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PETITIONER: HALLU AND OTHERS

       Vs.

RESPONDENT: STATE OF MADHYA PRADESH

DATE OF JUDGMENT19/03/1974

BENCH: CHANDRACHUD, Y.V. BENCH: CHANDRACHUD, Y.V. BEG, M. HAMEEDULLAH

CITATION:  1974 AIR 1936            1974 SCR  (3) 652  1974 SCC  (4) 300  CITATOR INFO :  E&D        1992 SC 214  (8)

ACT: Criminal trial--Case of rioting and murder--Correct approach to  evidence--FIR if should be given by one having  personal knowledge of the incident.

HEADNOTE: The  appellants,  along  with  others,  were  charged   with offences  arising  out of the murder of  two  persons.   The trial   court  assessed  the  evidence  on   the   following principles, namely : (a) in rioting cases discrepancies  are bound to occur in the evidence but the duty of the court  is to have regard to the broad probabilities of the case;(b) in a  factious village independent witnesses are  unwilling  to come  forward and therefore the testimony of  eye  witnesses who  may be interested in the deceased cannot  be  discarded merely  for that reason, provided of course the presence  of the  witnesses  is  proved; and (c)  the  First  Information Report does not constitute substantive evidence in the  case and  the mere circumstance that there are certain  omissions in it will not justify the case being disbelieved; and  gave weighty  reasons for holding that the ’guilt of the  accused was not proved beyond reasonable doubt.  In appeal, the High Court,  while  acquitting others, convicted  the  appellants under s.  302 read with s. 149 I.P.C. Allowing the appeal to this Court, HELD : The High Court ought not to have interfered with  the order  of acquittal ven if there Were two possible views  of the evidence. [654D-E] (a) The High Court wrongly refused to attach any  importance to  the circumstance that the names of the  appellants  were not  mentioned  in the very first report to the  police  and that a totally different group of persons were mentioned  as the assailants.  The High Court held that that report  could not be treated as the First Information Report under s.  154 Cr.   P.C., because, the person who gave the Report  had  no personal  knowledge  of the incident.. But s. 154  does  not require  that the Report must be given by a person  who  has personal knowledge of the incident reported.  It only speaks of an information relating to the commission of a cognizable offence  given to an officer in-charge of a police  station.

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[654H-655C] (b) Another report, given by the Kotwal of the village,  was treated  by the High, Courtas the First lnformation  Report. But  this  report.wholly  destroys  the  prosecution   case, because,  while  the case of the prosecution  was  that  the incident happened on the afternoon of the previous day,  the Kotwal  stated  in his report that the  incident  had  taken place during the early hours of the day on which he gave the report. [655E-G] (c) In that Report also the names of the assailants were not mentioned.   The  inference arising from the fact  that  the name of an accused is not mentioned in the First Information Report  must  vary  from case to case; but  the  High  Court wholly ignored the fact that even the Kotwal of the  village had  not come to know the names of the assailants though  20 hours  had  elapsed  after  the  incident  had  taken  place according to the prosecution. [655G-H] (d)  The High Court refused to attach any importance to  the discrepancies between the medical evidence and the  evidence of  the eye witnesses that the deceased were  attacked  with spears  and axes, on the ground that the witnesses  had  not stated that ’the miscreants dealt axe blows from the  sharp- side  or  used the spears as a piercing weapon’.   The  High Court  explained the absence of incised or punctured  wounds by observing, without any basis, that the accused might have used the blunt side. [656C-E] (e)  It  is generally not easy to find  witnesses  on  whose testimony  implicit  reliance can be placed.  It  is  always advisable to test the evidence of witnesses on the anvil 653 of  ’objective  circumstances  of the case.   But  the  High Court, in the present case, accepted the evidence of the two alleged  eye-witnesses  as  implicitly  reliable,without  so testing  their  evidence.   They claimed to  have  seen  the incident in the afternoon, but if the incident took place at night,  the  whole superstructure of the  prosecution  must’ fall. (656A,F-G)

JUDGMENT: CRIMINAL  APPELLATE  JURISDICTION  :  Criminal  Appeal,  No. 142 of 1970. Appeal  by Special Leave from the Judgment and  Order  dated the  27th  March, 1970 of the Madhya Pradesh High  Court  at Jabalpur in Criminal Appeal No. 451 of 1967. D. Mookherjea, S,K.  Bagga, S. Bagga and Yash Bagga, for the appellants. Ram  Pan  wani,  H. S. Parihar and I.  N.  Shroff   for  the Respondent. The Judgment of the Court was delivered by CHANDRACHUD,  J.  Eighteen  persons were put  up  for  trial before  the First Additional Sessions Judge, Durg  (M.   P.) for offences arising out of the murder of two persons Jagdeo and  Padum.   The learned Judge acquitted them  of  all  the charges  but  that order was partly set aside  by  the  High Court  of  Madhya Pradesh which confirmed the  acquittal  of eight persons and convicted the remaining ten under  section 302 read with section 149 of the Penal Code.  This appeal by special  leave is directed against the judgment of the  High Court  under which a sentence of life imprisonment has  been imposed on the appellants. The case of the prosecution is that on the’ afternoon of May 9, 1966 a group of about 18 persons including the appellants dragged  Jagdeo  and Padum. from their houses  and  attacked

