Summary
Eleven villagers in Assam were convicted under Sections 302 and 323 read with Section 149 IPC for a 1989 murder in which the deceased, chased into a neighbour's house, was struck on the neck with an axe; the Gauhati High Court affirmed and four of them appealed. The Supreme Court acquitted them: the eyewitnesses themselves deposed that five policemen accompanied the accused and watched without intervening, which the prosecution never explained and the trial court never probed; the informant's testimony improved on an FIR whose contents she disowned and whose scribe was not examined; the witnesses contradicted one another on who struck the fatal blow and could not have seen the assault inside the house; the injured witness's injuries were unproved; and no common object of an unlawful assembly was established.
Issues
- Whether the prosecution proved beyond reasonable doubt that the appellants were members of an unlawful assembly whose common object was to murder the deceased, so as to sustain conviction under Section 302 read with Section 149 IPC.
- What is the duty of the trial court when the prosecution evidence itself discloses unexplained circumstances, such as the presence of police with the accused, that cast doubt on the genesis of the case.
Provisions considered
- Sections 141 to 149, Indian Penal Code, 1860Every member of an unlawful assembly must know its common object and the offence likely to be committed in prosecuting it; no witness named all thirteen accused or spoke of any exhortation to kill, and the evidence suggested the group may have come with the police to apprehend the deceased and his brother, so no unlawful assembly with the common object of murder was established. (¶¶ 24, 25, 26)
- Section 173(2), Code of Criminal Procedure, 1973Investigation must be fair and ascertain the truth rather than accept the complainant's version as gospel; where the investigation appears tainted the trial court must seek clarification on the doubtful aspects, failing which its judgment may be vitiated. (¶¶ 13, 14, 15)
Held
- The informant, the injured witness and another eyewitness all deposed that police personnel accompanied the accused and stood outside throughout the incident, yet the prosecution offered no explanation and the trial court brushed the point aside; if police were present they should have apprehended the accused on the spot instead of letting them walk to the police station while assaulting the injured witness. This creates serious doubt about the very genesis of the prosecution story. (¶¶ 13, 14, 15, 29)
- The informant's trial version differed materially from the FIR, which assigned the fatal role to different accused, and she admitted she did not know the FIR's contents and merely signed it; she could not have reached the neighbour's house to see the assault. The injured witness was stopped outside, his injuries were unproved for want of any medical report, and the witnesses were inconsistent on whether one accused or another struck the neck blow. No blood-stained earth was collected, the seized axe was never produced, and the scribe of the FIR was not examined. (¶¶ 16, 17, 18, 19, 20, 27, 28, 30)
- Though the death was homicidal, it is quite possible that the police had come to arrest the deceased and his brother, against whom a case had been registered at the instance of one accused, and that the killing occurred in that process with a false case then set up exploiting the enmity; the prosecution failed to prove its case beyond reasonable doubt and the appellants are entitled to the benefit of doubt. (¶¶ 26, 29, 31)
Result
Appeal allowed; conviction and sentence of the four appellants under Sections 147, 148, 447, 323 and 302 read with 149 IPC set aside; appellants acquitted and directed to be released forthwith if not wanted in any other case; pending applications disposed of.