Penal Code, 1860: ss. 302 r/w s. 34 – Murder – Prosecution case that victim was allegedly shot dead and killed by the three persons over a pending property dispute – One of them died during the trial – Conviction of other two-appellant and other u/s. 302/34 and the Arms Act and sentenced to life imprisonment by courts below – Appeal by the appellant before this Court – Held: Evidence of eye-witness cannot be relied upon as against the other prosecution witnesses – Recovery of weapon not proved – Evidence to implicate the accused not adequate – Failure of prosecution to prove the offence of the appellant beyond reasonable doubt – Thus, the conviction of the appellant set aside.
Allowing the appeal, the Court
HELD: 1.1 The evidence of PW15-star eye witness cannot be relied upon as against the other prosecution witnesses themselves, which stood uncontroverted. The recovery having not been proved in the manner known to law, coupled with inadequate evidence on record to implicate the appellant, there is no hesitation in overturning the conviction rendered as it is believed that the prosecution has failed in its attempt to prove beyond reasonable doubt, that the appellant has committed the offence. Thus, the conviction rendered by the trial court as upheld by the High Court is set aside and the appellant is set at liberty. [Para 10][471-G-H; 472-A]
1.2 Both the courts shifted the burden on the defence. The evidence rendered by the prosecution witnesses was rejected, either as that of indifferent witnesses or as irrelevant evidence. These are all prosecution witnesses who were not treated as hostile. No attempt whatsoever was made either to treat them as hostile or to re-examine them except that of PW10. Not even a suggestion was put to them on the presence of PW15. In such a scenario, the statement made by the prosecution witnesses in favour of the accused would certainly inure to his benefit. Reliance was made on the recovery from the appellant. The fact remains that there was sufficient evidence to conclude that only one shot was fired which could be seen even from the evidence of PW15. While assessing the evidence produced by the defence, courts discarded them without appreciating the fact that it has to be seen only on the degree of probability. [Para 7][470-D-F; 471-BC]
Raja Ram v. State of Rajasthan (2005) 5 SCC 272; Javed Masood v. State of Rajasthan (2010) 3 SCC 538 : [2010]
3 SCR 236 – 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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