MANGU SINGHversusDHARMENDRA & ANR.

                   [2015] 10 S.C.R. 1035


                       MANGUSINGH                                 A
                              v.
                   DHARMENDRA&ANR.
             (Criminal Appeal No. 2230 of 2011)
                                                                  B
                   DECEMBER 16, 2015
 [PINAKI CHANDRA GHOSE AND R.K. AGRAWAL, JJ.)
     Penal Code, 1860- s. 302 rlw. s. 25 of Arms Act, 1959 -
Prosecution under- Initial FIR on the basis of confessional c
statement of the accused - Later another FIR by PW1 - In
statement u/s. 313 Cr.P.C. accused pleaded not guilty and         -
took defence that the alleged murder was due to a loot- Trial
court convicted the accused - High Court acquitted him -
On appeal, held: In the facts of the case, PW-1 cannot be D
said to be an eye-witness - The evidence of another eye-
witness PW-4 is also not reliable - There are material
alterations in the testimonies of the witnesses- Second FIR
is an outcome of manipulation, deliberation, concoction and
is a sham ante-timed document - Confessional FIR is also E
not reliable in the facts of the case - The prosecution has
failed to prove its case beyond reasonable doubt - The
accused was rightly acquitted by High Court-Arms Act, 1959
-s.25.
                                                                  F
    Evidence Act, 1872:
     ss. 101 and 106 - s. 106 does not absolve the
prosecution's burden uls. 101 to prove its case regarding guilt
of accused, beyond reasonable doubt.
                                                                  G
    s.27- What is required to be proved is not the material
recovery, but the disclosure, based upon which the recovery
is made.

                                                                  H
                            ~035
1036         SUPREME COURT REPORTS                   [2015] 10 S.C.R.

 A         Evidence - Motive - Evidentiary value - Motive is not a
       necessary element in deciding culpability but an equally important
       missing link which can be used to corroborate the evidences.

            Criminal Trial:-

 8           Standard of proof- The defence needs to establish its case
       based on probability, whereas the prosecution has to prove the
       guilt beyond reasonable doubt.

              Dismissing the appeals, the Court
 c
            HELD :1. Motive is not a necessary element in deciding
       culpability but it is an equally important missing link which
       can be used to corroborate the evidences. In the present
       case, the motive of the accused was stated to be two-fold.
 D     One being that he was in love with a girl, whom he wanted to
       marry but his wife and daughter were the hindrance. The
       other immediate motive was the non-fulfillment of dowry
       demand by PW1 (father of one of the deceased). Even if the
       fact of alleged relation is presumed to be true, still PW1 's
 E     deposition to this fact is hearsay. PW1 neither stated this
       fact in the FIR nor in the statement made before the police,
       and it was only after two and half years later that it was stated
       in his deposition before the Court. In the investigation no
       such fact came to light, nor the wife of PW1 (who had
 F     disclosed this fact to PW1) was summoned for making
       statements before the police or before the Court. The
       witness even testified that this alleged relation of the
       accused was reported to the accused's father upon which
       he apologized for his conduct, however, the said fact was
 G     not proved. As against the immediate cause, which again is
       a material addition at the time of deposition before the Court,
       neither such fact was made before the police nor
       investigated by the police. The Court did not even try the
 H     accused/respondent for the alleged offence of dowry
        MAN GU SINGH v. DHARMENDRA &ANR.                      1037


demand, as prima facie no case was made out. [Para 8] [1042- A
F-H; 1043-A-D]

