{"id":215941,"date":"1996-11-05T00:00:00","date_gmt":"1996-11-04T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/state-of-madhya-pradesh-vs-dhirendra-kumar-on-5-november-1996"},"modified":"2019-01-05T23:40:26","modified_gmt":"2019-01-05T18:10:26","slug":"state-of-madhya-pradesh-vs-dhirendra-kumar-on-5-november-1996","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/state-of-madhya-pradesh-vs-dhirendra-kumar-on-5-november-1996","title":{"rendered":"State Of Madhya Pradesh vs Dhirendra Kumar on 5 November, 1996"},"content":{"rendered":"
Supreme Court of India<\/div>\n
State Of Madhya Pradesh vs Dhirendra Kumar on 5 November, 1996<\/div>\n
Author: Hansaria.<\/div>\n
Bench: G.N. Ray, B.L. Hansaria<\/div>\n
           PETITIONER:\nSTATE OF MADHYA PRADESH\n\n\tVs.\n\nRESPONDENT:\nDHIRENDRA KUMAR\n\nDATE OF JUDGMENT:\t05\/11\/1996\n\nBENCH:\nG.N. RAY, B.L. HANSARIA\n\n\n\n\nACT:\n\n\n\nHEADNOTE:\n\n\n\nJUDGMENT:\n<\/pre>\n
\t\t      J U D G M E N T
\nHANSARIA. J.\n<\/p>\n
     This appeal is by the State and is directed against the
\njudgment of  the Madhya\t Pradesh High  Court  by  which\t the
\nrespondent was\tacquitted, on  appeal being preferred by him
\nagainst his  conviction under  section 302 for having caused
\nthe death of one Munibai on 20th May, 1982 around 9 a.m.\n<\/p>\n
2.    The  prosecution sought  to establish the guilt of the
\nrespondent by  adducing evidence  relating to  the motive of
\nthe crime; eye-witness to the occurrence; dying declaration;
\nand recovery  of  the  revolver\t from  the  custody  of\t the
\nrespondent by  which death  had been  caused, which revolver
\nhad been  stolen by the respondent, a police constable, from
\nthe Police  Malkhana in\t the night of 19th -20 th May, 1982.
\nThough the  trial court\t accepted all  these facets  of\t the
\nprosecution case, the High Court disbelieved all.\n<\/p>\n
3.    We  would examine\t the material  on record qua each of
\nthe aforesaid materials.\n<\/p>\n
\t\t\t (i) Motive\n<\/p>\n
4.   What led  to the  killing of  Munibai  had\t connection,
\naccording to  the prosecution, with the respondent having an
\n‘evil eye ‘ on her. It may be stated that the respondent was
\na tenant  and was  occupying a\tpart of\t the house, in which
\nlandlord PW.3-\tAngad, was living, whose daughter-in-law was
\ndeceased  Munibai.   The  family  came\tto  know  about\t the
\nrespondent having  an ‘evil  eye’ from the deceased herself,
\nwhich  was  reported  by  her  to  her\tmother-in-law  PW.2-
\nKosabai. This  was about  15  days  before  the\t occurrence.
\nKosabai in turn stated about this to her husband (PW.3), who
\nasked the respondent to vacate to premises.\n<\/p>\n
5.   Both PWs.2 and 3 have categorically deposed about these
\nfacts. PW.2  had, however, stated that she had spoken to her
\nhusband on  the very  day Munibai  told about the respondent
\nhaving an  ‘evil eye’,\twhich was  about 15  days before the
\noccurrence, whereas  the evidence  of PW.3  is that his wife
\nhad stated  to him  about this\taspect 7-8  days before\t the
\noccurrence. We\tdo not\tthink if  this little discrepancy is
\nenough to  discard the otherwise consistent evidence on this
\npoint, especially  when the  statement made  by PW.3 that he
\nhad asked  the\trespondent  to\tvacate\tthe  house  has\t not
\nchallenged in  cross-examination. We  also do not think that
\nomission of  the PW.3  to tell during investigation that his
\nwife had  asked him  to get  the house\tvacated is enough to
\ndisbelieve PW.2\t that she had asked her husband to do so.\n<\/p>\n
6.   We are,  therefore, of  the view  that the High Court’s
\nfinding on  this point\tis totally  against  the  weight  of
\nevidence on record.\n<\/p>\n
\t\t      (ii) Eye witness\n<\/p>\n
7.   PW.1- Radhabai,  a daughter  of PW.3,     is  the\tonly
\nwitness to  have deposed  about the  firing of\tshots by the
\nrespondent at  the house  in which  the deceased was living.
