MADHAV versus STATE OF MADHYA PRADESH

[2021] 8 S.C.R. 451

MADHAV

STATE OF MADHYA PRADESH

(Criminal Appeal No. 852 of 2021)

AUGUST 18, 2021

[INDIRA BANERJEE AND V. RAMASUBRAMANIAN, JJ.]

Penal Code, 1860: s. 302 rw s. 34 – Murder – Prosecutioncase that three accused, A1, A2 and A3 in furtherance of commonintention, attacked, brother of A1 with weapons, resulting in hisdeath – A2 took victim to the hospital and sent information to thepolice that the assault was committed by PW 6 and 7 – Convictionand sentence of A1, A2 and A3 u/s. 302 rw s. 34 by the courtsbelow – Appeal by A2 and A3 before this Court – Held: Right fromthe beginning there was an attempt on the part of the prosecution toshield the culprits named in the first FIR, on account of politicalpressure, as admitted by the IO and corroborated by the main witness– IO carried out the investigation with the intention to turn theinformant and her family members as the accused and allow thereal culprits named in the FIR to escape – Admissions on the part ofthe main witness made the prosecution case completely untrustworthy– Prosecution witness who allegedly witnessed the seizure turnedhostile – Courts below overlooked the important admissions madeby the IO and the main witness – They did not take into account thenormal human conduct – There was failure on the part of theprosecution to establish that the blood stains contained on the knifeand lathis were that of the deceased – Furthermore, it is unbelievablethat the three accused (A-1, 2 and 3) caused the death of the victimdue to his failure to return Rs.250/-, due and payable to thirdperson (PW-7) and that thereafter, they deliberately named PW-7 asthe accused – Thus, order of conviction of A2 and A3 by the courtsbelow, set aside – Since the story of the prosecution has beendisbelieved in entirety, to deny the benefit of the said conclusion toA1 merely on ground of technicality that he is not on appeal wouldbe unjustified – Conviction of A12 also set aside.

Criminal law: Alibi – Plea of – Effect on investigation – Held:At times persons committing crime, themselves lodge the firstinformation, to create an alibi of innocence – However, in suchcases the investigation would normally proceed first against thosenamed as accused in the FIR and, thereafter, the suspicion mayturn against the informant himself.

AConstitution of India: Art. 142 – Power under – Scope of –Benefit of the instant appeal to co-accused who has not come up onappeal – Denial of – Held: Denial of the benefit of the conclusionof the matter in the appeal, to the said co-accused merely on theground of technicality that he is not on appeal would be grossinjustice, when this Court is empowered u/Art. 142 to do completeBjustice – On facts, this Court has not proceeded on the basis ofindividual overt acts on the part of accused in appeal, to concludethat they are entitled to acquittal – Thus, conviction and sentenceof the co-accused also set aside.

Allowing the appeals, the CourtC

HELD: 1.1 It is quite strange and completely unfathomableas to how, where, why and at what point of time, the investigationthat should have started against PWs 6 and 7 took U-turn andproceeded towards the very informant and her family members.Right from the beginning, the defence taken by the accused wasDthat due to political influence, they were made accused and theactual accused were made witnesses. This stands corroboratedby the admission made by PW-14 (IO) that when he took up theinvestigation on 14.05.2008, there were demonstrations held bypolitical parties. What is shocking is the admission made by PW-E14 during cross-examination that he was not aware, at the timewhen he started the investigation in the morning, whether theaccused named in the FIR, namely, PWs 6 and 7 were in policecustody. But he admitted that after he took up investigation, hedid not arrest both of them. The reason why the IO did not evensuspect the role of PWs 6 and 7 in the commission of the crime,Fremains unexplained. This Court is conscious of the fact that attimes persons who commit crime, themselves make/lodge thefirst information, so as to create an alibi of innocence. But evenin such cases the investigation would normally proceed firstagainst those named as accused in the FIR and, thereafter, theGneedle of suspicion may turn against the informant himself. [Para15, 16, 17][460-G-H; 461-A-D]

1.2 It happens at times that the real culprit lodges the firstinformation against known or unknown persons, to misdirect theinvestigation of an offence. But even in such case, it is onlyHduring the course of investigation into the first FIR that the case

may take U-turn. When it does, the informant may also have toface additional charges for the offences punishable under variousprovisions of Chapter XI of IPC. This is exactly the reason why,in this case, the prosecution charged A-2 for the offencespunishable under sections 194 and 211 IPC. But the trial courtacquitted her of the charges under these two provisions. [Para19][462-D-F]

