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VJNODCHATURVEDI ETC. EJ'C. •

STATE OF MADHYA PRADESH ' .

March S, 1984

(S. MURTAZA FAZAL ALI AND RANGANATH MISRA, JJ.]

• Appeal against acquittal under section 386 of the Criminal Procedure "Code, 1973-Convictio11 by re:versal.of th; verdict of acquittal relying on the

evidence of the same wltnesfes; who are .clo_se relatives of the de.ceased and who in the earlier trial categqrical/y implicated someother five persons-Appreciation of evidence-Whether the High_ Co_uri was correct in relying on the said eye witnesses-Evidence Act, -section J...,...AdmissihilitY of Ex. P. ]'and E; v. P. 9, the tWo letters as corroborative evidence-Penal Code, sectionJ 148, 300, 362 and 367-Conviction Under Applicability of section !48 when the state coUnQel conceded tliat the charge u/J 148 cf id nOt relate to charge of bduction, but to murder taking place /ater.

On the basis or the investigation made on "a First Information Report that one Brindaban the. deceased son of PW 1 was kidnapped in a jeep fr6m village Budba to the village Rarnpura whee h~ was _done to death, five person_s were put on trial in. Sessions Trial No. 107 of 1973, but they were acquitted by Judgment date.d 29.1.1974. The trial court held that the investigation was defective and the real accused had not been brought ori trial. After a lapse of three years in 1977 a fresh investigati0:n was undertaken and it resulted _in the prosecution of the present appell.., ts in the Court of Sessions as killers of Bfinda.ban. Prosecution examined seven eye-witneSes. The Trial Court assessedthe' evidence in a fair way and was not prepared to rely. on ii and therefore directed acquittal of the appellants. In the State appeal againot acquittal, the High Court heavily relying upon two documents-The first being Ex. l>. 1 a lettersent by PW I Sunderlal (9 the Superintendent of Police on 29.4.1973 nd the second being Ex. P 9 a confidential letter of the Superintendent of olice to the Deputy Inspector• General of the Department-found support 1 or the prosecutioJl case as corroborative evidence with the ocular evidence and reversed the acquittal, by convicting the appellants under section 148 and l6~ IPC. Hence the; appeals by special leave. ·

Allowing the appeals, the Court

HELD : I. When in the first trial on the charge of murder and abduction the prosecution had alleged that the deceased had been murdered by

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a •et of five persons different from the present appellants and let in evidence of H • three eye-'-witnesses bloing. PWs. 1, 3 and 24 of the Second Trial and who aro iiamittedly close relations of decesed t6 the ~ect that tho~ fiv~ . ~CC¥~ .

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persons.and no thers incIding the appellants were responsible for the death . of the deceased. acceptance of the evidence of the vey same three eye witnesse1

in tbe second trial conducted after a lapse: of. three years implicating the present appellants as murderers will be higl\ly imp; oper. . The fact that these alleged eye-witnesses were pi:epared to implicate the five persons who were acquitted on the earlier occasion and the present appellants on the subsequent occasions in a serious charge like murder is indicative of the fact that no credence can be given to the evidence of these witnesses and they were willing< to lend their. oath to any story. that the prosecution. advanced.

Therefore, in an appeal against .acquittal the High Court in whose hands there has been a revirsal of the acquit tat ollght not to have found the remaining evidence to be good basis for conviction ofihe appellants. [96H; 97A-D]

2. The High Co(irt fell into error in relying on the Jetter of PW I Sunaerlal to the Superintendent of Police dated 29.4.1973 which ii subsequent tO the commencement of the 'investigation of the basis on the First Information Report. Such a letter written by PW I who stood in the place of the posecutor would. not ai alt'be admissible inevidence. [97E-F) . '

Kali Ram v. State of Himachal Pradesh.

[1974] I SCR '22; •. followed.

3. To rely on the contents of the lettO:r Ex. P. 9 written bi the Superin tend,; nt. of police to_ his superior officer,. Without examining the writer of

th~ letter and without affording an opportunity to the defence to Crossexamine the writer,. is totally misconceived. The document w-as no.t available to be relied upon for any pupose an~ the High Court in the ins'tant case was wrong in seeking support from it by way of corroboration of the or81 evidence. [9.70" HJ

.4. In view of the exres§ words i~ the definition of "abduction" in Sectioµ 362 of the J.P. C., the offence of. abduction against the accused has .n9.t bee"n fu.Jly proved, since the name ofVinod the leader of the party has not been mentioned at all during the investigation and even according tO the ro, ajority -ofwitriesses, on the perSuation of the -acused (appellants) he went inside his hous~ and came properly dressed and to accompaily the group to v_illage Rampura. [98CD]

5. The appelJants were not liable to be convicted under section 367 of. the Penal Code because from the rfon aeceptance by the High Court of the G story of murder of the. deceased by the appellants and non recording a finding that the grievous hurt leading 10 death was caued by them, it wiH De clear that the act of picking Of the deceased from hisvillage was unconnected with what happened later. [981'0]

6. The charge under section 148 I.P.C. has been conceded by the

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 counsel for the S t3.te to relate to what followed at Rampufa and is not -t' H conriected with the accuSation of abduction. The common object as stated • by the proseCution would not b; available fer sustaining the coµvicton ndr section 148 l.P.C. in that background. (980-HJ . . . ·. . . •

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ViNOD CHATURVEDI v; M.f. STATE (Ranganath Misra, J.) 95.

