SHANKERversusSTATE OF MADHYA PRADESH

814                       [2018]
               SUPREME COURT     6 S.C.R. 814
                              REPORTS                      [2018] 6 S.C.R.


A                                  SHANKER
                                        v.
                       STATE OF MADHYA PRADESH
                       (Criminal Appeal No.1785 of 2011)
B                               APRIL 18, 2018
             [N. V. RAMANA AND S. ABDUL NAZEER, JJ.]
             Penal Code, 1860 – s.302 – Prosecution case that the victim
      while attending a marriage, had altercation with some persons who
      threatened him and went away – They subsequently came back with
C
      more persons at night and assaulted the victim – Allegedly 11
      persons were involved in the crime – Victim was taken to police
      station and FIR was lodged, thereafter he died in the hospital –
      Trial Court acquitted 6 accused persons, however, remaining 5
      persons were convicted u/ss.148,302/149 – Appeal dismissed by
D     the High Court – Aggrieved, two accused persons, A-3 and A-5
      filed appeal – Held: Prosecution has failed to prove the alleged
      offence by adducing cogent and trustworthy evidence – High Court
      has also not dealt with the matter in accordance with the settled
      principles of law – Record reveals that the entire case of prosecution
      was based on the evidence of two prosecution witnesses i.e. P.W-1
E
      and P.W-5 – In instant case, the Courts below failed to take into
      consideration the contradictions and distortions in the evidence of
      P.W-1 & 5 – From the evidence of P.W-1, it transpires that the
      participation and the role played by the appellants (A-3 and A-5) in
      the crime was limited to giving blows with fists and legs to the
F     deceased, whereas, P.W-5 stated differently that one appellant
      (A-5) had also attacked the victim holding a knife – There was no
      corroboration among their statements, who were the prime witnesses,
      as to the role played by the accused – In the FIR also, it was stated
      that appellants had beaten the victim with hands and feet and no
      weapon was ascribed to have been held by them – The post mortem
G
      report and evidence of the doctor did not disclose any injuries
      suffered by the victim resulted from the beatings received by fists,
      cuffs and legs as such injuries were not visible – Prosecution had
      made large number of assailants as accused to have attacked the
      victim, but the evidences of witnesses was full of discrepancies and
H     they were not able to state as to how the appellants caused injuries
                                       814
         SHANKER v. STATE OF MADHYA PRADESH                             815


to the victim leading to his death – Discrepancies and                  A
contradictions in the case on hand go to the root of the matter and
are material ones and based on such evidence, it is not possible to
convict the accused.
      Allowing the appeals, the Court
      HELD: 1. The High Court unfortunately has not dealt with          B
the matter in accordance with the settled principles of law.
Before going to award conviction against an accused for the
offence under Section 302, IPC the Courts should be mindful of
the fact that there should be no room to suspect the evidence of
key prosecution witnesses based on whose evidence the                   C
conviction is being awarded. As a general rule, while
appreciating evidence in a criminal case, the Court should bear
in mind that it is not the quantity, but the quality of evidence that
is material. It is the duty of the Court to consider the
trustworthiness of the witness and the evidence adduced on
record and to assess the same in a prudent manner whether the           D
same inspires confidence so as to accept and act upon, before
convicting an accused. [Para 17] [823-A-C]
       2. In the case on hand, the Courts below failed to take into
consideration the contradictions and distortions in the evidence
of PWs 1 and 5. From the evidence of PW1 it clearly transpires          E
that the participation and the role played by the accused-appellants
in the crime was limited to giving blows with fists and legs to the
deceased, while other accused were assaulting the deceased with
knife and sword stick respectively. A statement of the prosecution
witness which is otherwise untrustworthy cannot be corroborated         F
by another piece of unreliable evidence of another prosecution
witness. In the FIR also, it was stated that, the appellants herein,
had beaten the victim with hands and feet and no weapon was
ascribed to have been held by them. Whereas, PW5 states
differently that the accused-appellant (A-5) had also attacked the
victim holding a knife. There was no corroboration among their          G
statements, who are the prime witnesses, as to the role played
by the accused herein. The postmortem report and the evidence
of PW7 (Dr.) does not disclose any injuries suffered by the victim
resulted from the beatings received by fists, cuffs and legs as
such injuries are not visible. The prosecution had made large           H
816            SUPREME COURT REPORTS                       [2018] 6 S.C.R.


