03 Nov 2020

In the absence of an account beyond reasonable doubt and a reliable Forensic Science Laboratory report, refusal of accused for Test Identification Parade has little importance - Supreme Court of India

Case : Rajesh @ Sarkari & Anr. v. State of Haryana Criminal Appeal No. 1648 of 2019

Court : Supreme Court of India

Bench : Justice Dr. Dhananjaya Y. Chandrachud, Justice Indu Malhotra & Justice Indira Banerjee

Decided on : 03 Nov 2020

Relevant Statutes

Sections 302 and 34 of the Indian Penal Code, 1860

Sections 154, 313 and 162 of the Code of Criminal Procedure, 1973

Brief Facts and Procedural History

1. On December 26, 2006, deceased Sandeep Hooda was allegedly shot dead under the tin shed in the parking near the Law department of Maharishi Dayanand University, Rohtak by 6 men in front of the complainant and PW-4 Azad Singh, the father of the deceased and PW-5 Sunil, his younger brother. The three young men fled towards the Delhi road on a silver coloured Pulsar make a motorcycle.

2. The deceased was taken to PGIMS, Rohtak by DW4Parveen, son of Zile Singh Hooda, and DW5 Sikandar Rathi in a Santro car belonging deceased as per the FIR but both PW4 and PW5 stated in the Sessions Court that they had removed Sandeep in his car to PGIMS, Rohtak. However, he succumbed to the firearm injuries before reaching the hospital. The complainant stated that his son had strained relations with some persons and those persons had killed him.

3. The accused Rajesh alias Sarkari and Ajay Hooda and Pehlad Singh alias Harpal were apprehended and arraigned, to face trial. Rajesh alias Sarkari stated that the victim was implicated with him as a co-accused in another case; that there was no dispute between them. This was corroborated by DW2 and DW3.

4. In 2012, The Court of Sessions found all the three accused guilty u/s 302 read with Section 34 of IPC. Appeal against the same was dismissed by the High Court of Punjab and Haryana.

5. Rajesh alias Sarkari and Ajay Hooda appealed to the Supreme Court.

The Issues of the Case

Whether the appellants are guilty of the murder of the deceased?

Whether PW4 and PW5 were eye-witnesses at the scene of occurrence on 26 December 2006?

How much weight should be ascribed to the third FSL report?

Whether the refusal of the accused-appellants to undergo a test identification parade goes against them?

The Observations of the Court

After considering the arguments of both the parties the Supreme Court observed that:

1. Both PW4 and PW5 have made substantial improvements in the course of their examination in evidence by attempting to bolster the case of the prosecution with regard to their presence at the scene of the crime and by stating that they had removed Sandeep to the hospital after he had been gunned down. But they failed to prove their presence which was confirmed by DW4, DW5, information sent by the Casualty Medical Officer.

2. The prosecution has failed to establish the correctness of the Forensic Science Laboratory (FSL) report. The ballistics examiners have not been examined in the course of the evidence tendered by the prosecution. The discrepancies in the FSL reports could have been explained in the course of the examination by the FSL examiners. The decision in Mohinder Singh v. State, AIR 1953 SC 415 as explained in Gurucharan Singh v. State of Punjab, (1963) 3 SCR 585 lays down the principle that when direct evidence of an unimpeachable character is available and the nature of injuries is consistent with the direct evidence, the examination of a ballistics expert need not be insisted upon as a condition to the prosecution proving its case. On the other hand, where direct evidence is not available or there is doubt in regard to the nature of that evidence, the failure to examine the ballistic examiner would assume significance.

3. In the present case, the weapons of offence (marked as W/1 and W/2) were alleged to have been recovered in the context of the investigation in another FIR. The third FSL report arising out of the investigation in the present case does not deal with weapon W/1 at all. Moreover, the report wrongly attributes weapon W/2 to accused Rajesh alias Sarkari. The prosecution cited a ballistics examiner as a witness and yet, did not lead his evidence. Their non-examination cuts at the root of the case of the prosecution and would entitle the appellants to an acquittal.

4. Since the alleged eyewitnesses PW4 and PW5 at the scene of the occurrence are seriously in doubt the ballistics evidence connecting the empty cartridges and the bullets recovered from the body of the deceased with an alleged weapon of offence is contradictory and suffers from serious infirmities. Hence, in this backdrop, a refusal to undergo a Test Identification Parade assumes secondary importance, if at all, and cannot survive independently in the absence of it being a substantive piece of evidence.

The Decision Held by the Court

The Supreme Court allowed the appeal and held that:

1. The prosecution has failed to establish its case beyond a reasonable doubt. The appellants are, hence, entitled to the benefit of the doubt and are acquitted.

2. Since the appellants have undergone over 12 years of imprisonment, they shall be released and their bail bonds are cancelled unless they are wanted in connection with any other case.

3. Any pending applications stand disposed of.

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