\nHer evidence  as to the manner in which Munibai was fired at
\nfinds absolute\tcorroboration from  the finding\t recorded by
\nthe  autopsy   surgeon\tPW.7.\tThe  High   Court,  however,
\ndisbelieved PW.1  on two grounds. First, by referring to her
\nevidence that  when she saw the respondent firing shots, she
\nhad asked  him as  to why  he was  assaulting her bhabhi. To
\nthis the  answer was “What has happened so far? I shall kill
\nyour whole  family”. After  saying  this,  the\taccused\t had
\npressed the  barrel of\tthe pistol on her chest. By then the
\nmother of  the witness had arrived, so too a neighbour named
\nPrakash. Uncle\tFaddi Ram  also came.  The  High  Court\t has
\nopined that  if this  was the position, PW.1’s evidence that
\nthe respondent\thad left  the premises\twithout being caught
\ncannot be accepted. Secondly, the High Court was of the view
\nthat the evidence of PW.1 about the deceased having made any
\ndying declaration  cannot be  accepted, because the deceased
\nwas really not in a position to make any statement.\n<\/p>\n
8.   Shri  Gambhir  has\t strenuously  urged  that  the\tHigh
\nCourt’s assessment  of the  evidence of\t PW.1 is  absolutely
\nreasonable and,\t in any case, that view being also possible,
\nwe may not find fault with the High Court’s judgment so much
\nso to set aside the acquittal.\n<\/p>\n
9.   We are,  however, of  the\tview  that  even  if  it  be
\naccepted that  the  mother,  the  neighbour  and  uncle\t had
\narrived before\tthe respondent had left the house, but as he
\nwas then  armed with a revolver and had made his way through
\nthe chhajja  by passing\t through the  portico, as  stated by
\nPW.1,  the   failure  of  these\t persons  to  apprehend\t the
\nrespondent cannot  cause any  dent to  the evidence of PW.1.
\nThe respondent\thaving threatened  to kill the whole family,
\nnobody could  have risked  his\tlife  to  apprehend  such  a
\ndesperate character.\n<\/p>\n
\t\t  (iii) Dying declaration\n<\/p>\n
10.  Insofar as\t dying declaration  is concerned,  was\tfind
\nthat the evidence of PW.7 (Dr. Badkul) is that the deceased,
\ndespite the  injuries found on her person, was in a position
\nto speak  for about 10-15 minutes of the assaults on her. As
\nthe  mother-in-law   was  in   the  ground   floor  and\t had
\nimmediately come  hearing cries,  time taken  could not have
\nbeen more 5-6 minutes. Therefore, the view taken by the High
\nCourt regarding the deceased being not in a position to make
\ndying declaration was really perverse.\n<\/p>\n
11.  It was very emphatically contended by Shri Gambhir that
\nas in the first Information Report (FIR) there is no mention
\nabout the  dying declaration, we should discard the evidence
\nof PWs.1  and 2 regarding dying declaration, because of what
\nhas been  pointed out by this Court in Ram Kumar v. State of
\nMadhya Pradesh,\t AIR 1975 SC 1024. We do not, however, agree
\nwith Shri  Gambhir, for the reason that what was observed in
\nRam Kumar’s  case, after   noting  the broad facts, was that
\nmaterial omission  in  the  FIR\t would\tcase  doubt  on\t the
\nveracity of  the prosecution  case, despite  the general law
\nbeing that  statements made  in\t the  FIR  can\tbe  used  to
\ncorroborate or\tcontradict its\tmaker. This  view  owes\t its
\norigin to  the thinking\t that if there by material departure
\nin the\tprosecution case as unfolded in the FIR, which would
\nso if  material facts  not mentioned in the FIR\t are deposed
\nto by  prosecution witnesses  in the  court, the  same would
\ncause dent  to the  edifice on which the prosecution case is
\nbuilt, as  the substratum  of the prosecution case then gets
\naltered. It  is apparent that prosecution cannot project two
\nentirely different  versions of\t a case.  This\tis  entirely
\ndifferent from\tthinking that some omission n the FIR  would
\nrequire disbelieving  of the  witnesses who depose about the
\nfact not  mentioned in the FIR. Evidence of witnesses has to
\nbe tested on its own strength or weakness. While doing so, f
\nthe fact  deposed be  a material  part of  prosecution case,
\nabout which,  however, no  mention was made in the FIR,\t the
\nsame would  be\tborne  in  mind\t while\tdeciding  about\t the
\ncredibility  of\t  the  evidence\t given\tby  the\t witness  in
\nquestion.\n<\/p>\n
12.  We, therefore,  do not agree with Shri Gambhir that Ram
\nKumar’s case  would require us to disbelieve the evidence of
\nPWs.1 and  2 regarding\tdying declaration  of the  deceased,
\nonly because  the FIR\thas  not mentioned about it. It is a
\nsettled law  that   FIRs are  not taken as encyclopaedia and
