Topic: Ram Kumar Pande vs The State Of Madhya Pradesh - FIR

Ram Kumar Pande vs The State Of Madhya Pradesh
Equivalent citations: 1975 AIR 1026, 1975 SCR (3) 519 - Bench: Beg, M Hameedullah -  CITATION: 1975 AIR 1026 1975 SCR (3) 519/1975 SCC (3) 815 - CITATOR INFO : D 1981 SC1036/ (9) R 1992 SC 891     (16,18,19) - DATE OF JUDGMENT11/02/1975

ACT:

Criminal trial--High Court interfering with acquittal by trial court--When Supreme Court can interfere with decision of High Court.

Evidence Act (1 of 1872) s. 11, Scope of. Supreme     Court (Enlargement     of Criminal     Appellate Jurisdiction) Act, 1970--Acquittal set aside and sentence of life imprisonment imposed--Certificate of High Court     for appealing to Supreme Court not necessary.

HEADNOTE:

The appellant was charged with two offences, (i) under s. 307 I.P.C. with respect to one person, and (ii) under s. 302/34, I.P.C. for having, along with other accused, caused the death of another.    The trial court convicted him under s.324 I.P.C. on the first charge and acquitted him of     the other charge. The appeal by the State against the acquittal on the second charge was allowed by the High Court and     the appellant was convicted under s.302/34 I.P.C. and sentenced to life imprisonment.

Allowing the appeal to this Court,

HELD : (1) In the case of an appeal against an acquittal the appellate court should not interfere    with the acquittal merely    because     it can take one of    the two reasonably possible views which favours conviction. But if the view of the trial court is not reasonably sustainable, on     the evidence on record. the appellate court will interfere    with the acquittal.     If the High Court sets aside an acquittal and convicts,    this Court has to be satisfied, after examining the prosecution and defence cases, and the crucial points    emerging for decision from the facts of--the case, that the view taken by the trial court, on the evidence on record,     is atleast as acceptable as the one taken by     the High Court, before this Court could    interfere with     the decision of the High Court. [521D]

(a) The First Information Report is a     previous statement which, strictly speaking, can be only used to corroborate or contradict the maker of it. In the present case, the F.I.R. was made by the father of the deceased to whom all     the important facts of the occurrence were bound to have    been communicated.    But, though the F.I.R. was given about 4 hours after the incident, it was not mentioned therein    that the appellant    had stabbed the deceased. The    omission of such an important fact affecting the probabilities of     the case is relevant under s.11 of the Evidence Act in judging the veracity of the prosecution case. [522D] (b) The evidence, shows that the deceased was     stabbed by one or the other accused; that the place of occurrence     had been shifted by the witnesses for the prosecution; that     the version     of the alleged eye witnesses is not credible;     and that the alleged dying declaration is unreliable. [524B-D] (2) The High Court, having found that the appellant and the other accused were individually     responsible for their acts, erred in finding the appellants guilty on the basis of common    intention, of    an offense under s. 302/34 I.P.C. [524FG]

(3) An appeal to this Court by the accused, in a case where his acquittal had been converted into a conviction and     the sentence of life imprisonment was imposed upon him, lies as a matter of right under the Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act, 1970, and     no certificate of the High Court is necessary. [521A]

JUDGMENT:

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 12 of 1972.

From the Judgment and Order dated the 1st May, 1971 of     the Madhya    Pradesh High Court in Crl. Appeal No. 653 of 1970. 2-470SCI/75

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R. K. Bhatt for the appellant.

Ram Punjwani,    H. S. Parihar and 1. N. Shroff, for     the respondent.

The, Judgment of the Court was delivered by BEG, J. The sole appellant Ram Kumar Pandey, aged 45 years, was tried together with Suresh Kumar aged 20.     years,     and Mulkraj, aged 45 years, and Ramesh Kumar, aged 17 years, on two charges framed against him.     These were : "Firstly; That you on or about the 23rd day of March 1970 at Raipur, did an act, to wit,     hit Uttam Singh with a knife with such intention or. knowledge and under    such circumstances, that if by that act, you had caused the death of Uttam Singh you would have been guilty of murder and that you caused grievous hurt to Uttam Singh by    the said act and that     you thereby committed an offence, punishable under Section 307 I.P.C. and;

Secondly    : That at the said time     and place, you or some other persons did commit murder by intentionally or knowingly causing the death of Harbinger Singh and the said act was    done in furtherance of the common intention of     all and thereby committed an     offence punishable under Section 302 read with Section 34 of     the Indian Penal Code and within the cognizance of the Court of Sessions."

