MADHAVversusSTATE OF MADHYA PRADESH

                        [2021] 8 S.C.R. 451                              451


                              MADHAV                                     A
                                   v.
                  STATE OF MADHYA PRADESH
                  (Criminal Appeal No. 852 of 2021)
                           AUGUST 18, 2021
 [INDIRA BANERJEE AND V. RAMASUBRAMANIAN, JJ.]                           B
       Penal Code, 1860: s. 302 rw s. 34 – Murder – Prosecution
case that three accused, A1, A2 and A3 in furtherance of common
intention, attacked, brother of A1 with weapons, resulting in his
death – A2 took victim to the hospital and sent information to the
police that the assault was committed by PW 6 and 7 – Conviction         C
and sentence of A1, A2 and A3 u/s. 302 rw s. 34 by the courts
below – Appeal by A2 and A3 before this Court – Held: Right from
the beginning there was an attempt on the part of the prosecution to
shield the culprits named in the first FIR, on account of political
pressure, as admitted by the IO and corroborated by the main witness
– IO carried out the investigation with the intention to turn the        D
informant and her family members as the accused and allow the
real culprits named in the FIR to escape – Admissions on the part of
the main witness made the prosecution case completely untrustworthy
– Prosecution witness who allegedly witnessed the seizure turned
hostile – Courts below overlooked the important admissions made
by the IO and the main witness – They did not take into account the      E
normal human conduct – There was failure on the part of the
prosecution to establish that the blood stains contained on the knife
and lathis were that of the deceased – Furthermore, it is unbelievable
that the three accused (A-1, 2 and 3) caused the death of the victim
due to his failure to return Rs.250/-, due and payable to a third        F
person (PW-7) and that thereafter, they deliberately named PW-7 as
the accused – Thus, order of conviction of A2 and A3 by the courts
below, set aside – Since the story of the prosecution has been
disbelieved in entirety, to deny the benefit of the said conclusion to
A1 merely on ground of a technicality that he is not on appeal would
be unjustified – Conviction of A12 also set aside.                       G
       Criminal law: Alibi – Plea of – Effect on investigation – Held:
At times persons committing a crime, themselves lodge the first
information, to create an alibi of innocence – However, in such
cases the investigation would normally proceed first against those
named as accused in the FIR and, thereafter, the suspicion may
turn against the informant himself.                                      H

                                 451
452            SUPREME COURT REPORTS                      [2021] 8 S.C.R.


A            Constitution of India: Art. 142 – Power under – Scope of –
      Benefit of the instant appeal to co-accused who has not come up on
      appeal – Denial of – Held: Denial of the benefit of the conclusion
      of the matter in the appeal, to the said co-accused merely on the
      ground of a technicality that he is not on appeal would be gross
      injustice, when this Court is empowered u/Art. 142 to do complete
B
      justice – On facts, this Court has not proceeded on the basis of
      individual overt acts on the part of accused in appeal, to conclude
      that they are entitled to acquittal – Thus, conviction and sentence
      of the co-accused also set aside.
            Allowing the appeals, the Court
C
             HELD: 1.1 It is 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 U-turn and
      proceeded towards the very informant and her family members.
      Right from the beginning, the defence taken by the accused was
D     that due to political influence, they were made accused and the
      actual accused were made witnesses. This stands corroborated
      by the admission made by PW-14 (IO) that when he took up the
      investigation on 14.05.2008, there were demonstrations held by
      political parties. What is shocking is the admission made by PW-
E     14 during cross-examination that he was not aware, at the time
      when he started the investigation in the morning, whether the
      accused named in the FIR, namely, PWs 6 and 7 were in police
      custody. But he admitted that after he took up investigation, he
      did not arrest both of them. The reason why the IO did not even
      suspect the role of PWs 6 and 7 in the commission of the crime,
F     remains unexplained. This 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
G     needle of suspicion may turn against the informant himself. [Para
      15, 16, 17][460-G-H; 461-A-D]
            1.2 It happens at times that the real culprit lodges the first
      information against known or unknown persons, to misdirect the
      investigation of an offence. But even in such a case, it is only
H     during the course of investigation into the first FIR that the case
         MADHAV v. STATE OF MADHYA PRADESH                           453


