Jai Prakash Tiwari vs The State Of Madhya Pradesh

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 704 OF 2018

JAI PRAKASH TIWARI …APPELLANT(S)

VERSUS

STATE OF MADHYA PRADESH …RESPONDENT(S)

JUDGMENT

N.V. RAMANA, CJI.

1. The present appeal arises from the judgment dated

26.05.2017 passed by the High Court of Madhya Pradesh at

Jabalpur in Criminal Appeal No. 1870/2005. The High

Court dismissed the appellant’s appeal against judgment

dated 18.08.2005 passed by the First Additional Sessions

Judge, Sidhi in Sessions Trial No. 119/2003, confirming his

conviction under Section 307 of the Indian Penal Code, 1860

(‘IPC’) and Sections 25 and 27 of the Arms Act, 1959 (‘Arms

Act’).

Signature Not Verified 2. Digitally signed by SATISH KUMAR YADAV Date: 2022.08.04 16:53:43 IST The appellant was sentenced to undergo three years of Reason:

rigorous imprisonment with fine of Rs.500/­ under Section

1 307 IPC. He was further sentenced to undergo three years of

rigorous imprisonment with fine of Rs.1,000/­ under Section

27 of the Arms Act and one year of rigorous imprisonment

with fine of Rs.500/­ under Section 25 of the Arms Act.

Appellant has undergone approximately 1 year, 7 months of

his sentence and was released on bail by this Court during

the pendency of the present appeal.

3. The factual matrix as per the prosecution is that, on

14.02.2003 at about 10:30 p.m., the appellant and co­

accused went to the complainant’s house and called him

outside. When the complainant came out, the appellant fired

at him with a country­made pistol. The complainant (PW2) is

stated to have run into the house and escaped injury while

the appellant and co­accused fled from the spot on their

motorcycle. The complainant’s mother (PW3) was allegedly

present in the house at the time of the incident and the

complainant’s neighbours (PW1, PW10, PW11) arrived upon

hearing the sound of gunfire. The firearm used in the alleged

incident is stated to have been recovered from the appellant,

along with an empty cartridge.

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4. The prosecution charged the appellant and co­accused

under Section 307/34 IPC and Sections 25(1B) (a) and

Section 27(1) of the Arms Act. After perusal of evidence on

record and examination of witnesses, the trial Court

convicted and sentenced the appellant as specified above

while acquitting the co­accused, as the prosecution had

failed to prove the charges against him. By way of impugned

order dated 26.05.2017, the Madhya Pradesh High Court

confirmed the appellant’s conviction and sentence.

Aggrieved, the appellant approached this Court in appeal by

way of special leave.

5. The learned counsel for the appellant has contended that

the entire case of the prosecution is based on the testimony

of the complainant (PW2) and the hearsay evidence of his

mother (PW3), who is an interested witness, and there is no

corroborative evidence or independent witness to support

their testimonies. He has submitted that the prosecution

witnesses to both the incident as well as the alleged recovery

of the firearm have turned hostile. He has also relied on the

testimony of the IO (PW9) to state that no empty cartridges

3 or pellets were recovered from the place of incident, which

casts a doubt upon the prosecution’s case. Learned counsel

for the appellant has submitted that the complainant has a

close nexus with the police department as his father is a

retired Inspector and his brother and sister are also police

officers. He also submits that besides the complainant, no

witness has been produced by the prosecution who had seen

the appellant at the site of the incident.

6. Learned counsel for the respondent­State, on the other

hand, has supported the concurrent judgments of conviction

given by the courts below. He has stated that there is no

error in relying on the statements of the complainant (PW2)

and his mother (PW3), whose testimony is corroborated by

ballistic evidence and seizure of the firearm and empty

cartridge from the appellant.

7. Heard the learned counsel on merits and perused the

material on record.

8. The prosecution strongly relies upon the statement of the

complainant and his mother. A perusal of the statement of

the complainant reveals that the accused­appellant had

4 come in front of his house and upon asking as to why they

were here, the accused­appellant and his companion kept

quiet. The complainant asked them to leave. Thereafter, the

accused allegedly took out his country made pistol and fired

a shot at the complainant. The accused and his companion

then sped away on their bike. The complainant had already

run inside the house and was, therefore, unharmed.

