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REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 374 OF 2020 [Arising out of SLP (Crl) No. 9252 of 2018]

Parvat Singh & Ors.         .. Appellant(s)

Versus

State of Madhya Pradesh                    .. Respondent(s)

J U D G M E N T

M. R. Shah, J.

Leave granted.

2. Feeling aggrieved and dissatisfied with the impugned judgment and order

dated  19.04.2018 passed by the High Court  of  Madhya Pradesh at  Gwalior  in

Criminal  Appeal  No.574 of  2006 by which  the  High Court  has  confirmed the

conviction of the appellants herein – original accused Nos.2 to 5 for the offences

punishable under Section 302 r/w Section 149 of the IPC, the original accused

nos.2 to 5 have preferred the present appeal.

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3. All the accused including the appellants came to be tried by the Learned

Trial  Court  for  the offences under Section 302 r/w Section 149 of  the IPC for

having killed one Bal Kishan s/o the informant Mullo Bai on 01.12.2005 around 4-

5 a.m. in the morning at Village Hinotiya Gird.

4. According to the case of the prosecution, the informant Mullo Bai – PW8

was  sleeping  in  the  cattle  shed.   At  that  time,  the  appellants  and one  another

accused named Bal Kishan, s/o Diman Singh while sharing common object caused

murder of Bal Kishan, s/o Bhagwan Singh.  According to the informant there was a

dispute  going on between the parties.   As per  the case of  the prosecution  and

according to the informant, when she was sleeping in the cattle shed in the house,

around 4-5 a.m. in the morning due to the barking of the dogs she woke up and in

the light of torch, she saw that in the cattle shed, accused Bal Kishan with an axe

and other original accused Nos. 2 to 5 herein with sticks/lathis in their hands were

standing.  Thereafter, accused Bal Kishan entered in the cattle shed and with an

intention to kill her son Bal Kishan gave a blow of axe.  She shouted and the other

members of the family and nearby house came there and all the accused ran away

from  the  spot.   Investigation  was  carried  out  by  one  Mahesh  Sharma  –

Investigating Officer - PW12.  He recorded the statements of concerned witnesses.

I.O. also obtained the relevant evidences including the medical evidence and also

the postmortem report. That all the accused were charge-sheeted for the offences

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punishable under Section 302 r/w Section 149 and Section 450 of the IPC.  The

case was committed to the Court of Sessions.  All the accused pleaded not guilty,

therefore,  all  the  accused came to be  tried  by the  Learned Trial  Court  for  the

aforesaid offences.

5. To prove the case against the accused, the prosecution examined in all 12

witnesses including PW8 Mullo Bai -informant – mother of the deceased who was

the sole eyewitness.  At this stage, it is required to be noted that mother of the

deceased Mullo Bai was the sole eyewitness.  At this stage, it is required to be

noted that the axe used in the commission of the offence by the original accused

no.1 was recovered at the instance of the accused no.1 himself.  Ratan Singh –

PW1 and Pahalwan Singh – PW2 did not support the prosecution and therefore,

they were declared as hostile by the prosecution.  In support of the defence two

witnesses  were  examined by the  defence  to  bring  home the  theory  of  alibi in

respect of original accused no.1 - Bal Kishan.

6. After perusing the evidence led by the parties and solely relying upon the

evidence  of  Mullo  Bai  –  PW8  the  sole  eye-witness,  the  Learned  Trial  Court

convicted all the accused for the offences under Section 302 r/w Section 149 of

IPC.

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7. Feeling aggrieved and dissatisfied with the judgment and order of conviction

by the Learned Trial Court,  the appellants herein - original accused Nos.2 to 5

preferred  Criminal  Appeal  No.574  of  2006  before  the  High  Court.   Original

Accused No.1 also preferred one separate appeal.  By the impugned judgment and

order, the High Court has dismissed the appeal preferred by the accused nos.2 to 5

- appellants herein.  The High Court also dismissed the appeal preferred by the

Accused No.1 – Bal Kishan.  It is reported that the SLP against the judgment and

order of conviction of the original accused no. 1 – Bal Kishan is dismissed by this

Court.  Feeling aggrieved and dissatisfied with the impugned judgment passed by

the High Court, the original accused nos. 2 to 5 have preferred the present appeal.