may take a U-turn. When it does, the informant may also have to      A
face additional charges for the offences punishable under various
provisions of Chapter XI of IPC. This is exactly the reason why,
in this case, the prosecution charged A-2 for the offences
punishable under sections 194 and 211 IPC. But the trial court
acquitted her of the charges under these two provisions. [Para
                                                                     B
19][462-D-F]
      1.3 The story built by the prosecution was that A-1 had a
quarrel with his brother (the deceased), sometime before the
commission of the crime, over the non-repayment of a sum of
Rs.250/- by the deceased to PW 6 and that in the quarrel, A-1 got
injured and that thereafter all the 3 accused attacked the victim    C
resulting in his death. A-1 had no reason to take up the cause of
PW 6 and go to the extent of committing the murder of his own
brother. But unfortunately, the Trial Court believed this story on
the basis of the testimony of DW-1, the mother of both A-1 and
the deceased. All that DW-1 stated in her testimony was that A-1     D
questioned the deceased as to why he was not returning the money
due and payable to PW 6. [Para 25][464-E-H]
       1.4 Coming to the testimony of PW-9, projected as the star
witness for the prosecution, the explanation given by the IO for
recording her statement, after 21 days of the occurrence of the      E
crime, is unbelievable. In any case, if her evidence is to be
accepted, it should be accepted in total. One portion of her
evidence is extracted, where she categorically admitted that PW
6 and 7 were originally taken into custody and that there were
protests from the people of the caste to which they belonged and
that those people also put pressure on the police to give a clean    F
chit to PW 6 and 7. These admissions on the part of PW-9, made
the prosecution case completely untrustworthy. [Para 26][464-
G; 465-A-B]
      1.5 Apart from the fact that the witnesses in whose presence
the seizure of the weapons was allegedly effected, had turned        G
hostile, there was also one more thing. There is nothing on record
to show that the blood stains said to have been present in those
weapons, matched with the blood of the deceased. Unfortunately,
the High Court proceeded on a wrong premise that there was
scientific evidence to point to the guilt of the accused, merely     H
454            SUPREME COURT REPORTS                      [2021] 8 S.C.R.


A     because as per the FSL Report, the knife and lathis said to have
      been seized by the police, contained stains of human blood. The
      prosecution has not established either through the report of FSL
      or otherwise, that the blood stains contained in the knife and lathis
      were that of the deceased. [Para 27][465-B-E]
B            1.6 PW-1, who allegedly witnessed the seizure had turned
      hostile. Right from the beginning there has been an attempt on
      the part of the prosecution to shield the culprits named in the
      first FIR, on account of political pressure, as admitted by PW-14
      and corroborated by PW-9, whom the prosecution considered to
      be a star witness. Unfortunately, both the Sessions Court and the
C     High Court completely overlooked these aspects. [Para 33][467-
      B-D]
            1.7 The investigation in this case was carried out by PW-
      14, not with the intention of unearthing the truth, but for burying
      the same fathom deep, for extraneous considerations and that it
D     was designed to turn the informant and her family members as
      the accused and allow the real culprits named in the FIR to escape.
      Both the Sessions Court as well as the High Court completely
      overlooked some of the important admissions made by PWs 9
      and 14. They have not even taken into account the normal human
E     conduct. It is unbelievable that A-1, A-2 and A-3 caused the death
      of A-1’s brother due to the failure of the victim to return an amount
      of Rs.250/- due and payable to PW-7 and that thereafter, they
      deliberately named PW 7 as the accused. It is equally unbelievable
      that one of the persons who killed the victim, in the presence of
      witnesses, took the body of the victim to the hospital in an
F     autorickshaw. The normal human behaviour in such circumstances
      will be either to flee the place of occurrence or to go to the police
      station to surrender, except in cases where they are intelligent
      and seasoned criminals. Neither did happen. [Para 35][467-E-H;
      468-A]
G           1.8 It is noted that A-1 has not come up on appeal. Though
      the counsel for the State submitted that A-1’s case stands on a
      completely different footing and that therefore, in the absence of
      an independent appeal by him, he cannot be granted any relief,
      cannot be accepted. This is not a case where this Court have
H
          MADHAV v. STATE OF MADHYA PRADESH                             455