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them with lathis, spears and axes.  In 1965 Jagdeo and Padum were  prosecuted  along  with 2 others  for  committing  the murder of one Daulatram, the Sarpanch of the village.   That case  ended in acquittal and it is alleged that  Jagdeo  and Padum  were  done  to  death  by  the  appellants  who  felt especially aggrieved by the murder of the Sarpanch. Since  the High Court has set aside the order  of  acquittal passed by the Sessions Court it is of primary importance  to appreciate and understand the approach of the Sessions Court to  the  evidence in the case and its  conclusions  thereon. These. briefly, are the structural hallmarks of the Sessions Court’s  judgment:  (1)In rioting  cases  discrepancies  are bound to occur in the. evidence but the duty of the court is to  have regard to the broad probabilities of the case;  (2) In a factious village independent witnesses are unwilling to come  forward and therefore the testimony  of  eye-witnesses who  are  interested  in the deceased  cannot  be  discarded merely for the reason that they are so interested,  provided ofcourse  the presence of the witnesses is proved;  (3)  The First  Information  Report does not  constitute  substantive evidence  in the case and the mere circumstance  that  there are certain omissions in it will not justify the case  being disbelieved. 654 Applying these broad principles the Sessions Court  rejected the evidence of the eye-witnesses and acquitted the accused. In   doing   this  the  court  was   influenced   by   these circumstances:  (1)  There weft  material  discrepancies  as regards the place where Jagdeo was as aulted The police  had taken  scratchings from the walls of Jagdeo’s house but  did not  send  them to the Chemical  Analyser  for  ascertaining whether they bore stains of blood; (2) The widows of  Jadgeo and  Padum  had stated that the two men were  attacked  with spears and axes but according to the medical evidence  there were  neither  incised  nor punctured  wounds  on  the  dead bodies; (3) As many as three different Reports Were given to the  police station on the morning of the day following  the day of the incident but the names of the appellants were not mentioned  in any one of them; (4) In one of  those  Reports the  incident was stated to have happened at  night  whereas the case of the prosecution is that the incident happened in broad  daylight-at  about  I  p. m. and  (5)  There  was  no reliable  evidence showing that the accused  had  sufficient motive to commit the murder. These,  in our opinion, are weighty reasons on the  strength of which the learned Sessions Judge was reasonably ;entitled to  come  to  the conclusion that  the  charge  against  the accused was not proved beyond a reasonable doubt.  At worst, it  may  perhaps be possible to say that two  views  of  the evidence  were reasonably possible.  It is well  established that  in  such  circumstances the High Court  ought  not  to interfere with the order of acquittal. We  will  demonstrate  in  reference  to  a  few   important circumstances as to why the High Court was not justified  in interfering  with the order of acquittal.  The incident  is, alleged to have taken place at about I  p.m on May,  9, 1966 but  it was not until the next morning that any one  in  the village  thought it necessary to report the incident to  the police.   The first person who at all contacted  the  police after the incident was Tibhu, the son of one of the murdered persons, Jagdeo.  Tibhu went to the Rancharia Police Station at  8-15 a. m. on’ the 10th and told the police that on  the previous afternoon Jagdeo and Padum were murdered.  In  that report  Tibhu mentioned the names of as many as  10  persons who  according  to him had participated in the  assault  but

