Allarakha Habib Memon Etc. vs State of Gujarat

Held: No – First informant-PW-11 was not present at the crime scene – Evidence of PW-12-an independent witness makes the very presence of PW-11 at the crime scene doubtful – Testimony of PW-11, the star witness of prosecution is thus, not trustworthy and reliable as the same was contradicted on material aspects by numerous material facts and circumstances – Testimony of the Police Constable-PW-12 also does not help the prosecution in linking the accused-appellant with the crime – It is improbable and totally unacceptable that a police constable had seen the incident and also brought the crime weapons to the police station and yet his statement would not be recorded and the factum of presentation of weapons would not be entered in the daily diary (roznamcha) of the police station – Non-production of the daily diary is a serious omission on part of the prosecution – Further, on facts, identification of the accused by PW-12 for the first time in the dock is unbelievable and unacceptable – Also, on a careful perusal of the complaint (Exhibit P-79) filed by PW-11 which was subsequently registered as the FIR, it is manifest that no time of recording was mentioned thereupon – There was no endorsement as to the date and time on which the said FIR reached the Court concerned – Going by the testimony of PW-11, the actual complaint filed by him at the police station seems to have been withheld and the FIR was a post investigation document and seems to have been created at a later point of time – Furthermore, neither the disclosure statements made by the accused were proved as per law nor the same resulted into any discovery which could be accepted as incriminating inasmuch as the requisite link evidence was never presented by the prosecution so as to establish that the recovered articles remained in the self-safe condition from the date of the seizure till the same reached the FSL – Prosecution failed to lead convincing evidence establishing the guilt of the accused appellants beyond doubt so as to hold the appellants responsible for the crime – Impugned judgments quashed and set aside – Appellants acquitted by giving them the benefit of doubt. [Paras 19, 20, 22, 23, 25, 28, 31, 36-38, 46, 48] Code of Criminal Procedure, 1973 – ss.161, 162 – Police Constable-PW-12 claiming to be an eyewitness to the incident reported at the police station with the crime weapons however, he did not submit any report/complaint of the incident – Complaint lodged by PW-11-first informant who was deceased’s cousin brother came to be registered as FIR – Impermissibility:

Held: First version of the incident as narrated by the PW-12 would be required to be treated as the FIR and the complaint lodged by PW-11 would be relegated to the category of a statement u/s.161, CrPC and nothing beyond that – The same could not have been treated to be the FIR as it would be hit by s.162 CrPC – Prosecution is thus, guilty of concealing the initial version from the Court and hence, an adverse inference is drawn against the prosecution on this count. [Para 21]

Evidence Act, 1872 – ss.26, 21 – Confessions of the accusedappellants recorded by PW-2-Medical Officer while preparing their injury reports of the accused – Admissibility: Held: The so-called confessions are ex-facie inadmissible in evidence as the accused persons were presented at the hospital by the police officers after having been arrested in the present case – As such, the notings made by PW-2 in the injury reports of the accused would be clearly hit by s.26 – Therefore, the said admissions of the accused not accepted as incriminating pieces of evidence relevant u/s.21. [Para 41]

Evidence – Seizure panchnama, FSL Reports – Reliance upon – When not proper – Seizure panchnama recorded that the accused threw away their weapons and fled away from the crime scene and that all the weapons were brought to the police station by police personnel – Reliance placed by Courts below on FSL reports to hold that blood group found on the crime weapons incriminated the accused for the crime as the same matched with the blood group of the deceased – Correctness:

Held: Various infirmities create a doubt on the very process of seizure of the weapons – Seizure panchnama (Exhibit -38) does not bear the signatures of PW-12-police constable who admittedly collected the weapons from the crime scene and presented them to the police station – Thus, no credence can be given to seizure panchnama because it was not attested by the witness who had actually presented the weapons at the police station – Trial Court as well as the High Court heavily relied upon the FSL reports (Exhibits 111-115) for finding corroboration to the evidence of the eyewitnesses and in drawing a conclusion regarding culpability of the appellants for the crime however, the testimony of the so-called eyewitnesses is discarded being doubtful – Thus, even presuming that the FSL reports conclude that the blood group found on the weapons recovered at the instance of the accused matched with the blood group of the deceased, this circumstance in isolation, cannot be considered sufficient so as to link the accused with the crime – Further, the IO-PW18’s evidence on the aspect of disclosure statements made by the accused-appellant leading to the recoveries is perfunctory and unacceptable – The witness did not elaborate upon the words spoken by the accused-appellant at the time of making the disclosure statements. [Paras 42-44] Evidence Act, 1872 – s.27 – Disclosure as regards the place of incident irrelevant when crime scene was already known to police:

Held: In the present case, the circumstance regarding identification of place of incident at the instance of the accused was inadmissible because the crime scene was already known to the police and no new fact was discovered in pursuance of the disclosure statements – Thus, since the place of incident was known to police, this disclosure was irrelevant. [Paras 41, 45] Constitution of India – Article 136 – Concurrent findings by courts below – Exercise of jurisdiction u/Article 136: Held: While exercising jurisdiction under Article 136 this Court will not interfere with the concurrent findings recorded by the courts below – However, where the evidence has not been properly appreciated, material aspects have been ignored and the findings are perverse, this Court would certainly interfere with the findings of the courts below though concurrent. [Para 47]