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PETITIONER: STATE OF MADHYA PRADESH

       Vs.

RESPONDENT: DHIRENDRA KUMAR

DATE OF JUDGMENT:       05/11/1996

BENCH: G.N. RAY, B.L. HANSARIA

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T HANSARIA. J.      This appeal is by the State and is directed against the judgment of  the Madhya  Pradesh High  Court  by  which  the respondent was  acquitted, on  appeal being preferred by him against his  conviction under  section 302 for having caused the death of one Munibai on 20th May, 1982 around 9 a.m. 2.    The  prosecution sought  to establish the guilt of the respondent by  adducing evidence  relating to  the motive of the crime; eye-witness to the occurrence; dying declaration; and recovery  of  the  revolver  from  the  custody  of  the respondent by  which death  had been  caused, which revolver had been  stolen by the respondent, a police constable, from the Police  Malkhana in  the night of 19th -20 th May, 1982. Though the  trial court  accepted all  these facets  of  the prosecution case, the High Court disbelieved all. 3.    We  would examine  the material  on record qua each of the aforesaid materials.                          (i) Motive 4.   What led  to the  killing of  Munibai  had  connection, according to  the prosecution, with the respondent having an ’evil eye ’ on her. It may be stated that the respondent was a tenant  and was  occupying a  part of  the house, in which landlord PW.3-  Angad, was living, whose daughter-in-law was deceased  Munibai.   The  family  came  to  know  about  the respondent having  an ’evil  eye’ from the deceased herself, which  was  reported  by  her  to  her  mother-in-law  PW.2- Kosabai. This  was about  15  days  before  the  occurrence. Kosabai in turn stated about this to her husband (PW.3), who asked the respondent to vacate to premises. 5.   Both PWs.2 and 3 have categorically deposed about these facts. PW.2  had, however, stated that she had spoken to her husband on  the very  day Munibai  told about the respondent having an  ’evil eye’,  which was  about 15  days before the occurrence, whereas  the evidence  of PW.3  is that his wife had stated  to him  about this  aspect 7-8  days before  the occurrence. We  do not  think if  this little discrepancy is enough to  discard the otherwise consistent evidence on this point, especially  when the  statement made  by PW.3 that he had asked  the  respondent  to  vacate  the  house  has  not

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challenged in  cross-examination. We  also do not think that omission of  the PW.3  to tell during investigation that his wife had  asked him  to get  the house  vacated is enough to disbelieve PW.2  that she had asked her husband to do so. 6.   We are,  therefore, of  the view  that the High Court’s finding on  this point  is totally  against  the  weight  of evidence on record.                       (ii) Eye witness 7.   PW.1- Radhabai,  a daughter  of PW.3,     is  the  only witness to  have deposed  about the  firing of  shots by the respondent at  the house  in which  the deceased was living. Her evidence  as to the manner in which Munibai was fired at finds absolute  corroboration from  the finding  recorded by the  autopsy   surgeon  PW.7.   The  High   Court,  however, disbelieved PW.1  on two grounds. First, by referring to her evidence that  when she saw the respondent firing shots, she had asked  him as  to why  he was  assaulting her bhabhi. To this the  answer was "What has happened so far? I shall kill your whole  family". After  saying  this,  the  accused  had pressed the  barrel of  the pistol on her chest. By then the mother of  the witness had arrived, so too a neighbour named Prakash. Uncle  Faddi Ram  also came.  The  High  Court  has opined that  if this  was the position, PW.1’s evidence that the respondent  had left  the premises  without being caught cannot be accepted. Secondly, the High Court was of the view that the evidence of PW.1 about the deceased having made any dying declaration  cannot be  accepted, because the deceased was really not in a position to make any statement. 8.   Shri  Gambhir  has  strenuously  urged  that  the  High Court’s assessment  of the  evidence of  PW.1 is  absolutely reasonable and,  in any case, that view being also possible, we may not find fault with the High Court’s judgment so much so to set aside the acquittal. 9.   We are,  however, of  the  view  that  even  if  it  be accepted that  the  mother,  the  neighbour  and  uncle  had arrived before  the respondent had left the house, but as he was then  armed with a revolver and had made his way through the chhajja  by passing  through the  portico, as  stated by PW.1,  the   failure  of  these  persons  to  apprehend  the respondent cannot  cause any  dent to  the evidence of PW.1. The respondent  having threatened  to kill the whole family, nobody could  have risked  his  life  to  apprehend  such  a desperate character.                   (iii) Dying declaration 10.  Insofar as  dying declaration  is concerned,  was  find that the evidence of PW.7 (Dr. Badkul) is that the deceased, despite the  injuries found on her person, was in a position to speak  for about 10-15 minutes of the assaults on her. As the  mother-in-law   was  in   the  ground   floor  and  had immediately come  hearing cries,  time taken  could not have been more 5-6 minutes. Therefore, the view taken by the High Court regarding the deceased being not in a position to make dying declaration was really perverse. 11.  It was very emphatically contended by Shri Gambhir that as in the first Information Report (FIR) there is no mention about the  dying declaration, we should discard the evidence of PWs.1  and 2 regarding dying declaration, because of what has been  pointed out by this Court in Ram Kumar v. State of Madhya Pradesh,  AIR 1975 SC 1024. We do not, however, agree with Shri  Gambhir, for the reason that what was observed in Ram Kumar’s  case, after   noting  the broad facts, was that material omission  in  the  FIR  would  case  doubt  on  the veracity of  the prosecution  case, despite  the general law being that  statements made  in  the  FIR  can  be  used  to corroborate or  contradict its  maker. This  view  owes  its

