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CASE NO.: Appeal (crl.)  1642 of 2005

PETITIONER: State of Madhya Pradesh                                     

RESPONDENT: Badri Yadav & Anr.                                               

DATE OF JUDGMENT: 31/03/2006

BENCH: H.K. Sema & Dr. AR. Lakshmanan

JUDGMENT: J U D G M E N T

H.K.SEMA,J

               This appeal filed by the State of Madhya Pradesh is  against the judgment and order of the High Court dated  12.5.2000 passed in Criminal Appeal No.699 of 1996, whereby  the High Court recorded acquittal of respondents-accused  herein, by reversing the judgment of the Trial Court convicting  the respondent and others under Section 302/34 IPC and  sentenced them RI for life and a fine of Rs.200/- and in default  to undergo RI for a period of one month.                 Briefly stated the facts are as follows:-                 On 16.9.1989, the respondents herein were loitering  around ’kothi building’ where the courts are situated in order  to find out the deceased Lal Mohd.  They were all sitting in an  auto rickshaw which was hired by them.  Finally, they  succeeded in locating the deceased Lal Mohd. who was sitting  in a tempo.  While the tempo stopped for permitting a lady to  alight from it and proceeded ahead, the accused-respondents  obstructed the said tempo and they pulled out the deceased  Lal Mohd. from the said tempo and assaulted him with swords  and knives causing number of injuries, which resulted in his  death.  The matter was investigated and after a prima facie  case being established the charge was laid before the  Additional Sessions Judge.  The learned Sessions Judge after  threadbare discussion of the evidence of prosecution witnesses  including the two eye witnesses PW-8 Mohd.Amin and PW-9  Zakir Ali who later juxtaposed as DW-1 and DW-2, came to the  conclusion that an offence punishable under Section 302 read  with 34 was found well established against the accused and  convicted as aforesaid.                  Before the Trial Court four accused had faced the  trial namely accused Badri Yadav, Raju, Mahesh Bhat and  Mohan Jayaswal.   Accused Mohan Jayaswal died during the  trial.  Accused Mahesh Bhat was acquitted by the Trial Court  on benefit of doubt.  Accused Raju died during the pendency  of this appeal and, therefore, appeal qua him stands abated.   Now only the respondent-accused Badri Yadav is before us.                  The High Court by the impugned order relied upon  the testimony of DW-1 Mohd. Amin and DW-2 Zakir Ali who  were examined as eye witnesses as PW-8 and PW-9 and  acquitted the respondents by reversing the well merited  judgment of the Trial Court convicting the respondents.                  The facts of this case illustrate a disquieting feature  as to how the High Court has committed a grave miscarriage  of justice in recording the acquittal of the respondents.

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               Few dates would suffice.  PW-8 Mohd.Amin and  P.W.9 Zakir Ali’s statements were recorded under Section 164  Cr.P.C. before the Magistrate on 21.9.1989.  On 18.12.1990  their statements on oath were recorded before the Trial Court  as prosecution witnesses.                 It appears that PW-8 and PW-9 filed an affidavit on  16.8.1994 that the statements made before the Magistrate by  them were under pressure, tutored by police of Madhav Nagar  and due to their pressure the statements were recorded.  It  was further stated that the policemen threatened them that if  they did not make statements as tutored by the police they  would implicate PW-8 and PW-9 in this case and when the  statements were recorded before the Magistrate the policemen  were standing outside and therefore the statements were made  as tutored by the police and due to threat and coercion.  By  this affidavit they have completely resiled from their previous  statements recorded before the court as prosecution  witnesses.  They further stated that they did not see any  marpeet and who had inflicted injuries.  They further denied  that they did not see any incident at all nor any person.   Though the affidavit appeared to be dated 16.8.1994, it was  actually signed by both on 17.8.1994.                  In the affidavit of Zakir Ali PW-9 dated 17.8.1994 it  is also stated that his statement was recorded on 18.12.1990  before the Sessions Judge.  The affidavit further stated that  the statement recorded on 18.12.1990 was made due to threat  and under the pressure of police.  It is further stated that the  applicant was going for Haj and according to the religious  rites, he wanted to bid good-bye to all the sins he had  committed.  It is further stated that the statements he made  before the court of Magistrate and before the Sessions Judge  were false.  It is unfortunate that the said application was  allowed by the Sessions Judge on 9.2.1995 and they were  allowed to be examined as defence witnesses juxtaposed as  DW-1 and DW-2.  The Sessions Judge, however, on examining  the credibility of PW-8 and PW-9 juxtaposed as DW-1 and DW- 2 rejected it as not trustworthy, in our view rightly.                    The Sessions Judge came to a finding that the  statements of DW-1 and DW-2 were recorded under Section  164 Cr.P.C. before the Magistrate on 21.9.1989 as PW-8 and  PW-9.  Thereafter, their statements were recorded before the  Sessions Judge on 18.12.1990 and after four years on  17.7.1995 they gave a different version resiling from their  previous statements on grounds of threat, coercion and being  tutored by the police.  It will be noticed that in between  18.12.1990 the day on which their statements were recorded  before the Sessions Judge as PWs and their statements as  defence witnesses which were recorded on 17.7.1995 as DWs,  no complaint whatsoever was made by DW-1 and DW-2 to any  Court or to any authority that they gave statements on  18.12.1990 due to coercion, threat or being tutored by the  police.  This itself could have been a sufficient circumstance to  disbelieve the subsequent statements as DW-1 and DW-2 as  held by the Sessions Judge, in our view, rightly.                        The High Court, while reversing the order of  conviction recorded by the Sessions Judge gave the following  reasons in support of the reversal in paragraph 16 as under: - "This case has focused a very strange  phenomenon before us.  The witnesses were  examined initially as prosecution witnesses.   The trial was not completed within short span  of time.  It lingered on for about five years.   After lapse of five years these witnesses stated  in favour of the accused and against the  prosecution.  The question arises whether the

