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PETITIONER: NARAYAN SINGH & ORS.

       Vs.

RESPONDENT: STATE OF MADHYA PRADESH

DATE OF JUDGMENT19/07/1985

BENCH: FAZALALI, SYED MURTAZA BENCH: FAZALALI, SYED MURTAZA VARADARAJAN, A. (J)

CITATION:  1985 AIR 1678            1985 SCR  Supl. (2) 319  1985 SCC  (4)  26        1985 SCALE  (2)76

ACT:      Evidence     Act-Murder-Extra-judicial      Confession- Admissibility of-Circumstances  when conviction can be based upon it.

HEADNOTE:      There was  a chronic  land dispute between the deceased and  the  appellants.  While  the  deceased  was  proceeding towards  his  village  along  with  PW  11,  the  appellants assaulted him with swords and farsis as a result of which he succumbed to  his injuries. The first information Report was lodged promptly. The Sessions Judge acquitted the accused on the grounds: (i) that PW 11 who was sole eye-witness and had seen the  occurrence, did not immediately disclose the names of the  accused to  the inmate of the family of the deceased when he  went to  the house  and therefore  this was a fatal defect in  the prosecution  case from  which an irresistible inference could  be drawn  that PW  11 could never have seen the occurrence;  and (ii)  that the  evidence of  PW 5 and 9 constituting an  extra-judicial confession  is a  very  weak type of  evidence. On  appeal by  the State,  the High Court reversed the  judgment of  the Sessions  Judge and convicted the accused  under ss. 148 and 302 read with sec. 149 of the IPC.      Dismissing the appeal by the appellants, ^      HELD: 1.  It is  true that  the Supreme  Court has held that where  two views  are reasonably possible, the order of acquittal should  not be  disturbed. However, in the instant case, taking an overall picture of the evidence of PWs. 5, 9 and 11  and the recoveries of the weapons at the instance of the accused, there is no doubt that this is a fit and proper case for  interference by  the High  Court in  reversing the Judgment of  the Sessions  Judge and convicting the accused. [323 G-H]      2. The  learned Sessions  Judge seems  to have  taken a most unrealistic  view of  the evidence of PW 11 by ignoring the fact  that PW 11 being a guard of the deceased must have been shocked 320 and stunned  after seeing the whole incident and, therefore, he may  not have  been in a position to mention the names of

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the accused  immediately but  after composing himself within 10-15 minutes  he mentioned  the names and also gave all the details. PW  11 appears to be truthful witness as he himself admits that  he could not immediately give the names because he  was   perplexed  and   it  is   quite  a  natural  thing particularly in the case of person coming from the strata of society of which PW 11 was a member. [322 E-G]      3. It  is not  open  to  any  court  to  start  with  a presumption that extra judicial confession is a weak type of evidence.  It   would  depend   on   the   nature   of   the circumstances, the time when the confession was made and the credibility of the witnesses who speak to such a confession. [323 B-C]      In the instant case, after perusing the evidence of PWs 5 and  9 who stated on oath that one of the accused admitted before them  that he  had murdered  the deceased,  there  is nothing which  could  lead  to  the  conclusion  that  these independent  witnesses  were  not  telling  the  truth.  The evidence of  these two  witnesses which lends support to the evidence of  PW 11  was sufficient to warrant the conviction of the  accused. Moreover  the accused had made a confession before the  police and  on the  basis of their statements, a blood-stained farsi  and sword  were  recovered  which  were found to  contain human blood. This circumstance, therefore, reinforces  both   the  extra-judicial  confession  and  the evidence of  PW 11.  The Sessions  Judge, however,  did  not attach  much   importance  to   the  recoveries   which  are undoubtedly admissible  under the  Evidence Act and afford a guarantee to the truth of the prosecution case. [323 C-E]

JUDGMENT:      CRIMINAL APPELLATE  JURISDICTION : Criminal Appeal Nos. 308 & 420 of 1976.      From the  Judgment and  Order dated  24.2.1976  of  the Madhya Pradesh  High Court  in Criminal  Appeal No.  300  of 1972.      S.K. Gambhir for the Appellants.      Ravinder Bana and A.K. Sanghi for the Respondent.      The Judgment of the Court was delivered by      FAZAL ALI,  J. These  appeals are  directed  against  a judgment of  the Madhya  Pradesh High  Court convicting  the appellants under 321 ss. 148  and 302  read with  s. 149 of the Indian Penal Code and sentencing them to imprisonment for life.      By our Order dated 12th July 1985, we had dismissed the appeals. We now proceed to give reasons for our Order.      The facts  of  the  case  have  been  detailed  in  the Judgments of the Sessions Judge and the High Court and it is not necessary  for us  to repeat the same all over again. It appears that  there  was  a  chronic  land  dispute  between Bhojraj (deceased)  and  the  appellants  so  much  so  that Bhojraj had  to enlist  the services of one Abbas (PW 11) to accompany him  wherever he  went so  as to guard him against assault. This  means  that  the  deceased  expected  serious threat to  his life from the appellants due to the aforesaid enmity. On  October 5, 1971 at about 2.30 p.m. While Bhojraj was proceeding  towards his  village, accompanied  by PW 11, the appellants reached the place of occurrence alongwith 5-6 persons and  assaulted Bhojraj  with swords  and farsis as a result of which Bhojraj succumbed to his injuries. PW 1, who was not  an eye-witness,  on hearing of the incident reached the police  station at  4.30 p.m.  and  lodged  a  FIR.  The

