PREM NARAIN AND ANR.versusTHE STATE OF MADHYA PRADESH

A                         PREM NARAIN AND ANR.
                                     v.
                      THE STA TE OF MADHYA PRADESH

                              NOVEMBER 29, 2006

B                 (S.B. SINHA AND MARKANDEY KA TJU, JJ.]


          Penal Code, 1860-s.304-II rlw 34-Conviction under, based on
    testimony oftwo eye-witnesses-Challenge to-Held: In view ofcontradictions
C   and inconsistencies in depositions of the eye-witnesses, it is not possible to
    arrive at a definite finding against Appellants-accused-Benefit ofdou.bt given
    to them-Conviction accordingly set aside.

         In a murder case, the Trial Court as well as the High Court convicted
    Appellants under Section 304-11 r/w Section 34, IPC after placing reliance
D   upon testimony of the two eye witnesses, PW-1 and PW-3.

         The question which arose for consideration in the present appeal is
    whether due to the contradictions and inconsistencies in depositions of the
    two eyewitnesses PWl and PW3, benefit of doubt should be given to the·
    Appellants and hence their conviction set aside.
E
          Allowing the appeal, the Court

          HELD: 1.1. PW-1 in her evidence before the Court gave a completely
    different picture than disclosed in the First Information Report. The time
F   and place of incident was also changed. According to' her before the Court,
    at about 10 a.m. Peeta (not Prem Narain and Parmeshwar) came to her
    house and called her husband saying that they want to go to Barelly.
    Whereas according to the First Information Report, when the deceased
    started for going to Barelly after taking his breakfast, he was accosted in
    the lane by the persons named as accused in the First Information Report;
G   in her statement before the Court she stated Peeta Ram asked her husband
    to come immediately whereupon Chunni Lal caught hold hand of her
    husband and dragged him to his house and bolted the outer door. The
    scene of occurrence thus has changed from lane to the house of Chunni
    Lal. In her statement before the Court she disclosed that the incident took

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                 PREM NARAIN"= THE STATE OF MADHYA PRADESH                 845
place inside the house of Chunni Lal where all the six accused persons were       A
present and they had been assaulting her husband but it was for the first time
in her evidence she stated that her son was on her lap and despite the same
she was assaulted on her stomach but no injury was found. (847-C, D, Fl

     1.2. The defence has been able to bring on record vital omissions and
contradictions in her statement made before the Police and her statement          B
before the Court. In view of the contradictions and inconsistencies in the
depositions of PW.1, the Trial Court as also the High Court committed a
manifest error in relying upon her testimony as an eye witness.
                                                        (847-G-H; 848-AJ
      2.1. PW.3 in his evidence categorically stated that the investigating       C
officer had called him to the Police Station once five days after the incident
and the second time 10-11 days after the incident. He was called for the third
time lYz months after the incident. The Investigating Officer P.W.9 in his
deposition however denied that P.W.3 was called for the first two times.
According to the said witness the evidence of P. W.3 was recorded for the first   D
time after 1Yz months. [848-B-CJ

       2.2. It is expected that in a case involving death of a person, the
Investigating officer would have visited the place of occurrence
immediately. If that be so, it is also expected that the statements of
witnesses who were present would be recorded. There is no reason                  E
whatsoever as to why the statement of PW.3 was not recorded on the date
of occurrence and in any event within a reasonable time. If P.W.3 is to be
believed he was in constant touch with the investigating officer, it betrays
all reasons as to why he was examined after only six weeks. (848-D, E)

      3. It is not possible to arrive at a definite finding by taking aid of      F
Section 34 of the Indian Penal Code that appellants could be convicted
for commission of an offence under Section 304(11). Benefit of doubt should
be given to the appellants. [848-E, HJ

        CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 1131/               G
2000.

     From the final Judgment and Order dated 22-2-2000 of the High Court
of Madhya Pradesh at Jabalpur in Criminal Appeal No. 635 of 1989.

        S.K. Gambhir, Anil Sharma, B.K. Sharma and T.N. Singh for the             H
    846                       SUPREME COURT REPORTS [2006] SUPP. 9 S.C.R.

A Appellants.
          C.D. Singh for the Respondent.

          The Judgment of the Court was delivered by

B         S.B. SINHA, J. Accused No. 1-Premnarain and accused No. 3-Jagdish
    before the trial Court are before us against the judgment of conviction and
    sentence passed under Section 304 (II) of the I.P.C whereby they were
    sentenced to undergo five years' rigorous imprisonment.

          Accused No. I, the appellant herein together with accused       No.2 -
C Ramcharan, accused No.4- Parmeshwar and Accused No.6'."Chunnilal was
    prosecuted for committing the murder of qopal Singh. Accused Nos'. 5 and
    6 were acquitted by the le~med trial Judge. Accused No.2 and accused No.4
    have been acquitted by the High Court.

          The first informant-Ganeshi Bai is the wife of the deceased Gopal
D   Singh.     As per the First Information Report, the incident occurred
    at about I I a.m. on 6.7.1985. From a perusal of the First Information
    Report, it appears that allegations were made that at 9 a.m. Prem Narain and
    Parmeshwar came to her house and asked her husband as to where he had
    been in the previous night. According to the deceased he was in Barelly.
E   Parmeshwar asked her husband to come to Bareli to which he replied that
    he could come a little later. At about I I a.m. her husband left for Barelly
    and in the lane (Gali) Ram Charan, Prem Narain, Jagdish and Parmeshwar
    intercepted him and then started assaulting her husband. He raised alarm and
    upon hearing the same the first informant came running there and saw the
    deceased lying in the lane and alt the four accused persons assaulting him.
F   The dead body was found in the field of Shankar.

