PARVAT SINGH & ORS.versusSTATE OF MADHYA PRADESH

964                      [2020]REPORTS
               SUPREME COURT    2 S.C.R. 964               [2020] 2 S.C.R.


A                          PARVAT SINGH & ORS.
                                        v.
                       STATE OF MADHYA PRADESH
                       (Criminal Appeal No. 374 of 2020)
B                              MARCH 02, 2020
               [ASHOK BHUSHAN AND M. R. SHAH, JJ.]
             Penal Code, 1860 – s. 302 r/w s. 149 – Murder – All the
      accused including the appellants came to be tried by the Trial Court
      for the offences u/s. 302 r/w. s. 149 of the IPC for having killed son
C
      of the informant-PW-8 – The Trial Court convicted appellants-
      original accused nos. 2 to 5 for the offences punishable u/s. 302 r/
      w. s. 149 of the IPC – The High court confirmed the conviction of
      the appellants – Before the Supreme Court, the appellants contended
      that the High Court has not properly appreciated the fact that so
D     far as the evidence/ deposition of PW-8 is concerned, it is full of
      material contradiction and improvements – Held: PW-8 stated in
      her statement recorded u/s. 161 Cr. P.C. that he had seen all the
      accused in the light of the torch – she stated that the accused no. 1
      was having axe and other four accused were armed with lathis –
      She also stated that accused no. 1 gave the axe blow on the neck of
E
      the deceased due to the enmity and earlier dispute and other accused
      were telling to run immediately – However, in her deposition, PW-8
      stated that two accused persons caught hold of deceased – She
      stated 5in her deposition that there was chimney light in the cattle
      shed and accused ran away from the nearby agricultural field of
F     sugarcane – Therefore, the deposition of PW-8 is full of material
      contradictions and improvements so far as original accused nos. 2
      to 5 are concerned – No other independent witness, even named by
      PW-8 supported the case of prosecution – In her deposition, she
      has not stated anything that the appellants were having lathis – As
      per the settled proposition of law, the statement recorded u/s 161
G
      Cr. P.C. can be used only to prove the contradictions and/or omissions
      – Further, according to PW-8, she identified the accused in the light
      of the torch, however, there is no recovery of torch – In the facts
      and circumstances of the case, there are material contradictions,
      omissions and/or improvements so far as the appellants are
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                                       964
  PARVAT SINGH & ORS. v. STATE OF MADHYA PRADESH                          965


concerned – Therefore, the benefit of material contradictions,            A
omissions and improvements must go in favour of the appellants –
The conviction of the appellants u/s. 302 r/w. s. 149 of the IPC set
aside.
      Allowing the appeal, the Court
       HELD:1. It is required to be noted that it was a black night       B
(Amavasya) at the time of incident. It was a dark night as the
incident has happened between 4-5 a.m. PW8 in her statement
recorded under Section 161 Cr.P.C. has stated that she has seen
all the accused in the light of the torch. She has stated that original
accused no.1 was having an axe and other four were armed with             C
lathis. She had also stated in her statement under Section 161
Cr.P.C. that original accused no.1 gave the axe blow on the neck
of the deceased due to the enmity and earlier dispute and other
accused were telling to run away immediately and thereafter all
the five accused ran away from behind the cattle shed/house. She
stated that she had identified all the accused in the light of the        D
torch and also by voice. According to her after she shouted, other
persons came. However, there is material improvement in her
deposition before the Court. In her deposition, she has stated
that the two accused caught hold of deceased. In her deposition,
she has also stated that there was a chimney light in the cattle          E
shed. She has also stated in her deposition that the accused ran
away from the nearby agricultural field of sugarcane. Therefore,
the deposition of PW8 is full of material contradictions and
improvements so far as original accused Nos. 2 to 5 is concerned.
It is required to be noted that no other independent witness even
named by PW8 has supported the case of the prosecution. Though,           F
according to PW8, she identified the accused in the light of the
torch, there is no recovery of torch. There is material
improvement so far as the chimney light is concerned. In her
deposition, she has not stated anything that the appellants –
original accused nos. 2 to 5 were having the lathis, though she           G
has stated this in her statement under Section 161 Cr.P.C. The
High Court has observed relying upon her statement recorded
under Section 161 Cr.P.C. that the appellants herein – accused
nos. 2 to 5 were having lathis. However, as per the settled
preposition of law a statement recorded under Section 161 Cr.P.C.
                                                                          H
966            SUPREME COURT REPORTS                      [2020] 2 S.C.R.


