Who were convicted for the offences punishable under Section 302 read with Section 149 of the Indian Penal Code (for short ‘IPC’) by the Sessions Court came to be affirmed. (Para 1)
Said order of conviction and sentence imposed came to be affirmed by the High Court (Para 2)
Whereunder he had not named the appellant and the CCTV footage did not conform to Section 65 B of the Indian Evidence Act which even otherwise did not reflect A-4’s of presence. He also contends that no Test Identification Parade (TIP ‘for short’) was conducted, and PW-9 had only identified this accused (A-4) in the court. (Para 4)
PW-9 was an interested witness as he was a close relative of the deceased, and various discrepancies, including the improvement in his statement made before court, ought to have been the ground to summarily brush aside his testimony. (Para 4)
Footage relied upon by prosecution was recorded on a mobile phone by PW-8 and converted into a CD, which was not in conformity with Section 65B of the Evidence Act and it was allegedly recorded on 26.04.2016 but handed over to the police on 01.06.2016 and during this interregnum period the possibility of said recording being tampered could not have been ruled out. (Para 4)
The non-disclosure of the names of the accused persons at the first instance creates reasonable doubts as to the appellant’s identity. The learned counsel for the appellant (A-4) would also contend that there was unexplained delay in recording PW-9’s statement, namely it was recorded at 11:30 p.m., despite the incident having taken place at 6:30 p.m. and PW-9 was present during this period. (Para 5)
That conviction of all the accused is based on the testimony of PW-9 and recovery of the motor-cycles and the motive for the crime attributed by PW-9 in his statement recorded on the date of incident. (Para 8)
PW-9 had also deposed that Ajay was in the company of Suraj, who ran alongside the deceased and hid himself in Dharmender’s house. However, the police did not record the statement of Suraj, and he was not even cited as a witness on behalf of the prosecution. This would be the first gap in the prosecution story or a defective investigation. (Para 9)
The evidence of the eye-witness should be of very sterling quality and calibre and it should not only instil confidence in the court to accept the same but it should also be a version of such nature that can be accepted at its face value. (Para 9.3)
PW-9, the cousin of the deceased, was examined as an eyewitness to the crime. However, the presence of PW-9 at the scene raises doubt due to contradictions. Although Suraj, who was also the deceased’s cousin, was accompanying the deceased, PW-9 never tried to contact him to ascertain the names of the accused persons. This raises a serious doubt about his presence that has been ignored by the courts below. The presence of PW-9 at the scene raises doubts and raises questions about the veracity of his evidence. This is the second lacunae in the prosecution case. (Para 9.3)
The courts below have relied on CCTV footage to convict the appellants and co-accused persons. However, we are of the considered view that said evidence could not have been relied upon, as it was infested with serious doubts and the very manner in which it came into existence itself would raise a serious doubt not only about its source but also raises a serious doubt about the presence of the appellants at the scene of crime. PW-8, who made a video from his mobile phone of the CCTV footage on 22.04.2016 and has claimed to have handed over the recorded CD (Ex.P.3) to the police on 01.06.2016. However, the video (CD) has not been forwarded by the police to the Forensic Science Laboratory. (Para 9.4)
It is pertinent to note at this juncture itself that Investigating Officer (PW-15) also admits in his cross-examination that faces of the accused are not identifiable from the video. The said video according to PW-8 was taken from the CCTV camera located in the house of Dharmendra and he (Dharmendra) was never cited as a witness by the prosecution. This is the third stage of the deficient investigation and blame has to be necessarily laid at their door and the benefit of the doubt has to be extended to the accused persons. (Para 9.5)
The confessional statement of the accused and co-accused came to be recorded when they were in police custody. (Para 9.6)
In the instant case, the confessional statement of the accused relied upon by the prosecution was admittedly recorded after the arrest of those accused persons when accused 4, 5, and 6 were in police custody. Hence, said statement would become inadmissible having regard to the provisions of Sections 25 and 26 of the Evidence Act, of 1872. Section 25 of the Act (Para 9.6)
We are inclined to hold that even when commission of murder was not the common object of the accused persons, they certainly had come to the spot with a view to overawe and prevent the deceased by use of criminal force from putting up the fence in question. That they actually slapped and boxed the witnesses, one of whom lost his two teeth and another sustained a fracture only proves that point. (Para 10(21))
The prosecution had failed to prove that the appellants herein had shared a common object with other members of the alleged unlawful assembly. To convict a person under Section 149 IPC prosecution has to establish with the help of evidence that firstly, appellants shared a common object and were part of unlawful assembly and secondly, it had to prove that they were aware of the offences likely to be committed is to achieve the said common object. (Para 10)
Are hereby set aside and consequently appellants are acquitted of the offences alleged (Para 11)
SUPREME COURT OF INDIA
2023 STPL(Web) 320 SC
[2023 INSC 889]
Naresh @ Nehru Vs. State Of Haryana
Criminal Appeal No. 1786 of 2023 with Criminal Appeal Nos.1787-1788 of 2023-Decided on 9-10-2023
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