1.3 The story built by the prosecution was that A-1 had aquarrel with his brother (the deceased), sometime before thecommission of the crime, over the non-repayment of sum ofRs.250/- by the deceased to PW 6 and that in the quarrel, A-1 gotinjured and that thereafter all the 3 accused attacked the victimresulting in his death. A-1 had no reason to take up the cause ofPW 6 and go to the extent of committing the murder of his ownbrother. But unfortunately, the Trial Court believed this story onthe basis of the testimony of DW-1, the mother of both A-1 andthe deceased. All that DW-1 stated in her testimony was that A-1questioned the deceased as to why he was not returning the moneydue and payable to PW 6. [Para 25][464-E-H]

1.4 Coming to the testimony of PW-9, projected as the starwitness for the prosecution, the explanation given by the IO forrecording her statement, after 21 days of the occurrence of thecrime, is unbelievable. In any case, if her evidence is to beaccepted, it should be accepted in total. One portion of herevidence is extracted, where she categorically admitted that PW6 and 7 were originally taken into custody and that there wereprotests from the people of the caste to which they belonged andthat those people also put pressure on the police to give cleanchit to PW 6 and 7. These admissions on the part of PW-9, madethe prosecution case completely untrustworthy. [Para 26][464-G; 465-A-B]

1.5 Apart from the fact that the witnesses in whose presencethe seizure of the weapons was allegedly effected, had turnedhostile, there was also one more thing. There is nothing on recordto show that the blood stains said to have been present in thoseweapons, matched with the blood of the deceased. Unfortunately,the High Court proceeded on wrong premise that there wasscientific evidence to point to the guilt of the accused, merely

Abecause as per the FSL Report, the knife and lathis said to havebeen seized by the police, contained stains of human blood. Theprosecution has not established either through the report of FSLor otherwise, that the blood stains contained in the knife and lathiswere that of the deceased. [Para 27][465-B-E]

B1.6 PW-1, who allegedly witnessed the seizure had turnedhostile. Right from the beginning there has been an attempt onthe part of the prosecution to shield the culprits named in thefirst FIR, on account of political pressure, as admitted by PW-14and corroborated by PW-9, whom the prosecution considered tobe star witness. Unfortunately, both the Sessions Court and theCHigh Court completely overlooked these aspects. [Para 33][467-B-D]

1.7 The investigation in this case was carried out by PW-14, not with the intention of unearthing the truth, but for buryingthe same fathom deep, for extraneous considerations and that itDwas designed to turn the informant and her family members asthe accused and allow the real culprits named in the FIR to escape.Both the Sessions Court as well as the High Court completelyoverlooked some of the important admissions made by PWs 9and 14. They have not even taken into account the normal humanEconduct. It is unbelievable that A-1, A-2 and A-3 caused the deathof A-1’s brother due to the failure of the victim to return an amountof Rs.250/- due and payable to PW-7 and that thereafter, theydeliberately named PW 7 as the accused. It is equally unbelievablethat one of the persons who killed the victim, in the presence ofwitnesses, took the body of the victim to the hospital in anFautorickshaw. The normal human behaviour in such circumstanceswill be either to flee the place of occurrence or to go to the policestation to surrender, except in cases where they are intelligentand seasoned criminals. Neither did happen. [Para 35][467-E-H;468-A]G

1.8 It is noted that A-1 has not come up on appeal. Thoughthe counsel for the State submitted that A-1’s case stands on acompletely different footing and that therefore, in the absence ofan independent appeal by him, he cannot be granted any relief,cannot be accepted. This is not case where this Court have

proceeded on the basis of individual overt acts on the part of A-2 and A-3-appellants to conclude that they are entitled to acquittal.This is case where in entirety, the story of the prosecution isdisbelieved. Therefore, to deny the benefit of the said conclusionto A-1 merely on the ground of technicality that he is not onappeal would be to close eyes to gross injustice, especially whenthis Court is empowered under Article 142 to do complete justice.[Para 36][468-A-D]

1.9 The conviction by the Sessions Court and upheld bythe High Court as against all the three accused including A-1 areset aside. [Para 37][468-D]

