STATE OF M.P. versus BADRI Y ADAV AND ANR.

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. 699of1996, whereby the High Court recorded acquittal of respondents-accused herein, by reversing the judgmer:t 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.

pp. 625–626, margin G

Briefly stated the facts are as follows:--

p. 626, margin A

On 16.9. 1989, the respondents herein were loitering around 'kothi building' where the courts are situated in order to find out the deceased 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 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 death. The matter was investigated and after a prima facie case being established the charge was laid before the Additional Sessions Judge. learned Sessions Judge after threadbare discussion of the evidence 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 conclusion that an offence punishable under Seciion 302 read with 34 found well established against the accused and convicted as aforesaid.

p. 626, margin A

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 Trial Court on benefit of doubt. Accused Raju died during the pendency this appeal and, therefore, appeal qua him stands abated. Now only the respondent-acrused Badri Yadav is before us.

p. 626, margin D

The High Court by the impugned order relied upon the testimony 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.

p. 626, margin E

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.

p. 626, margin F

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 21.9.1989. On 18.12.1990 their statements on oath were recorded before the Trial Court as prosecution witnesses.

p. 626, margin G

It appears that PW-8 and PW-9 filed an affidavit on 16.8.1994 that 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 qid 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.

pp. 626–627, margin H

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 defence witnesses juxtaposed as OW-I and DW-2. The Sessions Judge, however, on examining the credibility of PW-8 and PW-9 juxtaposed as DW- I and DW-2 rejected it as not trustworthy, in our view rightly.

p. 627, margin C

The Sessions Judge came to a finding that the statements ofDW-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.

p. 627, margin E

The High C:mrt, while reversing the order of conviction recorded by Sessions Judge gave the following reasons in support of the reversal paragraph 16 as under: - -· "This case has focused a very strange phenomenon before us. witnesses were examined initially as prosecution witnesses. The was not completed within short span of time. It lingered on for 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 answers would be negative. Unfortunately, the Sessions Trial was conducted day by day. The prosecution witnesses were not produced by making them to remain present for day by day trial. adjournments were sought by defence and they were :ilso granted liberally. All this resulted in strange situation where those witnesses stated something as prosecution witnesses and after lapse of sufficient time. they appeared before the ~ourt and gave the evid;nce as defence a~ witnesses and stated against the prosecution."

p. 628, margin A

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 convictior. and recorded the order of acquittal, which is perverse.

p. 628, margin E

In this case the application under Section 311 Cr.P.C. for recalling 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 examining them stood closed. There is no provi·ion in the Code of Criminal Procedure that by filing affidavit the witnesses examined as PW:. (PW-8 PW-9 in this case) could be juxtaposed as DW-1 and DW2- and be examined as defence witnesses on behalf of the accused.

p. 628, margin E

Mr. A.T.M. Rangaramanujam, learned senior counsel for the respondent, however, contended that the accused is entitled to enter upon defence 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 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 just ice."

pp. 628–629, margin G

(emphasis supplied)

p. 629, margin B

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 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 compelling the attendance of any prosec.ution witness examined, cross-examined and discharged to be juxtaposed as DWs. In the present case PW-8 and PW- 9 were juxtaposed as OW-I and DW-2. This situation is not one what was contemplated by sub-section 3 of Section 233 Cr.P.C.

p. 629, margin B

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 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, crossexamined and discharged. Thereafter, an application under Section 31 i Cr.P.C. was rejected. They were recalled purportedly in exercise of power under subsection (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.

p. 629, margin E

In the case of rakub Ismail Bhai Patel v. State of Gujarat, [2004] 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 PW was not true and was done so at the instance of the police. the evidence of PW- I was relied upon by the Trial Court and also Court. He was examined by the prosecution as an eyewitness. He also the appellants and the co-accused in the Court. After a long lapse filed an affidavit stating that whatever he had stated before the Court true and had done so at the instance of the police. In those circumstances this Court in paragraphs 38 and 39 at SCC pp.240-241 under:-- "38. Significantly this witness, later on filed an affidavit, had sworn to the fact that whatever he had deposed before Court PW I was not true and it was so done at the instance of "39. The averments in the affidavit are rightly rejected Court and also the Sessions Court. Once the witness is a prosecution witness, he cannot be allowed to perjure himself resiting from the testimony given in Court on oath. It is note that during the intervening period between giving of evidence as PW I and filing of affidavit in court later. he was in jail case and that the accused persons were also fellow inmates

pp. 629–630, margin G

In the present case, both PW-8 and PW-9 are related to the PW-8 is the elder brother of the deceased and PW-9 is the friend deceased. Being the close relative and friend of the deceased rhyme and reason to depose falsely against the accused and allowing culprit to escape unpunished. On 21.9.1989, their statements were under Section 164 Cr.P.C. before the Magistrate. On 18.12.1990, their were recorded before the Sessions Judge. In both the statements stated that they were eyewitnesses and witnessed the occurrence. them have stated that they saw the accused assaulting the deceased knives and swords. They were subjected to lengthy cross-examination nothing could be elicited to discredit the statement-in-chief Their as defence witnesses was recorded on 17. 7 .1995 when they resiled from the previous statements as prosecution witnesses. It, therefore, clearly appears that the subsequent statements as defence witnesses were well an after thought. They were either won over or were under threat intimidation from the accused. No reasonable person, properly instructed law, would have acted upon such statements.

p. 630, margin A

Another contention of counsel for the respondent is being 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 Ma_hesh by giving benefit of doubt because his name does not figure in the F.I.R. One Yadav was mentioned in the F.I.R. as an accused. Whether the Gopal mentioned in the F.l.R. was the same Mahesh was not explained prosecution and this was the reason for the acquittal of Mahesh. The of the respondent herein was named in the F.I.R. as one of the assailants he was also identified by PW-8 and PW-9.

pp. 630–631, margin G

Primafacie PW-8 Mohd. Amin and PW-9 Zakir Ali in their subsequent _affidavits made a false statement which they believed to be false or believe to be true. Hence, they are liable for perjury for giving false punishable under Section 193 IPC. We direct the Vth Additional Sessions Judge, Ujjain, Madhya Pradesh, to file a complaint under Section 193 Indian Penal Code and initiate proceedings against Mohd. Amin PW-8 Zakir Ali PW-9 juxtaposed as DW-1 and DW-2 and pass necessary accordance with law.

p. 631, margin C

In the facts and circumstances aforesaid. the High Court was not in reversing the conviction recorded by the Trial Court. The order of Court dated 12.5.2000 is accordingly set aside and the order of the Trial convicting the respondent under Section 302/34 !PC is restored. The 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 the remaining part of the sentence. Compliance report within one month. RP. Appeal

p. 631, margin D