CRL.A./231/2017 of DEEPAK YADAV Vs STATE (GOVT OF NCT OF DELHI)

IN THE HIGH COURT OF DELHI AT NEW DELHI

Judgment Reserved On: 18.08.2017Judgment Pronounced On: 23.02.2018CRL.A. 231/2017DEEPAK YADAV... Appellant No.1versusSTATE (GOVT OF NCT OF DELHI)... RespondentCRL.A. 317/2017 & CRL.M. (BAIL) 545/2017RAVI @ MUNNA... Appellant No.2versusSTATE... RespondentCRL.A. 493/2017 & CRL.M. (BAIL) 871/2017BABU MUSAHID @ ALI @ AKRAM... Appellant No.3versusSTATE NCT OF DELHI... RespondentThrough:Mr. Chetan Lokur, Advocate withMr. Harsh Prabhakar, Advocate forAppellant No.1Mr. Harsh Prabhakar, Advocate withMr. Anirudh Tanwar, Advocate forAppellant No.2Mr. Chetan Lokur, Advocate withMr. Pritish Chaudhary, Advocate forAppellant No.3Mr. Ravi Naik, APP with InspectorPrashanant Yadav, PS – Jagat Puri

CORAM:HON’BLE MR JUSTICE SIDDHARTH MRIDULHON’BLE MR JUSTICE NAJMI WAZIRI

J U M N T

SIDDHARTH MRIDUL, J.

1.The present batch of criminal appeals instituted under the provision ofsection 374(2) of the Code of Criminal Procedure, 1973 (hereinafter referredto as ‘CrPC’), assail the judgment and order on sentence dated 07.01.2017and 21.01.2017, respectively, rendered by the Ld. Additional Sessions Judge,Shahdara, Karkardooma Court, Delhi, in Sessions Case no.67/2011;emanating from FIR No.65/2011 (hereinafter referred to as the ‘subjectFIR’).

2.By way of the impugned judgment and order on sentence dated07.01.2017and21.01.2017,respectively,DeepakYadav (hereinafterreferred to as ‘Appellant No.1’); Ravi @ Munna (hereinafter referred to as‘Appellant No.2’); and Babu Musahid @ Ali @ Akram (hereinafter referredto as ‘Appellant No.3’), were convicted and sentenced as under:

I)Appellant Nos.1 and 3

i.Life Imprisonment and fine of Rs.5,000/- for the offencepunishable under the provisions of sections 302/34 of thepunishable under the provisions of sections 302/34 of the

Indian Penal Code, 1860 (hereinafter referred to as‘IPC’).Indefaultofpaymentoffine,simpleimprisonment for further period of three months.

ii.Rigorous Imprisonment for period of 7 years and fine

of Rs.2,000/- for the offence punishable under theprovisions of sections 392/34 IPC read with section 397

IPC. In default of payment of fine, simple imprisonmentfor further period of one month.

II)Appellant No.2

i.Life Imprisonment and fine of Rs.5,000/- for theoffence punishable under the provisions of sections302/34 IPC. In default of payment of fine, simpleimprisonment for further period of three months.offence punishable under the provisions of sections302/34 IPC. In default of payment of fine, simpleimprisonment for further period of three months.

ii.Rigorous Imprisonment for period of 7 years and fineof Rs.2,000/- for the offence punishable under theprovisions of sections 392/34 IPC read with section 397IPC. In default of payment of fine, simple imprisonmentfor further period of one month.of Rs.2,000/- for the offence punishable under theprovisions of sections 392/34 IPC read with section 397IPC. In default of payment of fine, simple imprisonmentfor further period of one month.

iii.Rigorous Imprisonment for period of 3 years and fineof Rs.2,000/- for the offence punishable under theprovision of section 25 of the Arms Act, 1959. In defaultof payment of fine, simple imprisonment for furtherperiod of one month.of Rs.2,000/- for the offence punishable under theprovision of section 25 of the Arms Act, 1959. In defaultof payment of fine, simple imprisonment for furtherperiod of one month.

The sentences have been directed to run concurrently. Furthermore,

the benefit of section 428 CrPC has been granted to the Appellant Nos.1, 2and 3 (hereinafter collectively referred to as the ‘Appellants’).

