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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 2230 OF 2011

MANGU SINGH ….. APPELLANT(S) VERSUS

DHARMENDRA & ANR. ….. RESPONDENT(S) WITH

CRIMINAL APPEAL NO.1707  OF  2015 (Arising out of SLP(Crl.) No.9148 of 2011)  

STATE OF U.P. ….. APPELLANT(S)

VERSUS

DHARMENDRA ….. RESPONDENT(S)

J U D G M E N T

Pinaki Chandra Ghose, J.

1. Leave granted in SLP(Crl.) No.9148 of 2011.

2. These appeals have been directed against the judgment and

order dated 06.08.2010 passed by the High Court of Judicature at

Allahabad  in  Criminal  Appeal  No.1417  of  2006,  wherein  the

accused/respondent was acquitted by the High Court against the

Judgment  of  life  imprisonment  as  awarded  by  the  Trial  Court.

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Criminal  Appeal  No.2230  of  2011  has  been  filed  by  the

complainant/informant  and  the  connected  matter,  i.e.  Special

leave  Petition  (Criminal)  No.9148  of  2011  is  filed  by  the  State

against the acquittal of the accused/respondent.

3. The brief facts necessary to dispose of these appeals are that

The  respondent/accused  came  on  18.11.2003 to  Police  Station,

Simbhaoli, District Ghaziabad, and confessed vide a written report

Ext. Ka 22, of having killed his wife and daughter. The accused's

father  in-law  (PW1)  was  informed  and  subsequently  inquest

proceedings  were  conducted  to  which  the  PW1  is  the  formal

witness. PW1 then lodged another FIR against his son-in-law for

having committed the murder of his daughter through a gun-shot

injury and also of his wife by throttling. Investigation was thrown

into the offence and at the instance of the accused a country-made

12-bore  pistol  and  empty  shell  Ext.  A-6,  were  recovered  on

19.11.2003. Since the occurrence was found to have taken place in

territorial  jurisdiction  of  Police  Station,  Babugarh,  the  senior

officers sought to get the investigation conducted through Police

Station, Babugarh after about one month since the FIR was lodged.

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4. After  investigation,  charge-sheet  was  filed  against  the

accused. After considering the material on record and hearing the

counsel,  the  accused  was  charged  for  the  offences  punishable

under Sections 302 of  the Indian Penal  Code,  1860 (hereinafter

referred to  as  “IPC”)  and also  Section 25 of  the  Arms Act.  The

charges were read over and explained to the accused. The accused

pleaded  not  guilty  and  in  his  statement  under  Section  313,

rebutted  that  the  alleged  murder  was  due  to  loot  in  which  his

daughter  and  wife  were  killed  and  he  had  sustained  gun-shot

injury  in  his  thigh.  The  confessional  written  statement  which

formed the basis of the first FIR was replied by the accused to be

under  threat  from  the  police  and  he  claimed  to  be  falsely

implicated in the case.

5. The Trial Court by its judgment and order dated 25th January,

2006,  convicted  the  accused  for  both  the  offences  charged  and

sentenced him to imprisonment for life. The convictions were based

on  the  evidences  of  the  eye  witnesses  and  the  recovery  of  the

weapons used which were further corroborated by the admission

made to the police officers, the motive being established and also

non-explanation by the accused of the facts within his knowledge

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as mandated under Section 106 of the Indian Evidence Act, 1872.

The accused challenged the conviction order before the High Court

and the High Court by the impugned judgment and order allowed

the appeal on the ground that the prosecution failed to bring home

the guilt of  the accused beyond reasonable doubt. The acquittal

was based on ground that both the FIRs were ante-timed and the

eye  witnesses  who  were  relied  upon  by  the  Trial  Court  were

interested  and  unreliable  witnesses.  The  motive  was  neither

investigated nor established and the conviction order was perverse

and against the sound legal principles.

6. The Informant PW1 has filed the present appeal before this

Court. The State is also before us by filing special leave petition

against the acquittal order. The learned counsel for the State has

argued in line of the decision arrived at by the Trial Court. It is

vehemently argued that the motive of the accused that he wanted

to get rid of the victims so that he could marry his love, was proved

by the testimony of PW1. The respondent was alone with the two

victims and it was his duty as provided under Section 106 of the

Indian  Evidence  Act,  1872,  to  give  a  reasonable  explanation

regarding the homicidal death of the two victims. Over this,  the

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respondent took a false plea of loot being committed upon him and

his family and he created a false minor injury to support his story.