proceeded on the basis of individual overt acts on the part of A-       A
2 and A-3-appellants to conclude that they are entitled to acquittal.
This is a case where in entirety, the story of the prosecution is
disbelieved. Therefore, to deny the benefit of the said conclusion
to A-1 merely on the ground of a technicality that he is not on
appeal would be to close eyes to a gross injustice, especially when
                                                                        B
this Court is empowered under Article 142 to do complete justice.
[Para 36][468-A-D]
      1.9 The conviction by the Sessions Court and upheld by
the High Court as against all the three accused including A-1 are
set aside. [Para 37][468-D]
                                                                        C
      Kari Choudhary v. Mst. Sita Devi & Ors. (2002) 1 SCC
      714 : [2001] 5 Suppl. SCR 588; Raghav Prapanna
      Tripathi v.The State of Uttar Pradesh AIR 1963 SC 74
      : [1963] SCR 239; Kansa Behera v.State of Orissa
      (1987) 3 SCC 480 : [1987] 2 SCR 1096; Surinder Singh
      v. State of Punjab (1989) 2 Suppl. SCC 21; Raghunath,             D
      Ramkishan & Ors. v. State of Haryana (2003) 1 SCC
      398 : [2002] 4 Suppl. SCR 130; Sattatiya v. State of
      Maharashtra (2008) 3 SCC 210; State of Rajasthan v.
      Teja Ram and Others (1999) 3 SCC 507; Gura Singh
      v. State of Rajasthan (2001) 2 SCC 205 : [2000] 5                 E
      Suppl. SCR 408; Prabhu Dayal v. State of Rajasthan
      (2018) 8 SCC 127; R. Shaji v. State of Kerala (2013)
      14 SCC 266 : [2013] 3 SCR 1172; Prabhu Babaji Navle
      v. State of Bombay AIR 1956 SC 51; John Pandian v.
      State (2010) 14 SCC 129 : [2010] 15 SCR 1012; Sunil
      Clifford Daniel v. State of Punjab (2012) 11 SCC 205 :            F
      [2012] 7 SCR 1100; Balwan Singh v. State of
      Chhattisgarh (2019) 7 SCC 781 : [2019] 11 SCR 1 –
      referred to.
                       Case Law Reference
                                                                        G
[2001] 5 Suppl. SCR 588            referred to          Para 18
[1963] SCR 239                     referred to          Para 28
[1987] 2 SCR 1096                  referred to          Para 28
(1989) 2 Suppl. SCC 21             referred to          Para 28
                                                                        H
456            SUPREME COURT REPORTS                        [2021] 8 S.C.R.


A     [2002] 4 Suppl. SCR 130             referred to           Para 28
      (2008) 3 SCC 210                    referred to           Para 28
      (1999) 3 SCC 507                    referred to           Para 29
      [2000] 5 Suppl. SCR 408             referred to           Para 30
B     (2018) 8 SCC 127                    referred to           Para 30
      [2013] 3 SCR 1172                   referred to           Para 31
      AIR 1956 SC 51                      referred to           Para 31
      [2010] 15 SCR 1012                  referred to           Para 31
C
      [2012] 7 SCR 1100                   referred to           Para 31
      [2019] 11 SCR 1                     referred to           Para 32
           CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
      No.852 of 2021.
D          From the Judgment and Order dated 19.09.2018 of the High Court
      of Madhya Pradesh at Jabalpur in CRA No.727 of 2009.
            With
            Criminal Appeal No.853 of 2021
E            Ardhendumauli Kumar Prasad, Ms. Taruna Ardhendumauli
      Prasad, Amit Arjariya, Karan Singh Dalal, Ritaj Kacker, Deepkaran
      Dalal, Ashish Madaan, Advs. for the Appellant.
            Shreeyash U. Lalit, Pashupati Nath Razdan, Mirza Kayesh Begg,
      K.P. Jayram, Ms. Maitreyee Jagat Joshi, Advs. for the Respondent.
F           The Judgment of the Court was delivered by
            V. RAMASUBRAMANIAN, J.
            1. Leave granted.
             2. Challenging their conviction for the offence punishable under
G     Section 302 read with Section 34 of the Indian Penal Code, 1860 (“IPC”
      for short) and the sentence of life imprisonment and a fine of Rs.2500/
      - imposed upon them by the Ist Additional Sessions Judge, Sagar, M.P.,
      and confirmed by the Division Bench of the High Court of Madhya
      Pradesh at Jabalpur, Accused Nos. 2 and 3 have come up with these
      criminal appeals.
H
           MADHAV v. STATE OF MADHYA PRADESH                                    457
               [V. RAMASUBRAMANIAN, J.]

      3. We have heard Mr. Ardhendumauli Kumar Prasad and Mr.                   A
Amit Arjariya, learned counsel appearing for the appellants and Shri
S.U. Lalit, learned counsel appearing for the State.
      4. Smt. Sahodra Bai (hereinafter referred to as “A-2”), who is
the appellant in one of these appeals, is the sister of Shri Madhav
(hereinafter referred to as “A-3”) who is the appellant in the other            B
appeal. Shri Raju Yadav who was Accused No.1 is the husband of
Sahodra Bai.
       5. 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 A-1)            C
with a knife and lathis resulting in his death and that, thereafter, with the
intention of screening the offenders from legal punishment, A-2 took the
victim to the Government Hospital and sent a 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                D
Section 34 IPC, A-2 was charged additionally for the offences punishable
under Sections 211 and 194 IPC.
       6. The prosecution mainly relied upon (i) the purported eye-witness
account of PWs 4, 5, 6, 7 and 9, (ii) the medical evidence regarding the
cause of death; and (iii) the recovery of the weapons used for the              E
commission of the offence namely, knife and lathis, from the houses of
the accused and the report of the Forensic Sciences Laboratory (“FSL”
for short).
        7. Out of the witnesses on whose ocular testimony, heavy reliance
was placed by the prosecution, PWs 6 and 7 were the persons whom A-             F
2 had named as the accused, in the first information sent from the hospital
on the night of 13.05.2008. PWs 4 and 5 were related to PWs 6 and 7.
Actually the prosecution treated PWs 4 and 5 as hostile, after they stated
during chief examination that they did not see A-3 at the spot, which
was contrary to their statement to the Police. The Sessions Court believed      G
their testimony partly in so far as it related to the presence of A-1 and A-
2 at the spot but disbelieved their evidence, in so far as it related to the
alleged assault on the victim. But the High Court proceeded on the footing,
without any rhyme or reason, as though PWs 4 and 5 were independent
witnesses who corroborated the testimony of PW-9. The High Court
                                                                                H
458            SUPREME COURT REPORTS                          [2021] 8 S.C.R.