3.The fulcrum of the case of the prosecution is that on 15.02.2011, theAppellants along with ‘K’ (juvenile in conflict with law/JCL), in furtheranceof their common intention committed robbery at Bharat Medicos, 65 SouthAnarkali Extension, Delhi (hereinafter referred to as the ‘crime spot/medicalshop’) using deadly weapons, and during the course thereof committedmurder of Mr. Mulakh Raj Batra (hereinafter referred to as the ‘deceased’)by firing bullet on his forehead.

4.On 15.02.2011 around 11:55 P.M., ASI Mangal Singh (PW-4)recorded DD No.48A [Ex.PW-4/A] in relation to the underlying incident.Pursuant thereto, SI Sandeep (PW-25) reached at the crime spot whereConstable Sandeep (PW-12/16) was already present. On enquiry from one

Gulshan Kumar, PW-25 got to know that the deceased was taken to ahospital. Subsequent thereto, PW-25 proceeded to the hospital where thedeceased was found to be admitted. Statement of the son of the deceased,namely, Mr. Bharat Batra (PW-3) was recorded [Ex.PW-3/A also Ex.PW-25/A]. Thereafter, PW-25 returned back to the crime spot and the rukka wasprepared and sent for registration of the subject FIR. After registration of thesubject FIR, investigation of the case was assigned to Inspector Ajab Singh(PW-23).

Crime team arrived and inspected the crime spot as well as tookphotographs thereof. Visual site plan [Ex.PW-23/A] was prepared by PW-23at the instance of PW-3. PW-23 seized the country made pistol/firearm, livecartridge therein, fired bullet, fired bullet shell, and lifted the blood from thecrime spot, vide separate seizure memos Ex.PW-3/K, Ex.PW-3/D, Ex.PW-3/C, Mark PW-3/PX-3 and Ex.PW-3/E, respectively. motorcycle bearingno.DL-4S-6051, which was parked outside the medical shop, was also seizedvide seizure memo Ex.PW-3/B. Blood stained clothes of the deceased wereseized from the hospital vide seizure memo Ex.PW-3/G. Thereafter,investigation of the case was transferred from PW-23 to Inspector Yogesh

Malhotra (PW-21), until the same was again assigned to the former on21.04.2011.

The deceased succumbed to his injuries during treatment in thehospital on 21.02.2011 and the body was thereafter shifted to the mortuary.On 22.02.2011, Dr. S. Lal (PW-5) conducted post-mortem [Ex.PW-5/A] on

the body of the deceased. Following injuries were found on the body of the

deceased:

“1. Partially healed contused lacerated wound (fire arm entry wound) ofsize 1.5 X 0.2 cm with stitches over it over left temporal area placed4.5 cm posterior to lateral end of eyebrow and 5 cm. above the earpinna associated with spectacles hematoma around the left eye. Thewound enter the cranial cavity by making hole of size 1 X 1 cm withbeveling seen on inner table over posterior aspect of left side frontalbone and perforating the brain from left side to right side through andthrough and coming out from right side parietal area by making exitwound. Hole on left parietal bone of size 2 X 1 cm with beveling onouter table and then by making an exit wound of size 2 X 0.2 cm withstitches on parietal area. The exit bone placed 5.5 cm above the rightpinna and 1 cm from the mid line. The direction of the bone left toright and backward direction.size 1.5 X 0.2 cm with stitches over it over left temporal area placed4.5 cm posterior to lateral end of eyebrow and 5 cm. above the earpinna associated with spectacles hematoma around the left eye. Thewound enter the cranial cavity by making hole of size 1 X 1 cm withbeveling seen on inner table over posterior aspect of left side frontalbone and perforating the brain from left side to right side through andthrough and coming out from right side parietal area by making exitwound. Hole on left parietal bone of size 2 X 1 cm with beveling onouter table and then by making an exit wound of size 2 X 0.2 cm withstitches on parietal area. The exit bone placed 5.5 cm above the rightpinna and 1 cm from the mid line. The direction of the bone left toright and backward direction.

2. Superficial lacerated wound three in number varies in size from 1.5 X0.1 cm to 0.5 X 01 cm over middle of forehead.Nails mark, crescent shape of size 0.3 X 0.1 cm over bridge of nose.On internal examination sub scalpel bruising seen on left fronto-parietal and temporal region under injury No. 1 and occipital area.Injury of skull as mentioned in injury No.1. Defuse sub arrachnoidhemorrhage with laceration of brain seen in the track with contusionand oedema of brain present.”0.1 cm to 0.5 X 01 cm over middle of forehead.Nails mark, crescent shape of size 0.3 X 0.1 cm over bridge of nose.On internal examination sub scalpel bruising seen on left fronto-parietal and temporal region under injury No. 1 and occipital area.Injury of skull as mentioned in injury No.1. Defuse sub arrachnoidhemorrhage with laceration of brain seen in the track with contusionand oedema of brain present.”