Kari Choudhary v. Mst. Sita Devi & Ors. (2002) 1 SCC714 : [2001] 5 Suppl. SCR 588; Raghav PrapannaTripathi v.The State of Uttar Pradesh AIR 1963 SC 74: [1963] SCR 239; Kansa Behera v.State of Orissa(1987) 3 SCC 480 : [1987] 2 SCR 1096; Surinder Singhv. State of Punjab (1989) 2 Suppl. SCC 21; Raghunath,Ramkishan & Ors. v. State of Haryana (2003) 1 SCC398 : [2002] 4 Suppl. SCR 130; Sattatiya v. State ofMaharashtra (2008) 3 SCC 210; State of Rajasthan v.Teja Ram and Others (1999) 3 SCC 507; Gura Singhv. State of Rajasthan (2001) 2 SCC 205 : [2000] 5Suppl. SCR 408; Prabhu Dayal v. State of Rajasthan(2018) 8 SCC 127; R. Shaji v. State of Kerala (2013)14 SCC 266 : [2013] 3 SCR 1172; Prabhu Babaji Navlev. State of Bombay AIR 1956 SC 51; John Pandian v.State (2010) 14 SCC 129 : [2010] 15 SCR 1012; SunilClifford Daniel v. State of Punjab (2012) 11 SCC 205 :[2012] 7 SCR 1100; Balwan Singh v. State ofChhattisgarh (2019) 7 SCC 781 : [2019] 11 SCR 1 –referred to.

CRIMINAL APPELLATE JURISDICTION: Criminal AppealNo.852 of 2021.

DFrom the Judgment and Order dated 19.09.2018 of the High Courtof Madhya Pradesh at Jabalpur in CRA No.727 of 2009.

With

Criminal Appeal No.853 of 2021EArdhendumauli Kumar Prasad, Ms. Taruna ArdhendumauliPrasad, Amit Arjariya, Karan Singh Dalal, Ritaj Kacker, DeepkaranDalal, Ashish Madaan, Advs. for the Appellant.

Shreeyash U. Lalit, Pashupati Nath Razdan, Mirza Kayesh Begg,K.P. Jayram, Ms. Maitreyee Jagat Joshi, Advs. for the Respondent.FThe Judgment of the Court was delivered by

V. RAMASUBRAMANIAN, J.

1. Leave granted.

2. Challenging their conviction for the offence punishable underGSection 302 read with Section 34 of the Indian Penal Code, 1860 (“IPC”for short) and the sentence of life imprisonment and fine of Rs.2500/- imposed upon them by the I[st] Additional Sessions Judge, Sagar, M.P.,and confirmed by the Division Bench of the High Court of MadhyaPradesh at Jabalpur, Accused Nos. 2 and 3 have come up with thesecriminal appeals.H

3. We have heard Mr. Ardhendumauli Kumar Prasad and Mr.Amit Arjariya, learned counsel appearing for the appellants and ShriS.U. Lalit, learned counsel appearing for the State.

4. Smt. Sahodra Bai (hereinafter referred to as “A-2”), who isthe appellant in one of these appeals, is the sister of Shri Madhav(hereinafter referred to as “A-3”) who is the appellant in the otherappeal. Shri Raju Yadav who was Accused No.1 is the husband ofSahodra Bai.

5. The case of the prosecution was that on the night of 13.05.2008,at about 22.30 hrs., all the three accused, in furtherance of the commonintention of all, attacked one Pappu @ Nand Kishore (brother of A-1)with knife and lathis resulting in his death and that, thereafter, with theintention of screening the offenders from legal punishment, A-2 took thevictim to the Government Hospital and sent false information to thePolice as though the murderous assault on the victim was committed bytwo other persons by name [REDACTED] and Kailash. While all the three accusedwere charged for offences punishable under Section 302 read withSection 34 IPC, A-2 was charged additionally for the offences punishableunder Sections 211 and 194 IPC.

6. The prosecution mainly relied upon (i) the purported eye-witnessaccount of PWs 4, 5, 6, 7 and 9, (ii) the medical evidence regarding thecause of death; and (iii) the recovery of the weapons used for thecommission of the offence namely, knife and lathis, from the houses ofthe accused and the report of the Forensic Sciences Laboratory (“FSL”for short).

