Penal Code, 1860: s.302 – Prosecution case was that the victim-deceased was sitting in a tea stall on the fateful day, when the first six accused entered and accused no.2 and 3 all of a sudden started firing at the deceased with a pistol, while the other accused started stabbing and hacking him with daggers, swords etc. and the incident occurred at the instigation of accused nos.7, 8 and 9 – Son of the deceased (PW-3) lodged FIR stating that he was present at the site along with other witnesses and tried to resist the accused – They were threatened with pistol and to save their life, they ran away – Trial court found that accused no.1 who died during pendency of trial was the main accused – Instant appeals filed by accused nos. 2, 3 and 9 against conviction by High Court – Held: PW-1, the only independent witness present at the time of occurrence did not implicate accused No.9 nor assign any role to him – As per his deposition, he did not even see him at the site – The manner in which court put the case to accused No.9, and recorded his statement under s.313 of the Cr.P.C. was also perfunctory – The inconsistencies in the testimonies created a doubt in the case of the prosecution qua any role of accused No.9 – Thus, prosecution was not able to establish case against him much less beyond reasonable doubt – Accused No.9 is, therefore, entitled to acquittal – With regard to accused Nos.2 and 3, order of trial court showed that what has weighed in acquitting these two accused was the fact that in the testimony of the Doctor (PW-5), who performed the post-mortem examination on the body of the deceased, a number of injuries were found, caused by sharp pointed objects – In the cross-examination, PW-5 specifically stated that none of the injuries was a gun-shot injury – Thus, medical evidence suggested use of daggers and a sword – The plea of the prosecution was that the gun used by these two accused (as according to the role assigned to them) may have been used only to scare away the persons – The testimony of PW-6 that he saw the gun being fired, but could not make out whether a bullet hit the deceased or not was taken into account, but, in the context of the overall testimony of the eye-witnesses, the story set forth by the prosecution and the witnesses was found to be believable by the High Court – However, this story did not deal with the said aspects noted by the trial court, i.e., no bullet injury, the weapon not being recovered, no bullets or bullet marks being found at the place of occurrence and the inconsistencies in the testimonies of the witnesses – Trial court rightly observed that it was accused No.1 who was the main accused, who was subsequently murdered – Insofar as the statement of accused No.2, under s.313 of the Cr.P.C. was concerned, the testimonies of PW-3, PW-4 and PW-6 all were put to him but the said accused claimed absence from the place of the occurrence – In case of accused No.3, once again, the testimonies of all the three eye-witnesses were put to him, but the role sought to be assigned to him was stated to be a hit with the dagger, and not the role at the accused as set out in the FIR – The subsequent testimonies, however, sought to assign a different role than the one assigned in the FIR, bringing about an inconsistency – The prosecution was not able to prove the case beyond reasonable doubt against these two accused – Accused Nos.2 and 3 respectively, are entitled to the benefit of doubt and are also acquitted. Allowing the appeals, the Court
HELD: 1.1 PW-3 in his complaint stated that the incident took place at the instance and instigation of accused No.9 along with accused Nos.7 and 8. However, in his deposition, it was stated that these persons asked the other accused to catch hold of the deceased. This by itself, would not be fatal for the case of the prosecution. Similarly, there was some variation between what exactly these three persons stated, as available from the testimonies of even PW-4 and PW-6. However, the crucial aspect is that PW-1, the only independent witness, did not even implicate accused No.9, much less assign any role to him. DW-1, who was not produced as a witness by the prosecution, though was stated to be present at the place of occurrence, was examined by the defence and deposed against the main accused (accused No.1) and others, while not assigning even the factum of presence to accused No.9. Even when the prosecution sought to cross-examine the said witness, the case of the prosecution was put as if only accused No.7 ordered the other accused persons to assault the deceased. Had accused No.9 played a role, that would logically have been put to DW-1 by the prosecution. [Paras 19, 20] [238D-G]
State of Orissa v. Arjun Das Agarwal & Anr. AIR 1999 SC 3229 : [1999] 1 Suppl. SCR 442 ; Asraf Ali v. State of Assam (2008) 16 SCC 328 : [2008] 10 SCR 1115 – relied on.
