Evidence – Circumstantial evidence – As per the prosecution, two days prior to the date of the incident, a dispute allegedly arose between the deceased-complainant’s brother and their step mother wherein she allegedly threatened the deceased that he would not survive – Two days after, the appellants (the step mother along with the co-accused) came in a car and took the deceased on the pretext of purchasing shoes, when the complainant was also present in the house and allegedly noticed that the step mother was carrying her
12 bore double barrel licensed gun in the car – Later, dead body of the deceased was found bearing two gunshot wounds – The car in which the appellants and the deceased were travelling was also found with the gun kept inside, along with the cartridges – Appellants were convicted u/s.302 r/w s.34, IPC and sentenced to life imprisonment – Correctness of – Held:The present is a case based on circumstantial evidence – In view of the serious doubt with regard to the credibility of the witnesses on the issue of extrajudicial confession and last seen theory, the failure to examine Ballistic Expert would be a glaring defect in the prosecution case – Prosecution failed to prove thecase beyond reasonable doubt – Appellants entitled to benefit of doubt – Judgment of the High Court and the Trial Court quashed and set aside – Penal Code, 1860 – s.302 r/w s.34.
Criminal Law – Law with respect to conviction in the case of circumstantial evidence – Discussed.
Evidence – Circumstantial evidence – Law of extra-judicial confession – Discussed.
Allowing the appeals, the Court
HELD: 1.1 The prosecution case mainly rests on the testimony of (PW-2), ex-Sarpanch of village Maluka insofar as extra-judicial confession is concerned. Insofar as the last seen theory is concerned, the prosecution relies on the evidence of complainant TS(PW-3), step-son of appellant MK and the statement of JS (PW9). The evidence of Dr. RKG (PW-5), Medical Expert who has conducted the autopsy and SI AS (PW-11) would also be relevant. From the evidence of PW-2, it cannot be said that the extra-judicial confession is one which could be found to be credible. There appears to be no reason as to why the accused persons would go 100 kms. away and confess to him. Apart from that, his conduct also appears to be unnatural. Though IO AS (PW-11) was known to him and the telephone which was installed in his house was in a working condition, he did not find it necessary to inform him through telephone. The courts below have erred in relying on the extra-judicial confession made to PW-2. [Paras 9 and 13][1040-G-H; 1044-E-G]
1.2 With respect to another circumstantial evidence, i.e. the accused was last seen in the company of the deceased and the deceased was found dead shortly thereafter, the prosecution relies on the evidence of complainant TS (PW-3) and JS (PW-9). It appears to be improbable that, when appellant MK had herself threatened the deceased that he would no longer be alive, a real brother (PW-3) would permit the deceased to accompany her and another accused and, that too, when the accused was carrying a gun with her. Though PW-9 has stated that on 03.09.1998, accused MK had exhorted co-accused PS that RS was alone and he should be done away with, when the death of the deceased had occurred on the very next day, he did not find it necessary to inform anyone about it, including the police, till he was summoned to the Police Station on 10.09.1998. [Paras 14, 16 and 19][1044-G-H; 1045-G-H; 1046-D-E]
1.3 Though the dead body of the deceased was found on 4th September 1998, the statement of MS (PW-2) to whom the alleged extra-judicial confession was made, was recorded on 9th September 1998. SI AS (PW-11) has admitted in his examination that MS (PW-2) was known to him. He has further stated that he did not know in how many cases of his Police Station MS was cited as witness. It is further to be noted that the statement of JS (PW-9) was recorded on 10th September 1998. As (PW-11) has also admitted in his evidence that though the father of RS was alive in those days, he did not record his statement by visiting his village. PW-11 further admitted that he also did not visit the house of the deceased RS to collect any evidence of motive or him leaving his house before the occurrence. The conviction on the basis of such evidence cannot be sustained. Apart from that, it is to be noted that even according to PW-11, the gun which was recovered from the car had two empty cartridges (Ex. P10 and P11). Furthermore, the evidence of Dr. RKG (PW-5), who had conducted the post-mortem of the deceased, would show that there was no external exit wound, and wad and pellets were preserved and sealed. Apart from not collecting any evidence as to whether the said gun belonged to the appellant MK, even the Ballistic Expert has not been examined to show that the wad and pellets were fired from the empty cartridges (Ex. P10 and P11). [Paras 20, 21 and 22][1046-E-H; 1047-A-C]
1.4 The present case is a case based on circumstantial evidence. In view of the serious doubt with regard to the credibility of the witnesses on the issue of extra-judicial confession and last seen theory, the failure to examine Ballistic Expert would be a glaring defect in the prosecution case. The prosecution has failed to prove the case beyond reasonable doubt and, as such, the accused are entitled to benefit of doubt. The impugned judgment and order of the High Court and the judgment of the Trial Court are quashed and set aside. [Paras 25-27][1047-F-G; 1048-A-B]
Sharad Birdhichand Sarda v. State of Maharashtra (1984) 4 SCC 116 : [1985] 1 SCR 88; Munna Kumar Upadhyay alias Munna Upadhyaya v. State of Andhra Pradesh through Public Prosecutor, Hyderabad, Andhra Pradesh (2012) 6 SCC 174 : [2012] 6 SCR
611 – relied on.
Sukhwant Singh v. State of Punjab (1995) 3 SCC 367 : [1995] 2 SCR 1190; Gulab v. State of Uttar Pradesh (2022) 12 SCC 677; Gurucharan Singh v. State of Punjab [1963] 3 SCR 585; State of Punjab v. Jugraj Singh (2002) 3 SCC 234 : [2002] 1 SCR 998 – 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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