The statement made in defence by accused under Section 313, Cr.P.C. can certainly be taken aid of to lend credence to the evidence led by the prosecution, but only a part of such statement under Section 313 of the Code of Criminal Procedure cannot be made the sole basis of his conviction. The law on the subject is almost settled the statement under Section 313 Cr.P.C. of the accused can either be relied in whole or in part. It may also be possible to rely on the inculpatory part of his statement if the exculpatory part is found to be false on the basis of the evidence led by the prosecution.
30. The statement of accused No. 1 - Prem Singh recorded in his examination under Section 313 of Cr.P.C. constitutes his defence plea. He stated that he was attacked by the deceased along with his associate whereupon the villagers rushed and caused injuries to the deceased the evidence led by the prosecution having been rejected by this Court, the defence set up by accused - Prem Singh cannot be discarded as wholly improbable.
31. The statement of accused under Section 313 of Cr.P.C. is not a substantive piece of evidence. It can be used for appreciating evidence led by the prosecution to accept or reject it. It is, however, not a substitute for the evidence of the prosecution. As held in the case of Nishi Kant (Supra) by this Court if the exculpatory part of his statement is found to be false and the evidence led by the prosecution is reliable the inculpatory part of his statement can be taken aid of to lend assurance to the evidence of the prosecution. If the prosecution evidence does not inspire confidence to sustain the conviction of the accused, the inculpatory part of his statement under Section 313 of Cr.P.C cannot be made the sole basis of his conviction.
IN THE SUPREME COURT OF INDIA
Appeal (crl.) 792-793 of 1994
Decided On: 01.10.2002
Mohan Singh Vs. Prem Singh and Ors.
Hon'ble Judges/Coram:
U.C. Banerjee and D.M. Dharmadhikari, JJ.
Citation: AIR 2002 SC 3582
1. These two appeals have been filed by complainant and the State of Punjab against the judgment of the High Court of Punjab and Haryana dated 24th September, 1993 whereby the two accused, (respondents herein) by reversal of the judgment of the Sessions Judge, Hoshiarpur, have been acquitted of the charges under Section 302 read with Section 34 an 324 of the Indian Penal Code.
2. The case of the prosecution against the two accused is that at 8.40 on the night of 26.8.1990 in village Bassi Umar Khan, near the courtyard of Atma Singh, the two accused viz. Prem Singh, accused No. 1 and Deepinder Singh-accused No. 2 inflicted injuries on deceased Ravinder Singh, son of Mohan Singh-Pw6 and caused his death. The prosecution case, as sought to be proved in the court in necessary details, is as under:-
3. The motive of the crime is stated to be a pending civil litigation between father of the deceased in the capacity of holder of Power of Attorney on behalf of one Joginder Singh Mahant on one side and Sampuran Singh, father of accused No. 1, Prem Singh on the other, regarding the possession of a piece of land in village Bassi Umar Khan.
4. The alleged offence of murder of deceased is alleged to have ben committed on 28th June, 1990 at about 8.40 p.m. when the deceased was returning from his filed to his house. It is stated that Mohan Singh-PW6, father of the deceased and Sardara Singh-PW7 were also following the deceased on their way back from field to the house. At that time, accused No. 1- Prem Singh, armed with Datar and Deepinder Singh-accused No. 2 armed with Gandasi way-laid the deceased. Accused No. 1 shouted that Mohan Singh, father of the deceased would be "taught a lesson" for pursuing a case against father of Prem Singh. After such declaration accused No. 1-0 Prem Singh gave a Datar blow to the deceased which the latter warded off but it hit him on his right hand. Deceased then in a bid to escape started running towards the village. The two accused chased him. After covering about forty paces the deceased stumbled down and fell on the heap of earth lying in the courtyard of the house of one Atma Singh. When the deceased had fallen down, accused No. 1-Prem Sigh inflicted a Datar blow on the left side of neck of the deceased while accused NO. 2, Deepinder Singh inflicted a Gandasi blow on his left knee. The above named two eyewitnesses raised alarm whereupon the two accused ran away with their weapons. The villagers then gathered there. The deceased was taken in a tractor-trolley to the civil Dispensary, Haryana where Dr. Chaman lal - PW5, after examining the deceased, declared him dead. The doctor then sent an intimation at about 9.30 p.m. to the police station, Haryana which is stated to be at a distance of about 200 yards from the Hospital.