     2. PW1 came to the spot after information was sent to
him by the police. The intimation was him after the
accused is alleged to have made the written FIR. In these B
circumstances, PW1 cannot be said to be.an eye-witness.
to the offence. PW4 is the actual eye-witness. At the
outset, it was admitted by PW1 that PW4 was his distant
brother living in the same village. The deposition of PW4,
is unnatural and not to be trustworthy. His deposition is C
contradictory to the medical evidence. The blood-stained
clothes of the victims or bullet ridden car parts were not
recovered. It was not investigated at all as to in which portion
of the car the victims were killed. [Para 9] [1043-E-F; 1044-B-
~                                                                D
     3. There also appears a material alteration in the
testimonies of the witnesses. The conduct of PW4 seemed
unnatural. Facts of the case also make the conduct of PW1
very unnatural and suspicious. The facts, clearly suggest E
that the second FIR (lodged by PW1) is an outcome of
manipulation, deliberation, concoction and is a sham
ante-timed document. [Paras 9 and 10] [1044-E; 1045-F-
G]
                                                                F
     4. The series of events cast doubts on the time of
the confessional FIR. The facts of that FIR remained
disproved and hence the FIR is not reliable. The trial court
laid undue stress on the non-explanation of the fact of
death of the victims by the accused respondent. The trial G
court though based the conviction upon the testimony of
PW4, yet it shifted the burden on the accused respondent
under Section 106 of the Evidence Act, 1872, to prove
the incident. The High Court, rightly reversed the finding
on this point of law. Section 106 does not absolve the H
1038      SUPREME COURT REPORTS               [2015] 10 S.C.R.

 A prosecution's burden under Section 101 to prove its case
   of guilt of the accused beyond reasonable doubt. The
   prosecution has miserably failed tQ explain the facts and
   circumstances surrounding the lodging of both the FIRs,
   and the testimony of PW4 is proved to be crooked. The
 B prosecution case was never a case of circumstantial
   evidence as the prosecution, till the end laid stress on
   the testimonies of eye-witnesses. [Para 11] [1046-C-F]

        5. The sequence of events and the injuries do not
 C exclude the defence version. It is a settled law that the
   defence needs to only establish its case based on
   probability, whereas the prosecution has to prove the
   guilt of the accused beyond reasonable doubt. [Para 12]
   [1047-C]
 D
        6. The prosecution as well as the trial court relied on
   the recovery of the country-made pistol and an empty
   cartridge. However the High Court pointed out·the
   relevant provision i.e. Section 27 of the Evidence Act,
 E 1872, and clarified that it is not the material recovery
   which has to be proved, but the disclosure based upon
   which the recovery is made. The pivotal fact is making
   of the statement to the police which leads to recovery.
   The High Court rightly pointed out that during the
 F investigation, no statement disclosing the fact/material
   to be discovered was proved before the Court. The High
   Court is correct to point out this serious lacunae. [Para
   13] [1047-0-G]

 G      7. The prosecution has failed to prove its case
   beyond reasonable doubt against the accused and the
   High Court was justified in doubting the veracity of the
   prosecution case and recording the verdict of acquittal,
   which does not suffer from the vice of perversity. [Para
 H 14] [1048-A-B]
         MANGU SINGH v. DHARMENDRA&ANR.                           1039


    CRIMINALAPPELLATE JURISDICTION: CriminalAppeal                A
No. 2230 of 2011
    From the Judgment and Order dated 06.08.201 Oof the
High Court of Judicature at Allahabad in Criminal Appeal No.
1417 of2006
                                                                  B
                     WllH
    CriminalAppeal No. 1707 of2015

    Ratnakar Dash, Abhisth Kumar, Som Raj Choudhury,
Sudeep Kumar, Hema Sahu, Rajendra, Rishabh Sahu (for C.           c
L. Sahu), Kamlendra Mishra for the Appellant.

   Anurag Dubey, Anu Sawhney, Meenesh Dubey, Ila Haldia,
Meenakshi Parihar (for S. R. Setia) for the Respondents.

    The Judgment of the Court was delivered by                    D

    PINAKI CHANDRA GHOSE, J. 1.Leave granted in
SLP(Crl.) No.9148 of2011.

      2. These appeals have been directed against the judgment    E
and order dated 06.08.2010 passed by the High Court of
Judicature atAllahabadin Criminal Appeal No.1417 of2006,
wherein the accused/respondent was acquitted by the High
Court against the Judgment of life imprisonment as awarded
by the Trial Court. Criminal Appeal No.2230 of 2011 has been       F
filed by the complainant/informant and the connected matter,
i.e. Special leave Petition (Criminal) No.9148 of 2011 is filed
by the State against the acquittal of the accused/respondent.