          It was disclosed in the First Information Report that Prem Narain and
    Ram Charan assaulted him with Ballam(spear) and Jagdish and Parmeshwar
    assaulted him with lathis.

G         Ganeshi Bai allegedly informed Chunni· Lal immediately thereafter,
    who came to the place of occurrence and having found the deceased to have
    breathed his last, accompanied her to the Police Station. The Police Station
    was at a distance of 5 k.m. from the place of occurrence. The First Information
    Report was recorded on 6. 7.1985 at about 11 a.m.

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         PREM NARAIN i·. THE STATE OF MADHYA PRADESH [S.B. SINHA, J.]    847

      Indisputably the eye witness on whose testimony the judgments of A
conviction and sentence were passed both by learned trial judge as also the
High Court are Ganeshi Bai- P.W.I and Kallu-P.W.3. Than Singh-P.W.2 who
was named as an eye witness in the FIR was declared hostile. Bhagwati
Singh-P.W.4 another so called eye-witness also was declared hostile. No part
of their evidence was believed by the learned trial Judge as also by the High B
Court.

       The first informant-Ganeshi Bai in her evidence before the Court gave
a completely different picture than disclosed in the First Information Report.
The time and place of incident was also changed. According to her before
the Court, at about I 0 a.m. Peeta. (not Prem Narain and Parmeshwar) came C
to her house and called her husband saying that they want to go to Brailey.
Conversations which purported to have taken place with regard to whereabouts
of the deceased in the previous night had not been disclosed. Whereas
9ccording to the First Information Report, the deceased started for going to
 Barelly after taking his breakfast, he was accosted in the lane by the persons
named as accused in the First Information Report; in her statement before D
the Court she stated Peeta Ram asked her husband to come immediately
whereupon Chunni Lal caught hold hand of her husband and dragged him
to his house and bolted the outer door. The scene of occurrence thus has
changed from lane to the house of Chunni Lal.

      In her First Information Report, as noticed hereinbefore, she came out    E
of the lane and found the accused persons assaulting the deceased. In her
statement before the Court she stated that she had tried to open the door and
having not been abfo to do so, she purported to see the incident from Bada.
In her statement before the Court she disclosed that the incident tpok place
inside the house of Chunni Lal where all the six accused persons were present   F
and they had been assaulting her husband but it was for the first time in her
evidence she stated that her son was on her lap and despite the same she
was assaulted on her stomach but no injury was found.

      The defence has been able to bring on records vital omissions and
contradictions in her statement made before the Police and her statement G
before the Court but we need not go into the details thereof. Suffice, it to say
that accordingly to the defence the deceased had committed many thefts. He
was accused of stealing buffalos of somebody in the previous night and only
on such suspicion he had been assaulted. In view of the contradictions and
inconsistencies in the depositions of the Ganeshi Bai- PW. I, we are of the
opinion that the learned trial Court as also the High Court committed a H
    848                        SUPREME COURT REPORTS (2006] SUPP. 9 S.C.R.

A   manifest error in relying upon her testimony as an eye witness.

            So far as Kallu- P. W.3 is concerned, he was not named as a witness in
    the First Information Report, but the same in itself may not be of much
    significance. But what is important is that in his evidence he categorically
    stated that the investigating officer had called him to the Police Station once
B   five days after the incident and the second time I 0-11 days after the incident.
    He was called for the third time l Yi month after the incident. Girish Bohre-the
    Investigating Officer P.W.9 in his deposition denied that P.W.-3 was called for
    the .first two times. According to the said witness the evidence of P.W.-3 was
    recorded for the first time after l Yi months.

C          It is expected that in a case involving death of a person, the investigating
    officer would have visited the place of occurrence immediately. If that be so,
    it is also expected that the statements of witnesses who were present would
    be recorded.

          We fail to see any reason whatsoever as to why the statement of P.W.-
D   3 was no recorded on the date of occurrence and in any event within a
    reasonable time. If Kallu-P. W.-3 is to be believed he was in constant touch
    with the investigating officer. If that be so, it betrays all reasons as to why
    he was examined after only six weeks.

           It is not possible for us to arrive at a definite finding by taking aid of
E   Section 34 of the Indian Penal Code that appellants herein could be convicted
    for commission of an offence under Section 304(II) but having regard to the
    fact that both P.W I and P.W.3 had made common allegations against all the
    accused persons, and as despite the same, accused Nos. 5 and 6 were
    acquitted by the learned trial Court and accused Nos. 2 and 4 were acquitted
F   by the High Court, we are not in a position to do so. Accused Nos. 5 and
    6 were not named in the First Information report at all. Accused Nos. 2 and
    4 were not named by P.W.3. If P.W.3 watched the entire incident from a
    close distance, as he claims to be; we fail to reason as to why no overt act
    was attributed by him so far as accused nos. 2 and 4 are concerned.

G         We for the reasons stated aforementioned feel that benefit of doubt
    should be given to the appellants. The appeal is allowed accordingly. The
    appellants are on bail. Their bail bonds shall stand discharged.

    B.B.B.                                                           Appeal allowed.




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