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BECAUSE OF NON PROVING OF THE BALLISTIC EXPERTS REPORT, TESTIMONY OF THE EYEWITNESSES CANNOT BE DISC

RAMJI SINGH & ORS. V THE STATE OF UTTAR PRADESH, CRIMINAL APPEAL NO. 1397 OF 2014 -December 11, 2019

The appeal was brought to the Supreme Court of India before the bench consisting of Honourable Justice Mohan M. Shantanagoudar and Honourable Justice Deepak Gupta

APPELLANTS CONTENTION

It is contended on behalf of the appellants that the Trial Court had rightly come to the conclusion that the medical evidence makes the presence of Babu Ram (PW1) and Nand Kishore (PW2) at the scene of occurrence extremely doubtful and, therefore, it was urged that no reliance should be placed on their statements. It was also urged that there are many contradictions in the statements of these two witnesses which render their version doubtful. Furthermore, these witnesses were related to the deceased and being interested witnesses, no reliance should be placed on their statements. It was also urged that the FIR is ante timed and antedated and this is evident from the delay in delivery of the special report. It was also submitted that material witnesses have not been examined and the ballistic report was not proved by the prosecution. Lastly, it was submitted that the Trial Court had taken a view which was a probable view and this view should not have been disturbed by the High Court.

The Trial Court acquitted all the accused mainly on the following grounds :

(1) Medical evidence did not support the oral testimony of the witnesses and therefore the presence of eye witness was doubtful;

(2) Material witnesses had been withheld by the prosecution;

(3)   Independent   witnesses   had   not   been produced;

(4) Motive was not proved;

(5) Witnesses examined were inimical against the accused and highly interested witnesses; and

(6) That the prosecution had failed to prove the case beyond reasonable doubt.

The State filed an appeal in the High Court.  The High Court set aside the judgment of the Trial Court and held that :

(1) there was no material contradiction between the medical evidence and the statement of the eye witnesses;

(2)that the presence of the eye witnesses on the spot stood proved; (3)that the prosecution had explained why it had not examined one of the witnesses and held that the prosecution had proved beyond reasonable doubt the case against the accused.

RESPONDENTS CONTENTION

On the other hand, Ms. Sansriti Pathak, learned counsel for the State of U.P. urged that the view of the Trial Court was perverse and she pointed out that there is no contradiction between the medical evidence and the ocular evidence. She further submitted that the time of recording of the FIR is correctly recorded and is supported by the evidence on record. Lastly, she submitted that all material witnesses have been examined. According to her, the judgment of the Trial Court was perverse which was rightly set aside by the High Court.

OBSERVATION MADE BY THE COURT  

Having heard learned counsel for the parties and having perused the original record in detail, the Honourable Court posed the main question which arose for consideration was whether reliance should be placed on the statement of the eyewitnesses.

Obviously, if the court was to believe the statement of the eyewitnesses and hold that they are truthful witnesses, then the appeal had to be dismissed. However, if a doubt is cast on the veracity of these two witnesses then the benefit of the doubt has to go to the accused. As far as the statements of these witnesses recorded in the case are concerned, they are almost identical and there are no major contradictions between them. A lot of emphases had been placed by the appellants on the fact that many things stated by PW1 in his examination in court have not been mentioned in the FIR. There was no examination with regard to the contents of the complaint. Even with regard to time this witness clearly states that he reached the spot at about 12.45 PM and wrote the complaint and, thereafter, Babu Ram was sent to the police station. He further stated that the investigating officer reached the place of occurrence at about 3 and 3.45 PM. According to him he remained at the place of occurrence for about 4½ hours and the panchayat nama of the dead body was prepared in his presence and he has signed on the same. This means that the complaint was written immediately after the occurrence. The FIR is based only on this complaint and it does not contain anything more or less than the complaint. If this complaint was scribed by this witness at 12.45 PM and sent along with PW1 to the police station then the contents of the FIR are nothing more than the contents of the complaint and hence cannot be said to be interpolated.

The Court stated that;

Even if we assume that the prosecution has failed to prove that Section 157 Cr.PC was complied with then also the effect thereof has to be assessed. Mere delay in compliance of Section 157 by itself is not fatal to prosecution.  All it does is to raise a doubt that the   prosecution story may have been concocted at a later stage.  

JUDGMENT DELIVERED

Thereby, this Honourable Court, after inferring the facts and circumstances of the case gave its judgment as under,

“When  the report of the ballistic experts have not been proved and all the bullets recovered from the spot have not been sent to the ballistic expert, the guns seized cannot be connected with the offence. Even if that be true, we cannot discredit the testimony of the eyewitnesses that two of the accused used guns. The guns seized may or may not be the guns used. However, when the ocular evidence is direct and clear in this regard, and this ocular evidence is fully supported by the medical evidence, the negligence of the investigation team cannot be used by the defence in support of their case”.

Therefore the Hob’ble Court found no merits in the appeal and is dismissed.

–  Tanvi Srivatsan

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