Penal Code, 1860 – ss. 148, 302/149, 324/149, 304 Part-II – Acquittal under – Appellants-accused persons were charged of having committed an offence u/ss. 148, 302/149, 324/149 – Dehati Nalishi (Ex. P-28) was recorded as an FIR, in pursuance of the information given by one of the deceased person ‘H’, in which he stated that he along with the other two persons (K and PW-12) was attacked by the appellants – The Statement of the H was recorded at the place of occurrence by PW-20 (Investigating officer) and later H died at the hospital – Trial Court convicted the appellants – High Court confirmed life imprisonment for death of ‘K’ and modified the same qua deceased ‘H’ to u/s. 304 Part-II – On appeal, held :It was PW-20 who had recorded statement, it is highly doubtful as to whether the deceased would be conscious enough to give the statement, particularly in light of the injuries suffered by him – On a perusal of the records, there were writings over the thumb impression made under Ex. P-28 – It is rather strange as a thumb impression would normally follow the statement; it has to find place at the conclusion of the statement – This lends credence to the view that thumb impression must have been obtained on a blank paper – The statement as the one actually given by the deceased to PW-20 cannot be treated as dying declaration – The statement specifically excludes others and the same excluded were shown as witness by the same investigating officer – There is no explanation given by PW-20 as to why the statement of deceased was not recorded in the presence of the judicial magistrate and duly certified doctor – Also, the evidence adduced by the prosecution through eye witnesses is not trustworthy – Witnesses were not able to name the accused – However, they have identified the accused after 2 to 3 years for first time in the Court – Test identification Parade ought to be have been done – Much reliance was placed on PW-12, however, PW-12 was not examined by PW-20 – Statement of PW-12 u/s. 161 Cr.P.C., if recorded was not marked – PW-12 also identified accused first time in Court – Evidence of PW-12 cannot be relied upon – Therefore, benefit of doubt given to the appellants-accused. Allowing the appeals, the Court
HELD: Investigating Officer’s Role:
1. Even on the recording of the statement of the deceased ‘H’, P.W.20-the Investigating Officer was not very clear. The discrepancy also extends to the place where the body was found when the statement was recorded. An investigating officer is expected to act in an un-biased, fair and in a manner that is required of a public servant. His concern is to find out the truth. The suppression of the statement given by the other witnesses would obviously go to the root of the matter. One does not know the clear picture, and therefore the benefit shall be extended to the appellants. [Para 29][852-E-G]
2. P.W.20 is the one who recorded the statement. On the discussion made, it is highly doubtful as to whether the deceased would be conscious enough to give the statement, particularly in light of the injuries suffered by him. There are not only incise wounds, but there must have also been continuous bleeding, which would have naturally occurred, as the case was registered a day after the occurrence. The statement of witnesses contradicts each other on this aspect. Furthermore, as rightly submitted by the counsel for the appellants, on a perusal of the records, there were writings over the thumb impression made under Ex. P-28. It is rather strange as a thumb impression would normally follow the statement; it has to find place at the conclusion of the statement. It is found, on the scrutiny, that even after the thumb impression over which there were obviously writings found, there were some more sentences written. This obviously lends credence to the view that thumb impression must have been obtained on a blank paper and in a hurry, the contents were filled up subsequently. [Para 31][856-H; 857-A-C]
Dying Declaration