7. Out of the witnesses on whose ocular testimony, heavy reliancewas placed by the prosecution, PWs 6 and 7 were the persons whom A-2 had named as the accused, in the first information sent from the hospitalon the night of 13.05.2008. PWs 4 and 5 were related to PWs 6 and 7.Actually the prosecution treated PWs 4 and 5 as hostile, after they statedduring chief examination that they did not see A-3 at the spot, whichwas contrary to their statement to the Police. The Sessions Court believedtheir testimony partly in so far as it related to the presence of A-1 and A-2 at the spot but disbelieved their evidence, in so far as it related to thealleged assault on the victim. But the High Court proceeded on the footing,without any rhyme or reason, as though PWs 4 and 5 were independentwitnesses who corroborated the testimony of PW-9. The High Court

Aeven overlooked the fact that the Trial Court declared them as hostile atthe request of the prosecution.

8. PW-6 was person by name Kailash Yadav and PW-7 was aperson by name Ruia Yadav. As stated in the previous paragraph, PWs6 and 7 were the ones who were named as accused, in the FirstBInformation Report FIR No.331 of 2008 registered on 13.05.2008, onthe basis of the intimation sent by A-2 from the hospital. The SessionsCourt disbelieved the evidence of PW-6 in entirety, but accepted oneportion of the statement of PW-7, on the basis of the so calledcorroboration by one Smt. Radha Rani, mother of the deceased, examinedon the side of the defence as DW-1. But that portion of the evidence ofCPW-7 taken by the Sessions Court to be probable, merely related to anargument that the victim Pappu had with his brother Raju (A-1) nearlytwo hours before the time of occurrence of the crime. Interestingly theargument between the deceased and A-1 was purportedly in relation toan amount of Rs.250/- borrowed by the deceased from PW-7, but notDrepaid by him.

9. The Sessions Court considered Sapna Yadav, examined as PW-9, who was aged 16 years at the time of occurrence, as the star witness.She was the niece of the deceased. Though her statement was recordedby the Police only on 03.06.2008, after 21 days of the date of occurrence,Ethe Sessions Court proceeded to believe her evidence and convicted allthe three accused for the offences punishable under Section 302 readwith Section 34 IPC. However, A-2 was acquitted of the charges underSections 211 and 194 IPC. All of them were sentenced to lifeimprisonment and also imposed fine of Rs.2500/-.F10. A-1 and A-2 being husband and wife respectively, togetherfiled an appeal in Criminal Appeal No.1323 of 2009 and A-3 filed aseparate appeal in Criminal Appeal No.727 of 2009, on the file of theHigh Court, challenging their conviction and sentence. Relying mainlyupon the testimony of the star witness PW-9 and the medical evidenceregarding the cause of death, the High Court confirmed the convictionGand sentence and dismissed the appeals. Aggrieved by the dismissal oftheir appeals, A-2 and A-3 alone have come up with the above criminalappeals. However, A-1 has been arrayed as Respondent No.2, in theappeal filed by A-2.

11. Drawing our attention to the inherent contradictions in theHtestimonies of PWs 9 and 14, and the glaring inconsistencies between

their testimonies, the learned counsel for the appellants argued that theconviction was based entirely upon surmises and that such convictionis wholly unsustainable in law.

12. However, placing reliance upon the seizure of the knife andlathis allegedly used for the commission of the offence, from the housesof the accused under seizure memos and the report received from FSL,it was argued by the learned counsel representing the State that theprosecution had established the guilt of the accused beyond reasonabledoubt and that the Sessions Court and the High Court were justified inrelying upon the evidence of PW-9 and others.

13. We have carefully considered the material on record and thesubmissions of the learned counsel on both sides.

14. close scrutiny of the sequence of events that happenedfrom the date of occurrence of the crime, namely, 13.05.2008, wouldshow that the investigation in this case, instead of proceeding in pursuitof truth, had proceeded towards burying the truth. This can be bestappreciated by narrating the sequence of events as under:-

(a) Admittedly, an information was received by one Shri G.P.Dwivedi working as Assistant Sub-inspector in Moti NagarPolice Station, Sagar District at about 23.00 hrs. on 13.05.2008from the Government Hospital (Tili) about person havingbeen brought dead. The information had been sent at theinstance of A-2, who had taken the body of the victim in anauto rickshaw to the hospital. This Assistant Sub Inspectorwas examined as PW-12. According to PW-12, FIR wasregistered in FIR No.331 of 2008 at 23.50 hrs. showing thename of the complainant as Smt. Sahodra Bai (A-2) andshowing Ruia Yadav and Kailash Yadav (later examined asPWs 6 and 7) as the accused.

