27 May 2023 8:04 AM GMT
The Supreme Court recently set aside the conviction of two murder convicts under Sections 302, 34, 201 of IPC and Sections 4, 25 of Arms Act, on the ground that the prosecution failed to prove beyond reasonable doubt that the deceased was last seen alive in the company of the accused near the spot at the relevant time.The division bench of Justice Hrishikesh Roy and Justice Manoj...
The Supreme Court recently set aside the conviction of two murder convicts under Sections 302, 34, 201 of IPC and Sections 4, 25 of Arms Act, on the ground that the prosecution failed to prove beyond reasonable doubt that the deceased was last seen alive in the company of the accused near the spot at the relevant time.
The division bench of Justice Hrishikesh Roy and Justice Manoj Misra observed:
“……..we are of the considered view that the case in hand is a quintessential case where to solve out a blind murder, occurring in a forest in the darkness of night, bits and pieces of evidence were collected which warranted a strict scrutiny before basing a conviction thereupon. On putting the prosecution evidence to strict scrutiny and testing the same on the anvil of settled legal principles as discussed above, we find the evidence not confidence inspiring as to uphold the conviction of the accused appellants.”
On November 01, 2001, father of the deceased (PW1) on finding his son’s dead body in a forest, lodged a FIR alleging that on October 31, 2001, at about 9 p.m., the deceased was with his friends i.e. accused no. 1 and one another person. Later on, on November 10, 2001 PW1 gave a written information to the police stating that it was accused no. 2 who along with accused no. 1 were with the deceased on that night of the incident.
During the course of investigation, the police arrested the two accused (the appellants) and disclosed recovery of a 12 bore country made pistol with one live cartridge from accused no. 2 and a knife from accused no. 1, giving rise to two separate cases against each of the two accused under the Arms Act.
On completion of investigation three charge sheets were laid giving rise to three sessions trials which were connected with each other and decided by a common judgment of the Trial Court which was affirmed by the High Court.
The Trial Court vide common judgement and order dated January 28, 2004 convicted the appellants and imposed the following sentence:
(i) life imprisonment under section 302 read with section 34 of IPC along with 1 year imprisonment under Section 201 of IPC to both the accused persons.
(ii) one year imprisonment with fine of Rs.500/- under section 25 Arms Act to appellant-accused no. 2.
(iii) one year imprisonment with fine of Rs. 500/- under Section 4 read with 25 of Arms Act to the appellant-accused no. 1.
The Uttarakhand High Court vide judgment dated April 7, 2010 confirmed the conviction and sentence imposed by the Trial Court.
The appellants filed the individual appeals against the judgment and order of the High Court.
It was submitted on the behalf of the appellant no. 1 that insofar as the evidence of the deceased being last seen in the company of the two accused is concerned, neither PW-1 (father of the deceased) nor PW-3 (mother of the deceased) had seen the deceased in the company of the two accused on October 31, 2001.
It was further submitted that PW2 and PW5 are the chance witnesses and the explanation for his presence by PW5 was falsified by statement of PW7 and PW10 (Investigating Officer of the murder case). It was stated that PW6 has turned hostile and therefore there is no reliable evidence of the deceased being last seen alive with the two accused.
It was further contended that there was no public witness regarding the recovery of weapons from the accused and the site plan of the place of arrest and recovery was prepared several days after the alleged recovery which would suggest that there existed no place of recovery and arrest but, as an afterthought, to complete the formality, the site plan was prepared.
The Amicus Curiae representing the appellant no. 2 submitted that the appellant no. 2 was not named in the initial report. It was further submitted that in such circumstances, the implication of appellant no. 2 is shrouded in suspicion and the prosecution story insofar as it relates to appellant no. 2, is not acceptable.
It was further submitted that the ballistic report has not been put to the appellant while recording his statement under section 313 CrPC, hence it would have to be eschewed from consideration.
On the other hand, the Counsel appearing on behalf of the State submitted that the last seen circumstance has been proved to the hilt and the recovery of country made pistol has also been proved which along with forensic report connects the recovered weapon with the empty cartridge found at the spot. It was further submitted that the autopsy report/ medical evidence proved that death was a consequence of gunshot and also accepted the possibility of death in the night hours of October 31, 2001 when the deceased was last seen alive with the accused persons therefore, the chain of circumstances is complete, leaving no room of doubt with regard to the guilt of the accused persons.
The Supreme Court observed that there was no disclosure in the FIR as to how the dead body was found in the forest. It was further observed by the Court that as to who had seen the deceased in the company of the two persons was not disclosed in the FIR. The Court noted that the prosecution made later improvements in the story and made deliberate attempt to multiply the witnesses.
The Court observed:
“All these circumstances taken cumulatively create a doubt in our mind as to whether it is a quintessential case of a blind murder (i.e. taking place at a secluded place in the darkness of night where no one could witness the crime), therefore, to solve the case, while groping for witnesses, the prosecution story kept evolving, either on the basis of information received from time to time, or on guess work emanating from strong suspicion, or police suggestions.”
The Court further noted that PW2 was not listed as a witness in the charge sheet and he gave his statement to the police on an affidavit for the first time on February 18, 2002, i.e., the date when the police report was prepared. It was further observed by the Court that the explanation given by the PW2 for such delay did not inspired confidence in the Court.
The Court opined:
“In our view, PW-2 is a mere chance witness, whose presence at the spot, at that hour, is not satisfactorily explained therefore, bearing in mind that he kept silent for unusually long i.e. for more than three and a half months, his testimony is not worthy of any credit. In our view, the courts below erred by placing reliance on his testimony.”
The Court further noted that PW5 is also a chance witness and the explanation offered by PW5 for his presence at the spot at that odd hour appears false. It was observed by the Court that the PW5 is not consistent in his statements.
The Court remarked:
“For all the reasons above, when we evaluate the testimony of PW-2 and PW-5 carefully and with due caution, as is required in the facts of the case, we find that their testimony does not inspire our confidence as to sustain the conviction. Unfortunately, the courts below accepted the same as gospel truth, without testing it on the anvil of settled legal principles, thereby resulting in grave miscarriage of justice. We, therefore, conclude that the prosecution has failed to prove beyond reasonable doubt that the deceased was last seen alive in the company of the accused near the spot at the relevant time.”
It was pointed by the Court that the police had shown extraordinary interest in implicating appellant no. 2 and therefore, the alleged recovery of gun and knife shown from the appellants did not inspire the Court’s confidence and therefore, it would be unsafe to rely on such recovery to sustain the conviction.
“Insofar as forensic report/ballistic report is concerned, the same has not even been put to appellant no. 2, from whom the country made pistol was seized, while recording his statement under section 313 of Cr.P.C., therefore, in any event, it would have to be eschewed from consideration,” the Court said.
The Court noted that the Trial Court and High Court had failed to properly evaluate and test the evidence by applying the correct legal principles.
Thus, the Court set aside the impugned judgment and orders of the High Court and the Trial Court and acquitted the appellants of all the charges.
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Case Title: Ravi Mandal v. State of Uttarakhand and Shabbir v. State of Uttarakhand
Citation : 2023 LiveLaw (SC) 470
Click Here to Read/Download Judgment