A     is inadmissible in evidence and cannot be relied upon or used to
      convict the accused. As per the settled proposition of law, the
      statement recorded under Section 161 Cr.P.C. can be used only
      to prove the contradictions and/or omissions. Therefore, as such,
      the High Court has erred in relying upon the statement of PW8
      recorded under Section 161 Cr.P.C. while observing that the
B
      appellants were having the lathis. [Para 14.1][972 F-H; 973 A-F]
            2. As observed hereinabove in her statement under Section
      161 Cr.P.C., she has never stated that the two accused caught
      hold of the deceased, but stated that the appellants herein told to
      run away as other persons have woken. In the facts and
C     circumstances of the case, there are material contradictions,
      omissions and/or improvements so far as the appellants herein –
      original accused nos. 2 to 5 are concerned and therefore this
      Court is of the opinion that it is not safe to convict the appellants
      on the evidence of the sole witness of PW-8. The benefit of
D     material contradictions, omissions and improvements must go in
      favour of the appellants herein. Therefore, as such the appellants
      are entitled to be given benefit of doubt.[Para 142][973 F-H]
            Now, so far as the submission on behalf of the State that
      relying upon the deposition of PW8, the original accused no.1
E     was convicted and his conviction has been confirmed upto this
      Court and therefore to dismiss the present appeal qua other
      accused is concerned from the evidence on record and having
      observed hereinabove the case of the appellants – original
      accused nos. 2 to 5, is distinguishable on facts. There are material
      contradictions and omissions so far as the appellants – original
F     accused nos. 2 to 5 are concerned. So far as the original accused
      no 1 is concerned, PW8 is consistent in her statement under
      Section 161 Cr.P.C. as well as in her deposition before the Court.
      There was a recovery of axe used in commission of the offence
      by accused no.1 at the instance of accused no.1. Under the
G     circumstances, the case of the original accused nos. 2 to 5 is
      clearly distinguishable to that of original accused no.1. [Para
      14.3][974 A-D]



H
  PARVAT SINGH & ORS. v. STATE OF MADHYA PRADESH                             967


      CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.                   A
374 of 2020.
      From the Judgment and Order dated 19.04.2018 of the High Court
of Madhya Pradesh, Bench at Gwalior in Criminal Appeal No. 574 of
2006.
      A.K. Shrivastava, Sr. Adv., Shishir Kumar Saxena, R.N. Pareek,         B
P.K. Sinha, Brijendra Singh, Praveen Swarup, Advs. for the Appellants.
      Ms. Madhurima Mridul, AAG, Yasir Rauf, Rahul Kaushik, Harsh
Parashar, Advs. for the Respondent.
       The Judgment of the Court was delivered by                            C
      M. R. SHAH, J.
      1. Leave granted.
      2. Feeling aggrieved and dissatisfied with the impugned judgment
and order dated 19.04.2018 passed by the High Court of Madhya Pradesh
                                                                             D
at Gwalior in Criminal Appeal No.574 of 2006 by which the High Court
has confirmed the conviction of the appellants herein – original accused
Nos.2 to 5 for the offences punishable under Section 302 r/w Section
149 of the IPC, the original accused nos.2 to 5 have preferred the present
appeal.
       3. All the accused including the appellants came to be tried by the   E
Learned Trial Court for the offences under Section 302 r/w Section 149
of the IPC for having killed one Bal Kishan s/o the informant Mullo Bai
on 01.12.2005 around 4-5 a.m. in the morning at Village Hinotiya Gird.
       4. According to the case of the prosecution, the informant Mullo
Bai – PW8 was sleeping in the cattle shed. At that time, the appellants      F
and one another accused named Bal Kishan, s/o Diman Singh while
sharing common object caused murder of Bal Kishan, s/o Bhagwan
Singh. According to the informant there was a dispute going on between
the parties. As per the case of the prosecution and according to the
informant, when she was sleeping in the cattle shed in the house, around     G
4-5 a.m. in the morning due to the barking of the dogs she woke up and
in the light of torch, she saw that in the cattle shed, accused Bal Kishan
with an axe and other original accused Nos. 2 to 5 herein with sticks/
lathis in their hands were standing. Thereafter, accused Bal Kishan

                                                                             H
968             SUPREME COURT REPORTS                            [2020] 2 S.C.R.


