REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.132 OF 2007

Chetu & Anr. … Appellants

Versus

State of Madhya Pradesh … Respondent

J U D G M E N T

S.B. Sinha, J.

1. This  Jail  Appeal  by appellants  Chetu  and Lalu,  sons  of  Chintu,  is

directed against a judgment and order dated 23.3.2006 passed by a Division

Bench  of  the  Madhya  Pradesh  High  Court  whereby and  whereunder  an

appeal  preferred  against  the  judgment  of  conviction  and  sentence  dated

19.9.1997  passed  by  the  First  Additional  Sessions  Judge,  Ashok  Nagar,

District Guna convicting them as also their father Chintu under Section 302

and  342  of  the  Indian  Penal  Code  and  sentencing  them  to  undergo

imprisonment for life and a fine of Rs.3,000/-, was affirmed.

2. The  deceased  Godha  was  father  of  Prakash  (PW3).   The  accused

Chintu was his uncle.   

The prosecution case in brief is that when the complainant Prakash

came  back  to  his  house  from  Ashok  Nagar,  an  altercation  took  place

between Godha (the deceased) on the one hand and Chintu, Chetu and Lalu

on the other.  Chintu was armed with an axe and the appellants herein were

armed with lathis.  They began to assault Godha.  They put him in a room

and locked him from outside.  The portion of the house in which Prakash

and his father were living was set on fire by Chintu as a result whereof the

house was burnt.  On enquiry from Jot Singh (PW11) and Navela (PW7),

Alfo (PW8) wife of Chintu disclosed that he had been put inside the room.   

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3. The First Information was lodged by Prakash on 29.9.1991 before the

Assistant Sub-Inspector, Ashok Nagar Police Station.  On the basis of the

said  purported  information,  the  said  Shri  Mahesh  Singh  Shukla  (PW12)

procured the key from the wife of Chintu and recovered the dead body.   On

completion of the investigation,  a charge sheet  was filed.   The case was

committed to the Court of Sessions.   

Whereas  the  charges  framed  against  accused  No.1  were  under

Sections  436/302 and 342 of  the Indian Penal  Code,  the  charges  framed

against accused Nos.2 and 3 were under Sections436/34/302 and 342 of the

Indian Penal Code.   

4. The prosecution, in support of its case, examined 12 witnesses.  All

material  witnesses  including the  first  informant – Prakash  turned hostile.

His sister Lakshmibai was examined as a defence witness.  

5. The  learned  Sessions  Judge  principally  relying  on  the  evidence  of

Lalliram (PW5) and Natha (PW6), and the other materials brought on record

by the prosecution including the evidence of Dr. Natwar Singh (PW9) and

the Investigating  Officer  (PW12) recorded a judgment  of  conviction  and

sentence.   

6. An  appeal  preferred  thereagainst  has  been  dismissed  by  the  High

Court by reason of the impugned judgment, inter alia, opining :

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“From the evidence on record, it is clear that the deceased  sustained  several  injuries  with  deadly weapon.  Due to these injuries, some of them were fatal, he died in the night before any medical aid. It also appears that the body was recovered from the  room  of  appellants  and  its  key  was  in  the possession of Alphobai, wife of appellant Chintu. According to postmortem report, 19 injuries were found on the deceased.”

7. As regards the witnesses who were declared hostile including PW3

and the panch witnesses being Hartoom Singh (PW1), Rumal Singh (PW2)

and Bribhan Singh (PW4) as also Alfobai (PW8), Prakash (PW3) and Jot

Singh (PW11), it was held :

“Regarding hostile witness it is settled law that in case of hostile witness the whole testimony cannot be discarded and we can gather truth out of false. Deceased and appellants were closely related with complainant  Prakash  and  his  sister  Laxmibai (DW1) who was  residing  with  appellant  Chintu. Therefore, due to natural love and affection they did not come with open mouth.  Considering the ocular  evidence  available  in  the  case  and supported by medical evidence and looking to the circumstances of the case, we have no doubt in our mind  that  on  the  date  of  incident  appellants inflicted  injuries  to  the  deceased  by  deadly weapons and injuries were fatal which caused the death of Godha (deceased).”

8. The High Court held that it was a clear case of murder which came

within the purview of the clause ‘thirdly’ of Section 300 of the Indian Penal

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Code  as  the  prosecution  has  proved  that  accused  caused  injury  to  the

deceased which was sufficient to case death in the ordinary course of nature.

The deceased was also wrongfully confined by them.

9. PW3, Prakash,  the  First  Informant,  in  his  evidence  stated  that  the

deceased  reached  the  village  in  a  drunken  state.   He  was  in  an  injured

condition.  According to him, as some hooligans were following him, it was

he who had locked him in the room thinking that they would not be able to

find him out.   The hooligans, however, came to his house and put it on fire.

