PETITIONER: HALLU AND OTHERS Vs. RESPONDENT: STATE OF MADHYA PRADESH DATE OF JUDGMENT19/03/1974 BENCH: CHANDRACHUD, Y.V. BENCH: CHANDRACHUD, Y.V. BEG, M. HAMEEDULLAH CITATION: 1974 AIR 1936 1974 SCR (3) 652 1974 SCC (4) 300 CITATOR INFO : E&D 1992 SC 214 (8) ACT: Criminal trial--Case of rioting and murder--Correct approach to evidence--FIR if should be given by one having personal knowledge of the incident. HEADNOTE: The appellants, along with others, were charged with offences arising out of the murder of two persons. The trial court assessed the evidence on the following principles, namely : (a) in rioting cases discrepancies are bound to occur in the evidence but the duty of the court is to have regard to the broad probabilities of the case;(b) in a factious village independent witnesses are unwilling to come forward and therefore the testimony of eye witnesses who may be interested in the deceased cannot be discarded merely for that reason, provided of course the presence of the witnesses is proved; and (c) the First Information Report does not constitute substantive evidence in the case and the mere circumstance that there are certain omissions in it will not justify the case being disbelieved; and gave weighty reasons for holding that the 'guilt of the accused was not proved beyond reasonable doubt. In appeal, the High Court, while acquitting others, convicted the appellants under s. 302 read with s. 149 I.P.C. Allowing the appeal to this Court, HELD : The High Court ought not to have interfered with the order of acquittal ven if there Were two possible views of the evidence. [654D-E] (a) The High Court wrongly refused to attach any importance to the circumstance that the names of the appellants were not mentioned in the very first report to the police and that a totally different group of persons were mentioned as the assailants. The High Court held that that report could not be treated as the First Information Report under s. 154 Cr. P.C., because, the person who gave the Report had no personal knowledge of the incident.. But s. 154 does not require that the Report must be given by a person who has personal knowledge of the incident reported. It only speaks of an information relating to the commission of a cognizable offence given to an officer in-charge of a police station. [654H-655C] (b) Another report, given by the Kotwal of the village, was treated by the High, Courtas the First lnformation Report. But this report.wholly destroys the prosecution case, because, while the case of the prosecution was that the incident happened on the afternoon of the previous day, the Kotwal stated in his report that the incident had taken place during the early hours of the day on which he gave the report. [655E-G] (c) In that Report also the names of the assailants were not mentioned. The inference arising from the fact that the name of an accused is not mentioned in the First Information Report must vary from case to case; but the High Court wholly ignored the fact that even the Kotwal of the village had not come to know the names of the assailants though 20 hours had elapsed after the incident had taken place according to the prosecution. [655G-H] (d) The High Court refused to attach any importance to the discrepancies between the medical evidence and the evidence of the eye witnesses that the deceased were attacked with spears and axes, on the ground that the witnesses had not stated that 'the miscreants dealt axe blows from the sharp- side or used the spears as a piercing weapon'. The High Court explained the absence of incised or punctured wounds by observing, without any basis, that the accused might have used the blunt side. [656C-E] (e) It is generally not easy to find witnesses on whose testimony implicit reliance can be placed. It is always advisable to test the evidence of witnesses on the anvil 653 of 'objective circumstances of the case. But the High Court, in the present case, accepted the evidence of the two alleged eye-witnesses as implicitly reliable,without so testing their evidence. They claimed to have seen the incident in the afternoon, but if the incident took place at night, the whole superstructure of the prosecution must' fall. (656A,F-G) JUDGMENT:
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal, No.
142 of 1970.
Appeal by Special Leave from the Judgment and Order dated
the 27th March, 1970 of the Madhya Pradesh High Court at
Jabalpur in Criminal Appeal No. 451 of 1967.
D. Mookherjea, S,K. Bagga, S. Bagga and Yash Bagga, for the
appellants.
Ram Pan wani, H. S. Parihar and I. N. Shroff for the
Respondent.
The Judgment of the Court was delivered by
CHANDRACHUD, J. Eighteen persons were put up for trial
before the First Additional Sessions Judge, Durg (M. P.)
for offences arising out of the murder of two persons Jagdeo
and Padum. The learned Judge acquitted them of all the
charges but that order was partly set aside by the High
Court of Madhya Pradesh which confirmed the acquittal of
eight persons and convicted the remaining ten under section
302 read with section 149 of the Penal Code. This appeal by
special leave is directed against the judgment of the High
Court under which a sentence of life imprisonment has been
imposed on the appellants.
