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PETITIONER: MOHAR RAI & BHARATH RAI

       Vs.

RESPONDENT: THE STATE OF BIHAR

DATE OF JUDGMENT: 22/03/1968

BENCH: HEGDE, K.S. BENCH: HEGDE, K.S. BACHAWAT, R.S.

CITATION:  1968 AIR 1281            1968 SCR  (3) 525  CITATOR INFO :  D          1971 SC2233  (10)  R          1976 SC2263  (11)  RF         1988 SC 863  (7,8,20)  R          1990 SC1459  (9)

ACT: Criminal  Trial-Trial  Court  and  High  Court  refusing  to examine  accused’s  defence  on  ground  their  version  had already  been rejected in another case filed on a  complaint by accused-if permissible. Code  of Criminal Procedure, 1898, Ss. 145, 154, 157 &  168- document  containing statement of accused  in  investigation accused not examined as witness-whether document  Admissible evidence.

HEADNOTE: The  first  appellant  was convicted under.s.  324  IPC  for shooting and injuring PW 1, at the instigation of the second appellant, who was himself convicted of an offence under  s. 324  read with s. 109 IPC.  The existence of enmity  between the  appellants  and most of the prosecution  witnesses  who spoke to the occurrence was satisfactorily established.  The plea of the appellants in their defence was that on the date of  the  incident  when  they were  returning  home  in  the evening,  they were way-laid by PWI and several  others  and were assaulted; thereafter with a view to foist a false case against them, a revolver was forcibly thrust into the  hands of  the first appellant.  In connection with this  incident, the State came to initiate three prosecutions : One case was instituted  on  the  basis  of  a  complaint  by  the  first appellant;  a  second case was commenced against  the  first appellant  under s. 19(f) of the Indian Arms Act  for  being armed  with a revolver; and the third was the present  case. The  case instituted on the first appellant’s  complaint  as well  as the case against him under the Arms Act  were  both dismissed. The trial court as well as the High Court refused to examine the defence of the appellants solely on the ground that  the case pleaded by them had been rejected by the Magistrate  in the prosecution commenced on these basis of the complaint by the  first  appellant.   In  appeal to  this  Court  it  was contended on behalf of the appellants that they did not have

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a  fair trial; the High Court as well as the trial court  on an  erroneous view of the law refused to take their  defence into  consideration;  they ignored  important  circumstances appearing in favour of the appellants; and furthermore, some of  the conclusions reached by them were unsupported by  any evidence   on  record.   It  was  also  contended  that   an inadmissible  document,  namely  a statement  made  by,  the ’second  appellant  in the course of the  investigation  was wrongly  admitted; this admission was hit by a. 162  of  the Code of Criminal Procedure which bad also greatly prejudiced the case of the appellants. HELD  :  The  appeals must be  allowed  and  the  appellants acquitted. (i)  The  trial  court as well as the High  Court  erred  in summarily ejecting the defence of the appellants on the sole ground  that  the version put forward by  them  having  been rejected  by  the  Magistrate  in  the  case  filed  on  the complaint of the first appellant, it could not be considered again.    The   defence  of  the   appellants   was   highly Probabilised  by three important circumstances, namely,  (1) it was put forward immediately after the occurrence, (2)  it satisfactorily  explained the injuries found on the  persons of the appellants while the prosecution evidence failed to 526 explain  those  injuries; and (3) the  prosecution  evidence itself  showed that the first appellant could not have  used the revolver exhibited and therefore his version that weapon was thrust on him was probabilised. [531 H-532 B] In both the prosecutions-in the complaint made by the  first appellant  as  well as in the complaint  made  by  P.W.I-the prosecutor  before the court was the State.  Therefore,  the decision  in the former case could not operate as an  issue- estoppel against the appellants in the present case, because they  were not parties in the former case.  In other  words, the  plea  taken by the appellants in this  case  was  never before  litigated between them and the State,  the  Opposite party in the present case.  All that ran be said is that the case  put  forward  by the State in the  one  case  was  in- consistent  with  that put forward by it in the  other.   In those circumstances it was wrong to hold that the appellants were estopped from putting forward their defence. 1531 B-D] Pritam  Singh v. The State of Punjab, A.I.R. 1956 S.C.  415; Manipur  Administration  v.  Thokchom,  Bira  Singh,  (1964] S.C.R. 123; Sambasivam v.Public Prosecutor, [1950] A.C. 458; and  King v. Wilkes; 77 C.L.R. 511 at pp. 518-519,  referred to. (ii) The trial court and the High Court relied on the second appellant’s  statement in the document admitted in  evidence to  the effect that it was a particular person who  fired  a pistol to contradict the statement of the first appellant in his complaint that a pistol was fired by some other  person. No portionof  this statement could have been  used  for that purpose either s. 157 ors.  145 of the  Evidence  Act. As the second appellant was not examined as a witness in the present  case,  his previous statement could not  have  been used  either  to contradict his evidence or  corroborate  it even  if it were to be held that it was a statement  falling under s.154 of the Code of Criminal Procedure. [532 H-533 B] Nazir   Ali,  v.  State  of  U.P.  A.I.R.  1957  S.C.   366; distinguished.

