CASE NO.:
Appeal (crl.) 1642 of 2005
PETITIONER:
State of Madhya Pradesh
RESPONDENT:
Badri Yadav & Anr.
DATE OF JUDGMENT: 31/03/2006
BENCH:
H.K. Sema & Dr. AR. Lakshmanan
JUDGMENT:
J U D G M E N T
H.K.SEMA,J
This appeal filed by the State of Madhya Pradesh is
against the judgment and order of the High Court dated
12.5.2000 passed in Criminal Appeal No.699 of 1996, whereby
the High Court recorded acquittal of respondents-accused
herein, by reversing the judgment of the Trial Court convicting
the respondent and others under Section 302/34 IPC and
sentenced them RI for life and a fine of Rs.200/- and in default
to undergo RI for a period of one month.
Briefly stated the facts are as follows:-
On 16.9.1989, the respondents herein were loitering
around 'kothi building' where the courts are situated in order
to find out the deceased Lal Mohd. They were all sitting in an
auto rickshaw which was hired by them. Finally, they
succeeded in locating the deceased Lal Mohd. who was sitting
in a tempo. While the tempo stopped for permitting a lady to
alight from it and proceeded ahead, the accused-respondents
obstructed the said tempo and they pulled out the deceased
Lal Mohd. from the said tempo and assaulted him with swords
and knives causing number of injuries, which resulted in his
death. The matter was investigated and after a prima facie
case being established the charge was laid before the
Additional Sessions Judge. The learned Sessions Judge after
threadbare discussion of the evidence of prosecution witnesses
including the two eye witnesses PW-8 Mohd.Amin and PW-9
Zakir Ali who later juxtaposed as DW-1 and DW-2, came to the
conclusion that an offence punishable under Section 302 read
with 34 was found well established against the accused and
convicted as aforesaid.
Before the Trial Court four accused had faced the
trial namely accused Badri Yadav, Raju, Mahesh Bhat and
Mohan Jayaswal. Accused Mohan Jayaswal died during the
trial. Accused Mahesh Bhat was acquitted by the Trial Court
on benefit of doubt. Accused Raju died during the pendency
of this appeal and, therefore, appeal qua him stands abated.
Now only the respondent-accused Badri Yadav is before us.
The High Court by the impugned order relied upon
the testimony of DW-1 Mohd. Amin and DW-2 Zakir Ali who
were examined as eye witnesses as PW-8 and PW-9 and
acquitted the respondents by reversing the well merited
judgment of the Trial Court convicting the respondents.
The facts of this case illustrate a disquieting feature
as to how the High Court has committed a grave miscarriage
of justice in recording the acquittal of the respondents.
Few dates would suffice. PW-8 Mohd.Amin and
P.W.9 Zakir Ali's statements were recorded under Section 164
Cr.P.C. before the Magistrate on 21.9.1989. On 18.12.1990
their statements on oath were recorded before the Trial Court
as prosecution witnesses.
It appears that PW-8 and PW-9 filed an affidavit on
16.8.1994 that the statements made before the Magistrate by
them were under pressure, tutored by police of Madhav Nagar
and due to their pressure the statements were recorded. It
was further stated that the policemen threatened them that if
they did not make statements as tutored by the police they
would implicate PW-8 and PW-9 in this case and when the
statements were recorded before the Magistrate the policemen
were standing outside and therefore the statements were made
as tutored by the police and due to threat and coercion. By
this affidavit they have completely resiled from their previous
statements recorded before the court as prosecution
witnesses. They further stated that they did not see any
marpeet and who had inflicted injuries. They further denied
that they did not see any incident at all nor any person.
Though the affidavit appeared to be dated 16.8.1994, it was
actually signed by both on 17.8.1994.
In the affidavit of Zakir Ali PW-9 dated 17.8.1994 it
is also stated that his statement was recorded on 18.12.1990
before the Sessions Judge. The affidavit further stated that
the statement recorded on 18.12.1990 was made due to threat
and under the pressure of police. It is further stated that the
applicant was going for Haj and according to the religious
rites, he wanted to bid good-bye to all the sins he had
committed. It is further stated that the statements he made
before the court of Magistrate and before the Sessions Judge
were false. It is unfortunate that the said application was
allowed by the Sessions Judge on 9.2.1995 and they were
allowed to be examined as defence witnesses juxtaposed as
DW-1 and DW-2. The Sessions Judge, however, on examining
the credibility of PW-8 and PW-9 juxtaposed as DW-1 and DW-
2 rejected it as not trustworthy, in our view rightly.
