Shanker vs The State Of Madhya Pradesh

These appeals by special leave are directed against the

judgment dated 12th September, 2007 passed by the High Court of

Madhya Pradesh, at Jabalpur in Criminal Appeal Nos. 315, 316,

333 and 590 of 1999, whereby the High Court dismissed the

criminal appeals filed by the appellants herein and affirmed the 2

order of conviction and sentence passed by the trial Court against

them.

2. Brief facts of the case, according to the prosecution, are

that on 8th May, 1998 one Sanjay Sorle was attending a marriage at

Bharveli village. While the ceremonials were underway, one Deepak

with two others arrived there on motorcycle. An altercation had

taken place between Sanjay Sorle and the motorcyclists. Deepak,

while leaving that place, threatened Sanjay Sorle and went away.

After that, he came back to the marriage venue at about 10.30 p.m.

on a bullet motorcycle with Gudda @ Shivshanker, Shiv, Suresh

(appellant herein) and Shanker (appellant herein) and took away

Sanjay Sorle from the venue to the road and assaulted him.

Altogether 11 persons were allegedly involved in the crime. Gudda

had inflicted injuries with knife, Shiv with Gupti while Shanker and

Suresh i.e. appellants herein attacked him by giving fist blows. The

injured Sanjay Sorle was taken to police station at Bharveli and

lodged the F.I.R. at 11 p.m.

3. Upon registering the same as Crime No. 54/98, police

sent the injured Sanjay Sorle to the District Hospital at Balaghat for

treatment, where he was declared dead. After conducting inquest 3

(Ext.P3), dead body of the deceased was sent for postmortem,

statements of witness were recorded, site map has been prepared

by Patwary (Ext. P5) as well as police (Ext.P24). Accused were

arrested and at the instance of accused Shivshankar, Manoj,

Dwarka and Shivkumar knives and other incriminating material

have been seized. Bullet motorcycle, allegedly rode by the accused,

has also been recovered from the possession of accused Chokhu @

Sudhanshu (Ext. P9). Other things such as bloodstained soil,

normal soil and clothes of deceased were seized and sent for expert

examination. Charges were levelled against five accused persons i.e.

Manoj, Baburao, Deepak, Gudda @ Shivshanker, Shanker and

Dwarka @ Dan under Sections 148 and 302/149, IPC. In addition

to those charges, accused Rupesh, Chokhu @ Rakesh, Suresh, Shiv

Kumar and Dablu @ Sudhanshu were additionally charged for the

offence punishable under Section 3(2)(5) SC & ST Act, 1989. The

accused denied the charges, pleaded to have been falsely implicated

and claimed to be tried.

4. After an elaborate trial, learned Additional Sessions

Judge by a common judgment in Special Sessions Case No.

51/1998 and Sessions Case No. 120/1998, acquitted six accused 4

persons from all the charges and discharged the accused (including

appellants herein) from the charges under Section 3(2)(5) of SC &

ST Atrocities Act, 1989. However, the trial Court came to the

conclusion that the remaining five accused (including appellants

herein) were guilty of the offences punishable under Sections 148,

302/149, IPC. Accordingly by judgment dated 27 th January, 1999

they were convicted and sentenced to suffer rigorous imprisonment

for a period of one year for the offence under Section 148, IPC.

Whereas, for the offence punishable under Section 302/149, IPC

they were sentenced to suffer life imprisonment and to pay a fine of

Rs.2,000/- each, in default, to further suffer one year

imprisonment. However, all the sentences were directed to run

concurrently.

5. All the five accused persons, being aggrieved by the

judgment of the trial Court, carried the matter in appeal before the

High Court of Madhya Pradesh at Jabalpur assailing the award of

their conviction and sentence. By the judgment impugned herein,

the High Court found their appeal devoid of merits and therefore

dismissed the same upholding the judgment passed by the trial

Court. Dissatisfied with the same, Accused No. 3—Suresh Dhobi 5

and Accused No. 5—Shanker are before this Court by way of

present appeals.

6. We have heard learned counsel for the appellants as well

as learned counsel appearing on behalf of the respondent – State of

Madhya Pradesh. Unfortunately, there is no proper assistance from

the learned counsel appearing on behalf of the appellants, in spite

of taking adjournments. However, learned counsel appearing for the

State has submitted that since two Courts have concurrently

affirmed the guilt of the accused, there are no compelling reasons

for this Court to interfere with the impugned judgment and

advanced arguments in support of the same.