5. The further case of the prosecution is that thereafter leaving the dead body of the deceased in the hospital in the care of Sardara Singh-PW7, Mohan Singh PW6, while proceeding to the police station, Haryana for making a report, met on the way, ASI Santokh Singh-PW10. A report of the incident was lodged with him (marked as Ex. PN) at 10.30 p.m. It is not disputed that the formal First Information Report Ex.PN, under Section 302/34 Indian Penal Code was registered at the police station at 10.30 pm On 28.6.1990 by ASI Nirmal Singh. Special report of the FIR was conveyed to the Magistrate at Hoshiarpur through Head Constable Kapur Singh-PW4 on 29th June, 1990 at 4.45 am.
6. Santokh Singh, ASI-PW10 undertook the investigation of the crime. After preparing inquest memo. Ex.PC, the investigating officer inspected the spot and seized blood stained earth form near the courtyard of Atma Singh. A pair of chappals-Ex.P7/1-2 of the deceased which was found lying near the spot at the place shown in the site-plan Ex.PT was seized.
7. Autopsy on the dead body of the deceased was conduced by Dr. Avinash Sood PW1 at civil Hospital, Hoshiarpur at 12 noon on 29th June, 1990. The doctor found the following ante mortem injuries on the person of the deceased, which according to him were sufficient in the ordinary course of nature, to cause his death.
"1. A spindle shaped incised wound with inverted margins measuring 6.3 cm on the nape of neck on its left laterally. Underlying muscles and major blood vessels cut. The wound started 2 cm away from midline towards left the laterally
2. A continuous wound on the right hand fingers. The wound was incised in nature with inverted margins and underling muscles cut and the bones of all the fingers exposed as if in gripping a sharp weapon.
3. An incised wound with inverted margins size 2 x 1 cm over the left knee joint superiority. The wound was skin deep".
8. The further case of the prosecution is that the two accused made an extra-judicial confession to Puran Singh-PW8, Lambardar of the village when the contacted him on 30th June, 1990 and sought his help for their production before the police. It is stated that the Lambardar instructed them to contract him on the next day. The accused contacted him much thereafter on 6th July, 1990 and they were then produced before ASI-Santokh Singh who arrested them.
9. It is also the case of the prosecution that on the disclosure statements of the two accused, the alleged weapons used, described as Datar Ex. P6 and Gandasi Ex. P5, were recovered and seized after digging out earth from the corner of the tube-well room.
10. Accused No. 2, Deepinder Singh, abjured his guilt and stated that he had been falsely implicated. Prem Singh-accused No. 1, however, after the trial, in his examination under Section 313 of the Code of Criminal procedure took the following specific defence which reads as under:-
"Atma Singh does not live in the village. The compound of his house is open. I was sitting on a cot in his compound. Ravinder Singh armed with takua, Amarjit Singh, son of Sardar Singh, armed with a dang, came there and attacked me and caused injuries. I raised alarm. Neighbours came and inflicted injuries to Ravinder Singh in order to rescue me from Ravinder Singh. I went to the civil Dispensary, Haryana and got myself medically examined. Doctor Chaman Lal informed the police. ASI Santosh Singh came to the hospital. and I informed him of the occurrence. He arrested me and took me to the police station, detained till 5.7.1990 and framed me in the case. Mohan Singh does not reside in the village Bassi Umar khan. Sardar Singh is inimical to me and the members of my family"
11. Dr. Chaman Lal-PW5 had medically examined accused Prem Singh on 28.6.1990 at 9.45 and found following four injuries on his person:
"1. An incised wound 3.5 cm x 0.25 cm x muscle deep present on the inner aspect of the right thumb. It was lying obliquely. Upper end was 5 cm from the tip of the thumb. Fresh bleeding from the wound was present.
2. An abrasion 2 cm in length x liner present on the palmer aspect of the right hand, 2 cm in front of injury no. 1.
3. An abrasion 2 cm in length x liner present on the back of ring finger lying obliquely and in the middle of the finger of left hand.
4. An abrasion 2 cm x liner lying on the back of ring finger of left hand 2 cm below the injury no. 3".
12. The trial court believed the eyewitnesses account given by Mohan Singh-PW6 and Sardar Singh-PW7. It also relied on the evidence of extrajudicial confession made to Puran Singh-PW8. The trial court, however, doubted the genuineness of the recovery of the weapons. After appreciating the evidence on record by its judgment dated 6.12.1991 the trial court convicted Prem Singh-accused No. 1 under Section 302 IPC and sentenced him to life imprisonment. Deepinder Singh-accused No. 2 was convicted under Section 302 with the aid of Section 34 IPC and was also sentenced to life imprisonment.