He was declared hostile.

10. The  learned  Public  Prosecutor  in  his  cross-examination  although

proved his signature on the First Information but the contents therein were

not proved.  He denied and disputed that he had made any statement to the

effect that after his father came, he had asked Dadji Chintu to transfer his

portion of land in his name.  He also denied to have made the statement in

the First Information Report, the manner in which the deceased was said to

have  been  assaulted  by  the  accused.   The  prosecution,  as  noticed

hereinbefore, inter alia, relied upon the evidence of one Natha who in his

cross-examination stated as under:

“I  know all  the  accused  who are  present  in  the court.   Four  years  ago,  there  was  a  fighting between  Godha  and  Chetu,  Chintu  and  Lallu  in front of my door.  It was about 9 p.m. Chetu and

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Lallu pulled away Godha in their house.  After that screams  of  Chintu,  Chetu  and  Lallu,  who  are heard.   I  was  ill  at  that  time.   In  the  morning villagers inform that Godha was dead.”

11. He,  therefore,  did  not  see  the  actual  occurrence.   In  his  cross-

examination, he stated that he did not remember as to whether the night was

dark or bright.  According to him he had only heard the screams from his

house.  He did not hear any conversation between the deceased and accused

persons.  He did not interrupt them.  He did not tell them anything.  Nobody

also  told  him  anything  about  the  incident.   Acording  to  him,  the

Investigating  Officer  did  not  record  his  statement.   He  did  not  see  any

person in the village.  He did not go to the police and the police had not

recorded any statement till the date of his examination before the Court.  He

denied  to  have  made any statement  before  the police.   He accepted  that

accused persons had encroached his lands although the accused promised to

give  back  his  land,  they  did  not  fulfill  the  promise.   Evidence  of  this

witness,  therefore,  could  not  have  been  relied  upon  for  more  than  one

reason.  Firstly, because he did not see the occurrence;  secondly because

there  was  no  reason  as  to  why  the  police  did  not  record  his  statement.

Enmity between him and the appellant was also proved.

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12. Navela (PW7), in his deposition, stated that at about 9 pm, he heard a

noise of quarrel through ‘Kharanja’.  Having heard the sound of lathis, he

came out and saw that Chintu, Chetu and Lallu were taking the dead body

of Godha into their house.  After seeing this, he hid himself in his room

(paur).   Accused persons  put  the  dead body of  Godha in  the house  and

started abusing the neighbours.  He saw fire at Godha’s house.  He did not

know where the accused persons had gone.  In his cross examination, he

stated that he has no enmity with the accused persons for the last eight to ten

years and that there is no groupism in their village.

PW7, in his statement, categorically stated that he had not disclosed

about his being a witness to the occurrence to anybody.  According to him,

he was asked by the Police Officer to give statement ‘as per record’ in his

own  words.   He  was  asked  by  them  to  which  they  answered  in  the

affirmative.  He, like PW6, was also ill and had been staying in his house.  

13. Dr. Natwar Singh found a large number of injuries on the person of

the deceased – four injuries were found on left leg, three on the left hand,

three on the right leg and eight on the right forehand.  There was no injury

on the vital part of the body.  No injury was found which could have been

caused by any hard and blunt substance.  A pointed wound was found which

could have been caused either by lathi or axe which are said to be used for

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the commission of crime.  Most of the wounds were bluish.  Autopsy of the

dead body took place on 30.9.1991.   

We have noticed hereinbefore that all panch witnesses were declared

hostile.   The  veracity  of  the  entire  prosecution  case  should  have  been

considered by the learned Trial Judge as also the High Court, keeping in

view the aforesaid backdrop of events.

14. Another aspect of the matter must be borne in mind.  The accused and

the deceased being closely related had a common boundary between their

houses which are situated side by side.  It is wholly unlikely that they would

put fire to their own house.

15. The approach of the learned Sessions Judge as also the High Court

cannot be appreciated.  Despite the clear discrepancies in the evidence of so

called eye-witnesses which we have noticed hereinbefore, the High Court,

in  our  opinion,  committed  a serious  error  in  holding  that  as  the  defence

could not prove its case, the prosecution must be held to have proved its

case.   The impugned judgment,  therefore,  cannot  be  sustained.   It  is  set

aside accordingly.   

16. The appeal  is  allowed.  Appellants  are directed to be set at  liberty

unless wanted in connection with any other case.   

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……………………………….J. [S.B. Sinha]

..…………………………..…J. [Cyriac Joseph]

New Delhi; December 18, 2008

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