THE Bombay High Court, on Wednesday, acquitted a man who had spent nine years in jail in a murder case after he was sentenced to life imprisonment by a Sessions Court.
The main reason that prompted a Bench of Justices S.S. Shinde and Sarang V. Kotwal to acquit the man was that the extra-judicial confession of a co-accused cannot be the sole basis for conviction, in the absence of other material. The bench observed:
“In the present case there is no sufficient material against accused No.2 to reach independent conclusion that he had committed murder and, therefore, the confession of the co-accused cannot be pressed into service to form basis of his conviction. Thus, we find that the evidence against accused No.2 is not sufficient to base conviction against him and he deserves to be given benefit of doubt.”
Accused no. 1 and 2 (the appellants) were convicted by an Additional Sessions Judge for offences punishable under Sections 302 (murder) and 324 (voluntarily causing hurt by dangerous weapons) along with Section 34 (common intention) of the Indian Penal Code [IPC] in January last year.
The allegation against the accused duo was that they had first murdered a man working at a restaurant after the victim refused to serve them liquor.
They had then allegedly assaulted an employee at another restaurant just 100 metres away under similar circumstances as well.
The Additional Sessions Judge convicted both. Following this, the appellant moved the Bombay High Court challenging the order.
On behalf of the appellants, it was submitted that there are several discrepancies in the evidence of prosecution witnesses and this, therefore, showed that they were fabricating stories.
According to the prosecution’s case, the accused had assaulted the deceased and a witness after they were refused service of liquor by them. But this was not proven by them as the establishments where the victims worked, did not serve liquor. Therefore, the motive for the murder was not proven by the opposite side.
The court was also told that accused no. 2 had not been arrested along with accused no. 1 although he was present. He also argued that since the assaulted witness had bled, and his blood group had not been ascertained, it could not be said with certainty that the blood on clothes recovered from the appellant was that of the deceased.
The appellant essentially built his argument to say that conviction of the appellant cannot be based solely on account of the extra-judicial confession of the co-accused. Reliance was also placed on the Supreme Court judgement in Pancho vs. State of Haryana (2011).
Along with this, the court was told that no independent witnesses had been examined in the case.
On these grounds, the appellant prayed for the high court to free him of all charges.
These submissions were vehemently opposed by the Additional Public Prosecutor G.P. Mulekar, appearing for the state government.
Opining that there was sufficient evidence against both the accused, she told the high court that the First Information Report was lodged in a timely manner and panchnamas too, were carried out one after the other, leaving no scope for delay.
Under these circumstances, there was no scope for concocting a false story to implicate the accused.
She also submitted that for some time, the appellant was not present at the spot after the witnesses had arrived. So, the possibility that he could have gone home and concealed the murder weapon cannot be completely ruled out.
Appreciating the rival facts, the high court firstly looked into the evidence against the appellant, that is, accused no. 2.
The Court noted that the prosecution’s case does not provide a vital link between the time when accused no. 2 had accompanied accused No. 1, and the time when he was actually arrested.
He was arrested on the morning of July 5, 2013. The recovery of the murder weapon was made from his house on the evening the next day. So, the whereabouts of accused no. 2 during this time is not clearly established. “In any case, the conviction against him cannot be based only on the circumstance of this doubtful recovery.”
Coming to the next piece of evidence against the accused no. 2, the court noted that there was the recovery of blood-stained clothes of “B-Group”.
Siding with the appellants’ argument, the court pointed out that the blood group of one of the prosecution witnesses was not determined, as was not the blood group of both the accused . Therefore, that circumstance cannot be held against either of the accused, the court said.
This apart, the court further noted that the confession of co-accused cannot be the only basis of conviction of accused no. 2.
Regarding the evidence against accused no. 1, the strongest circumstance against him is the extra-judicial confession, the court noted.
“The law on this subject is well settled… The Hon’ble Supreme Court in the case of Velayuda Pulavar Vs. State by Sub-Inspector of Police has held in paragraph-10 that it is well settled that the conviction can be recorded solely on the basis of the extra-judicial confession if it is found to be credible and worthy of acceptance.”
Also, the extrajudicial confession finds corroboration from the fact that the accused no. 1 himself had led the witnesses to the shed where the deceased was kept, the court added.
However, the court then proceeded to modify the conviction of accused no. 1 under sections 302 and 324 read with section 34 of IPC to conviction under Sections 304, Part I (culpable homicide not amounting to murder) and 324 of the IPC.
Also, the accused no.1 is entitled to get set off for the period spent as an under-trial prisoner as per Section 428 of the Code of Criminal Procedure, the court said, while concluding the order.