Subsequently, the mother of the complainant and his three

neighbours came to the scene of the occurrence.

9. From the evidence on record, it is clear that, apart from the

complainant and his mother, the other independent

witnesses namely Rajat Shukla (PW1), Amit Bhasin (PW10)

and Vikas Shukla (PW11) have denied witnessing the

incident. Even, the Sub­Inspector­Rahul Sharma (PW9), in

his cross examination, has stated that the abovementioned

witnesses during their police statements under Section 161

of the Cr.P.C, had indicated that they had not seen the

accused­appellant firing the shot.

10. Under the above circumstances, the only evidence available

to prove the presence of the accused at the scene, apart from

5 the testimony of the complainant himself, is that of PW3, his

mother. Although, the counsel on behalf of the accused has

argued that the testimony of the aforesaid witness should

not be taken into consideration as she is an “interested”

witness, it is an established principle of law that a close

relative cannot automatically be characterized as an

“interested” witness. However, it is trite that even related

witness statements need to be scrutinized more carefully.

[See Bhaskarrao v. State of Maharashtra, (2018) 6 SCC

591; State of Rajasthan v. Madan, (2019) 13 SCC 653]

11. In the above context it is pertinent to note the statement of

the complainant (PW2) and the mother of the complainant

(PW3):

Deposition of PW2 In Examination­in­Chief, it is stated by PW2 that:

“… On 14th February 2003 at 10.30 pm, I was at my home. At that very time, Jaiprakash and Pintu had come in front of my house on motorcycle and blew horn twice whereupon I had come outside. When I had come outside my house I had seen Pintu Dubey on driving seat and Jaiprakash as pillion rider, Motorcycle was on. I asked Pintu that­what is the purpose of coming, whereupon he replied that­Jaiprakash has brought me with him, so ask him. So, I had asked Jaiprakash but he did not reply. It felt

6 like Jaiprakash was intoxicated So I asked them to leave and that I will talk to them later. Then Pintu raced the bike. As soon as Pintu raced the bike, at that very time Jaiprakash had taken out the Country made pistol and fired on me and they had gone away abusing. By that time, I had run and entered the house.

Thereafter, two three people from the locality had come. My mother also had come. My neighbours named Amit Bhasin, Vikas Shukla, Rajat Shukla had come there. My mother asked me that­what had happened, so I told her about the incident.”

Deposition of PW3

In Examination­in­Chief, it is stated by PW3 that: “… the incident is of 14th February, 2003 at about 10.30 pm. I was at my home. The voice of boys had come from outside, sound of motorcycle also had come. Sound was coming from outside that – Sandeep come outside, whereupon Sandeep had gone outside. I had followed him as well. Two boys were sitting on motorcycle, motorcycle was start. It was sounding as if someone was abusing in loud voice and they had fired during conversation itself. So Sandeep had come inside immediately when fired.”

In cross­examination, it is stated by PW3 that: “I was in the verandah first. I had come outside when I heard sound of gunshot. The verandah is open from where the outer scene is visible. It is not true to say that I had merely heard the bang…… and even I had witnessed it.”

7 Then again in cross­examination, it is stated:

“…. I was not acquainted with the accused persons beforehand. It is not true to say that I have not seen the incident…” (emphasis supplied)

12. It must be noted that the complainant clearly states that his

mother came to the spot after the incident. On the other

hand, in the chief examination, his mother states that she

followed the complainant when he went outside and

therefore, she witnessed the incident. In her cross­

examination, she states that she came outside when she

heard the gunshot. However, she saw the incident from the

verandah.

13. Contradictions aside, it must be noted that the incident took

place at around 10:30 pm in the night. It is no­where

mentioned that the accused and PW3 were familiar to the

extent that she could recognize him in a fleeting moment

while he was speeding away on his bike. She also failed to

provide any discernable features of the accused­appellant. In

fact, she specifically states that she was not acquainted with

the accused persons. It seems highly improbable that the

mother of the complainant, PW3 instantly recognized the

8 appellant­accused at night. No effort has been made to

conduct an identification test, to associate the accused­

appellant with the alleged incident. After closely scrutinizing

the statement of PW3, mother of the complainant, we must

state that the same does not inspire confidence.