7. The translated copies of evidence of prime witnesses,

P.W.-1 and P.W.5, whose evidence is crucial for this case, which

were filed by the appellant along with appeals are not clear and we

found so many typographical and grammatical mistakes in them.

In all fairness, learned counsel appearing on behalf of the

respondent—State himself has even filed translated copies of

evidence of PWs 1 and 5. We acknowledge the able assistance of

learned counsel appearing for the respondent—State, in facilitating 6

this Court to go through the evidence in the process of arriving at a

just conclusion.

8. The evidence available on record reveals that the entire

case of the prosecution is based on the evidence of two prosecution

witnesses i.e. P.W.1—Ganesh Prasad and P.W.5—Savitri Bai.

9. It is manifest from the evidence of P.W.1—Ganesh

Prasad, that though he had seen both the accused—appellants

herein, but he knew them only by their face and it is PW5—Savitri

Bai who told him their names, and basing on what she said, he has

got their names recorded in the FIR. He further states that both the

accused have disclosed their names to be Shanker and Suresh. But

it is not clear from his evidence that to whom the accused disclosed

their names. Even though the names of the two accused are there

in the F.I.R., as per P.W.-1, the role played by these two accused is

that they had, along with other accused, beat the victim by giving

blows with fists and legs. It was expressly stated by PW1 that by the

time he thought of calling for help, the accused—appellants fled

away from the place of occurrence.

10. PW5—Savitri Bai, who also happened to be the panch of

the ward, deposed that she was standing at a distance of about 10 7

feet from the victim Sanjay Sorle at the marriage venue (Mandap)

accused Shiv took away Sanjay Sorle outside where other accused

Gudda, Deepak, Shanker and Suresh were present. Contrary to the

statement of PW1, she deposed that the accused—appellant

Shanker was armed with a knife and assaulted the victim while

Shiv assaulted with sword-stick, Gudda with a knife while Suresh

and Deepak caught hold of Sanjay. She says that she did not notice

the other persons present at the place of occurrence. When she

shouted loudly, the accused persons fled away and the victim came

to the Mandap groaning. Whereas, in her cross-examination, she

categorically stated that the scene of offence cannot be seen from

the place of Mandap.

11. From the evidence of PW5, it appears that there is a huge

discrepancy in the prosecution case as to who lodged the FIR. It

was clearly stated by PW5 that it was she who lodged the report at

the police station and she had no knowledge about anyone else

lodging the complaint and also she does not know the reason for

not enclosing her report. She made it clear that after lodging the

report she came back to her home. Then after half an hour when

she returned home, police recorded her statement. It is significant 8

to note that PW5 has specifically stated that PW1—Ganesh Prasad

had not lodged the report. It was also clarified by her that none of

the accused assaulted the victim with lathi (stick).

12. At this juncture, it is very much relevant to have a look

at the evidence of Doctor. According to PW7—Dr.Nilay Jain, who

conducted postmortem on the body of the deceased, the deceased

had sustained the following injuries:

1. One quenched wound at present near the nipple oblique 2.0 x 1.5 x 3.0 cms.

2. One quenched wound at mid auxiliary line oblique (D) on 10th, 11th and 12th ribs standard sized about 1.5 x 1.0 x 4.5 cms.

3. One quenched wound on abdomen at mid chronological line on 10th, 11th and 12th ribs oblique sized about 3.0 x 2.5 x 6.0 cms. (depth) at thigh (upper side) on lateral aspect.

4. One oblique quenched wound sized about 5.0 x 2.0 x 7.0 cms. on (depth) right renal angle;

5. One horizontal quenched wound dolente sized about 5 x 1.5 x 2.0 cms. (D) injury near nipple is very clear pleasing 2nd and 3rd ribs picking about of the chest (RT atinum).

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The Doctor expressed his opinion that the death could have

occurred as a result of shedding of excessive bleeding from the

heart and the same could have caused with 18 hours of

postmortem. In the cross-examination, it was elicited from the

Doctor that the death was caused by Injury No. 1 only and there

was no possibility of occurring death from other injuries. The Injury

No. 1, in the opinion of the Doctor, could only be inflicted by a knife

or gupti and not by hand or a lathi.