JUDGMENT: CRIMINAL  APPELLATE JURISDICTION: Criminal Appeals Nos.  159

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and 160 of 1965. Appeals  by special leave from the judgment and order  dated July  28,  1965 of the Patna High Court in  Criminal  Appeal Nos. 533 and 534 of 1963. R.  K.  Garg, D. P. Singh, S. C. Agarwala, S. P.  Singh  and K.M. K. Nair, for the appellants (in both the appeals). B. P. Jha, for the respondent (in both the appeals.) The Judgment of the Court was delivered by Hegde,  J. In these connected appeals by special  leave  the legality  of  the convictions  of  the  appellants-appellant Mohar  Rai  under  s.  324 of  the  Indian  Penal  Code  and appellant  Bharath Rai under s. 324/109 of the Indian  Penal Code-is  challenged.   In  the trial court  the  former  was convicted  under  s. 307 of the Indian Penal  Code  and  the latter under s. 307/109 of the Indian Penal Code.  The  High Court of Patna, in appeal, altered their convictions as  set out above. In order to appreciate the contentions advanced on behalf of the  appellants,  it  is  necessary  to  state  briefly  the prosecution as 527 well  as  the  defence version.  The case made  out  by  the prosecution  is  that because of previous enmity  Mohar  Rai shot  and injured P.W. I Balli Ahir, at the  instigation  of Bharath  Rai,, on the evening of October 8, 1961, in  Natwar Bazar.   The existence of enmity between the appellants  and most   of  the  prosecution  witnesses  who  speak  to   the occurrence,  is  satisfactorily  established.  Many  of  the prosecution witnesses appear to have been proceeded  against under  s.  107  of the Code of  Criminal  Procedure  at  the instance of the appellants.  The plea of the appellants  was that  on  the day of incident when they  were  returning  to their  house in the evening they were way-laid by P.W.1  and several  others; one of those persons fired shots  at  Mohar Rai,  but it missed him; to save himself he (Mohar Rai)  ran away from the scene, subsequently two more shots were fired; meanwhile  he  got  into the house  of  Lal  Bahadur  Mistri (P.W.9), but his assailants pursued him, forced their  entry into the house of P.W.9 and there assaulted him;  thereafter with  a  view  to foist a false case  against  him  forcibly thrust  into his hands the revolver (Ex-II) and then  handed him over with Ex.III to Janardan Singh (P.W. 15), the police constable.   ThE  plea of Bharath Rai was  that  during  the incident  mentioned by Mohar Rai, he was caught hold of  and assaulted  by some of the prosecution witnesses.   The  High Court  and  the trial court have rejected the  plea  of  the appellants and relying on the prosecution evidence convicted the  appellants  as mentioned earlier.  This Court  being  a Court of special jurisdiction does not reassess the evidence in  a case except under exceptional circumstances.   It  was urged  on behalf of the appellants that they did not have  a fair trial, the High Court as well as the trial court on  an erroneous view of the law refused to take into consideration their   defence,   they  ignored   important   circumstances appearing   in  their  favour  and  further  some   of   the conclusions reached by them are unsupported by any  evidence on  record.   We have to see how far  these-submissions  are well-founded. Out of the incident mentioned above, the State came to  ini- tiate as many as three prosecutions.  G. R. Case  1370/TR-20 of  61/63  in the Court Of the  Munsif-Magistrate  I  Class, Sasaram was instituted on the basis of the complaint  lodged by  Mohar Rai.  G.R. 506 of 1962 on the file of the  Munsif- Magistrate I Class, Sasaram was a case under s. 19(f) of the Indian  Arms  Act against Mohar Rai for being armed  with  a