13. The High Court in appeal, however, acquitted the accused. On the question of alleged motive, the High Court found that civil litigation was against Mohan Singh-PW6 and not against his son deceased Ravinder Singh. In its opinion, the case of the prosecution is highly improbable that -- deceased alone was attacked, and Mohan Singh against whom the accused had actual grudge, was allowed to go unhurt.
14. The High Court found that the entries in the OPD register of the Hospital, where the dead body is alleged to have been carried by the two alleged eyewitnesses, contains interpolation. There was a subsequent insertion of entry of dead body of the deceased in the register. The said tampering with the hospital record indicates that false evidence was created to prove the presence of the two alleged eyewitnesses at the time of the incident. The High Court also found that evidence of recovery of the alleged weapons made on 6th July, 1990 was a fabrication as was also found by the trial court.
15. The High Court totally discarded the alleged extra-judicial confessions made to Puran Singh-PW8. It is held that there was no possibility of the accused reposing any confidence in Puran Singh, the Lambardar of the village and confessing their involvement before him. The conduct of Puran Singh is also unnatural. On such alleged confession he instructed them to contact him the next day but the accused contacted him on 6th July, 1990 on which date they were formally arrested. The High Court observed that Puran Singh is Lambardar of the village and being in close contact with the police has been set up as a witness to prove a false extra judicial confession.
16. The High Court came to the conclusion that there is unexplained delay in lodging the FIR. The High Court found that the FIR was ante-timed. Kapur Singh, Head Constable in that regard was disbelieved. His explanation that he left police station, Haryana on motorcycle at 12.00 in the mid-night but could not carry the report to the judicial magistrate same night because his motorcycle developed some problem on the way, has been disbelieved. The explanation for further delay, by stating that the magistrate was asleep has also been found by the High Court to be false. The conduct of police Constable is held to contrary to the provisions of the Punjab Police Manual which contains instructions how FIRs are to be promptly recorded and reported to the Magistrate.
17. The High Court also came to the conclusion that the two eyewitnesses Mohan Singh PW6 and Sardara Singh PW-7 have been falsely set up to depose that they had actually witnesses the assault made by the accused. The High Court has recorded more than one reason to reject the testimony of the alleged eyewitnesses. It is observed that if one of the accused had a serious grudge against Mohan Singh-PW6 who was present on the spot, instead of attacking him, there was no cause to open attack on his son, the deceased. According to the High Court, the conduct of the alleged eyewitnesses is highly unnatural so also of the deceased. When suddenly attacked the deceased did not turn towards the eyewitnesses for help. The two eyewitnesses did not intervene, render any help or raise a hue and cry to attract the villagers. If the incident took place near the village in the courtyard of Atma Singh, independent witnesses could have been examined from the village. The version of the eyewitnesses that they had carried the deceased in injured condition to the hospital has been disbelieved because there was no recovery and seizure of any blood stained clothes of the eye-witnesses. The investigating party also did not collect any blood stained earth from the place where the accused are alleged to have first opened the attack and inflicted injuries on the deceased.
18. Keeping all the above evidence and circumstances in view, the High Court acquitted both the accused.
19. We have heard learned counsel appearing for the complainant Mohan Singh and learned counsel appearing for the State of Punjab. On behalf of the appellant, the judgment of acquittal passed by the High Court has been assailed and criticized several grounds. It is argued that as the deceased was walking ahead of the eyewitnesses, it was not possible for the accused to have opened attack on the eyewitnesses. It is submitted that after receiving a blow the deceased, as a natural response ran away for his life. It was not necessary for him to have turned for help towards the eyewitnesses. For non-recovery of blood stained earth from the place where the attack was first opened, it is submitted that the place might have been trampled by cattle to leave no trace of blood. So far as non-examination of independent witnesses is concerned, it is stated that it is only after the attack was over that the villagers rushed to the spot on hearing an alarm raised by the eyewitness. The learned counsel also several criticized the reasoning of the High Court that the chapels of the deceased were found near the courtyard of Atma Singh when they would have been left by the deceased at the place where he was first attacked. On the question of unexplained delay in reporting the FIR to the Magistrate, it is submitted that the explanation given by the Head Constable, Kapur Singh that his vehicle had developed plug spark problem, on the way to magistrate, ought to have been believed. On the other reasoning of the High Court that as the deceased had died immediately after the assault, there was no reason to carry his body to the hospital, it is urged that it was natural for the father to have carried the body to the hospital, as he would have not have known that there could have been no chance of revival of life of his son. It is also argued that it was not necessary for the prosecution to explain the injuries found on the person of the accused Prem Singh as they were very minor or superficial injuries and according to doctor would have been even self-inflicted.
