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Supreme Court of India
Madhav vs The State Of Madhya Pradesh on 18 August, 2021Author: Hon’Ble Ms. Banerjee
Bench: Hon’Ble Ms. Banerjee, V. Ramasubramanian
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REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
Criminal Appeal No. 852 of 2021
(@ Special Leave Petition (Crl.) No.2345 of 2019)
MADHAV … APPELLANT(S)
Versus
STATE OF MADHYA PRADESH … RESPONDENT(S)
WITH
Criminal Appeal No. 853 of 2021
(@ Special Leave Petition (Crl.) No.9326 of 2018)
JUDGMENT
V. Ramasubramanian, J.
Leave granted.
2. Challenging their conviction for the offence punishable
Signature Not Verified
Digitally signed by
SUNIL KUMAR
Date: 2021.08.18
under Section 302 read with Section 34 of the Indian Penal
16:43:07 IST
Reason:
Code, 1860 (“IPC” for short) and the sentence of life
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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.
3. We have heard Mr. Ardhendumauli Kumar Prasad and
Mr. 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 “A2”), who is
the appellant in one of these appeals, is the sister of
Shri Madhav (hereinafter referred to as “A3”) who is the
appellant in the other 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 A1) with a knife and lathis
resulting in his death and that, thereafter, with the intention
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of screening the offenders from legal punishment, A2 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 Section 34
IPC, A2 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 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 A2 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
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prosecution treated PWs 4 and 5 as hostile, after they stated
during chief examination that they did not see A3 at the spot,
which was contrary to their statement to the Police. The
Sessions Court believed their testimony partly in so far as it
related to the presence of A1 and A2 at the spot but
disbelieved their evidence, in so far as it related to the alleged
assault on the victim. 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
PW9. The High Court even overlooked the fact that the Trial
Court declared them as hostile at the request of the
prosecution.
8. PW6 was a person by name Kailash Yadav and PW7 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 Information Report FIR No.331 of 2008
registered on 13.05.2008, on the basis of the intimation sent
by A2 from the hospital. The Sessions Court disbelieved the
evidence of PW6 in entirety, but accepted one portion of the
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statement of PW7, 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 DW1. But that portion of the
evidence of PW7 taken by the Sessions Court to be probable,
merely related to an argument that the victim Pappu had with
his brother Raju (A1) nearly two hours before the time of
occurrence of the crime. Interestingly the argument between
the deceased and A1 was purportedly in relation to an
amount of Rs.250/ borrowed by the deceased from PW7, but
not repaid by him.
9. The Sessions Court considered Sapna Yadav, examined
as PW9, who was aged 16 years at the time of occurrence, as
the star witness. She was the niece of the deceased. Though
her statement was recorded by the Police only on 03.06.2008,
after 21 days of the date of occurrence, the Sessions Court
proceeded to believe her evidence and convicted all the three
accused for the offences punishable under Section 302 read
with Section 34 IPC. However, A2 was acquitted of the
charges under Sections 211 and 194 IPC. All of them were
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sentenced to life imprisonment and also imposed a fine of
Rs.2500/.
10. A1 and A2 being husband and wife respectively,
together filed an appeal in Criminal Appeal No.1323 of 2009
and A3 filed a separate appeal in Criminal Appeal No.727 of
2009, on the file of the High Court, challenging their
conviction and sentence. Relying mainly upon the testimony of
the star witness PW9 and the medical evidence regarding the
cause of death, the High Court confirmed the conviction and
sentence and dismissed the appeals. Aggrieved by the
dismissal of their appeals, A2 and A3 alone have come up
with the above criminal appeals. However, A1 has been
arrayed as Respondent No.2, in the appeal filed by A2.
11. Drawing our attention to the inherent contradictions in
the testimonies of PWs 9 and 14, and the glaring
inconsistencies between their testimonies, the learned counsel
for the appellants argued that the conviction was based
entirely upon surmises and that such a conviction is wholly
unsustainable in law.
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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, 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 PW9 and others.
13. We have carefully considered the material on record and
the 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 appreciated by narrating the
sequence of events as under:
(a) Admittedly, an information was received by one Shri
G.P. Dwivedi working as Assistant Subinspector in
Moti Nagar Police Station, Sagar District at about
23.00 hrs. on 13.05.2008 from the Government
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Hospital (Tili) about a person having been brought
dead. The information had been sent at the instance
of A2, who had taken the body of the victim in an
auto rickshaw to the hospital. This Assistant Sub
Inspector was examined as PW12. According to
PW12, a FIR was registered in FIR No.331 of 2008
at 23.50 hrs. showing the name of the complainant
as Smt. Sahodra Bai (A2) and 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 Subinspector by name R.K. Sen,
examined as PW14. According to him, he started
the investigation in the morning 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 PW14 proceeded in
the reverse gear, by making the 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
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registered at 23.50 hours the previous night, to
record the statements of the informant, visit the
place of 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) During crossexamination, PW14 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 A1 to the Medical
Officer (examined as PW2) of the District Hospital
for medical examination on 15.05.2008 and got a
report to the effect that there were several
abrasions on the back of A1. 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 A1.
(c) After obtaining the medical report about the
injuries on the body of A1 on 1552008, PW12
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
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the commission of the crime, persons named as
accused in the FIR were made witnesses for the
prosecution and the 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 PW9, the
so called star witness, was recorded by the IO.
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 Uturn
and proceeded towards the very informant and her family
members. Right from the beginning, the defence taken by the
accused was that due to political influence, they were made
accused and the actual accused were made witnesses. This
stands corroborated by the admission made by PW14 (IO)
that when he took up the investigation on 14.05.2008, there
were demonstrations held by political parties.