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revolver at the time of the incident mentioned earlier.  The third  case is the one with which we are concerned in  these appeals.  The case instituted on the basis of the  complaint made  by Mohar Rai was acquitted on February 1,  1963.   The Arms-Act  case  ended  in acquittal on May  13,  1964.   The appeal against that order was dismissed by the High Court of Patna on September 5, 1966.  A copy of the judgment in  that appeal was produced at the hearing of these 528 appeals and received as additional evidence with our permis- sion. The trial court as well as the High Court refused to examine the defence of the appellants solely on the ground that  the case  pleaded  by  them had been  rejected  by  the  learned Munsif-Magistrate  I  Class,  Sasaram  in  the   prosecution commenced at the instance of Mohar Rai. The  prosecution case was that immediately after the  occur- rence,  Mohar Rai was chased and caught and at that time  he had in his hands the revolver (Ex.III). Very soon thereafter he was produced before Audeshwar Prasad Singh (P.W.19)  with the   revolver  in  question.   The  further  case  of   the prosecution  was  that P.W. 19 seized that  revolver;  later during investigation he seized the three cartridges said  to have  been  fired  by  Mohar  Rai  as  well  as  a  misfired cartridge;  the  revolver as well as the  seized  cartridges were  sent to the ballistic expert for  examination.   These facts  were  spoken  to by  the  prosecution  witnesses,  in particular  by P.W. Janardhan Singh, the constable  to  whom Mohar  Rai was handed over immediately after the  occurrence and P.W. 19 the investigating officer.  P.W. 19 deposed that the number of the revolver seized is 545465.  He is positive that  the revolver seized from Mohar Rai is Ex. 111,  though in  his  report  to the ballistic expert he  had  given  the number  of the revolver sent for examination as 545466,  but in  that report itself he had added a note to say  that  the last two digits were not clear,.  The prosecution  proceeded on  the basis-there is no ambiguity about it-that  Ex.   III was the weapon that was used in the commission of the offen- ce.  The  ballistic expert who was examined as  D.W.  1  was positive  that the seized empties as well, as  the  misfired cartridge  could  not  have  been  fired  from  EX.III.  The evidence of this witness has been accepted both by the trial court  as well as by the High Court.  From that  it  follows that  the prosecution case that Mohar Rai fired three  shots from Ex.III cannot be accepted as true.  If this part of the prosecution  case  fails  then very little  remains  in  the prosecution  case.  The trial court and the High Court  have brushed  aside this important aspect on a  wholly  untenable basis.   They  opined  that  by  some  mistake  a   revolver different  from that seized from Mohar Rai might  have  been sent  to the ballistic expert.  The conclusion has no  basis on  the  material on record.  It is just  a  speculation  -a process  not open to- courts.  Evidently overwhelmed by  the evidence  of the large number of )Witnesses who  deposed  in favour  of  the prosecution case, forgetting the  fact  that most  of  them belong to the faction opposed to  the  appel- lants.  the  trial  court and the  High  Court  ignored  the probabilities and lost sight of the evidence afforded by the circumstances  appearing  in the case.   Both  those  courts failed  to realise that the fact that Ex.  III was  not  the revolver that was used during the 529 incident went to probablise the plea taken by Mohar Rai.  At this  stage  we  may recall the fact  that  both  the  trial Magistrate   as  well  as  the  High  Court   rejected   the

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prosecution case and acquitted Mohar Rai in the case against him  under  s. 19(f) of the Arms Act.  It is true  that  the decision of the trial court in that case was rendered  after the   Assistant  Sessions  Judge,  Sasaram,  convicted   the appellants in the present case and therefore it may be  that the appellants cannot take the benefit of the rule laid down by this Court in Pritam Singh v. The State of Punjab(1)  and affirmed   in  Manipur  Administration  v.  Thokchom,   Bira Singh(2).  But even without the assistance of that rule,  on the basis of the prosecution evidence itself the prosecution version  stands  discredited.  Once it is  proved  that  the empties  recovered from the scene could not have been  fired from  Ex.III  the prosecution case that those  empties  were fired from Ex.III by Mohar Rai stands falsified. The trial court as well as the High Court wholly ignored the significance of the injuries found on the appellants.  Mohar Rai had sustained as many as 13 injuries and Bharath Rai 14. We  get  it  from the evidence of P.W. 15  that  he  noticed injuries  on  the person of Mohar Rai when he  was  produced before him immediately after the occurrence.  Therefore  the version  of the appellants that they sustained  injuries  at the  time of the occurrence is highly  probabilised.   Under these  circumstances the prosecution had a duty  to  explain those  injuries.   The evidence of Dr. Bishun  Prasad  Sinha (P.W.  18) clearly shows that those injuries could not  have been  self-inflicted and further, according to him,  it  was most  unlikely  that  they would have  been  caused  at  the instance   of  the  appellants  themselves.    Under   these circumstances  we  are unable to agree with the  High  Court that the prosecution had no duty to offer any explanation as regards those injuries.  In our judgment the failure of  the prosecution  to offer any explanation in that  regard  shows that  evidence of the prosecution witnesses relating to  the incident  is  not  true  or at any  rate  not  wholly  true. Further  those  injuries probabilise the plea taken  by  the appellants. Both  the trial court as well as the High Court  refused  to take  into consideration the plea of the appellants  on  the ground  that that plea did not commend itself to  the  trial Magistrate in the case instituted on the complaint of  Mohar Rai.   They  were erroneously of the view that the  plea  in question  was barred by the rule laid down by this Court  in Pritam  Singh’s case(1).  In that case, this Court  accepted as correct the following statement of (1) A.I.R. 1956 S.C. 415. (2) [1964] 7 S.C.R. 123 530 the  law  made by the Judicial Committee  in  Sambasivam  v. Public Prosecutor, Federation of Malaya():               "The   effect  of  a  verdict   of   acquittal               pronounced  by a competent court on  a  lawful               charge  and  after  a  lawful  trial  is   not               completely  stated by saying that  the  person               acquitted  cannot be tried again for the  same               offence.   To that it must be added  that  the               verdict  is  binding  and  conclusive  in  all               subsequent proceedings between the parties  to               the adjudication.  The maxim ’res judicata pro               vetitate  accipitur’ is no less applicable  to               criminal than to civil proceedings.  Here, the               appellant  having been acquitted at the  first               trial  on the charge of having  ammunition  in               his  possession, the prosecution was bound  to               accept the correctness of that verdict and was               precluded from taking any step to challenge it