A     number of assailants as accused to have attacked the victim, but
      the witnesses, though their evidences are full of discrepancies,
      could not be able to state as to how the appellants herein caused
      injuries to the deceased leading to his death. In such a scenario,
      it would not be in the interest of justice to convict the appellants
      as the standard of proof in a criminal trial is proof beyond
B
      reasonable doubt and the prosecution could not prove the guilt
      of the accused in those standards. The Courts below, basing on
      their own assumptions and presumptions, have convicted the
      accused. Though every discrepancy and contradiction in the
      evidence of prosecution witnesses is not fatal to the case of the
C     prosecution, but the contradictions in the case on hand goes to
      the root of the matter are material ones and basing on such
      evidence it is not advisable to convict the accused. [Para 18]
      [823-G-H; 824-A-E]
            Harijana Thirupala and Ors. v. Public Prosecutor, High
D           Court of A.P., Hyderabad [2002] 1 Suppl. SCR 379 :
            (2002) 6 SCC 470 – relied on.
            S. Govidaraju v. State of Karnataka 2013 (10) SCALE
            454 – referred to.
                              Case Law Reference
E
            2013 (10) SCALE 454            referred to        Para 14
            [2002] 1 Suppl. SCR 379        relied on          Para 17
            CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
      No. 1785 of 2011.
F
            From the Judgment and Order dated 12.09.2007 of the High Court
      of Madhya Pradesh Judicature at Jabalpur in Criminal Appeal No. 333
      of 1999 in Session Case No. 120 of 1998
                                      WITH
G           Criminal Appeal Nos. 1786-1788 of 2011.
             Krishnakant Pandey, Dhanesh B. Dhotre, Shiv Sagar Tiwari, Advs.
      for the Appellant.
            D.S. Parmar, Rajesh Srivastava, Ms. Swarupma Chaturvedi
      (for Mishra Saurabh), Advs. for the Respondent.
H
          SHANKER v. STATE OF MADHYA PRADESH                                   817


      The Judgment of the Court was delivered by                               A
       N.V. RAMANA, J. 1. These appeals by special leave are
directed against the judgment dated 12th September, 2007 passed by the
High Court of Madhya Pradesh, at Jabalpur in Criminal Appeal Nos.
315, 316, 333 and 590 of 1999, whereby the High Court dismissed the
criminal appeals filed by the appellants herein and affirmed the order of      B
conviction and sentence passed by the trial Court against them.
        2. Brief facts of the case, according to the prosecution, are that
on 8th May, 1998 one Sanjay Sorle was attending a marriage at Bharveli
village. While the ceremonials were underway, one Deepak with two
others arrived there on motorcycle. An altercation had taken place             C
between Sanjay Sorle and the motorcyclists. Deepak, while leaving that
place, threatened Sanjay Sorle and went away. After that, he came back
to the marriage venue at about 10.30 p.m. on a bullet motorcycle with
Gudda @ Shivshanker, Shiv, Suresh (appellant herein) and Shanker
(appellant herein) and took away Sanjay Sorle from the venue to the
road and assaulted him. Altogether 11 persons were allegedly involved          D
in the crime. Gudda had inflicted injuries with knife, Shiv with Gupti
while Shanker and Suresh i.e. appellants herein attacked him by giving
fist blows. The injured Sanjay Sorle was taken to police station at Bharveli
and lodged the F.I.R. at 11 p.m.
       3. Upon registering the same as Crime No. 54/98, police sent the        E
injured Sanjay Sorle to the District Hospital at Balaghat for treatment,
where he was declared dead. After conducting inquest (Ext.P3), dead
body of the deceased was sent for postmortem, statements of witness
were recorded, site map has been prepared by Patwary (Ext. P5) as
well as police (Ext.P24). Accused were arrested and at the instance of         F
accused Shivshankar, Manoj, Dwarka and Shivkumar knives and other
incriminating material have been seized. Bullet motorcycle, allegedly rode
by the accused, has also been recovered from the possession of accused
Chokhu @ Sudhanshu (Ext. P9). Other things such as bloodstained soil,
normal soil and clothes of deceased were seized and sent for expert
examination. Charges were levelled against five accused persons i.e.           G
Manoj, Baburao, Deepak, Gudda @ Shivshanker, Shanker and Dwarka
@ Dan under Sections 148 and 302/149, IPC. In addition to those charges,
accused Rupesh, Chokhu @ Rakesh, Suresh, Shiv Kumar and Dablu @
Sudhanshu were additionally charged for the offence punishable under
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818            SUPREME COURT REPORTS                          [2018] 6 S.C.R.