A     entered in the cattle shed and with an intention to kill her son Bal Kishan
      gave a blow of axe. She shouted and the other members of the family
      and nearby house came there and all the accused ran away from the
      spot. Investigation was carried out by one Mahesh Sharma – Investigating
      Officer - PW12. He recorded the statements of concerned witnesses.
      I.O. also obtained the relevant evidences including the medical evidence
B
      and also the postmortem report. That all the accused were charge-
      sheeted for the offences punishable under Section 302 r/w Section 149
      and Section 450 of the IPC. The case was committed to the Court of
      Sessions. All the accused pleaded not guilty, therefore, all the accused
      came to be tried by the Learned Trial Court for the aforesaid offences.
C             5. To prove the case against the accused, the prosecution examined
      in all 12 witnesses including PW8 Mullo Bai -informant – mother of the
      deceased who was the sole eyewitness. At this stage, it is required to be
      noted that mother of the deceased Mullo Bai was the sole eyewitness.
      At this stage, it is required to be noted that the axe used in the commission
D     of the offence by the original accused no.1 was recovered at the instance
      of the accused no.1 himself. Ratan Singh – PW1 and Pahalwan Singh –
      PW2 did not support the prosecution and therefore, they were declared
      as hostile by the prosecution. In support of the defence two witnesses
      were examined by the defence to bring home the theory of alibi in
      respect of original accused no.1 - Bal Kishan.
E
             6. After perusing the evidence led by the parties and solely relying
      upon the evidence of Mullo Bai – PW8 the sole eye-witness, the Learned
      Trial Court convicted all the accused for the offences under Section 302
      r/w Section 149 of IPC.

F           7. Feeling aggrieved and dissatisfied with the judgment and order
      of conviction by the Learned Trial Court, the appellants herein - original
      accused Nos.2 to 5 preferred Criminal Appeal No.574 of 2006 before
      the High Court. Original Accused No.1 also preferred one separate
      appeal. By the impugned judgment and order, the High Court has
      dismissed the appeal preferred by the accused nos.2 to 5 - appellants
G     herein. The High Court also dismissed the appeal preferred by the
      Accused No.1 – Bal Kishan. It is reported that the SLP against the
      judgment and order of conviction of the original accused no. 1 – Bal
      Kishan is dismissed by this Court. Feeling aggrieved and dissatisfied
      with the impugned judgment passed by the High Court, the original
H     accused nos. 2 to 5 have preferred the present appeal.
  PARVAT SINGH & ORS. V. STATE OF MADHYA PRADESH                               969
                   [M. R. SHAH, J.]

