Summary
In the 1998 shooting of a Bihar legislator and his police bodyguard at a Patna hospital, the Supreme Court partly reversed the High Court's acquittal of all accused. It restored the trial court's murder and attempt-to-murder convictions and life sentences for two accused identified by credible eyewitnesses. The acquittal of the alleged conspirators was upheld because the conspiracy evidence was weak, and one accused got the benefit of doubt because the eyewitnesses differed on whether he was there.
Issues
- Whether the High Court rightly rejected the eyewitnesses because of their relationship with the deceased, a witness's criminal antecedents, contradictions, partial hostility and lapses in hospital visiting protocol.
- Whether delay in forwarding the FIR to the jurisdictional Magistrate and alleged ante-timing of the FIR made the prosecution case doubtful.
- Whether non-recovery of the weapons and vehicles, and the eyewitnesses' silence about the bodyguards' return fire, undermined the eyewitness account.
- Whether the charge of criminal conspiracy against the other accused was proved.
- Whether the attempt-to-murder charge for the injury to a bystander was proved.
Provisions considered
- Section 302 read with Section 34, Indian Penal Code, 1860On the credible eyewitness accounts, corroborated by other evidence, the murder charge was held proved beyond reasonable doubt against the two accused identified as shooters, and their conviction restored. (¶¶ 42, 44)
- Section 307 read with Section 34, Indian Penal Code, 1860A bystander suffered a gunshot wound proved by medical evidence. Extensive firing at a crowded spot with intent to kill established attempt to murder against the two shooters, though the injured man did not identify them. (¶¶ 34, 44)
- Section 120B, Indian Penal Code, 1860The conspiracy charge rested on a jail meeting spoken to by hostile witnesses, telephone records whose link to an accused was not proved, a post-incident celebration and a fax. It was held not substantiated, so the acquittal of the alleged conspirators stood. (¶¶ 3, 35, 36, 37, 38, 39, 40, 43)
- Section 157, Code of Criminal Procedure, 1973Sending the FIR to the Magistrate is an external check against ante-dating. The one-day delay, caused by an intervening Sunday, was explained, and in any case delay alone is not fatal unless the accused shows prejudice. (¶¶ 29, 30)
- Section 161, Code of Criminal Procedure, 1973Police statements are not evidence in themselves. Discrepancies in when and where they were recorded, and a witness's memory lapse about an earlier statement, were peripheral and did not discredit the core testimony. (¶¶ 10, 31, 32)
- Section 428, Code of Criminal Procedure, 1973Directed to apply when the trial court's sentences were restored, so the period already spent in detention is set off. (¶ 44)
Held
- The High Court rightly disbelieved a witness who was not named among those present in the fardbeyan or FIR and whose police statement was recorded five days later without explanation. For the same reason the informant's later testimony that this witness was present was rejected. (¶ 10)
- A witness whose name appears in the fardbeyan and FIR cannot be disbelieved merely because, as a relative of the deceased present at the scene, he was not the informant; anyone may be an informant. Lack of visiting permission or register entries does not displace credible proof of presence. (¶¶ 14, 15)
- Indian law does not apply falsus in uno, falsus in omnibus; it is only a rule of caution. The court must sift reliable from unreliable parts and reject the whole only where truth and falsehood cannot be separated. Likewise, the creditworthy parts of a hostile witness's testimony may be relied on after close scrutiny. (¶¶ 16, 22)
- A witness's criminal background calls for caution, but his testimony cannot be rejected on that ground alone. In conflicts between rival groups, the crucial test is whether he truly witnessed the event and is credible, and if his presence is established his account may be relied upon. (¶ 20)
- What the deceased's wife heard from others about the occurrence was hearsay and excluded. But her direct evidence of which witnesses were at the hospital was admissible and partly corroborated them; her evidence also showed the long-standing enmity supplying motive. (¶¶ 24, 25, 26)
- Failure to recover the weapons and vehicles does not by itself discredit credible eyewitnesses. Nor does the eyewitnesses' failure to mention the bodyguards' return fire, or their not attesting the inquest and other documents. (¶¶ 27, 28, 33)
- Minor discrepancies about the time and place of recording police statements, or who reached the hospital first, were peripheral given the gap of years before trial. Questions of that kind tested memory rather than the truth of the core testimony. (¶¶ 31, 32)
- The conspiracy charge failed: the jail-meeting witnesses turned hostile, the telephone subscriber and verifying officials were not examined, and the post-incident celebration evidence was not credible. Suspicion that an accused lured the deceased outside was an assumption, not proof. (¶¶ 36, 37, 38, 39, 40, 43)
- As one eyewitness said an accused was not present while another said he was, that accused was given the benefit of doubt and his acquittal upheld. (¶ 41)
Result
Appeals partly allowed. Conviction of two accused under Sections 302 and 307 read with Section 34 IPC restored, with life imprisonment and a fine of Rs. 20,000 each, plus five years' rigorous imprisonment and a fine of Rs. 20,000 each, to run concurrently. Section 428 CrPC applies; six months' rigorous imprisonment in default of each fine; surrender within two weeks. Acquittal of five others upheld; appeals against deceased accused abated.