Penal Code, 1860: s.120-B and ss.148, 302/149– Case of the prosecution that on account of previous enmity with the victimdeceased, the appellant was talking with the other accused regarding preparation to kill him – Their conversation was heard by PW-11 and PW-12 – PW-9 and PW-16, who were near the scene of the occurrence, rushed to the spot after hearing the cries of the victim, and saw all the accused assaulting him with lathis and tabbal– Accused convicted u/ss.148, 302/149 –Charges were framed u/s.120-B also but, the accused were acquitted in respect of the said offence – On appeal, held: Statements of the alleged eye witnesses, PW-9 and PW-16 were recorded after eight days of the incident – Prosecution tried to explain the delay in recording their statement – In normal course, the Court would have accepted the explanation offered, but the facts in this case are different – PW-2 admitted that he had seen PW-9 at the place of the incident when the police had come to the village after the registration of the FIR – Thus, the IO knew very well, on the first day itself, that PW-9 was an eye witness – There was no reason as to why he did not record the statement of the socalled eye witness at the earliest point of time – Whole story of the prosecution about the presence of PW-9 and PW-16 at the time of incident appears to be concocted – Prosecution also relied upon the recovery of bloodstained sticks and tabbal – In the absence of positive material indicating that the stained blood was of human origin (even though the blood group was not proved because of disintegration of blood) and of the same blood group as that of the accused, it would be difficult to rely upon the aspect of recovery of the weapons– Further, all the accused were acquitted for the offence of conspiracy, which means that there are concurrent findings of the courts below that the prosecution failed to prove the aspect of conspiracy of the accused to commit the murder of the deceased – In view of the material on record which is shaky, suspicion arises in the mind of the Court about the genesis of the case of the prosecution – Impugned judgments of the Trial Court and the High Court set aside – Appellants to be released forthwith, if not required in any other case.
Criminal Trial – Delay in recording of the statement of eye witnesses – When does not raise suspicion – Discussed. Evidence– Recovery of bloodstained weapon– Burden to be discharged by the prosecution – Discussed.
Allowing the appeals, the Court
HELD: 1.1 Though the incident took place on 22nd January, 2007, the statements of the alleged eye witnesses, namely, PW-9 and PW-16, were recorded after eight days of the incident. The prosecution tried to explain the delay in recording the statement of the eye witnesses by contending that they were scared of the accused, particularly the appellant who was the village Sarpanch (Panchayat Chairman); the appellant was stated to be powerful and influential; only after some of the accused were arrested, these witnesses came to the village and gave their statements to the police during the course of investigation. Mere delay in recording of the statement of the eye witness by the investigating officer cannot ipso facto raise suspicion in the mind of the Court about the veracity of the prosecution case, more particularly, about the veracity of the eye witnesses. In the normal course, this Court would have accepted the explanation offered by the witnesses or the prosecution for not recording the statements at an earlier point in time, but the facts in this case are different inasmuch as it is admitted by the prosecution witnesses, more particularly by the investigating officer, that PW-9 was very much present in the village. PW-2 had admitted in the cross-examination that he had seen PW-9 at the place of the incident when the police had come to the village after the registration of the First Information Report. PW-2 is none else but the younger brother of PW-9, and they were residing separately in one house. Thus, the evidence of PW-2 cannot be disbelieved insofar as it relates to the presence of PW-9 in the village, and on the spot when the police had started investigation. PW-9, being the Patel of the village, could not have kept the fact about the incident or about the complicity of the accused from the investigating officer at the first instance, had he really been an eye witness to the incident. There was no reason as to why the investigating officer did not record the statement of the so-called eye witness at the earliest point of time, more particularly when, at that point in time, the investigating officer did not have any clue about the murderers. The story, as put forth by the prosecution, that PW-9 did not tell the investigating officer about the presence of PW-16, is not believable. According to PW-16, he came to the village Semaria after eight days, i.e. after the arrest of a few accused, and gave the statement to the police. [Para 6] [7-D-H; 8-A-E; 9-A-B]