    3. The brief facts necessary to dispose of these appeals      G
are that The respondent/accused came on 18.11.2003 to
Police Station, Simbhaoli, District Ghaziabad, and confessed
vide a written report Ext. Ka 22, of having killed his wife and
daughter. The accused's father in-law (PW1) was informed
and subsequently inquest proceedings were conducted to            H
1040       SUPREME COURT REPORTS                   [2015] 10 S.C.R.


 A which the PW1 is the formal witness. PW1 then lodged another
   FIR against his son-in-law for having committed the murder of
   his daughter through a gun-shot injury and also of his wife by
   throttling. Investigation was thrown into the offence and at the
   instance of the accused a country-made 12-bore pistol and
 B empty shell Ext. A-6, were recovered on 19.11.2003. Since
   the occurrence was found to have taken place in territorial
   jurisdiction of Police Station, Babugarh, the senior officers
   sought to g_et the investigation conducted through Police
   Station, Babugarh after about one month since the FIR was
 C lodged.

        4. After investigation, charge-sheet was filed against the
   accused. After considering the material on record and hearing
   the counsel, the accused was charged for the offences
 D punishable under Sections 302 of the Indian Penal Code, 1860
   (hereinafter referred to as "IPC") and also Section 25 of the
                                             ...
   Arms Act. The charges were read over and explained to the
   accused. The accused pleaded not guilty and in his statement
   under Section 313, rebutted thatthe alleged murder was due
 E to loot in which his daughter and wife were killed and he had
   sustained gun-shot injury in his thigh. The confessional written
   statement which formed the basis of the first FIR was replied
   by the accused to be under threat from the police anrj he
 F claimed to be falsely implicated in the case.

       5. The Trial Court by its judgment and order dated 251h
   January, 2006, convicted the accused for both the offences
   charged and sentenced him to imprisonment for life. The
   convictions.were based on the evidences of the eye witnesses
 G and the recovery of the weapons used which were further
   corroborated by the admission made to the police officers,
   the motive being established and also non-explanation by the
   accused of the facts within his knowledge as mandated under
 H Section 106 of the Indian Evidence Act, 1872. The accused
         MAN GU SINGH v. DHARMENORA &ANR.                      1041
             [PINAKI CHANDRA GHOSE, J.]

challenged the conviction order before the High Court and the A
High Court by the impugned judgment and order allowed the
appeal on the ground that the prosecution failed to bring home
the guilt of the accused beyond reasonable doubt. The acquittal
was based on ground that both the Fl Rs were ante-timed and
the eye witnesses who were relied upon by the Trial Court were B
interested and unreliable witnesses. The motive was neither
investigated nor established and the conviction order was
perverse and against the sound legal principles.

     6. The Informant PW1 has filed the present appeal before C
this Court. The State is also before us by filing special leave
petition against the acquittal order. The learned counsel for
the State has argued in line of the decision arrived at by the
Trial Court. It is vehemently argued that the motive of the
accused that he wanted to get rid of the victims so that he D
could marry his love, was proved by the testimony of PW1.
The respondent was ~lone with the two victims and it was his
duty as provided under Section 106 of the Indian Evidence
Act, 1872, to give a reasonable explanation regarding the
homicidal death of the two victims. Over this, the respondent E
took a false plea of loot being committed upon him and his
family and he created a false minor injury to support his story.
He made a written statement in his own handwriting to the
police, confessing his crime which is admissible in evidence F
as he was not an accused at the time of making the statement.
Finally it was argued that the recovery of the country-made
pistol and an empty shell was made at the instance of the
accused himself. Mr. Ratnakar Dash, learned senior counsel
appearing for the State of U.P. substantiated his case by G
arguing that in addition to the above, PW4 is the eye witness
of the incident of murder who saw the accused with the gun in
his hand. It is further argued that the medical reports and the
testimonies of the formal witnesses further strengthened the
case of the State.                                               H
1042       SUPREME COURT REPORTS                  [2015] 10 S.C.R.


