Vijay . vs The State Of Madhya Pradesh

2023 INSC 699 NON-REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1771 OF 2009

VIJAY AND ANR. APPELLANT(S)

VERSUS

STATE OF MADHYA PRADESH RESPONDENT(S)

WITH CRIMINAL APPEAL NO.286 OF 2010

JUDGMENT

B.R. GAVAI, J.

1. Both these appeals challenge the judgment and order dated

16th September 2008, passed by the Division Bench of the High

Court of Madhya Pradesh at Indore in Criminal Appeal No. 666 of

1999, thereby dismissing the appeal filed by the

Accused/Appellants, namely Vijay s/o Nirbhay Singh, Babbu @

Nandkishore s/o Ramesh and Mahesh s/o Mohan Singh and

upholding the order of conviction and sentence dated 19th April

1999, as recorded by the learned 1st Additional Sessions Judge, Signature Not Verified

GEETA AHUJA Indore, M.P. (hereinafter referred to as “the learned Trial Court”) Digitally signed by Date: 2023.08.11 11:29:23 IST Reason: 1 in Sessions Case No. 459 of 1998 in respect of the appellants

herein.

2. Shorn of details, the facts leading to the present appeals are

as under:

2.1 On 2nd August 1998, Narendra Singh Bais (PW-12), posted

at the Police Out Post, Vijay Nagar, under Police Station, MIG.,

was informed that a person had been done to death by stabbing

and causing cut wounds in Meghdoot Garden and Prem Narain

(PW-5) had given a Dehati Report with regards to the said incident.

In the said Report, he had stated that he was a resident of

Ramnagar and about 03 months before the date of the aforesaid

incident, his elder son, Jagdish (the brother of the deceased) was

beaten by the Accused/Appellants Babbu @ Nandkishore, Vijay,

Naresh, and Deepak and a Report to that extent was also lodged

at P.S. Hiranagar, and ever since the said incident, the accused

persons were harboring enmity against the brother of the

deceased. On the date of the incident, the younger son of PW-5,

i.e., Dharmendra (deceased) had gone for a walk in the Meghdoot

Garden and had not returned by 8.30 PM; when PW-5 went to

look for him in the said garden, he saw that the

2 Accused/Appellants Babbu, Vijay and Mahesh were stabbing the

deceased with knives. When he shouted for help, the accused

persons fled away; following which, he found a large number of

injuries that had been caused to the deceased which resulted in

his death.

2.2 The prosecution case, in a nutshell, is that, on the said

information given by PW-5, PW-12 recorded a Dehati Nalishi at

the Police Choki and a report was accordingly sent to P.S. MIG for

registration of offences punishable under Sections 302/34 of the

Indian Penal Code, 1860 (hereinafter referred to as “IPC”) and

after recording the said information, a First Information Report

(“FIR” for short) vide Crime No. 493 of 1998 was registered. It was

further the case of the prosecution that, Sayyed Azhar Ali Warsi

(PW-9), who was working as the Town Inspector, on receiving the

aforesaid information on wireless, proceeded to the place of the

incident. When he reached the place of occurrence, he saw the

dead body of the deceased and accordingly prepared the Inquest

Memo and the Spot Map. He also seized the blood-stained and

plain earth along with a white colour shirt and forwarded the dead

body of the deceased to the Hospital for post-mortem

3 examination. Dr. P.S. Thakur (PW-11), who performed the

autopsy gave a report, which stated that 31 injuries were found

on the body of the deceased out of which 08 injuries were stab

wounds and the rest were incised wounds.

2.3 The Accused/Appellants were arrested and the clothes along

with the murder weapons were seized at their instance. The seized

articles were sent to the Forensic Science Laboratory for analysis

and a report was accordingly received.

2.4 After the investigation, a chargesheet came to be filed in the

Court of learned Judicial Magistrate First Class, Indore which

committed the case to the learned Sessions Court which

forwarded the same to the learned Trial Court for conducting the

trial and deciding over the matter.

2.5 Charges came to be framed by the learned Trial Court for the

offences punishable under Sections 302/34 of the IPC. The

accused pleaded not guilty and claimed to be tried.

2.6 The prosecution examined 12 witnesses to bring home the

guilt of the accused. Their defense was that they were falsely

implicated on account of earlier enmity. After the trial, the learned

Trial Court found that the prosecution had proved the case

4 against the accused/appellants beyond reasonable doubt and

accordingly convicted them for offences punishable under

Sections 302/34 IPC and sentenced them to undergo life

imprisonment along with fine.

2.7 Being aggrieved thereby, the Accused/Appellants preferred

an appeal before the High Court. The High Court by the impugned

judgment and order affirmed the order of conviction and sentence

of the Accused/Appellants awarded by the learned Trial Court.

Hence, the present appeals.

3. We have heard Shri Sushil Kumar Jain, learned Senior

Counsel, and Mr. Pradeep Aggarwal, learned counsel for the

appellants, and Ms. Rukhmini Bobde, learned counsel for the

respondent-State of Madhya Pradesh.

4. Shri Sushil Kumar Jain submits that the conviction is based

solely on the testimony of Prem Narain (PW-5), the father of the

deceased. He submits that his testimony is full of contradictions.

It is, therefore, submitted that the conviction, which was solely

based on the testimony of such a witness, is not sustainable in

law.

5. Per contra, Ms. Rukhmini Bobde submits that, merely

5 because the conviction was based on the sole testimony of PW-5

cannot be a ground to interfere with. She submits that the

learned Trial Court and the High Court have concurrently found

the testimony of PW-5 to be reliable and as such, no interference

is warranted in the present appeals.