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none  of  the  18 accused found a place in  that  long  list except perhaps "Bentha Satnami" the reference to whom may by a process of some stretching be construed as a reference  to one of the accused.  Tibhu made an interesting disclosure in his  evidence  that he had gone to the  police  for  lodging information about an altogether different incident and after having lodged that information he was told by a woman called Dharmin  that the eighteen accused had committed the  murder of Jagdeo and Padum. Yet it is sarprising-that not only  did he  not  mention the names of the present  ’accused  but  he mentioned  the  names of an altogether different   group  of persons.   This  is in regard to  the  earliest  information given to the police in point of time. The  Report  given  by Tibhu thus  suffers  from  a  serious infirmity  and  the Sessions Court was justified  in  citing that infirmity as one of tile reas- 655 ons  leading to the acquittal of the appellants.   The  High Court  however  refused  to attach  any  importance  to  the circumstance  that  the  names of the  appellants  were  not mentioned  in  the Report on the ground that though  it  was earlist  in  point of time it could not be  treated  as  the First   Information  Report  udder  section  154,   Criminal Procedure  Code  as Tibhu had no personal knowledge  of  the incident  and the Report was based on hearsay evidence.   In this view the High Court clearly erred for section l54  does not  require that the Report must be given by a  person  who has  personal  knowledge  of  the  incident  reported.   The section speaks of an information relating to the  commission of  a cognizable offence given to an officer in charge of  a police station.  Tibhu had given such information and it was in  consequence of that information that  the  investigation had commenced. At  about 11-45 a. m. one Dharamdas who was examined in  the case as an eye-witness went to the police station and lodged information about a totally different incident stating  that a  boy  whose  name he did not know had beaten  him  with  a lathi.   This  of  course  cannot be  regarded  as  a  first information  report of the offence in question but the  High Court overlooked that if Dharamdas was an eye witness and if he did go to the police station quite a few horrs after  the incident  it  was  strange  that he did  not  refer  to  the incident at all.  Dharamadas wriggled out of an inconvenient situation  by saying that as Tibhu had already reported  the incident to the police he himself did not think it necessary to  do  so.  The evidence of Dharmdas, we may  mention,  has been rejected by the trial court as well as the High Court. Then  comes yet another Report made to the police  and  that was made by one Vishal Das who was the Kotwar of the village in  between the two earlier Reports.  Vishal  Das’s  Report, Ex.  P-47, shows that he gave the information at the  police station  at about 10 a. m. on the 10th.   This  information, according  to  the High Court,must be treated as  the  First information  Report  in the case.  This in our  opinion.  is clearly  erroneous.   But  apart from the  legality  of  the finding  recorded  by  the High Court  Vishat  Das’s  Report almost  wholly destroys the prosecution case.  The  case  of the prosecution is that the incident in question happened on the  afternoon of the 9th whereas Vishal Das stated  in  his Report that the incident had taken place on the night of the 10th,  meaning  thereby  in the early  hours  of  the  10th. Vishal  Das also stated expressly-in his Report that he  did not know as to who had assaulted Jagdeo and Padum.  The High Court  failed to give these circumstances their  due  weight and observed on the contrary that the fact that the names of

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the assailants were not mentioned by Vishal Das was not very material  as the assault was committed by. a large group  of 17 or 18 persons.  The inference arising from the fact  that the  names  of  the accused are not  mentioned  in  a  First Information Report must vary from case to case but the  High Court wholly ignored that even the Kotwar of the village had not come to know the names of the assailants though 20 hours hid  elapsed after the incident had taken place and  further that according to him the incident had taken place at night. It is obvious that if the incident had taken place at  night the 656 whole  ’Superstructure of the prosecution Case’  must  fall. The  eyewitnesses Musammat Dev Kunwar and Musammat  Mahatrin claim  in to hive seen the incident on the supposition  that it happened, on the after-noon of the 9th. The High Court observed in its judgment that the trial court was "mainly influenced by the so-called discrepancies in the three  reports  lodged with the police".  We may  point  out that  the  trial  court  was  influenced  by  a  variety  of considerations  and the discrepancies in the  three  Reports are not by any standard "so-called".  The discrepancies have a  fundamental  importance  for they  tend  to  falsify  the evidence  of  the eye-witnesses and show that  the  incident happened under cover of darkness and was in all  probability not witnessed by anyone. The postmortem report prepared by Dr. N. L. Jain shows  that on  the  body  of  Jagdeo were found  three  bruises  and  a hematoma.   On the body of Padum were found  four  lacerated wounds and two bruises.  According to the eye-witnesse’s the two men were attacked with lathis, spears and axes but  that clearly  stands falsified by the medical evidence.  Not  one of  the  injuries found on the person of Jagdeo.  and  Padum could  be  caused  by a spear or an  axe.   The  High  Court however  refused to attach any importance to this aspect  of the matter by saying that the witnesses had not stated  that the  miscreants dealt axe blows from the sharp-side or  used the  spear  as  a High Court axes and  spears  may  piercing weapon".,  According  to the have been used from  the  blunt side  and therefore the evidence of the eye-witnesses  could safely  be accepted.  We should have thought  that  normally when  the witness says that an axe or a spear is used  there is  no warrant for supposing that what the witness means  is that the blunt side of the Weapon was used.  If that be  the implication  it is the duty of the prosecution to  obtain  a clarification  from the witness as to whether a  sharp-edged or a piercing .instrument was used as blunt weapon. There  is only one more observation which we would  like  to make about the judgment of the High Court.  ’The High  Court has  observed  in its judgment at more than one  place  that Musammat  Dev Kunwar and Musammat Mahatrin  were  "implicity reliable".   It is generally not easy to find  witnesses  on whose  testimony  implicit reliance can be  placed.   It  is always  advisable to test the evidence of witnesses  on  the anvil of objective circumstances in the case.  Not only  did the  High Court not do that but by persuading itself to  the ’view that the two eye-witnesses were implicitly reliable it denied to itself the benefit of a judicial consideration  of the infirmities to which we have briefly referred. We  therefore  allow this appeal, set aside  the  order  of’ conviction and sentence passed by the High Court and  acquit the appellants.  They shall be released forthwith. V. P. S.                       Appeal Allowed. 657

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