A     even overlooked the fact that the Trial Court declared them as hostile at
      the request of the prosecution.
            8. PW-6 was a person by name Kailash Yadav and PW-7 was a
      person by name Ruia Yadav. As stated in the previous paragraph, PWs
      6 and 7 were the ones who were named as accused, in the First
B     Information Report FIR No.331 of 2008 registered on 13.05.2008, on
      the basis of the intimation sent by A-2 from the hospital. The Sessions
      Court disbelieved the evidence of PW-6 in entirety, but accepted one
      portion of the statement of PW-7, on the basis of the so called
      corroboration by one Smt. Radha Rani, mother of the deceased, examined
      on the side of the defence as DW-1. But that portion of the evidence of
C     PW-7 taken by the Sessions Court to be probable, merely related to an
      argument that the victim Pappu had with his brother Raju (A-1) nearly
      two hours before the time of occurrence of the crime. Interestingly the
      argument between the deceased and A-1 was purportedly in relation to
      an amount of Rs.250/- borrowed by the deceased from PW-7, but not
D     repaid by him.
             9. The Sessions Court considered Sapna Yadav, examined as PW-
      9, 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,
E     the Sessions Court proceeded to believe her evidence and convicted all
      the three accused for the offences punishable under Section 302 read
      with Section 34 IPC. However, A-2 was acquitted of the charges under
      Sections 211 and 194 IPC. All of them were sentenced to life
      imprisonment and also imposed a fine of Rs.2500/-.

F            10. A-1 and A-2 being husband and wife respectively, together
      filed an appeal in Criminal Appeal No.1323 of 2009 and A-3 filed a
      separate appeal in Criminal Appeal No.727 of 2009, on the file of the
      High Court, challenging their conviction and sentence. Relying mainly
      upon the testimony of the star witness PW-9 and the medical evidence
      regarding the cause of death, the High Court confirmed the conviction
G     and sentence and dismissed the appeals. Aggrieved by the dismissal of
      their appeals, A-2 and A-3 alone have come up with the above criminal
      appeals. However, A-1 has been arrayed as Respondent No.2, in the
      appeal filed by A-2.
            11. Drawing our attention to the inherent contradictions in the
H     testimonies of PWs 9 and 14, and the glaring inconsistencies between
          MADHAV v. STATE OF MADHYA PRADESH                                   459
              [V. RAMASUBRAMANIAN, J.]

their testimonies, the learned counsel for the appellants argued that the     A
conviction was based entirely upon surmises and that such a conviction
is wholly unsustainable in law.
       12. However, placing reliance upon the seizure of the knife and
lathis allegedly used for the commission of the offence, from the houses
of the accused under seizure memos and the report received from FSL,          B
it was argued by the learned counsel representing the State that the
prosecution had established the guilt of the accused beyond reasonable
doubt and that the Sessions Court and the High Court were justified in
relying upon the evidence of PW-9 and others.
     13. We have carefully considered the material on record and the          C
submissions of the learned counsel on both sides.
       14. A close scrutiny of the sequence of events that happened
from the date of occurrence of the crime, namely, 13.05.2008, would
show that the investigation in this case, instead of proceeding in pursuit
of truth, had proceeded towards burying the truth. This can be best           D
appreciated by narrating the sequence of events as under:-
      (a) Admittedly, an information was received by one Shri G.P.
          Dwivedi working as Assistant Sub-inspector in Moti Nagar
          Police Station, Sagar District at about 23.00 hrs. on 13.05.2008
          from the Government Hospital (Tili) about a person having           E
          been brought dead. The information had been sent at the
          instance of A-2, who had taken the body of the victim in an
          auto rickshaw to the hospital. This Assistant Sub Inspector
          was examined as PW-12. According to PW-12, a FIR was
          registered in FIR No.331 of 2008 at 23.50 hrs. showing the
          name of the complainant as Smt. Sahodra Bai (A-2) and               F
          showing Ruia Yadav and Kailash Yadav (later examined as
          PWs 6 and 7) as the accused.
      (b) Admittedly the investigation was taken over by another
          Assistant Sub-inspector by name R.K. Sen, examined as PW-
          14. According to him, he started the investigation in the morning   G
          of 14.05.2008. Therefore, in the normal course, one would
          have expected the investigation first to proceed against Ruia
          Yadav and Kailash Yadav, who were named as accused. But
          interestingly right from the beginning, the investigation carried
          out by PW-14 proceeded in the reverse gear, by making the
                                                                              H
460            SUPREME COURT REPORTS                           [2021] 8 S.C.R.