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origin to  the thinking  that if there by material departure in the  prosecution case as unfolded in the FIR, which would so if  material facts  not mentioned in the FIR  are deposed to by  prosecution witnesses  in the  court, the  same would cause dent  to the  edifice on which the prosecution case is built, as  the substratum  of the prosecution case then gets altered. It  is apparent that prosecution cannot project two entirely different  versions of  a case.  This  is  entirely different from  thinking that some omission n the FIR  would require disbelieving  of the  witnesses who depose about the fact not  mentioned in the FIR. Evidence of witnesses has to be tested on its own strength or weakness. While doing so, f the fact  deposed be  a material  part of  prosecution case, about which,  however, no  mention was made in the FIR,  the same would  be  borne  in  mind  while  deciding  about  the credibility  of   the  evidence  given  by  the  witness  in question. 12.  We, therefore,  do not agree with Shri Gambhir that Ram Kumar’s case  would require us to disbelieve the evidence of PWs.1 and  2 regarding  dying declaration  of the  deceased, only because  the FIR   has  not mentioned about it. It is a settled law  that   FIRs are  not taken as encyclopaedia and omission of  a fact  therein, even  if material,  cannot  by itself make the witness deposing about the fact unbelievable at that point. 13.  PW.1 was thus not a witness to have been disbelieved on the two aforesaid grounds. Her evidence finds corroboration, as already  mentioned, from  the  findings  of  the  autopsy surgeon. This  apart, her evidence the respondent had killed Munibai by  firing has  also received corroboration from the recovery  of   a  revolver   from  the   possession  of  the respondent,  to   which  aspect   we  shall   advert  later, supplemented by ballistic expert’s report that very revolver had been used is firing at Munibai.                  (iv) Recovery of revolver. 14.  As to the recovery of the revolver, Shri Gambhir’s very strenuous  submission  was  that  we  may  not  accept  this inasmuch as  out of  two witnesses  examined on  this point, PW.6 -  Santoshilal, did  not support the prosecution. It is no doubt  correct that  PW.6 had to be declared hostile, but he is  a witness who has destroyed his own veracity because, though he  stated in  examination-in-chief  that  his  blank signatures were  taken on  some papers by calling him to the police station  when he  was passing  by the road, in cross- examination the  version given  was that  the signatures had been taken when he had come to the police station to do hair cut- he  being a  barber by profession. These two statements definitely  cannot   stand  together.   This  apart,  it  is difficult to believe that PW.6 would have actually given his signatures on  blank papers,  without making  any  complaint about the  same to  anybody. The  hostility of  PW.6    has, therefore, caused no damage to the prosecution case relating to recovery,  about which  there is the confidence inspiring evidence of PW.10. 15.  Shri Gambhir  has made  effort, and strenuous effort at that to  persuade us  to hold that the prosecution case that the respondent  had stolen  the  revolver  from  the  Police Malkhana is  unbelievable. This aspect had, however, come to be accepted  by the  trial court  because of the evidence of PW.11, who  was the  Head Constable and was the in-charge of the Malkhana.  His evidence  is that  as nobody  can perform duty all  the 24  hours, practice has been that in the night keys of Malkhana are entrusted to Constable Muharrir, as was the respondent. He has deposed that on the night intervening 19 and  20 May,  respondent was detailed in the night, which