A     Section 3(2)(5) SC & ST Act, 1989. The accused denied the charges,
      pleaded to have been falsely implicated and claimed to be tried.
             4. After an elaborate trial, learned Additional Sessions Judge by a
      common judgment in Special Sessions Case No. 51/1998 and Sessions
      Case No. 120/1998, acquitted six accused persons from all the charges
B     and discharged the accused (including appellants herein) from the charges
      under Section 3(2)(5) of SC & ST Atrocities Act, 1989. However, the
      trial Court came to the conclusion that the remaining five accused
      (including appellants herein) were guilty of the offences punishable under
      Sections 148, 302/149, IPC. Accordingly by judgment dated 27th January,
      1999 they were convicted and sentenced to suffer rigorous imprisonment
C     for a period of one year for the offence under Section 148, IPC. Whereas,
      for the offence punishable under Section 302/149, IPC they were
      sentenced to suffer life imprisonment and to pay a fine of Rs.2,000/-
      each, in default, to further suffer one year imprisonment. However, all
      the sentences were directed to run concurrently.
D            5. All the five accused persons, being aggrieved by the judgment
      of the trial Court, carried the matter in appeal before the High Court of
      Madhya Pradesh at Jabalpur assailing the award of their conviction and
      sentence. By the judgment impugned herein, the High Court found their
      appeal devoid of merits and therefore dismissed the same upholding the
E     judgment passed by the trial Court. Dissatisfied with the same, Accused
      No. 3—Suresh Dhobi and Accused No. 5—Shanker are before this
      Court by way of present appeals.
             6. We have heard learned counsel for the appellants as well as
      learned counsel appearing on behalf of the respondent – State of Madhya
F     Pradesh. Unfortunately, there is no proper assistance from the learned
      counsel appearing on behalf of the appellants, in spite of taking
      adjournments. However, learned counsel appearing for the State has
      submitted that since two Courts have concurrently affirmed the guilt of
      the accused, there are no compelling reasons for this Court to interfere
      with the impugned judgment and advanced arguments in support of the
G     same.
            7. The translated copies of evidence of prime witnesses, P.W.-1
      and P.W.5, whose evidence is crucial for this case, which were filed by
      the appellant along with appeals are not clear and we found so many
      typographical and grammatical mistakes in them. In all fairness, learned
H
          SHANKER v. STATE OF MADHYA PRADESH                                  819
                    [N.V. RAMANA, J.]

