Delhi High Court has held that Prosecution cannot be excused for non-examination of public witnesses, if there are material inconsistencies in the statements of the eyewitnesses.
The Division Bench of Justice GS Sistani and Justice Chander Shekhar rejected the appeal of the state against the order of the trial court, which had acquitted the accused of charges under section 302 and 307 of the IPC.
While acquitting all the four accused persons, the Trial Court had found the testimonies of the eyewitnesses to be unreliable as being contradictory and being improved on material aspects, the prosecution had failed to show the exact location of the incident, recovery was found to be unreliable, motive was not established and there was a delay in lodging of FIR opening scope of tutoring.
Challenging the said findings, state counsel argued that the trial court did not consider the fact that there were no inconsistencies in the statements of the three eyewitnesses, which even could not be breached during the cross examination.
Further, it was also contended by the state that there are very minor inconsistencies between the ocular account and the medical record and cannot cast any doubt upon the ocular account. Moreover, the mere omission of the doctor to mention his name in the MLC is not a ground to disbelieve his presence on the spot.
The state also went on to submit that the non-examination of the PCR staff, though a lapse on the part of the IO, is not fatal to the case of the prosecution.
Appearing for the respondents, Mr Hariharan argued that even if the recovery of the weapon is believed, there is nothing to link the same with the offence as the opinion of the doctors was not sought nor the origin of the blood determined by the FSL.
Further, he pointed out that, out of the two knives used, only one was ever recovered. None of the eyewitnesses ever deposed that the knife changed hands.
Mr Hariharan went on to show the court that as per the case of the prosecution two stabbing incidents took place and hence, blood should be found on two spots, but the blood was found only at one spot.
While the court did consider the proposition that the failure of the prosecution to examine the public witnesses is of no consequence in view of the clear and consistent testimonies of the eyewitnesses, it went on to hold that the inconsistencies in the statements of the eye-witnesses in this case could not ignored as immaterial.
The court further observed that all the testimonies of the witnesses are not consistent with respect to the manner in which the incident happened and there are certain loopholes and lacunas leading to the benefit of the doubt to all the respondents. The evidence produced by the prosecution is not clear, cogent and unimpeachable
While upholding the order of the trial court, the court reiterated the principle laid down by the Supreme Court in Raj Kumar Singh v. State of Rajasthan which stated that while dealing with a case based on circumstantial evidence in a criminal case, the Court has a duty to ensure that mere conjectures or suspicion do not take the place of legal proof and before an accused is condemned, the evidence produced by the prosecution must be clear, cogent and unimpeachable.
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