 A       7. The learned senior counsel for the respondent accused
   has made various submissions countering the arguments put
   forward by the appellant. It is argued that the motive was neither
   investigated nor proved. PW1 deposed about the motive that
   the accused wanted to get rid of his wife and daughter as he
 B wanted to marry a girl he loved. However, it is argued that the
   same is hearsay evidence and neither PW1 nor the
   Investigating Officer inquired upon this fact. Against the second
   FIR, it was argued that it was ante-timed, false and
   manufactured, PW1 was not himself an eye-witness and as
 C per his testimony he could not have been in the police station
   to lodge the FIR at the time stated in the FIR. PW4 was argued
   to be an interested witness and his testimony was marked by
   severe lacunae and is itself proved to be self-contradictory
   and hence, unworthy of any reliance. The bullet injury received
 0
   by the accused is proved not to be self-inflicted and hence
   there exits some truth in the claim of the accused about the
   loot. The recovery was proved to be concocted.

          8. In our considered opinion, four main issues are argued
 E before this Court and we shall now examine each and every
    contention in light of the arguments adduced before us. It is a
    settled lawthat motive is not a necessary element in deciding
    culpability but it is an equally important missing link which can
 F be used to corroborate the evidences. In the present case, the
    motive of the accused was stated to be two-fold. One being
    that he was in love with a girl, whom he wanted to marry but his
  · wife and daughter were the hindrance. The other immediate
    motive was the non-fulfillment of dowry demand by PW1 (father
 G of the girl). Upon perusal of the records, it appears that PW1
    has deposed that the accused/respondent was in love with a
    girl who lives in Ghaziabad and this fact was told to him· by his
    wife, who got this information from her daughter Geeta
    (deceased). Even if the said fact is presumed to be true, still
 H PW1 's deposition to this fact is hearsay and in fact, his wife
          MANGU SINGH v. DHARMENDRA&ANR.                        1043
             [PINAKI CHANDRA GHOSE, J.]

 should have been examined to testify this fact. PW1 neither A
 stated this fact in the FIR nor in the statement made before the
 police, and it was only after two and half years later that this
 fact was stated in his deposition before the Court. The
 Prosecution also laid heavy emphasis on the said fact.
 However, in the investigation no such f~ct came to light, nor B
 the wife of PW1 was summoned for making statements before
 the police or before the Court. The witness even testif:ed that
 this alleged relation of the accused was reported to the
 accused's father upon which he apologized for his conduct,
 however, the said fact was not proved. As against the C
 immediate cause, which again is a material addition at the
 time of deposition before the Court, neither such fact was made
 before the police nor investigated by the police. The Court did
 not even try the accused/respondent for the alleged offence of
                                                                  0
 dowry demand, as prima facie no case was made ou!.· .

       9. The second issue which is of paramount consideration
  is the testimony of the eye-witnesses. PW1 and PW4 are the
  eye-witnesses, out of which PW1 is the father of the first victim
  and maternal grand-father of the second victim. The police E
  investigation itself disclosed that PW1 came to the spot after
  information was sent to him by the police. The intimation was
  him after the accused is alleged to have made the written FIR.
· In these circumstances, PW1 cannot be said to be an eye- F
  witness to the offence. PW4 is the actual eye-witness. At the
  outset, it was admitted by PW1 that PW4 was his distant
  brother living in the same village. PW1 deposed that when he,
  along with lshwar, was going back to their village, they saw the
  victim Geeta (daughter of PW1) lying in the pool of blood in G
  the rear seat of the car with the accused/respondent standing
  nearby with a country-made pistol. The time was about 6:30
  pm. He further deposed that the accused respondent
  threatened both PW4 and lshwar to flee away or else they would
  meet the same fate. Upon this threatening, PW4 flew away H
1044       SUPREME COURT REPORTS                  [2015] 10 S.C.R.


