Summary
A man was shot dead at 7.30 a.m. in 2001 in Madhya Pradesh over a property dispute; the appellant, his brother and their father were tried under Section 302 read with Section 34 IPC and the Arms Act, the father dying during trial. The conviction rested on PW-15, a dismissed police constable facing theft, dacoity, murder and NDPS cases, who said he left home only at 8 a.m. and saw the brother alone fire the shot, and on an alleged recovery of a pistol from the appellant. Two prosecution witnesses who heard the shot said the accused were not the assailants and that PW-15 arrived much later; they were never declared hostile. The doctor said both fatal injuries could come from a single shot, the recovery memo was never prepared, the recovery witness contradicted the investigating officer, and the FSL report attributed the cartridge to the co-accused's gun.
Issues
- Whether a conviction can stand on the testimony of a single eyewitness of doubtful antecedents whose presence is contradicted by other prosecution witnesses who were never declared hostile.
- Whether evidence of prosecution witnesses that supports the defence, left unimpeached by the prosecution, enures to the benefit of the accused.
- Whether an alleged recovery of a firearm without a recovery memo, with a witness contradicting the investigating officer and an FSL report pointing to a different weapon, can corroborate guilt.
Provisions considered
- Section 302 read with Section 34, Indian Penal Code, 1860The appellant's conviction for murder with common intention was set aside; the evidence showed at most a single shot fired by one person, and the appellant's presence at the scene was highly improbable. (¶¶ 3, 6, 10)
- Section 3 (reputation and conduct as facts) and Section 27 (recovery), Indian Evidence Act, 1872The reputation and conduct of PW-15, an ex-constable facing grave criminal charges who had opposed the appellant's bail and whose timing placed him away from the scene, were relevant facts making his testimony unreliable; the recovery of the pistol was not proved in the manner known to law, no memo having been prepared and the witness contradicting the investigating officer on date and manner. (¶¶ 4(v), 4(vii), 4(viii), 6)
- Sections 154 and 161 (first information and investigation), Code of Criminal Procedure, 1973The original FIR was found torn with mismatched serial numbers, the police reached the scene from an unknown source of information before the FIR was recorded at the station, and the injured girl mentioned by witnesses was never investigated — infirmities weighing against the prosecution. (¶¶ 4(vi), 4(vii), 4(viii))
Held
- PW-1 and PW-3, who heard the gunshot and reached the body at once, deposed that the accused were not present, that a single shot was fired by another man carrying the weapon while running, and that PW-15 arrived much later; neither was declared hostile or re-examined. Testimony of prosecution witnesses that supports the defence and is left unimpeached binds the prosecution and may be relied on by the accused (Raja Ram, Javed Masood). (¶¶ 4(i), 4(ii), 7)
- PW-15 left home at 8 to 8.15 a.m. for an occurrence at 7.30 a.m., was a dismissed constable facing cases from theft to double murder, in one of which the appellant was a witness, did not go to the nearby police station or inform the widow, and saw only the co-accused fire; his presence was highly improbable and his reputation and conduct, being facts under Section 3, made him unreliable. (¶¶ 4(vii), 10)
- The recovery from the appellant was not proved: no recovery memo was prepared, PW-13, a relative with pending cases, said the pistol was recovered on the night of the occurrence contrary to the investigating officer, the other witness was not examined, and the FSL report attributed the cartridge to the co-accused's gun; the two weapons-two shots theory was unproved and the doctor thought both injuries came from one shot. (¶¶ 4(iii), 4(v), 5, 6)
- Both courts shifted the burden onto the defence, rejected prosecution witnesses as indifferent without treating them as hostile, and discarded defence witnesses without assessing them on the degree of probability; the prosecution failed to prove the charge beyond reasonable doubt. (¶¶ 7, 10)
Result
Appeal allowed; the conviction in Sessions Trial No. 129 of 2001 by the Fourth Additional Sessions Judge, Chhatarpur, as confirmed by the Madhya Pradesh High Court in Criminal Appeal No. 1367 of 2005, set aside and the appellant set at liberty.