Penal Code, 1860 – ss.302, 34 – Murder – Victim-deceased and PW4 were standing in the queue before the liquor store – A2 (not before the Supreme Court) attacked the victim by knife while appellants-accused caught hold of victim – All accused dragged the victim from the queue of liquor and committed the offence u/s
302 r/w s.34 of IPC – Trial Court held them guilty of the offence charged and the same was confirmed by the High Court – Out of three accused two (A1 and A3) have presented the appeal – Held: Both Courts below have made reliance upon the non-cooporation on the part of the accused to undergo the test identification parade by drawing an adverse inference – However, the prosecution witness had already been exposed to the accused in the police station, furthermore, test identification parade is only a part of investigation and not much role can be attributed to it – Prosecution does not have adequate material to fasten the liability as per s.34 of IPC on the accused persons – Version of prosecution may not be correct and thus cannot be relied on fully – Prosecution failed to establish the case beyond reasonable doubt – Conviction set aside. Allowing the appeals, the Court
HELD: This Court is unable to come to the conclusion that the conviction rendered by both the Courts can be sustained in the eye of law. Both the Courts made reliance upon the noncooperation on the part of the accused to undergo the test identification parade by drawing an adverse inference. Unfortunately, the evidence available on record was not looked into as the witnesses had already been exposed to the accused in the police station. After all, the test identification parade is only a part of an investigation, and therefore, nothing more can be attached to it. It is the duty of the prosecution to prove its case beyond reasonable doubt. Both the Courts have fixed the onus on the accused. The High Court after seriously doubting the evidence of PW1 should have extended the benefit of doubt as the evidence of PW3 ought not to have been accepted for the reasons stated above. The evidence as deposed by the prosecution witnesses itself would demonstrate that the version of the prosecution may not be correct. If the reasoning of the High Court is accepted, even then, the offence under Section
302 IPC may not be made out. However, this Court does not wish to go into the said issue as this Court believes that the prosecution has not been able to sustain the charge as against these appellants, framed under Section 302 read with Section 34 IPC. There has to be adequate material to fasten the appellants on the basis of constructive liability as Section 34 IPC is nothing but a rule of evidence. [Para 14][286-F-H; 287-A-C] Tarseem Kumar v. Delhi Admn. (1994) 3 Supp SCC 367; Rajesh Yadav and Anr. v. State of Uttar Pradesh 2022 SCC OnLine SC 150; Vadivelu Thevar v. State of Madras [1957] SCR 981; Jasdeep Singh Alias Jassu v. State of Punjab (2022) 2 SCC 545 – relied on.
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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