18.In view of the voluminous evidence placed on record and the divergent views taken by the Courts below, it has become imperative for us to evaluate the material on record in detail to come to a just conclusion. First and foremost we would like to analyze the oral evidence adduced by the prosecution in support of its case. Oral Evidence: (i) PWs 1 to 3 are sons of the deceased. As rightly observed by the High Court their evidence is consistent about one aspect that is with regard to the injuries sustained by the deceased at the hands of accused, but the evidence on record makes it clear that there are several contradictions in the evidence of the witnesses which creates doubt in the mind of the Court as rightly observed by the Trial Court. (ii) According to PW1 on 27-02-1991 he took milk to the milk collection centre at Parikongalale Village along with PW5 & PW6 at 07:30 a.m. At that time A1, A3, A5, A6 held him and assaulted him with clubs and stones and fisted him. Then he has narrated how A1, A2, A3 and A4 assaulted him. Then the deceased, PW2 & PW3 came to the place of occurrence and asked him why they are assaulting PW1. A5 & A2 with chopper and club again assaulted their father and he fell down and became unconscious. Then PW6 carried his father to the veranda of the school and laid him down. After that again A2, A3, A10 assaulted his brother. At that time police came to the scene of offence at 10 a.m. and shifted the deceased and PW1 to the hospital and then he wrote a complaint and gave it to the police. Police recorded the statement and it is attested by him. (iii) Again at the time of inquest his statement was recorded by the police. Then in the cross examination PW1 has deposed altogether a different version with regard to the injuries inflicted by the accused on him and PWs 2 & 3 and added A5 & A10 for the first time. It is stated by him that his statement was recorded by police at 12 pm and he has not given any complaint in writing. He further states that he has not given the names of accused to the police. He denied the fact that father of A5 gave a complaint to the police against their family at 10 a.m on 27-02-1991 and police seized the gun. Then for the first time he stated the names of the accused who assaulted at the time of inquest.
(iv) A close look at the evidence of PW2 reveals that according to him they reached the scene of offence along with deceased at 9 a.m. A1-7 and A 9-13 were present there by the time they reached the place. His evidence was consistent with regard to injuries inflicted by A2 and A5 but stated that A11 and A12 inflicted injuries on the deceased with stones which is contrary to the medical evidence. He stated that the weapons were recovered from the drain. According to PW1 he left the place at 07:30. As per PW2’s version, PW1 left the place at 06:30 and PW3 gave a different version with regard to reaching the place. According to him they reached the place at 07:30 or 08:00 a.m and very interestingly he deposed that his father fell into the drain and later he was lifted from there and laid him in the school veranda.
(v) Later police reached the place of occurrence at 09:00 a.m. and Police have arrested PWs 2 & 3 and released them at 05:00 p.m. He has specifically stated that police have not seized and sealed the chopper marked as MO 4. According to PW3, when they reached the place of occurrence, only 4-5 persons were there. According to PW2 all accused persons were present and even with regard to injuries also he took a contra stand. As per his version the whole incident has taken place for 15 minutes i.e. between 08:30-08:45 a.m. PW4 was not cited as a witness but was examined as a witness. Whereas PW5 gave altogether a different version. According to him, incident took place at 07:00 a.m. and A6 & A2 were standing near the culvert. He released PW1 from clutches of the accused. According to him, police came at 09:00 a.m. This aspect was also not deposed by PW1. PW6 states that A6 holding PW1’s collar which was also not deposed by PW1. According to him, he has attended the seizure mahazar but the MOs were not shown to him nor, any seal was affixed on them at the time of seizure.