The case of the prosecution is that on the’ afternoon of May
9, 1966 a group of about 18 persons including the appellants
dragged Jagdeo and Padum. from their houses and attacked
them with lathis, spears and axes. In 1965 Jagdeo and Padum
were prosecuted along with 2 others for committing the
murder of one Daulatram, the Sarpanch of the village. That
case ended in acquittal and it is alleged that Jagdeo and
Padum were done to death by the appellants who felt
especially aggrieved by the murder of the Sarpanch.
Since the High Court has set aside the order of acquittal
passed by the Sessions Court it is of primary importance to
appreciate and understand the approach of the Sessions Court
to the evidence in the case and its conclusions thereon.
These. briefly, are the structural hallmarks of the Sessions
Court’s judgment: (1)In rioting cases discrepancies are
bound to occur in the. evidence but the duty of the court is
to have regard to the broad probabilities of the case; (2)
In a factious village independent witnesses are unwilling to
come forward and therefore the testimony of eye-witnesses
who are interested in the deceased cannot be discarded
merely for the reason that they are so interested, provided
ofcourse the presence of the witnesses is proved; (3) The
First Information Report does not constitute substantive
evidence in the case and the mere circumstance that there
are certain omissions in it will not justify the case being
disbelieved.
654
Applying these broad principles the Sessions Court rejected
the evidence of the eye-witnesses and acquitted the accused.
In doing this the court was influenced by these
circumstances: (1) There weft material discrepancies as
regards the place where Jagdeo was as aulted The police had
taken scratchings from the walls of Jagdeo’s house but did
not send them to the Chemical Analyser for ascertaining
whether they bore stains of blood; (2) The widows of Jadgeo
and Padum had stated that the two men were attacked with
spears and axes but according to the medical evidence there
were neither incised nor punctured wounds on the dead
bodies; (3) As many as three different Reports Were given to
the police station on the morning of the day following the
day of the incident but the names of the appellants were not
mentioned in any one of them; (4) In one of those Reports
the incident was stated to have happened at night whereas
the case of the prosecution is that the incident happened in
broad daylight-at about I p. m. and (5) There was no
reliable evidence showing that the accused had sufficient
motive to commit the murder.
These, in our opinion, are weighty reasons on the strength
of which the learned Sessions Judge was reasonably ;entitled
to come to the conclusion that the charge against the
accused was not proved beyond a reasonable doubt. At worst,
it may perhaps be possible to say that two views of the
evidence were reasonably possible. It is well established
that in such circumstances the High Court ought not to
interfere with the order of acquittal.
We will demonstrate in reference to a few important
circumstances as to why the High Court was not justified in
interfering with the order of acquittal. The incident is,
alleged to have taken place at about I p.m on May, 9, 1966
but it was not until the next morning that any one in the
village thought it necessary to report the incident to the
police. The first person who at all contacted the police
after the incident was Tibhu, the son of one of the murdered
persons, Jagdeo. Tibhu went to the Rancharia Police Station
at 8-15 a. m. on’ the 10th and told the police that on the
previous afternoon Jagdeo and Padum were murdered. In that
report Tibhu mentioned the names of as many as 10 persons
who according to him had participated in the assault but
none of the 18 accused found a place in that long list
except perhaps “Bentha Satnami” the reference to whom may by
a process of some stretching be construed as a reference to
one of the accused. Tibhu made an interesting disclosure in
his evidence that he had gone to the police for lodging
information about an altogether different incident and after
having lodged that information he was told by a woman called
Dharmin that the eighteen accused had committed the murder
of Jagdeo and Padum. Yet it is sarprising-that not only did
he not mention the names of the present ‘accused but he
mentioned the names of an altogether different group of
persons. This is in regard to the earliest information
given to the police in point of time.
The Report given by Tibhu thus suffers from a serious
infirmity and the Sessions Court was justified in citing
that infirmity as one of tile reas-
655
ons leading to the acquittal of the appellants. The High
Court however refused to attach any importance to the
circumstance that the names of the appellants were not
mentioned in the Report on the ground that though it was
earlist in point of time it could not be treated as the
First Information Report udder section 154, Criminal
Procedure Code as Tibhu had no personal knowledge of the
incident and the Report was based on hearsay evidence. In
this view the High Court clearly erred for section l54 does
not require that the Report must be given by a person who
has personal knowledge of the incident reported. The
section speaks of an information relating to the commission
of a cognizable offence given to an officer in charge of a
police station. Tibhu had given such information and it was
in consequence of that information that the investigation
had commenced.
