Investigation Should Not At First Glance Suggest Prejudiced Mindset: Allahabad HC Acquits Man In 1978 Murder Case

The Allahabad High Court acquitted a man in 1978 murder case, saying that the investigation should not at first glance suggest prejudiced mindset and every endeavour should be made to hold the guilty accountable under the law.

The Court was dealing with a criminal appeal preferred by the accused who was convicted by the Trial Court in 1980 under Section 302 read with Section 34 of the Indian Penal Code (IPC).

A Division Bench comprising Justice Siddharth and Justice Vinod Diwakar observed, “It is the responsibility not only of the investigating agency but also of the courts to ensure that the investigation is conducted fairly and does not infringe upon an individual's freedom except as prescribed by the law. Equally integral to criminal law is the principle that the investigating agency bears a significant responsibility to conduct an investigation without bias or unfairness. The investigation should not, at first glance, suggest a prejudiced mindset, and every endeavor should be made to hold the guilty accountable under the law, as no one is above it, irrespective of their societal status or influence.”

The Bench said that the cumulative effect of both oral testimony and documentary evidence is paramount, to assess the sterling quality and admissibility of the evidence presented during the trial.

Advocates Rajiv Lochan Shukla and Pavan Kishore appeared for the appellant/accused while AGA C.L. Singh appeared for the respondent/State.

Facts of the Case -

In 1978, a written complaint was lodged regarding the incident that took place in a village by the father of the deceased with the allegation that he along with his son were sleeping in his Gher, where a lantern was burning on the Jamun tree and at around 2:30 a.m., the accused and another person sealed over the wall and barged into the complainant’s Gher. The complainant’s son was shot dead and on the noise of firing, the complainant woke up and saw the accused along with a third person, who was crossing the wall of the Gher. The accused and co-accused were standing a few paces away from the deceased carrying pistols in their hands.

The motive behind such incident was that the co-accused had illicit relations with a woman who was the cousin of the complainant and his son made an attempt to stop the same. As a result, the accused executed his murder. After registration of FIR, inquest report was prepared and the blood-stained pillow cover and lantern were taken into possession. The post mortem report revealed that the cause of the death was due to the gunshot injuries inflicted on the deceased’s head. Thereafter, the Trial Court convicted the accused and co-accused and sentenced them to undergo life imprisonment under Section 302 read with 34 of IPC. Being aggrieved, they filed an appeal before the High Court and during its pendency, the co-accused died in 2011.

The High Court in view of the above facts noted, “… a co-perpetrator who has done nothing but has stood at the place of incident while the offence was committed may be liable for the offence since in crimes, as in other things, "they also serve who only stand and wait". Thus, common intention or crime sharing may be by an overt or covert act, by active presence or at a distant location, but there should be a measure of jointness in committing the act. … On conjoint reading of Section 34 with Section 33 IPC, it infers that there should be a common intention of all the co-accused persons, which means a community of purpose and shared desire.”

The Court remarked that the common intention does not by itself mean engaging in any discussion or agreement to prepare a plan or hatch a conspiracy for committing the offence and that the same is a psychological fact, and it can be formed a minute before the actual happening of the incident or even during the occurrence of the incident.

“A mere common intention per se may not attract Section 34 I.P.C. unless the accused has done some act in furtherance of the commission of the crime. … No evidence on record could suggest that both the accused have shared a common intention or appellant has done any overt act in furtherance of the commission of the crime and finally the PW-2 could not identify the assailants (reference is invited to para 36). On this ground, the appellant also deserves the benefit of the doubt”, it added.

Furthermore, the Court said that no explanation is forthcoming for the failure of the prosecution to not send the pellets recovered from the deceased and blood-soaked soil to the F.S.L. It observed that the court must weigh the credibility and reliability of both oral and documentary evidence to determine their overall probative value.

“To assess evidence as of sterling quality, the court should consider various factors, including consistency, corroboration, relevancy, and authenticity. Additionally, the court should evaluate the demeanor of the witnesses, the clarity and coherence of the testimony, and veracity of the documentary evidence. … It would have been certainly making the prosecution case at better footing if the Investigating Officer (PW-5) had sent the pellets recovered from the deceased and blood-soaked soil to the Forensic Science Laboratory and had made efforts to recover the weapon of offence, i.e. gun for comparison”, it enunciated.

The Court also noted that the failure of the Investigating Officer in sending the blood-soaked soil pellets recovered from the deceased cannot be utterly proved fatal for prosecution, if the same is fully established from the testimony of the sole eyewitness, whose presence cannot be doubted as he was sleeping beside the deceased on a separate cot but a testimony of the witness by itself does not inspire the confidence of the court, therefore, become a relevant fact to be considered.

“By applying the ratio culled out in Vadivelu Thevar v. State of Madras (supra), we can safely conclude that where the case rests on the testimony of the sole eyewitness, who did not even see the act of firing on the deceased, he woke up after hearing the gunshot and show the accused's were standing two paces away from the deceased staring at the deceased, the same must not be wholly reliable. Additionally, PW-2 has resiled from his statement when contradiction with 161 Cr.P.C. statement”, it said.

Except the evidence of the witness, the Court did not find any other evidence which at least gives some assurance and remarked that it is highly dangerous to convict the appellant on this kind of evidence when there are strong circumstances to show that the testimony of the sole eyewitness needs corroboration, either from ocular testimony or documentary/scientific evidence.

“In this case, there is no way of separating the grain from the chaff since even the overt act attributed to appellant Indra Pal also becomes doubtful in the light of the medical evidence and serious contradiction and embellishment in the testimony of PW-2”, it concluded.

Accordingly, the High Court allowed the appeal and set aside the conviction of the appellant.

Cause Title- Indra Pal v. State (Neutral Citation: 2024:AHC:86074-DB)

Appearance:

Appellant: Advocates Rajiv Lochan Shukla, Pavan Kishore, Shashi Kant Agrawal, and Piyush Kishore Srivastava.

Respondent: AGA C.L. Singh

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