Summary
The Supreme Court acquitted the appellant of a 2008 murder in a house robbery because the conviction rested on unsafe evidence. The sole injured eyewitness, then about 73 and with weak distance vision, identified him by video link about eight and a half years later with an improved description. The TIP was doubtful, and the recoveries were not linked to the crime. The Court also directed that a witness examined by video conferencing who is to be confronted with a previous written statement must first be sent a copy electronically, so that Sections 147 and 148 BSA (Sections 144 and 145 of the Evidence Act) are complied with.
Issues
- Whether a dock identification made over video conferencing by an elderly eyewitness about eight and a half years after the incident was safe to rely on.
- Whether an adverse inference from the accused's refusal to join a TIP could support the identification when the TIP itself was doubtful.
- Whether recoveries of looted articles and a blood-stained pant, unconnected by identification or blood grouping, proved the appellant's guilt.
- How a witness examined by video conferencing is to be confronted with a previous statement in writing.
Provisions considered
- Sections 147 and 148 BSA (Sections 144 and 145 of the Evidence Act), Bharatiya Sakshya Adhiniyam, 2023 (corresponding to Indian Evidence Act, 1872)To contradict a witness by a previous writing, the witness's attention must first be drawn to the relevant parts. The trial Court had deferred the defence objection because the witness was on video link and the statement could not be shown, but never decided it. The Supreme Court directed that a copy be sent to the witness electronically so these provisions are followed in letter and spirit. (¶¶ 41, 42, 43, 44, 45, 46, 47, 48, 49)
- Section 161, Code of Criminal Procedure, 1973The eyewitness's police statement contained no description of the assailants' clothes or physique. Her testimony that the appellant wore a black shirt was a material improvement made eight and a half years later, which undermined her dock identification. (¶¶ 41, 54, 66)
- Section 302, Indian Penal Code, 1860The appellant's conviction and life sentence under this section, affirmed by the High Court, was set aside for want of credible evidence connecting him with the offence. (¶¶ 3, 14, 69, 70, 71, 72)
Held
- Although the Court is slow to disturb concurrent findings, it will interfere under Article 136 where misreading or ignoring material evidence has caused a grave miscarriage of justice. (¶¶ 32, 33)
- Where a witness is examined by video conferencing and a party wishes to confront the witness with a previous written statement or other writing, the trial Court must ensure a copy is transmitted electronically to the witness and that the procedure in Sections 147 and 148 BSA (Sections 144 and 145 of the Evidence Act) is followed, so that no party is disadvantaged and the trial remains fair. (¶¶ 45, 46, 47, 48, 49)
- An eyewitness's evidence must be of sterling quality. A dock identification by video link nearly eight and a half years after the incident, by a witness about 73 at the time with weak distance vision who was not wearing spectacles, who recalled only one face and added a new identifying detail (a black shirt) absent from her police statement, does not inspire confidence and is unsafe to rely on. Material improvements going to the root of the matter erode a witness's credibility. (¶¶ 50, 51, 52, 54, 55, 56, 66)
- The prosecution must show that the accused was kept muffled from arrest onwards; if witnesses could have seen the accused or his photographs before the TIP, its value is seriously diminished. Here the arrest and recovery memos did not record that the appellant was muffled, the witness denied attending any identification proceedings after her discharge, and she signed none of the TIP documents. (¶¶ 59, 60, 61, 62, 63, 64)
- Refusal to join a TIP may prima facie invite an adverse inference, but that inference cannot support the identification when the authenticity of the TIP itself, including the presence of the identifying witness, is in serious doubt. (¶¶ 57, 65)
- Recoveries of allegedly looted articles lose evidentiary value where neither the victim nor the son who identified them in the TIP proved them at trial. Human blood on a recovered garment, without a blood group matching the deceased or the scene, is not enough to fasten guilt. (¶¶ 67, 68)
- With the identification discarded and the recoveries unconnected to the crime or the accused, no substantive evidence linked the appellant to the offence. (¶¶ 56, 69, 70)
Result
Appeal allowed; the High Court judgment and the trial Court's conviction and sentence set aside; the appellant, in custody for about 15 and a half years, acquitted and to be released forthwith unless wanted in another case. General direction issued on confronting witnesses examined by video conferencing with previous written statements.