Evidence – Of eyewitness – When not to be relied upon: Held: Evidence of the eye-witness should be of very sterling quality and calibre and it should not only instil confidence in the court to accept the same but it should also be a version of such nature that can be accepted at its face value – In the present case, testimony of PW-9 (cousin of the deceased) was shrouded with inconsistencies and he had not named the appellants in the FIR – Contradictions in PW-9’s statement were glaring – Prosecution failed to prove the guilt of the appellants beyond reasonable doubt – Non-consideration of the lacuna in the prosecution case in proper perspective by the Trial Court and the High Court resulted in miscarriage of justice – Conviction of the appellants unsustainable – Judgment of Courts below set aside – Appellants acquitted of the offences alleged. [Paras 9.19.3, 10 and 11] Evidence – CCTV footage – Reliance placed to convict the appellants and co-accused persons, if proper:
Held: Said evidence could not have been relied upon as it was infested with serious doubts and the very manner in which it came into existence itself raised a serious doubt not only about its source but also about the presence of the appellants at the scene of crime – PW-8 who made a video from his mobile phone of the CCTV footage on 22.04.2016 claimed to have handed over the recorded CD (Ex.P.3) to the police on 01.06.2016 – However, the video (CD) was not forwarded by the police to the Forensic Science Laboratory – PW-8 claims to have downloaded the video from his mobile phone and transferred to his laptop and then prepared CD (Ex.P.3) – Neither laptop nor mobile phone was produced by prosecution or had been seized by the police during the course of investigation – Trial court’s conclusion is based on inconsistent evidence and there is lack of clarity in the evidence of PW.8 – He identified his signature on the certificate Ex. P-L (furnished as required u/s.65-B, Evidence Act) which was prepared by police official who was not examined – Further, Ex.P.3 was played in the trial court and the Sessions Judge recorded that from the video clips the faces of assailants and complainants were not decipherable – PW-8 admitted in his cross-examination that certificate Ex.PL was prepared by a police official, and he had affixed his signature to Ex.PL – He also admitted that faces of the assailants were not visible and identifiable and the registration numbers of the motorcycles were also not visible – Investigating Officer (PW-15) also admitted in his cross-examination that faces of the accused are not identifiable from the video – The said video according to PW-8 was taken from the CCTV camera located in the house of ‘D’ who was never cited as a witness by the prosecution – Evidence Act, 1872 – s.65-B. [Paras 9.4, 9.5] Evidence Act, 1872 – ss.25, 26 – Confessional statement of the accused and co-accused were recorded when they were in police custody: Held: Such confessional statements would become inadmissible having regard to the provisions of ss.25, 26 – s.25 makes it clear that no confession made to a police officer shall be proved as against a person accused of any offence – Likewise, s.26 states that any such statement is inadmissible if given while in police custody. [Para 9.6] Penal Code, 1860 – s.149:
Held: In order to attract s.149, it must be shown by the prosecution that the incriminating act was done to accomplish the common object by such unlawful assembly – It must be within the knowledge of the other members as one likely to be committed in furtherance of the common object – Even if no overt act is imputed to the accused, the presence of the accused as part of the unlawful assembly is sufficient for conviction – Inference of a common object has to be drawn from various factors such as the weapons with which the members were armed, their movements, the acts of violence committed by them, and the end result – In the present case, High Court held that every member had inhibited the common intention to accomplish the unlawful object – On facts, the motive alleged was a quarrel that ensued between one ‘R’ and ‘N’ with ‘A’ (the deceased) and ‘S’ on the day of Dulhandi and ‘R’ was said to have threatened to kill ‘A’ – This factor clearly discloses that the appellants herein were not involved in the fight that occurred on the day of Dulhandi and as such no motive could be attributed to the appellants – Prosecution failed to prove that the appellants shared a common object with other members of the alleged unlawful assembly – There is no evidence to connect the appellants with the deceased or the co-accused – No overt act was attributed to the appellants – PW-9 admitted in his cross-examination that none of the accused except ‘P’ had caused injury to the deceased and there was only a single shot fired from the pistol. [Para 10] LIST OF CITATIONS AND OTHER REFERENCES
Rai Sandeep @ Deepu alias Deepu v. State (NCT of Delhi) (2012) 8 SCC 21 : [2012] 6 SCR 1153; Mehboob Ali & Another v. State of Rajasthan (2016) 14 SCC 640 : [2015] 10 SCR 553; Indra Dalal v. State of Haryana (2015) 11 SCC 31 : [2015] 7 SCR 1083; Roy Fernandes v. State of Goa and Others (2012) 3 SCC 221: [2012] 1 SCR 477 – relied on. OTHER CASE DETAILS INCLUDING IMPUGNED
ORDER AND APPEARANCES
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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