counsel appearing on behalf of the respondent—State himself has even          A
filed translated copies of evidence of PWs 1 and 5. We acknowledge
the able assistance of learned counsel appearing for the respondent—
State, in facilitating this Court to go through the evidence in the process
of arriving at a just conclusion.
       8. The evidence available on record reveals that the entire case       B
of the prosecution is based on the evidence of two prosecution witnesses
i.e. P.W.1—Ganesh Prasad and P.W.5—Savitri Bai.
       9. It is manifest from the evidence of P.W.1—Ganesh Prasad,
that though he had seen both the accused—appellants herein, but he
knew them only by their face and it is PW5—Savitri Bai who told him           C
their names, and basing on what she said, he has got their names recorded
in the FIR. He further states that both the accused have disclosed their
names to be Shanker and Suresh. But it is not clear from his evidence
that to whom the accused disclosed their names. Even though the names
of the two accused are there in the F.I.R., as per P.W.-1, the role played
by these two accused is that they had, along with other accused, beat         D
the victim by giving blows with fists and legs. It was expressly stated by
PW1 that by the time he thought of calling for help, the accused—
appellants fled away from the place of occurrence.
       10. PW5—Savitri Bai, who also happened to be the panch of the
ward, deposed that she was standing at a distance of about 10 feet from       E
the victim Sanjay Sorle at the marriage venue (Mandap) accused Shiv
took away Sanjay Sorle outside where other accused Gudda, Deepak,
Shanker and Suresh were present. Contrary to the statement of PW1,
she deposed that the accused—appellant Shanker was armed with a
knife and assaulted the victim while Shiv assaulted with sword-stick,         F
Gudda with a knife while Suresh and Deepak caught hold of Sanjay. She
says that she did not notice the other persons present at the place of
occurrence. When she shouted loudly, the accused persons fled away
and the victim came to the Mandap groaning. Whereas, in her cross-
examination, she categorically stated that the scene of offence cannot
be seen from the place of Mandap.                                             G
       11. From the evidence of PW5, it appears that there is a huge
discrepancy in the prosecution case as to who lodged the FIR. It was
clearly stated by PW5 that it was she who lodged the report at the police
station and she had no knowledge about anyone else lodging the complaint
                                                                              H
820             SUPREME COURT REPORTS                           [2018] 6 S.C.R.


A     and also she does not know the reason for not enclosing her report. She
      made it clear that after lodging the report she came back to her home.
      Then after half an hour when she returned home, police recorded her
      statement. It is significant to note that PW5 has specifically stated that
      PW1—Ganesh Prasad had not lodged the report. It was also clarified
      by her that none of the accused assaulted the victim with lathi (stick).
B
              12. At this juncture, it is very much relevant to have a look at the
      evidence of Doctor. According to PW7—Dr.Nilay Jain, who conducted
      postmortem on the body of the deceased, the deceased had sustained
      the following injuries:
C           1. One quenched wound at present near the nipple oblique 2.0 x
               1.5 x 3.0 cms.
            2. One quenched wound at mid auxiliary line oblique (D) on 10th,
               11th and 12th ribs standard sized about 1.5 x 1.0 x 4.5 cms.
            3. One quenched wound on abdomen at mid chronological line on
D              10th, 11th and 12th ribs oblique sized about 3.0 x 2.5 x 6.0 cms.
               (depth) at thigh (upper side) on lateral aspect.
            4. One oblique quenched wound sized about 5.0 x 2.0 x 7.0 cms.
               on (depth) right renal angle;
            5. One horizontal quenched wound dolente sized about 5 x 1.5 x
E
               2.0 cms. (D) injury near nipple is very clear pleasing 2nd and
               3rd ribs picking about of the chest (RT atinum).
             The Doctor expressed his opinion that the death could have
      occurred as a result of shedding of excessive bleeding from the heart
      and the same could have caused with 18 hours of postmortem. In the
F
      cross-examination, it was elicited from the Doctor that the death was
      caused by Injury No. 1 only and there was no possibility of occurring
      death from other injuries. The Injury No. 1, in the opinion of the Doctor,
      could only be inflicted by a knife or gupti and not by hand or a lathi.
             13. We have given our anxious consideration to the evidence of
G     prime prosecution witnesses i.e. PWs 1 & 5, it is clear that their
      statements are not corroborating with the other on material aspects. It
      appears that the Courts below have unmindfully given greater importance
      to the evidence of PWs 1 and 5, without looking into the veracity of their
      statements. First and foremost, if credence is given to the statement of
H
          SHANKER v. STATE OF MADHYA PRADESH                                  821
                    [N.V. RAMANA, J.]

