Supreme Court: In a set of two criminal appeals against the Judgment and Order of High Court of Uttarakhand, wherein the conviction and sentence under Section 302 read with Section 34 of the Penal Code, 1860 (‘IPC’) awarded to the appellants/convicts was affirmed, the Division Bench of Hrishikesh Roy and Manoj Misra* JJ., allowed the convicts appeals and set aside their conviction.
On 01-11-2001, the father (‘informant’) of the deceased found his son’s body in a forest and lodged a First Information Report (FIR). He alleged that on 31-10-2001, at about 2100 Hours, the deceased was with his friends and that they had killed his son and concealed his body in the forest.
Subsequently, during the course of investigation, the police arrested the two convicts and disclosed the recovery of a 12-bore country made pistol with one live cartridge from one of the convicts and knife from the other convict, therefore, two separate cases were registered against the two convicts under the Arms Act, 1959 (‘Arms Act’).
The Trial Court concluded that the deceased was last seen alive in the company of the convicts going towards the forest, where the body of the deceased was recovered, and relied on the testimonies of the prosecution witnesses, which established that the convicts were seen exiting the forest without the deceased. The Trial Court had also noticed that as per FSL report, the empty cartridge recovered from the spot was fired from the same pistol which was recovered from the possession of one of the convicts. Therefore, the Trial Court sentenced the convicts to life imprisonment under Section 302 read with Section 34 of the IPC along with one-year Rigorous Imprisonment under Section 201 of the IPC. One of the Convicts from whom pistol was recovered was sentenced to one-year Rigorous Imprisonment with fine of Rs. 500/- under Section 25 of the Arms Act and the other was sentenced to one-year Rigorous Imprisonment with fine of Rs. 500/- under Section 4 and 25 of the Arms Act for possession of knife.
The Trial Court’s conviction Order was challenged before the High Court and the High Court agreed with the Trial Court’s view and upheld the Conviction Order.
The Court said that the striking feature of the present case was that the FIR was lodged at 07:30 Hours on 01-11-2001 after the dead body of informant’s son was found in a forest. According to the testimony of police witnesses, it was the informant who gave information to the police about his son’s dead body being found in the forest and thereafter, on the basis of the FIR, investigation commenced. Whereas, according to informant/ father of the deceased, the police informed him that his son’s dead body was found in the forest and thereafter, he went to the spot, took the body to the police station and then lodged the FIR. Therefore, the Court said that this sharp division in the testimony of prosecution witnesses was important to be noted because it throws a question as to whether the prosecution case is based on informant’s own knowledge and information or on suggestions/guess work, may be at the instance of the police. Further, the Court noted that in the FIR there was no disclosure as to how the body was found in that forest and as to who saw the deceased in the company of the two convicts was also not disclosed in the FIR. No doubt, an FIR is not required to be an encyclopedia and there is no requirement to name all the witnesses from whom information is sourced. The Court also noted that it was absent in the FIR that the deceased and his friends were to watch a night show of a movie and, therefore, the deceased had sent one of the prosecution witnesses to fetch food from his parents. Therefore, the Court had expressed its suspicion as to whether the later improvements in the story were to create link evidence with the help of newly introduced witnesses.
Therefore, all these circumstances taken cumulatively created a doubt in the mind of the Court and the Court said that as to whether this was 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. Thus, the Court viewed that, this was a case where the testimony of prosecution witnesses, regardless of having no proven grudge against the convicts, was required to be strictly scrutinised with a degree of circumspection to ascertain whether it is credible, reliable/trustworthy and truthful, before basing a conviction thereupon.
The Court noted that the prosecution case was primarily based on the evidence of the deceased being last seen alive with the convicts near the forest on probable time of the occurrence. However, the Court also examined the statements of the several prosecution witnesses and considered them unreliable for various reasons. Regarding one of the prosecutions witnesses the Court noted that he was not listed as a witness in the police report/ charge sheet and gave his statement to the police on an affidavit for the first time on 18-02-2002, i.e., the date when the police report was prepared. Thus, the Court said that this implied that he remained silent for as long as three and a half months. The Court referred to Kali Ram v. State of H.P., (1973) 2 SCC 808, wherein the Court had discarded the testimony of one of the witnesses who made a delayed disclosure of the incriminating circumstances of which he was aware much earlier. Therefore, the Court said that the explanation offered by the prosecution witness for the delay in making disclosure was not confidence inspiring. The Court said that the prosecution witness is a mere chance witness, whose presence at the spot, at the odd hour, was not satisfactorily explained, therefore, the Court did not consider his testimony worthy of any credit, as he kept silent for more than three and a half months. Thus, the Court said that the Courts below erred by placing reliance on his testimony.
Therefore, after evaluating the testimony of the prosecution witnesses carefully and with due caution, the Court said that their testimony did not inspire the confidence as to sustain the conviction. The Court further stated that “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”. Therefore, the Court concluded that the prosecution had failed to prove beyond reasonable doubt that the deceased was last seen alive in the company of the convicts near the spot at the relevant time.
Regarding the recovery of the country made pistol and knife from the convicts, the Court noted the Investigating Officer received an information that the convicts were to come at a specified place at the specified time, however, there was no record of receipt of the said information and there were no efforts to rope in a public witness even though a locality was just 200 meters away from the spot. The Court also noted that the Investigating Officer for the case relating to the Arms Act prepared the site plan of the place of arrest on 06-12-2002 even though the arrest was allegedly made on 24-11-2001. Therefore, the alleged recovery of the gun and knife did not inspire the confidence of the Court.
The Court was of the considered view that the case in hand was a quintessential case where to solve 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 the basing of a conviction thereupon. The Court said that the Court below failed to properly evaluate and test the evidence by applying the correct legal principles. Therefore, the appeals were allowed, and the impugned Judgment of conviction was set aside. The convicts were acquitted of all the charges for which they were tried and convicted. The convicts were on bail and the Court said ordered that they need not surrender.
[Ravi Mandal v. State of Uttarakhand, 2023 SCC OnLine SC 651, Decided on 18-05-2023]
*Judgment Authored by: Justice Manoj Misra