'Highly Dangerous To Convict Him On This Kind Of Evidence' Allahabad HC Acquits Man In 46 Year Old Murder Case

“We think it is highly dangerous to convict the appellant on this kind of evidence when there are strong circumstances to show that the testimony of the sole eyewitness needs corroboration, either from ocular testimony or documentary/scientific evidence,” a bench of Justice Siddharth and Justice Vinod Diwakar observed.

The case in brief

As per the prosecution's case, the accused-appellants [Indra Pal and Sohanvir (died during the pendency of appeal)], along with another person, scaled the wall and entered the Gher, shooting Karamvir dead.

Awakened by the gunfire, Chamel Singh (Inforant/father of the deceased) and Vijendra Singh (PW2, brother of the deceased) witnessed the accused, Indra Pal and Sohanvir, both armed with pistols, fleeing the scene. Chamel Singh identified Indra Pal and Sohanvir as the perpetrators.

The motive assigned in the Tahrir is that Sohanvir had illicit relations with the cousin of the informant, and Karamvir (deceased) attempted to stop the illicit relations. Therefore, the accused-appellants killed him.

The trial court vide impugned judgment and order dated November 26, 1980, convicted the accused-appellant Indra Pal and co-accused Sohanvir and sentenced them to undergo life imprisonment for the offences under Section 302 read with Section 34 IPC.

The conviction was based on the testimony of PW-2, the sole eyewitness of the incident. The trial court believed that there was no question to disbelieve the testimony of PW-2, who is the real brother of the deceased and was present at the time of the incident

Challenging their conviction, they moved to the High Court; however, the co-accused (Sohanvir) died in November 2011 during the pendency of the appeal, and thus, his criminal appeal was dismissed, and only the criminal appeal of the accused-appellant, Indra Pal, remained pending.

Arguments put forth

The counsel for the accused's primary contention was that the original copy of the FIR, based on which the police investigation commenced, was missing from the record. The trial court did not prove and exhibit this; therefore, the entire investigation began after the registration of the FIR was vitiated under the law.

It was also contended that the testimony of sole eyewitness Vijendra Singh (PW-2/brother of the deceased) could not be relied upon because it contained material contradictions and improvements.

It was also pointed out that PW-2's statement was contrary to the statement recorded by the police under Section 161 CrPC, and no explanation was given as to why the Investigating Officer did not record certain material facts, and he also resiled from the prosecution case.

It was submitted that PW-2's testimony was manifestly clear that he did not see the incident, that he only saw the accused-appellant after the commission of the crime, and that he could not identify the accused persons as it was dark.

It was also argued that no independent/public witness had been examined, and the prosecution had not affected recovery. Further, no weapon of offence was recovered and produced in the court, and the appellant was not seen committing murder.

High Court's observations

At the outset, the Court noted improvements and deliberations in the testimony of PW-2, the sole eyewitness who failed to pass the standard of a creditworthy witness.

“In the instant case, the statement of PW-2 does not suggest as to who fired on the deceased, particularly given the testimony of PW-4, which suggests that the deceased had died due to a single gunshot injury on his head, which became fatal to the deceased; no overt act is attributed to the appellant; not has seen that the appellant fired at deceased and he died because of his gunshot, as per the prosecution, the testimony of PW-2 does not inspire the confidence of the Court,” the Court remarked.

In this regard, the Court referred to the verdict of the Apex Court in the case of Vadivelu Thevar vs The State Of Madras to note that where the case rests on the testimony of the sole eyewitness, who did not even see the act of firing on the deceased, and who woke up after hearing the gunshot and show the accused's were standing two paces away from the deceased staring at the deceased, the same must not be wholly reliable.

The Court found a serious discrepancy in PW-2's statement regarding the motive of the crime and the manner in which the crime was committed.

The Court also noted that PW-2 became evasive to most of the relevant questions and showed ignorance when confronted with his statement u/s 161 CrPC recorded by IO.

The Court further observed that no evidence on record could suggest that the accused shared a common intention or that the appellant had done any overt act to further the commission of the crime.

Against this backdrop, the Court observed that except for the evidence of PW-2, the related and interested witness, there was no other evidence which at least gives some assurance to the Court to confirm the appellant's conviction.

“We think it is highly dangerous to convict the appellant on this kind of evidence when there are strong circumstances to show that the testimony of the sole eyewitness needs corroboration, either from ocular testimony or documentary/scientific evidence. In this case, there is no way of separating the grain from the chaff since even the overt act attributed to appellant Indra Pal also becomes doubtful in the light of the medical evidence and serious contradiction and embellishment in the testimony of PW-2”, the Court observed.

The Court also found faults with the first investigating officer's act of not sending the seized pellets to the F.S.L. for its examination, nor did he make any effort to recover the weapon of offence.

In fact, the Court noted, the blood-soaked soil seized from the place of incidence, was also not sent to the FSL for chemical examination, which would have indeed corroborated the version given by the witness.

Based on the foregoing discussions, the Court concluded that the conviction and sentence passed against the appellant by the Additional Sessions Judge, Meerut, was liable to be set aside, and thus, the appellant was acquitted of all the charges.

Case title - Indra Pal vs. State 2024 LiveLaw (AB) 404 [CRIMINAL APPEAL No. - 2751 of 1980]

Case Citation: 2024 LiveLaw (AB) 404

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