Penal Code, 1860 – s.302 r/w s.149 and s.148 – Murder – Informant was sitting with his brother, the deceased, on a cot when the six accused persons allegedly arrived at the scene – Allegation that A-3 and three other accused, who were armed with pistols, fired at the deceased, while one other accused ‘SD’, who was armed with an axe, and A-6, who was armed with knife, assaulted deceased on his neck – Sessions Judge convicted all six accused u/s.302 r/w
149 and 148 IPC – High Court confirmed the conviction – On appeal by A-3 and A-6, held: On facts, the presence of both PW-1 and PW2 at the spot was gravely in doubt – There were material contradictions in the evidence of both PW-1 and PW-2, which were not noticed either by the Sessions Judge or by the High Court – Though the prosecution is not obligated to examine every witness who is alleged to have been present at the site or the scene of the offence, yet in context of the facts, the failure to examine the father of the deceased who was allegedly sitting in close proximity, assumes significance – Appellants (A-3 and A-6) accordingly entitled to benefit of doubt and are acquitted.
Allowing the appeals, the Court
HELD: 1. Analyzing the evidence of PW-1, it is apparent that there are material improvements which have been attempted in the course of the deposition over the case as set out in the FIR as well as in the course of the examination-in-chief. The role which originally is attributed to all the accused who were armed with country made pistols is of having fired upon the deceased. Subsequently, in the course of the cross-examination, PW-1 has stated that insofar as A-3 is concerned, he had fired in the air while two accused had actually fired at the body of the deceased. [Para 15][265-F-G]
2.1. The entire case of the prosecution was that all the accused who were alleged to be wielding country made pistols had fired upon the deceased. This case of the prosecution is substantially diluted in the cross-examination of PW-1 as well as in the cross-examination of PW-2. Significantly, the postmortem report indicates only one fire arm injury, which is not consistent with the case of the prosecution that all the accused had fired upon the deceased. That apart, the post-mortem report indicates one injury on the neck of the deceased which again is inconsistent with the deposition of PW-1 and PW-2 that both accused ‘SD’ armed with a farsa and A-6 who was allegedly armed with a knife had assaulted the deceased on the neck. [Para 17][266-D-E]
2.2. The presence of both PW-1 and PW-2 at the spot is gravely in doubt. There are material contradictions in the evidence of both PW-1 and PW-2, which ought to have been, but have not been noticed either by the Sessions Judge or by the High Court. The High Court was of the view that the contradictions which have been pointed out by the defence are of a minor nature. Having evaluated the evidence, one is unable to sustain that conclusion given that the contradictions were of fundamental nature which go to the root of the case of the prosecution. It is true that the prosecution was not obligated to examine every witness who is alleged to have been present at the site or the scene of the offence, yet in the context of the facts, the failure to examine the father of the deceased who was allegedly sitting in the close proximity, assumes significance. Accused-appellants A-3 and A-6 are accordingly entitled to the benefit of doubt. [Paras 18 and 19][266-F-H; 267-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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