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PETITIONER: VINOD CHATURVEDI ETC. ETC.

       Vs.

RESPONDENT: STATE OF MADHYA PRADESH

DATE OF JUDGMENT05/03/1984

BENCH: MISRA RANGNATH BENCH: MISRA RANGNATH FAZALALI, SYED MURTAZA

CITATION:  1984 AIR  911            1984 SCR  (3)  93  1984 SCC  (2) 350        1984 SCALE  (1)437

ACT:      Appeal against  acquittal  under  section  386  of  the Criminal Procedure  Code, 1973-Conviction by reversal of the verdict of  acquittal relying  on the  evidence of  the same witnesses, who  are close  relatives of the deceased and who in the  earlier trial  categorically implicated  some  other five persons-Appreciation of evidence-Whether the High Court was correct  in relying  on the  said eye witnesses-Evidence Act, section 3-Admissibility of Ex. P. 9, the two letters as corroborative evidence-Penal  Code, sections  148, 300,  362 and 367-Conviction  Under Applicability  of section 148 when the state  counsel conceded  that the charge u/s 148 did not relate to  charge of  abduction, but  to murder taking place later,

HEADNOTE:      On the  basis of  the investigation  made  on  a  First Information Report that one Brindaban the deceased son of PW 1 was  kidnapped in a jeep from village Budha to the village Rampura where he was done to death, five persons were put on trial in  Sessions Trial  No. 107  of 1973.  but  they  were acquitted by  Judgment dated 29.1.1974. The trial court held that the  investigation was  defective and  the real accused had not  been brought on trial. After a lapse of three years in 1977 a fresh investigation was undertaken and it resulted in the prosecution of the present appellants in the Court of Sessions as killers of Brindaban. Prosecution examined seven eye-witnesses. The  Trial Court  assessed the  evidence in a fair way  and was  not prepared  to rely on it and therefore directed acquittal  of the  appellants. In  the State appeal against acquittal,  the High  Court heavily relying upon two documents-The first  being Ex.P.  1 a  letter sent  by PW  1 Sunderlal to  the Superintendent  of Police on 29.4.1973 and the second  being Ex.  P 9  a  confidential  letter  of  the Superintendent of  police to the Deputy Inspector General of the Department-found  support for  the prosecution  case  as corroborative  evidence   with  the   ocular  evidence,  and reversed the  acquittal, by  convicting the appellants under section 148 and 367 IPC. Hence the appeals by special leave.      Allowing the appeals, the Court ^      HELD: 1.  When in  the first  trial on  the  charge  of

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murder and  abduction the  prosecution had  alleged that the deceased  had  been  murdered  by  a  set  of  five  persons different from the present appellants and let in evidence of three eye-witnesses  being PWs.  1, 3  and 24  of the Second Trial and  who are pamittedly close relations of deceased to the effect that those five accused 94 persons  and   no  others   including  the  appellants  were responsible for the death of the deceased, acceptance of the evidence of  the very same three eye witnesses in the second trial conducted after a lapse of three years implicating the present appellants as murderers will be highly improper. The fact that  these  alleged  eye-witnesses  were  prepared  to implicate the five persons who were acquitted on the earlier occasion  and  the  present  appellants  on  the  subsequent occasions in  a serious  charge like murder is indicative of the fact  that no  credence can  be given to the evidence of these witnesses  and they were willing to lend their oath to any story  that the  prosecution advanced.  Therefore, in an appeal against acquittal the High Court in whose hands there has been a reversal of the acquittal ought not to have found the remaining  evidence to  be good  basis for conviction of the appellants.[96H; 97A-D]      2. The  High Court  fell into  error in  relying on the letter of  PW 1  Sunderlal to  the Superintendent  of Police dated 29.4.1973  which is  subsequent to the commencement of the investigation  of the  basis on  the  First  Information Report. Such a letter written by PW 1 who stood in the place of  the  prosecutor  would  not  at  all  be  admissible  in evidence. [97E-F]      Kali Ram  v. State  of Himachal  Pradesh. [1974]  1 SCR 722; followed.      3. To  rely on  the contents  of the  letter Ex.  P.  9 written by  the Superintendent  of police  to  his  superior officer, without  examining the  writer of  the  letter  and without affording  an opportunity  to the  defence to cross- examine the  writer, is  totally misconceived.  The document was not  available to be relied upon for any purpose and the High Court  in the instant case was wrong in seeking support from it  by way of corroboration of the oral evidence. [97G- H]      4. In  view of  the express  words in the definition of "abduction" in  Section 362  of the  I.P.C., the  offence of abduction against  the accused  has not  been fully  proved, since the name of Vinod the leader of the party has not been mentioned at all during the investigation and even according to the  majority of  witnesses, on  the  persuation  of  the accused (appellants)  he went  inside  his  house  and  came properly dressed  and to  accompany  the  group  to  village Rampura. [98C-D]      5. The appellants were not liable to be convicted under section  367   of  the  Penal  Code  because  from  the  non acceptance by  the High  Court of the story of murder of the deceased by  the appellants and non recording a finding that the grievous  hurt leading  to death  was caused by them, it will be  clear that  the act of picking of the deceased from his village  was unconnected with what happened later. [98F- G]      6.  The  charge  under  section  148  I.P.C.  has  been conceded by  the counsel  for the  State to  relate to  what followed at Rampura and is not connected with the accusation of abduction. The common object as stated by the prosecution would not  be available  for sustaining the conviction under section 148 I.P.C. in that background. [98G-H] 95

