Prosecution to prove the weapon
14. We may observe that save and except for the confessional statement of the accused, the Prosecution is not able to link the weapon with the accused. There was no scientific evidence, or the marks of his fingerprints, other identification marks or any tell-tale signs of the blood found on body of the deceased, linking it to the metal pellets of the bullet fired from the weapon recovered during investigation.
15. This Court has consistently held in a catena of judgements that it is the duty of the prosecution to establish use of the weapon discovered in the commission of the crime. Failure to do so may cause aberration in the course of justice. [Kartarey v. State of U.P., (1976) 1 SCC 172; Ishwar Singh v. State of U.P., (1976) 4 SCC 355; Chaudhari Ramjibhai Narasangbhai v. State of Gujarat, (2004) 1 SCC 184; Amar Singh’s case (Supra)]
7. In the considered view of this Court this case primarily rests solely upon the testimony of PW-3, which is full of blemishes, absolutely uninspiring in confidence and the witness not having deposed the truth.
Sole witness appreciation
8. It is a settled principle of law that doubt cannot replace proof. Suspicion, howsoever great it may be, is no substitute of proof in criminal jurisprudence [Jagga Singh v. State of Punjab, 1994 Supp (3) SCC 463]. Only such evidence is admissible and acceptable as is permissible in accordance with law. In the case of a sole eye witness, the witness has to be reliable, trustworthy, his testimony worthy of credence and the case proven beyond reasonable doubt. Unnatural conduct and unexplained circumstances can be a ground for disbelieving the witness. This Court in the case of Anil Phukan v. State of Assam, (1993) 3 SCC 282 has held that:
“ 3. … So long as the single eyewitness is a wholly reliable witness the courts have no difficulty in basing conviction on his testimony alone. However, where the single eyewitness is not found to be a wholly reliable witness, in the sense that there are some circumstances which may show that he could have an interest in the prosecution, then the courts generally insist upon some independent corroboration of his testimony, in material particulars, before recording conviction. It is only when the courts find that the single eyewitness is a wholly unreliable witness that his testimony is discarded in toto and no amount of corroboration can cure that defect…”
The same principle has been enunciated in: Amar Singh v. State (NCT of Delhi), (2020) 19 SCC 165.
This Court on multiple occasions has held that it is not the quantity but the quality of witnesses and evidence that can either make or break the case of the prosecution. It is the duty of the prosecution to prove that the testimonies of the witnesses that it seeks to rely upon are of sterling quality, i.e. fully trustworthy and absolutely free from any kind of blemish. [Prahlad v. State of M.P. (supra); Amrik Singh v. State of Punjab, (2022) 9 SCC 402; Pramila v. State of U.P., (2021) 12 SCC 550; Krishan Kumar Malik v. State of Haryana, (2011) 7 SCC 130].
Non-Examination of independent witness
11. Examining the testimony of an independent witness, Munna bhai alias Krupal Rajnikant (PW-6), we find him to be the one to have firstly informed the father of the deceased (PW- 1) of his son having sustained injuries and taken to MG Hospital, in such a condition. As per his version, hearing cries of some fight, he rushed to the spot and noticed the deceased lying on the road bleeding profusely. On his asking, one auto rickshaw driver took him to the hospital on the promise of paying the fare. Who is this person? Why he himself did not take the deceased to the hospital? All this remains unexplained. For after all, he knew him and had informed the father of the deceased. Is it that he himself was a suspect? Significantly, the witness admits not to have heard the sound of the gun shot. He contradicts himself by stating that he had informed the police of the incident only on 15.05.2002. He does not identify the auto rickshaw driver and was not familiar with him. Significantly, the auto rickshaw driver has not been examined in the Court.
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19. Unfortunately, none of the courts below have referred to the basic principles of criminal jurisprudence. We may also state that the Courts must refrain from committing such grave errors in the future, whereby innocent people are made to suffer incarceration for over a period of nearly two decades, without proper appreciation of evidence.
PARTY: NARENDRASINH KESHUBHAI ZAL vs. STATE OF GUJARAT – CRIMINAL APPEAL NO. 1179 OF 2012 – 16th March, 2023.