He made a written statement in his own handwriting to the police,

confessing his crime which is admissible in evidence as he was not

an accused at the time of  making the statement.  Finally  it  was

argued that the recovery of the country-made pistol and an empty

shell  was  made  at  the  instance  of  the  accused  himself.  Mr.

Ratnakar Dash, learned senior counsel appearing for the State of

U.P.  substantiated  his  case  by  arguing  that  in  addition  to  the

above, PW4 is the eye witness of the incident of murder who saw

the accused with the gun in his hand. It is further argued that the

medical reports and the testimonies of the formal witnesses further

strengthened the case of the State.  

7. The learned senior counsel for the respondent accused has

made various submissions countering the arguments put forward

by  the  appellant.  It  is  argued  that  the  motive  was  neither

investigated nor proved. PW1 deposed about the motive that the

accused wanted to get rid of his wife and daughter as he wanted to

marry  a  girl  he  loved.  However,  it  is  argued  that  the  same  is

hearsay  evidence  and  neither  PW1 nor  the  Investigating  Officer

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inquired upon this fact. Against the second FIR, it was argued that

it was ante-timed, false and manufactured, PW1 was not himself

an eye-witness and as per his testimony he could not have been in

the police station to lodge the FIR at the time stated in the FIR.

PW4 was argued to be an interested witness and his testimony was

marked  by  severe  lacunae  and  is  itself  proved  to  be

self-contradictory and hence, unworthy of any reliance. The bullet

injury received by the accused is proved not to be self-inflicted and

hence there exits some truth in the claim of the accused about the

loot. The recovery was proved to be concocted.

8. In our considered opinion, four main issues are argued before

this Court and we shall now examine each and every contention in

light of the arguments adduced before us. It is a settled law that

motive is not a necessary element in deciding culpability but it is

an  equally  important  missing  link  which  can  be  used  to

corroborate the evidences. In the present case, the motive of the

accused was stated to be two-fold. One being that he was in love

with a girl, whom he wanted to marry but his wife and daughter

were  the  hindrance.  The  other  immediate  motive  was  the

non-fulfillment of dowry demand by PW1 (father of the girl). Upon

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perusal of the records, it appears that PW1 has deposed that the

accused/respondent was in love with a girl who lives in Ghaziabad

and this fact was told to him by his wife, who got this information

from  her  daughter  Geeta  (deceased).  Even  if  the  said  fact  is

presumed to be true, still PW1’s deposition to this fact is hearsay

and in  fact, his wife should have been examined to testify this fact.

PW1 neither stated this fact in the FIR nor in the statement made

before the police, and it was only after two and half years later that

this  fact  was  stated  in  his  deposition  before  the  Court.  The

Prosecution also laid heavy emphasis on the said fact. However, in

the investigation no such fact came to light, nor the wife of PW1

was summoned for making statements before the police or before

the Court. The witness even testified that this alleged relation of

the accused was reported to the accused's father upon which he

apologized for his conduct, however, the said fact was not proved.

As against the immediate cause, which again is a material addition

at the time of deposition before the Court, neither such fact was

made before the police nor investigated by the police. The Court did

not  even  try  the  accused/respondent  for  the  alleged  offence  of

dowry demand, as prima facie no case was made out.

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9. The second issue which is of paramount consideration is the

testimony  of  the  eye-witnesses.  PW1  and  PW4  are  the

eye-witnesses, out of which PW1 is the father of the first victim and

maternal  grand-father  of  the  second  victim.  The  police

investigation  itself  disclosed  that  PW1  came  to  the  spot  after

information was sent to him by the police. The intimation was him

after the accused is alleged to have made the written FIR. In these

circumstances,  PW1 cannot be said to be an eye-witness to the

offence.  PW4  is  the  actual  eye-witness.  At  the  outset,  it  was

admitted by PW1 that PW4 was his distant brother living in the

same village. PW1 deposed that when he, along with Ishwar, was

going back to their village, they saw the victim Geeta (daughter of

PW1) lying in the pool of blood in the rear seat of the car with the

accused/respondent standing nearby with a country-made pistol.