(b) Admittedly the investigation was taken over by anotherAssistant Sub-inspector by name R.K. Sen, examined as PW-14. According to him, he started the investigation in the morningof 14.05.2008. Therefore, in the normal course, one wouldhave expected the investigation first to proceed against RuiaYadav and Kailash Yadav, who were named as accused. Butinterestingly right from the beginning, the investigation carriedout by PW-14 proceeded in the reverse gear, by making the

Ainformant, namely, Sahodra Bai and her husband and brotheras accused and the original accused Ruia and Kailash aswitnesses. One would have expected an Investigating Officer,who takes up investigation in the morning of 14.05.2008, inrelation to FIR registered at 23.50 hours the previous night,to record the statements of the informant, visit the place ofBcommission of the crime, secure the accused and collectevidence to find out the truth. But in this case, the IO, rightfrom the beginning, had turned the case entirely against theinformant and her family. The reason for the IO doing this, isnot far to seek.

(c) During cross-examination, PW-14 admitted that there weredemonstrations by political parties when the investigation wastaken up by him on 14.05.2008 against Ruia and Kailash. Thisis perhaps why, the IO first took A-1 to the Medical Officer(examined as PW-2) of the District Hospital for medicalDexamination on 15.05.2008 and got report to the effect thatthere were several abrasions on the back of A-1. On the basisof such report, the IO concluded that these abrasions musthave been caused during the scuffle that the deceased hadwith A-1.

E(c) After obtaining the medical report about the injuries on thebody of A-1 on 15-5-2008, PW-12 admittedly called all thethree accused to the police station in the morning of 16.05.2008and effected their arrest. In other words, within three days ofthe commission of the crime, persons named as accused inthe FIR were made witnesses for the prosecution and theFinformant, her husband and her brother were made as accused.

(d) It is only after 18 days of effecting the arrest of all the threeaccused, that the statement of PW-9, the so called star witness,was recorded by the IO.

G15. It is quite strange and completely unfathomable as to how,where, why and at what point of time, the investigation that should havestarted against PWs 6 and 7 took U-turn and proceeded towards thevery informant and her family members. Right from the beginning, thedefence taken by the accused was that due to political influence, theywere made accused and the actual accused were made witnesses. This

stands corroborated by the admission made by PW-14 (IO) that whenhe took up the investigation on 14.05.2008, there were demonstrationsheld by political parties.

16. What is shocking is the admission made by PW-14 duringcross-examination that he was not aware, at the time when he startedthe investigation (in the morning of 14.05.2008), whether the accusednamed in the FIR, namely, Ruia and Kailash Yadav (later examined asPWs 6 and 7) were in police custody. But he admitted that after he tookup investigation in the morning of 14.05.2008, he did not arrest both ofthem.

17. The reason why the IO did not even suspect the role of Ruiaand Kailash Yadav in the commission of the crime, remains unexplained.We are conscious of the fact that at times persons who commit crime,themselves make/lodge the first information, so as to create an alibi ofinnocence. But even in such cases the investigation would normallyproceed first against those named as accused in the FIR and, thereafter,the needle of suspicion may turn against the informant himself.

18. useful reference can be made in this regard to the decisionof this Court in Kari Choudhary vs. Mst. Sita Devi & Ors.[1] It was acase where the mother-in-law of the victim first filed complaint ofculpable homicide against unknown persons, who, allegedly sneaked intothe bedroom of her daughter-in-law and murdered her. During theprogress of the investigation into the FIR registered on the basis of themother-in-law’s complaint, the Police found that the murder wascommitted pursuant to conspiracy hatched by the first informant andher other daughters-in-law. Therefore, the Police sent report to theCourt to the effect that the allegations in the FIR registered at the behestof the mother-in-law were false. The Police thereafter registered freshFIR and continued the investigation against the original informant andothers. The original informant filed protest petition against the Reportof the Police on the first FIR, but the same was rejected by the ChiefJudicial Magistrate (“CJM”for short). However, the said order wasover-turned by the High Court in revision and the CJM was directed toconduct an inquiry under Section 202 of the Code. Thereafter, the Policefiled charge-sheet against the original informant (mother-in-law) andtwo others. The CJM committed the case to Sessions and the SessionsJudge framed charge for the offence punishable under Section 302

