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Penal Code, 1860: ss. 395, 302 read with 34, ss. 376 (2)(g),307 read with s. 34, ss. 396, 397 and 398 – Dacoity with murder and rape – Prosecution case that commission of murder of five persons, robbery as well as rape of one lady – Deposition of two eye-witnesses PW1 and PW8, and identification of the accused either in the TI parade and/or before the court – On the basis thereof,conviction of accused nos. 1 to 6 for the offences punishable u/ ss.395, 302 read with 34, ss. 376 (2)(g), 307 read with s. 34, ss. 396,397 and 398 – Over and above the other sentences, all accused awarded death sentence – High Court, while upholding the conviction and death sentence of original accused nos. 1, 2 & 4,altered the death sentence in respect of original accused nos. 3, 5& 6 to life imprisonment as also acquitted them for offence u/s. 376(2)(g) – On appeal, held: Murder and rape is indeed a reprehensive act and every perpetrator should be punished expeditiously, severely and strictly – However, this is only possible when guilt has been proved beyond reasonable doubt – On facts,other than the evidence of PW1 and PW8, no other evidence either scientific and/or other, corroborating the prosecution case, to link the accused to the offence – PW1 and PW8 not able to give any particulars/description of the accused to the I.O. and/or to the magistrate who conducted the TI parade nor able to ascribe any roles to the culprit – There are major omissions/contradictions/improvements which are fatal to the prosecution case, thus, creates reasonable doubt on the trustworthiness and the reliability of PW8– Identification of the accused by PW1 in the TI parade also creates a serious doubt – Thus, not safe to convict the accused solely on the basis of their identification by PW1 and PW8 in the TI parade and/or before the Court – Also no explanation as regards the delay in conducting the TI parade and doubt as to sufficient light at the time of incident – Furthermore, there was no fair investigation by the investigating agency/prosecution – Prosecution suppressed the material fact from the court – In view thereof, accused acquitted for the aforesaid offences – Test Identification Parade.Investigation: Significance of – Held: Impartial and truthful investigation is imperative – Fair trial includes fair investigation as envisaged by Arts. 20 and 21 – Aim of investigation is ultimately to search for truth and to bring the offender to book – It is the duty ofthe prosecution to ensure fairness in the proceedings and to ensure that all relevant facts and circumstances are brought to the notice of the court – Investigation should be judicious, fair, transparent and expeditious to ensure compliance with the basic rule of law –On facts, the investigating officer, the magistrate and even the injured eye-witness deliberately and willfully suppressed from the court the material fact of the statement of the eyewitness recorded immediately after the incident, by the special executive magistrate in which she specifically identified four persons who have committed the offence from the album of the photographs of the notorious criminals – Said magistrate conducted the TI parade subsequently– None of the accused in the instant case are out of those four persons identified by the eyewitness – Nothing is on record whether those four persons were arrested or not or any further investigation was carried out – Thus, there was a serious lapse on the part of the investigating agency – Constitution of India – Arts. 20 and 21.Code of Criminal Procedure, 1973: s. 178(3) – Further investigation by police officer – On facts, there was no investigation at all with respect to those four persons who were identified by the injured eye witness immediately after the incident and these four persons were other that the six persons tried and convicted – As a result, real culprits went scot free – Thus, there was no fair investigation and fair trial, resulting in infringement of the fundamental rights of the accused guaranteed u/Arts. 20 and 21 –Such conduct on the part of the investigating agency and the prosecution is strongly deprecated – Prosecution to conduct investigation u/s. 173(8) qua four persons identified by the injured eye witness. Constitution of India: Art. 142 – Compensation – Award of –No fair investigation and fair trial, qua the four persons identified by injured eye witness, immediately after the incident – Other six persons who came to be tried, convicted and sentenced death penalty for offence of murder and rape, remained under constant stress and in perpetual fear of death – In view of the lapses, all the six persons are acquitted – In exercise of powers u/Art. 142, the State of Maharashtra to pay compensation of Rs. 5 lakh to each of the accused. |
