Summary
A death sentence for the murder of the appellant's wife, sister-in-law and two children was set aside and the appellant acquitted: the two purported eyewitnesses contradicted each other and themselves on material particulars (the complainant's presence, whether the mother was at home or at the Gurudwara, the weapon, the accompanying persons), the injured child admitted he was asleep and saw nothing, the recoveries made two months later were unsupported by independent witnesses or forensic linkage, and Section 106 of the Evidence Act could not be used to fill the gap when the prosecution had not first placed the accused at the scene.
Issues
- Whether the testimonies of the complainant (PW1) and the alleged eyewitness (PW2) were reliable enough to sustain a conviction for murder.
- Whether the contradictions in the prosecution witnesses' accounts were minor or material.
- Whether the injured child witness's evidence incriminated the appellant.
- Whether the recoveries of a gandasi, blood-stained clothes and a bicycle on the appellant's disclosure two months after the incident, without independent witnesses or forensic linkage, could connect him to the crime.
- Whether Section 106 of the Evidence Act could be invoked to draw an adverse inference from the appellant's failure to explain injuries he sustained on the day of the incident.
Provisions considered
- Section 106, Indian Evidence Act, 1872The burden of proving a fact especially within a person's knowledge lies on him. The High Court used it to presume that the appellant's unexplained arm injury was received during the assault. The Court held that where the prosecution had not established the accused's presence at the scene by direct, circumstantial, oral or forensic evidence, and no witness spoke of him being injured there, there were no foundational facts to shift the burden and the provision could not be applied against him. (¶¶ 17, 39, 40)
- Section 27, Indian Evidence Act, 1872The recoveries on the appellant's disclosure statement were not wholly discarded for want of an independent witness, but became highly questionable given the two-month delay and the absence of any forensic linkage of the articles to the deceased or the offence. (¶¶ 36, 37)
- Section 293, Code of Criminal Procedure, 1973The Trial Court had taken judicial notice of the chemical examiner's report under this provision though it was never exhibited; the Court noted the report was not formally exhibited and in any event only showed the blood to be of human origin, which could not link the articles to the deceased. (¶¶ 9, 37)
- Sections 302, 308 and 325, Indian Penal Code, 1860Offences of which the appellant was convicted and, under Section 302, sentenced to death on four counts; the convictions were set aside as the guilt was not proved beyond reasonable doubt. (¶¶ 2, 10, 11, 43, 44)
Held
- Only omissions amounting to contradictions in material particulars discredit a witness; minor discrepancies do not make the prosecution case doubtful, but material discrepancies are those not normal or expected of a normal person, and where witnesses show significant contradictions between their initial statements and trial depositions they cannot be relied on unless independently corroborated. Here the differing versions given by the two key witnesses on the complainant's presence, the mother's presence, the weapon and the accompanying persons were major contradictions carving a gaping hole in the prosecution story, and could not be brushed aside as minor. (¶¶ 26, 29, 30, 31, 32)
- PW1's presence at the scene was highly unlikely: he lived at a cycle shop ten kilometres away, PW2 gave inconsistent accounts of how he arrived, and he changed the weapon from a 'datar' in the FIR to a 'gandasi' after the recovery and gave three versions about accompanying persons; he was a sham witness introduced by the prosecution. (¶ 26)
- PW2's claim to be an eyewitness had to be ruled out: the FIR and PW1's examination-in-chief placed her at the Gurudwara at the time, PW1 said she was at home only in cross-examination, and her own account varied between seeing the assault and running out of the bathroom straight away, losing consciousness behind bushes for half an hour, and her son arriving before or after her; how she escaped unnoticed by the accused was also unexplained. (¶¶ 26, 28)
- The non-examination of the complainant's wife, who was said to accompany him, and of any neighbour despite an alleged hue and cry in a close-knit village, were unaddressed gaps in the prosecution case. (¶ 27)
- The injured child witness, though competent and undoubtedly present, admitted in cross-examination that he was asleep or half-asleep and did not see the appellant inflict the injuries; his evidence, even if wholly reliable, was not incriminating. (¶¶ 33, 34)
- Recoveries of a gandasi, blood-stained clothes and a bicycle on a disclosure made two months after the incident, unsupported by independent witnesses, with a chemical report that was never exhibited and showed only human blood, and with the weapon later misplaced and never forensically analysed, were highly questionable and could not link the appellant to the crime; the investigation was deplorable. (¶¶ 36, 37)
- Motive, however established, cannot by itself frame an accused for murder when nothing links him to the scene, and the mere absence of an alternative explanation for a gruesome crime is not evidence sufficient to send a man to the gallows. (¶ 38)
- Section 106 of the Evidence Act cannot be applied to the accused's detriment in the absence of foundational facts; where the prosecution has not established his presence at the scene and no witness stated that he was injured there, no burden shifts to him to explain his injuries and no adverse inference arises. (¶¶ 39, 40)
- To convict on ocular evidence the testimonies must be completely credible and trustworthy; given major contradictions in the key witnesses and glaring investigative defects, the charge was not proved beyond reasonable doubt and the appellant could not be held guilty. (¶¶ 41, 42, 43)
Result
Appeals allowed; High Court judgment dated 04.03.2024 and Trial Court judgment dated 29.02.2020 quashed; appellant acquitted of all offences and, having undergone more than eleven years' incarceration, ordered to be released forthwith unless required in another case.