8. Shri A.K. Srivastava, learned Senior Advocate appearing on behalf of all the

appellants – original accused nos. 2 to 5 has vehemently submitted that in the facts

and circumstances of the case, the High Court has materially erred in dismissing

the appeal  and confirming the judgment and order of  conviction passed by the

Learned Trial Court and convicting them for the offences under Section 302 r/w

Section 149 IPC.

8.1 It is vehemently submitted by Mr. Srivastava, learned Senior Advocate that

the High Court has not properly appreciated the fact that the Trial Court convicted

the appellants solely relying upon the evidence/deposition of Mullo Bai – PW8.  

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8.2 It is submitted that the High Court has not properly appreciated the fact that

so  far  as  the  evidence/deposition  of  PW8  is  concerned,  it  is  full  of  material

contradiction and improvements.

8.3 It is further submitted by Learned Senior Advocate appearing on behalf of

the appellants that the High Court has not properly appreciated the fact that it was a

black night when the incident took place, there was a dark, and it was not possible

for Mullo Bai to recognize/identify the accused – the appellants herein.

8.4 It is further submitted that as such there was material contradiction in the

deposition of the PW8 insofar as identifying/recognizing the appellants in the light

of  torch  or  from the  chimney light.  It  is  further  submitted  by Learned Senior

Advocate appearing on behalf of the appellants that the testimony of Mullo Bai –

PW8 suffers from material omissions, which amounts to contradictions as well as

material improvements in her statement in Court as regards place of incident where

she was sleeping.  It is submitted that it was for the first time in the Court that she

has stated that accused Santosh and Rakesh caught hold the deceased and that Bal

Kishan inflicted axe injury over his neck.

8.5 It is further submitted that in fact there is no recovery of any torch from the

place of incident.

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8.6 It is further submitted that even the observations made by the High Court

that the appellants herein went with the lathis is contrary to the evidence on record.

It  is  submitted  that  in  the deposition of  PW8 – Mullo Bai,  she has not  stated

anything that the appellants herein were carrying the lathis.  It is submitted that in

her statement recorded under Section 161 Cr.P.C. she has stated that the appellants

were having lathis, but the statement under Section 161 Cr.P.C. is not admissible in

evidence and therefore the High Court has committed a grave error in observing

that the appellants were having lathis, solely relying upon the statement of PW8

recorded under Section 161 Cr.P.C.

8.7 It is further submitted by the Learned Senior Advocate appearing on behalf

of the appellants that  as such there is no cogent material  and/or evidence with

respect  to  the  common object  and/or  conspiracy  hatched  amongst  the  accused

persons to kill the deceased.  It is submitted that the appellants are convicted with

the aid of Section 149 IPC.  It is submitted that, therefore, in absence of theory of

common intention/object,  the  appellants  could  not  have  been convicted  for  the

offences under Section 302 IPC with the aid of Section 149 IPC.  

8.8 It is further submitted by the Learned Senior Advocate appearing on behalf

of the appellants that even as per the deposition of Mullo Bai – PW8 the dispute

was  going  on  between  the  parties.   It  is  submitted  that  therefore  the  false

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implication of the appellants cannot be ruled out.  It is submitted that therefore

conviction of the accused is solely based upon the evidence – deposition of PW8

and no other independent witness supports the case of the prosecution and that the

evidence  –  deposition  of  the  PW8  is  full  of  contradictions,  omissions  and

improvements,  it  is  not  safe  to  convict  the  appellants  solely  relying  upon  the

evidence/deposition of PW8.

8.9 It is further submitted by the Learned Senior Advocate appearing on behalf

of the appellants – original accused nos. 2 to 5 that the case of the original accused

nos. 2 to 5 is clearly distinguishable on facts, from that of original accused no.1.  It

is further submitted that there are no much contradictions and/or improvements in

the case so far as original accused no.1 is concerned.  It is submitted that so far as

accused no.1 is concerned, it can be seen that PW8 is consistent with her statement

under  Section  161  Cr.P.C.  as  well  as  her  deposition  before  the  Court.   It  is

submitted that even there was a recovery of axe used in the commission of the

offence at the instance of the original accused no.1.  It is submitted that therefore

the dismissal  of  SLP qua original  accused no.1 would not  come in the way of

appeal.   It  is  further  submitted that  even otherwise,  the SLP was dismissed in

limine and therefore it is prayed to consider the present appeal on its own merits.