CRIMINAL

APPELLATE JURISDICTION : . Criminal . Appeal Nos. 192-193 of 1983

 Appeals by Special leave from the Judgment and Order dated the 31st January, 1983 of the Madhya Pradesh High Court in Criminal Appeal No. 732 of 1980. ·

• A.N. Mu/fa and S.K. Gambhir, for the Appellant in C.A. 192 of 1983. ·

Rajendar Singh a, nd .A.K. Mahajan for the Appellants . in CA. l 93 of 1983. • A.K. Sanghifor the Respondent in both the Appeals.

The Judgment of the Co, urt was delivered by

RANGANATH MISRA, J.

These appeals by special leave are directed against the judgment of the High Court of Madhya Pradesh reversing the order of acquittal passed by 'the learned trial Judge. Criminal Appeal No. 192 of 1983 is by Vinod Chaturvedi while the other is by Jive of the co-accused. All of .them had been charged for offences punishable under Sections 148, 364 and 302/ 149 of the Indian Penal Code and were acquitted by the Additional Sessions Judge. The State of Madhya Pradesh carried an appeal being Criminal Appeal No. 732 of 1980. to the . High Court assailing the acquittal and the High Court allowed 'the appeal and while main• tairiing the acquittal under. Section 302/149 of the Indian Penal Code, convicted the appellants for offences punishable under Sections 148 and 367 of the Penal Code and directed each. of them . . to be sentenced 3 years rigorous imprisonment for each of the olrences with a further direction that the two sentenc.es would run concurrently.

According to the prosecution on 27th April, 1973, around 4 p.m. the appellants kidpapped Brindaban, the deceased son of P.W. I , from village Budha and took him in a jeep to Rampura about ope kilometre .away on the pretext that a pending dispute between Brindaban and Sol)le villagers of Rampura would be settled amicably. It was further alleged that later in the evening Briµdaban wa~ done to death by being given several b\ows by blunt and deadly weapons pursuant to the common object of the appellants of killing him .. The dead body was brought to village l}udha on the following day. Investigation as taken ur on tq~

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lJasis of the firs1 information report and as a result thereof five persons were put on trial in session trial No. 107 of 1973 but they were acquitted.by the learned trial Judge by judgment dated 29.1.74.

The trial court came to' hold that the investigation was defective and the .real accused persons had not been brought to trial.

Nothing appears to have been done in the matter until 1977 when

a fresh inv.estiga ti on was undertaken and it resulted in prosecution of the .appellants in the court of session as killers of Brindaban.

Prosecution exmined seven eye-witnesses being P.W. 1 Sunderlal, father of the deceased; P. W. 2 Nathu, a co-villager and claimed toJie a servant of P.W." by the qefnce; P.W. 3 Kalua, a nephew of, the deceased; P.W, 23 Jhallu, a brother of tlie deceased, P.W 24, Nanhaibai wife of the deceased, and P.Ws. Band 14, two outsidePs who have been dclared hostile by the prosecu~ tion.c The trial court assessed the evidence in a fair way and was not prepared to rely upon it.

Accordingly he disbelieved the prosecution case and directed acquittal of the accused persons.

The High Court did not come to the conclusion on the basis of the ocular evidence that the same was acceptable and 0n the basis 1 thereof a conviction could be recorded, but heavily relied on two documents-the first being Exhibit P-1, 'a letter sent by P.W. l Sunderlal to the Superintendent of Police dated 29;4.73 and the second; being Exhibit P-9 a confidential letter of the Superinten dent of Polic.e to the Deputy Inspector General of the Department The High Court found support for the prosecl\tion case fromthese two letters and acceptillg the pos1tion that their contents corrobo ; ated the oral evidence of the witnesses proceeded to reverse the acquittal. It, however, did not accept the prosecution case relating to the charge of. murder.. Thus, while sustaining the acquittal in respect of the charge of murder the court convicted the appellants under Sections 148 and 367 of the I.P.C. ·

. The peculiar features of this case are that the prosecution had alleged .that Brindaban had been !hurdered by a set of fiv~ persons different from the present appellants and had made them face a regular trial. Three most material witnesses being P.Ws. 1, 3 and 24 of the present trial who are close relations of deceased Brindaban had then testified 'before the Court thpt those f\ve accused persons and no others including the appellants were.

responsibl~ for the . death of Brindaban. After the acquittal in .

