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Synopsis

The Supreme Court has stated that when the prosecution claims a specific individual has committed an offence, it bears the responsibility of proving the accused's identity by adducing evidence.

A bench of Justices Abhay S Oka and Ujjal Bhuyan set aside the conviction of two persons by the Uttarakhand High Court for culpable homicide not amounting to murder, saying it was a case of no evidence against them as their identity as accused was not established.

The appeals were filed by Gopal Singh and Avtar Singh.

A total of five accused were charge-sheeted for the offences punishable under Sections 302 and 323 read with Section 34 of the Indian Penal Code. The appellants were convicted by the sessions court and were sentenced to undergo life imprisonment. The high court brought down the conviction to Section 304 Part II of the IPC by the impugned judgment.

The case of the prosecution was that prosecution witness (PW) number one, the deceased, and the accused were residents of the same village, and there was a prior enmity between them.

On November 21, 1997, at around 10:30 p.m., PW-1 was going to answer nature's call accompanied by the deceased, and when they reached the stand post near the village, stones were thrown at them by the accused, who had sticks and stones in their hands.

All of them assaulted PW-1 and the deceased Gaje Singh. One Raghuvir Singh took PW-1 and the deceased to his house. PW-1 had lost consciousness. On the next day, PW-3 and others tried to take the deceased to the hospital, but he died on the way.

The prosecution's evidence rested on two alleged eyewitnesses, namely, PW-1-Soban Singh and PW-3-Raghuvir Singh.

Having perused the evidence of PW-1, the court pointed out the first paragraph of his examination-in-chief recorded that when his evidence was recorded, the present appellants were not present in the court.

Though PW-1 deposed ascribing a role to all the accused persons in the assault on the deceased and himself, he did not identify the present appellants as the accused in the court as they were not brought to the court, the bench said.

Therefore, the court said, from the evidence of PW-1, the identity of the appellants (appellant no. 2 and 3) as accused was not established. PW-3 is not an eyewitness, and he deposed that after he heard shouts, he ran towards the side from where the shouts were coming, and he saw the accused in the light of the torch that he was carrying.

He stated that he recognised the accused in the light of the torch. Even his examination-in-chief recorded that the present appellants were not present in the court, and therefore, even PW-3 had not identified the present appellants as accused, the court noted.

The bench also noted that four court witnesses were examined.

"We have perused their evidence as well," the bench said.

The first court witness was Balwant Singh (CW-1), who was not an eyewitness. All that he stated was that in the morning of the incident, at around 05:00 a.m., he heard loud voices and the weeping of the villagers and saw marks of injuries on the head of the deceased, and blood was oozing from the injuries.

He further stated what was told to him by PW-3 about the accused assaulting the deceased. This part of the evidence was a piece of hearsay evidence. CW-2-Pyuli Devi, who was the wife of PW-1, was also not an eyewitness, and she again deposed based on what PW-1 told her about the assault by the accused.

"So, this part of her evidence is also a hearsay evidence," the bench said.

As far as CW-3-Fateh Singh was concerned, he did not depose anything about the incident in his examination-in-chief. However, on being questioned by the public prosecutor, he stated that PW-3 brought the deceased to his house at 04-05:00 a.m., where the deceased told him that five persons, namely, Hari Singh, Raje Singh, Kalam Singh, son of Raje Singh and one other boy assaulted him, court noted. 

"Apart from the fact that even according to the witness, the deceased did not specifically name the present appellants, we find that his version regarding the deceased disclosing the names of the accused is an omission, as is evident from the cross-examination made by the defence counsel," the bench said.

Therefore, this is a case where the identity of the present appellants as accused was not established before the court by any of the witnesses, the court held.

"It is axiomatic that when the prosecution alleges that a particular person has committed an offence, it is the duty of the prosecution to establish the identity of the accused as the person who has committed the offence by adducing evidence," the bench said.

In this case, the bench pointed out that the evidence of both PW-1 and PW-3 was recorded in the absence of the appellants.

"They had named the appellants. However, they did not identify the appellants in court as the same persons whom they had seen committing the offence. This is something which is very fundamental which goes to the root of the matter and has been ignored by the Sessions Court and the High Court," the bench said.

The court noted that the trial court initially convicted the accused for an offence punishable under Sections 302 and 323 read with Section 34 of the Indian Penal Code.

The high court, by the impugned judgment, brought down the conviction of the appellants to 304 Part II of the IPC.

"As it is a case of no evidence against the present appellants, the impugned judgments, only as far as the present appellants are concerned, are hereby quashed and set aside. They are acquitted of the offences alleged against them," the bench ordered.

Case Title: Gopal Singh & Anr Vs State of Uttarakhand