\nomission of  a fact  therein, even  if material,  cannot  by
\nitself make the witness deposing about the fact unbelievable
\nat that point.\n<\/p>\n
13.  PW.1 was thus not a witness to have been disbelieved on
\nthe two aforesaid grounds. Her evidence finds corroboration,
\nas already  mentioned, from  the  findings  of\tthe  autopsy
\nsurgeon. This  apart, her evidence the respondent had killed
\nMunibai by  firing has\talso received corroboration from the
\nrecovery  of   a  revolver   from  the\t possession  of\t the
\nrespondent,  to\t  which\t aspect\t  we  shall   advert  later,
\nsupplemented by ballistic expert’s report that very revolver
\nhad been used is firing at Munibai.\n<\/p>\n
\t\t (iv) Recovery of revolver.\n<\/p>\n
14.  As to the recovery of the revolver, Shri Gambhir’s very
\nstrenuous  submission  was  that  we  may  not\taccept\tthis
\ninasmuch as  out of  two witnesses  examined on\t this point,
\nPW.6 –\tSantoshilal, did  not support the prosecution. It is
\nno doubt  correct that\tPW.6 had to be declared hostile, but
\nhe is  a witness who has destroyed his own veracity because,
\nthough he  stated in  examination-in-chief  that  his  blank
\nsignatures were\t taken on  some papers by calling him to the
\npolice station\twhen he\t was passing  by the road, in cross-
\nexamination the\t version given\twas that  the signatures had
\nbeen taken when he had come to the police station to do hair
\ncut- he\t being a  barber by profession. These two statements
\ndefinitely  cannot   stand  together.\tThis  apart,  it  is
\ndifficult to believe that PW.6 would have actually given his
\nsignatures on  blank papers,  without making  any  complaint
\nabout the  same to  anybody. The  hostility of\tPW.6\thas,
\ntherefore, caused no damage to the prosecution case relating
\nto recovery,  about which  there is the confidence inspiring
\nevidence of PW.10.\n<\/p>\n
15.  Shri Gambhir  has made  effort, and strenuous effort at
\nthat to\t persuade us  to hold that the prosecution case that
\nthe respondent\thad stolen  the\t revolver  from\t the  Police
\nMalkhana is  unbelievable. This aspect had, however, come to
\nbe accepted  by the  trial court  because of the evidence of
\nPW.11, who  was the  Head Constable and was the in-charge of
\nthe Malkhana.  His evidence  is that  as nobody\t can perform
\nduty all  the 24  hours, practice has been that in the night
\nkeys of Malkhana are entrusted to Constable Muharrir, as was
\nthe respondent. He has deposed that on the night intervening
\n19 and\t20 May,\t respondent was detailed in the night, which
\naspect\tis  mentioned  in  the\tRojnamcha.  Thereafter,\t the
\nwitness left  to his  house around 10 p.m. and returned back
\nnext day  morning at  about 8.30  a.m. The  respondent\tthen
\nhanded over  the keys.\tOn  this  being\t done,\tthe  witness
\ndesired that  the respondent  could go\tafter  checking\t the
\nMalkhana. The respondent said that he would come back within
\nfive minutes after taking tea and the checking could be done
\nthereafter. As\tthe respondent\tdid not return, Malkhana was
\nopened and  PW.11 found\t that one  revolver of .455 bore was
\nmissing. This  was immediately\tbrought to the notice of the
\nStation House Officer. The reporting was by Ex. 11-C and was
\naround 8.40  a.m. In  this  exhibit  the  substance  of\t the
\naforesaid  evidence  finds  place  and\tthe  number  of\t the
\nrevolver has also been mentioned, which is 356354. It is the
\nrevolver  bearing   this  number   which  was\tsubsequently
\nrecovered from\tthe respondent\ton 20th\t May  itself  around
\n11.30 a.m.  This fast  movement was because, after receiving
\nthe information\t of missing  of the  revolver,\tthe  Station
\nHouse  Officer\twent  to  the  place  where  respondent\t was
\nresiding which, as already noted, was a part of the house it
\nwhich Munibhai\twas residing.  Gong there, the Station House
\nOfficer knew about the killing and this led to the search of
\nthe respondent,\t about whom PW.1 had stated that he had left
\ntowards the filed.\n<\/p>\n
16.  Despite the  aforesaid evidence  being on\trecord, Shri
\nGambhir has  urged that\t the prosecution  case\trelating  to
\nstealing was  rightly disbelieved  by the High Court because
\nthe rules  did not  permit giving of Malkhana key to anybody
\nelse. Though this is correct, but then as deposed by PW.11 a
\npractice to  that effect had grown, which came to be adopted
\nbecause of  the physical  impossibility of any body to be at
\nthe Police  Station throughout\t24 hours.  It may be pointed
\nout that  when PW.11 deposed about this practice, he was not
