Summary
In a 1992 village assault arising from a water dispute, two men were killed. The appellants were convicted with others under Sections 302/149 IPC on a Dehati Nalishi said to record one deceased's statement, and on eyewitness evidence. The Supreme Court acquitted them. Witnesses spoke of three different first reports. The investigating officer recorded the statement of an apparently unconscious victim himself, without a Magistrate or doctor, and the thumb impression sat mid-page with writing over it. The text read like a lawyer's, so it could not be treated as a dying declaration. Eyewitnesses identified the accused for the first time in court years later, with no identification parade. With 50 to 100 people involved, Section 149 called for closer scrutiny and two consistent witnesses per accused.
Issues
- Whether the appellants' convictions under Sections 302/149 and allied provisions IPC could rest on a statement of a deceased recorded by the investigating officer and on eyewitnesses who identified them for the first time in court, given multiple first information reports and a large assembly.
Provisions considered
- Section 149, Indian Penal Code, 1860Vicarious liability requires closer scrutiny where a large crowd is involved, and conviction should be supported by at least two consistent, reliable witnesses identifying each accused (Masalti, Binay Kumar Singh, Arvind Kumar). (¶¶ 35, 36)
- Sections 9 and 32, Indian Evidence Act, 1872A dying declaration recorded by an investigating officer without a Magistrate or doctor in a precarious case is viewed with suspicion (Munnu Raja); a test identification parade, though not substantive evidence, ought to have been held where witnesses did not know the accused (Gireesan Nair). (¶¶ 33, 34)
- Section 154, Code of Criminal Procedure, 1973Suppression of the earliest information and the existence of multiple first reports cast grave doubt on the prosecution (Ratan Singh). (¶ 29)
Held
- The investigating officer gave contradictory and destructive evidence, the witnesses spoke of three different first information reports, and the suppression of earlier statements goes to the root of the case; an investigating officer must investigate fairly and suppression renders an investigation colourable (Arvind Kumar). (¶¶ 19, 20, 29, 30)
- The statement in Ex. P-28 cannot be treated as a dying declaration: the deceased was very likely unconscious, the thumb impression appeared mid-page with writing over and after it, the language reflected a legally trained mind, and no Magistrate or doctor was involved. (¶¶ 31, 32, 33)
- Eyewitnesses who did not know the accused by name identified them in court only years later without a test identification parade, and the injured eyewitness was never examined during investigation, so their evidence is unsafe, particularly under Section 149 where 50 to 100 persons were said to be involved. (¶¶ 9, 11, 12, 13, 34, 35, 37)
Result
Criminal Appeal Nos. 1384-1385 of 2009 and Criminal Appeal No. 700 of 2011 (restored after condoning delay) allowed; the Madhya Pradesh High Court (Gwalior Bench) judgment dated 17.02.2009 and the trial court's judgment set aside, and the appellants given the benefit of doubt, with directions for release if not required in another case.