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prosecutor in charge of the prosecution was  vigilant enough to see that all prosecution  witnesses are examined within reasonable time  span, so as to see that the case is completed  within that time span.  The question arises  whether the court was vigilant enough to see  that the trial is conducted day by day system.   The both answers would be negative.   Unfortunately, the Sessions Trial was not  conducted day by day.  The prosecution  witnesses were not produced by making them  to remain present for day by day trial.  The  adjournments were sought by defence and  they were also granted liberally.  All this  resulted in strange situation where those two  witnesses stated something as prosecution  witnesses and after lapse of sufficient time,  they appeared before the court and gave the  evidence as defence as witnesses and stated  against the prosecution."                    In our view, the reasoning recorded by the High  Court, itself would have been sufficient to reject the testimony  of DW-1 and DW-2.  However, having said so the High Court  reversed the order of conviction and recorded the order of  acquittal, which is perverse.                   In this case the application under Section 311  Cr.P.C. for recalling PW-8 and PW-9 and re-examining them  was rejected by the Court on 2.9.1994.  Therefore, the  question with regard to recalling PW-8 and PW-9 and re- examining them stood closed.  There is no provision in the  Code of Criminal Procedure that by filing affidavit the  witnesses examined as PWs (PW-8 and PW-9 in this case)  could be juxtaposed as DW-1 and DW2- and be examined as  defence witnesses on behalf of the accused.                     Mr.A.T.M. Rangaramanujam, learned senior counsel  for the respondent, however, contended that the accused is  entitled to enter upon defence and adduce evidence in support  of his case as provided under Section 233 Cr.P.C. particularly  Sub-Section (3) of Section 233.  Sub-Section (3) of Section 233  reads: - "(3) If the accused applies for the issue of any  process for compelling the attendance of any  witness or the production of any document or  thing, the Judge shall issue such process  unless he considers, for reasons to be  recorded, that such application should be  refused on the ground that it is made for the  purpose of vexation or delay or for defeating  the ends of justice."                                                             (emphasis supplied)

               Section 233 itself deals with entering upon defence  by the accused. The application for recalling and re-examining   persons already examined, as provided under Section 311  Cr.P.C., was already rejected.  The power to summon any  person as a witness or recall and re-examine any person  already examined is the discretionary power of the Court in  case such evidence appears to it to be essential for a just  decision of the case.  Under Section 233 Cr.P.C. the accused  can enter upon defence and he can apply for the issue of any  process for compelling the attendance of any witness in his  defence.  The provisions of sub-section (3) of Section 233  cannot be understood as compelling the attendance of any

