NARAYAN SINGH & ORS.versusSTATE OF MADHYA PRADESH

                                                             319


                       NARAYAN SINGH & ORS,                         A
                               v.
                    STATE OF MADHYA PRADESH

                         JULY 19, 1985 ·

         [S. MURTAZA FAZAL ALI AND A. VARADARAJAN, JJ.]             B

      Evidence Act - Murder - Extra-judicial Confession -
Admissibility of - Circumstances when conviction can be based
upon it.

      There was a chrbnic land dispute between the deceased and     C
the appellants. While the deceased was proceeding towards his
village along with PW 11, the appellants assaulted    him    with
swords and farsis as a result of which he succumbed to his
injuries. The first information Report was lodged promptly. The
Sessions Judge acquitted the accused on the grounds: (i) that PW
ll who was sole eye-witness and had seen the occurrence, did not    D
immediately disclose the names of the accused to the inmates of
the family of the deceased when he went to the house and there-
fore this was a fatal defect in the prosecution case from which
an irresistible inference could be drawn that PW 11 could never
have seen the occurrence; and (ii) that the evidence of PWs 5 and
9 constituting an extra-judicial confession is a very weak type
of evidence. On appeal by the State, the High Court reversed the    E
judgment of the Sessions Judge and convicted the accused under
ss. 148 and 302 read with sec. 149 of the IPC.

     Dismissing the appeal by the appellants,

      HELD: 1. It is true that the Supreme Court has held that      F
where two views are reasonably possible, the order of acquittal
should not be disturbed. However, in the instant case, taking an
overall picture of the evidence of PWs. 5, 9 and 11 and the
recoveries of the weapons at the instance of the accused, there
is no doubt that this is a fit·and proper case for interference
by the High Court in reversing the judgment of the Sessions Judge   G
and convicting the accused. [323 G-H]

      2. The learned Sessions Judge seems to have taken a most
unrealistic view of the evidence of PW 11 by ignoring the fact
that PW 11 being a guard of the deceased must have been shocked
                                                                    H
     320              SUPREME COURT REPORTS        [1985] SUPP.2 s.c.R.


A    and stunned after seeing the whole incident and, therefore, he
     may not have been in a position to mention the names of the
     accused IJ!l!lf!dlately but after composing himself within 10-15
     minutes he mentioned the names and also gave all the details. PW
     11 appears to be truthful witness as he himself admits that he
     could not inluediately give the names because he was perplexed and
B    it is quite a natural thing particularly in the case of person
     coming from the strata of society of which PW ll was a member.
     [322 E-G]
           3. It is not open to any court to start with a presumption
     that extra judicial confession is a weak type of evidence. It
     would depend on the nature of the circumstances, the time when
C    the confession was made and the credibility of the witnesses who
     speak to such a confession. (323 B-C]

             In the instant case, after perusing the evidence of PWs 5
     and 9 who stated on oath that one of the accused admitted before
     them that he had murdered the deceased, there is nothing which
     could lead to the conclusion that these independent witnesses
ll   were not telling the truth. The evidence of these two witnesses
     'Illich lends support to the evidence of PW 11 was sufficient to
     warrant the conviction of the accused. Moreover the accused had
     made a confession before the police and on the basis of their
     statements, a blood"""1ltained farsi and sword were recovered which
     were found to contain human blood. This circumstance, therefore,
c     reinforces both the extra-judicial confession and the evidence of
      PW 11. The Sessions Judge, however, did not attach much
      importanee to the recoveries which are undoubtedly admissible
      under the Evidence Act and afford a guarantee to the truth of the
      prosecution case. [323 C-EJ

F          CRIMINAL APPELLATE JURISDICTION     Criminal Appeal Nos.   308
     & 420 of;1976.
           Froin the Judgment and Or.der dated 24.2.1976 of the Madhya
     Pradesh High Court in Criminal Appeal No. 300 of 1972.

G           S.K; Gambhir for the Appellants.

           Ravinder Bana and A.K. Sanghi for the Respondent.
                 I.

            The Judgment of the Court was delivered by

H           FAZAL ALI, J. These appeals are directed against a judgment
      of the Madhya Pradesh High Court convicting the appellants under
             NARAYAN SINGH v. STATE   [r'AZAL ALI, J. ]      321


ss. 148 and 302 read with s. 149 of the Indian Penal Code and       A
sentencing them to imprisonment for life.

      By our Order dated 12th July 1985, we had dismissed the
appeals.   We now proceed to give reasons for our Order.

      The facts of the case have been detailed in the Judgments     B
of the Sessions Judge and the High Court and it is not necessary
for us to repeat the same all over again. It appears that there
was a chronic land dispute between Bhojraj (deceased) and the
appellants so much so that Bhojraj had to enlist the services
of one Abbas (PW 11) to accompany him wherever he went so as to
guard him against assault. This means that the deceased expected    C
serious threat to his life from the appellants due to the afore-
said enmity. On October 5, 1971 at about 2.30 p.m. while Bhojraj
was proceeding towards his village, accompanied by PW 11, the
appellants reached the place of occurrence alongwith 5-6 persons
and assaulted Bhojraj with swords and farsis as a result of which
Bhojraj succunibed to his injuries. PW 1, who was not an eye-wit-   D
ness, on hearing of the incident reached the police station at
4.30 p.m. and lodged a FIR. The distance of the police station
from the place of occurrence was about 10 miles. ~.s the incident
took place at about 2.30. p.m. and the report was lodged within
two hours, there can be no doubt that the report was made
promptly and, therefore, the question of -concocting the case
cannot possibly arise.          ·                                   E

      In support of    ~he   prosecution, the evidence led may be
classified into three categories -

            (1) the evidence of PW 11 (Abbas) who was a guard of
            the deceased and, as usual, was accompanying his        F
            master; Bhojraj, and saw the entire incide~t himself,

            ( 2) · one of the accused seems to have made an
            extra-judicial confession to PWs 5 and 9 and admitted
            that he assaulted the deceased with sword and farsi,
            and                                                     G

            (3) at the instance of the accused, blood-stained
            weapons were recovered which, after being examined by
            serologist, were found to contain human blood.

