1. Appeal against acquittal for offences under Sections 302 and 307 IPC and Section 25 of the Arms Act. (Para 1 , 2 , 3 )
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2000 Supreme(SC) 382
2000(1) Supreme 616
SUPREME COURT OF INDIA
(From Allahabad High Court)
G.T. Nanavati & S.N. Phukan JJ.
State of U.P. -Appellant
versus
Ashok Dixit & Anr. -Respondents
Criminal Appeal Nos. 238-39 of 1989
Decided on 16-2-2000
Counsel for the Parties :
For the Appellant : K.N. Nagpal, A.S. Pundir, Akhil Kaushik, Ms. Rachna Joshi, D. Bhandari, Advocates.
For the Respondents : A.D. Giri, Sr. Advocate (NP), K.T.S. Tulsi, Sr. Advocate, Vijay Kumar, K.K. Mohan, B.S. Chauhan, Advocates.
Important Points
The court upheld the acquittal, ruling that convictions cannot be sustained based on uncorroborated child witness testimony, unreliable identification due to material omissions in statements, and ballistic evidence that contradicts the prosecution's case, particularly when police conduct is contrary to natural human behavior.
Subject
Criminal Law - Murder
Act Referred
Headnote
Indian Penal Code, 1860-Sections 302 and 307-Appeal against acquittal-Accused persons allegedly shot dead victims at their first floor residence-Witnesses allegedly rushed to place of incident on hearing gunshot-Police officers also claimed to have rushed to place of incident hearing gunshot-No light at relevant time-Police officer allegdly arrested when accused came to ground floor-Police did not go upstairs for investigation and inspection of spot-Conduct of police contrary to natural human conduct-FIR on basis of injured witness PW1-PW1 not examined-FIR could not be relied upon as corroborating piece of evidence-Another injured witness who was along with victims not examined-No explanation given for non-examination-No test identification parade conducted-One of the accused also injured by gunshot-Cartridges recovered from body of victims and injured accused not fired by same gun-Presence of police officers near place of incidence at relevant time also doubtful-Child witness who claimed to have seen accused could not be believed especially at relevant time child would have been sleeping and child was examined after few days of incident-Material omissions fatal to prosecution-Medical evidence that injured accused might have suffered paralysis given the nature of injury and could not have walked downstairs as claimed by witnesses-Occurrence could not have taken place as alleged by the prosecution-High Court rightly acquitted accused persons. (Paras 6 to 17)
Legal Category Hierarchy
Table of Contents
2. State appeal seeking reversal of acquittal and enhancement of sentence for the accused-respondents. (Para 1 , 4 )
3. Analysis of material omissions, lack of test identification, uncorroborated child witness testimony, unnatural police conduct, and contradictory forensic evidence. (Para 5 , 6 , 7 , 8 , 9 , 10 , 11 , 12 , 13 , 14 , 15 , 16 )
4. Evidence of a child witness must be evaluated carefully and requires adequate corroboration due to susceptibility to tutoring. (Para 8 )
5. Appeal dismissed and the acquittal of the accused-respondents upheld. (Para 17 , 18 )
6. How should the evidence of a child witness be evaluated in criminal proceedings?
Evidence of a child witness must be evaluated carefully as children may be swayed by others or be prey to tutoring; therefore, such evidence requires adequate corroboration before it can be relied upon. (Para 8 )
7. What is the evidentiary value of identifying an unknown accused for the first time in court without a test identification parade?
Identification of an accused in court for the first time is not acceptable if the witness did not know the accused previously and no test identification parade was conducted after the occurrence. (Para 7 )
8. How do material omissions in a witness's Section 161 Cr.P.C. statement affect the prosecution's case?
Material omissions in a witness's statement under Section 161 Cr.P.C. regarding the identity or actions of the accused can be fatal to the prosecution, particularly when the witness was previously acquainted with the accused. (Para 6 , 7 )
9. What is the legal consequence of the prosecution's failure to examine a material witness?
The failure to examine a material witness, without providing a satisfactory explanation for such non-examination, is considered fatal to the prosecution's case. (Para 12 )