The Sessions Judge came to a finding that the
statements of DW-1 and DW-2 were recorded under Section
164 Cr.P.C. before the Magistrate on 21.9.1989 as PW-8 and
PW-9. Thereafter, their statements were recorded before the
Sessions Judge on 18.12.1990 and after four years on
17.7.1995 they gave a different version resiling from their
previous statements on grounds of threat, coercion and being
tutored by the police. It will be noticed that in between
18.12.1990 the day on which their statements were recorded
before the Sessions Judge as PWs and their statements as
defence witnesses which were recorded on 17.7.1995 as DWs,
no complaint whatsoever was made by DW-1 and DW-2 to any
Court or to any authority that they gave statements on
18.12.1990 due to coercion, threat or being tutored by the
police. This itself could have been a sufficient circumstance to
disbelieve the subsequent statements as DW-1 and DW-2 as
held by the Sessions Judge, in our view, rightly.
The High Court, while reversing the order of
conviction recorded by the Sessions Judge gave the following
reasons in support of the reversal in paragraph 16 as under: -
"This case has focused a very strange
phenomenon before us. The witnesses were
examined initially as prosecution witnesses.
The trial was not completed within short span
of time. It lingered on for about five years.
After lapse of five years these witnesses stated
in favour of the accused and against the
prosecution. The question arises whether the
prosecutor in charge of the prosecution was
vigilant enough to see that all prosecution
witnesses are examined within reasonable time
span, so as to see that the case is completed
within that time span. The question arises
whether the court was vigilant enough to see
that the trial is conducted day by day system.
The both answers would be negative.
Unfortunately, the Sessions Trial was not
conducted day by day. The prosecution
witnesses were not produced by making them
to remain present for day by day trial. The
adjournments were sought by defence and
they were also granted liberally. All this
resulted in strange situation where those two
witnesses stated something as prosecution
witnesses and after lapse of sufficient time,
they appeared before the court and gave the
evidence as defence as witnesses and stated
against the prosecution."
In our view, the reasoning recorded by the High
Court, itself would have been sufficient to reject the testimony
of DW-1 and DW-2. However, having said so the High Court
reversed the order of conviction and recorded the order of
acquittal, which is perverse.
In this case the application under Section 311
Cr.P.C. for recalling PW-8 and PW-9 and re-examining them
was rejected by the Court on 2.9.1994. Therefore, the
question with regard to recalling PW-8 and PW-9 and re-
examining them stood closed. There is no provision in the
Code of Criminal Procedure that by filing affidavit the
witnesses examined as PWs (PW-8 and PW-9 in this case)
could be juxtaposed as DW-1 and DW2- and be examined as
defence witnesses on behalf of the accused.
Mr.A.T.M. Rangaramanujam, learned senior counsel
for the respondent, however, contended that the accused is
entitled to enter upon defence and adduce evidence in support
of his case as provided under Section 233 Cr.P.C. particularly
Sub-Section (3) of Section 233. Sub-Section (3) of Section 233
reads: -
"(3) If the accused applies for the issue of any
process for compelling the attendance of any
witness or the production of any document or
thing, the Judge shall issue such process
unless he considers, for reasons to be
recorded, that such application should be
refused on the ground that it is made for the
purpose of vexation or delay or for defeating
the ends of justice."
(emphasis supplied)
Section 233 itself deals with entering upon defence
by the accused. The application for recalling and re-examining
persons already examined, as provided under Section 311
Cr.P.C., was already rejected. The power to summon any
person as a witness or recall and re-examine any person
already examined is the discretionary power of the Court in
case such evidence appears to it to be essential for a just
decision of the case. Under Section 233 Cr.P.C. the accused
can enter upon defence and he can apply for the issue of any
process for compelling the attendance of any witness in his
defence. The provisions of sub-section (3) of Section 233
cannot be understood as compelling the attendance of any
prosecution witness examined, cross-examined and
discharged to be juxtaposed as DWs. In the present case
PW-8 and PW-9 were juxtaposed as DW-1 and DW-2. This
situation is not one what was contemplated by sub-section 3
of Section 233 Cr.P.C.
When such frivolous and vexatious petitions are
filed, a Judge is not powerless. He should have used his
discretionary power and should have refused relief on the
ground that it is made for the purpose of vexation or delay or
for defeating the ends of justice. In the present case, the
witnesses were examined by the prosecution as eyewitnesses
on 18.12.1990, cross-examined and discharged. Thereafter,
an application under Section 311 Cr.P.C. was rejected. They
were recalled purportedly in exercise of power under sub-
section (3) of Section 233 Cr.P.C. and examined as DW-1 and
DW-2 on behalf of the accused on 17.7.1995. This was clearly
for the purpose of defeating the ends of justice, which is not
permissible under the law.