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JUDGMENT:      CRIMINAL APPELLATE  JURISDICTION: Criminal  Appeal Nos. 192-193 of 1983      Appeals by  Special leave  from the  Judgment and Order dated the  31st January,  1983 of  the Madhya  Pradesh  High Court in Criminal Appeal No. 732 of 1980.      A.N. Mulla  and S.K. Gambhir, for the Appellant in C.A. 192 of 1983.      Rajendar Singh  and A.K.  Mahajan for the Appellants in CA. 193 of 1983.      A.K. Sanghi for the Respondent in both the Appeals.      The Judgment of the Court was delivered by      RANGANATH MISRA,  J. These appeals by special leave are directed against  the judgment  of the  High Court of Madhya Pradesh reversing  the order  of  acquittal  passed  by  the learned trial  Judge. Criminal  Appeal No. 192 of 1983 is by Vinod Chaturvedi  while the  other is  by five  of  the  co- accused.  All   of  them   had  been  charged  for  offences punishable under Sections 148, 364 and 302/149 of the Indian Penal Code  and were  acquitted by  the Additional  Sessions Judge. The  State of  Madhya Pradesh carried an appeal being Criminal Appeal  No. 732 of 1980 to the High Court assailing the acquittal  and the  High Court  allowed the  appeal  and while maintaining the acquittal under Section 302/149 of the Indian Penal  Code, convicted  the appellants  for  offences punishable under  Sections 148 and 367 of the Penal Code and directed each  of them  to be  sentenced  3  years  rigorous imprisonment  for  each  of  the  offences  with  a  further direction that the two sentences would run concurrently.      According to  the  prosecution  on  27th  April,  1973, around  4  p.m.  the  appellants  kidnapped  Brindaban,  the deceased son of P.W. 1, from village Budha and took him in a jeep to Rampura about one kilometer away on the pretext that a pending  dispute between  Brindaban and  some villagers of Rampura would  be settled  amicably. It  was further alleged that later  in the  evening Brindaban  was done  to death by being given  several  blows  by  blunt  and  deadly  weapons pursuant to  the common  object of the appellants of killing him. The  dead body  was brought  to village  Budha  on  the following day. Investigation as taken up on the 96 basis of  the first  information  report  and  as  a  result thereof five  persons were put on trial in session trial No. 107 of  1973 but  they were  acquitted by  the learned trial Judge by  judgment dated  29.1.74. The  trial court  came to hold that  the investigation  was  defective  and  the  real accused persons  had not  been  brought  to  trial.  Nothing appears to  have been  done in  the matter until 1977 when a fresh  investigation  was  undertaken  and  it  resulted  in prosecution of  the appellants  in the  court of  session as killers of Brindaban.      Prosecution examined  seven eye-witnesses  being P.W. 1 Sunderlal, father  of the  deceased; P.W.  2  Nathu,  a  co- villager and  claimed to  be a  servant of  P.W,  1  by  the defence; P.W.  3 Kalua,  a nephew  of the  deceased; P.W, 23 Jhallu, a brother of the deceased, P.W 24, Nanhaibai wife of the deceased,  and P.Ws.  13 and  14, two outsiders who have been declared  hostile by  the prosecution.  The trial court assessed the  evidence in a fair way and was not prepared to rely upon  it. Accordingly  he disbelieved  the  prosecution case and directed acquittal of the accused persons. The High Court did  not come  to the  conclusion on  the basis of the

