Penal Code, 1860 – ss. 302, 34 and 120-B – Indian Arms Act, 1959 –s.25 – The present appellant-original accused no.1 along with two persons (‘D’ and ‘P’) were tried for having committed murder of PW-12’s son – FIR was registered against the accused persons at the instance of PW-12 (father of deceased) – Recovery memo of weapon was prepared – Trial Court convicted accused no.1 and ‘D’ of offence punishable u/s. 302/34IPC and acquitted ‘P’ of all charges – On appeal against conviction High Court affirmed the view taken by trial Court – Accused ‘D’ preferred SLP challenging his conviction and sentence, which was rejected by the Supreme Court – Appellant-accused no.1 thereafter approached SupremeCourt against the judgment of High Court contending that the identity of the accused persons was not established – Held: PW12 and PW-15 (mother of deceased) were not aware of the identity of the assailants – Their source of information was rumours, on basis of which an assertion about the identity of the appellant was made in FIR – Therefore, assertions in the FIR and examination-inchief of witnesses are not trustworthy – PW-12 in his examination in chief asserted that his wife (PW-15) informed him that on the day previous to incident two accused persons came to their house asking about their son, while he was away – Whereas, PW-15 had not asserted in her examination-in-chief that two accused had come to her house on previous day hence, there was no occasion for her to have seen the appellant earlier – Furthermore, no Test Identification parade was conducted – Box identification for the first time in court is not reliable in itself to establish the identity of the assailants – Evidence of recovery is not in itself sufficient in absence of substantive evidence – Prosecution failed to establish its case beyond reasonable doubts – Appellant acquitted – Similar benefit of doubt extended to the accused ‘D’ and acquittal granted. Allowing the appeal, the Court
HELD: 1. It is quite clear that PW-12 and PW-15 were not aware of the identity of the assailants. Their source of information was rumours, on the basis of which an assertion about the identity of the appellant was made in the first information report. What was the source of information, was never disclosed at any juncture nor any witness was examined by the prosecution to establish that. In the absence of primary source who knew the identity and had witnessed the incident, such assertions in the first information report as well as the examination-in-chief of the witnesses would not be adequate and trustworthy. It was not even the case of PW15 that two convicted accused had come to her house on the previous day. As a matter of fact, she did not even assert anything about the incident that occurred on the previous day. There was, thus, no occasion for her to have seen the convicted accused earlier. Furthermore, no test identification parade was conducted. Box identification by the witnesses for the first time in court, in the circumstances, could not by itself be relied upon to establish the identity of the assailants. [Para 17][9-E-H]
2. That leaves this with subsidiary evidence regarding recovery, which in the absence of substantive evidence, by itself would not be sufficient. In the circumstances, in our considered view, the prosecution failed to establish its case beyond reasonable doubt. The appellant would, therefore, be entitled to acquittal. The instant appeal is thus allowed acquitting him of the charges levelled against him. [Para 18][10-A-B]
3. In view of this Court, the cases of both the convicted accused i.e. ‘D’ and the present appellant stand on the same footing and if after having considered the matter, benefit is given to the present appellant, similar benefit ought to be extended to ‘D’. [Para 20][10-C-D]
Akhil Ali Jehangir Ali Sayyed v. State of Maharashtra (2003) 2 SCC 708; Harbans Singh vs. State of U.P. (1982) 2 SCC 101 : [1982] 3 SCR 235 – 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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