Penal Code, 1860 – ss. 302/34 – Murder – The prosecution case is that when the victim-deceased was returning from market to village, the appellant and the co-accused assaulted him with axe and stick, and the victim died on the spot – The trial Court reached a guilty verdict and sentenced both accused accordingly – However, the High Court referred to the testimony of PW-4 who admitted that he could not recognize the second person at the spot and could identify only the appellant, based on this, the co-accused was acquitted – On appeal, held: The alleged weapons of assault recovered were never linked to the crime – The doctor in his crossexamination admitted that bloodstains or other marks on the exhibits could not be seen – The weapons were sent for chemical examination and the trial Court referred to the report of chemical analyst to conclude the presence of blood on the exhibits but the purported chemical analyst report is not found available with the case records and there is no mention of such report in the High Court judgment as well – Thus, the prosecution did not produce any chemical analyst report – Other relevant forensic evidence like seized shirt of the coaccused was withheld by the prosecution – When such vital forensic evidence is kept away, an adverse inference will have to be drawn against the prosecution – Another infirmity was the presence of the police during the Test Identification Parade – Also, the Pahchan patra of TIP mentions three lungis were presented, however, the related witness was shown only one lungi for identification as per own statement of witness, PW-3 – Such infirmities would render TIP unworthy of acceptance – Further, there were inconsistencies in the statement of PW-3, he stated that lungi was found 10-12 steps from the dead body, however, the spot report noted that lungi was found at a distance of 150 feet from the body – As far as PW-4 is concerned, he admitted to having poor eye sight and was incapable of seeing things beyond one or two feet – He also admitted that it was dark and cloudy as it was raining on that day – Besides, he heard victim cry for help from 200 yards and whereas PW-2 who was 54 yards away from the place of incident, never heard anything – This would render testimony of PW-4 unreliable – This was coupled with the unnatural conduct of PW-4, as witness here knew the victim and his family – PW-4 allegedly saw the incident and yet remained quiet about the incident – His reaction and conduct does not match upto ordinary reaction of a person who knew the deceased and his family – Therefore, the infirmities in the prosecution evidence has made out a case for interference – Consequently, the judgments of the trial Court and the High Court are set aside. Allowing the appeal, the Court
HELD: 1. The alleged weapons of assault recovered on the basis of statement of the accused could be a key evidence to support the prosecution, but unfortunately, the recovered articles were never linked to the crime. The doctor in his crossexamination, admitted that bloodstains or other marks on the exhibits could not be seen. The weapons were reportedly sent for chemical examination and although the trial Court had referred to the report of chemical analyst to conclude the presence of blood on the exhibits but the purported chemical analyst report is not found available with the case records. Moreover, there is no mention of any such report in the High Court’s judgment. This would suggest that the prosecution did not produce any chemical analyst report in the case. [Para 8.1][1076-F-H; 1077A]
2. The relevant forensic evidence for the seized shirt (supposedly worn by the co-accused acquitted by High Court) was withheld by the prosecution. When such vital forensic evidence is kept away, an adverse inference will have to be drawn against the prosecution. [Para 8.2][1077-A-B]
3. The infirmities in the conduct of the Test Identification Parade would next bear scrutiny. The major flaw in the exercise here was the presence of the police during the exercise. When the identifications are held in police presence, the resultant communications tantamount to statements made by the identifiers to a police officer in course of investigation and they fall within the ban of section 162 of the Code. [Para 10][1077-E]
4. The next important flaw is that while the pahchan patra of the TIP mentions that three lungis were presented, the related witness was shown only one lungi for identification as per the own statement of the witness, PW-3. Such infirmities would therefore, render the TIP unworthy of acceptance, for supporting the prosecution. [Para 11][1077-F]
5. Inconsistencies are also found in the statement of PW-3 as regards the spot inspection report prepared by the police and the recovery of the lungi. The PW-3 stated that lungi was found 10-12 steps from the dead body. However, the spot report noted that the lungi was found at a distance of 150 feet from the body and in a plastic bag. In any case, the material exhibit may have no bearing since PW-3 admitted that similar lungi is worn by many farmers in the village. Therefore it would be unsafe in view of this Court, to link the appellant with the exhibit, relied upon by the prosecution. [Para 12][1077-G; 1077-A-B]
6. Now, the question is whether PW-4 can be treated as a reliable eye-witness of the incident. The witness PW-4 admitted to having poor eyesight and through his cross-examination it was elicited that witness is incapable of seeing things beyond one or two feet. The witness also admitted that when he left Tamta market, it was dark and cloudy as it was raining on that day. Besides he claimed to have heard the deceased cry out for help while being attacked. The record indicates that PW-4 was at a distance of 200 yards when he heard the cry. However, PW-2 who was only around 54 yards away from the place of the incident and was expected to better hear the victim’s cry, never heard anything. This would render the testimony of PW-4 unreliable, particularly because of the poor vision and hearing capacity of the witness. [Para 13][1078-C-E]
7. Next the unnatural conduct of PW-4 will require some scrutiny. The witness here knew the victim, allegedly saw the fatal assault on the victim and yet kept quiet about the incident. If PW-4 had the occasion to actually witness the assault, his reaction and conduct does not match upto ordinary reaction of a person who knew the deceased and his family. His testimony therefore deserves to be discarded. [Para 14][1078-F; 1079-CD]
Musheer Khan v. State of Madhya Pradesh (2010) 2 SCC 748 : [2010] 2 SCR 119; Amar Singh v. The State (NCT of Delhi) (2020) SCC Online SC 826 – relied on.
Ramkishan Mithanlal Sharma v. The State of Bombay [1955] 1 SCR 903 – 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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