Summary
The Supreme Court acquitted two appellants convicted of abduction and murder. The sole eyewitness's account was riddled with material omissions amounting to contradictions, her husband, also an eyewitness, was withheld, and the CCTV CD was inadmissible without a Section 65B certificate. Recoveries alone could not sustain conviction. The Court also criticised recording inadmissible custodial confessions in the investigating officer's deposition, and said the brutality of an offence does not lower the standard of proof.
Issues
- Whether the testimony of the sole examined eyewitness (PW-26) could be relied upon given material omissions from her police statement and the absence of a test identification parade.
- Whether CCTV footage on a CD was admissible without a certificate under Section 65B of the Evidence Act and without proof of its contents.
- Whether the conviction could rest only on recoveries made at the instance of the accused once the other links in the chain of circumstances failed.
- Whether the trial court erred in allowing the investigating officer to prove confessional statements made by the accused in police custody.
Provisions considered
- Section 162, Explanation, Code of Criminal Procedure, 1973PW-26 admitted that the crucial facts of the abduction she narrated in court were absent from her police statement; since these omissions were significant and related to the core of the prosecution case, they amounted to contradictions under the Explanation and her evidence was kept out of consideration. (¶ 7)
- Section 65B, Indian Evidence Act, 1872No certificate under Section 65B was produced for the CD of CCTV footage, and neither the bank manager nor the engineer who prepared it had seen the footage or marked the CD; the CD was held inadmissible and excluded. (¶¶ 3, 10)
- Sections 25 and 26, Indian Evidence Act, 1872These sections bar even proving a confession made to a police officer or made while in police custody (unless in the immediate presence of a Magistrate). The trial court lost sight of them in letting PW-27 depose to the appellants' custodial admissions of the crime, motive and conspiracy. (¶¶ 14, 15, 16)
- Section 27, Indian Evidence Act, 1872Read as an exception to Sections 25 and 26 admitting only so much of the accused's information as relates distinctly to the fact discovered, following Pulukuri Kotayya and K. Chinnaswamy Reddy; the inadmissible parts of the disclosure statements should not have been incorporated in the deposition. (¶¶ 3, 15, 16)
- Sections 364, 302, 201 and 120-B, Indian Penal Code, 1860The appellants' concurrent convictions under these sections were set aside as their guilt was not proved beyond reasonable doubt by legally admissible evidence. (¶¶ 1, 18)
Held
- Where an eyewitness's police statement omits the material facts of the occurrence she later narrates in court, the omissions, being significant and relating to the most crucial part of the prosecution case, amount to contradictions under the Explanation to Section 162 CrPC. Her dock identification without a prior test identification parade, of accused she did not claim to know and to whom she ascribed no specific roles, was very doubtful; her evidence was excluded. (¶¶ 6, 7)
- The prosecution's failure to examine the eyewitness's husband, also said to be an eyewitness, who accompanied her to the police station and was present in court, warranted an adverse inference against the prosecution for withholding evidence. (¶ 8)
- A CD of CCTV footage is inadmissible without a Section 65B certificate, particularly where the witnesses who prepared and produced it had not seen the footage, placed no marking on the CD and conceded it could be edited. Even assuming admissibility, the trial court and High Court relied on the footage without viewing it. (¶¶ 9, 10, 11)
- Applying Sharad Birdhichand Sarda, every circumstance in the chain must be fully established; if one link such as the CCTV footage is not proved, the prosecution case cannot be held established. The torso was found on police information, not at the instance of the accused, and recovery of the car, weapon and the deceased's articles alone could not sustain the conviction. (¶¶ 12, 13)
- Sections 25 and 26 of the Evidence Act completely prohibit proving confessions made to the police or in police custody. Section 27 admits only the part of the accused's statement that distinctly relates to the fact discovered. Trial judges must not allow inadmissible confessional portions to be recorded in a police witness's deposition, since they may influence the court. (¶¶ 15, 16)
- The brutality of an offence does not dispense with proof beyond reasonable doubt on legally admissible evidence; there can be no moral conviction. (¶ 17)
Result
Appeal allowed; the trial court's judgments and the High Court's judgment set aside qua the appellants, who were acquitted and directed to be released forthwith unless required in another case; the earlier acquittal of the co-accused left undisturbed.