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prosecution witness examined, cross-examined and  discharged to  be  juxtaposed as DWs.  In the present case  PW-8 and PW-9 were juxtaposed as DW-1 and DW-2.  This  situation is not one what was contemplated by sub-section 3  of Section 233 Cr.P.C.                 When such frivolous and vexatious petitions are  filed, a Judge is not powerless.  He should have used his  discretionary power and should have refused relief on the  ground that it is made for the purpose of vexation or delay or  for defeating the ends of justice.  In the present case, the  witnesses were examined by the prosecution as eyewitnesses  on 18.12.1990, cross-examined and discharged.  Thereafter,  an application under Section 311 Cr.P.C. was rejected.  They  were recalled purportedly in exercise of power under sub- section (3) of Section 233 Cr.P.C. and examined as DW-1 and  DW-2 on behalf of the accused on 17.7.1995.  This was clearly  for the purpose of defeating the ends of justice, which is not  permissible under the law.                  In the case of Yakub Ismail Bhai Patel   vs.  State  of Gujarat, (2004) 12 SCC 229 in which one of us Dr.AR.  Lakshmanan,J. was the author of the judgment, in somewhat  similar case to the facts of the present case it was held that  once a witness is examined as a prosecution witness, he  cannot be allowed to perjure himself by resiling from the  testimony given in court on oath by filing affidavit stating that  whatever he had deposed before court as PW was not true and  was done so at the instance of the police.  In that case the  evidence of PW-1 was relied upon by the Trial Court and also  by the High Court. He was examined by the prosecution as an  eyewitness.  He also identified the appellants and the co- accused in the Court.  After a long lapse of time he filed an  affidavit stating that whatever he had stated before the Court  was not true and had done so at the instance of the police.  In  those facts and circumstances this Court in paragraphs 38  and 39 at SCC pp.240-241 held as under: -

"38. Significantly this witness, later on filed an  affidavit, wherein he had sworn to the fact that  whatever he had deposed before Court as PW 1  was not true and it was so done at the  instance of the police".

"39. The averments in the affidavit are rightly  rejected by the High Court and also the  Sessions Court.  Once the witness is examined  as a prosecution witness, he cannot be allowed  to perjure himself by resiling from the  testimony given in Court on oath.  It is  pertinent to note that during the intervening  period between giving of evidence as PW 1 and  filing of affidavit in court later, he was in jail in  a narcotic case and that the accused persons  were also fellow inmates there."        

               In the present case, both PW-8 and PW-9 are  related to the deceased.  PW-8 is the elder brother of the  deceased and PW-9 is the friend of the deceased.  Being the  close relative and friend of the deceased there is no rhyme and  reason to depose falsely against the accused and allowing the  real culprit to escape unpunished. On 21.9.1989, their  statements were recorded under Section 164 Cr.P.C. before  the Magistrate.  On 18.12.1990, their depositions were  recorded before the Sessions Judge.  In both the statements

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they have stated that they were eyewitnesses and witnessed  the occurrence.  Both of them have stated that they saw the  accused assaulting the deceased with knives and swords.   They were subjected to lengthy cross-examination but nothing  could be elicited to discredit the statement-in-chief.  Their  examination as defence witnesses was recorded on 17.7.1995  when they resiled completely from the previous statements as  prosecution witnesses.   It, therefore, clearly appears that the  subsequent statements as defence witnesses were concocted  well an after thought.  They were either won over or were  under threat or intimidation from the accused.  No reasonable  person, properly instructed in law, would have acted upon  such statements.                 Another contention of counsel for the respondent is  being noted only to be rejected.  It is contended that accused  Mahesh who suffered disclosure statement was acquitted by  the Trial Court on benefit of doubt and, therefore, the same  yardstick should have been applied to the case of the  respondent herein.  The Trial Court acquitted the accused  Mahesh by giving him the benefit of doubt because his name  does not figure in the F.I.R.  One Gopal Yadav was mentioned  in the F.I.R. as an accused.  Whether the Gopal Yadav  mentioned in the F.I.R. was the same Mahesh was not  explained by the prosecution and this was the reason for the  acquittal of Mahesh.  The name of the respondent herein was  named in the F.I.R. as one of the assailants and he was also  identified by PW-8 and PW-9.  

               Prima facie PW-8 Mohd. Amin and PW-9 Zakir Ali in  their subsequent affidavits made a false statement which they  believed to be false or did not believe to be true.   Hence, they  are liable for perjury for giving false evidence punishable  under Section 193 IPC.  We direct the Vth Additional Sessions  Judge, Ujjain, Madhya Pradesh, to file a complaint under  Section 193 of the Indian Penal Code and initiate proceedings  against Mohd.Amin PW-8 and Zakir Ali PW-9 juxtaposed as  DW-1 and DW-2 and pass necessary orders in accordance  with law.             In the facts and circumstances aforesaid, the High  Court was not justified in reversing the conviction recorded by  the Trial Court.  The order of the High Court dated 12.5.2000  is accordingly set aside and the order of the Trial Court  convicting the respondent under Section 302/34 IPC is  restored.  The appeal is allowed.  The respondent is on bail.  His bail bond and surety stands cancelled.  He is directed to  be taken back into custody forthwith to serve out the  remaining part of the sentence.  Compliance report within one  month.