Penal Code, 1860: s. 302 – Culpable homicide amounting to murder – Conviction u/s. 302 – Correctness of – FIR against the appellant by the informant-uncle of deceased – Allegation that the deceased had shouted that the appellant had assaulted him with a tabbal – Informant rushed to the place of incident and saw his nephew lying there with deep cut on the neck – Nephew later succumbed to his injuries – Conviction of the appellant u/s. 302 and sentenced to life imprisonment by the courts below – On appeal, held: Prosecution failed to establish the charge – Prosecution story does not appear to be a probable story – Supporting evidence does not inspire confidence, rather there are material contradictions – Testimony of the informant not found to be reliable, thus could not form the basis of conviction – Medical evidence also does not support the prosecution case as the weapon of assault could not have caused injury on the deceased – Further, no motive as to why the appellant would commit the murder of the deceased – Defence version that the deceased was under the influence of alcohol and could have tripped and fallen on a sharp object resulting into the ante-mortem injury reported in the post-mortem was quite possible, and is clearly borne out from the record – Thus, the conviction and sentence of the appellant set aside.
Allowing the appeal, the Court
HELD: 1.1 None of the eye-witnesses had actually seen the occurrence of the appellant assaulting the deceased. [Para 31][770-F]
1.2 According to the informant, he was the first person to arrive at the site along with his wife upon hearing the cry for help from the deceased that the appellant was assaulting him with a tabbal. When he reached the site he saw that the deceased was lying on the road and the appellant was moving towards his house on a cycle along with tabbal. This is the FIR version. In his deposition the informant stated that when he rushed to the place of occurrence, he saw the accused running away and the tabbal was lying there. The deceased had fallen unconscious and there was deep cut on his neck with blood flowing from the injury. Upon his call, the other neighbours and his daughter all came out from their houses. PW-14 stated that PW-1 only informed him that deceased had been assaulted and had been taken to the hospital. PW-1 did not inform PW-14 that it was the appellant who had assaulted. PW-14 stated that it was later on that others who informed about the appellant assaulting the deceased. The other eye-witnesses did not state that they saw the appellant assaulting the deceased. PW-2 is the wife of PW-1, PW-3 is the widow of the deceased, PW-4 is daughter of PW-1, are the other witnesses who reached the place of occurrence. None of them stated that they had seen the appellant assaulting the deceased. Thus, the only evidence is of PW-1 stating that the appellant was running away from the place of occurrence when he reached there. He himself stated that the deceased was already unconscious as such was not in a condition to speak. There is one more aspect to be considered as to whether the cry given by the deceased could have been made as stated. Normally in villages nobody takes the name of elders and especially their uncles. PW 1 is the uncle (father’s brother) of the deceased. Under normal course the deceased would have called kaka only and would not take his name. In the First Information Report it is stated that when PW
1 came out he saw the appellant running towards his house on a cycle along with tabbal but in the deposition before the trial court it is stated that when he reached the place of occurrence the appellant was running and the tabbal was lying there and then he stated that the deceased had only shouted that the appellant is assaulting him. Another aspect to be considered is whether after receiving the said injury the deceased could have shouted and if he had shouted before being assaulted then the situation would have been different. It would have been a one to one and he could have resisted the assault. The fact is there is only one injury on the neck. [Para 32][770-G; 771-A-H; 772-A-B]
1.3 The prosecution story as set out does not appear to be a probable story and the supporting evidence led during trial of the witnesses of fact also does not inspire confidence. Rather there are material contradictions. [Para 33][772-C-D]
1.4 The defence has been successful in making a serious dent in the prosecution case. The first point is that no motive has been set up by the prosecution as to why the appellant would assault the deceased. All the witnesses of fact who are family members stated that there was no enmity between the appellant and the deceased. Once there is no eye-witness of the incident the prosecution will have to establish a motive for the commission of the crime inasmuch as in a case of direct evidence, motive may not have a major role. If there is no motive setup or proved and there are direct eye- witnesses, motive may loose its importance but in the instant case as admittedly no one has seen the occurrence, the motive has an important role to play. The defence during the cross-examination elicited that the Sarpanch had grouse against the appellant for the reason that the appellant had made a complaint regarding misappropriation of government funds and also of committing major illegality in distribution of essential commodities. On the said complaint an enquiry was made where the Sarpanch PW 11 had to tender public apology. Defence also suggested that in the night itself after the deceased was taken to the hospital, a meeting was called by the Sarpanch where the appellant was forced to confess. The said meeting has been admitted by PW-5. It was suggested that appellant in the meeting had stated that he had seen the deceased tripping and falling on the sharp object resulting into the injury which proved fatal. It is possible that on account of the influence of the Sarpanch that the appellant has been falsely implicated. The defence also elicited during cross- examination of PW 6 that the weapon of assault recovered and produced before him could not have caused the injury in view of the size of the weapon of assault and the size of the injury which had no match. The defence also suggested that in fact the deceased was heavily drunk and had fallen on a sharp-edged object because of which he had received the injury. This appears probable for two reasons: firstly, that PW 6 had stated that there was sufficient alcohol in the body of the deceased and secondly that the weapon of assault produced by the prosecution did not match with the injury. The injury could have been caused by the deceased slipping and falling on a sharp object. [Para 34][772-D-H; 773-A-E]
1.5 From the narration of the evidence and analysis, it is evident that the testimony of PW 1 was not reliable and could not have formed the basis of conviction. Apparently, he was influenced by Sarpanch whose active participation in the proceedings subsequent to the incident cannot be ruled out. The medical evidence did not support the prosecution case as the weapon of assault could not have caused injury on the deceased as noticed in the post-mortem report. There was no motive as to why the appellant would commit the murder of an acquaintance and a friend for no reason. The defence version that the deceased was under the influence of alcohol and could have tripped and fallen on a sharp object resulting into the ante-mortem injury reported in the post-mortem was quite possible. The same is clearly borne out from the record. The explanation for delayed lodging of the FIR is not satisfactory. [Para 35][773-E-H]
1.6 The appellant would be entitled to acquittal. The conviction and sentence of the appellant are set aside. He is acquitted of all the charges. [Para 37][774-A-B]
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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