The time was about 6:30 pm. He further deposed that the accused

respondent threatened both PW4 and Ishwar to flee away or else

they would meet the same fate. Upon this threatening, PW4 flew

away  from  the  spot  and  did  not  disclose  the  fact  to  anybody.

Neither he approached the police for help, nor did he inform this to

PW1. It was only after 3-4 days that he narrated the facts to PW1.

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Even after that, PW1 and PW4 did not approach the police to get

the statement of PW4 recorded. It was only after one month of the

incident that PW4 was summoned at the Police Station, Babugarh,

and  his  statement  was  recorded.  If  one  carefully  examines  the

deposition of PW4, it seems unnatural and not to be trustworthy.

PW4 in his testimony firstly stated that victim Geeta was shot in

his presence, but he did not know as to in which part of the body

she was shot.   Then he corrected himself  by deposing that  the

bullet had pierced her abdomen and blood started oozing out from

her body. This deposition is contradictory to the medical evidence

as the cause of death of Geeta was strangulation and she never

received any gun-shot injury. Moreover, the blood-stained clothes

of the victims or bullet ridden car parts were not recovered. It was

not investigated at all as to in which portion of the car the victims

were killed. Apart from this, there appears a material alteration in

the testimonies of the witnesses. Both PW1 and PW4 deposed that

they saw the dead body in the rear seat of the car, whereas the

police  investigation reveals that  the dead body was lying in the

front left side seat of the car. PW4 was thoroughly cross-examined

but more suspicions arose in his testimony. The conduct of PW4

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seemed unnatural that he did not sought for any help, nor did he

inform anybody in the village that a daughter from his village was

killed. PW4 admitted that he was accompanied by one Ishwar but

he  was  never  examined  in  order  to  strengthen  the  prosecution

case. PW4 also stated in his deposition that he did not remember

as to whether victim Geeta was wearing a saree or a suit, yet he

remembered  the  registration  number  of  the  car.  The  place  of

incident is proved to be secluded one and on a small link road,

which raises suspicion that PW4 saw the number plate in dark

hours of evening of the winter season.

10. Pertinent here is the FIR lodged by PW1. PW1 deposed that he

was informed at about 7.00 pm by the police that his son in-law

has lodged a confessional FIR of having committed the murder of

his wife Geeta and his daughter Rakhi.  Thereafter, PW1 reached

the place of incident at about 8.00 p.m. and since then he was a

witness to inquest proceedings of both the victims Geeta and Baby

Rakhi.  The  inquest  proceedings  of  Geeta  were  recorded  from

9:30-10:30  pm  and  inquest  proceedings  of  Baby  Rakhi  were

recorded from 11-11:55 pm., and thereafter, he proceeded to Police

Station, Simbhaoli, which under no circumstances can be before

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12.00 mid-night. Yet the FIR is stated to have been lodged at 10:05

pm. Moreover, the jurisdictional police station is of Babugarh and

PW1  specifically  deposed  that  he  crossed  the  Police  Station,

Babugarh,  en-route  to  Police  Station,  Simbhaoli,  from  Madhu

Nursing Home, yet he chose not to lodge the FIR at the nearest

police station but at Simbhaoli Police Station, which did not even

have  the  jurisdiction.  This  jurisdictional  flaw  came  to  the

knowledge of  PW1 after  3-4 days,  yet  he preferred not  to go or

pursue  his  case  at  the  proper  police  station.  In  the  FIR  the

informant (PW1) failed to mention the material facts, like he having

been informed about the incident by the police, his participation in

the  inquest,  receiving  ornaments  seized  by  the  police  from the

place  of  the  incident,  two  male  wrist  watches,  he  being

accompanied by two other person to the place of incident from his

village. Even the motive was not mentioned in the FIR. This makes

the  conduct  of  PW1 very  unnatural  and  suspicious.  The  above

facts,  clearly  suggest  that  the  second  FIR  is  an  outcome  of

manipulation, deliberation, concoction and is a sham ante-timed

document.

11. The  third  issue  is  the  confessional  FIR.  The  Trial  Court

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proceeded to believe the FIR as admission of guilt by the accused.