Suresh    Kumar,    Mulkraj and Ramesh Kumar, were     accused of ,offences punishable under Sections 307/114 and Section     302 read with Section 34     and 114 Indian Penal     Code.     The Sessions' Judge of Raipur, who had tried the    case, found Suresh    Kumar guilty of the murder by stabbing of Harbinder Singh,    aged about 16 years, and sentenced him to    life imprisonment. He convicted the appellant under Section     324 I.P.C.    only for the injury inflicted on Uttam Singh     and sentenced him    to one year's    rigorous imprisonment,     but acquitted him    of other charges. He    also acquitted     the accused Ramesh and Mulkraj of all charges leveled against him.

The State of Madhya Pradesh appealed against the acquittal of the     appellant Ram Kumar Pandey of the charge under Section     302/34 I.P.C., and of Mulkraj and Ramesh Kumar of all charges.    Suresh Kumar, the son of Mulkraj appealed against     his conviction under Section 302 simplicitor,     but this appeal was dismissed by the High Court which maintained his life imprisonment. The High Court also    allowed     the States appeal against the acquittal of Ram Kumar Pandey     for injuries caused to Harbinder Singh, and, convicting     him under Section    302/34    I.P.C., it sentenced him- to    life imprisonment. It convicted Mulkraj of an offence punishable only under Section 323 I.P.C. and sentenced him to a fine of Rs. 200/-, and, in default of payment of fine, to rigorous imprisonment for two months. It, upheld the acquittal of Ramesh Kumar Ahuja of all charges.

This appeal has come up before us after a     certificate granted     by the High Court under Article 134(1) (c) of     the Constitution, but the

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certificate says that the appellant is entitled to it under the Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act, 1970, strictly speaking, no     certificate of the High Court is required for such an appeal where an acquittal has    been converted     into a conviction finder Section 302/34 I.P.C., and a sentence of life    imprisonment imposed     upon an accused person. Thus appeal, in such a case, lies as a matter of right to this Court under the     Act of 1970.

The only question before us now is whether the appellant, who had not appealed at all to the High Court    against     his conviction under Section 324 I.P.C.,     which    stands,     was rightly     convicted by the High Court under Section 302/34, I.P.C.,     after    setting aside his acquittal for     the graver offence     for injuries resulting in the death of Harbinder Singh.

The well settled rule of practice in a case of an appeal against an acquittal is that the appellate Court should     not interfere with the acquittal merely because it can take     one of the two reasonably possible views which favours conviction. But, if the view of the Trial Court is     not reasonably sustainable, on the evidence on    record,     the appellate Court will interfere with an acquittal. If     the Appellate Court sets aside an acquittal and convicts, we have to be satisfied, after examining the prosecution     and defence cases, and the crucial points emerging for decision from the facts of the case, that the view taken by the Trial Court,    on evidence on record, is at least as acceptable as the one taken by the High Court, before we could interfere with the High Court's judgment.

The prosecution case, as set out in the First     Information Report    was ; Uttam Singh, PW 1, residing at Ganj Parao, on the first floor went home at about 3.30 p.m. on 23-3-1970 and was preparing to have a bath when Suresh Ahuja came down from an upper storey of the house and complained that Uttam Singh had been quarreling with members of his family. Uttam Singh requested him to take his seat and promised to    look into the matter. This angered Suresh    Ahuja.     Thereafter, his, elder brother arrived and started quarreling with Uttam Singh's     daughter. At     this stage, the landlord Mulkraj Ahuja,    accompanied by the appellant Ram Kumar    Pandey,     who lives with his family in a side room on the ground floor, entered     and immediately gave him a blow on his eye-,brow. Uttam Singh fell down.    As Uttam Singh got up, the appellant struck    him with a knife from behind. Mukhraj asked Pandey to run     down-stairs. Both the accused tried to run away. Uttam Singh tried to catch them but failed.    Uttam Singh when asked his son Harbinder Singh to make a telephone call. At this point, Suresh, son of Mulkraj, stabbed Harbinder Singh who fell down in the lane. Uttam Singh saw Harbinder Singh lying near the house of Saudager Shah with an injury on his chest which was bleeding profusely. Harbinder Singh was carried to a hospital on a cart and Gurcharan Singh telephoned the police.     Joginder Singh also came while     the injuries were    being inflicted. Uttam Singh's daughters Amarit    Kaur and Taranjit Kaur saw Uttam Singh     wrapping a chadar an the wound of Harbinder Singh.     Raj Jaggi had    seen Harbinder

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Singh falling down. The motive for this incident was    that Mulkraj     Ahuja,     the landlord, wanted his house     vacated by Uttam Singh. Harbinder Singh had died while being taken to hospital.