1 (2002) 1 SCC 714

Aread with Section 34 but the mother-in-law approached the High Courtand got the proceedings quashed. That order became the subject matterof appeal before this Court in Kari Choudhary (supra). The maincontention of the original informant in that case was that once the orderof the CJM rejecting the protest petition was set aside by the High Court,the logical consequence of such an order was that the conclusion reachedBby the Police that the original complaint was false, also stood rejected.Therefore, it was contended that there cannot be another prosecutionand that too against the original informant. While rejecting the saidcontention, this Court held that the course adopted by the Court on thefirst complaint cannot disable the Police to continue to investigate intoCthe offence and to reach final conclusion regarding the real culprit. Yetanother contention before this Court in Kari Choudhary (supra) wasthat once the proceedings initiated under the first FIR ended in finalreport, the Police had no authority to register second FIR. While dealingwith the said contention, this Court opined; “Of course the legal positionis that there cannot be two FIRs against the same accused in respectDof the same case. But when there are rival versions in respect of thesame episode, they would normally take the shape of two differentFIRs and investigation can be carried on under both of them…”19. Therefore, it happens at times that the real culprit lodges thefirst information against known or unknown persons, to misdirect theEinvestigation of an offence. But even in such case, it is only during thecourse of investigation into the first FIR that the case may take U-turn. When it does, the informant may also have to face additional chargesfor the offences punishable under various provisions of Chapter XI ofIPC. This is exactly the reason why, in this case, the prosecution charged

FA-2 for the offences punishable under Sections 194 and 211 IPC. Butthe Trial Court acquitted her of the charges under these two provisions.

20. As stated earlier, when question was put to him as to whetherRuia and Kailash Yadav (PWs 6 and 7), who were the original accused,were ever taken into custody, the IO (PW-14) feigned ignorance. TheGanswer given by the IO is as follows:-

“It was not in my knowledge that when I started investigationat that time Ruia and Kailash Yadav were in the custody ofthe police. On having knowledge about this information thatcase is registered against Ruia and Kailash, I have not triedto arrest them.”H

But interestingly, the star witness for the prosecution, namely,PW-9, who was admittedly just 16 years of age at the time of occurrence,not only claimed knowledge about their arrest, but also revealed whathappened thereafter. The testimony of PW-9 in this regard reads asfollows:-

“It is true that after death of my Mausa Pappu, Police hadtaken into custody Rooiya and Kailash for murder. It is notknown to me that where my Mausa was living who is leaderthere. It is true that for taking into custody of Rooiya andKailash there was strike in Mohalla. Persons of Yadav casteassembled. It is true that persons of Yadav caste put pressureon police and leaving Rooiya and Kailash on that day soil ofmy Mausa came.”

21. Unfortunately neither the Trial Court nor the High Court tooknote of the above admission on the part of PW-9 in the context of theadmission made by the IO as PW-14.

22. That the case was foisted against the very informant and theirfamily members due to political pressure is also borne out by anotheradmission made by PW-14 which reads as follows:

“I was given verbal instructions by higher police officers thatKailash Yadav, Rooiya @ Bhagirath Yadav be impleaded aswitnesses instead of accused. When I have started theinvestigation at that time Additional Superintendent of PoliceTilak Singh has given me verbal order that Kailash & Rooiyabe impleaded as witnesses instead of accused. In my diary Ihave not mentioned about that order. In this case during thecourse of investigation accused was having bad relation withdeceased this fact has not come on record.”

23. According to the IO, the knife used by A-1 for the commissionof the offence was seized from the house of A-1. Similarly the lathisused for the commission of the offence were also seized from the housesof A-2 and A-3. Seizure was effected, according to the IO, in the presenceof witnesses and seizure memos prepared. But those witnesses DalChandra and Deen Dayal did not support the prosecution. Dal Chandrawas examined as PW-1 and he stated categorically (i) that in his presenceno enquiry was conducted from the accused; and (ii) that in his presenceno weapons were seized from the accused. However, he admitted his

Asignatures in the seizure memos. He explained this by stating that hesigned the seizure memo and memorandum statement outside the hotelsituate near the police station. Even after he was declared hostile, hereiterated in response to the questions posed by the Additional PublicProsecutor that seizure of the weapons was not effected in his presence.Yet the High Court gave credence to the testimony of PW-1 merely onBthe ground that he admitted the signatures in the seizure memo andmemorandum statement.