14. The High Court and the trial Court have laid great emphasis

on the recovery of a motorcycle and a country­made pistol

from the possession of the accused­appellant.

15. In this context, it is pertinent to note the statements of PW5

and PW8, the witnesses to the seizure:

Deposition of PW5

In Examination­in­Chief, it is stated that:

“Police had caught Jaiprakash and found one country made pistol while searching him….. I do not remember whether any documentation had been done or not. Then Jaiprakash had been held in the lockup and I had returned back. Police had not seized any vehicle before me.

It is important to note that at this stage, the AGP sought permission to ask leading question to the witness declaring him hostile…… I do not remember this today that whether a motorcycle had been seized from accused Jaiprakash before me or not.”

In Cross­Examination, it is stated that:

9 “I know Sandeep Upadhyaya. I have good terms with him…. The neighbours of Jaiprakash were not present when the Police had done proceedings, then said that people were there but he did not know them. No neighbours of Jaiprakash had signed the documents. Police had not called the neighbours of Jaiprakash.”

Deposition of PW8

In Examination­in­Chief:

Police had seized one country made pistol from accused. No other thing other than pistol had been seized before me nor had the accused stated to seize the same in my presence.

It is not true to say that one black coloured Splendor motorcycle wherein MP 17 MB 9735 was written had not been seized from accused Jaiprakash before me.” (emphasis supplied)

16. The sub­Inspector­Rahul Sharma (PW9) has stated in his

evidence that the alleged motorcycle and the country made

pistol were seized from the complainant’s house based on

the disclosure statement of the accused­appellant. However,

the witnesses to the seizure (PW5 and PW8) have given

varying statements regarding the same. In fact, PW5 clearly

stated that there was no recovery of bike, and he was,

therefore, declared hostile by the prosecution. Moreover,

although PW8 has stated that no other thing other than the

10 pistol was seized, he contradicts himself by stating that

indeed a black coloured splendor motorcycle was seized. The

aforesaid contradiction in the statement of PW8 cannot be

stated to be minor. The same, therefore, does not inspire

confidence.

17. It also needs to be noted that there has been no recovery of

any pellet, empty cartridge, or any remains of the

gunpowder from the spot. In the absence of a ballistic

report, there is no clear connection between the seized

weapon and the alleged incident. Moreover, even the

complainant had given a vague description of the

motorcycle. Neither the license number nor the colour or any

other distinguishing features have been indicated by the

complainant. Even here, there is no linking factor between

the seized vehicle and the alleged incident.

18. Another important issue that merits consideration in the

present appeal is that the accused­appellant, in his Section

313 statement, stated that he and the complainant belonged

to opposing student parties. The accused­appellant claimed

that owing to the animosity pertaining to the elections, the

11 accused­appellant was falsely implicated in the matter. He

also produced two witnesses to prove his alibi. DW1 and

DW2 have stated that the accused appellant was in his

village as his mother was unwell. Moreover, the accused­

appellant also pointed out to the Court that the father, sister

and brother of the complainant were all a part of the police

department. The accused­appellant also brought to the

notice of the Court the fact that the complainant had also

registered another criminal case against the accused­

appellant in which he already stands acquitted.

19. In the case at hand, the alternate version put forth by the

appellant­accused could not be ignored. Section 313 CrPC

confers a valuable right upon an accused to establish his

innocence and can well be considered beyond a statutory

right, as a constitutional right to a fair trial under Article 21

of the Constitution.[See Reena Hazarika v. State of

Assam, (2019) 13 SCC 289]

20. This Court in the case of Satbir Singh v. State of

Haryana, (2021) 6 SCC 1, while emphasising upon the

12 significance of Section 313 CrPC, has delineated the duty of

the trial Court and held thus:

“22. It is a matter of grave concern that, often, trial courts record the statement of an accused under Section 313 CrPC in a very casual and cursory manner, without specifically questioning the accused as to his defence. It ought to be noted that the examination of an accused under Section 313 CrPC cannot be treated as a mere procedural formality, as it is based on the fundamental principle of fairness. This provision incorporates the valuable principle of natural justice — “audi alteram partem”, as it enables the accused to offer an explanation for the incriminatory material appearing against him. Therefore, it imposes an obligation on the part of the court to question the accused fairly, with care and caution. The court must put incriminating circumstances before the accused and seek his response. A duty is also cast on the counsel of the accused to prepare his defence, since the inception of the trial, with due caution…” (emphasis supplied)

