Supreme Courts acquits convict in 1995 murder case for glaring omissions in evidence of deceased’s parents

Supreme Court: In a criminal appeal against Delhi High Court’s decision, whereby, the accused person’s conviction by the Trial Court for the offence punishable under Section 302 of the Penal Code, 1860 (‘the IPC’) was affirmed, the Division Bench of Abhay S. Oka* and Ujjal Bhuyan, JJ. allowed the appeal upon founding significant improvements and omissions in the evidence of deceased’s parents. The omissions were so relevant that they become contradictions in view of the Explanation to Section 162 of the Code of Criminal Procedure, 1973 (CrPC).

Factual Matrix

The accused was deceased’s neighbour. In 1995, the accused came to the residence of the deceased and called upon him to accompany him. As the deceased did not turn up till the next day, the deceased’s parents searched for him the whole day. Subsequently, a missing report was lodged. Later, it was found that the accused and his father had absconded. The cousin of the deceased (PW 5) told father of the deceased (PW 1) that the dead body of the deceased was lying in a bathroom on the terrace of a particular building. A First Information Report (FIR) was registered for offence punishable under Section 302 of the IPC.

The accused was sentenced to undergo imprisonment for life and pay a fine of Rs.2000/-. In default of payment of the fine of Rs.2000/-, he was sentenced to undergo rigorous imprisonment for one year.

Analysis and Decision

The Court noted that the prosecution’s case was based on circumstantial evidence and the High Court held that the circumstances, forming a part of the chain of circumstances, were proved. The Court said that the evidence of PW-1/ father of the deceased on the last seen together theory could not be believed as he stated that he was sleeping when allegedly the accused took the deceased with him. His statement that PW-3/ mother of the deceased had visited the accused’s house at 1 pm was hearsay evidence as he did not accompany his wife.

Upon noting that in his deposition, he stated that at about 8 pm, he, along with PW-3, visited the house of the accused to enquire about the whereabouts of the deceased, the Court said that this deposition was an omission, as he did not depose that the accused gave evasive answers when he visited his house.

The Court also found several omissions and lacunas in statements of the mother of the deceased. In the cross-examination, she stated that she had told the Police in her statement that the accused pulled the deceased by catching his hand while taking the deceased with him. The Court pointed out that in the examination-in-chief, she came out with a different version which indicated that the deceased voluntarily accompanied the accused. The Court stated that as the statement of PW-3 that she visited the accused’s residence is an omission, her version that the accused gave evasive replies must be treated as an omission.

Further, the Court noted that when she was asked about the reasons for the accused to kill her son, she answered that there was no enmity between the deceased and the accused, but she suspected that the accused had killed her son as he was the one who took him.

Therefore, the Court underscored that the motive for the commission of the offence was absent and that the same was very relevant as the case was based on circumstantial evidence.

In view of the same, the Court held that it was not possible to hold that the theory of last seen together was proved by the prosecution beyond a reasonable doubt. Even the finding of the High Court that the accused gave evasive replies to misguide the parents of the deceased could not be sustained.

“When the prosecution case is based on circumstantial evidence, the circumstances from which the conclusion of guilt is to be drawn should be fully established.”

The Court stated that in the matter at hand, two significant circumstances forming the chain were not established. Conclusively, the conviction and sentence of the accused could not be sustained. Accordingly, the impugned judgments were quashed and set aside, and the accused was acquitted of the offences alleged against him.

The Court also dealt with a practice which is often adopted by the Trial Court. Upon noting that PW-1 and PW-3 were confronted in the cross-examination with their statements recorded under Section 161 of the CrPC. In the depositions, it was mentioned that the attention of the witness was invited to a particular portion of the prior statement and after recording the answer of the witness, the portion of the prior statement used to contradict the witness was reproduced in brackets. The Court stated that the law is well settled- “the portion of the prior statement shown to the witness for contradicting the witness must be proved through the investigating officer. Unless the said portion of the prior statement used for contradiction is duly proved, it cannot be reproduced in the deposition of the witnesses. The correct procedure is that the Trial Judge should mark the portions of the prior statements used for contradicting the witness. The said portions can be put in bracket and marked as AA, BB, etc. The marked portions cannot form a part of the deposition unless the same are proved.”

Buy Code of Criminal Procedure, 1973  HERE

Buy Penal Code, 1860   HERE