      8. Shri A.K. Srivastava, learned Senior Advocate appearing on            A
behalf of all the appellants – original accused nos. 2 to 5 has vehemently
submitted that in the facts and circumstances of the case, the High Court
has materially erred in dismissing the appeal and confirming the judgment
and order of conviction passed by the Learned Trial Court and convicting
them for the offences under Section 302 r/w Section 149 IPC.
                                                                               B
       8.1 It is vehemently submitted by Mr. Srivastava, learned Senior
Advocate that the High Court has not properly appreciated the fact that
the Trial Court convicted the appellants solely relying upon the evidence/
deposition of Mullo Bai – PW8.
        8.2 It is submitted that the High Court has not properly appreciated   C
the fact that so far as the evidence/deposition of PW8 is concerned, it is
full of material contradiction and improvements.
       8.3 It is further submitted by Learned Senior Advocate appearing
on behalf of the appellants that the High Court has not properly
appreciated the fact that it was a black night when the incident took          D
place, there was a dark, and it was not possible for Mullo Bai to recognize/
identify the accused – the appellants herein.
        8.4 It is further submitted that as such there was material
contradiction in the deposition of the PW8 insofar as identifying/
recognizing the appellants in the light of torch or from the chimney light.    E
It is further submitted by Learned Senior Advocate appearing on behalf
of the appellants that the testimony of Mullo Bai – PW8 suffers from
material omissions, which amounts to contradictions as well as material
improvements in her statement in Court as regards place of incident
where she was sleeping. It is submitted that it was for the first time in
the Court that she has stated that accused Santosh and Rakesh caught           F
hold the deceased and that Bal Kishan inflicted axe injury over his neck.
       8.5 It is further submitted that in fact there is no recovery of any
torch from the place of incident.
       8.6 It is further submitted that even the observations made by the
                                                                               G
High Court that the appellants herein went with the lathis is contrary to
the evidence on record. It is submitted that in the deposition of PW8 –
Mullo Bai, she has not stated anything that the appellants herein were
carrying the lathis. It is submitted that in her statement recorded under
Section 161 Cr.P.C. She has stated that the appellants were having lathis,
but the statement under Section 161 Cr.P.C. is not admissible in evidence      H
970            SUPREME COURT REPORTS                          [2020] 2 S.C.R.


A     and therefore the High Court has committed a grave error in observing
      that the appellants were having lathis, solely relying upon the statement
      of PW8 recorded under Section 161 Cr.P.C.
              8.7 It is further submitted by the Learned Senior Advocate
      appearing on behalf of the appellants that as such there is no cogent
B     material and/or evidence with respect to the common object and/or
      conspiracy hatched amongst the accused persons to kill the deceased.
      It is submitted that the appellants are convicted with the aid of Section
      149 IPC. It is submitted that, therefore, in absence of theory of common
      intention/object, the appellants could not have been convicted for the
      offences under Section 302 IPC with the aid of Section 149 IPC.
C
             8.8 It is further submitted by the Learned Senior Advocate
      appearing on behalf of the appellants that even as per the deposition of
      Mullo Bai – PW8 the dispute was going on between the parties. It is
      submitted that therefore the false implication of the appellants cannot be
      ruled out. It is submitted that therefore conviction of the accused is
D     solely based upon the evidence – deposition of PW8 and no other
      independent witness supports the case of the prosecution and that the
      evidence – deposition of the PW8 is full of contradictions, omissions and
      improvements, it is not safe to convict the appellants solely relying upon
      the evidence/deposition of PW8.
E            8.9 It is further submitted by the Learned Senior Advocate
      appearing on behalf of the appellants – original accused nos. 2 to 5 that
      the case of the original accused nos. 2 to 5 is clearly distinguishable on
      facts, from that of original accused no.1. It is further submitted that
      there are no much contradictions and/or improvements in the case so
F     far as original accused no.1 is concerned. It is submitted that so far as
      accused no.1 is concerned, it can be seen that PW8 is consistent with
      her statement under Section 161 Cr.P.C. as well as her deposition before
      the Court. It is submitted that even there was a recovery of axe used in
      the commission of the offence at the instance of the original accused
      no.1. It is submitted that therefore the dismissal of SLP qua original
G     accused no.1 would not come in the way of appeal. It is further submitted
      that even otherwise, the SLP was dismissed in limine and therefore it is
      prayed to consider the present appeal on its own merits.
            9. Making the above submissions it is prayed to allow the present
      appeal.
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  PARVAT SINGH & ORS. V. STATE OF MADHYA PRADESH                               971
                   [M. R. SHAH, J.]

