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SUPREME COURT OF INDIA
Abhay S. Oka, M.M. Sundresh, JJ.
Shishpal @ Shishu - Appellant
Versus
State of NCT of Delhi – Respondent
Criminal Appeal No. 1053 of 2015
Roshan - Appellant
Versus
The State (NCT of Delhi) - Respondent
Criminal Appeal No. 81 of 2018
Decided On : 11-07-2022
Indian Penal Code, 1860 – Sections 302/34 – Murder – Common intention – Life sentence – Minor brother of deceased is not an eye-witness – His presence is also doubtful for reason that even he was not seen in hospital by police officer who started investigation – There is no material to substantiate evidence that he has been threatened subsequently – No independent witness was made to sign recovery mahazar – So-called recovery raises serious doubt, enuring to benefit of defence – Both appellants have been charged only based upon rule of evidence available under Section 34 of IPC – Section 34 does not constitute an offence by itself, but creates a constructive liability – Foundational facts will have to be proved by prosecution – Not only occurrence, but common intention has to be proved beyond reasonable doubt – Both Courts made reliance upon non-cooperation on part of accused to undergo test identification parade by drawing an adverse inference – Evidence available on record was not looked into as witnesses had already been exposed to accused in police station – Test identification parade is only a part of investigation and nothing more can be attached to it – It is duty of prosecution to prove its case beyond reasonable doubt – Both Courts have fixed onus on accused – Prosecution has not been able to sustain charge as against appellants framed under Section 302 read with Section 34 IPC – There has to be adequate material to fasten the appellants on basis of constructive liability as Section 34 IPC is nothing but a rule of evidence – Conviction rendered by Trial Court as confirmed by Division Bench of High Court set aside. (Paras 8, 12, 13, 14 and 15)
Facts of the case:
Present appeals have been filed by A1 and A3 respectively to overturn conviction sentencing them for life for the offence punishable under Section 302 read with Section 34 of the Indian Penal Code, 1860 by Additional Sessions Judge (East) FTC: E-Court, Karkardooma Court, Delhi, as confirmed by the Division Bench of the High Court of Delhi.
Findings of Court:
Evidence as deposed by the prosecution witnesses itself would demonstrate that the version of the prosecution may not be correct. If reasoning of the High Court is accepted, even then, offence under Section 302 IPC may not be made out.
Result : Appeal allowed.
JUDGMENT :
M. M. Sundresh, J.
1. These two appeals have been filed by A1 and A3 respectively to overturn the conviction sentencing them for life for the offence punishable under Section 302 read with Section 34 of the Indian Penal Code, 1860 (for short ‘IPC’) by the learned Additional Sessions Judge (East) FTC: E-Court, Karkardooma Court, Delhi, as confirmed by the Division Bench of the High Court of Delhi. Of the three accused convicted, only two are before us. The overt act attributed as against these two accused on the basis of Section 34 IPC being identical, we deem it appropriate to pass a common order.
2. On 10.01.2010 at about 8.00 pm, the deceased and PW4 were standing in the queue before a liquor shop. A-2 (not before us) attacked the deceased by causing a single injury with a knife while the appellants caught hold of him. All the accused reportedly dragged the deceased from the queue of the liquor shop and committed the offence they were charged with.
3. Before the trial Court, the prosecution examined 22 witnesses as against 8 by the defence. PW1 is stated to be the wife of the deceased, though there was a candid admission that her first marriage was not dissolved legally. It is her version that all the accused came to the house of the deceased, one of them, namely, the appellant in Criminal Appeal No. 1053 of 2015 (A-1), went inside the house and made inquiries about the whereabouts of the deceased in an agitated manner. A-1 told her that he was Amit (A-2). Thereafter, they left the place, found the accused, and committed the offence. She identified A-1 as A-2. It is her further deposition that she did see A-1 and A-2 in the police station on 12.01.2010 when her statement was recorded. Though she went to the place of occurrence on being informed, she was not seen in the hospital by P.W.11, the Investigation Officer, who initiated the investigation, despite his presence in the hospital till 9.15 pm. It is her further evidence that she did make a call to the police station by using the cellphone owned by PW5, who incidentally turned hostile.
4. Though the evidence of PW1 was taken note of in favour of the prosecution by the trial court, the High Court raised serious doubts, especially with respect to the identification made with respect to A1 and A2. The High Court further held that there was no reason for the accused to go into the house of the deceased, in which case motive has not been established.
5. PW2 is the member of the family of the deceased. He denied recording of his statement and stated that his thumb impression was taken on a blank paper by the police. With the permission of the Court, he was cross-examined by the prosecution. However, his statement that Nitin (PW4) was with him from 7.00 pm to 10.00 pm on the date of occurrence i.e. 10.01.2010 was not impeached and so also his further statement that both of them went to sleep thereafter.
6. PW3 is the sterling witness of the prosecution upon whom much reliance has been made by both the Courts. He was cross-examined by the prosecution on the only issue qua A-1, on his presence. This witness is a seasoned one as he has deposed at least on seven occasions in favour of the police and also admitted to have received a certain amount of money. Obviously, he is well-known to the police having a shop just opposite the police station. This part of the evidence was also not questioned by the prosecution. It is the evidence of PW3 that he saw A-2 and A-3 dragging the deceased, while A-2 has stabbed him. Thus, there was a categorical denial of the presence of A-1. Contrary to the case of the prosecution, he has stated that both the accused ran away on foot. The further testimony of this witness is that the deceased is a known pick pocket and the occurrence happened because he picked the pocket of the accused. This is also in variance with the theory projected by the p
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