At about 11-45 a. m. one Dharamdas who was examined in the
case as an eye-witness went to the police station and lodged
information about a totally different incident stating that
a boy whose name he did not know had beaten him with a
lathi. This of course cannot be regarded as a first
information report of the offence in question but the High
Court overlooked that if Dharamdas was an eye witness and if
he did go to the police station quite a few horrs after the
incident it was strange that he did not refer to the
incident at all. Dharamadas wriggled out of an inconvenient
situation by saying that as Tibhu had already reported the
incident to the police he himself did not think it necessary
to do so. The evidence of Dharmdas, we may mention, has
been rejected by the trial court as well as the High Court.
Then comes yet another Report made to the police and that
was made by one Vishal Das who was the Kotwar of the village
in between the two earlier Reports. Vishal Das’s Report,
Ex. P-47, shows that he gave the information at the police
station at about 10 a. m. on the 10th. This information,
according to the High Court,must be treated as the First
information Report in the case. This in our opinion. is
clearly erroneous. But apart from the legality of the
finding recorded by the High Court Vishat Das’s Report
almost wholly destroys the prosecution case. The case of
the prosecution is that the incident in question happened on
the afternoon of the 9th whereas Vishal Das stated in his
Report that the incident had taken place on the night of the
10th, meaning thereby in the early hours of the 10th.
Vishal Das also stated expressly-in his Report that he did
not know as to who had assaulted Jagdeo and Padum. The High
Court failed to give these circumstances their due weight
and observed on the contrary that the fact that the names of
the assailants were not mentioned by Vishal Das was not very
material as the assault was committed by. a large group of
17 or 18 persons. The inference arising from the fact that
the names of the accused are not mentioned in a First
Information Report must vary from case to case but the High
Court wholly ignored that even the Kotwar of the village had
not come to know the names of the assailants though 20 hours
hid elapsed after the incident had taken place and further
that according to him the incident had taken place at night.
It is obvious that if the incident had taken place at night
the
656
whole ‘Superstructure of the prosecution Case’ must fall.
The eyewitnesses Musammat Dev Kunwar and Musammat Mahatrin
claim in to hive seen the incident on the supposition that
it happened, on the after-noon of the 9th.
The High Court observed in its judgment that the trial court
was “mainly influenced by the so-called discrepancies in the
three reports lodged with the police”. We may point out
that the trial court was influenced by a variety of
considerations and the discrepancies in the three Reports
are not by any standard “so-called”. The discrepancies have
a fundamental importance for they tend to falsify the
evidence of the eye-witnesses and show that the incident
happened under cover of darkness and was in all probability
not witnessed by anyone.
The postmortem report prepared by Dr. N. L. Jain shows that
on the body of Jagdeo were found three bruises and a
hematoma. On the body of Padum were found four lacerated
wounds and two bruises. According to the eye-witnesse’s the
two men were attacked with lathis, spears and axes but that
clearly stands falsified by the medical evidence. Not one
of the injuries found on the person of Jagdeo. and Padum
could be caused by a spear or an axe. The High Court
however refused to attach any importance to this aspect of
the matter by saying that the witnesses had not stated that
the miscreants dealt axe blows from the sharp-side or used
the spear as a High Court axes and spears may piercing
weapon”., According to the have been used from the blunt
side and therefore the evidence of the eye-witnesses could
safely be accepted. We should have thought that normally
when the witness says that an axe or a spear is used there
is no warrant for supposing that what the witness means is
that the blunt side of the Weapon was used. If that be the
implication it is the duty of the prosecution to obtain a
clarification from the witness as to whether a sharp-edged
or a piercing .instrument was used as blunt weapon.
There is only one more observation which we would like to
make about the judgment of the High Court. ‘The High Court
has observed in its judgment at more than one place that
Musammat Dev Kunwar and Musammat Mahatrin were “implicity
reliable”. It is generally not easy to find witnesses on
whose testimony implicit reliance can be placed. It is
always advisable to test the evidence of witnesses on the
anvil of objective circumstances in the case. Not only did
the High Court not do that but by persuading itself to the
‘view that the two eye-witnesses were implicitly reliable it
denied to itself the benefit of a judicial consideration of
the infirmities to which we have briefly referred.
We therefore allow this appeal, set aside the order of’
conviction and sentence passed by the High Court and acquit
the appellants. They shall be released forthwith.
V. P. S. Appeal Allowed.
657