9. Making the above submissions it is prayed to allow the present appeal.

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10. Present appeal is vehemently opposed by Ms. Madhurima Mridul, Learned

Advocate appearing on behalf of the respondent – State.

11. It is vehemently submitted by the Learned Advocate appearing on behalf of

the State that there are a concurrent finding of facts recorded by both the Courts

below while convicting the appellants for the offences under Section 302 r/w 149

IPC.  It is submitted that the findings recorded by the Learned Trial Court and the

High Court are on appreciation of evidence and therefore the same are not required

to be interfered with by this Court in exercise of powers under Article 136 of the

Constitution of India.

11.1 It is further submitted by Learned Counsel appearing on behalf of the State

that in the present case though the conviction of the appellants is solely based upon

the deposition of PW8 – Mullo Bai, however there is no rule that there cannot be

any conviction relying upon the sole witness, more particularly an eye-witness.  It

is submitted that PW8 is a reliable and trustworthy witness.  It is submitted that her

presence on the spot is natural as the incident has taken place in her house and near

the place where she was sleeping.  It is submitted that as she is the sole eyewitness

to the incident, both the courts are justified in convicting the accused relying upon

the deposition/evidence of PW8 – Mullo Bai.

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11.2 It is further submitted by the Learned Counsel on behalf of the State that in

the present case the presence of appellants herein- original accused nos. 2 to 5 on

the spot has been established and proved by the prosecution by examining PW8

who is the eyewitness.  It is submitted that presence on the spot at the time of

incident and that too between 4-5 a.m. early morning is sufficient to convict the

accused for the offence under Section 302 IPC with the aid of Section 149 IPC.

11.3 It is further submitted by the Learned Counsel appearing on behalf of the

State that even the accused were recognized and identified by PW8 – Mullo Bai

even from their voice, so stated by PW8 in her deposition.

11.4 It is further submitted by the Learned Counsel appearing on behalf of the

State that the original Accused no.1 also came to be convicted solely relying upon

the deposition of PW8.  It is submitted that the conviction of original Accused no.1

has  been confirmed upto this  Court.   It  is  submitted  that  therefore there is  no

reason not to believe PW8 so far as the appellants – original accused nos. 2 to 5 are

concerned.   It  is  submitted  that  therefore  both  the  courts  below  have  rightly

convicted the appellants herein for the offences under Section 302 r/w Section 149

IPC.  Making the above submissions, it is prayed to dismiss the present appeal.

12. Heard the Learned Counsel for the respective parties at length.  We have

gone through and considered in detail the entire evidence recorded by the learned

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Trial  Court  as  well  as  the High Court.   We have also considered in  detail  the

evidence on record more particularly the statement of PW8 – Mullo Bai recorded

under Section 161 Cr.P.C. as well as her deposition before the Court.

13. At the outset, it is required to be noted that the appellants herein - original

accused nos. 2 to 5 are convicted by the Learned Trial Court and the High Court

solely relying upon the evidence/deposition of PW8 – Mullo Bai.  It cannot be

disputed that there can be a conviction relying upon the evidence/deposition of the

sole  witness.   However,  at  the  same time,  the  evidence/deposition  of  the  sole

witness can be relied upon, provided it is found to be trustworthy and reliable and

there are no material contradictions and/or omissions and/or improvements in the

case of the prosecution.  Therefore, the question which is posed for consideration

of  this  Court  is  whether  in  the  facts  and  circumstances  of  the  case,  can  the

appellants  herein – original  accused nos.  2  to 5 be convicted relying upon the

deposition  of  the  sole  witness  –  PW8  and  whether  PW8  is  a  reliable  and

trustworthy witness to convict the appellants herein- original accused nos. 2 to 5?   

14. Having  heard  Learned  Counsel  appearing  for  the  respective  parties  and

considering  the  evidence  on  record,  we  are  of  the  opinion  that  the

evidence/deposition  of  PW8  is  full  of  material  contradictions,  omissions  and

improvements.

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14.1 It is required to be noted that it was a black night (Amavasya) at the time of

incident.  It was a dark night as the incident has happened between 4-5 a.m.  PW8

in her statement recorded under Section 161 Cr.P.C. has stated that she has seen all

the accused in the light of the torch.  She has stated that Bal Kishan – original

accused no.1 was having an axe and other four were armed with lathis.  She had

also stated in her statement under Section 161 Cr.P.C. that Bal Kishan – original

accused no.1 gave the axe blow on the neck of the deceased due to the enmity and

earlier  dispute  and  other  accused  were  telling  to  run  away  immediately  and

thereafter all the five accused ran away from behind the cattle shed/house.  She

stated that she had identified all the accused in the light of the torch and also by

voice.  According to her after she shouted, other persons came.  However, there is

material improvement in her deposition before the Court.  In her deposition, she

has stated that accused Santosh and Rakesh caught hold of Bal Kishan – deceased.

