirmed in Manipur Administration v. Thokchom, Bira Singh( 2 ).

But even without the assistance of that rule, on the basis of the prosecution evidence itself the prosecution version stands discredited. Once it is proved that the empties recovered from the scene could not have been fired from Ex.ill the prosecution case that those empties were fired from Ex.III by Mohar Rai stands falsified.

The trial court as well as the High Court wholly ignored the significance of the injuries found on the appellants.

Mohar Rai had sustained as many as 13 injuries and Bharath Rai 14.

We get it from the evidence of P.W. 15 that he noticed injuries on the perscin of Mohar Rai when he was produced before him immediately after the occurrence. Therefore the version of the appellants that they sustained injuries at the time of the occurrence is highly probabilised.

Under these circumstances the prosecution had a duty to explain those injuries. The evidence of Dr. Bishun Prasad Sinha (p.W. 18) clearly shows that those injuries could not have been self-inflicted and further, accord- 'ing to him, it was most unlikely that they would have been caused at the instance of the appellants themselves. -Under these circumstances we are unable to agree with the High Court that the prosecution had no duty to offer any explanation as regards those injuries. In our judgment the failure of the prosec11tion to offer any explanation in that regard shows that evidence of the prosecution witnesses relating to the incident is not true or at any rate not wholly true. Further those injuries probabilise the plea taken by the appellants.

Both the trial court as well as the High Court refused to talce into consideration the plea of the appellants on the ground that that plea did not commend itself to the trial Magistrate in the case instituted on the complaint of Mohar Rai. They were erroneously of the view that the plea in question was barred by the rule )aid down by this Court in Pritam Singh' s case ( 1). In that case, this Court accepted as cotTect the following statement of

(I) A.LR.1956S.C.415.

(2) [1964] 7 S.C.R. 123

530 SUPREME COUllT llEPOR.TS

(1968] 3 S, C, R.

the law made by the Judicial Committee in Sambasivam v. Public Prosecutor, Federation of Malaya('); ·

"The effect of a verdict of acquittal pronounced by a competent court on a lawful charge and after a lawful trial is not completely stated by saying that the person acquitted cannot be tried again for the same offence. To that it must be added that the verdict is binding and conclusive in all subsequent proceedings between the parties to the adjudication.

The maxim 'res judicata pit> vetitate accipitur' is no less applicable to criminal than to civil proceedings. Here, the appellant having been acquitted at the first trial on the charge of having ammunition in his possession, the prosecution was bound to accept the correctness of that verdict and was precluded from taking any step to challenge it at the second trial."

Dixon J., of the Australian High Court in the King v. Wiikes(') explained the legal position in these words ;

"Whilst there is not a great deal of authority upon the subject, it appears to me that there is nothing wrong in the view that there js an issue-estoppel, if it appears by record .of itself or as explained by proper evidence, that the .same point was determined in favour of a prisoner in a previous criminal trial which is brought in issue on a second criminal trial of the same prisoner. That seems to be implied in the language used by Wright, J. in R. v. Ollis [1960] II Q.B. 758, at p. 769) which in effect I have adapted in the foregoing statement. . . . . . There mqst be a prior proceeding determined against the Crown necessarily involving an issue which again arises in a subsequent proceeding by the Crown agai_nst the same prisoner. The allegation of the Crown in the subsequent proceeding must itself be inconsistent with the acquittal of the prisoner in the previous proceeding. But if such a condition of affairs arises I see no reason why the ordinary rules of issue-estoppel should not apply. Such rules are not to be confused with thOse of res judicata, which in criminal proceedings are expressed in the pleas of autrefois acquit and autrefois convict. They are pleas which are concerned with the judicial determination of an alleged criminal liability and in the case of conviction with the substitution of a new liability. Issue-estoppel is concerned with the judicial es!ablishment of a :iro- "(i) [1950] A.C. 458,

(2) (77) C .. L.R. 511, at pp. 518·519.

H {

MOHAR RA! V.-BIHAR (Hegde, /.)

position of a law or fact between parties. It depends upon well-known. doctrines which cotrol. !he. reli,?gation of issues which are settled by prior htigatton.

This Court endorsed that statement in Manipur Administration's case('). But the law laid down in those cases bas no application to the facts of the present case. In both the prosecution-in the complaint made by Mohar Rai as well as in the complaint made by P.W. 1-the prosecutor before the court was the State.

Therefore, the decision in the former case cannot operate as an issue-estoppei against the appelfar.ts in the pr~-; ent

case, because they were not parties in the former case. In other words the plea taken by the appellants in this case was never before litigated between them and the State, the -opposite party in the present case. All that can be said is that the case put forward by the State in the one case is inconsistent with that put forward by it in the other. In those circumstances it was wrong to hold that the appellants were estopped from putting forward their defence.