 A from the spot and did not disclose the fact to anybody. Neither
   he approached the police for help, nor did he inform this to
    PW1. It was only after 3-4 days that he narrated the facts to
    PW1. Even after that, PW1 and PW4 did not approach the
   police to get the statement of PW4 recorded. It was only after
 B one month of the incident that PW4 was summoned at the
    Police Station, Babugarh, and his statement was recorded. If
   one carefully examines the deposition of PW4, it seems
   unnatural and not to be trustworthy. PW4 in his testimony firstly
   stated that victim Geeta was shot in his presence, but he did
 C not know as to in which part of the body she was shot. Then he
   corrected himself by deposing that the bullet had pierced her
   abdomen and blood started oozing out from her body. This
   deposition is contradictory to the medical evidence as the
   cause of death of Geeta was strangulation and she never
 0
   received any gun-shot injury. Moreover, the blood-stained
   clothes of the victims or bullet ridden car parts were not
   recovered. It was not investigated at all as to in which portion
   of the car the victims were killed. Apart from this, there appears
 E a material alteration in the testimonies of the witnesses. Both
   PW1 and PW4 deposed that they saw the dead body in the
   rear seat of the car, whereas the police investigation reveals
   that the dead body was lying in the front left side seat of the
   car. PW4 was thoroughly cross-examined but more suspicions
 F arose in his testimony. The conduct of PW4 seemed unnatural
   that he did not sought for any help, nor did he inform anybody
   in the village that a daughter from his village was killed. PW4
   admitted that tie was accompanied by one lshwar but he was
   never examined in order to strengthen the prosecution case.
 G PW4 also stated in his deposition that he did not remember
   as to whether victim Geeta was wearing a saree or a suit, yet
   he remembered the registration number of the car. The place
   of incident is proved to be secluded one and on a small link
   road, which raises suspicion that PW4 saw the number plate
 H in dark hours of evening of the winter season.
         MANGU SINGH v. DHARMENDRA&ANR.                            1045
            [PINAKI CHANDRA GHOSE, J.]

      1O.Pertinent here is the FIR lodged by PW1. PW1 A
deposed that he was informed at about 7. 00 pm by the police
that his son in-law has lodged a confessional FIR of having
committed the murder of his wife Geeta and his daughter
Rakhi. Thereafter, PW1 reached the place of incident at about
8.00 p.m. and since then he was a witness to inquest B
proceedings of both the victims Geeta and Baby Rakhi. The
inquest proceedings of Geeta were recorded from 9:30-10:30
pm and inquest proceedings of Baby Rakhi were recorded
from 11-11:55 pm., and thereafter, he proceeded to Police
Station, Simbhaoli, which under no circumstances can be C
before 12.00 mid-night. Yet the FIR is stated to have been
lodged at 10:05 pm. Moreover, the jurisdictional police station
is of Babugarh and PW1 specifically deposed that he crossed
the Police Station, Babugarh, en-route to Police Station,
                                                                    0
Simbhaoli, from Madhu Nursi'ng Home, yet he chose not to
lodge the FIR at the nearest police station but at Simbhaoli
Police Station, which did not even have the jurisdiction. This
jurisdictional flaw came to the knowledge of PW1 after 3-4
days, yet he preferred not to go or pursue his case at the proper E
police station. In the FIR the informant (PW1) failed to mention
the material facts, like he having been informed about the
incident by the police, his participation in the inquest, receiving
ornaments seized by the police from the place of the incident,
two male wrist watches, he being accompanied by two other F
person to the place of incident from his village. Even the motive
was not mentioned in the FIR. This makes the conduct of PW1 .
very unnatural and suspicious. The above facts, clearly suggest
thatthe second FIR is an outcome of manipulation, deliberation,
concoction and is a sham ante-timed document.                       G

    11. The third issue is the confessional FIR. The Trial Court
proceeded to believe the FIR as admission of guilt by the
accused. Not only the lodging of the Fl R was delayed but it
was suspected to be ante-timed. The police investigation           H
1046       SUPREME COURT REPORTS                  [2015) 10 S.C.R.