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             at the second trial." Dixon  J.,  of  the Australian High Court  in  the  King  v. Wilkes(2) explained the legal position in these words :               "Whilst there is not a great deal of authority               upon the subject, it appears to me that  there               is nothing wrong in the view that there is  an               issue-estoppel,  if  it appears by  record  of               itself  or  as explained by  proper  evidence,               that  the same point was determined in  favour               of  a  prisoner in a previous  criminal  trial               which is brought in issue on a second criminal               trial of the same prisoner.  That seems to  be               implied in the language used by Wright, J.  in               R.  v.  Ollis [1960] II Q.B. 758, at  p.  769)               which, in effect I, have adapted in the  fore-               going  statement...... There must be  a  prior               proceeding   determined  against   the   Crown               necessarily  involving  an issue  which  again               arises in a subsequent proceeding by the Crown               against the same prisoner.  The allegation  of               the  Crown in the subsequent  proceeding  must               itself  be inconsistent with the acquittal  of               the prisoner in the previous proceeding.   But               if such a condition of affairs arises I see no               reason  why  the  ordinary  rules  of   issue-               estoppel should not apply.  Such rules are not               to  be  confused with those of  res  judicata,               which in criminal proceedings are expressed in               the  pleas of autrefois acquit  and  autrefois               convict.   They are pleas which are  concerned               with the judicial determination of an  alleged               criminal   liability  and  in  the   case   of               conviction  with  the substitution  of  a  new               liability.   Issue-estoppel is concerned  with               the judicial establishment of a pro- (1) [1950] A.C. 458. (2) (77)C.L.R.511, at pp.518-519. 531               position of a law or fact between parties.  It               depends   upon  well-known   doctrines   which               control  the relitigation of issues which  are               settled by prior litigation." This  Court endorsed that statement in  Manipur  Administra- tion’s case(’).  But the law laid down in those cases has no application  to the facts of the present case.  In both  the prosecution-in the complaint made by Mohar Rai as well as in tie  complaint made by P.W. the prosecutor before the  court was  the State.  Therefore, the decision in the former  case cannot  operate as an issue-estoppel against the  appellants in  the present case, because they were not parties  in  the former  case.   In  other  words  the  plea  taken  by   the appellants  in this case was never before litigated  between them and the State, the opposite party in the present  case. All  that  can be said is that the case put forward  by  the State in the one case is inconsistent with that put  forward by it in the other.  In those circumstances it was wrong  to hold that the appellants were estopped from putting  forward their  defence.  That apart, it is doubtful-though  for  the purpose of this case it is unnecessary to express any  final opinion on this point-whether the rule in question could  be pressed  against an accused, the reason being that  while  a prosecution cannot succeed unless it proved its case  beyond reasonable  doubt,  the nature of the proof required  of  an accused   in  substantiating  the  plea  taken  by  him   is different-it  is sufficient if he proves that plea taken  by