     10. Present appeal is vehemently opposed by Ms. Madhurima                 A
Mridul, Learned Advocate appearing on behalf of the respondent – State.
       11. It is vehemently submitted by the Learned Advocate appearing
on behalf of the State that there are a concurrent finding of facts recorded
by both the Courts below while convicting the appellants for the offences
under Section 302 r/w 149 IPC. It is submitted that the findings recorded      B
by the Learned Trial Court and the High Court are on appreciation of
evidence and therefore the same are not required to be interfered with
by this Court in exercise of powers under Article 136 of the Constitution
of India.
        11.1 It is further submitted by Learned Counsel appearing on behalf    C
of the State that in the present case though the conviction of the
appellants is solely based upon the deposition of PW8 – Mullo Bai,
however there is no rule that there cannot be any conviction relying
upon the sole witness, more particularly an eye-witness. It is submitted
that PW8 is a reliable and trustworthy witness. It is submitted that her
presence on the spot is natural as the incident has taken place in her         D
house and near the place where she was sleeping. It is submitted that as
she is the sole eyewitness to the incident, both the courts are justified in
convicting the accused relying upon the deposition/evidence of PW8 –
Mullo Bai.
       11.2 It is further submitted by the Learned Counsel on behalf of        E
the State that in the present case the presence of appellants herein-
original accused nos. 2 to 5 on the spot has been established and proved
by the prosecution by examining PW8 who is the eyewitness. It is
submitted that presence on the spot at the time of incident and that too
between 4-5 a.m. early morning is sufficient to convict the accused for        F
the offence under Section 302 IPC with the aid of Section 149 IPC.
      11.3 It is further submitted by the Learned Counsel appearing on
behalf of the State that even the accused were recognized and identified
by PW8 – Mullo Bai even from their voice, so stated by PW8 in her
deposition.                                                                    G
        11.4 It is further submitted by the Learned Counsel appearing on
behalf of the State that the original Accused no.1 also came to be convicted
solely relying upon the deposition of PW8. It is submitted that the
conviction of original Accused no.1 has been confirmed upto this Court.
It is submitted that therefore there is no reason not to believe PW8 so
                                                                               H
972             SUPREME COURT REPORTS                           [2020] 2 S.C.R.


A     far as the appellants – original accused nos. 2 to 5 are concerned. It is
      submitted that therefore both the courts below have rightly convicted
      the appellants herein for the offences under Section 302 r/w Section 149
      IPC. Making the above submissions, it is prayed to dismiss the present
      appeal.
B           12. Heard the Learned Counsel for the respective parties at length.
      We have gone through and considered in detail the entire evidence
      recorded by the learned Trial Court as well as the High Court. We have
      also considered in detail the evidence on record more particularly the
      statement of PW8 – Mullo Bai recorded under Section 161 Cr.P.C. as
      well as her deposition before the Court.
C
            13. At the outset, it is required to be noted that the appellants
      herein - original accused nos. 2 to 5 are convicted by the Learned Trial
      Court and the High Court solely relying upon the evidence/deposition of
      PW8 – Mullo Bai. It cannot be disputed that there can be a conviction
      relying upon the evidence/deposition of the sole witness. However, at
D     the same time, the evidence/deposition of the sole witness can be relied
      upon, provided it is found to be trustworthy and reliable and there are no
      material contradictions and/or omissions and/or improvements in the case
      of the prosecution. Therefore, the question which is posed for
      consideration of this Court is whether in the facts and circumstances of
E     the case, can the appellants herein – original accused nos. 2 to 5 be
      convicted relying upon the deposition of the sole witness – PW8 and
      whether PW8 is a reliable and trustworthy witness to convict the
      appellants herein- original accused nos. 2 to 5?
             14. Having heard Learned Counsel appearing for the respective
F     parties and considering the evidence on record, we are of the opinion
      that the evidence/deposition of PW8 is full of material contradictions,
      omissions and improvements.
              14.1 It is required to be noted that it was a black night (Amavasya)
      at the time of incident. It was a dark night as the incident has happened
G     between 4-5 a.m. PW8 in her statement recorded under Section 161
      Cr.P.C. has stated that she has seen all the accused in the light of the
      torch. She has stated that Bal Kishan – original accused no.1 was having
      an axe and other four were armed with lathis. She had also stated in her
      statement under Section 161 Cr.P.C. that Bal Kishan – original accused
      no.1 gave the axe blow on the neck of the deceased due to the enmity
H     and earlier dispute and other accused were telling to run away
  PARVAT SINGH & ORS. V. STATE OF MADHYA PRADESH                              973
                   [M. R. SHAH, J.]