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distance of  the police station from the place of occurrence was about  10 miles.  As the  incident took  place at  about 2.30. p.m. and the report was lodged within two hours, there can be  no doubt  that the  report was  made  promptly  and, therefore,  the  question  of  concocting  the  case  cannot possibly arise.      In support  of the prosecution, the evidence led may be classified into three categories -           (1) the  evidence of PW 11 (Abbas) who was a guard           of the  deceased and,  as usual,  was accompanying           his master,  Bhojraj, and  saw the entire incident           himself,           (2) one  of the  accused seems  to  have  made  an           extra-judicial confession  to  PWs  5  and  9  and           admitted that he assaulted the deceased with sword           and farsi, and           (3) at  the instance of the accused, blood-stained           weapons were recovered which, after being examined           by serologist, were found to contain human blood. The learned Sessions Judge rejected the prosecution case 322 for paucity of evidence and acquitted the accused. The State then filed  an appeal  before the  High Court  which,  after careful examination  of the  evidence, reversed the judgment of the  Sessions Judge  and convicted  the accused under ss. 148 and  302, read with s.149 of the IPC. Hence, this appeal to this Court under s.2 of the Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act, 1970.      The learned  Sessions Judge  was mainly  swayed by  the consideration that  PW 11,  who was the sole eye-witness and had seen  the occurrence,  did not  immediately disclose the names of  the accused  to the  inmates of  the family of the deceased when  he went  to the  house. On this ground alone, the Sessions  Judge thought  that this was a fatal defect in the prosecution  case from  which an  irresistible inference could be  drawn  that  PW  11  could  never  have  seen  the occurrence. We  have gone  through the evidence of PW 11 and we feel  that the  Sessions Judge was not at all correct. It was not  the case  that PW 11 never disclosed the details of the incident  to the  members of  the family of the deceased but when  he went  to the  house he immediately did not name the accused  and the  explanation given by PW 11 was that as he was  completely  perplexed  he  could  not  disclose  the details immediately. The evidence of PW 11 shows that within 15 minutes  he disclosed  the names  of the accused and gave full details  of the  occurrence. The learned Sessions Judge seems to  have taken a most unrealistic view of the evidence of PW  11 by ignoring the fact that he (PW 11) being a guard of the  deceased must  have been  shocked and  stunned after seeing the  whole incident  and, therefore,  he may not have been in  a position  to mention  the names  of  the  accused immediately but after composing himself within 10-15 minutes he mentioned  the names  and also  gave all the details. The presence of  PW 11 at the scene at the time of the attack on the deceased  was not  challenged before us. Nor could it be challenged, for  the suggestion  made to PW 11, which he has denied that  he himself  had attacked  the deceased.  PW  11 appears to  be a  truthful witness as he himself admits that he could  not immediately  given the  names because  he  was perplexed and  it is  quite a  natural thing particularly in the case  of a  person coming  from the strata of society of which PW  11 was  a member.  It is  not uncommon for persons when they see a ghastly and dastardly murder being committed in their  presence that  they almost  lose  their  sense  of balance and  remain dumb-founded  until  they  are  able  to

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compose themselves.  This is  exactly what may have happened to PW 11. 323      Apart from  this there  is the  evidence of PWs 5 and 9 who state  on oath  that one  of the accused admitted before them that he had murdered the deceased. The learned Sessions Judge has  brushed aside  their evidence  by presuming  that their statements  constituting an  extra-judicial confession is a very weak type of evidence. This is a wrong view of the law. It is not open to any court to start with a presumption that extra  judicial confession  is a weak type of evidence. It would depend on the nature of the circumstances, the time when the  confession was  made and  the credibility  of  the witnesses who  speak to  such a  confession. In  the instant case, after  perusing the  evidence of  PWs 5  and 9  we are unable to  find anything  which could lead to the conclusion that these independent witnesses were not telling the truth. The evidence  of these  two witnesses  (PWs 5  and 9)  which lends support  to the  evidence of  PW 11  was sufficient to warrant the  conviction of  the accused.  The Sessions Judge has  committed  a  grave  error  of  law  in  analysing  and appreciating the  evidence of  PWs 5 and 9 and brushing them aside on untenable grounds.      The matter  does not  rest here  alone but  it is clear from the  evidence that  the accused  had made  a confession before the  police and  on the  basis of their statements, a blood-stained farsi  and a  sword were  recovered which were found to  contain human  blood as  mentioned  earlier.  This circumstance, therefore,  reinforces both the extra-judicial confession and  the evidence  of PW  11. The Sessions Judge, however, did  not attach  much importance  to the recoveries which are  undoubtedly admissible under the Evidence Act and afford a guarantee to the truth of the prosecution case.      Thus, taking  an overall picture of the evidence of PWs 5, 9  and 11  and the  recoveries  of  the  weapons  at  the instance of  the accused, we are of the opinion that this is an open  and shut  case against  the accused and the learned Sessions Judge  has committed  error  of  law  and  has  not properly appreciated the evidence in its true perspective.      It was  argued by  the counsel  for the appellants that the Sessions Judge had taken a reasonable view, and the High Court ought  not to  have interfered.  It is  true that this Court has held that where two views are reasonably possible, the order  of acquittal  should not  be disturbed.  In  this case, however,  we are  fully satisfied that the judgment of the  Sessions   Judge  was   absolutely  perverse,   legally erroneous and based on wrong assumptions and, hence, this is a fit  and proper case for interference by the High Court in reversing the  judgment of the Sessions Judge and convicting the accused. 324      For the aforesaid reasons, we uphold the conviction and sentence imposed  by the High Court and dismiss the appeals. In case  the appellants are on bail, they shall surrender to their bail  bonds which are hereby cancelled and they should be taken  into custody  and sent  to jail  to serve  out the remaining portion of the sentence. M.L.A.                                    Appeals dismissed. 325