13. We have given our anxious consideration to the evidence

of prime prosecution witnesses i.e. PWs 1 & 5, it is clear that their

statements are not corroborating with the other on material

aspects. It appears that the Courts below have unmindfully given

greater importance to the evidence of PWs 1 and 5, without looking

into the veracity of their statements. First and foremost, if credence

is given to the statement of PW5, the genesis and genuineness of

FIR (Annexure P1) is, undoubtedly questionable. If the FIR (Ext.P1)

was registered on the basis of complaint of PW1, which remains

duly proved by the statement of its writer M.G. Choubey (PW17),

then the statement of PW5 could not be believed and given effect to,

as in her deposition she categorically asserts that it was she who 10

lodged the complaint with police and PW1 did not lodge any report

to the police. If PW1’s statement is to be believed, it cannot be said

that he was an eyewitness to the incident, as according to him at

the time of incident, he went to the mandap to call for help of other

persons and the place of incident is not visible from mandap. This

fact also proved by the evidence of Amit—PW4, another close

relative of PWs 1 and 5. According to PW4, when he and PW1 were

present in the mandap, Sanjay Sorle came there and fall down going

into the state of unconsciousness. When PWs 1 and 4, gone to see

outside the mandap, by then the accused left the place. He says

that he has no knowledge in which direction the accused left. PW5

is none other than niece of PW1. According to her, she was the

person physically present at the mandap and followed the accused

when they were taking away the deceased. This only establishes the

factum of being the eyewitness but crucially she had omitted to

state to the I.O. about the fact that she followed the deceased to the

scene of offence from the mandap. The omission to this effect is

marked as Ex. D2. In view of that, the evidence of PW1 that he

came to know about the names of the assailants through PW5 also

does not inspire confidence.

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14. At this juncture, it would be helpful to look at the

observations made by this Court in S. Govidaraju vs. State of

Karnataka, 2013 (10) SCALE 454 in the following words:

“It is well settled legal proposition that while appreciating the evidence, the court has to take into consideration whether the contradictions/omissions were of such magnitude so as to materially affect the trial. Minor contradictions, inconsistencies, embellishments or improvements in relation to trivial matters, which do not effect the core of the case of the prosecution, must not be made a ground for rejection of evidence in its entirety. The trial Court, after going through the entire evidence available, must form an opinion about the credibility of the witnesses, and the appellate court in the normal course of action, would not be justified in reviewing the same, without providing justifiable reasons for doing so. Where the omission(s) amount to a contradiction, creating a serious doubt regarding the truthfulness of a witness, and the other witnesses also make material improvements before the court in order to make the evidence acceptable, it would not be safe to rely upon such evidence. The discrepancies in the evidence of eyewitnesses, if found not to be minor in nature, may be a ground for disbelieving and discrediting their evidence. In such circumstances, the witnesses may not inspire confidence and if their evidence is found to be in conflict and contradiction with other evidence available or with a statement that has already been recorded, then in such a case, it cannot be held that the prosecution has proved its case beyond reasonable doubt”.

15. On the face of the present case, it can be said without

any hesitation that the prosecution has miserably failed to prove 12

the alleged offence by adducing cogent and trustworthy evidence. In

other words, the present case is based on a fragile and weak footing

with several contradictions in the evidences of prime prosecution

witnesses. Further, most of the prosecution witnesses have turned

hostile and no independent witness supported the prosecution case.

Interestingly, no test identification parade was conducted even

though PW1 states that he could recognize the accused only by

face, initially there were only five persons named as accused but

subsequently in all, 11 persons were charged and most of them

have already been acquitted by the Courts below. The material on

record shows that a lathi (stick) was also recovered from the

possession of accused, but there was no evidence to show who

wielded the lathi in the assault against the victim. According to

PW5, none of the accused assaulted the deceased with lathi.

