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Synopsis

The Supreme Court has acquitted six men of the offence of murder committed 29-year-ago after noting that the mother of the deceased had turned hostile and the high court and the trial court should have discarded her version after recall, as she was compelled to depose in a particular manner by the police.

A bench of Justices Abhay S Oka and Ujjal Bhuyan set aside the conviction and sentence of life term imposed upon the accused persons by the trial court on December 6, 2007 and the high court on August 26, 2022.

In the appeal against conviction and sentence, the Supreme Court concluded that the testimony given by the deceased's mother during her recall, wherein she claimed to have been threatened by the accused, lacked credibility.

The court reasoned that it was more likely that she was compelled by the Police to depose in a particular manner during the recall.

"The Trial Court and the High Court should have discarded her evidence recorded after the recall. In fact, the Trial Court should have seriously taken note of the threat administered by the Police to her and directed the Police Officials to look into the role played by the Policemen who were associated with the case," the top court said.

The incident took place on October 5, 1995. Nanhi Bahu, mother of the deceased - Pappu alias Har Narayan alleged that the accused persons killed her son. It was alleged the accused were carrying different weapons, and they assaulted her son.

In the case, none of the material prosecution witnesses except Santosh, the deceased's brother, supported the prosecution. The rest of the alleged eyewitnesses were declared hostile. The mother of the deceased was also declared hostile as she did not support the prosecution. However, after her recall, she supported the prosecution.

The counsel for the accused-appellants contended that the evidence of the mother of the deceased had to be disbelieved as she was compelled to depose in a particular manner after recall. With regard to the brother of the deceased, the counsel said that he did not see the incident himself.

On the other hand, the state counsel argued that the court should not discard the testimony of the mother as, ultimately, it was the testimony of a woman who had lost her son as a result of a brutal murder. He said that the mother was a rustic woman who had lost her son and when her evidence was earlier recorded, she was under a threat by the accused. He submitted that after she was recalled, she told the truth. 

After hearing the counsel, the bench noted that the mother when she stepped into the witness box on May 2, 1997, she admitted in cross examination that she did not report the incident as she was unconscious and it was written by one Ramprakash Tiwari at Kotwali which bore her thumb impression.

Surprisingly, the prosecution has not examined Tiwari as a witness, the bench said.

The Apex Court also noted curious events that Malti Bai, the widow of the deceased, applied on September 11, 1998 to the trial court stating that she was an eye-witness, but the prosecution had not included her name in the list of witnesses, therefore, she might be examined as a witness. 

Court noted, "The prosecution did not take any steps to examine Malti Bai the widow of the deceased, who was claiming to be an eyewitness. Even the trial court did not direct the police to record her statement and to examine her before the Court. The prosecution offered no explanation for not examining Malti Bai as a witness. Therefore, the only conclusion that can be drawn is that the prosecution withheld the evidence of a material witness from the court, which may be a ground for drawing an adverse inference against the prosecution."

It also found that nearly two years after her initial deposition, the deceased's mother made an application to the court stating that her statement given to the Police was true but explained that she didn't support the prosecution due to threats from the accused.

However, court held it difficult to accept the claim of threats, especially given the accused's incarceration for one and a half years. Despite her application, no police investigation was conducted into the alleged threats, court noted.

It also found the deceased's brother's testimony unreliable due to numerous omissions and contradictions.

The division bench, therefore, allowed the appeals, holding that the prosecution had not proved the guilt of the accused. One appellant was on bail in the matter. The other five, who were in jail, were ordered to be released by the court.