PW5, the genesis and genuineness of FIR (Annexure P1) is, undoubtedly         A
questionable. If the FIR (Ext.P1) was registered on the basis of complaint
of PW1, which remains duly proved by the statement of its writer M.G.
Choubey (PW17), then the statement of PW5 could not be believed and
given effect to, as in her deposition she categorically asserts that it was
she who lodged the complaint with police and PW1 did not lodge any
                                                                              B
report to the police. If PW1’s statement is to be believed, it cannot be
said that he was an eyewitness to the incident, as according to him at the
time of incident, he went to the mandap to call for help of other persons
and the place of incident is not visible from mandap. This fact also
proved by the evidence of Amit—PW4, another close relative of PWs 1
and 5. According to PW4, when he and PW1 were present in the                  C
mandap, Sanjay Sorle came there and fall down going into the state of
unconsciousness. When PWs 1 and 4, gone to see outside the mandap,
by then the accused left the place. He says that he has no knowledge in
which direction the accused left. PW5 is none other than niece of PW1.
According to her, she was the person physically present at the mandap
                                                                              D
and followed the accused when they were taking away the deceased.
This only establishes the factum of being the eyewitness but crucially
she had omitted to state to the I.O. about the fact that she followed the
deceased to the scene of offence from the mandap. The omission to
this effect is marked as Ex. D2. In view of that, the evidence of PW1
that he came to know about the names of the assailants through PW5            E
also does not inspire confidence.
     14. At this juncture, it would be helpful to look at the observations
made by this Court in S. Govidaraju vs. State of Karnataka, 2013 (10)
SCALE 454 in the following words:
      “It is well settled legal proposition that while appreciating the       F
      evidence, the court has to take into consideration whether the
      contradictions/omissions were of such magnitude so as to
      materially affect the trial. Minor contradictions, inconsistencies,
      embellishments or improvements in relation to trivial matters, which
      do not effect the core of the case of the prosecution, must not be      G
      made a ground for rejection of evidence in its entirety. The trial
      Court, after going through the entire evidence available, must form
      an opinion about the credibility of the witnesses, and the appellate
      court in the normal course of action, would not be justified in

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822             SUPREME COURT REPORTS                            [2018] 6 S.C.R.


A           reviewing the same, without providing justifiable reasons for doing
            so. Where the omission(s) amount to a contradiction, creating a
            serious doubt regarding the truthfulness of a witness, and the other
            witnesses also make material improvements before the court in
            order to make the evidence acceptable, it would not be safe to
            rely upon such evidence. The discrepancies in the evidence of
B
            eyewitnesses, if found not to be minor in nature, may be a ground
            for disbelieving and discrediting their evidence. In such
            circumstances, the witnesses may not inspire confidence and if
            their evidence is found to be in conflict and contradiction with
            other evidence available or with a statement that has already been
C           recorded, then in such a case, it cannot be held that the prosecution
            has proved its case beyond reasonable doubt”.
             15. On the face of the present case, it can be said without any
      hesitation that the prosecution has miserably failed to prove the alleged
      offence by adducing cogent and trustworthy evidence. In other words,
D     the present case is based on a fragile and weak footing with several
      contradictions in the evidences of prime prosecution witnesses. Further,
      most of the prosecution witnesses have turned hostile and no independent
      witness supported the prosecution case. Interestingly, no test identification
      parade was conducted even though PW1 states that he could recognize
      the accused only by face, initially there were only five persons named as
E     accused but subsequently in all, 11 persons were charged and most of
      them have already been acquitted by the Courts below. The material on
      record shows that a lathi (stick) was also recovered from the possession
      of accused, but there was no evidence to show who wielded the lathi in
      the assault against the victim. According to PW5, none of the accused
F     assaulted the deceased with lathi.
             16. The judgment of the trial Court, in our opinion, filled with
      assumptions and presumptions basing on which the trial Court awarded
      conviction and sentence to the accused. The trial Court had also pointed
      out that except Ganesh Prasad (PW1), Amit (PW4) and Savitri Bai
G     (PW5) no other witness has supported the prosecution case. Clearly,
      the statements of PWs 1 & 5 do not corroborate on crucial aspects,
      more particularly the genesis of FIR remained doubtful, yet the trial
      Court went on convincing itself with the evidences of PWs 1 and 5 and
      also on the basis of its own presumptions.

H
          SHANKER v. STATE OF MADHYA PRADESH                                       823
                    [N.V. RAMANA, J.]