20. On behalf of complaint in the appeal, the learned counsel laid much emphasis on the statement of accused Prem Singh in his examination under Section 313 Cr.P.C. wherein he admitted the incident to have taken place in the compound of Atma Singh. It is argued that the accused took a false plea that the deceased and one Amarjeet Singh s/o PW7 Sardara Singh had attacked him whereupon the villagers rushed to his help and caused injuries to the deceased. On behalf of the complainant, learned counsel further argues that the High Court having rejected the defence version of accused Prem Singh made by him in his statement under Section 313 of the Code of Criminal Procedure, ought to have held that story of assault by villagers was false. On his own defence plea the accused Mohan Singh had exceeded the right of private defence making him liable to be convicted and sentenced under Section 304 IPC.
21. As against accused No. 2, Deepinder Singh, it is argued that since he accompanied accused No. 1 Prem Singh and participated with him in assaulting the deceased he should have been convicted under Section 302 or 304 with the aid of Section 34, IPC.
22. We have heard learned counsel appearing for Deepinder Singh. It is argued that there was no motive nor is there evidence against him for his conviction with the aid of Section 34, IPC. Accused No. 2 Deepinder Singh has been attributed to have caused one injury which is found to be only skin deep. He did not cause any injury on any vital part of the body of the deceased.
23. The evidence of extra-judicial confession and recovery of weapons was rightly rejected by the High Court. There was no other evidence to hold that Deepinder Singh had common intention with the co-accused Prem Singh to commit murder. It is submitted that accused No. 2 has rightly been acquitted on justifiable reasons. He has by this time already suffered imprisonment for six months during trial and after his conviction.
24. Having gone through the evidence on record and considering the submissions made by the learned counsel, we have come to the conclusion that there is no case made out for this Court to interfere with he judgment of acquittal passed by the High Court. At some places, in the impugned judgment of acquittal the reasoning of the High Court may not be sound but on weighing the total evidence on record, in our considered opinion, the High Court committed no error in acquitting both the accused. There are several infirmities in the prosecution case. The evidence of alleged eyewitnesses does not inspire confidence. At about 8' O clock in the night, their version is that they were following the deceased on way to the village. Their subsequent conduct in not intervening in the attack or rushing to the village for help is unnatural. Their testimony has rightly been found unreliable. The entry in the register of the Out Door Department of the hospital, has been found to have been tampered which supports the defence case that only in order to prove the presence of the two eye witnesses, interpolations were made in the hospital records. The delay in recording of FIR has been explained on lame excuses such as the Head Constable carrying report to the magistrate was held up because of the break down of his motorcycle and the magistrate was asleep when he contacted him at his residence. These circumstances clearly indicate that there was no prompt lodging of the report of the incident by the two witnesses PW6 and PW7. Hence their presence at alleged date and time of incident is highly doubtful.
25. The prosecution is guilty of fabricating false evidence of extra judicial confession and recovery of the weapons used by the accused. So far as Deepinder Singh, accused No. 2 is concerned, he has been falsely implicated. He had no motive of committing murder of the deceased. He is alleged to have caused one simple injury to the deceased. There is no evidence why he should join the co-accused in opening a brutal attack on the deceased. The defence plea taken by him that he was falsely implicated because of some pending civil dispute with PW7, Sardara Singh concerning use of a path, appears to be plausible.
26. To seek conviction of accused No. 1 - Prem Singh much emphasis has been laid on his inculpatory statement given under Section 313 of the Code of Criminal Procedure. This argument advanced on behalf of the complaint deserves some serious consideration.
27. By a careful reading of the statement of accused No. 1- Prem Singh, (reproduced above) which is recorded during his examination under Section 313 of Cr.P.c. his defence plea has to be appreciated. According to him, when he was sitting on a cot in the open compound of Atma Singh, deceased armed with Takua and Amar Singh (son of Sardara Singh PW-7) armed with a Dang came there and attacked him causing him injuries. On his raising alarm neighbours rushed and inflicted injuries to the deceased to save the accused. Thereafter, Prem Singh went to the civil Dispensary, Haryana and got himself examined by Dr. Chaman Lal. In the above statement of accused-Prem Singh given under Section 313 the inculpatory part is his admission of an incident of assault on the deceased in his presence in the compound of the house of Atma Singh. The accused has categorically denied to have attacked the deceased or caused him any injuries. His specific defence plea is that in order to save him, villagers from the neighbour rushed and assaulted the deceased.