16. What is shocking is the admission made by PW14 during
crossexamination that he was not aware, at the time when he
started the investigation (in the morning of 14.05.2008),
whether the accused named in the FIR, namely, Ruia and
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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 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.
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 motherinlaw of the victim
first filed a complaint of culpable homicide against unknown
persons, who, allegedly sneaked into the bedroom of her
daughterinlaw and murdered her. During the progress of the
1 (2002) 1 SCC 714
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investigation into the FIR registered on the basis of the
motherinlaw’s complaint, the Police found that the murder
was committed pursuant to a conspiracy hatched by the first
informant and her other daughtersinlaw. Therefore, the
Police sent a report to the Court to the effect that the
allegations in the FIR registered at the behest of the mother
inlaw 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 overturned by the High Court in
a revision and the CJM was directed to conduct an inquiry
under Section 202 of the Code. Thereafter, the Police filed a
chargesheet against the original informant (motherinlaw)
and two others. The CJM committed the case to Sessions and
the Sessions Judge framed a charge for the offence punishable
under Section 302 read with Section 34 but the motherinlaw
approached the High Court and got the proceedings quashed.
13
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 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 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 of the same case. But when there are rival versions in
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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 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 Uturn. 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 A2 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 (PW14)
feigned ignorance. The 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
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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 to arrest them.”
But interestingly, the star witness for the prosecution, namely,
PW9, 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 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 my Mausa came.”
21. Unfortunately neither the Trial Court nor the High Court
took note of the above admission on the part of PW9 in the
context of the admission made by the IO as PW14.
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 PW14 which reads as
follows:
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“I was given verbal instructions by higher police
officers that Kailash Yadav, Rooiya @ Bhagirath
Yadav be impleaded as 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 deceased this fact has not come
on record.”
23. According to the IO, the knife used by A1 for the
commission of the offence was seized from the house of A1.
Similarly the lathis used for the commission of the offence
were also seized from the houses of A2 and A3. Seizure was
effected, according to the IO, in the presence of witnesses and
seizure memos prepared. But those witnesses Dal Chandra
and Deen Dayal did not support the prosecution. Dal Chandra
was examined as PW1 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 signatures in the seizure
memos. He explained this by stating that he signed the seizure
memo and memorandum statement outside the hotel situate
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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 PW1 merely on 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 on the very first day, he recorded
the statements of several witnesses including Kailash and
Ruia. It means that he started with a predetermination that
the informant, her husband and her brother were the culprits
and the original accused were innocent. The relevant portion
of the evidence of PW14 in this regard reads as follows:
“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 @ Bhagirath Yadav,
Baby @ Leelabai, Gandharv Patel, Raghuvir
Thakur, Brijesh Rawat, Om Prakash Pathak,
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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
A1 had a quarrel with his brother (the deceased), sometime
before the commission of the crime, over the nonrepayment of
a sum of Rs.250/ by the deceased to Ruia and that in the
quarrel, A1 got injured and that thereafter all the 3 accused
attacked the victim resulting in his death. A1 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 Court has believed this story on the basis of the
testimony of DW1, the mother of both A1 and the deceased.
All that DW1 stated in her testimony was that A1 questioned
the deceased as to why he was not returning the money due
and payable to Ruia.
26. Coming to the testimony of PW9, projected as the star
witness for the prosecution, the explanation given by the IO for
recording her statement on 03.06.2008, after 21 days of the
occurrence of the crime, is unbelievable. In any case, if her
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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 put pressure on the police to give a clean chit to
Ruia and Kailash. These admissions on the part of PW9,
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 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 P25 (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
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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 Uttar Pradesh2, a Constitution Bench of this Court
by a majority held that, “…that it would be farfetched to
conclude from the mere presence of bloodstained 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
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 prosecution theory
2 AIR 1963 SC 74
3 (1987) 3 SCC 480,
4 (1989) Supp.(2) SCC 21
21
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. 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 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 of hematological changes and
plasmatic coagulation. After referring to the Constitution
Bench decision in Raghav Prapanna Tripathi (supra), this
5 (2003) 1 SCC 398
6 (2008) 3 SCC 210
7 (1999) 3 SCC 507
22
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 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.
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 (supra); Teja Ram (supra), Gura Singh
(supra); John Pandian vs. State12; and Sunil Clifford
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
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Daniel vs. State of Punjab13 and came to the conclusion that
once the recovery is made in pursuance of a disclosure
statement made by the accused, the matching or non
matching of blood 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 the recovery and
about the origin of the human blood.
33. In the case on hand, even PW1, 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 PW14 and corroborated by PW9,
whom the prosecution considered to be a star witness.
Unfortunately, both the Sessions Court and the High Court
completely overlooked these aspects.
13 (2012) 11 SCC 205
14 (2019) 7 SCC 781
24
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 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.
35. In the light of the above, we are clearly of the view that
the investigation in this case was carried out by PW14, 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
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 A1, A2
25
and A3 caused the death of A1’s brother due to the failure of
the victim to return an amount of Rs.250/ due and payable to
Ruia (PW7) and that thereafter, they deliberately 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 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 A1 has not come up on appeal. Though
Shri Shreeyash U. Lalit, learned counsel for the State
submitted that A1’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 A2 and A3 (the
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appellantsherein) to conclude that they are entitled to
acquittal. This is a case where we have disbelieved, in
entirety, the story of the prosecution. Therefore, to deny the
benefit of the said conclusion to A1 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.
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 A1, are set aside. All the three accused shall be
released forthwith, unless they are in custody in relation to
any other case.
…..…………………………..J.
(Indira Banerjee)
..…..………………………….J
(V. Ramasubramanian)
AUGUST 18, 2021
NEW DELHI.
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