The cause of death was opined to be as follows:

“ The cause of death was cranio cerebral damage consequentupon penetrating injuries to skull could be possible to causedeath projectile of fire arm. Injury No.1 was sufficient to causedeath in ordinary course of nature and injury No.2 & 3 could bepossible to cause by nails.All injuries were ante mortem innature and old in duration.Time since death was around 24hours.”

5.It is the case of the prosecution that during the course of investigationof separate offence, it came to light that Appellant No.2 and ‘K’ hadcommitted the underlying offence.

6.On 10.04.2011, Appellant No.2 was arrested in another FIR being FIRNo.73/2011 at Police Station Krishna Nagar, Delhi, and pursuant to his arresttherein he also made disclosure statement with respect to the present case.On 15.04.2011, Appellant No.2 was formally arrested by PW-21 with thepermission of the court [vide arrest memo Ex.PW-11/A]. On 21.04.2011,TIP of Appellant No.2 was conducted by PW-20, wherein the latteridentified the former [Ex.PW-7/B]. Thereafter, Appellant No.2 was takeninto police custody and his disclosure statement admitting to the commissionof the underlying offence was recorded on 25.04.2011 [Ex.PW-11/B].

On 26.04.2011, Appellant No.1 was arrested at the instance ofAppellant No.2 from his house at Kanti Nagar, Delhi [vide arrest memoEx.PW-15/C] and his personal search was conducted [Ex.PW-15/D]. On

interrogation, Appellant No.1 admitted to the commission of the crime andhis disclosure statement was recorded [Ex.PW-15/E]. Pursuant to hisdisclosure statement being recorded, Appellant No.1 also produced mobilephone of black colour make ‘Nokia’ from an almirah of his house, whichwas seized vide seizure memo Ex.PW-15/B. Pointing out memo of the crimespot was also prepared at the instance of Appellant No.1 [Ex.PW-15/A].

Insofar as ‘K’ is concerned, he was arrested by Surat Police in Surat,Gujrat in another case. Pursuant to his arrest, ‘K’ made disclosurestatement to the Surat Police, admitting his complicity in the commission ofthe underlying offence along with Appellant Nos.2 and 3 and one moreunknown person [Ex.PW-17/B]. Information in this behalf was transmittedto P.S. Jagat Puri, pursuant to which DD No.12A was recorded on29.03.2011. Production warrants of ‘K’ were obtained by PW-23 on24.05.2011 and on 27.05.2011 Surat Police produced him in muffled face.Thereafter, he was formally arrested vide arrest memo Ex.PW-14/A. On08.06.2011, PW-23 recorded disclosure statement of ‘K’ [Ex.PW-14/B], andsupplementary disclosure statement was recorded on 08.06.2011 [Ex.PW-23/B]. Pointing out memo was prepared on 08.06.2011 [Ex.PW-23/C]. On

04.07.2011, TIP of ‘K’ was conducted, however, he refused to participate inthe same.

Subsequently, Appellant No.3 was arrested on 09.12.2011 on the basisof secret information, from Gali No.18 West Kanti Nagar, Delhi [vide arrestmemo Ex.PW-23/D]. Pursuant to his arrest, Appellant No.3 made adisclosure statement admitting his complicity in the commission of theoffence [Ex.PW-23/H]. Further, personal search of Appellant No.3 wasconducted and pointing out memo of the crime spot was prepared [Ex.PW-23/E and Ex.PW-23/I, respectively]. On 17.12.2011, TIP of Appellant No.3was conducted, however, he refused to participate in the same.

7.At the trial, the prosecution had examined 26 witnesses in support ofits case.

8.The Appellants in their respective statements under section 313 CrPChave stated that they have been falsely implicated in the present case.However, they have chosen to not lead any defence.

9.Broadly, the Trial Court has based the conviction of the Appellants onthe following grounds:

i.The testimonies of PW-3 and PW-20;

ii.Recovery of the mobile phone of the deceased from AppellantNo.1; and

iii.Identification of Appellant No.2 in Test Identification Paradeproceedings (TIP) by PW-20.