A               informant, namely, Sahodra Bai and her husband and brother
                as accused and the original accused Ruia and Kailash as
                witnesses. One would have expected an Investigating Officer,
                who takes up investigation in the morning of 14.05.2008, in
                relation to a FIR registered at 23.50 hours the previous night,
                to record the statements of the informant, visit the place of
B
                commission of the crime, secure the accused and collect
                evidence to find out the truth. But in this case, the IO, right
                from the beginning, had turned the case entirely against the
                informant and her family. The reason for the IO doing this, is
                not far to seek.
C           (c) During cross-examination, PW-14 admitted that there were
                demonstrations by political parties when the investigation was
                taken up by him on 14.05.2008 against Ruia and Kailash. This
                is perhaps why, the IO first took A-1 to the Medical Officer
                (examined as PW-2) of the District Hospital for medical
D               examination on 15.05.2008 and got a report to the effect that
                there were several abrasions on the back of A-1. On the basis
                of such a report, the IO concluded that these abrasions must
                have been caused during the scuffle that the deceased had
                with A-1.
E           (c) After obtaining the medical report about the injuries on the
                body of A-1 on 15-5-2008, PW-12 admittedly called all the
                three accused to the police station in the morning of 16.05.2008
                and effected their arrest. In other words, within three days of
                the commission of the crime, persons named as accused in
                the FIR were made witnesses for the prosecution and the
F               informant, her husband and her brother were made as accused.
            (d) It is only after 18 days of effecting the arrest of all the three
                accused, that the statement of PW-9, the so called star witness,
                was recorded by the IO.

G            15. It is 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 U-turn 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
H
             MADHAV v. STATE OF MADHYA PRADESH                                 461
                 [V. RAMASUBRAMANIAN, J.]

stands corroborated by the admission made by PW-14 (IO) that when              A
he took up the investigation on 14.05.2008, there were demonstrations
held by political parties.
       16. What is shocking is the admission made by PW-14 during
cross-examination that he was not aware, at the time when he started
the investigation (in the morning of 14.05.2008), whether the accused          B
named in the FIR, namely, Ruia and Kailash Yadav (later examined as
PWs 6 and 7) were in police custody. But he admitted that after he took
up investigation in the morning of 14.05.2008, he did not arrest both of
them.
      17. The reason why the IO did not even suspect the role of Ruia          C
and Kailash Yadav in the commission of the crime, remains unexplained.
We are 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.                D

       18. A useful reference can be made in this regard to the decision
of this Court in Kari Choudhary vs. Mst. Sita Devi & Ors.1 It was a
case where the mother-in-law of the victim first filed a complaint of
culpable homicide against unknown persons, who, allegedly sneaked into
the bedroom of her daughter-in-law and murdered her. During the                E
progress of the investigation into the FIR registered on the basis of the
mother-in-law’s complaint, the Police found that the murder was
committed pursuant to a conspiracy hatched by the first informant and
her other daughters-in-law. Therefore, the Police sent a report to the
Court to the effect that the allegations in the FIR registered at the behest   F
of the mother-in-law were false. The Police thereafter registered a fresh
FIR and continued the investigation against the original informant and
others. The original informant filed a protest petition against the Report
of the Police on the first FIR, but the same was rejected by the Chief
Judicial Magistrate (“CJM”for short). However, the said order was
over-turned by the High Court in a revision and the CJM was directed to        G
conduct an inquiry under Section 202 of the Code. Thereafter, the Police
filed a charge-sheet against the original informant (mother-in-law) and
two others. The CJM committed the case to Sessions and the Sessions
Judge framed a charge for the offence punishable under Section 302
1
    (2002) 1 SCC 714                                                           H
462            SUPREME COURT REPORTS                           [2021] 8 S.C.R.