Not only the lodging of the FIR was delayed but it was suspected to

be ante-timed. The police investigation disclosed that FIR (Ext. Ka

22/23) was lodged by the accused/respondent and thereafter at

about 8:30pm PW1 was informed. However, as per the deposition

of PW1, he received the information about the FIR at about 7.00

pm, thereafter  he proceeded to the place of  incident and was a

witness to inquest proceedings. The accused respondent has taken

the defence that he was forced to scribe it at the dictation of the

Investigating Officer, after being assaulted at the police station and

it  was  registered  ante-timed.  The  series  of  events  above  stated,

thus,  cast  doubts  on the  time of  the  FIR.  The facts  of  the  FIR

remained disproved and hence Ext. Ka 22/23 is not reliable. The

Trial  Court  laid  undue stress  on the  non-explanation of  fact  of

death of the victims by the accused respondent. It is established

that the Trial Court based the conviction upon the testimony of

PW4,  yet  it  took a 'U'  turn to  shift  the  burden on the accused

respondent under Section 106 of the Indian Evidence Act, 1872, to

prove the incident. The High Court, in our considered view, rightly

reversed the finding on this  point  of  law.  Section 106 does not

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absolve the prosecution's burden under Section 101 to prove its

case of guilt of  the accused beyond reasonable doubt. As stated

above, the prosecution has miserably failed to explain the facts and

circumstances surrounding the lodging of both the FIRs, and the

testimony of PW4 is proved to be crooked. The prosecution case

was never a case of circumstantial evidence as the prosecution, till

the end laid stress on the testimonies of eye-witnesses.

12. At this juncture the defence version needs to be examined.

The  accused  respondent  stated  that  they  were  stopped  by  two

unknown persons and he stopped only because his wife recognized

those  persons  to  be  from  her  village.  The  two  persons  then

attempted to loot  them, and in the process two gun-shots were

fired  –  one  at  Baby Rakhi  and another  at  accused/respondent.

Victim  Geeta  was  strangulated  to  death.  Upon  perusal  of  the

medical evidences, the gun-shot injury to Baby Rakhi was proved

to be at point blank range, whereas no such assertion was made in

case  of  accused  respondent's  gun-shot  wound.  The  accused

respondent stated that he was hit by one fire-shot and he neither

knew upon whom second shot was fired, nor did he know as to

how his wife was killed. The accused respondent further deposed

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that  he  ran  towards  the  nearby  hotel  for  seeking  help.  The

sequence of  events and the injuries  do not  exclude the  defence

version. It is a settled law that the defence needs to only establish

its case based on probability, whereas the prosecution has to prove

the guilt of the accused beyond reasonable doubt.

13. The next aspect for our consideration is the recovery of the

country-made pistol and an empty cartridge. To begin with, it is

undisputed from the ballistic report that the gun was the same

from which the shot was fired and also the formal witnesses stood

the  test  which  established  that  the  gun was  recovered  in  their

presence.  The  prosecution strongly  relied  on this  evidence,  and

even  the  trial  court  was  convinced  by  this  piece  of  evidence.

However  the  High  Court  pointed  out  the  relevant  provision  i.e.

Section 27 of the Indian Evidence Act, 1872, and clarified that it is

not  the  material  recovery  which  has  to  be  proved,  but  the

disclosure based upon which the recovery is made. The pivotal fact

is making of the statement to the police which leads to recovery.

The High Court rightly pointed out that during the investigation,

no  statement  disclosing  the  fact/material  to  be  discovered  was

proved before the Court. In our opinion, the High Court is correct

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to point out this serious lacunae.

14. We have given our careful and thoughtful consideration to the

rival  contentions  put  forward  by  either  sides  and  have  also

scanned through the entire materials available on record, including

the impugned judgment. It appears that the prosecution has failed

to prove its case beyond reasonable doubt against the accused and

the  High  Court  was  justified  in  doubting  the  veracity  of  the

prosecution case and recording the verdict of acquittal, which does

not suffer from the vice of perversity.  

15. Thus,  in  the  light  of  the  above  discussion,  we  find  no

compelling and substantial reasons to interfere with the judgment

passed by the High Court. The appeals are, accordingly, dismissed.

…....................................J                                                       (Pinaki Chandra Ghose)

…...................................J                                                            (R.K. Agrawal) New Delhi; December 16, 2015.