Summary
The Supreme Court acquitted the two surviving appellants, whose conviction had been reduced by the High Court to culpable homicide not amounting to murder, because no witness identified them in court as the assailants: the eyewitnesses deposed in their absence and the court witnesses gave only hearsay or omitted versions.
Issues
- Whether the prosecution established the identity of the appellants as the persons who assaulted the deceased when the witnesses deposed in the appellants' absence and never identified them in court.
- Whether the evidence of the court witnesses supplied proof of the appellants' involvement.
Provisions considered
- Section 304 Part II, Indian Penal Code, 1860The trial court had convicted under Sections 302 and 323 read with Section 34; the High Court reduced the conviction to Section 304 Part II. The Supreme Court set aside the conviction of the surviving appellants altogether as a case of no evidence. (¶¶ 1, 6, 7)
- Sections 302 and 323 read with Section 34, Indian Penal Code, 1860Charges on which all five accused were tried and on which the Sessions Court convicted; the conviction did not survive because the identity of the appellants was never proved. (¶¶ 1, 6)
Held
- It is the duty of the prosecution, when it alleges that a particular person committed an offence, to prove by evidence that the accused is that person. Where the witnesses name the accused but depose in their absence and never identify them in court as the persons seen committing the offence, the identity of the accused is not established; this goes to the root of the case and was wrongly ignored by the Sessions Court and the High Court. (¶¶ 3, 5)
- The evidence of court witnesses who were not eyewitnesses and only repeated what others told them was hearsay; the version of another court witness about the deceased naming the assailants did not name the appellants and was in any event an omission brought out in cross-examination, so it could not fill the gap. (¶ 4)
- Being a case of no evidence against the surviving appellants, their conviction could not stand. (¶ 7)
Result
Appeal allowed; the conviction of the surviving appellants (accused nos. 4 and 5) under Section 304 Part II IPC set aside and they were acquitted; bail bonds cancelled. Accused no. 1 having died, the appeal survived only for these two appellants.