21. In the context of the abovementioned precedents, it is

imperative to have a look at the evidence of the defence:

“EXAMINATION OF ACCUSED NO.1

Q3 On dated 14.2.03 at about 10:30 O’ clock in the night you accused and co­ accused Pintu @ Padamdhar Dubey had come

13 to house of complainant Sandeep Upadhyay (PW2) situated at Arjun Nagar, Uttar Karodiya by Hero Honda Motorcycle bearing number MP 17B/9795. What do you say?

Ans: It is incorrect. I had gone to village.

DEFENCE PLEA OF ACCUSED When accused Jaiprakash Tiwari s/o Girija Prasad Tiwari has been called upon to enter his defence, then he states that:­

I had not casted vote in the favour of Sandeep’s candidate in the election of college. Sandeep was in favour of N.S.U.I. I was in favour of Vidhyarthi Parishad (Student Council). Due to this reason, I have been falsely implicated.

On asking from the accused that whether he has to give defence evidence, then he states that :­ I have to give defence evidence.

DEPOSITION OF DW1

EXAMINATION­IN­CHIEF

1. I know accused Jaiprakash and his parents. Their house is at Maata; at Karaudia in Sidhi; at village Amahatola and Hanumangarh, Veldah as well. On 14.02.2003, I had reached the house of the accused at 9­9:15 hours at North Karaudia and taken him to his house at village Maata on motorcycle as his mother had fallen sick at village Maata. We had reached Maata at 11­11.30 hours. Then Jaiprakash Tiwari had called the Jan Swasthya Rakshak at about 12 hours and got his mother treated. Drip had been applied to

14 his mother till morning on 15th and at that time two to four people were there along with Jaiprakash.

Deposition of DW2

EXAMINATION­IN­CHIEF

1. I know accused Jaiprakash. His house is in Sidhi and at Maata as well. On 14.2.2003, Jaiprakash was at village Maata. Mother of Jaiprakash was suffering from vomiting and diarrhea and therefore as per my information Jaiprakash has been at village Maata from 11.00am till 8 am the other day on 15.2.2003.

2. I had myself seen Jaiprakash going to his house. I am neighbour of Jaiprakash.

Jaiprakash had been called from Sidhi to Maata by Shankardayal as mother of Jaiprakash was not well. I had heard after 4­ 6 days that Jaiprakash had been arrested for some incident of the said date.” (emphasis supplied)

22. In the present case, the accused while being examined had

stated himself that he had gone to his village on the date of

the incident. To support his case, he produced two defence

witnesses who have corroborated his presence in the village.

Furthermore, the accused claimed to be falsely implicated in

the case owing to political rivalry. However, without

scrutinizing the aforesaid plea of the defence, the trial Court

observes:

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“10. The accused Jayprakash Tiwari has not stated anything in his examination that he has been falsely implicated in the case by the. prosecution witnesses or any other reason or motive for his false implication. The evidence of the complainant Sandeep is corroborated by the evidence of Amit Bhasin_PW_10 and Vikash ­PW­11 who had reached the place of occurrence immediately after the incident and in such situation the evidence of the complainant Sandeep Upaddhyay and other prosecution witnesses is believable and it is proved from their evidence that on the date of incident the accused Jayprakash Tiwari had fired upon the complainant Sandeep Upaddhay from firearm katta with knowledge and intention under such circumstances that if the complainant had died then the accused Jayprakash Tiwari would be guilty of murder.”

(emphasis supplied)

23. In a similar manner, the trial Court refused to weigh in the

evidence of alibi. The trial Court while disbelieving the

defense witnesses observes:

“14. In such a situation the defence plea of the accused appears to be an afterthought. From the perusal of the evidence of the defence witnesses Shankerdayal Mishra_DW_l and Krushnakumar Tiwari_PW­2 it is clear that both ∙the witnesses are the neighbours of the accused and residents of same village. Being farmers and after a gap of two years they have remembered the date of incident. It appears that these witnesses are trying to save the

16 accused by stating his presence in their village.”

