Vinod Chaturvedi Etc. Etc. v. State Of Madhya Pradesh

Judgment

CRIMINAL APPELLATE JURISDICTION’ : ,Criminal Appeal Nos. 192-193 of 1983

Appeals by Special leave from the ‘Judgment and’ Order dated the 3lst January, 1983 of the Madhya Pradesh High Court in Criminal Appeal No. 732 of 1980.

2 AN, Mulla and S.K. Gambhir, for the Appellant in C.A. 192 of 1983. °

_ Rajendar Singh and .A.K. Mahajan" for ‘the “Appellants

CA. 193 of 1983. . ;

A.K. Sanghi: fo 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 ina jeep to Rampura about one kilometre 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 ; ae SUPREME COURT REPORTS ~ [1984] 3 s.c.R, pasis of the first information’ report and asa 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.he a servant -of P.W.@ 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 ina 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 ocular evidence that the same was acceptable and on tlie basis thereof a conviction could be recorded, but heavily relied on two documents—the first being Exhibit P-1, 4a 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 corrobo- rated 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 caseare 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 4 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.

responsiblé for the death of Brindaban. After the acquittal in - | 1974 nothing happened in the matter for three years and suddenly - r wy ak

Be bey

*

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VINOD CHATURVEDI‘. M.P. STATE (Ranganath Misra, J.) 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 oecasion 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 prepa-, red to implicate the five persons who were acquitted on the earlier occasion aiid the present appellants on the subsequent occasion in a serious charge like murder is indicative of the fact that no cre-. dence 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 grdhnd, 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 wasa letter of P.W..1, Sunderlal to the Superintendent of Police. Admittedly by 29.4.73 when this letter said fo 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 Rdin 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 administrativ: 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 décument was not available to be

-telied upon for any purpose and the High Court clearly went wrong. | in seeking support from it by way of corroboration of the oral evidence. : me

(0 1974] 18.0.8, 72, a”

ny

" 98 SUPREME COURT REPORTS [1984] 3 s. OR.

There are several ‘other unsatisfactory features in the prose- cution 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 bean named as the leader of the patty which came to village Budha to pick up Brindaban in the.

statements given during investigation by several witnesses. These

‘witnesses had been confrontéd as required by law and apart from pleading either innocence or helplessness, no other answer was given. Some witnesses haddeposed that Vinod the main architect ofthe 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 ac@ised 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 Ad - 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 not 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 .

he 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 isnot connected with the accusation of abduction. The common object as stated by the prosecution would not be ayailable

, for sustaining the conviction under Section 148, 1.P. C. jn that background. - There are many other. aspects ‘with reference to whic ch ihe trial court had found fault with the prosecution case,, While we ey vy

VINOD CHATURVEDI y, M.P. STATE (Ranganath Misra, J) = 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. ,