      The learned Sessions Judge rejected the prosecution' case     H
        322              SUPREME COURT REPORTS       (1985] SUPP.2 s.c.R.


A       for paucity of evidence and acquitted the accused. The State
        then filed an appeal before the High Court which, after careful
        examination of the evidence, reversed the judgment of the
        Sessions Judge and convicted the accused under ss. 148 and 302,
        read with s.149 of the IPC. Hence, this appeal to this Court
        under s.2 of the Supreme Court (Enlargement of Criminal Appellate
B       Jurisdiction) Act, 1970.

             The learned Sessions Judge was mainly swayed by the consi-
        deration that PW 11, who was the sole eye-witness and had seen.
        the occurrence, did not immediately disclose the names of the
        accused to the inmates of the family of the deceased when he went
        to the house. On this ground alone, the Sessiops Judge thought
c       that this was a fatal defect in the prosecution case from which
        an irresistible inference could be drawn that PW 11 could never
        have seen the occurrence.   We have gone through the evidence of
        PW 11 and we feel that the Sessions .Judge was not at all correct.
        It was not the case that PW 11 never disclosed the details of the
        incident to the members of the family of the deceased but when he
        went to the house he immediately did not name the accused and the
D       explanation given by PW 11 was that as he was ~ompletely per-
        plexed he could not disclose the details immediately. The
        evidence of PW 11 shows that within 15 minutes he disclosed the
        names of the accused and gave full details of the occurrence.
        The learned_Sessions Judge seems to have taken a most unrealistic
        view of the evidence of PW 11 by ignoring the fact that he (PW
        11) being a guard of the deceased must have been shocked and
        stunned after seeing the whole incident and, therefore, he may
        not have been in a position to mention the names of the accused
        innnediately but after composing himself within 10-15 minutes he
        mentioned the names and also gave all the details. The presence
        of PW 11 at the scene at the time of the attack on the deceased
    F   was not challenged before us. Nor ·could it be challenged, for
        the suggestion made to PW 11, which he has denied that he himself
        had attacked the deceased. PW 11 appears to be a ttuthful witness
        as he himse.lf admits that he could not innnediately given the
        names because he was perplexed and it is quite a natural thing
        particularly ·in the case of a person coming from the strata of
    G   society of which PW 11 was a member. It is not uncommon for
        persons when they see a ghastly and dastardly murder being
        committed in their presence that they alomost lose their sense of
        balance and remain dumb-founded until they are able to compose
        themselves. This is exactly what may have happened to PW 11.

    H
             NARAYAN SINGH v. STATE     [FAZAL ALI, J.]                323


     Apart from this there is the evidence of PWs 5 and 9 who                A
state on oath that one of the accused admitted before them that
he had murdered the deceased. The learned Sessions Judge has
brushed aside their evidence by presuming' that their statments
constituting an extra-judicial confession is a very weak type of
evidence~   This is a wrong view of the law. It is not open to any
court to start with a presumption that extra judicial confession             B
is a weak type of evidence. It would depend on the nature of the
circt.DnStances, the time when the    confession was      made   and   the
credibility ;>f the witnesses who speak to such a confession• In
the instant case, after perusing the evidence of PWs 5 and 9 we
are unable to find anything which could lead to the conclusion
that these independent witnesses were not telling the truth. The             c
evidence of these two witnesses (PWs 5 and 9) which lends support
to the evidence of PW 11 was sufficient to warrant the conviction
Of the accused.   The Sessions Judge has committed a grave error
of law in analysing and appreciating the evidence of PWs 5 and 9
and brushing them aside on untenable grounds.
                                                                             D
     The matter does not rest here alone but it is clear from the
evidence that the accused had made a confesion before the police
and on the basis of their statements, a blood-stained farsi and.a
sword were recovered which were found to contain human blood as
mentioned earlier. This circumstance, therefore, reinforCes both
the extra-judicial confession and the evidence of PW 11. The
Sessions Judge, however, did not attach much importance to the               E
recoveries which are undoubtedly admissible under the Evidence
Act and afford ·a guarantee to the truth of the prosecution case.

     Thus, taking an overall picture of the evidence of PWs 5, 9
and 11 and the recoveries of the weapons at the instance of the
accused, we are of the opinion that this is an open and shut case            F
against the accused and the learned Sessions Judge has committed
error of law and has not properly appreciated the evidence in its
true perspective.

      It was argued by the counsel for the appellants that the
Sessions Judge had taken a reasonable view, and the High Court
ought not to have interfered.        It is true that this Court has
held that where two views are reasonably possible, the order of
acquittal should not be disturbed. In this case, however, we are
fully satisfied that the judgment of the Sessions Judge was
absolutely perverse, legally "erroneous and b-ased     on, wrong
assumptions and, hence,.this is a fit and proper case for inter-             H.
ference by the High Court in reversing the judgment of the
Sessions Judge and convicting the accused.
    324             SUPREME COURT REPORTS       [1985] SUPP.2 s.c.R.

A
         For the aforesaid reasons, we uphold the conviction and
    sentence imposed by the High Court and dismiss the appeals. In
    case the appellants are on bail, they shall surrender to their
    bail bonds which are hereby cancelled and they should be taken
    into custody and sent to jail to serve out the remaining portion
    of the sentence.




                                                  Appeals dismissed.