10. What is the impact of forensic evidence that contradicts ocular testimony in a criminal trial?
When medical and ballistic evidence contradicts the ocular testimony of witnesses and the prosecution fails to explain these discrepancies, the court may hold that the occurrence did not take place as alleged. (Para 15 , 16 , 17 )
JUDGMENT
Phukan, J.-This appeal by the State is directed against the judgment and order dated 16.8.1988 passed by the High Court of Allahabad in Criminal Appeal Nos. 2742, 2743 and 2338 of 1984 arising out of Sessions Trial No. 202 of 1982. The learned Additional Sessions Judge, Agra in the above Sessions Case convicted accused-respondents-Ashok Dixit and Chaman Lal under Sections 302 and 307 IPC and Section 25 of the Arms Act and sentenced them accordingly. Two separate appeals were filed before the High Court by the respondents-accused and one appeal by the State for enhancement of the sentence. The High Court dismissed the appeal filed by the State and allowed the appeals filed by the respondents-accused and acquitted them of their charges.
2. On 8.8.1982, at about 9.00 p.m., on hearing sound of gun shot coming from the house of deceased-Dr. Dubey, his brother-Bhagat Dayal Dubey-P.W.1, proceeded to the house of deceased Dr. Dubey, alongwith his two sons. In the house of the deceased, he met two police officer-Vijai Bahadur Singh-P.W.7, Station House Officer of Police Station Civil Lines, District Etawah, Sub-Inspector of Police-Uma Shanker Yadev, Raj Narain Singh-P.W.15-Compounder of deceased Dr. Dube, Shri S.K. Gupta-Advocate and one or two other persons of the locality. The house was dark as there was no electricity and two police officers took position behind the verandah of the house and P.W.1 alongwith his two sons stood near the grill of the western varendah. They heard shots from the first floor of the house where deceased Dr. Dubey, his wife deceased Manorama Dubey, her daughter Kumari Ritu-P.W.3 and Umesh Mishra-P.W.2- maternal uncle of deceased Manorama Dubey were residing. At the time, they saw accused Brijendra Kumar tumbling down the staircase to the ground floor followed by present two accused-respondents Ashok and Chaman Lal, and three accused were apprehended by the two police officers, P.W.7 and Sub-Inspector-Uma Shankar Dubey. Electricity was restored when the accused were apprehended. P.W.1 with his two sons went upstairs and found deceased Dr. Dubey lying in a pool of blood near the dining table. Deceased Manorama Dubey was lying in a pool of blood on the dewan by the side of the wall of the drawing room and Munnu Singh was lying in the injured condition. PW-2 was also found in injured condition. They were taken to the hospital by PW-1 and one Pandey a tenant on the first floor where Dr. Dubey was residing. Dr. Dubey and his wife were found dead. P.W.2 and Munnu Singh medically examined and given treatment.
3. A pistol and four live cartridges were recovered from the possession of the accused Ashok and country made pistol and five live cartridges from the possession of accused Chaman Lal and a country made pistol and two catridges were recovered from accused Brijendra Kumar. The two police officers did not go upstairs where the occurrence took place. They took the accused persons to the police station. Police after investigation submitted charge-sheet. The FIR-Exh.1 was lodged by P.W.1 on the basis of statement of injured Munnu Singh but he was not examined, therefore, the High Court was of the opinion that the FIR cannot be accepted as corroborating piece of evidence of the statement of P.W.1. Accused Brijendra Kumar died.
4. We have heard Shri K.N. Nagpal, learned counsel for the appellant and Shri K.T.S. Tulsi, learned senior counsel for the accused-respondets.
5. Umesh Mishra-PW2 uncle of the deceased-Manorama and Ritu-PW3 daughter of deceased-Dr. Dubey were the eye witnesses. PW-2 used to live in the house of deceased-Dr. Dubey. According to PW-2 while he along with deceased-Dr. Dubey, his wife deceased-Manorama and their daughter-Ritu PW3 were sitting, Munnu Singh, compounder of Dr. Dubey called Dr. Dubey and he went out. They heard gun shots stood up and after some time Dr. Dubey came and fell down near the dining table. Dr. Dubey was followed by three assailants. One assailant fired at deceased-Manor