1.2 The manner in which the court put the case to accused No.9, and the statement recorded under Section 313 of the Cr.P.C. was perfunctory. The incriminating material is to be put to the accused so that the accused gets a fair chance to defend himself. This is in recognition of the principles of audi alteram partem. The inconsistencies in the testimonies also created a doubt in the case of the prosecution qua any role of accused No.9. The appellate court could hardly have overturned the acquittal of the trial court into one of conviction. The trial court took note of the close relationship of PW-3, PW-4 and PW-6 to the deceased, as also the array of the accused and the murder of accused No.1, to come to the conclusion that the abetment of accused No.9, as alleged, had not been proved beyond reasonable doubt. There was no evidence that accused No.9 was inside or outside Kalia Hotel at the time of the occurrence. The prosecution was not able to establish a case against accused No.9, much less beyond reasonable doubt. [Para 21, 22, 24, 25] [239-A-B; 240-D-F; 241A]
2.1 With regard to accused Nos.2 and 3, the order of the trial court showed that what has weighed in acquitting these two accused was the fact that in the testimony of the Doctor (PW-5), who performed the post-mortem examination on the body of the deceased, a number of injuries were found, caused by sharp pointed objects. In the cross-examination PW-5 specifically stated that none of the injuries was a gun-shot injury. Thus, the medical evidence suggested the use of daggers and a sword. The plea of the Public Prosecutor was that the gun used by these two accused (as according to the role assigned to them) may have been used only to scare away the persons. However, there was no seizure of arms. PW-6 also did not see the firing of the gun, though he claimed to have heard the gun-shots though PW-3 and PW-4 stated that they saw the firing. The anomaly is that all the accused were standing together. [Para 28] [241-C-E]
2.2 The testimony of PW-6 that he saw the gun being fired, but could not make out whether a bullet hit the deceased or not was taken into account, but, in the context of the overall testimony of the eye-witnesses, the story set forth by the prosecution and the witnesses was found to be believable by the High Court. However, this story did not deal with the said aspects noted by the trial court, i.e., no bullet injury, the weapon not being recovered, no bullets or bullet marks being found at the place of occurrence and the inconsistencies in the testimonies of the witnesses. The trial court rightly observed that it was accused No.1 who was the main accused, who was subsequently murdered. Insofar as the statement of accused No.2, under Section 313 of the Cr.P.C. was concerned, the testimonies of PW-3, PW-4 and PW-6 all have been put to him but the said accused claimed absence from the place of the occurrence. As far as accused No.3 is concerned, once again, the testimonies of all the three eye-witnesses have been put to him, but the role sought to be assigned to him is stated to be a hit with the dagger, and not the role of firing at the accused as set out in the FIR. The subsequent testimonies, however, sought to assign a different role than the one assigned in the FIR, bringing about an inconsistency. The view taken by the trial court is, at least, a plausible view though that may not be the only plausible view or if one may say even the less probable one. The prosecution was not able to prove the case beyond reasonable doubt against these two accused, and they must get the benefit of doubt and consequently have to be acquitted. Accused No.9 is entitled to acquittal. Accused Nos.2 and 3 respectively, are entitled to the benefit of doubt and are consequently acquitted. [Paras 31-35] [241-H; 242-A-G] Babu v. State of Tamil Nadu (2013) 8 SCC 60 – held inapplicable.
Sharad Birdichand Sarda v. State of Maharashtra (1984) 4 SCC 116: [1985] 1 SCR 88; Hate Singh
Bhagat Singh v. State of Madhya Bharat AIR 1953 SC
468 ; Sujit Biswas v. State of Assam (2013) 12 SCC 406 : [2013] 3 SCR 830; Shivaji Sahabrao Bobade v. State of Maharashtra (1973) 2 SCC 793 : [1974] 1 SCR
489 ; Sunil Kumar Sambhudayal Gupta (Dr.) v. State of Maharashtra (2010) 13 SCC 657 : [2010] 15 SCR 452 – 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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