(emphasis supplied)

24. The High Court without independently analyzing the

aforesaid statements and evidence, upholds the finding of

the Trial Court. The High Court observes that:

“22. This Court is in agreement with the findings of learned trial Court that, defence taken by the appellant has not been suggested any prosecution witness, nor stated by the appellant during his accused statement under Section 313 of the Code of Criminal Procedure. The plea of alibi has been taken by the appellant is after thought. Hence, no benefit is granted in favour of the appellant with regard to plea of alibi. Thus, the conviction of the appellant under Section 307 of IPC, is hereby maintained.”

25. In the present case, the courts below failed to scrutinize the

defence version put forward by the appellant­accused in his

Section 313 statement. The object of Section 313 of the Code

is to establish a direct dialogue between the court and the

accused. (See Asraf Ali v. State of Assam, (2008) 16 SCC

328)

26. The purpose of Section 313 CrPC is to provide the accused a

reasonable opportunity to explain the adverse circumstances

17 which have emerged against him during the course of trial.

A reasonable opportunity entails putting all the adverse

evidences in the form of questions so as to give an

opportunity to the accused to articulate his defence and give

his explanation.

27. If all the circumstances are bundled together and a single

opportunity is provided to the accused to explain himself, he

may not able to put forth a rational and intelligible

explanation. Such, exercises which defeats fair opportunity

are nothing but empty formality. Non­fulfilment of the true

spirit of Section 313 may ultimately cause grave prejudice to

the accused and the Court may not have the benefit of all

the necessary facts and circumstances to arrive at a fair

conclusion.

28. Such an omission does not ipso facto vitiate the trial, unless

the accused fails to prove that grave prejudice has been

caused to him. Although the counsel on behalf the accused

has not proved any serious prejudice caused to him due to

failure of the Court in framing individual circumstances;

however, considering the long pendency of the matter and

18 the right of the accused to have a fair and expeditious trial,

we propose to proceed and decide the matter on its own

merit.

29. It is an established principle of criminal law that the burden

of proving the guilt of the accused beyond reasonable doubt

is upon the prosecution. Where an accused sets up a

defence or offers an explanation, it is well­settled that he is

not required to prove his defence beyond a reasonable doubt

but only by preponderance of probabilities. [See M. Abbas

v. State of Kerala, (2001) 10 SCC 103]. Further, it has

been held by this Court in Parminder Kaur v. State of

Punjab, (2020) 8 SCC 811 that “once a plausible version

has been put forth in defence at the Section 313 CrPC

examination stage, then it is for the prosecution to negate

such defence plea”.

30. Moreover, it is the solemn duty of the courts below to

consider the defence of the accused. The same must be

considered with caution and must be scrutinised by

application of mind by the judge. The Court may accept or

reject the same, however it cannot be done cursorily. The

19 reasoning and the application of mind must be reflected in

writing. However, from the observations extracted above, it

is clear that the courts below have failed to undertake this

solemn duty. Rather, the evidence of the accused has been

dealt by the Court in a casual manner.

31. In the above circumstances, when there is absence of

independent evidence corroborating the statements made by

complainant, serious doubts regarding the recovery of the

alleged motorcycle and the country made pistol, no

connection proved between the alleged recovered items and

the alleged incident, and the plausible version put forward

by the accused­appellant in his Section 313 statement has

not been satisfactorily responded to by the prosecution, the

case against the accused­appellant cannot be sustained.

32. It is the duty of the Court to separate the grain from the

chaff and to extract the truth from the mass of evidence. In

our opinion, the case of the prosecution is based on mere

conjectures and surmises. The High Court and the trial

Court failed to consider the abovementioned circumstances

while rendering the judgment convicting the accused. The

20 evidence brought on record by the prosecution is insufficient

to prove the case against the appellant beyond reasonable

doubt.

33. For these reasons, the appeal is, therefore, allowed. The

conviction and sentence passed against the appellant are set

aside. The appellant is on bail. The appellant stands

discharged from the bail bonds.

............................CJI.

(N. V. RAMANA)

..…..........................J. (KRISHNA MURARI)

.........…………….......J. (HIMA KOHLI)

NEW DELHI;

AUGUST 04, 2022.

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