24. The fact that right from the beginning, the IO proceeded tofavour those two persons originally named as accused in the FIR, is alsoborne out by the statement made by him in chief examination that evenCon the very first day, he recorded the statements of several witnessesincluding Kailash and Ruia. It means that he started with pre-determination that the informant, her husband and her brother were theculprits and the original accused were innocent. The relevant portion ofthe evidence of PW-14 in this regard reads as follows:-D“From place of incidence blood stained soil and common soilwas collected and was sealed in different – different packetswas seized in presence of witnesses and seizure Memo is Ex.P/15 on which from to is my signature. On that date onlywitnesses Rahul Yadav, Rajesh Yadav, Kailash Yadav, RuiaE@ Bhagirath Yadav, Baby @ Leelabai, Gandharv Patel,Raghuvir Thakur, Brijesh Rawat, Om Prakash Pathak, GorelalKurmi, Mahesh Kurmi statement was obtained as told by themand nothing was increased or decreased from my side.”

25. Interestingly the story built by the prosecution was that A-1Fhad quarrel with his brother (the deceased), sometime before thecommission of the crime, over the non-repayment of sum of Rs.250/-by the deceased to Ruia and that in the quarrel, A-1 got injured and thatthereafter all the 3 accused attacked the victim resulting in his death.A-1 had no reason to take up the cause of Ruia and go to the extent ofcommitting the murder of his own brother. But unfortunately, the TrialGCourt has believed this story on the basis of the testimony of DW-1, themother of both A-1 and the deceased. All that DW-1 stated in hertestimony was that A-1 questioned the deceased as to why he was notreturning the money due and payable to Ruia.

26. Coming to the testimony of PW-9, projected as the star witnessHfor the prosecution, the explanation given by the IO for recording her

statement on 03.06.2008, after 21 days of the occurrence of the crime,is unbelievable. In any case, if her evidence is to be accepted, it shouldbe accepted in total. We have already extracted one portion of herevidence, where she has categorically admitted that Ruia and Kailashwere originally taken into custody and that there were protests from thepeople of the caste to which they belonged and that those people alsoput pressure on the police to give clean chit to Ruia and Kailash.These admissions on the part of PW-9, made the prosecution casecompletely untrustworthy.

27. Apart from the fact that the witnesses in whose presence theseizure of the weapons was allegedly effected, had turned hostile, therewas also one more thing. There is nothing on record to show that theblood stains said to have been present in those weapons, matched withthe blood of the deceased. Unfortunately, the High Court proceeded ona wrong premise that there was scientific evidence to point to the guiltof the accused, merely because as per Exhibit P-25 (FSL Report), theknife and lathis said to have been seized by the police, contained stainsof human blood. The prosecution has not established either through thereport of FSL or otherwise, that the blood stains contained in the knifeand lathis were that of the deceased.

28. We are conscious of the fact that there is divergence ofviews on this aspect. In Raghav Prapanna Tripathi vs. The State OfUttar Pradesh[2], Constitution Bench of this Court by majority heldthat, “…that it would be far-fetched to conclude from the merepresence of blood-stained earth that that earth was stained withhuman blood and that the human blood was that of the victims…”.In Kansa Behera vs. State of Orissa[3], this Court acquitted the appellanton the ground that though the Serologist report found the shirt and dhotirecovered from the possession of the appellant to be stained with humanblood, there is no evidence to connect the same with the blood of thedeceased. In Surinder Singh vs. State of Punjab[4], the blood stainsfound on the knife allegedly used for the commission of the offence,were established to be human blood. But this Court rejected theprosecution theory on the ground that those blood stains on the knifewere not shown to be of the same group as the blood of the deceased.

2 AIR 1963 SC 74

3 (1987) 3 SCC 480,

4 (1989) Supp.(2) SCC 21

AIn Raghunath, Ramkishan & Ors. vs. State of Haryana,[5 ]this Courtheld that the blood stain, though of human blood, is not conclusiveevidence to show that it belongs to the blood group of the deceased. InSattatiya vs. State of Maharashtra[6], this Court found the credibility ofthe evidence relating to the recovery of the object used for the commissionof the crime, substantially dented, on account of the fact that the bloodBstains, though found to be of human source, could not be linked with theblood of the deceased.