A     read with Section 34 but the mother-in-law approached the High Court
      and got the proceedings quashed. That order became the subject matter
      of appeal before this Court in Kari Choudhary (supra). The main
      contention of the original informant in that case was that once the order
      of the CJM rejecting the protest petition was set aside by the High Court,
      the logical consequence of such an order was that the conclusion reached
B
      by the Police that the original complaint was false, also stood rejected.
      Therefore, it was contended that there cannot be another prosecution
      and that too against the original informant. While rejecting the said
      contention, this Court held that the course adopted by the Court on the
      first complaint cannot disable the Police to continue to investigate into
C     the offence and to reach a final conclusion regarding the real culprit. Yet
      another contention before this Court in Kari Choudhary (supra) was
      that once the proceedings initiated under the first FIR ended in a final
      report, the Police had no authority to register a second FIR. While dealing
      with the said contention, this Court opined; “Of course the legal position
      is that there cannot be two FIRs against the same accused in respect
D
      of the same case. But when there are rival versions in respect of the
      same episode, they would normally take the shape of two different
      FIRs and investigation can be carried on under both of them…”
              19. Therefore, it happens at times that the real culprit lodges the
      first information against known or unknown persons, to misdirect the
E     investigation of an offence. But even in such a case, it is only during the
      course of investigation into the first FIR that the case may take a U-
      turn. When it does, the informant may also have to face additional charges
      for the offences punishable under various provisions of Chapter XI of
      IPC. This is exactly the reason why, in this case, the prosecution charged
F     A-2 for the offences punishable under Sections 194 and 211 IPC. But
      the Trial Court acquitted her of the charges under these two provisions.
            20. As stated earlier, when a question was put to him as to whether
      Ruia and Kailash Yadav (PWs 6 and 7), who were the original accused,
      were ever taken into custody, the IO (PW-14) feigned ignorance. The
G     answer given by the IO is as follows:-
            “It was not in my knowledge that when I started investigation
            at that time Ruia and Kailash Yadav were in the custody of
            the police. On having knowledge about this information that
            case is registered against Ruia and Kailash, I have not tried
H           to arrest them.”
          MADHAV v. STATE OF MADHYA PRADESH                                  463
              [V. RAMASUBRAMANIAN, J.]

      But interestingly, the star witness for the prosecution, namely,       A
PW-9, who was admittedly just 16 years of age at the time of occurrence,
not only claimed knowledge about their arrest, but also revealed what
happened thereafter. The testimony of PW-9 in this regard reads as
follows:-
      “It is true that after death of my Mausa Pappu, Police had             B
      taken into custody Rooiya and Kailash for murder. It is not
      known to me that where my Mausa was living who is leader
      there. It is true that for taking into custody of Rooiya and
      Kailash there was strike in Mohalla. Persons of Yadav caste
      assembled. It is true that persons of Yadav caste put pressure
      on police and leaving Rooiya and Kailash on that day soil of           C
      my Mausa came.”
      21. Unfortunately neither the Trial Court nor the High Court took
note of the above admission on the part of PW-9 in the context of the
admission made by the IO as PW-14.
                                                                             D
      22. That the case was foisted against the very informant and their
family members due to political pressure is also borne out by another
admission made by PW-14 which reads as follows:
      “I was given verbal instructions by higher police officers that
      Kailash Yadav, Rooiya @ Bhagirath Yadav be impleaded as                E
      witnesses instead of accused. When I have started the
      investigation at that time Additional Superintendent of Police
      Tilak Singh has given me verbal order that Kailash & Rooiya
      be impleaded as witnesses instead of accused. In my diary I
      have not mentioned about that order. In this case during the
      course of investigation accused was having bad relation with           F
      deceased this fact has not come on record.”
       23. According to the IO, the knife used by A-1 for the commission
of the offence was seized from the house of A-1. Similarly the lathis
used for the commission of the offence were also seized from the houses
of A-2 and A-3. Seizure was effected, according to the IO, in the presence   G
of witnesses and seizure memos prepared. But those witnesses Dal
Chandra and Deen Dayal did not support the prosecution. Dal Chandra
was examined as PW-1 and he stated categorically (i) that in his presence
no enquiry was conducted from the accused; and (ii) that in his presence
no weapons were seized from the accused. However, he admitted his
                                                                             H
464            SUPREME COURT REPORTS                          [2021] 8 S.C.R.