l9'74 ttothing happened \n te matter for three yeafs and sudenlf ·

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ViNOD CHATURVEDi'v. M.P. SrATE (Ranganath Misra, J.) 97

on the same old allegations in the hands of the police, fresh investigation was undertaken and the present set of accused persons were arrayed as murderers of Brindaban. Those fliree eye• witnesses 7-Vho on the earlier 01casion had deposed that five named .. assailants were the murderers of the Brindaban changed their version and now spoke that the present appellants were the . murderers. The fact that these alleged eye-witnesses were prepared to implicate the five persons who were acquitted on the earlier occasion add the present appellants on the subsequent occasion in

8 Serious charge like mufder is indicative of the fact that DO credence can be given to the evidence ilf these witnesses and they • were willing to lend their oath to any story that the prosecution_ advanced. Once the evidence of P.Ws. I, 3 and 24 is brushed aside on that grmd, the residue by itself would not be adequate to support the charge. We have grave doubts whether the High Court in whose hands there has been a reversal of the acquittal. would have found th\) remaining evidence to be good basis for the. conviction;

The High Court fell into a clear error in' relying on the two letters marked as Exhibit P-1 and Exhibit P-9. Exhibit P-1 was a letter of P.W .. l, Sunderlal to the Superintendent of Police. Admit tedly by 29.4.73 when this letter said to have been written, investigation had started on the basis of the firt information report and therefore, a letter written by P.W. I who stood in the place of the prosecutor would not, at all be: admissible in evidence.

No detailetl . reasons are warranted for this conclusion as the position is clearly covered by a decision of this Court in the case of Kali Riki v. State of Hirnachal Pradesh', Learned counsel for the State did not refute this conclusion .

So far as th'e other document is concerned, as already indicated by us, it is a letter written by the Superintende11t of Police to this administrativ • superi<>r.

The writer of the letter bas not been examined as a witness. No oppor Wnity has been given to the defence to cross-examine the writer. To rely on the contents of that letter in such circumstances' is totally misconceived. The document was not available to be relied .. upon for any purpose and the High Court clearly went wrong. in seeking support from it by way of corroboration of the oral evidence. ·

(U, (1974] 1 s.<;<.it. 722,

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There are several other unsatisfactory features in the prose,. cution case which the trial had taken note of but strangely. en0ugh tjiose did not commend themselves to the High Coµrt even for consideration. . Vinod had not betlll named as the leader of the party which came to village Budha to pick up Brinda ban iii the statements given during investigation by several witnesses. These witnesses had been confronted as required by law and apart from pleading either innoceni:e or helplessness, no other answer was given. Some witnesses had .deposed that Vi nod the mfrin architect ot the incident came armed with a gun while others claimed that he was armed with a lathi, There is considerable divergence .in the evidence as to \Vhether Brinda ban came into the jeep of his own accord or had been forcibly. put into it. Most of the witnesses ""· have stated that on being persuaded by the ac4*ised persons and

Vinod, in particular, l)e went •inside his house and came.properly dressed to accompany. the group to village Rampura. In that event, it cannot be naid. that Bi'indaban was abducted 'by the 11ccu1ed persl>ns. This is so in view of the definition of 'abduction' in Section 362 of the Code where it has been said: .. "Whoever bv force compels, or by any deceitful means induce1, any person to go from any place, is said to . abduct that person" .•

The High Court has convicted the appellants for the offence punishable under Section 367 of the Penal Code which could be possible . if there is abduction with a view to subjecting the abducted person, to grievous hur(or slavery etc. The High Court did not accept the story of murder of Brindaban by the appellants nor did it record a finding that the grievous hurt leading to death was caused by the appellants. The resultant position from it should have re'en that the act of picking of Brindaban from his village waa unconnected with what . happened to• Brinda ban later.

From if should have followed that the appellants were not liable to be convicted under Se•ition 367 of the Penal Code.

The charge under Section 148, I.P.C. has been .. conccded by the counsel for the State to relate to what followed at Rampura and i1 not connected with the accusation of abduction. The common object as statr.d by the prosecution would not be l\Vailable for sustaining the conviction under Section 148, I.P .C. in that backaround . ·

There are many other aspects with reference to which the trial ~C)Urt !w\I f\.>111l4 f!\U!t wit!\ the prosecutio11 C<\Se, While WI;

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VINOD CHATURVEDI v. M.P. STATE (Ranganath Misra, J.) 99

accept the submission advanced for the State that we should not reassess the whole' evidence with reference to minor details, we are satisfied that the prosecution had failed to establish the chrges and the High Court without a proper appraisal of the materials and without meeting the findings reached by the trial court reversed the acquittal. •

We accordingly allow the appeals, set aside the jud1mcnt of conviction recorded by the High Court by reversing the acquittal of the trial court and while restoring the judgment of the trial court, we direct that the appellants are acquitted of both the charges and the sentences of imprisonment are set aside. Each of the appellants is discharged from his bail'bond.

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