Case Note & Summary
The High Court of Judicature at Bombay heard three criminal appeals against the judgment and order dated 2.2.2019 passed by the Additional Sessions Judge-10, Nashik in Sessions Case No.273/2015. The appellants, original accused Nos. 1 to 3, were convicted for the offence punishable under Section 302 read with 34 of the Indian Penal Code and sentenced to imprisonment for life and fine of Rs.5,000 each with default simple imprisonment for one month. The fourth accused, Juned Tarabak Choudhari, was acquitted of charges under Sections 201 and 109 read with 34 IPC. The prosecution case was that on 31.5.2015 at about 9.30 p.m., the deceased Shailesh and the first informant Sajan Thakare, who were cousins and fish sellers, purchased liquor at Kit-kat Corner and later near Sagar Rasvanti where a minor altercation occurred with accused No.1 Santosh. Accused No.1 left and returned with the other two accused; allegations were that Shailesh was assaulted with sharp weapons and a pistol was shown. The accused fled on a two-wheeler. Shailesh was taken to hospital but succumbed to injuries. FIR C.R. No.185/2015 was lodged at Bhadrakali police station, Nashik Road. Investigation led to arrest of the appellants on 5.6.2015; a chopper was recovered at the instance of accused No.1 from a distant place; a pistol was also recovered. PW-8 Govind Sutar allegedly saw the accused leaving the spot. Test identification parade was conducted on 29.6.2015, and both PW-1 and PW-8 identified the accused. Postmortem revealed a deep stab wound piercing the heart. The trial court relied on the evidence of PW-1 and PW-8, medical evidence, and recovery of weapon, and convicted the appellants. In appeal, the appellants challenged the reliability of the sole eyewitness PW-1, pointing to material omissions in his statement under Section 164 CrPC, such as not mentioning names of accused, specific roles, dragging of deceased, and assault details. PW-1 admitted he had seen accused No.1 in court during police custody remand and that police showed him the arrested accused at the police station prior to the test identification parade. The prosecution did not examine the Magistrate who recorded the Section 164 statement. The High Court examined these contentions and the effect of omissions and prior exposure on the evidentiary value of identification. The text provided ends during the cross-examination of PW-1, and the final decision and reasoning of the High Court are not contained in the provided excerpt.
Headnote
A) Criminal Trial - Eyewitness Testimony - Reliability of Sole Eyewitness - Indian Penal Code, 1860, Section 302 read with Section 34 - The trial court relied on PW-1's testimony to convict the accused for murder; however, the appellate court noted material omissions in PW-1's Section 164 CrPC statement regarding specific roles of accused, dragging of deceased, and assault details; the prosecution did not examine the Magistrate who recorded the statement; these omissions were considered significant for evaluating credibility (Paras 7-9). B) Criminal Procedure - Test Identification Parade - Evidentiary Value When Witness Had Prior Exposure to Accused - Code of Criminal Procedure, 1973, Section 164 - PW-1 admitted that he was present at the police station when accused were arrested and shown to him; later he was called for test identification parade; such prior exposure undermined the evidentiary value of the TIP; the court noted that identification in such circumstances was weakened (Paras 8-10). C) Criminal Trial - Common Intention - Section 34 IPC - Applicability - Indian Penal Code, 1860, Section 34 - The accused were charged with murder with common intention; the prosecution alleged all three assaulted deceased with weapons; the court examined individual roles attributed by PW-1, which were not consistently mentioned in earlier statements; the reliability of common intention evidence was at issue (Paras 7, 9-10). D) Criminal Evidence - Omissions in Statements - Effect on Credibility - Code of Criminal Procedure, 1973, Section 164 - Omissions in statement recorded under Section 164 CrPC must be considered when the witness's court testimony contains additional incriminating details; the court observed that failure to examine the Magistrate who recorded the statement required giving weight to such omissions (Para 9).
Issue of Consideration
Whether the testimony of sole eyewitness PW-1 is reliable despite material omissions in his Section 164 CrPC statement and prior exposure to accused before test identification parade; whether conviction under Section 302/34 IPC is sustainable.
Final Decision
Not mentioned in provided text.
Law Points
- Reliability of sole eyewitness
- omissions under Section 164 CrPC
- prior exposure of accused to witness
- evidentiary value of test identification parade
- common intention under Section 34 IPC