immediately and thereafter all the five accused ran away from behind          A
the cattle shed/house. She stated that she had identified all the accused
in the light of the torch and also by voice. According to her after she
shouted, other persons came. However, there is material improvement
in her deposition before the Court. In her deposition, she has stated that
accused Santosh and Rakesh caught hold of Bal Kishan – deceased. In
                                                                              B
her deposition, she has also stated that there was a chimney light in the
cattle shed. She has also stated in her deposition that the accused ran
away from the nearby agricultural field of sugarcane. Therefore, the
deposition of PW8 is full of material contradictions and improvements
so far as original accused Nos. 2 to 5 is concerned. It is required to be
noted that no other independent witness even named by PW8 has                 C
supported the case of the prosecution. Though, according to PW8, she
identified the accused in the light of the torch, there is no recovery of
torch. There is material improvement so far as the chimney light is
concerned. In her deposition, she has not stated anything that the
appellants – original accused nos. 2 to 5 were having the lathis, though
                                                                              D
she has stated this in her statement under Section 161 Cr.P.C. The High
Court has observed relying upon her statement recorded under Section
161 Cr.P.C. that the appellants herein – accused nos. 2 to 5 were having
lathis. However, as per the settled preposition of law a statement recorded
under Section 161 Cr.P.C. is inadmissible in evidence and cannot be
relied upon or used to convict the accused. As per the settled proposition    E
of law, the statement recorded under Section 161 Cr.P.C. can be used
only to prove the contradictions and/or omissions. Therefore, as such,
the High Court has erred in relying upon the statement of PW8 recorded
under Section 161 Cr.P.C. while observing that the appellants were having
the lathis.
                                                                              F
       14.2 As observed hereinabove in her statement under Section
161 Cr.P.C., she has never stated that accused Santosh and Rakesh
caught hold of Bal Kishan, but stated that the appellants herein told to
run away as other persons have woken. In the facts and circumstances
of the case, there are material contradictions, omissions and/or
improvements so far as the appellants herein – original accused nos. 2        G
to 5 are concerned and therefore we are of the opinion that it is not safe
to convict the appellants on the evidence of the sole witness of PW8.
The benefit of material contradictions, omissions and improvements must
go in favour of the appellants herein. Therefore, as such the appellants
are entitled to be given benefit of doubt.                                    H
974                SUPREME COURT REPORTS                      [2020] 2 S.C.R.


A            14.3 Now, so far as the submission on behalf of the State that
      relying upon the deposition of PW8, the original accused no.1 was
      convicted and his conviction has been confirmed upto this Court and
      therefore to dismiss the present appeal qua other accused is concerned
      from the evidence on record and having observed hereinabove the case
      of the appellants – original accused nos. 2 to 5, is distinguishable on
B
      facts. There are material contradictions and omissions so far as the
      appellants – original accused nos. 2 to 5 are concerned. So far as the
      original accused no 1 is concerned, PW8 is consistent in her statement
      under Section 161 Cr.P.C. as well as in her deposition before the Court.
      There was a recovery of axe used in commission of the offence by
C     accused no.1 at the instance of accused no.1. Under the circumstances,
      the case of the original accused nos. 2 to 5 is clearly distinguishable to
      that of original accused no.1.
              15. For the reasons stated hereinabove, we are of the firm opinion
      that in view of the material contradictions, omissions and improvements
D     in the statement of PW8 recorded under Section 161 Cr.P.C. as well as
      deposition before the Court qua the appellants – accused nos. 2 to 5 and
      that there was a prior enmity and no other independent witness has
      supported the case of the prosecution, we are of the opinion that the
      appellants herein – original accused nos. 2 to 5 are entitled to be given
      the benefit of doubt. Under the circumstances, the present appeal is
E     allowed. The impugned judgment and order of conviction passed by the
      learned Trial Court and confirmed by the High Court convicting the
      appellants herein – accused nos. 2 to 5 for the offence under Section
      302 r/w Section 149 of the IPC are hereby quashed and set aside and
      the appellants herein – original accused nos. 2 to 5 are acquitted of the
F     charges for which they were tried. The appellants herein – accused
      nos. 2 to 5 be released forthwith, if not required in any other case.

      Ankit Gyan                                                  Appeal allowed.


G




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