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him  is  reasonable  and  probable.   In  that  event  he-is entitled  to the benefit of doubt.  This aspect was  noticed by this Court in Manipur Administration’s(1) case, where  it was observed:               "Before  parting, we think it proper  to  make               one  observation.  The question has  sometimes               been  mooted as to whether the same  principle               of  issue-estoppel could be raised against  an               accused, the argument against its  application               being  that  the  prosecution  cannot  succeed               unless  it proved to the satisfaction  of  the               Court  trying  the  accused  by  evidence  led               before  it  that he is-guilty of  the  offence               charged.   We prefer to express no opinion  on               this  question  since it does  not  arise  for               examination." For  the reasons mentioned above, we are satisfied that  the trial  court  as well as the High Court erred  in  summarily rejecting  the defence of the appellants on the sole  ground that the version put forward by them having been rejected by the  court in G.R. case 13761TR 20 of 61/63 in the court  of the  Munsif-Magistrate I Class, Sasaram the same  cannot  be again  considered.   We  think  that  the  defence  of   the appellants is highly probabilised by (1) [1964] 7 S.C.R. 123. 532 three  important circumstances, namely-(i) the same was  put forward   immediately   after  the   occurrence,   (ii)   it satisfactorily  explains the injuries found on the  persons, of  the appellants while the prosecution evidence  fails  to explain those injuries,. and (iii) the prosecution  evidence itself shows that Mohar Rai could not have used Ex.  III and therefore his version that that weapon was thrust on him  is probablised. The  last contention taken by Mr. Garg is that admission  of Ex. 4, an inadmissible document, has greatly prejudiced  the case of the appellants.  According to him, the admission  of that  document  is  hit by S. 162 of the  Code  of  Criminal Procedure.   In  the  alternative, he  contended  that  that document  could  not have been used to  discredit  the  plea taken by Mohar Rai,, We have earlier noted the two divergent versions  given  by P.W.1 and Mohar Rai in  respect  of  the incident that took place on the evening of October 8,  1961. Quite  naturally,  both these complaints  were  investigated simultaneously.   The statement given by P.W.1 was  recorded as first information in one case and the statement given  by Mohar  Rai  as first information in  the  other.   Appellant Bharath  Rai was questioned during the  investigation.   His statement  is Ex. 4. The trial court came to the  conclusion that  it was not hit by s. 162 as the same was not  recorded in  the course of investigation in the case against  Bharath Rai.   The  High  Court  justified  the  admission  of  that document on the basis of the rule laid down by this Court in Faddi  -V.   State of Madhya  Pradesh(’),  namely-where  the person who lodged the first information report regarding one offence is himself subsequently accused of that offence  and tried  and  the report lodged by him is not  a  confessional first  information  report  but is an admission  by  him  of certain  facts  which have a bearing on the question  to  be determined  by the Court, viz., how and by whom the  offence was committed or whether the statement of the accused in the court  denying the correctness of certain statements of  the prosecution   witnesses  is  correct  or  not,   the   first information  report is admissible to prove against him,  his admissions  which are relevant under S. 21 of  the  Evidence

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Act.   It  was contended on behalf of  the  appellants  that whether that statement is held to have been taken during the investigation of the complaint made by P.W. 1 or during  the investigation of the complaint made by Mohar Rai, in  either case it is hit by S. 162 of the Code of Criminal Procedure’. It was also urged that the rule laid down in Faddi’s  case() has no application to the facts of the present case, In  the instant  case  no  portion  of Ex. 4 was  relied  on  as  an admission  of  Bharath  Rai.  Hence the rule  laid  down  in Faddi’s  case(’) could not have been called into  aid.   The trial  court  and  the High Court relied  on  Bharath  Rai’s statement that it was Naulakh Rai who fired a pistol (1)  A.I.R. 1964 S.C. 1850. 523 to  contradict the statement of Mohar Rai in  his  complaint that  a pistol was fired by Dudhnath.  No portion of  Ex.  4 could have been used for that purpose either under S. 157 or s.  145  of  the  Evidence, Act.  As  Bharath  Rai  was  not examined  as  a  witness in the present  case  his  previous statement could not have been used either to contradict  his evidence or corroborate it even if it is to be held that  it is  a statement coming under s. 154 of the Code of  Criminal Procedure : see Nazir Ali v. State of U.P.(1). The circumstances noticed above, in our opinion, not  merely affect   the  value  and  weight  to  be  attached  to   the prosecution  evidence,  but they persuade us  to  doubt  the prosecution version.  In the circumstances, we are unable to resist  the conclusion that there has been a miscarriage  of justice. We   accordingly   allow  these  appeals  and   acquit   the appellants.. Their bail bonds do stand cancelled. R.K.P.S.                        Appeals allowed. (1) A.I.R. 1957 S.C. 366. 524