3. There is absolutely no explanation given by P.W.20 as to why he has not utilized the services of either a Magistrate or a doctor, even after his first recording. The fact that he deposed that the statement was recorded once again which, however, was not a part of the record. If the deceased ‘H’ was so badly injured, and therefore died within few days of his admission into the hospital, nothing prevented P.W.20 to record the statement in the presence of a Judicial Magistrate and duly certified by the doctor. The irresistible conclusion arrived at already, is that the deceased was not in a state of consciousness fit enough to make a statement, and that is the reason why the thumb impression was obtained subsequently, and thereafter a statement was created. [Para 33][857-F-H; 858-A]
Test Identification Parade
4. Having found that Ex. P-28 cannot be believed, this Court is inclined to hold that the evidence adduced by the prosecution through the eye witnesses also is not trustworthy. The witnesses are not able to name the accused. However, they have identified the accused, only after 2 to 3 years for the first time in the Court. This Court is quite conscious about the evidentiary value of a test identification parade. Certainly, in a case of this nature, it ought to have been done. Though a test identification parade is not a substantive piece of evidence, at times, it adds strength to the case of the prosecution by giving more credibility to the statements of the eye witnesses which this Court finds as grossly lacking.[Para 34][858-G-H; 859-A-B]
Testimony of the Eye Witness
5. Much reliance has been placed on the evidence of P.W.12. There is no difficulty in appreciating the submission that an injured witness has to be placed on a higher pedestal. However, P.W.12 has not been examined by P.W.20 at all. In his deposition, P.W.12 repeatedly makes this position clear. The statement of P.W.12 under Section 161 CrPC, if recorded, has also not been marked. Even P.W.20 at one stage acknowledges the said fact, though with some contradictions. This again brings to the conclusion that it would be unsafe to rely upon the evidence of P.W.12, who once again identifies the accused for the first time before the Court. There is absolutely no explanation for not examining him during the investigation. Thus, the evidence of P.W.12 cannot be relied upon, particularly in the light of the charges under Section 149 IPC, and insofar as the appellants are concerned. [Para 37][864-B-E]
State of Madhya Pradesh v. Ratan Singh and Others, (2020) 12 SCC 630; Arvind Kumar @ Nemichand v. State of Rajasthan 2021 SCC OnLine SC 1099 : 2021(14) SCALE 6, Munnu Raja and Another v. The State of Madhya Pradesh (1976) 3 SCC 104 : [1976] 2 SCR 764; State of Jharkhand v. Shailendra Kumar Rai 2022 SCC OnLine SC 1494; Gireesan Nair and Others v. State of Kerala, (2023) 1 SCC 180; Binay Kumar Singh v. State of Bihar, (1997) 1 SCC 283 – relied on. Charan Singh and Others v. State of U.P., (2004) 4 SCC
205 : [2004] 2 SCR 925; Najabhai Desurbhai Wagh v. Valerabhai Deganbhai Vagh and Others, (2017) 3 SCC
261 : [2017] 2 SCR 764; Balmukund Sharma v. State of Bihar, (2019) 5 SCC 469; Vyas Ram v. State of Bihar, (2013) 12 SCC 349 : [2013] 11 SCR 212; Akbar Sheikh and Others v. State of West Bengal, (2009) 7 SCC 415 : [2009] 7 SCR 518; Nagarjit Ahir v. State of Bihar, (2005) 10 SCC 369; Sherey and Others v. State of U.P., 1991 SCC (Cri) 1059 : (1991) Supp (2) SCC 437; Musa Khan v. State of Maharashtra, (1977) 1 SCC 733; Munna Chanda v. State of Assam (2006) 3 SCC 752; Debashish Daw and Others v. State of West Bengal, (2010) 9 SCC 111 : [2010] 9 SCR 654; Manoj Kumar Sharma and Others v. State of Chhattisgarh and Another, (2016) 9 SCC 1 : [2016] 7 SCR 154; Jai Prakash Singh v. State of Bihar and Another, (2012) 4 SCC 379; Rajeevan & Anr. v. State of Kerala, (2003) 3 SCC 355; Thulia Kali v. The State of Tamil Nadu, (1972)
3 SCC 393; Mukhtiar Ahmed Ansari v. State (NCT of Delhi), (2005) 5 SCC 258 : [2005] 3 SCR 797; Raja Ram v. State of Rajasthan, 2005 SCC (Cri) 1050 : (2005)
5 SCC 272 – referred to.
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