A     signatures in the seizure memos. He explained this by stating that he
      signed the seizure memo and memorandum statement outside the hotel
      situate near the police station. Even after he was declared hostile, he
      reiterated in response to the questions posed by the Additional Public
      Prosecutor that seizure of the weapons was not effected in his presence.
      Yet the High Court gave credence to the testimony of PW-1 merely on
B
      the ground that he admitted the signatures in the seizure memo and
      memorandum statement.
             24. The fact that right from the beginning, the IO proceeded to
      favour those two persons originally named as accused in the FIR, is also
      borne out by the statement made by him in chief examination that even
C     on the very first day, he recorded the statements of several witnesses
      including Kailash and Ruia. It means that he started with a pre-
      determination that the informant, her husband and her brother were the
      culprits and the original accused were innocent. The relevant portion of
      the evidence of PW-14 in this regard reads as follows:-
D           “From place of incidence blood stained soil and common soil
            was collected and was sealed in different – different packets
            was seized in presence of witnesses and seizure Memo is Ex.P/
            15 on which from B to B is my signature. On that date only
            witnesses Rahul Yadav, Rajesh Yadav, Kailash Yadav, Ruia
E           @ Bhagirath Yadav, Baby @ Leelabai, Gandharv Patel,
            Raghuvir Thakur, Brijesh Rawat, Om Prakash Pathak, Gorelal
            Kurmi, Mahesh Kurmi statement was obtained as told by them
            and nothing was increased or decreased from my side.”
             25. Interestingly the story built by the prosecution was that A-1
F     had a quarrel with his brother (the deceased), sometime before the
      commission of the crime, over the non-repayment of a sum of Rs.250/-
      by the deceased to Ruia and that in the quarrel, A-1 got injured and that
      thereafter all the 3 accused attacked the victim resulting in his death.
      A-1 had no reason to take up the cause of Ruia and go to the extent of
      committing the murder of his own brother. But unfortunately, the Trial
G     Court has believed this story on the basis of the testimony of DW-1, the
      mother of both A-1 and the deceased. All that DW-1 stated in her
      testimony was that A-1 questioned the deceased as to why he was not
      returning the money due and payable to Ruia.
             26. Coming to the testimony of PW-9, projected as the star witness
H     for the prosecution, the explanation given by the IO for recording her
           MADHAV v. STATE OF MADHYA PRADESH                                 465
               [V. RAMASUBRAMANIAN, J.]

statement on 03.06.2008, after 21 days of the occurrence of the crime,       A
is unbelievable. In any case, if her evidence is to be accepted, it should
be accepted in total. We have already extracted one portion of her
evidence, where she has categorically admitted that Ruia and Kailash
were originally taken into custody and that there were protests from the
people of the caste to which they belonged and that those people also
                                                                             B
put pressure on the police to give a clean chit to Ruia and Kailash.
These admissions on the part of PW-9, made the prosecution case
completely untrustworthy.
       27. Apart from the fact that the witnesses in whose presence the
seizure of the weapons was allegedly effected, had turned hostile, there
was also one more thing. There is nothing on record to show that the         C
blood stains said to have been present in those weapons, matched with
the blood of the deceased. Unfortunately, the High Court proceeded on
a wrong premise that there was scientific evidence to point to the guilt
of the accused, merely because as per Exhibit P-25 (FSL Report), the
knife and lathis said to have been seized by the police, contained stains    D
of human blood. The prosecution has not established either through the
report of FSL or otherwise, that the blood stains contained in the knife
and lathis were that of the deceased.
       28. We are conscious of the fact that there is a divergence of
views on this aspect. In Raghav Prapanna Tripathi vs. The State Of           E
Uttar Pradesh2, a Constitution Bench of this Court by a majority held
that, “…that it would be far-fetched to conclude from the mere
presence of blood-stained earth that that earth was stained with
human blood and that the human blood was that of the victims…”.
In Kansa Behera vs. State of Orissa3, this Court acquitted the appellant
on the ground that though the Serologist report found the shirt and dhoti    F
recovered from the possession of the appellant to be stained with human
blood, there is no evidence to connect the same with the blood of the
deceased. In Surinder Singh vs. State of Punjab4, the blood stains
found on the knife allegedly used for the commission of the offence,
were established to be human blood. But this Court rejected the              G
prosecution theory on the ground that those blood stains on the knife
were not shown to be of the same group as the blood of the deceased.

2
  AIR 1963 SC 74
3
  (1987) 3 SCC 480,
4
  (1989) Supp.(2) SCC 21                                                     H
466             SUPREME COURT REPORTS                           [2021] 8 S.C.R.


A     In Raghunath, Ramkishan & Ors. vs. State of Haryana,5 this Court
      held that the blood stain, though of a human blood, is not conclusive
      evidence to show that it belongs to the blood group of the deceased. In
      Sattatiya vs. State of Maharashtra6, this Court found the credibility of
      the evidence relating to the recovery of the object used for the commission
      of the crime, substantially dented, on account of the fact that the blood
B
      stains, though found to be of human source, could not be linked with the
      blood of the deceased.
             29. In contrast, this Court held in State of Rajasthan vs. Teja
      Ram and Others7, that at times the Serologist may fail to deduct the
      origin of the blood, either because the stain is too insufficient or because
C     of hematological changes and plasmatic coagulation. After referring to
      the Constitution Bench decision in Raghav Prapanna Tripathi (supra),
      this Court held in Teja Ram (supra) that it is not as though the
      circumstances arising from the recovery of the weapon would stand
      relegated to disutility, in all cases where there was failure of detecting
D     the origin of the blood. This Court indicated in Teja Ram (supra) that,
      “…the effort of the Criminal Court should not be to prowl for
      imaginative doubts…” and that the doubts should be of reasonable
      dimension, which a judicially conscientious mind entertains with some
      objectivity.
E            30. The decision Teja Ram (supra) was followed in Gura Singh
      vs. State of Rajasthan8 and in Prabhu Dayal vs. State of Rajasthan9.
             31. In R. Shaji vs. State of Kerala10, this Court took note of
      almost all previous decisions starting from Prabhu Babaji Navle vs.
      State of Bombay11 and including those in Raghav Prapanna Tripathi
F     (supra); Teja Ram (supra), Gura Singh (supra); John Pandian vs.
      State12; and SunilClifford Daniel vs. State of Punjab13 and came to
      the conclusion that once the recovery is made in pursuance of a disclosure