In the case of Yakub Ismail Bhai Patel vs. State
of Gujarat, (2004) 12 SCC 229 in which one of us Dr.AR.
Lakshmanan,J. was the author of the judgment, in somewhat
similar case to the facts of the present case it was held that
once a witness is examined as a prosecution witness, he
cannot be allowed to perjure himself by resiling from the
testimony given in court on oath by filing affidavit stating that
whatever he had deposed before court as PW was not true and
was done so at the instance of the police. In that case the
evidence of PW-1 was relied upon by the Trial Court and also
by the High Court. He was examined by the prosecution as an
eyewitness. He also identified the appellants and the co-
accused in the Court. After a long lapse of time he filed an
affidavit stating that whatever he had stated before the Court
was not true and had done so at the instance of the police. In
those facts and circumstances this Court in paragraphs 38
and 39 at SCC pp.240-241 held as under: -
"38. Significantly this witness, later on filed an
affidavit, wherein he had sworn to the fact that
whatever he had deposed before Court as PW 1
was not true and it was so done at the
instance of the police".
"39. The averments in the affidavit are rightly
rejected by the High Court and also the
Sessions Court. Once the witness is examined
as a prosecution witness, he cannot be allowed
to perjure himself by resiling from the
testimony given in Court on oath. It is
pertinent to note that during the intervening
period between giving of evidence as PW 1 and
filing of affidavit in court later, he was in jail in
a narcotic case and that the accused persons
were also fellow inmates there."
In the present case, both PW-8 and PW-9 are
related to the deceased. PW-8 is the elder brother of the
deceased and PW-9 is the friend of the deceased. Being the
close relative and friend of the deceased there is no rhyme and
reason to depose falsely against the accused and allowing the
real culprit to escape unpunished. On 21.9.1989, their
statements were recorded under Section 164 Cr.P.C. before
the Magistrate. On 18.12.1990, their depositions were
recorded before the Sessions Judge. In both the statements
they have stated that they were eyewitnesses and witnessed
the occurrence. Both of them have stated that they saw the
accused assaulting the deceased with knives and swords.
They were subjected to lengthy cross-examination but nothing
could be elicited to discredit the statement-in-chief. Their
examination as defence witnesses was recorded on 17.7.1995
when they resiled completely from the previous statements as
prosecution witnesses. It, therefore, clearly appears that the
subsequent statements as defence witnesses were concocted
well an after thought. They were either won over or were
under threat or intimidation from the accused. No reasonable
person, properly instructed in law, would have acted upon
such statements.
Another contention of counsel for the respondent is
being noted only to be rejected. It is contended that accused
Mahesh who suffered disclosure statement was acquitted by
the Trial Court on benefit of doubt and, therefore, the same
yardstick should have been applied to the case of the
respondent herein. The Trial Court acquitted the accused
Mahesh by giving him the benefit of doubt because his name
does not figure in the F.I.R. One Gopal Yadav was mentioned
in the F.I.R. as an accused. Whether the Gopal Yadav
mentioned in the F.I.R. was the same Mahesh was not
explained by the prosecution and this was the reason for the
acquittal of Mahesh. The name of the respondent herein was
named in the F.I.R. as one of the assailants and he was also
identified by PW-8 and PW-9.
Prima facie PW-8 Mohd. Amin and PW-9 Zakir Ali in
their subsequent affidavits made a false statement which they
believed to be false or did not believe to be true. Hence, they
are liable for perjury for giving false evidence punishable
under Section 193 IPC. We direct the Vth Additional Sessions
Judge, Ujjain, Madhya Pradesh, to file a complaint under
Section 193 of the Indian Penal Code and initiate proceedings
against Mohd.Amin PW-8 and Zakir Ali PW-9 juxtaposed as
DW-1 and DW-2 and pass necessary orders in accordance
with law.
In the facts and circumstances aforesaid, the High
Court was not justified in reversing the conviction recorded by
the Trial Court. The order of the High Court dated 12.5.2000
is accordingly set aside and the order of the Trial Court
convicting the respondent under Section 302/34 IPC is
restored. The appeal is allowed. The respondent is on bail.
His bail bond and surety stands cancelled. He is directed to
be taken back into custody forthwith to serve out the
remaining part of the sentence. Compliance report within one
month.