1.2 Evidence relating to recovery of bloodstained sticks and tabbal may not be helpful to the prosecution in this case inasmuch as there is no evidence to show that these articles were stained with human blood, and more particularly with blood of the same blood group as that of the deceased. As per the Forensic Science Laboratory Report, the blood stains were disintegrated, and their origin could not be determined. At times, it may be very difficult for the serologist to detect the origin of the blood due to the disintegration of the serum, or insufficiency of bloodstains, or haematological changes etc. In such situations, the Court, using its judicious mind, may deny the benefit of doubt to the accused, depending on the facts and circumstances of each case, if other evidence of the prosecution is credible and if reasonable doubt does not arise in the mind of the Court about the investigation. It may not always be possible to inextricably link the bloodstains on the items seized in recovery to the blood of the deceased, due to the possibility of disintegration of bloodstains on account of the time-lapse in carrying out the recovery. If the recovery of bloodstained articles is proved beyond reasonable doubt by the prosecution, and if the investigation was not found to be tainted, then it may be sufficient if the prosecution shows that the blood found on the articles is of human origin though, even though the blood group is not proved because of disintegration of blood. The Court will have to come to the conclusion based on the facts and circumstances of each case, and there cannot be any fixed formula that the prosecution has to prove, or need not prove, that the blood groups match. In the instant case, some reliance could have been placed on the recovery, had the prosecution at least proved that the blood was of human origin. The prosecution has tried to concoct the case from stage to stage. Hence, in the absence of positive material indicating that the stained blood was of human origin and of the same blood group as that of the accused, it would be difficult for the Court to rely upon the aspect of recovery of the weapons and tabbal, and such recovery does not help the case of the prosecution. All the accused were acquitted for the offence of conspiracy, which means that there are concurrent findings of both the courts below that the prosecution has failed to prove the aspect of conspiracy of the accused to commit the murder of the deceased. Once the conspiracy to commit the murder of the deceased is absent, there is no material on record to show as to why the accused had gathered in the house of the appellant. [Paras 8,9, 12-15] [9-E; 10-E; 12-C-D, F-H; 13-A-C]
1.3 In view of the material which is shaky, suspicion arises in the mind of the Court about the genesis of the case of the prosecution. The impugned judgments of the Trial Court and the High Court are set aside. The appellants are directed to be released forthwith, if not required in any other case. [Para 16] [13-D-E]
1.4 The appellants in these appeals are Accused 1, Accused
2 and Accused 7. Other accused in S.T. No. 57 of 2010 have not preferred an appeal. Since in respect of the appellants herein it is found that the prosecution has not proved the charges beyond reasonable doubt, the benefit of this judgment should also enure to the other accused who were convicted in S.T. No. 57 of 2010. Accordingly, the other accused in S.T. No. 57 of 2010, who have not preferred appeals before Supreme Court, shall also be released forthwith, if not required in any other case. [Para 16] [13-F-G]
Raghav Prapanna Tripathi & Ors. v. State of U.P., AIR 1963 SC 74 : [1963] SCR 239 – followed.
Sattatiya v. State of Maharashtra (2008) 3 SCC 210; Shantabai and Ors. v. State of Maharashtra, (2008) 16 SCC 354 : [2008] 3 SCR 713 – relied on.
R. Shaji v. State of Kerala, (2013) 14 SCC 266 : [2013]
3 SCR 1172 ; Gura Singh v. State of Rajasthan, (2001)
2 SCC 205 : [2000] 5 Suppl. SCR 408 ; Jagroop
Singh v. State of Punjab, (2012) 11 SCC 768 : [2012]
7 SCR 91 ; State of Rajasthan v. Teja Ram and Others (1999) 3 SCC 507 : [1999] 2 SCR 29 ; John Pandian v. State Represented by Inspector of Police, Tamil Nadu, (2010) 14 SCC 129 ; Prabhu Dayal v. State of
Rajasthan, (2018) 8 SCC 127 – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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