ALLARAKHA HABIB MEMON ETC. versus STATE OF GUJARAT

Summary

The Supreme Court acquitted three appellants concurrently convicted of murder under Section 302 read with Section 120B IPC. The first version of the incident, given by an eyewitness police constable who took the weapons to the police station, was suppressed and the daily diary was withheld, so the complaint treated as the FIR was a post-investigation statement hit by Section 162 CrPC. The eyewitness evidence was unreliable, the custodial confessions to a doctor were inadmissible, and the recovery and forensic evidence lacked link evidence.

Issues

1. Whether the complaint registered as the FIR was genuine, or whether the earlier version given by the police constable who reached the police station with the weapons was the real first information that the prosecution suppressed.
2. Whether the testimony of the first informant and the other alleged eyewitnesses, and the constable's dock identification without a test identification parade, were reliable.
3. Whether confessions noted by a medical officer while examining arrested accused brought by the police were admissible.
4. Whether the recoveries, the pointing out of the crime scene and the FSL blood-group reports could sustain the conviction.
5. When the Supreme Court will interfere with concurrent findings of fact under Article 136.

Provisions considered

• Sections 161 and 162, Code of Criminal Procedure, 1973The constable's first version would have to be treated as the FIR. The informant's later statement to the PSI was therefore only a statement during investigation, which could not be treated as the FIR because it is hit by Section 162; Punati Ramulu and Babu Sahebagouda Rudragoudar were followed. (¶¶ 21, 29, 30)
• Section 26, Indian Evidence Act, 1872Two accused were presented at hospital by the police after arrest, so their confessions noted by the medical officer in the injury reports were made in police custody and held ex facie inadmissible. (¶¶ 40, 41)
• Section 21, Indian Evidence Act, 1872Because they were hit by Section 26, the Court declined to treat the statements recorded in the injury reports as admissions relevant under Section 21. (¶ 41)
• Section 27, Indian Evidence Act, 1872Pointing out the place of the incident discovered no new fact because the police already knew the crime scene. The Investigating Officer's evidence of the disclosure statements did not set out the accused's words, so the disclosures were neither proved nor led to an incriminating discovery. (¶¶ 41, 44, 45, 46)
• Section 302 read with Section 120B, Indian Penal Code, 1860The offences of conviction; the Court held the prosecution had failed to prove them beyond reasonable doubt, noting also that it was improbable that the accused knew in advance the deceased would be at the petrol pump so as to conspire and prepare. (¶¶ 2, 37, 48)
• Article 136, Constitution of IndiaConcurrent findings are ordinarily not disturbed, but the Court interferes where evidence has not been properly appreciated, material aspects are ignored and the findings are perverse, as here. (¶ 47)

Held

• It was improbable that a police constable who claimed to have seen the assault and who brought the crime weapons to the police station would have no statement recorded and no daily diary entry made. Non-production of the daily diary was a serious omission that raised a reasonable doubt that his version had been recorded but suppressed because it did not suit the prosecution. (¶¶ 19, 20)
• The constable's first version had to be treated as the FIR. The informant's complaint was relegated to a statement under Section 161 CrPC hit by Section 162, and an adverse inference was drawn for concealment of the initial version. When the police deliberately fail to record the first information and prepare the FIR after deliberation, the investigation is tainted. (¶¶ 21, 29, 30)
• The FIR appeared to be a post-investigation document. The informant said he drafted and filed the complaint at the police station and signed it the next morning after the site inspection, whereas the PSI said he recorded it orally at the hospital. The FIR bore no time of recording and no endorsement of when it reached the court, and the complaint the informant said he filed was never produced. (¶¶ 22, 24, 25, 28)
• The first informant's presence at the scene was doubtful. The independent constable saw only the injured man and the assailants and did not mention him. The informant did not report to the constable on the spot and had no bloodstains although he claimed to have lifted the bleeding victim. The two other persons he named were not examined, and he could not explain how the accused knew the deceased would be at the petrol pump. His testimony was discarded. (¶¶ 31, 32, 33, 34, 35, 36, 37)
• A dock identification made about two and a half years after the incident, by a witness who gave neither names nor descriptions in his police statement and was not asked to identify the accused at a test identification parade, is flimsy and unacceptable. A witness absent from the FIR who told police he was at home, and who later claimed to be an eyewitness, was falsely projected and could not be relied on. (¶¶ 23, 38, 39)
• Confessions recorded by a medical officer from accused presented by the police after arrest are hit by Section 26 of the Evidence Act and cannot be used as admissions under Section 21. Pointing out a crime scene already known to the police discovers no fact under Section 27. (¶¶ 41, 45)
• The seizure memo of the weapons was not attested by the constable who brought them, and its timing did not fit his account. No link evidence showed safe custody of the articles until they reached the FSL. A blood-group match on recovered weapons cannot by itself connect the accused to the murder once the eyewitness evidence is discarded (Mustkeem v. State of Rajasthan). (¶¶ 42, 43, 45, 46)
• Although the Court does not ordinarily interfere with concurrent findings under Article 136, it will do so where the evidence has not been properly appreciated and the findings are perverse. The prosecution had failed to prove guilt beyond reasonable doubt, and the appellants were entitled to the benefit of doubt. (¶¶ 47, 48)

Result

Appeals allowed; conviction and life sentences under Section 302 read with Section 120B IPC, and the High Court judgment affirming them, set aside; appellants acquitted; the two appellants on bail need not surrender and their bail bonds are discharged; the third appellant to be released forthwith if not required in any other case.