28. The statement made in defence by accused under Section 313, Cr.P.C. can certainly be taken aid of to lend credence to the evidence led by the prosecution, but only a part of such statement under Section 313 of the Code of Criminal Procedure cannot be made the sole basis of his conviction. The law on the subject is almost settled the statement under Section 313 Cr.P.C. of the accused can either be relied in whole or in part. It may also be possible to rely on the inculpatory part of his statement if the exculpatory part is found to be false on the basis of the evidence led by the prosecution. See Nishi Kant Jha v. State of Bihar MANU/SC/0060/1968 : 1969CriLJ671 : 1969CriLJ671 :
"In this case the exculpatory part of the statement in Ex.6 is not only inherently improbable but is contradicted by the other evidence. According to this statement, the injury which the appellant received was caused by the appellant's attempt to catch hold of the hand of Lal Mohan Sharma to prevent the attack on the victim. This was contradicted by the statement of the accused himself under Section 342 Cr.P.C. to the effect that he had received the injury in a scuffle with a herdsman. The injury found on his body when he was examined by the doctor on 13th October 1961 negatives both these versions. Neither of these versions accounts for the profuse bleeding which led to his washing his clothes and having a bath in the river Patro, the amount of bleeding and the washing of the blood-strains being so considerable as to attract the attention of Ram Kishore Pandey, PW 17 and asking him about the cause thereof. The bleeding was not a simple one as his clothes all got stained with blood as also his books, his exercise book and his belt and shoes. More than that the knife which was discovered on his person was found to have been stained with blood according to the report of the Chemical Examiner. According to the post mortem report this knife could have been the cause of the injuries on the victim. In circumstances like these there being enough evidence to reject the exculpatory part of the statement of the appellant in Ex.6 the High Court had acted rightly in accepting the inculpatory part and piercing the same with the other evidence to come to the conclusion that the appellant was the person responsible for the crime."
[underlining for emphasis]
29. In the case in hand we have agreed with the conclusion of the High Court that the prosecution has failed to prove the genesis of the crime and the nature of the incident. The version of the alleged eye-witnesses, the evidence of the extra judicial confession and recoveries of weapons have been found to be untrustworthy.
30. The statement of accused No. 1 - Prem Singh recorded in his examination under Section 313 of Cr.P.C. constitutes his defence plea. He stated that he was attacked by the deceased along with his associate whereupon the villagers rushed and caused injuries to the deceased the evidence led by the prosecution having been rejected by this Court, the defence set up by accused - Prem Singh cannot be discarded as wholly improbable.
31. The statement of accused under Section 313 of Cr.P.C. is not a substantive piece of evidence. It can be used for appreciating evidence led by the prosecution to accept or reject it. It is, however, not a substitute for the evidence of the prosecution. As held in the case of Nishi Kant (Supra) by this Court if the exculpatory part of his statement is found to be false and the evidence led by the prosecution is reliable the inculpatory part of his statement can be taken aid of to lend assurance to the evidence of the prosecution. If the prosecution evidence does not inspire confidence to sustain the conviction of the accused, the inculpatory part of his statement under Section 313 of Cr.P.C cannot be made the sole basis of his conviction.
32. In the present case, the exculpatory part of statement of the accused under Section 313 of Cr.P.C. in which he stated that he was attacked by the deceased and his associate, whereupon the villagers rushed for his help and inflicted injuries on the deceased, cannot be outright rejected as false. The inculpatory part of his statement under Section 313 of Cr.P.C., therefore, to the extent of admission of his presence in the compound of Atma Singh when the deceased was attacked, cannot from sole basis of his conviction.
33. The alternative submission made by the learned counsel on behalf of the complainant that on basis of the statement of the accused - Prem Singh under Section 313 of Cr. P.C. is liable to be convicted for exceeding his right of private defence under Section 304 IPC, cannot be accepted for the reasons mentioned above.
34. So far as case against the co-accused - Deepinder Singh is concerned, since we have not relied on the evidence of the prosecution that the two co-accused had made a joint assault on the deceased, he cannot be convicted under Section 302 with the aid of Section 34 of IPC for his alleged common intention with the co-accused Prem Singh.
35. We thus, find no ground to interfere wit the verdict of acquittal passed by the High Court in favour of both the accused. In the result, we dismiss both the appeals, Bail-bonds furnished by the respondent-accused are discharged.
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