 A disclosed that FIR (Ext. Ka 22/23) was lodged by the accused/
   respondent and thereafter at about 8:30pm PW1 was informed.
   However, as per the deposition of PW1, he received the
    information about the FIR at about 7.00 pm, thereafter he
   proceeded to the place of incident and was a witness to
 B inquest proceedings. The accused respondent has taken the
   defence that he was forced to scribe it at the dictation of the
   Investigating Officer, after being assaulted at the police station
   and it was registered ante-timed. The series of events above
   stated, thus, cast doubts on the time of the FIR. The facts of
 C the FIRremained disproved and hence Ext. Ka 22/23 is not
   reliable. The Trial Court laid undue stress on the non-
   explanation of fact of death of the victims by the accused
   respondent. It is established that the Trial Court based the
   conviction upon the testimony of PW4, yet it took a 'U' turn to
 0
   shift the burden on the accused respondent under Section 106
   of the Indian Evidence Act, 1872, to prove the incident. The
   High Court, in our considered view, rightly reversed the finding
   on this point of law. Section 106 does not absolve the
 E prosecution's burden under Section 101 to prove its case of
   guilt of the accused beyond reasonable doubt. As stated above,
   the prosecution has miserably failed to explain the facts and
   circumstances surrounding the lodging of both the Fl Rs, and
   the testimony of PW4 is proved to be crooked. The prosecution
 F ~ase was never a case of circumstantial evidence as the
   prosecution, till the end laid stress on the testimonies of eye-
   witnesses.

         12. At this juncture the defence version needs to be
 G examined. The accused respondent stated that they were
   stopped by two unknown persons and he stopped only
   because his wife recognized those persons to be from her
   village. The two persons then attempted to loot them, and in
   the process two gun-shots were fired - one at Baby Rakhi
 H and another at accused/respondent. Victim Geeta was
         MANGU SINGH v. :JHARMENDRA&ANR.                          1047
            [PINAKI CHANDRAGHOSE, J.]

strangulated to death. Upon perusal of the medical evidences, A
the gun-shot injury to Baby Rakhi was proved to be at point
blank range, whereas no such assertion was made in case of
accused respondent's gun-shot wound. The accused
respondent stated that he was hit by one fire-shot and he
neither knew upon whom second shot was fired, nor did he B
know as to how his wife was killed. The accused respondent
further deposed that he ran towards the nearby hotel for
seeking help. The sequence of events and th.:'! injuries do not
exclude the defence version. It is a settled law that the defence
needs to only establish its case based on probability, whereas c
the prosecution has to prove the guilt of the accused beyond
reasonable doubt.

      13.The next aspect for our consideration is the recovery
of the country-made pistol and an empty cartridge. To begin D
with, it is undisputed from the ballistic report that the gun was
the same from which the shot was fired and also the formal
witnesses stood the test which established that the gun was
recovered in their presence. The prosecution strongly relied
on this evidence, and even the trial court was convinced by E
this piece of evidence. However the High Court pointed out
the relevant provision i.e. Section 27 of the Indian Evidence
Act, 1872, and clarified that it is not the material recovery which
has to be proved, but the disclosure based upon which the F
recovery is made. The pivotal fact is making of the statement
to the police which leads to recovery. The High Court rightly
pointed out that during the investigation, no statement
disclosing the fact/material to be discovered was proved before
the Court. In our opinion, the High Court is correct to point out G
this serious lacunae.

     14. We have given our careful and thoughtful consideration
to the rival contentions put forward by either sides and have
also scanned through the entire materials available on record,    H
1048          SUPREME COURT REPORTS                 [2015] 10 S.C.R.


 A including the impugned judgment. It appears that the
   prosecution has failed to prove its case beyond reasonable
   doubt against the accused and the High Court was justified in
   doubting the veracity of the prosecution case and recording
   the verdict of acquittal, which does not suffer from the vice of
 B perversity.

            15. Thus, in the light of the above discussion, we find no
   compelling and substantial reasons to interfere with the
   judgment passed by the High Court. The appeals are,
 C accordingly, dismissed.

       Kalpana K. Tripathy                           Appeals dismissed.