6. Since it is not disputed that the death of the deceased is

homicidal, it is not necessary to refer to the medical evidence.

7. Apart from Prem Narain (PW-5), who is the father of the

deceased, Virender Sahu (PW-4) and Jagdish (PW-8), who are the

brothers of the deceased, were also examined as eye-witnesses.

However, testimonies of Virender Sahu (PW-4) and Jagdish (PW-

8) have been disbelieved by both the learned Trial Court as well

as the High Court.

8. Kamal Singh (PW-1) and Kalidas (PW-2), who were Police

Constables, posted at the Meghdoot Garden where the incident

was alleged to have taken place, have not supported the

prosecution case. Dildar Singh (PW-3), the Kulfi Vendor, has also

not supported the prosecution case. The guard Ram Kishor Singh

(PW-6), posted at the Meghdoot Garden, who had informed about

the dead body, has also not supported the prosecution case and

6 has turned hostile. The rest of the witnesses are either

Investigating Officer (I.O.) or other Police officers conducting the

investigation.

9. As such, it is only the testimony of Prem Narain (PW-5), the

father of the deceased, which is required to be taken into

consideration.

10. No doubt, that the conviction can be based on the evidence

of a solitary witness. However, for resting the conviction on the

basis of such testimony, the evidence of such a witness has to be

found to be wholly trustworthy, reliable, and cogent. It is further

to be noted that Prem Narain (PW-5) has admitted to the previous

enmity between his family on the one hand and the accused

persons on the other hand. As held by this Court in a catena of

judgments, previous enmity is a double-edged weapon. On one

hand, it provides motive, and on the other hand, the possibility of

false implication cannot be ruled out.

11. In this background, we will have to examine the testimony

of Prem Narain (PW-5).

12. Prem Narain (PW-5) in his examination-in-chief stated that,

on 2nd August 1998, which was a Sunday, at around 8.45 P.M.,

7 he had gone in the Meghdoot Garden to search for his younger

son Dharmender. When he went there, he saw that three boys

were killing his son. He named them to be Babbu @ Nandkishore,

Mahesh and one of them a Rajput whose name he did not

remember. He later identified the said person to be ‘Vijay’. He

also stated that when he reached the spot, the crowd had

gathered at a distance from his son upon which he had seen the

accused persons present in the court fleeing from there. They

were armed with knives and the clothes of these three persons

were stained with blood. He further stated that though he raised

an alarm, nobody from the crowd came to save him. When he

reached near his son, he saw him lying in a pool of blood on the

ground. He stated that thereafter he became nervous. After some

time, Police came there and asked him the names of the accused

persons.

13. In his examination-in-chief, he stated about the prior

incident wherein his elder son Jagdish (PW-8) was beaten up by

these three accused persons along with one Deepak.

14. In his cross-examination, he admitted that his house is at a

distance of about 200 meters from the Meghdoot Garden. He

8 submitted that since his brother-in-law Tula Ram had come to

his house, all the members of his family were present. He stated

that when his brother-in-law asked about Dharmender, he alone

went in search of him. He stated that he had not been told by

anyone that his son is in Meghdoot Garden, but he went there on

his own accord. The reason given by him is that his son used to

go to Meghdoot Garden to take a walk.

15. It is relevant to refer to his admission in his cross-

examination, which is as under:

“It is correct that I had gone to see Dharmender in Meghdoot Garden by chance because he used to go there only. My wife had not said that he had gone Meghdoot Garden and therefore to bring him back.”

16. He further admitted that when he entered Meghdoot

Garden, he saw the crowd and there were about 7-8 persons. He

stated that he could not identify the said 7-8 persons. He stated

that only after reaching near the dead body, he could recognise

that the said dead body was that of his son.

17. He further admitted that only a few people come towards the

bridge when it gets dark. It is further his admission that there is

no light near the bridge. It is his clear admission that there was

9 darkness from the bridge towards Ram Nagar in which direction

the accused persons, according to him, fled.

18. As already stated herein above, there is an admitted previous

enmity between Prem Narain (PW-5)’s family on one hand and the

accused persons on the other hand. The learned Trial Court and

the High Court have disbelieved the evidence of Virender Sahu

(PW-4) and Jagdish (PW-8), who are the other sons of Prem Narain

(PW-5).

19. As discussed herein above, there are material contradictions

in the testimony of Prem Narain (PW-5). From the tenor of the

evidence, it is doubtful, as to whether he has really witnessed the

alleged incident or not. Can it be a mere coincidence that Prem

Narain (PW-5) goes to the Meghdoot Garden to search for his

younger son Dharmender and at the same time, he finds the

appellants assailing the deceased and thereafter run away? It is

also questionable, as to whether in the darkness he could see who

the assailants were?

20. As discussed herein above, no doubt that the conviction can

be rested on the testimony of a sole eye-witness. However, the

evidence of such a witness has to be found to be wholly

10 trustworthy, reliable, and cogent. We do not find that the

evidence of Prem Narain (PW-5) is of such a quality that would

inspire confidence in the Court.

21. We are, therefore, of the considered view that the appellants

are entitled to the benefit of doubt.

22. The appeals are accordingly allowed. The judgment and

order dated 19th April 1999 of the learned Trial Court thereby

convicting and sentencing the appellants for offences punishable

under Section 302/34 IPC as well as the judgment and order

dated 16th September 2008 of the High Court affirming the same,

are set aside.

23. The appellants are acquitted of all the charges. The bail

bonds of the accused shall stand discharged.

24. Pending application(s), if any, shall stand disposed of.

..............................J (B.R. GAVAI)

..............................J (M.M. SUNDRESH)

NEW DELHI;

JANUARY 11, 2023

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