Witness Went To Sleep After Seeing His Friend Murdered? Supreme Court Doubts Testimony, Acquits Convict In Murder Case After Two Decades

The Supreme Court recently set aside the conviction in a murder case after noting several blemishes in the testimony of the sole eyewitness.

A bench comprising Justices BR Gavai, Vikram Nath and Sanjay Karol was deciding an appeal filed by one Narendrasinh Keshubhai Zala who was sentenced to life by a trial court in Gujarat in 2003 for the murder of one Ram. After the Gujarat High Court also confirmed the conviction, he appealed to the Supreme Court.

Nirav Bipinbhai Patel, the friend of the deceased, claimed to have witnessed the murder. Nirav was examined as Prosecution Witness 3 (PW3) in the case.  As per the testimony, the deceased and PW3 were sitting near a road when the accused, along with another person, came on a motor cycle and fired at the deceased. PW3 stated that the accused fired the gun at the deceased after asking when he would return the money borrowed by him.

Though the trial court and the High Court accepted the testimony of PW3, the Supreme Court did not find it to be believable. After the assailants rode away from the place, PW3 did not also fled, leaving behind his injured friend to bleed to death. He said that he got scared and went to his uncle's him to narrate the incident to him. The uncle in turn asked him to go home and sleep. The next day, he went to Ram's home and told about the incident to his mother and sister.

The apex court found the conduct of PW3 to be unnatural and unbelievable, particularly as he left his friend injured and went home to sleep. His explanation that he was scared was also not accepted by the Court as the Police Headquarters was just within a short distance of 3-4 minutes walking time from the spot.

The judgment authored by Justice Sanjay Karol noted :

"The witness is an adult, mature and worldly wise. He is aged 24 years and runs a grocery shop. He is not illiterate, yet he chose to not take any action, even to save the life of his friend. His explanation that he went home and slept is uninspiring in confidence for the incident took place in his presence and in close proximity of habitation, more specifically at a short distance i.e. just 3-4 minutes of walking distance from the Police Headquarters where constables are posted around the clock. He left his friend profusely bleeding on the spot but did not seek any help and immediately did not report the incident to the family members of the deceased whose house he visited only the following day at around 8:00 –9:00AM. His conduct of going off to sleep, having seen his friend being murdered right before his eyes and then not visiting the hospital forthwith is quite unnatural. Also he did not inform the incident to his parents. It was only when the police interrogated him that he named the accused".

In this context, the judgment referred to precedents which hold that unnatural conduct of the witness can be a ground to doubt the credibility.

The bench also noted further embellishments in his testimony, as his initial statement to police did not mention the exchange of words between the deceased and the accused.

The bench also raised doubts at the testimony of independent witness PW6, who claimed that he had taken the deceased to the hospital and informed his father.  He said that after hearing loud cries, he rushed to the spot and saw the deceased lying on the road. Then he called for an autorickshaw and the victim was taken to hospital in that vehicle. The autorickshaw driver was not examined. This witness also admitted that he did not hear any gunshots.

The bench also stated that there were other inconsistencies in the testimonies.

Use of weapon not proved.

"Except for the confessional statement of the accused, the Prosecution is not able to link the weapon with the accused. There was no scientific evidence, or the marks of his fingerprints, other identification marks or any tell-tale signs of the blood found on body of the deceased, linking it to the metal pellets of the bullet fired from the weapon recovered during investigation", the Court further observed.

The Court stated that it is the duty of the prosecution to establish use of the weapon discovered in the commission of the crime. Failure to do so may cause aberration in the course of justice.

It was found that the High Court had confirmed the conviction without any independent appreciation of evidence. 

"In its judgment running into 21 pages, the Court has simply reproduced the decisions rendered by this Court and presumptively, without actually appreciating or discussing the testimony of PW-3, held him to have deposed truthfully, fully establishing the prosecution case, against the accused, beyond reasonable doubt", the Supreme Court critically observed.

With an anguish, the Court observed :

"Unfortunately, none of the courts below have referred to the basic principles of criminal jurisprudence. We may also state that the Courts must refrain from committing such grave errors in the future, whereby innocent people are made to suffer incarceration for over a period of nearly two decades, without proper appreciation of evidence"

Thus, the conviction was set aside and the appellant was ordered to be released.

Senior Advocate A Sirajudeen gave legal aid to the appellant as part of the Supreme Court Legal Services Committee.

Case Title : Narendrasinh Keshubhai Zala vs State of Gujarat

Citation : 2023 LiveLaw (SC) 226

Indian Penal Code - Section 302- Murder Trial- Supreme Court sets aside conviction in a murder case- Notes that the Trial Court and the High Court grossly erred in their appreciation of evidence

Indian Evidence Act 1872-  Suspicion, howsoever great it may be, is no substitute of proof in criminal jurisprudence-Only such evidence is admissible and acceptable as is permissible in accordance with law - Para 8

Indian Evidence Act 1872- In the case of a sole eye witness, the witness has to be reliable, trustworthy, his testimony worthy of credence and the case proven beyond reasonable doubt. Unnatural conduct and unexplained circumstances can be a ground for disbelieving the witness - Para 8

Indian Evidence Act 1872- It is not the quantity but the quality of witnesses and evidence that can either make or break the case of the prosecution. It is the duty of the prosecution to prove that the testimonies of the witnesses that it seeks to rely upon are of sterling quality - Para 10

Indian Evidence Act 1872- t is the duty of the prosecution to establish use of the weapon discovered in the commission of the crime. Failure to do so may cause aberration in the course of justice - Para 15

Constitution of India 1950- Article 136- It is true that concurrent findings of facts of the Courts below, are usually, not to be interfered with. However, it is only in the presence of exceptional circumstances, this Court exercises its wide powers where there is travesty of justice and when absurd and erroneous conclusions are drawn by the Courts below. We are of the opinion that this is one such case fit for exercising the powers entrusted to us as a duty under Article 136 of the Constitution - Para 17

Criminal Trials - We may also state that the Courts must refrain from committing such grave errors in the future, whereby innocent people are made to suffer incarceration for over a period of nearly two decades, without proper appreciation of evidence - Para 19

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