(vi) The next important evidence is that of Doctor i.e. PW10. According to PW10 the weapons were not sent to him for opinion. PW10 in his cross examination has categorically deposed that the injuries 1 & 4 are possible if a person were to fall on the curve stone of a drain. (vii) PWs 13 and 15 are the Head Constables and PW 19 is the Inspector of Police (I.O.). According to PW13, SI has registered the complaint at 11:30 a.m. and 2nd FIR was registered altering the Sections on 06-03-1991. PW15 deposed that ‘galata’ was informed to them at 09:15 am and they reached the scene of offence at 10 a.m. PW1 had not sustained any visible injuries. PW1 took the SI near to the drain. In the cross examination he said that at 08:00 a.m. ‘galata’ took place and he does not know how they came to JUDGMENTknow about the information. When they reached the scene of offence 50-60 persons were present there. SI (PW19) reached the place of occurrence at 10:15 am and enquired PW1 and others. The evidence of PW19 in the chief is that at 08:00 a.m. he came to know about the incident, went to the scene of occurrence along with PWs 15 & 18. Chopper, stones, club were lying near the place. By the time they reached the place at 08:15 a.m., 10 to 15 persons were present. He has not made any enquiry and, he has recorded Ex. PI in police station at 10:30 a.m. on the same day. He returned to the police station at 09:45 a.m. It is specifically stated that he has not arrested PWs 1, 2 & 3 and has not produced sample seal.
19.Having gone through the evidence of the prosecution witnesses and the findings recorded by the High Court we feel that the High Court has failed to understand the fact that the guilt of the accused has to be proved beyond reasonable doubt and this is a classic case where at each and every stage of the trial, there were lapses on the part of investigating agency and the evidence of the witnesses is not trustworthy which can never be a basis for conviction. The basic principle of criminal jurisprudence is that the accused is presumed to be innocent until his guilt is proved beyond reasonable doubt.
20.Generally in the criminal cases, discrepancies in the evidence of witness is bound to happen because there would be considerable gap between the date of incident and the time of deposing evidence before the Court, but if these contradictions create such serious doubt in the mind of the Court about the truthfulness of the witnesses and it appears to the Court that there is clear improvement, then it is not safe to rely on such evidence.
21.In the case on hand, the evidence of eyewitnesses is only consistent on the aspect of injuries inflicted on the deceased but on all other factors there are lot of contradictions which go to the root of the matter.
22.Even with regard to seizure of weapons it was observed by the Trial Court that at one breath it was stated that the MOs were seized from the scene of offence and another version was they were seized in the police station and consistently it was stated that the MOs were not sealed and the Doctor observed that those were not sent to her for opinion.JUDGMENTThen the immediate question which comes to the mind of a prudent person is whether the MOs which are before the Court were the ones seized from the scene of offence. Hence an adverse inference has to be drawn on the prosecution case. The witnesses gave different versions on how the weapons were seized. Some of them indicated that they were in the drain and some other witnesses said that they were lying on the ground at the place of occurrence. The High Court was correct so far as not attributing importance to the injuries inflicted by A 11 and 12 as it did not go to the root of the matter.
23.In the evidence of the prosecution witnesses in respect of exact time when the incident had happened, who were the people present at the scene of offence, the time of police reaching the scene of offence, place of registering the complaint, there were lot of variations. According to PW1 the complaint was recorded at hospital at 12 p.m. whereas the Investigating Officer deposed that he registered the complaint at 10:30 a.m. at the police station. PWs 1-3 say that they were arrested by Investigating Officer but the I.O. gave a contradictory statement that he has not arrested them. PW1 initially gave a statement JUDGMENTbefore the police saying A1, A5, A3, A4 had not assaulted him. Later he gave a contradictory statement which is marked as Exhibit D1.
24.The eyewitnesses have not mentioned the names of accused 7 to 13 in any of the FIR and subsequent addition of their names after 06-03-91 clearly demonstrates that it was an afterthought, only to implicate them.
25.It is to be noted that all the eyewitnesses were relatives and the prosecution failed to adduce reliable evidence of independent witnesses for the incident which took place on a public road in the broad day light. Although there is no absolute rule that the evidence of related witnesses has to be corroborated by the evidence of independent witnesses, it would be trite in law to have independent witnesses when the evidence of related eyewitnesses is found to be incredible and not trustworthy. The minor variations and contradictions in the evidence of eyewitnesses will not tilt the benefit of doubt in favor of the accused but when the contradictions in the evidence of prosecution witnesses proves to be fatal to the prosecution case then those contradictions go to the root of the matter and in such cases accused gets the benefit of doubt.
25.It is the duty of the Court to consider the trustworthiness of evidence on record. As said by Benthem, “witnesses are the eyes and ears of justice”. In the facts on hand, we feel that the evidence of these witnesses is filled with discrepancies, contradictions and improbable versions which draws us to the irresistible conclusion that the evidence of these witnesses cannot be a basis to convict the accused.