      5
        (2003) 1 SCC 398
      6
G       (2008) 3 SCC 210
      7
        (1999) 3 SCC 507
      8
        (2001) 2 SCC 205
      9
        (2018) 8 SCC 127
      10
         (2013) 14 SCC 266
      11
         AIR 1956 SC 51
      12
         (2010) 14 SCC 129
H     13
         (2012) 11 SCC 205
              MADHAV v. STATE OF MADHYA PRADESH                               467
                  [V. RAMASUBRAMANIAN, J.]

statement made by the accused, the matching or non-matching of blood          A
groups loses significance.
       32. Therefore, as pointed out by this Court in Balwan Singh vs.
State of Chhattisgarh14, there cannot be any fixed formula that the
prosecution has to prove, or need not prove that the blood groups match.
But the judicial conscience of the Court should be satisfied both about       B
the recovery and about the origin of the human blood.
       33. In the case on hand, even PW-1, who allegedly witnessed the
seizure had turned hostile. Right from the beginning there has been an
attempt on the part of the prosecution to shield the culprits named in the
first FIR, on account of political pressure, as admitted by PW-14 and         C
corroborated by PW-9, whom the prosecution considered to be a star
witness. Unfortunately, both the Sessions Court and the High Court
completely overlooked these aspects.
       34. It is seen from the judgment of the High Court that the accused
were represented by amicus curiae either due to the inability of the          D
accused to engage a counsel or due to the non-appearance of the counsel
engaged by them at the time of hearing. As a result, the accused do not
appear to have had the best of legal assistance. It is in such type of
cases that the burden of the court is very heavy and unfortunately, the
Sessions court and the High court did not discharge this burden properly.
                                                                              E
       35. In the light of the above, we are clearly of the view that the
investigation in this case was carried out by PW-14, not with the intention
of unearthing the truth, but for burying the same fathom deep, for
extraneous considerations and that it was designed to turn the informant
and her family members as the accused and allow the real culprits named
in the FIR to escape. Both the Sessions Court as well as the High Court       F
have completely overlooked some of the important admissions made by
PWs 9 and 14. They have not even taken into account the normal human
conduct. It is unbelievable that A-1, A-2 and A-3 caused the death of A-
1’s brother due to the failure of the victim to return an amount of Rs.250/
- due and payable to Ruia (PW-7) and that thereafter, they deliberately       G
named Ruia as the accused. It is equally unbelievable that one of the
persons who killed the victim, in the presence of witnesses, took the
body of the victim to the hospital in an autorickshaw. The normal human
behaviour in such circumstances will be either to flee the place of
14
     (2019) 7 SCC 781                                                         H
468                SUPREME COURT REPORTS                       [2021] 8 S.C.R.


A     occurrence or to go to the police station to surrender, except in cases
      where they are intelligent and seasoned criminals. Neither did happen.
              36. Therefore, we are of the considered view that the appeals
      deserve to be allowed. But before we do that, we must take note of the
      fact that A-1 has not come up on appeal. Though Shri Shreeyash U.
B     Lalit, learned counsel for the State submitted that A-1’s case stands on
      a completely different footing and that therefore, in the absence of an
      independent appeal by him, he cannot be granted any relief, we do not
      agree. This is not a case where we have proceeded on the basis of
      individual overt acts on the part of A-2 and A-3 (the appellants-herein)
      to conclude that they are entitled to acquittal. This is a case where we
C     have disbelieved, in entirety, the story of the prosecution. Therefore, to
      deny the benefit of the said conclusion to A-1 merely on the ground of a
      technicality that he is not on appeal would be to close our eyes to a gross
      injustice, especially when we are empowered under Article 142 to do
      complete justice.
D           37. Therefore, 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 A-1, are set aside.
      All the three accused shall be released forthwith, unless they are in
      custody in relation to any other case.
E

      Nidhi Jain                                                  Appeals allowed.




F




G




H