RAJESH @ SARKARI & ANR versus STATE OF HARYANA

Citation: [2020] 14 S.C.R. 1 · Decided: 03-11-2020 · Supreme Court of India · Bench: D.Y. CHANDRACHUD · Disposal: Appeal(s) allowed

Cited by 2 judgment(s) · cites 8 · see the full citation network in Lexace

Judgment (excerpt)

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   [2020] 14 S.C.R. 1
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RAJESH @ SARKARI & ANR
v.
  STATE OF HARYANA
 (Criminal Appeal No. 1648 of 2019)
NOVEMBER 03, 2020
[DR. DHANANJAYA Y CHANDRACHUD,
INDU MALHOTRA AND INDIRA BANERJEE, JJ.]
Penal Code, 1860 – s.302 r/w. s.34 – Prosecution case that
complainant’s elder son was shot dead inside a University –
Complainant-PW-4 and his younger son-PW-5 stated that they had
seen the incident and they had taken victim to the hospital – Victim
was declared dead – Three accused persons including both the
appellants were apprehended and arraigned – All the three accused
persons refused to undergo Test Identification Parade and pleaded
not guilty – The Trial Court convicted all the three accused persons
for having committed murder and sentenced them to imprisonment
for life – All three accused persons filed appeals before the High
Court which was dismissed – Two accused persons filed appeal
before the Supreme Court – Held: There were clear improvements
made by PW-4 and PW-5 in their statements – PW-4 had stated he,
PW-5 along with ‘one unknown person’ had lifted victim from the
spot to take him to hospital – Whereas, PW-5 does not mention
presence of any third person – Further, ruqqa indicated that the
deceased was brought by one ‘S’ and the same is a significant
circumstance which indicates that neither PW-4 nor PW-5 were
present at the scene of offence – DW-4 and DW-5 stated that it was
them who had taken victim to the hospital and neither PW-4 nor
PW-5 were present at the scene of occurrence – Neither the author
of first and second FSL reports in the context of the seizure and
recovery of weapons W/1 and W/2 in FIR No.311; nor the author of
the third FSL report in context of FIR No.781(FIR in present case)
were examined by the prosecution in the course of the evidence –
The discrepancies which were noticed in the FSL reports in both
abovementioned FIRs could have been explained by the authors of
the FSL reports and their examination being not done would entitle
accused benefit of doubt – As far as Test Identification Parade is
concerned, there is no specific provision either in the CrPC or the
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SUPREME COURT REPORTS
[2020] 14 S.C.R.
Indian Evidence Act, 1872 which lends statutory authority to an
identification parade – The identification in the course of TIP is
intended to lend assurance to the identity of the accused – The
finding of guilt cannot be based purely on the refusal of the accused
to undergo an identification parade – In the present case, the
presence of the alleged eye-witnesses PW-4 and PW-5 at the scene
of occurrence is seriously in doubt – The ballistics evidence
connecting the empty cartridges and the bullets recovered from the
body of the deceased with an alleged weapon of offence is
contradictory and suffers from serious infirmities – Therefore, a
refusal to undergo a TIP assumes secondary importance and cannot
survive independently in the absence of it being a substantive piece
of evidence – The prosecution failed to establish its case beyond
reasonable doubt and thus, appellants are entitled to benefit of
doubt.
Allowing the appeal, the Court
HELD:  1. The presence of PW-4 and PW-5
1.1 PW4, in the course of his cross-examination, stated that
he, PW5 and “one unknown person” had lifted victim from the
spot to take him to PGIMS. On the other hand, PW5, in the course
of his deposition, does not mention the presence of any third
person who took victim with them to the hospital. While PW4
states that the police reached the hospital at 4:00pm, PW5, on
the other hand, is unaware of when the police had reached the
hospital. Now, in this background, it is important to notice that
there are clear improvements made by PW4 and PW5, which have
a bearing on whether they were eyewitnesses to the alleged
occurrence. Both PW4 and PW5 have made substantial
improvements in the course of their examination in evidence.
Both the witnesses attempted to bolster the case of the
prosecution with regard to their presence at the scene of crime
and of being eye-witnesses to the occurrence by stating that they
had removed victim to the hospital after he had been gunned
down. The absence of any reference to their taking victim to the
hospital in the FIR has a bearing on whether they were eye-
witnesses to the occurrence. The incident took place at the
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University where the deceased was a student and, according to
PW4, was preparing for his supplementary law exams. The theory
tha

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