16. The judgment of the trial Court, in our opinion, filled

with assumptions and presumptions basing on which the trial

Court awarded conviction and sentence to the accused. The trial

Court had also pointed out that except Ganesh Prasad (PW1), Amit

(PW4) and Savitri Bai (PW5) no other witness has supported the

prosecution case. Clearly, the statements of PWs 1 & 5 do not 13

corroborate on crucial aspects, more particularly the genesis of FIR

remained doubtful, yet the trial Court went on convincing itself with

the evidences of PWs 1 and 5 and also on the basis of its own

presumptions.

17. The High Court unfortunately has also not dealt with the

matter in accordance with the settled principles of law. Before going

to award conviction against an accused for the offence under

Section 302, IPC the Courts should be mindful of the fact that there

should be no room to suspect the evidence of key prosecution

witnesses based on whose evidence the conviction is being awarded.

As a general rule, while appreciating evidence in a criminal case,

the Court should bear in mind that it is not the quantity, but the

quality of evidence that is material. It is the duty of the Court to

consider the trustworthiness of the witness and the evidence

adduced on record and to assess the same in a prudent manner

whether the same inspires confidence so as to accept and act upon,

before convicting an accused. Here it is apt to look at the

observations made by this Court in Harijana Thirupala and Ors. 14

vs. Public Prosecutor, High Court of A.P., Hyderabad, (2002) 6

SCC 470:

“In cases where the court entertains reasonable doubt regarding the guilt of the accused the benefit of such doubt should go in favour of the accused. At the same time, the court must not reject the evidence of the prosecution taking it as false, untrustworthy or unreliable on fanciful grounds or on the basis of conjectures and surmises. The case of the prosecution must be judged as a whole having regard to the totality of the evidence.

In appreciating the evidence the approach of the court must be integrated not truncated or isolated. In other words, the impact of evidence in totality on the prosecution case or innocence of accused has to be kept in mind in coming the conclusion as to the guilt or otherwise of the accused. In reaching a conclusion about the guilt of the accused, the court has to appreciate, analyse and assess the evidence placed before it by the yardstick of probabilities, its intrinsic value and the animus of witnesses.

It must be added that ultimately and finally the decision in every case depends upon the facts of each case”.

18. In the case on hand, the Courts below failed to take into

consideration the contradictions and distortions in the evidence of

PWs 1 and 5. From the evidence of PW1 it clearly transpires that

the participation and the role played by the accused—appellants

Shanker and Suresh in the crime was limited to giving blows with 15

fists and legs to the deceased, while other accused Gudda and Shiv

were assaulting the deceased with knife and sword stick

respectively. A statement of the prosecution witness which is

otherwise untrustworthy cannot be corroborated by another piece of

unreliable evidence of another prosecution witness. In the FIR also,

it was stated that Shanker and Suresh, the appellants herein, had

beaten the victim with hands and feet and no weapon was ascribed

to have been held by them. Whereas, PW5 states differently that the

accused Shanker had also attacked the victim holding a knife.

There was no corroboration among their statements, who are the

prime witnesses, as to the role played by the accused herein. The

postmortem report and the evidence of PW7 (Dr. Nilay Jain) does

not disclose any injuries suffered by the victim resulted from the

beatings received by fists, cuffs and legs as such injuries are not

visible. The prosecution had made large number of assailants as

accused to have attacked the victim, but the witnesses, though

their evidences are full of discrepancies, could not be able to state

as to how the appellants herein caused injuries to the deceased

leading to his death. In such a scenario, it would not be in the

interest of justice to convict the appellants as the standard of proof 16

in a criminal trial is proof beyond reasonable doubt and the

prosecution could not prove the guilt of the accused in those

standards. The Courts below, basing on their own assumptions and

presumptions, have convicted the accused. Though every

discrepancy and contradiction in the evidence of prosecution

witnesses is not fatal to the case of the prosecution, but the

contradictions in the case on hand goes to the root of the matter are

material ones and basing on such evidence it is not advisable to

convict the accused.

19. In view of the foregoing, we are not able to appreciate the

reasoning given by the Courts below for convicting the appellants

for the alleged offences and we are of the considered view that the

prosecution has miserably failed to prove the guilt of the accused

beyond reasonable doubt. Resultantly, we set aside the impugned

judgment passed by the High Court and allow these appeals.

………..........................J. (N.V. RAMANA)

……….........................J. New Delhi, (S. ABDUL NAZEER) April 18, 2018