The above mentioned First information Report was lodged at Police    Station Ganj on 23-3-1970 at 9.15 p.m. The time of this incident    is stated to be 5 p.m. The    only person mentioned as an eye witness to the murder of Harbinder Singh is Joginder Singh. The two daughters Taranjit Kaur, PW 2, and Amarjit Kaur, PW 6, are mentioned in the F.I.R. only as persons     who saw the wrapping of the chadar on the wound of Harbinder Singh, What is most significant is    that it is nowhere mentioned in    the F.I.R. that     the appellant     had stabbed Harbinder Singh at all.     It seems inconceivable that by 9.15 p.m.    it would not be known to Uttam     Singh,     the father of Harbinder Singh, that the appellant had inflicted one of the two stab wounds on the body of Harbinder Singh. No doubt, an    F.I.R. is a previous statement     which    can, strictly speaking, be only used to corroborate or contradict the maker of it. But, in this case, it had been made by the father    of the murdered boy to whom all the important facts of the     occurrence, so far as they were, known up to    9.15 p.m. on 23-3-1970, were bound to have been communicated. If his daughters had seen the appellant inflicting a blow' on Harbinder Singh, the father would certainly have mentioned it in the F.I.R. We think that or missions of such important facts, affecting the probabilities of the case, are relevant under Section 11 of the Evidence Act in judging the veracity of the prosecution case.

Even Joginder Singh, PW 8, was not an eye witness of    the, occurrence. He merely proves an alleged dying    declaration. He stated that Harbinder Singh (described by his pet name as "Pappi") rushed out of his house by opening its door,     and held his hand on his chest with blood flowing down from     it. He deposed that, when he asked Pappi    what had happened, Pappi had stated that Suresh and Pandey had injured him. It is clear from the F.I.R. that Joginder Singh had met Uttam Singh before the F.I.R. was made. Uttam Singh did     not mention there that any dying declaration indicating that the appellant had    also injured Harbinder Singh. was made by Harbinder Singh. The     omission to mention    any injury inflicted on Harbinder Singh by the appellant in the F.I.R. seems very significant in the circumstances of     this case. Indeed,     according to the version in the F.I.R., Joginder Singh,    who was in the lane, is said to have arrived while Harbinder Singh was being injured. Therefore, if this     was correct, the two injuries on Harbinder Singh must also    have been inflicted in the lane outside.

Satwant Kaur, PW 7, the wife of Uttam Singh, who claimed to have been an eye witness of the whole occurrence, was    also not mentioned in the F.I.R. Suresh had, according to    her, stabbed Harbinder Singh on the right side of the chest at the door of the kitchen, and thereafter, Pandey was said to have attacked him.

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Again,    we find that Taranjit Kaur, PW 2, and Amarjit Kaur, PW 6,    daughters of Uttam Singh, have figured as     eye witnesses of the whole occurrence including the stabbing of Harbinder Singh by the appellant. As     already indicated, they are not mentioned in the F.I.R. as eye witnesses of the murder.     This is also very significant in the present case. They have been mentioned only as witnesses of     wrapping a chadar on the wound of Harbinder Singh who was then said to be lying in the lane after the occurrence. In order to explain how Harbinder Singh, said to have    been attacked near the kitchen of Uttam Singh on the first floor, was found lying in the lane in a pool of     blood,     the persecution version is that, after the attack with knives by Suresh    and the appellant, Harbinder Singh ran     and rushed down the steps into the lane.    It was pointed out that, in view of the nature of two injuries sustained, by Harbinder Singh and the     medical evidence about     them,    it was     not possible for Harbinder Singh either to have rushed down, or, in any case, to have made a dying declaration.    The injuries on Harbinder Singh found by Dr. S. C. Vishnoi were as follows :

"(i) An incised wound on the left side of     the chest placed anteriorly and measuring 1-1/2" x 1" x 1-1/2" deep. In the fifth     intercostal space-closed to the lateral border of the left side of    the sternum. It had clean cut     and blood stains margins.