10.Learned counsel appearing on behalf of the Appellants wouldasseverate that there are defects in the investigation conducted by the policeand the benefit of the same shall accrue to the Appellants.

In order to buttress this submission reliance would be placed on thedecisions of the Hon’ble Supreme Court in Hema v. State reported as (2013)10 SCC 192; Kailash Gour and others v. State of Assam reported as (2012)2 SCC 34; Sunil Kundu and another v. State of Jharkand reported as(2013) 4 SCC 422; State of U.P. v. Bhagwant Kishore Joshi reported as1964 (3) SCR 71; and Datar Singh v. State of Punjab reported as (1975) 4SCC 272.

11.Learned counsel appearing on behalf of the Appellants would theninvite our attention to the testimonies of PW-3 and PW-20, to assert thatthere are material contradictions therein and it would not be prudent to baseconviction thereupon. Further, the testimony of PW-3 is sought to bediscredited on the ground that he is related to the deceased.

In this behalf reliance would be placed on the decisions of the Hon’ble

Supreme Court in State of Punjab v. Parveen Kumar reported as (2005) 9SCC 769, and Raju alias Balachandran v. State of Tamil Nadu reported as(2012) 12 SCC 701.

12.Further, it would be urged that mere identification of Appellant No.2by PW-20 in TIP proceedings cannot form the basis of conviction, since thetestimony of the latter is not creditworthy.

In order to buttress this submission reliance would be placed on thedecision of Division Bench of this Court in Rahisuddin v. State reported as2016 (157) DRJ 372.

13.In the alternative it would be urged that the matter should be remandedback to the Trial Court for fresh trial, since the quality of representationafforded to the Appellants at the trial was below the expected threshold and,resultantly, the prosecution witnesses were not subjected to meaningfulcross-examination.

In this behalf reliance would be placed on the decision of DivisionBench of this Court in Salamat Ali v. State reported as 174 (2010) DLT 558(DB).

14.Per contra, learned Additional Public Prosecutor whilst supporting theimpugned judgment in its entirety, would urge that the findings of the Ld.Trial Court require no interference. It would be urged that the material onrecord conclusively establishes the guilt of the Appellants beyond reasonabledoubt.

15.Whilst admitting that there are certain inconsistencies in thetestimonies of PW-3 and PW-20 in relation to the role played by theAppellants, it would be submitted that convergence therein with respect tothe presence of the Appellants at the medical shop during the course of thecommission of the offence would be sufficient to form the basis ofconviction.16.Further,itwouldbesubmittedthatsincenoexplanationisforthcoming from the Appellants with respect to the incriminating materialput to them, an adverse inference is liable to be drawn.

In order to buttress this submission reliance would be placed on thedecision of the Hon’ble Supreme Court in Rajkumar v. State of M.P.reported as (2014) 5 SCC 353.

17.We have heard the learned counsel appearing on behalf of the partiesand perused the entire case record.

Defects in investigation

18.We shall first examine whether defects, if any, in the investigationconducted by the police would attribute to the benefit of the Appellants and,if yes, to what extent.

19.The Hon’ble Supreme Court in Hema (supra) whilst holding that fairinvestigation is part of the constitutional rights guaranteed under Articles20 and 21 of the Constitution of India and it is the immediate requirement ofthe rule of law that investigation must be fair, transparent and judicious,observed as follows:

“14. It is also settled law that for certain defects in investigation,the accused cannot be acquitted. This aspect has been consideredin various decisions.In C. Muniappan v. State of T.N. [(2010) 9 SCC567 : (2010) 3 SCC (Cri) 1402] , the following discussion andconclusions are relevant which are as follows: (SCC p. 589, para 55)

“55. There may be highly defective investigation in acase. However, it is to be examined as to whether thereis any lapse by the IO and whether due to such lapseany benefit should be given to the accused. The law onthis issue is well settled that the defect in theinvestigation by itself cannot be ground for acquittal.If primacy is given to such designed or negligentinvestigationsortotheomissionsorlapsesbyperfunctory investigation, the faith and confidence ofthe people in the criminal justice administration wouldbe eroded. Where there has been negligence on the partof the investigating agency or omissions, etc. whichresulted in defective investigation, there is legalobligation on the part of the court to examine theprosecution evidence dehors such lapses, carefully, tofind out whether the said evidence is reliable or not and

to what extent it is reliable and as to whether suchlapses affected the object of finding out the truth.Therefore, the investigation is not the solitary area forjudicial scrutiny in criminal trial. The conclusion ofthe trial in the case cannot be allowed to depend solelyon the probity of investigation.”

