Summary
The deceased was stabbed once outside a Delhi liquor shop in January 2010, allegedly while two co-accused held him. A-1 and A-3 were convicted under Section 302 read with Section 34 IPC on the testimony of PW-3, the sole eyewitness. The Supreme Court acquitted them. PW-3 was a stock witness who had deposed for the police on at least seven occasions, admitted receiving money; reputation is a fact under Section 3 of the Evidence Act, and his account denied A-1's presence and gave a different motive and mode of escape. The wife and minor brother of the deceased had seen the accused in the police station before identifying them and were contradicted by other witnesses; the knife recovery was doubtful. Section 34 creates only constructive liability and the prosecution must prove common intention beyond doubt; the courts had wrongly placed the onus on the accused.
Issues
- Whether a conviction under Section 302 read with Section 34 IPC can rest on the uncorroborated testimony of a sole eyewitness shown to be a police stock witness who had received money and whose version contradicted the prosecution case.
- Whether an adverse inference from refusal to join a test identification parade can be drawn when the identifying witnesses had already seen the accused in the police station.
- What the prosecution must prove to fasten constructive liability under Section 34 IPC on persons alleged only to have caught hold of the deceased.
Provisions considered
- Section 34, Indian Penal Code, 1860Section 34 does not constitute an offence but creates a constructive liability; the prosecution must prove the occurrence and the common intention beyond reasonable doubt with substantial, concrete, definite and clear evidence, and where part of its evidence is disbelieved the rest must be examined with care (Jasdeep Singh). The foundational facts were not proved against the appellants. (¶¶ 13, 14)
- Section 3, Indian Evidence Act, 1872'Reputation is a fact'; PW-3's standing as a seasoned police witness who had deposed on seven occasions and taken money went to his credibility, and both courts ought not to have relied on him as the sole eyewitness. (¶ 6)
- Section 134, Indian Evidence Act, 1872No particular number of witnesses is required; evidence is weighed, not counted, and testimony falls into wholly reliable, wholly unreliable and partly reliable categories, the last requiring corroboration (Vadivelu Thevar, Rajesh Yadav). Even if PW-3 were partly reliable, conviction without corroboration would be unwise. (¶ 7)
- Section 27, Indian Evidence Act, 1872The recovery of the knife used by A-2 from the premises of A-1, both having been taken to the spot on their statements, with no independent witness to the mahazar, raised serious doubt inuring to the defence. (¶ 12)
Held
- PW-3 was obviously a stock witness: he had deposed for the police at least seven times, admitted receiving money, kept a shop opposite the police station, denied A-1's presence, said the accused fled on foot rather than by car, and attributed the incident to the deceased picking the accused's pocket, all at variance with the prosecution case. Both courts ought not to have relied on him (Tarseem Kumar), and even partial reliance required corroboration that was absent. (¶¶ 6, 7)
- PW-1 (the wife), whose identification of A-1 and A-2 the High Court itself seriously doubted, and PW-4 (the minor brother), who was not an eyewitness, had both seen the accused in the police station before their statements; neither was seen at the hospital by the first investigating officer, PW-5 denied their presence at the scene, and PW-2's unimpeached evidence placed PW-4 with him at home. The first investigating officer initially named a different person as the eyewitness. (¶¶ 3, 4, 5, 8, 9, 11)
- A test identification parade is only part of investigation; where the witnesses had already been exposed to the accused in the police station, no adverse inference could be drawn from the accused declining it. The duty to prove the case beyond reasonable doubt lies on the prosecution, and both courts wrongly fixed the onus on the accused. Having seriously doubted PW-1, the High Court should have extended the benefit of doubt once PW-3 was rejected. (¶ 14)
Result
Appeals allowed; the conviction and life sentence under Section 302 read with Section 34 IPC recorded by the Additional Sessions Judge, Karkardooma, and confirmed by the Delhi High Court set aside, and the appellants directed to be set at liberty.