(ii) An    incised wound on the right side of back in the 8th intercostal space 2" below the inferior angle of scapula. It had measured 1" x     1" x 1". It had clean cut and     bloodstains margins.     There     was found difficulty     in probing through this wound".

The Doctor said about the first injury

"This injury had entered the cavity of     the right ventrical.     It was a very serious injury. Right ventrical is an important    part of the heart. Generally such an injury would result in an instantaneous death. Injury to the right ventrical and the paricardium     had resulted in profused hemorrhage".

He also said :

Injury to the lobe of the right lung and     the pleura as found in this case will result in shock. Ordinarily such a injury would immediately be fatal".

The main     points for decision which emerged from the evidence in the case were:

1. Where was Harbinder Singh stabbed?

2. Who     could have been the witness of     the stabbing?

3. Could the    alleged     eye witnesses     be believed?

4. Could the    dying declaration, said to have been made, to

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Joginder Singh, be made the sole basis of     the conviction of the appellant under section 302/34 IPC if the evidence ,of    alleged     eye witnesses was to be discarded?

As regards the place where the stabbing' took     place,     the High Court had itself felt highly dissatisfied with     the manner    in which the case was investigated. The site plans do not show any place where the blood was found. if blood marks had been shown and blood had been taken     from spots where it had fallen, it would have afforded very valuable evidence on the question whether any stabbing of Harbinder Singh did take place at door of the kitchen and whether he ran after that.

The site plans did not show even where the kitchen    was. Therefore, we cannot know, by looking at these, whether     the three ladies,    who are alleged to be eye witnesses at     the trial,    could have seen the occurrence in the room in which Uttam Singh was injured as well as at the door of     the kitchen. Taking all the relevant evidence on     this point into account, it is far 'more likely that, as the Sessions' Judge had guessed, the deceased had been stabbed by Suresh twice in the lane, probably once from the front and again while he fell or was trying to run away. He could not    have moved far from the scene where he was stabbed. The    High Court's reasons to dislodge this inference are insufficient. As regards the second and third points, we are unable to give credence    to the version of the     three alleged     eye witnesses as they were not mentioned as eye witnesses in the F.I.R. made in the circumstances indicated above. Lastly, the alleged dying declaration is also not mentioned in the F.I.R.     On the other hand, the F.I.R., mentions Joginder Singh, who tried to prove the dying declaration as an eye witness.

It may be pointed out that the charge against the appellant for offences under Section 302/34 I.P.C. is also defective inasmuch as it shows that either the    appellant "or    some other person" committed the murder. It does not show how or even mention that the appellant acted in concert with anyone else. However, no grievance has been made of any defect in the charge or any prejudice to the appellant from it.     We therefore, ignore it.

It may     also be mentioned that the High Court     had itself recorded the following finding:

"All the eye-witnesses have admitted that the four accused did not come together ;it     the same time in the room    where the incident happened.     Suresh Kumar came in that    room first, Ramesh Kumar then entered the room     and some time after they were followed by Mulkraj and Ram    Kumar Pandey. There is     nothing to show that there was a preconcert between     the four accused to commit any particular offence in the room. It appears that the whole incident took an ugly and unexpected turn     and the most unfortunate result

was that Harbinder Singh was killed. We     are of the view that the trial Court was right in reaching the conclusion that Ram Kumar Pandey and Suresh Kumar were individually responsible for their acts".

It is difficult, after this finding to follow the reasoning of the     High Court in coming to the conclusion that     the appellant was guilty of an offence punishable under Section 302/34 I.P.C.

Consequently, we allow this    appeal    and set aside     the conviction and     sentence of the appellant under Section 302/34    I.P.C.    If the appellant has    already     served     the sentence awarded under Section 324 I.P.C., as is stated on his behalf, he will be released forthwith. V.M.K.     Appeal allowed.

Re: Ram Kumar Pande vs The State Of Madhya Pradesh - FIR

First information Report:
The basic purpose of filing FIR is to set the criminal law into motion and not to state all the minute details therein. The information under section 154 of Cr.P.C is generally known a s F.I.R though 'first is not used in the code. F.I.R is not the be all and end all of every criminal case and is not sunstantive evidence . It can be used only for limited purposes, like corroborating the maker thereof or as one of res-gestae or for being tendered in a proper case u/sec 32 (1) of Evidence Act or part of informant's conduct u/sec 8 of Evidence Act. (AIR 1963 AP 252).
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