Penal Code, 1860 – ss. 302 and 307 – Prosecution case that six accused persons armed with various weapons, on account of some old enmity, assaulted PW-2 and his brother – A-1 was caught red-handed but other accused persons managed to flee from the spot – Injured were taken to hospital where brother of PW-2 succumbed to the injuries, however, PW-2 survived – Trial court and High Court convicted all the accused on charges of murder and attempt to murder – SLP preferred by A-4 dismissed by another Bench of Supreme Court – Instant appeal concerned with the appeals filed by the other accused A-1, A-2, A-3, A-5 and A-6 – Whether the Courts below were right in convicting the accusedappellants and whether the prosecution proved their guilt beyond reasonable doubt – Held: Deceased, the brother of PW-2, gave statement to the police – In the said statement the deceased did not state the names of A-2 and A-3 – Also, PW-2 in the supplementary statement stated names of A-2 and A-3, but he neither specifically attributed any overt acts to accused nor attributed any weapon used by them – Further, neither there was any recovery of weapon nor there was any expert opinion against A-2 and A-3 – Oral testimony of PW-2 without independent corroboration cannot be basis for the conviction – Both the Courts went wrong in finding A2 and A-3 guilty – Prosecution failed to prove the guilt of A-2 and A-3 beyond all reasonable doubt – Insofar as A-1 is concerned, PW-18-doctor who examined the body of the deceased stated that
27 injuries were received by the deceased – The injuries were attributable to a sharp weapon – A-1 was caught red-handed with chopper (sharp weapon) which is corroborated with the evidence of PWs, panch witness for the arrest, seizure of weapons, clothes and also in terms of expert evidence – Thus, prosecution successfully proved the guilt of A-1 beyond reasonable doubt – Insofar as involvement of accused A-5 and A-6 is concerned, they are named in the FIR as well as in the alleged oral declaration by the deceased – Evidence of the doctor and injuries sustained by the deceased clearly established the guilt of the A-5 and A-6 – Prosecution established the fact of involvement and the guilt of accused A-5 and A-6 beyond reasonable doubt –Conviction and sentence against A-2, A-3 set aside – However, conviction and sentence u/s.302 IPC w.r.t. A-1 and conviction and sentence u/s.307 r/w.34 IPC w.r.t A-5 and A-6 maintained.
Evidence – Oral evidence and medical evidence – Which one has precedence over the other – Held: Oral evidence takes precedence over the medical evidence unless the latter completely refutes any possibility of such occurrence.
Evidence – Evidential standards – Proof beyond reasonable doubt – Held: The prosecution has to prove the guilt of the accused beyond all reasonable doubt – Accused has a profound right not to be convicted for an offence which is not established by the evidential standard of proof beyond reasonable doubt – The law does not permit the court to convict the accused based on suspicion or on the basis of preponderance of probability.
Evidence – Test Identification Parade – Necessity of – Held: The necessity of holding Test Identification Parade arises only when the accused are not previously known to each other – The Test identification Parade is not a substantial piece of evidence, but is useful for corroboration with the other evidence – It is a rule of prudence – The Test Identification Parade, even if it is held may not be considered in all cases as trustworthy evidence on which the conviction of the accused can be sustained.
Disposing of the appeals, the Court
HELD: 1. The deceased (brother of PW-2) gave statement to the police, and the said statement is not part of the prosecution evidence. In the said statement, the deceased has not stated the names of accused (A-2 and A-3), secondly PW-2 in the supplementary statement stated their names, but he has not specifically attributed any weapon used by him. PW-11 has also not attributed any overt acts to accused A-2 and A-3. During investigation, the clothes of PWs. 2 and 3 were sent for expert opinion and it discloses that there were no blood stains on the clothes. No weapons were recovered. Except the oral evidence of PW-2, there is no other evidence on record to connect accused A-2 and A-3 to the crime. PW-2’s oral testimony without independent corroboration cannot be basis for the conviction. Both the Courts went wrong in finding these accused guilty without there being any evidence which points out at the guilt of these accused beyond reasonable doubt. The prosecution has to prove the guilt of the accused beyond all reasonable doubt. Accused has a profound right not to be convicted for an offence which is not established by the evidential standard of proof beyond reasonable doubt. The law does not permit the court to convict the accused based on suspicion or on the basis of preponderance of probability. The prosecution failed to prove the case against accused A- 2 and A-3 beyond reasonable doubt. [Paras 40, 42] [729-D-G; 730-A-B]
2. Coming to the role attributed to the other accused, PW2 stated that accused A-5, A-6 and A-4 assaulted on his right wrist, near his eye and abdomen region, while accused A-1, A-3 and A-2 assaulted his brother on his head and hands. It is settled law that oral evidence takes precedence over the medical evidence unless the latter completely refutes any possibility of such occurrence. The injuries attributed by PW-2 to the accused are attributable to a sharp weapon. Even PW-18-doctor opined that the “cause of death was shock due to head injury in the form of fractured skull bones with intra cranial haemorrhage with stab wounds with multiple incised wounds (unnatural)”. The fact that accused A-1 was caught red-handed with chopper (sharp weapon) which is corroborated with the evidence of PW-2, PW-1 panch witness for the arrest, seizure of weapons and clothes, and also in terms of expert evidence. Thus, the prosecution, by adducing cogent evidence, has successfully brought home the guilt of the accused A-1 beyond reasonable doubt. [Para 43] [730-B-C, F-G]
3. Coming to the involvement of accused A-5 and A-6, they are named in the FIR as well as in the alleged oral declaration by the deceased. Even the recovery of weapons supports the case and the statements of prosecution witnesses are also consistent pointing at the guilt of the accused. The evidence of the Doctor and the injuries sustained by the deceased clearly establishes the guilt of accused A-5 and A-6 and merely not attributing specific overt act to an accused would not be fatal to the case of the prosecution. In every criminal trial, normally discrepancies are bound to occur due to long lapse of time between the date of incident and deposition of witnesses before the Court. When the contradictions are so serious and create doubt in the mind of the court about the truthfulness of the statement, then such evidence is not safe to rely upon. The contradictions in the evidence concerning this case are very trivial in nature and will not affect the case of the prosecution. Taking into account all the circumstances coupled with the evidences, the case of prosecution clearly establishes the fact of involvement and guilt of accused A-5 and A-6 beyond reasonable doubt. [Paras 44, 45] [730-H; 731-A, B, C-E]
4. The case against Accused A-2 and A-3 has not been established beyond reasonable doubt, whereas the same cannot be said with respect to others, whose roles have been proved with cogent evidence available on record. Therefore, the conviction and sentence against Accused A-2 and A-3 set aside and the conviction and sentence under Section 302, IPC with respect to Accused A-1 and conviction and sentence under Section 307 read with 34, IPC with respect to accused A-5 and A6 is maintained. [Para 47] [731-G-H; 732-A] Rakesh & Anr. v. State of M.P. (2011) 9 SCC 698 : [2011]
15 SCR 34; Kathi Bharat Vajsur and Anr. v. State of Guj. (2012) 5 SCC 724 : [2012] 5 SCR 850; State of U.P. v. Hari Chand (2009) 13 SCC 542 : [2009]
7 SCR 149 – 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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