In her deposition, she has also stated that there was a chimney light in the cattle

shed.  She has also stated in her deposition that the accused ran away from the

nearby agricultural field of sugarcane.  Therefore, the deposition of PW8 is full of

material contradictions and improvements so far as original accused Nos. 2 to 5 is

concerned.  It is required to be noted that no other independent witness even named

by PW8 has supported the case of the prosecution.  Though, according to PW8, she

identified the accused in the light of the torch, there is no recovery of torch.  There

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is  material  improvement  so  far  as  the  chimney  light  is  concerned.   In  her

deposition, she has not stated anything that the appellants – original accused nos. 2

to  5 were  having the  lathis,  though she  has  stated  this  in  her  statement  under

Section 161 Cr.P.C.    The High Court has observed relying upon her statement

recorded under Section 161 Cr.P.C. that the appellants herein – accused nos. 2 to 5

were having lathis.   However, as per the settled preposition of law a statement

recorded under  Section  161  Cr.P.C.  is  inadmissible  in  evidence  and  cannot  be

relied upon or used to convict the accused.  As per the settled proposition of law,

the statement recorded under Section 161 Cr.P.C. can be used only to prove the

contradictions and/or omissions.  Therefore, as such, the High Court has erred in

relying  upon  the  statement  of  PW8 recorded  under  Section  161  Cr.P.C.  while

observing that the appellants were having the lathis.

14.2 As observed hereinabove in her statement under Section 161 Cr.P.C., she has

never stated that accused Santosh and Rakesh caught hold of Bal Kishan, but stated

that the appellants herein told to run away as other persons have woken.  In the

facts and circumstances of the case, there are material contradictions, omissions

and/or improvements so far as the appellants herein – original accused nos. 2 to 5

are concerned and therefore we are of the opinion that it is not safe to convict the

appellants on the evidence of the sole witness of PW8.  The benefit of material

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contradictions, omissions and improvements must go in favour of the appellants

herein.  Therefore, as such the appellants are entitled to be given benefit of doubt.   

14.3 Now, so far as the submission on behalf of the State that relying upon the

deposition of PW8, the original accused no.1 was convicted and his conviction has

been confirmed upto this Court and therefore to dismiss the present appeal qua

other  accused  is  concerned  from the  evidence  on  record  and  having  observed

hereinabove  the  case  of  the  appellants  –  original  accused  nos.  2  to  5,  is

distinguishable on facts.  There are material contradictions and omissions so far as

the appellants – original accused nos. 2 to 5 are concerned.  So far as the original

accused no 1 is concerned, PW8 is consistent in her statement under Section 161

Cr.P.C. as well as in her deposition before the Court.  There was a recovery of axe

used in commission of the offence by accused no.1 at the instance of accused no.1.

Under the circumstances, the case of the original accused nos. 2 to 5 is clearly

distinguishable to that of original accused no.1.

15. For the reasons stated hereinabove, we are of the firm opinion that in view of

the material contradictions, omissions and improvements in the statement of PW8

recorded under Section 161 Cr.P.C. as well as deposition before the Court qua the

appellants – accused nos. 2 to 5 and that there was a prior enmity and no other

independent  witness  has  supported  the  case  of  the  prosecution,  we  are  of  the

opinion that the appellants herein – original accused nos. 2 to 5 are entitled to be

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given the benefit of doubt.  Under the circumstances, the present appeal is allowed.

The impugned judgment and order of conviction passed by the learned Trial Court

and confirmed by the High Court convicting the appellants herein – accused nos. 2

to 5 for  the offence under Section 302 r/w Section 149 of  the IPC are hereby

quashed and set aside and the appellants herein – original accused nos. 2 to 5 are

acquitted of the charges for which they were tried.  The appellants herein – accused

nos. 2 to 5 be released forthwith, if not required in any other case.  

…………………………..J. (ASHOK BHUSHAN)

…………………………..J. (M. R. SHAH)

New Delhi, March 2, 2020.