\nchallenged in cross-examination.\n<\/p>\n
17.  Yet another  contention made  in this  regard  by\tShri
\nGambhir what that as a departmental proceeding against PW.11
\nis pending  regarding this  very aspect, the same shows that
\neven, according\t to the\t authorities, PW.11  might have been
\nresponsible for\t stealing the revolver. As the charge framed
\nin the departmental proceeding is not available to us, we do
\nnot know  what precisely  has been alleged against PW.11. It
\nmay be\tthat the  allegation is that he allowed the stealing
\nto take\t place. As,  however, the  proceeding is  said to be
\npending, we would observe that whatever we have held in this
\ncase relating  to stealing  of revolver would not be used by
\nPW.11 in  the proceeding  to demand his exoneration from the
\ncharge as framed against him.\n<\/p>\n
18.  The second reason given by the High Court to disbelieve
\nthis part  of prosecution  s that the Rojnamcha had not been
\nproperly maintained, as there was no pagination in it. PW.11
\ngave  valid   explanation  for\t this-the  same\t being\tthat
\nprescribed forms  being not  available, the Traffic Register
\nwas used  as Rojnamcha.\t Judicial notice can be taken of the
\nfact  that   many  a   time  prescribed\t registers  are\t not
\navailable, and so, they are kept in non-prescribed way. Many
\na time\teven a\tCase Diary  is not  maintained n  prescribed
\nform.\n<\/p>\n
19.  Shri Gambhir then referred to the omission in Ex.P.11-C
\nabout the  respondent’s statement  to PW.11 n the morning of
\n20th that he would come back after taking tea, as deposed by
\nPW.11 in  court. We  do not think if this omission can throw
\nany doubt  on the  very prompt\treport about  missing of the
\nrevolver and  about Malkhana  key having  been given  to the
\nrespondent on  the night  of 19th  May. In  Ex.P.11  it\t was
\nmentioned  that\t  the  Head  Constable\tsuspected  that\t the
\nrespondent had\tstolen the  revolver. The  recovery of\tthat
\nrevolver from  the person  of the  respondent  on  20th\t May
\nitself would  bear the\tstatement  of  PW.11  regarding\t the
\nrespondent having  had been  stolen the\t revolver. It may be
\npointed about  that under Illustration (a) to section 114 of
\nEvidence Act,  it is permissible to presume that if a man is
\nin possession  of stolen  goods soon  after the theft, he is
\nthe thief.\n<\/p>\n
20.  The  aforesaid   being  the   position  regarding\t the
\nmaterials brought on record by the prosecution to bring home
\nthe guilt of the respondent, we are of the firm opinion that
\nthe High  Court has  taken a  view which  cannot  be  called
\nreasonable at all. The law, therefore, permits this Court to
\nset aside the acquittal, which we hereby do.\n<\/p>\n
21.  This leaves for consideration the question of sentence.
\nThe trial court had awarded the death sentence; but we would
\nrefrain from  doing so\tfor two\t reasons: (1) the present is
\nnot a  case of\t“rarest of  the\t rare”\ttype;  and  (2)\t the
\nrespondent having  enjoyed acquittal ever since High Court’s
\njudgment dated\t19.11.1982, death sentence, even if it would
\nhave been merited, would not have been imposed by us. We may
\nrefer in this context to the decision of this Court in State
\nof Haryana  vs. Sher  Singh,<\/a> 1981  (2) SCC 300, to which our
\nattention has  invited by  Shri Gambhir.  In that case t has
\nbeen stated in para 21 that despite the murder being ghastly
\nand brutal  deserving death  sentence,\tas  awarded  by\t the
\nSessions Judge,\t the same  was not  being awarded because of
\nthe acquittal  enjoyed by  the convict\tafter  High  Court’s
\njudgment.\n<\/p>\n
21.  The impugned  judgment is,\t therefore, set aside and we
\nconvict the  respondent under section 302, for which offence
\nwe  award   the\t sentence  of  imprisonment  for  life.\t The
\nrespondent is  on bail;\t his hail  bonds are  cancelled.  He
\nwould be taken in custody to serve out the sentence.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India State Of Madhya Pradesh vs Dhirendra Kumar on 5 November, 1996 Author: Hansaria. Bench: G.N. Ray, B.L. Hansaria 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-215941","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nState Of Madhya Pradesh vs Dhirendra Kumar on 5 November, 1996 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/state-of-madhya-pradesh-vs-dhirendra-kumar-on-5-november-1996\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"State Of Madhya Pradesh vs Dhirendra Kumar on 5 November, 1996 - 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