29. In contrast, this Court held in State of Rajasthan vs. TejaRam and Others[7], that at times the Serologist may fail to deduct theorigin of the blood, either because the stain is too insufficient or becauseCof hematological changes and plasmatic coagulation. After referring tothe Constitution Bench decision in Raghav Prapanna Tripathi (supra),this Court held in Teja Ram (supra) that it is not as though thecircumstances arising from the recovery of the weapon would standrelegated to disutility, in all cases where there was failure of detectingDthe origin of the blood. This Court indicated in Teja Ram (supra) that,“…the effort of the Criminal Court should not be to prowl forimaginative doubts…” and that the doubts should be of reasonabledimension, which judicially conscientious mind entertains with someobjectivity.E30. The decision Teja Ram (supra) was followed in Gura Singhvs. State of Rajasthan[8] and in Prabhu Dayal vs. State of Rajasthan[9].

31. In R. Shaji vs. State of Kerala[10], this Court took note ofalmost all previous decisions starting from Prabhu Babaji Navle vs.State of Bombay[11 ]and including those in Raghav Prapanna TripathiF(supra); Teja Ram (supra), Gura Singh (supra); John Pandian vs.State[12]; and SunilClifford Daniel vs. State of Punjab[13 ]and came tothe conclusion that once the recovery is made in pursuance of disclosure

5 (2003) 1 SCC 398G6 (2008) 3 SCC 2107 (1999) 3 SCC 5078 (2001) 2 SCC 2059 (2018) 8 SCC 12710 (2013) 14 SCC 26611 AIR 1956 SC 5112 (2010) 14 SCC 129H13 (2012) 11 SCC 205

statement made by the accused, the matching or non-matching of bloodgroups loses significance.

32. Therefore, as pointed out by this Court in Balwan Singh vs.State of Chhattisgarh[14], there cannot be any fixed formula that theprosecution has to prove, or need not prove that the blood groups match.But the judicial conscience of the Court should be satisfied both aboutthe recovery and about the origin of the human blood.

33. In the case on hand, even PW-1, who allegedly witnessed theseizure had turned hostile. Right from the beginning there has been anattempt on the part of the prosecution to shield the culprits named in thefirst FIR, on account of political pressure, as admitted by PW-14 andcorroborated by PW-9, whom the prosecution considered to be starwitness. Unfortunately, both the Sessions Court and the High Courtcompletely overlooked these aspects.

34. It is seen from the judgment of the High Court that the accusedwere represented by amicus curiae either due to the inability of theaccused to engage counsel or due to the non-appearance of the counselengaged by them at the time of hearing. As result, the accused do notappear to have had the best of legal assistance. It is in such type ofcases that the burden of the court is very heavy and unfortunately, theSessions court and the High court did not discharge this burden properly.

35. In the light of the above, we are clearly of the view that theinvestigation in this case was carried out by PW-14, not with the intentionof unearthing the truth, but for burying the same fathom deep, forextraneous considerations and that it was designed to turn the informantand her family members as the accused and allow the real culprits namedin the FIR to escape. Both the Sessions Court as well as the High Courthave completely overlooked some of the important admissions made byPWs 9 and 14. They have not even taken into account the normal humanconduct. It is unbelievable that A-1, A-2 and A-3 caused the death of A-1’s brother due to the failure of the victim to return an amount of Rs.250/- due and payable to Ruia (PW-7) and that thereafter, they deliberatelynamed Ruia as the accused. It is equally unbelievable that one of thepersons who killed the victim, in the presence of witnesses, took thebody of the victim to the hospital in an autorickshaw. The normal humanbehaviour in such circumstances will be either to flee the place of

Aoccurrence or to go to the police station to surrender, except in caseswhere they are intelligent and seasoned criminals. Neither did happen.

36. Therefore, we are of the considered view that the appealsdeserve to be allowed. But before we do that, we must take note of thefact that A-1 has not come up on appeal. Though Shri Shreeyash U.BLalit, learned counsel for the State submitted that A-1’s case stands ona completely different footing and that therefore, in the absence of anindependent appeal by him, he cannot be granted any relief, we do notagree. This is not case where we have proceeded on the basis ofindividual overt acts on the part of A-2 and A-3 (the appellants-herein)to conclude that they are entitled to acquittal. This is case where weChave disbelieved, in entirety, the story of the prosecution. Therefore, todeny the benefit of the said conclusion to A-1 merely on the ground of atechnicality that he is not on appeal would be to close our eyes to grossinjustice, especially when we are empowered under Article 142 to docomplete justice.

37. Therefore, the appeals filed by the appellants are allowed andthe conviction handed over by the Sessions Court and confirmed by theHigh Court as against all the three accused, including A-1, are set aside.All the three accused shall be released forthwith, unless they are incustody in relation to any other case.

Nidhi Jain

Appeals allowed.