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aspect  is  mentioned  in  the  Rojnamcha.  Thereafter,  the witness left  to his  house around 10 p.m. and returned back next day  morning at  about 8.30  a.m. The  respondent  then handed over  the keys.  On  this  being  done,  the  witness desired that  the respondent  could go  after  checking  the Malkhana. The respondent said that he would come back within five minutes after taking tea and the checking could be done thereafter. As  the respondent  did not return, Malkhana was opened and  PW.11 found  that one  revolver of .455 bore was missing. This  was immediately  brought to the notice of the Station House Officer. The reporting was by Ex. 11-C and was around 8.40  a.m. In  this  exhibit  the  substance  of  the aforesaid  evidence  finds  place  and  the  number  of  the revolver has also been mentioned, which is 356354. It is the revolver  bearing   this  number   which  was   subsequently recovered from  the respondent  on 20th  May  itself  around 11.30 a.m.  This fast  movement was because, after receiving the information  of missing  of the  revolver,  the  Station House  Officer  went  to  the  place  where  respondent  was residing which, as already noted, was a part of the house it which Munibhai  was residing.  Gong there, the Station House Officer knew about the killing and this led to the search of the respondent,  about whom PW.1 had stated that he had left towards the filed. 16.  Despite the  aforesaid evidence  being on  record, Shri Gambhir has  urged that  the prosecution  case  relating  to stealing was  rightly disbelieved  by the High Court because the rules  did not  permit giving of Malkhana key to anybody else. Though this is correct, but then as deposed by PW.11 a practice to  that effect had grown, which came to be adopted because of  the physical  impossibility of any body to be at the Police  Station throughout  24 hours.  It may be pointed out that  when PW.11 deposed about this practice, he was not challenged in cross-examination. 17.  Yet another  contention made  in this  regard  by  Shri Gambhir what that as a departmental proceeding against PW.11 is pending  regarding this  very aspect, the same shows that even, according  to the  authorities, PW.11  might have been responsible for  stealing the revolver. As the charge framed in the departmental proceeding is not available to us, we do not know  what precisely  has been alleged against PW.11. It may be  that the  allegation is that he allowed the stealing to take  place. As,  however, the  proceeding is  said to be pending, we would observe that whatever we have held in this case relating  to stealing  of revolver would not be used by PW.11 in  the proceeding  to demand his exoneration from the charge as framed against him. 18.  The second reason given by the High Court to disbelieve this part  of prosecution  s that the Rojnamcha had not been properly maintained, as there was no pagination in it. PW.11 gave  valid   explanation  for   this-the  same  being  that prescribed forms  being not  available, the Traffic Register was used  as Rojnamcha.  Judicial notice can be taken of the fact  that   many  a   time  prescribed  registers  are  not available, and so, they are kept in non-prescribed way. Many a time  even a  Case Diary  is not  maintained n  prescribed form. 19.  Shri Gambhir then referred to the omission in Ex.P.11-C about the  respondent’s statement  to PW.11 n the morning of 20th that he would come back after taking tea, as deposed by PW.11 in  court. We  do not think if this omission can throw any doubt  on the  very prompt  report about  missing of the revolver and  about Malkhana  key having  been given  to the respondent on  the night  of 19th  May. In  Ex.P.11  it  was mentioned  that   the  Head  Constable  suspected  that  the

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respondent had  stolen the  revolver. The  recovery of  that revolver from  the person  of the  respondent  on  20th  May itself would  bear the  statement  of  PW.11  regarding  the respondent having  had been  stolen the  revolver. It may be pointed about  that under Illustration (a) to section 114 of Evidence Act,  it is permissible to presume that if a man is in possession  of stolen  goods soon  after the theft, he is the thief. 20.  The  aforesaid   being  the   position  regarding   the materials brought on record by the prosecution to bring home the guilt of the respondent, we are of the firm opinion that the High  Court has  taken a  view which  cannot  be  called reasonable at all. The law, therefore, permits this Court to set aside the acquittal, which we hereby do. 21.  This leaves for consideration the question of sentence. The trial court had awarded the death sentence; but we would refrain from  doing so  for two  reasons: (1) the present is not a  case of  "rarest of  the  rare"  type;  and  (2)  the respondent having  enjoyed acquittal ever since High Court’s judgment dated  19.11.1982, death sentence, even if it would have been merited, would not have been imposed by us. We may refer in this context to the decision of this Court in State of Haryana  vs. Sher  Singh, 1981  (2) SCC 300, to which our attention has  invited by  Shri Gambhir.  In that case t has been stated in para 21 that despite the murder being ghastly and brutal  deserving death  sentence,  as  awarded  by  the Sessions Judge,  the same  was not  being awarded because of the acquittal  enjoyed by  the convict  after  High  Court’s judgment. 21.  The impugned  judgment is,  therefore, set aside and we convict the  respondent under section 302, for which offence we  award   the  sentence  of  imprisonment  for  life.  The respondent is  on bail;  his hail  bonds are  cancelled.  He would be taken in custody to serve out the sentence.