26.Latches in Investigation: (i) One of the major lacuna in the case is non-mentioning of the names of A2 & A5 by PW1 to the police at the earliest point of time. The High Court went wrong in observing that this will not amount to latches and it will not go to the root of the matter. These are the glaring defects which will virtually collapse the case of the prosecution. It is no doubt true that the FIR need not be an encyclopedia and also it need not contain all the details but when the names of A2 & A5 were not figured in the FIR it casts a doubt on the whole episode. According to the eyewitnesses, accused had inflicted major injuries and that was the reason for the death of the deceased. It is expected from a prudent man to disclose the names of accused. If the accused cannot be identified or not known to the PWs then it is not a serious thing to dwell upon but these people are very much known to PW1’s family. It therefore creates a serious doubt in the mind of the Court.
(ii) The other glaring defect in the investigation is when A1 has sustained injuries and admittedly a complaint was given by his father, a duty is cast upon the prosecution to explain the injuries. The doctor has also categorically deposed about the injuries sustained by A1. These lapses on the part of Investigating Officer assume greater importance and prove to be fatal to the case of the prosecution. When the Investigating Officer deposed before the Court that the complaint given by A5’s father was investigated and he filed ‘B form’ and the case was closed, not marking the document is fatal to the case of prosecution. Investigating Officer further suppressed the fact that there was a direct evidence to seize the gun used by the deceased and register a complaint against the deceased under the relevant provisions of the Arms Act which is evident from the endorsement made on Exhibit P22.
(iv) The Investigating Officer himself deposed that he had not seen the MOs and as per the punch witnesses also they were not seized. The Doctor (PW10) deposed that those articles were not placed before her and no opinion was sought.
(v) PW2 was also an injured witness. According to the prosecution he was injured on 27-02-1991. But he went to the hospital on 08-03-91 and the reasons for delay were left unexplained.
27.It is settled law that mere latches on the part of Investigating Officer itself cannot be a ground for acquitting the accused. If that is the basis, then every criminal case will depend upon the will and design of the Investigating Officer. The Courts have to independently deal with the case and should arrive at a just conclusion beyond reasonable doubt basing on the evidence on record.
28.Medical Evidence: When we look at the medical evidence, the Doctor (PW10) has categorically stated that the weapons were not sent to her. In the chief examination, it was stated that the injuries 1 & 4 on the body of the deceased are possible with chopper and club. But in the cross examination it was deposed that even if a person falls on a sharp object these injuries could happen. According to PW3, the deceased fell into the drain.
(i) As per the evidence of prosecution witnesses, accused by using the sharp edge of the weapon assaulted on the right side of the forehead but the Doctor’s evidence in this regard is that the deceased has not sustained incised wound on the forehead. PW10 further stated that if a person is assaulted with an object like MO4 it would result in fracture of frontal bone. (ii) The other ground is, when the father of A5 gave a complaint against the deceased’s family as the police filed ‘B form’ the same was closed and not filed before the Court. Apart from that, the direction of the Court to seize the gun of the deceased and file a case under the relevant provisions of the Arms Act was not brought to the notice of the Court. Non explanation of injuries on A5 is another major defect.
29.Once there is a clear contradiction between the medical and the ocular evidence coupled with severe contradictions in the oral evidence, clear latches in investigation, then the benefit of doubt has to go to the accused.
30.Going by the material on record, we disagree with the finding of the High Court that the ocular evidence and the medical evidence are in conformity with the case of prosecution to convict the accused. The High Court has brushed aside the vital defects involved in the prosecution case and in a very unconventional way convicted the accused.
31.The Court should always make an endeavor to find the truth. A criminal offence is not only an offence against an individual but also against the society. There would be failure of justice if innocent man is punished. The Court should be able to perceive both sides i.e. the prosecution as well as the defence and in our considered opinion the judgment of the High Court suffers from several defects as discussed in the preceding paragraphs.
32.Hence we deem it appropriate to set aside the judgment of the High Court and re-affirm the order of acquittal passed by the Trial Court. The accused shall be set at liberty provided they are not required in any other case. Accordingly the appeals are allowed.
NEW DELHI DATED: March 28, 2017