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ocular evidence  that the  same was  acceptable and  on  the basis thereof  a conviction  could be  recorded, but heavily relied on  two documents-the  first  being  Exhibit  P-1,  a letter sent  by P.W.  1 Sunderlal  to the  Superintendent of Police dated  29.4.73 and  the second,  being Exhibit  P-9 a confidential letter  of the  Superintendent of Police to the Deputy Inspector  General of  the Department  The High Court found support  for  the  prosecution  case  from  these  two letters and  accepting  the  position  that  their  contents corroborated the oral evidence of the witnesses proceeded to reverse the  acquittal. It,  however,  did  not  accept  the prosecution case  relating to  the charge  of murder.  Thus, while sustaining  the acquittal  in respect of the charge of murder the court convicted the appellants under Sections 148 and 367 of the I.P.C.      The  peculiar  features  of  this  case  are  that  the prosecution had  alleged that Brindaban had been murdered by a set  of five persons different from the present appellants and had  made them face a regular trial. Three most material witnesses being  P.Ws. 1,  3 and 24 of the present trial who are close relations of deceased Brindaban had then testified before the  Court that  those five  accused persons  and  no others including  the appellants  were responsible  for  the death of  Brindaban. After  the acquittal  in  1974  nothing happened in the matter for three years and suddenly 97 on the  same old  allegations in  the hands  of the  police, fresh investigation  was undertaken  and the  present set of accused persons  were arrayed  as  murderers  of  Brindaban. Those three  eye-witnesses who  on the  earlier occasion had deposed that five named assailants were the murderers of the Brindaban changed  their version  and  now  spoke  that  the present appellants  were the  murderers. The fact that these alleged eye-witnesses  were prepared  to implicate  the five persons who  were acquitted  on the earlier occasion and the present appellants  on the  subsequent occasion in a serious charge like  murder  is  indicative  of  the  fact  that  no credence can be given to the evidence of these witnesses and they were  willing to  lend their oath to any story that the prosecution advanced. Once the evidence of P.Ws. 1, 3 and 24 is brushed aside on that ground, the residue by itself would not be  adequate to support the charge. We have grave doubts whether the  High Court  in whose  hands there  has  been  a reversal of  the acquittal  would have  found the  remaining evidence to be good basis for the conviction.      The High  Court fell  into a  clear error in relying on the two  letters marked  as Exhibit  P-1  and  Exhibit  P-9. Exhibit P-1  was a  letter  of  P.W.  1,  Sunderlal  to  the Superintendent of  Police. Admittedly  by 29.4.73  when this letter said  to have been written, investigation had started on the  basis of the first information report and therefore, a letter  written by  P.W. 1  who stood  in the place of the prosecutor would  not at  all be  admissible in evidence. No detailed reasons  are warranted  for this  conclusion as the position is  clearly covered  by a decision of this Court in the case  of Kali  Ram v. State of Himachal Pradesh, Learned counsel for the State did not refute this conclusion.      So far  as the  other document is concerned, as already indicated  by   us,  it   is  a   letter  written   by   the Superintendent of  Police to  this administrative  superior. The writer of the letter has not been examined as a witness. No opportunity  has been  given to  the  defence  to  cross- examine the  writer. To  rely on the contents of that letter in such  circumstances is totally misconceived. The document was not  available to be relied upon for any purpose and the

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High Court  clearly went wrong in seeking support from it by way of corroboration of the oral evidence. 98      There are  several other unsatisfactory features in the prosecution case  which the  trial had  taken  note  of  but strangely enough  those did  not commend  themselves to  the High Court  even for consideration. Vinod had not been named as the  leader of  the party  which came to village Budha to pick  up   Brindaban  in   the   statements   given   during investigation by several witnesses. These witnesses had been confronted as required by law and apart from pleading either innocence or  helplessness, no  other answer was given. Some witnesses had  deposed that  Vinod the main architect of the incident came  armed with a gun while others claimed that he was armed  with a lathi. There is considerable divergence in the evidence  as to  whether Brindaban came into the jeep of his own accord or had been forcibly put into it. Most of the witnesses have stated that on being persuaded by the accused persons and  Vinod, in  particular, he went inside his house and came  properly dressed to accompany the group to village Rampura. In that event, it cannot be said that Brindaban was abducted by  the accused  persons. This is so in view of the definition of  ’abduction’ in  Section 362 of the Code where it has been said:           "Whoever by  force compels,  or by  any  deceitful      means induces, any person to go from any place, is said      to abduct that person".      The High  Court has  convicted the  appellants for  the offence punishable under Section 367 of the Penal Code which could be  possible if  there is  abduction with  a  view  to subjecting the  abducted person  to grievous hurt or slavery etc. The  High Court  did not  accept the story of murder of Brindaban by the appellants nor did it record a finding that the grievous  hurt  leading  to  death  was  caused  by  the appellants. The  resultant position from it should have been that the  act of  picking of  Brindaban from his village was unconnected with  what happened  to Brindaban later. From it should have  followed that the appellants were not liable to be convicted under Section 367 of the Penal Code.      The charge  under Section 148, I.P.C. has been conceded by the  counsel for  the State to relate to what followed at Rampura  and   is  not  connected  with  the  accusation  of abduction. The  common object  as stated  by the prosecution would not  be available  for sustaining the conviction under Section 148, I.P.C. in that background.      There are  many other  aspects with  reference to which the trial  court had  found fault with the prosecution case. While we 99 accept the  submission advanced for the State that we should not reassess  the whole  evidence with  reference  to  minor details, we are satisfied that the prosecution had failed to establish the  charges and  the High  Court without a proper appraisal of  the materials and without meeting the findings reached by the trial court reversed the acquittal.      We  accordingly   allow  the  appeals,  set  aside  the judgment  of  conviction  recorded  by  the  High  Court  by reversing  the  acquittal  of  the  trial  court  and  while restoring the  judgment of  the trial  court, we direct that the appellants  are acquitted  of both  the charges  and the sentences  of  imprisonment  are  set  aside.  Each  of  the appellants is discharged from his bail-bond. S.R.                                         Appeal allowed. 100

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