Penal Code,1860 – ss. 302,34,201 – Two accused persons (including appellant) were convicted for offence of murder by trial Court –The prosecution case, rested upon three circumstances (a) the alleged confessional statement of appellant;(b) prior animosity between appellant and the deceased; and (c) the recovery of material from the appellant – The High Court upheld the conviction of appellant and acquitted co-accused – On appeal, held: The testimonies of PW-12(son of the deceased) and PW-13(co-villager) negated circumstances that there was tension between the deceased and the accused, which was, the motive of commission of crime – Recovery of materials i.e keys and the money, there is no independent corroborated material except for the confessional statement of the accused, which also is not proven on record – Further, the extra judicial confessional statement of the appellant, apart from being hit by s.27 of the Evidence Act, 1872, it not to have been supported by PW-1 and PW-7, who as is evident, was himself a suspect, if witness was himself a suspect, his testimony cannot be said to be reliable and trustworthy – The testimony of star witness PW-19investigating officer was found to be unworthy of any credence and hence unreliable – The testimonies of the other prosecution witnesses were found unreliable – Neither the chain of circumstances to have been completely established nor the guilt of the accused alone, having committed the crime to be proven, much less beyond reasonable doubt – The presumption of the guilt of appellant by both the courts below is based on improper and incomplete appreciation of evidence which has resulted into travesty of justice – Judgment of High Court and trial Court set aside – Appellant acquitted –Evidence Act,1872 – s.27.
Allowing the appeal, the Court
HELD: 1. The impugned judgement to say the least, is sketchy. The presumption of the guilt of appellant-accused by both the courts below is based on improper and incomplete appreciation of evidence which in the considered view of this Court, has resulted into travesty of justice. [Para 10][688-F-G]
2. When this court came to the deposition of PW-12 son of the deceased, unequivocally he states that “... later on the police personnel told me that accused persons have thrown my father after committing murder...” Now this totally belies the testimony of his grandfather (PW-10). To similar effect, it is the testimony of PW-13 who only adds that “...Later on I came to know that victim has been murdered. I heard from the villagers...”. Significantly, her statement that she was not informed by her husband (PW-7), of the deceased being murdered by the Appellant was not recorded in her previous statement with which she was confronted. But what is crucial is her deposition is that her husband himself was a suspect and that she admits it to be correct, “... that the police personnel took my husband for inquiry in connection with the murder of deceased. The police personnel kept my husband for one day...” This negates one of the circumstances that there was tension between the deceased and the accused, which was, the motive of commission of crime, i.e. issue of use of the shop inter se the parties. [Para 19][690-G-H; 691-A-C]
3. This Court noticed in respect of the next circumstance, which is the recovery of keys and the money, that there is no independent corroborated material except for the confessional statement of the accused, which also is not proven on record. Even otherwise, the keys, the currency notes and the blood stained clothes were not sent for chemical analysis. There is only an unexhibited copy of the FSL Report of the alleged blood stained clothes of the Appellant which stands not proven by anyone. Also none has come forward to depose that the accused had kept the keys of the shop with himself, for after all, it is not the case of the prosecution that the shop belonged to the accused. [Para 20][691-C-E]
4. The substratum of the evidence, that is the extra judicial confessional statement of the Appellant, apart from being hit by Section 27 of the Indian Evidence Act, 1872, this Court finds it not to have been supported by PW-1 and PW-7, who as is evident, was himself a suspect. He admits it to be “...correct to say that the Inspector had detained me and some villagers where the dead body was laying...” and “...it is correct to say that I did not disclose the statement made by accused-appellant to any other person before 4 o’clock...” We have already noticed his wife (PW-13) to have supported this statement. Now, if this witness was himself a suspect, his testimony cannot be said to be unimpeachable or free from blemish. This witness, in this Court’s considered view, cannot be said to be reliable and trustworthy. [Para 21][691-E-G; 692-B]
5. Dealing with the star witness of the prosecution which is the Investigation Officer, (PW-19), this Court finds his testimony to be wholly unworthy of any credence: unbelievable; and the witness to be unreliable. This we say so for the reasons that he did not record the statement of PW-10 or PW-7 in respect any prior animosity between the deceased and the accused. The evidence pertaining to the genesis of the crime was not collected by him. He also does not state as to what made him detain accused-appellant on 3.10.2023. Be that as it may, he did not examine witnesses, who in considered view of this Court, perhaps may have thrown some light about regard to the actual occurrence of the incident. He admits that houses of few co-villagers are just at a distance of 30 to 70 meters from the spot of the crime. Yet, he did not examine any of them. Why so? No explanation is forthcoming. Crucially, he admits that, “the investigation concluded having no direct evidence” indicating the time and the manner in which the crime took place. He admits to have prepared some document in relation to the keys recovered from the accused however no such fact is recorded in his diary. In fact, such fact is not found recorded in the Panchnama prepared by him. The basis for the Investigation Officer (PW-19) to have arrived at the guilt of co-accused is missing in his statement. In fact, he does not even state to have suspected co-accused of having committed any crime. The sole basis for the Investigation Officer (PW-19) to have arrested the Appellant for having committed the crime is his extra judicial confession (Ex. P.11) which, apart from becoming inadmissible, is of no use as it has not led to recovery of any new fact – be it the place of the grocery shop; prevailing tension between the accused and the deceased; recovery of the body of the deceased near the Dodki drain: All these facts were known to the police from before and as far as recovery of money and keychain is concerned we have already discussed issue. [Para 22][692-C-H; 693-A-B]
6. In the present case, the circumstances present, taken together, do not establish conclusively only one hypothesis, that being the guilt of the accused-appellant. The presumption of innocence remains in favour of the accused unless his guilt is proven beyond all reasonable doubts against him. [Babu v. State Kerala, (2010) 9 SCC 189]. The cherished principles or golden threads of proof beyond reasonable doubt which runs through the web of our law should not be stretched morbidly which was done by the Courts below. In the present case, this Court finds neither the chain of circumstances to have been completely established nor the guilt of the accused alone, having committed the crime to be proven, much less beyond reasonable doubt. [Paras 25, 26][693-F-H; 694-A]
Shivaji Sahabrao Bobade & Another v. State of Maharashtra, (1973) 2 SCC 793 : [1974] 1 SCR 489; Hari Charan Kurmi vs State of Bihar, AIR 1964 SC 1184 : [1964] SCR 623; Sujit Biswas v. State of Assam, (2013) 12 SCC 406 : [2013] 3 SCR 830; Hanumant Govind Nargundkar v. State of M.P. AIR 1952 SC 343 : [1952] SCR 1091; State v. Mahender Singh Dahiya, (2011) 3 SCC 109 : [2011] 1 SCR 1104; Sahadevan v. State of T.N., (2012) 6 SCC 403 : [2012] 4 SCR 366; Kali Ram v. State of H.P. (1973) 2 SCC 808 : [1974] 1 SCR 722; Babu v. State Kerala, (2010) 9 SCC 189 : [2010] 9 SCR 1039; Sharad Birdhichand Sarda v. State of Mahrashtra, (1984) 4 SCC 116 : [1985] 1 SCR 88; Ramaphupala Reddy v. State of Andhra Pradesh, (1970)
3 SCC 474; Balak Ram v. State of U.P., (1975) 3 SCC
219 : [1975] 1 SCR 753; Bhoginbhai Hirjibhai v. State of Gujarat, (1983) 3 SCC 217 : [1983] 3 SCR 280 – 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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