That apart, it is doubtful-though for the purpose of this case it is unnecessary to express any final opinion on this point-whether the rule in question could be pressed against an accused, the reason being that while a prosecution cannot succeed unless it proved its case beyond reasonable doubt, the nature of the proof required of an accused in ' substantiating the plea taken by him is different-it is sufficient if he proves that plea taken by him is reasonable and probable.

In tftat event he is entitled to the benefit of doubt. This aspect was noticed by this Court in Manipur Administration's(') case, where it was observed :

"Before parting, we think it proper to make one observation. The question has sometimes been mooted as to whether the same principle of issue-estoppel could be raised against an accused, the argument against its application being that the prosecution cannot succeed unless it proved to the satisfaction of the Court trying the accused by evidence led before it that he is guilty of the offence charged. We prefer to express no opinion on this question since it does not arise for examination."

For the , reasons mentioned above, we are satisfied that the trial court as well as the High Court erred in summarily rejecting the defence of the appellants on the sole ground that the version put forward b)> them having been rejected by the court in G .R. case 1376ITRi20 of 61/63 in the court of the Munsif-Magistrate I ctass, Sasaram the same cannot Nii. onoi... ...-.. :..t---~ U:e ~--- - ..,.., '4C••Ull '-'Vll.>JU"'!~U. .,..,. thil'.k that the aeience of the appellants is highly probabilised by

(I) [1964! 7 S.C.R. 123.

three important circumstances, namely-(i) the same was put forward immediately after the occurrence, (ii) it satisfactorily explains the injuries found on the persons of the appellants while the prosecution evidence fails to explain those injuries, and (iii) the prosecution evidence itself shows that Mohar Rai could not have used Ex. III and therefore his version that that weapon was thrust on him is probab!ised.

The last contention taken by Mr. Garg is that admission of Ex. 4, an inadmissible document, has greatly prejudiced the cnse of the appeiianis. According to him, the admission of that document is hit by s. 162 of the Code of Criminal Procedure.

In the alternative, he contended that that document could not have been used to discredit the plea taken by Mohar Rai. We have earlier noted the two divergent versions given by P.W.1 and Mohar Rai in respect of the incident that took place on the evening of October 8, 1961. Quite naturally, both these complaints were investigated simultaneously. The statement given by P.W.1 was recorded as first information in one case and the statement given by Mohar R.ai as first information in the other. Appellant Bharath Rai was questioned during the investigation. His statement is Ex. 4. The trial court came to the conclusion that it was not hit by s. I 61 as the same was not recorded in the course of investigation in the case against Bharath Rai.

The High Court justified the admission of that document on the basis of the rule laid down by this Court in Faddi v. State of Madhya Pradesh('). namely-where the person who lodged the first information report regarding one offence is himself subsequently accused of that offence and tried and the report lodged by him is not a confessional first information report but is an admission by him of certain facts which have a bearing on the question to be determined by the Court, viz., how aud by whom the offence was committed or whether the statement of the accused in the court denying the correctness of certain statements of the prosecution witnesses is correct or not, the first information report is admissible to prove against him, his admissions which are relevant under s. 21 of the Evidence Act It was contended on behalf of the appellants that whether that statement is held to have been taken during the investigation of the complaint made by P.W. 1 or during the investigation of the complaint made by Mohar Rai, in either case it is hit by s. 162 of the Code of Criminal Procedure. It was also urged that the rule laid down in Faddfs case(') has no application to the facts.-of the present case.

In the instant case no p6rtion of Ex. 4 was relied on as an admission of Bharath Rai.

Hence the rule laid down in Faddi's ca8e('} could not have been caiieci iniu aid. The tria1 curt ~"ld th!:! JU.gh_ Court relied on Bharath Rai's statement that it was Naulakh Rai who fired a pistol

\I) A.1.P.1964S.C.1850.

to contradict the statement of Mohar Rai in his complaint that a pistol was fired by Dudhnath. No portion of Ex. 4 could have been used for that purpose either under s. 157 or s. 145 of the Evidence Act. As Bharath Rai was not examined as a witi!ess in the present case his previous statement .could not have been used either to contradict his evidence or corroborate it even if it is to be held that it is a statement coming under s. 154 of the Code of Criminal Procedure: see Nazir Ali v. State of U.P.(1).

The circumstances noticed above, in our opinion, not merely affect the value and weight to be attached to the prosecution evidence, but they pursuade us to doubt the prosecution version. In the circumstances, we are unable to resist the conclusion that there has been a miscarriage of justice.

We accordingly allow these appeals and acquit the appellants.

Their bail bonds do stand cancelled.

R.K.P.S.

Appeals allowed.

(1) A.I.R. 1957 S.C. 366.