Summary
The Supreme Court acquitted eleven accused convicted of a triple murder arising from a panchayat election rivalry, holding that the first informant's account was exaggerated and doubtful, that a witness who stayed silent for 43 days and whose companion was never examined could not be believed, that a child witness examined on oath without preliminary questions and without a test identification parade had to be excluded, and that fingerprint evidence without a mahazar and unexhibited photographs failed; the Court also held that the Article 136 precedents on concurrent findings do not bar it from appreciating the evidence to see whether striking features were overlooked.
Issues
- Whether the testimonies of the three alleged eye-witnesses (the first informant PW-1, the delayed witness PW-2 and the child witness PW-9) were reliable enough to sustain convictions under Sections 302 and 307 read with Section 149 IPC.
- Whether a child witness could be examined on oath without the trial court first putting preliminary questions to ascertain her capacity and understanding of the oath, and whether her dock identification without a test identification parade could be relied on.
- Whether the fingerprint evidence, recoveries of weapons and paint-flake evidence could independently support the convictions.
- Whether the Supreme Court, in an appeal by special leave under Article 136 against concurrent findings, may reappreciate the evidence.
Provisions considered
- Article 136 (with Article 134), Constitution of IndiaThe decisions in Pappu v. State of U.P. and Dalbir Kaur v. State of Punjab lay down self-imposed constraints on interfering with concurrent findings, permitting interference in rare cases of manifest illegality, misreading of evidence or disregard of striking features that demolish the prosecution case; they do not prevent the Court from appreciating the evidence, since without doing so it cannot decide whether the case falls within those parameters. (¶¶ 36, 37, 37.1, 38, 38.1, 39, 40)
- Sections 302 and 307 read with Section 149, Sections 147 and 148, Indian Penal Code, 1860Convictions for murder, attempt to murder and rioting as members of an unlawful assembly were set aside because, once the three eye-witnesses and the fingerprint evidence were discarded, only the alleged recoveries of weapons remained, which could not by any stretch sustain a conviction. (¶¶ 1, 34, 35, 41, 42)
- Section 3(1), Tamil Nadu Prevention of Damage to Public Property ActThe conviction under this provision, recorded along with the IPC offences, fell with the rest of the prosecution case on the acquittal of the appellants. (¶¶ 1, 42)
Held
- Before recording the evidence of a minor witness the court must put preliminary questions to satisfy itself that the child can understand and answer questions and understands the importance of an oath; administering the oath without doing so, when children are susceptible to tutoring, makes the evidence very vulnerable. Where this condition precedent was not satisfied, the child identified several accused for the first time in court with no test identification parade, and admitted that her mother had narrated the incident to her, her testimony had to be kept out of consideration. (¶¶ 25, 26, 27, 28, 31)
- The first informant's evidence did not inspire confidence: though police officers met him at the scene they recorded no statement, he went to the police station with an advocate and functionaries of his wife's political party, he first named 36 persons and consented to 15 being dropped as an exaggeration, his account of the number of assailants shifted, and he never stated the distance from the bush where he hid to the spot, leaving serious doubt whether he could see the night-time incident by the car's light. (¶¶ 18, 19, 20, 29)
- A witness who remained silent for about one and a half months after the incident, moved from place to place, claimed no threat and came forward only after hearing a sermon cannot be believed, and the prosecution's failure to examine the companion he named as a fellow eye-witness warrants an adverse inference; the unexplained delay in recording his statement was gross. (¶¶ 23, 24, 30)
- Fingerprint evidence linking two accused to the car could not be accepted because no mahazar or panchnama was drawn when the fingerprints were photographed on the vehicle or when specimen prints of the accused were taken, and the photographs were never exhibited; failure to draw a mahazar at the time of photographing the prints goes to the root of the matter. (¶ 32)
- With the three eye-witnesses and the fingerprint evidence excluded, only recoveries of weapons at the instance of the accused remained (several shown from the same spot at different times on the same day), and on recovery alone the accused could not be convicted. (¶¶ 33, 34, 35)
- The precedents on Article 136 do not prevent the Supreme Court from reappreciating evidence in a criminal appeal against conviction; they only impose self-restraint on disturbing concurrent findings, which may be interfered with where the courts below misread the evidence or ignored striking features demolishing the prosecution case, as both courts had done here. (¶¶ 37.1, 38.1, 39, 40)
Result
Appeals allowed; judgments of the High Court and the Trial Court set aside; appellants (Accused Nos. 1 to 11), who had undergone more than nine years and four months of sentence, acquitted of all offences and directed to be released forthwith if not required in any other case.