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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.