Brief Facts
- The Case pertains to murder of deceased in broad daylight. The trial court convicted all eight accused persons on the basis of unrefuted testimony of PW-1 eyewitness which was supported by unrefuted part of testimony of hostile witness PW-7. Most of the other prosecution witnesses had turned hostile. High Court concurred with the finding of the Trial Court and also concluded that there was a prior animosity between the parties in relation to land dispute.
Issues
- Whether on the basis of testimony of a solitary witness, eight men can be allowed to suffer incarceration for life?
- Whether the credible testimony of a single eyewitness is sufficient to prove case beyond reasonable doubt?
- Whether the mere presence of accused in the unlawful assembly may fasten vicariously criminal liability under Section 149 IPC?
- Whether Corroborated part of the evidence of a hostile witness regarding the commission of offence is admissible?
- Whether mere delay in sending the FIR to the Magistrate would have a negative effect on the case of the prosecution?
- Can Last seen theory serve as basis for conviction?
Held
- Supreme Court dismissed the appeal and upheld the conviction.
Reliability of Solitary eye witness. - That it is the quality and not the quantity of the witnesses that matters and since, PW-1 is an interested witness being the brother of the deceased, and that his statement is not “inherently believable” or of “sterling quality” as recently held by this Court, in the presence of two possible versions, the one that favours the accused is required to be taken., If the testimony of a single witness is absolutely reliable, then a conviction based on that testimony cannot be considered flawed in any way.
- A witness being a close relative is not a ground enough to reject his testimony. Mechanical rejection of an even “partisan” or “interested” witness may lead to failure of justice. The principle of “falsus in uno, falsus in omnibus” is not one of general application. Sadhu Ram v. State of Rajasthan, and Bhagwan Jagannath Markad v. State of Maharashtra (2016) 10 SCC 537
- PW-1 is an interested witness, being the brother of the deceased; as also he being the solitary witness upon which reliance is placed by the learned Trial Court is put forward as a ground before us to question the verdicts. The position of law as held in Harbans Kaur Vs. State of Haryana [(2005) 9 SCC 195 is clear in stating that there is no proposition of law which doubts the statement of a close relative simply for that reason.
Delay in sending FIR to a Magistrate, not fatal. - Unless serious prejudice is caused, mere delay in sending the FIR to the Magistrate would not, by itself, have a negative effect on the case of the prosecution.. One external checks against antedating or ante-timing an FIR is the time of its dispatch to the Magistrate or its receipt by the Magistrate. A dispatch of a copy of the FIR forthwith ensures that there is no manipulation or interpolation in the FIR Meharaj Singh v. State of U.P., (1994) 5 SCC 188 and Ombir Singh vs State of U.P. (2020) 6 SCC 378.
- In regard to the delay in the FIR reaching the Magistrate, it is the settled position of law that each and every delay caused is not fatal to a case in the absence of demonstrated prejudice [Bhajan Singh @ Harbhajan Singh Vs. State of Haryana (2011) 7 SCC 421]. In Chotkau vs State of UP (2022) SCC Online 1313 it has been held that a Court is “duty bound to see the effect of such delay on investigation and even the credit worthiness of the investigation.” In the present case, though, while there is reliance at the Bar on this principle no submission has been made to show prejudice having been caused to the accused. Statements sans adequate backing cannot sway the Court. Even the delay in the receipt of the FIR with the concerned Magistrate cannot be a reason to disbelieve the prosecution case.
Not need for specific recovery from each accused and concept of Vicarious Liability. - The Apex Court held that the prosecution need not to prove specific acts of specific member referred [Hari v. State of U.P., (2021) ] stated Section 149 of the Penal Code, 1860 is declaratory of the vicarious liability of the members of an unlawful assembly for acts done in prosecution of the common object of that assembly or for such offences as the members of the unlawful assembly knew would be committed in prosecution of that object, hence it was observed that “with neither the number nor the presence of the accused being disputed, we cannot, within law, hold that the accused have been wrongly convicted by the courts below”.
- We have also noticed the holding in the landmark Masalti v. State of UP AIR 1965 SC 202], where four learned judges have held that the prosecution need not prove specific acts to specific persons. With neither the number nor the presence of the accused being disputed, we cannot, within law, hold that the accused have been wrongly convicted by the courts below.
Reliability of Unrefuted part of testimony of hostile witness - The Court held that the corroborated portions of a hostile witness’s testimony regarding the commission of an offense are admissible. A deviation from the statement in the FIR does not automatically render the witness’s testimony completely unreliable. The evidence of a hostile witness can be used as the basis for a conviction. The general principle of appreciating the evidence of eye-witnesses is that when a case involves a large number of offenders, prudently, it is necessary, but not always, for the Court to seek corroboration from at least two more witnesses as a measure of caution. Be that as it may, the principle is quality over quantity of witnesses. (Mrinal Das v. State of Tripura, 2011 9 SCC 479).
Last Seen Theory
- Last seen theory is considered to be a weak basis for conviction. However, when the same is coupled with other factors such as when the deceased was last seen with the accused, proximity of time to the recovery of the body of deceased etc. The accused is bound to give an explanation under Section 106 of the Evidence Act, 1872. If he does not do so, or furnishes what may be termed as wrong explanation or if a motive is established – pleading securely to the conviction of the accused closing out the possibility of any other hypothesis, then a conviction can be based thereon. Satpal Singh Vs. State of Haryana (2018) 6 SCC 610; and Ram Gopal Vs. State of M.P. (2023) SCC OnLine 158.
Relevant Para No.
- 16, 17.1, 17.3, 17.4, 17.7, 17.8, 17.9,, 20,,25