        17. The High Court unfortunately has also not dealt with the matter        A
in accordance with the settled principles of law. Before going to award
conviction against an accused for the offence under Section 302, IPC
the Courts should be mindful of the fact that there should be no room to
suspect the evidence of key prosecution witnesses based on whose
evidence the conviction is being awarded. As a general rule, while
                                                                                   B
appreciating evidence in a criminal case, the Court should bear in mind
that it is not the quantity, but the quality of evidence that is material. It is
the duty of the Court to consider the trustworthiness of the witness and
the evidence adduced on record and to assess the same in a prudent
manner whether the same inspires confidence so as to accept and act
upon, before convicting an accused. Here it is apt to look at the                  C
observations made by this Court in Harijana Thirupala and Ors. vs.
Public Prosecutor, High Court of A.P., Hyderabad, (2002) 6 SCC
470:
       “In cases where the court entertains reasonable doubt regarding
       the guilt of the accused the benefit of such doubt should go in             D
       favour of the accused. At the same time, the court must not reject
       the evidence of the prosecution taking it as false, untrustworthy
       or unreliable on fanciful grounds or on the basis of conjectures
       and surmises. The case of the prosecution must be judged as a
       whole having regard to the totality of the evidence.
                                                                                   E
       In appreciating the evidence the approach of the court must be
       integrated not truncated or isolated. In other words, the impact of
       evidence in totality on the prosecution case or innocence of
       accused has to be kept in mind in coming the conclusion as to the
       guilt or otherwise of the accused. In reaching a conclusion about
       the guilt of the accused, the court has to appreciate, analyse and          F
       assess the evidence placed before it by the yardstick of probabilities,
       its intrinsic value and the animus of witnesses.
       It must be added that ultimately and finally the decision in every
       case depends upon the facts of each case”.
                                                                                   G
       18. In the case on hand, the Courts below failed to take into
consideration the contradictions and distortions in the evidence of PWs
1 and 5. From the evidence of PW1 it clearly transpires that the
participation and the role played by the accused—appellants Shanker

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824                SUPREME COURT REPORTS                        [2018] 6 S.C.R.


A     and Suresh in the crime was limited to giving blows with fists and legs to
      the deceased, while other accused Gudda and Shiv were assaulting the
      deceased with knife and sword stick respectively. A statement of the
      prosecution witness which is otherwise untrustworthy cannot be
      corroborated by another piece of unreliable evidence of another
      prosecution witness. In the FIR also, it was stated that Shanker and
B
      Suresh, the appellants herein, had beaten the victim with hands and feet
      and no weapon was ascribed to have been held by them. Whereas,
      PW5 states differently that the accused Shanker had also attacked the
      victim holding a knife. There was no corroboration among their statements,
      who are the prime witnesses, as to the role played by the accused herein.
C     The postmortem report and the evidence of PW7 (Dr. Nilay Jain) does
      not disclose any injuries suffered by the victim resulted from the beatings
      received by fists, cuffs and legs as such injuries are not visible. The
      prosecution had made large number of assailants as accused to have
      attacked the victim, but the witnesses, though their evidences are full of
      discrepancies, could not be able to state as to how the appellants herein
D
      caused injuries to the deceased leading to his death. In such a scenario,
      it would not be in the interest of justice to convict the appellants as the
      standard of proof in a criminal trial is proof beyond reasonable doubt and
      the prosecution could not prove the guilt of the accused in those standards.
      The Courts below, basing on their own assumptions and presumptions,
E     have convicted the accused. Though every discrepancy and contradiction
      in the evidence of prosecution witnesses is not fatal to the case of the
      prosecution, but the contradictions in the case on hand goes to the root
      of the matter are material ones and basing on such evidence it is not
      advisable to convict the accused.
F           19. In view of the foregoing, we are not able to appreciate the
      reasoning given by the Courts below for convicting the appellants for
      the alleged offences and we are of the considered view that the
      prosecution has miserably failed to prove the guilt of the accused beyond
      reasonable doubt. Resultantly, we set aside the impugned judgment passed
      by the High Court and allow these appeals.
G

      Ankit Gyan                                                   Appeals allowed.




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