18 Aug 2121

Merely on the ground of a technicality to deny benefit to the accused who is not on appeal would a gross injustice - Supreme Court of India

Case : Madhav v. State of Madhya Pradesh Criminal Appeal No. 852 of 2021 (@ Special Leave Petition (Crl.) No.2345 of 2019)

Court : Supreme Court of India

Bench : Justice Indira Banerjee and Justice V. Ramasubramanian

Decided on : 18 Aug 2121

The Relevant Statutes

Section 302 read with Section 34 of the Indian Penal Code,1860

Brief Facts & Procedural History

 Particulars

 Name of the person related to appeal

 Accused No.1 (A-1)

 Shri Raju Yadav

 Accused/Appellant No. 2 (A-2)

 Smt. Sahodra Bai

 Accused/Appellant No. 2 (A-3)

 Shri Madhav 

 Prosecution Witness (PW1)

 Dal Chandra

 Prosecution Witness (PW6)

 Kailash Yadav

 Prosecution Witness (PW7)

 Ruia Yadav

 Prosecution Witness (PW9)

 Sapna Yadav

 Prosecution Witness (PW14)

 R.K. Sen, Assistant Sub ­inspector

 Defence Witness (DW1)

 Smt. Radha Rani, mother of the deceased,

1. The present appeal is filed to challenge the conviction for the offence punishable under Section 302 read with Section 34 of the Indian Penal Code, 1860 and the sentence of life imprisonment and a fine of Rs.2500/­ imposed upon them by the 1st Additional Sessions Judge, Sagar, M.P., and confirmed by the Division Bench of the High Court of Madhya Pradesh at Jabalpur, A-2 and A-3 have come up with these criminal appeals.

2. The case of the prosecution was that on the night of 13.05.2008, at about 22.30 hrs., all the three accused, in furtherance of the common intention of all, attacked one Pappu @ Nand Kishore (brother of A­1) with a knife and lathis resulting in his death and that, thereafter, with the intention of screening the offenders from legal punishment, A­2 took the victim to the Government Hospital and sent false information to the Police as though the murderous assault on the victim was committed by two other persons by name Ruia and Kailash. While all the three accused were charged for offences punishable under Section 302 read with Section 34 The Indian Penal Code,1860, A­2 was charged additionally for the offences punishable under Sections 211 and 194 The Indian Penal Code,1860.

3. The PWs 6 and 7 were the persons whom A­2 had named as the accused, in the first information sent from the hospital on the night of 13.05.2008 PW-4 and 5 were related to PW-6 and 7. Actually, the prosecution treated PWs 4 and 5 as hostile at the request of the prosecution, after they stated during the chief examination that they did not see A­3 at the spot, which was contrary to their statement to the Police. The Sessions Court believed their testimony partly in so far as it related to the presence of   A­1 and A­2 at the spot but disbelieved their evidence, in so far as it related to the alleged assault on the victim.

4. The Sessions Court had taken evidence of PW-7 that merely related to an argument that the victim Pappu had with his brother Raju (A­1) nearly two hours before the time of occurrence of the crime. Interestingly the argument between the deceased and A­1   was purportedly in relation to an amount of Rs.250/­ borrowed by the deceased from PW­7, but not repaid by him

5. The Sessions Court considered and examined PW­9, who was aged 16 years at the time of occurrence, as the star witness. She was the niece of the deceased. Though her statement was recorded by the Police only on 03.06.2008, after 21 days of the date of occurrence, the Sessions Court proceeded to believe her evidence and convicted all the three accused of the offences punishable under Section 302 read with Section 34 the Indian Penal Code,1860. However, A­2 was acquitted of the charges under Sections 211 and 194 The Indian Penal Code,1860. All of them were sentenced to life imprisonment and also imposed a fine of Rs.2500/­.

6. A­1   and   A­2   being husband and wife respectively, together filed an appeal in Criminal Appeal No.1323 of 2009 and A­3 filed a separate appeal in Criminal Appeal No.727 of 2009, on the file of the Madhya Pradesh High Court, challenging their conviction and sentence. Relying mainly upon the testimony of the star witness PW­9 and the medical evidence regarding the cause of death, the High Court confirmed the conviction and sentence and dismissed the appeals.

7. Aggrieved by the dismissal of their appeals, A­2 and A­3 alone have come up with the above criminal appeals. However, A­1 has been arrayed as Respondent No.2, in the appeal filed by A­2.

The Issue of the Case

Whether appellants conviction for the offence punishable under Section 302 read with Section 34 of the Indian Penal Code,1860 imprisonment imposed by the 1st Additional Sessions Judge, Sagar, M.P., and confirmed by the Division Bench of the High Court of Madhya Pradesh at Jabalpur should be quashed and set aside?

The Observations of the Court

1. The Honourable Supreme Court noticed that quite strange and completely unfathomable as to how, where, why and at what point of time, the investigation that should have started against PWs 6 and 7 took a U­turn and proceeded towards the very informant and her family members. Right from the beginning, the defence taken by the accused was that due to political influence, they were made accused and the actual accused were made witnesses. This stands corroborated by the admission made by PW­14 (IO) that when he took up the investigation on 14.05.2008, there were demonstrations held by political parties. PW-14 during cross­examination that he was not aware, at the time when he started the investigation (in the morning of14.05.2008), whether the accused named in the FIR,  namely, PWs 6 and 7 were in police custody. But he admitted that after he took up an investigation on the morning of 14.05.2008, he did not arrest both of them. Thus, I.O didn’t even respect their role in the commission of the crime.

2. The Honourable Supreme Court is conscious of the fact that at times persons who commit a crime, themselves make/lodge the first information, so as to create an alibi of innocence. But even in such cases, the investigation would normally proceed first against those named as accused in the FIR and, thereafter, the needle of suspicion may turn against the informant himself.

3. The Honourable Supreme Court referred to Kari Choudhary vs. Mst. Sita Devi & Ors (2002) 1 SCC 714 where the Supreme Court noticed that there cannot be another prosecution and that too against the original informant. It held that the course adopted by the Court on the first complaint cannot disable the Police to continue to investigate the offence and to reach a final conclusion regarding the real culprit. Also, held that the course adopted by the Court on the first complaint cannot disable the Police to continue to investigate the offence and to reach a final conclusion regarding the real culprit.

The Decision Held by the Court

The Honourable Supreme Court using its power of Article 142 allowed A-1 to receive the benefit of the appeal despite not being part of it. Thus, the appeals filed by the appellants are allowed and the conviction handed over by the Sessions Court and confirmed by the High Court as against all the three accused, including A­1, are set aside.

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