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18. It is clear that merely because of some defect in theinvestigation, lapse on the part of the investigating officer, itcannot be ground for acquittal. Further, even if there had beennegligence on the part of the investigating agency or omissions,etc. it is the obligation on the part of the court to scrutinise theprosecution evidence dehors such lapses to find out whether thesaid evidence is reliable or not and whether such lapses affect theobject of finding out the truth.”

(Emphasis supplied)

20.In Kailash Gour (supra), the Hon’ble Supreme Court observed asfollows:

“43. At any rate, the legal proposition formulated by Bedi, J. based onthe past failures does not appear to us to be the solution to theproblem. We say with utmost respect to the erudition of our Brotherthat we do not share his view that the reports of the Commissions ofInquiry set up in the past can justify departure from the rules ofevidence or the fundamental tenets of the criminal justice system.That an accused is presumed to be innocent till he is proved guiltybeyond reasonable doubt is principle that cannot be sacrificedon the altar of inefficiency, inadequacy or inept handling of theinvestigation by the police. The benefit arising from any suchfaulty investigation ought to go to the accused and not to theprosecution. So also, the quality and creditability of the evidencerequired to bring home the guilt of the accused cannot bedifferent in cases where the investigation is satisfactory vis-à-viscases in which it is not.The rules of evidence and the standards bywhich the same has to be evaluated also cannot be different in casesdepending upon whether the case has any communal overtones or inan ordinary crime for passion, gain or avarice.”

(Emphasis supplied)

21.The Hon’ble Supreme Court in Sunil Kundu (supra) held as follows:

“29. We began by commenting on the unhappy conduct of theinvestigating agency. We conclude by reaffirming our view. We aredistressed at the way in which the investigation of this case wascarried out.It is true that acquitting the accused merely on theground of lapses or irregularities in the investigation of casewould amount to putting premium on the deprecable conduct ofan incompetent investigating agency at the cost of the victimswhich may lead to encouraging perpetrators of crimes. This Courthas laid down that the lapses or irregularities in the investigationcould be ignored subject to rider. They can be ignored only ifdespite their existence, the evidence on record bears out the caseof the prosecution and the evidence is of sterling quality. If thelapses or irregularities do not go to the root of the matter, if theydo not dislodge the substratum of the prosecution case, they canbe ignored.In this case, the lapses are very serious. PW 5 JaldhariYadav is pancha to the seizure panchnama under which weaponsand other articles were seized from the scene of offence and also tothe inquest panchnama. Independent panchas have not been examined.The investigating officer has stated in his evidence that the seizedarticles were not sent to the court along with the charge-sheet. Theywere kept in the malkhana of the police station. He has admitted thatthe seized articles were not sent to the forensic science laboratory. Noexplanation is offered by him about the missing sanha entries. Hisevidence on that aspect is evasive. Clothes of the deceased were notsent to the forensic science laboratory. The investigating officeradmitted that no seizure list of the clothes of the deceased was made.Blood group of the deceased was not ascertained. No link isestablished between the blood found on the seized articles and theblood of the deceased. It is difficult to make allowance for such grosslapses. Besides, the evidence of eyewitnesses does not inspireconfidence. Undoubtedly, grave suspicion is created about theinvolvement of the accused in the offence of murder. It is well settledthat suspicion, however strong, cannot take the place of proof. In sucha case, benefit of doubt must go to the accused. In the circumstances,

we quash and set aside the impugned judgment and order [SunilKundu v. State of Jharkhand, Criminal Appeal No. 1762 of 2004,decided on 20-8-2007 (Jhar)] . The appellant-accused are in jail. Wedirect that the appellants A-1 Sunil Kundu, A-2 Bablu Kundu, A-3Nageshwar Prasad Sah and A-4 Hira Lal Yadav be released forthwithunless otherwise required in any other case.”

(Emphasis supplied)

22.In Bhagwant Kishore Joshi (supra), the legal position in relation todefects in investigation was succinctly laid down as follows:

“12. The argument of the learned counsel for the respondent maybe elaborated thus: Whenever there is consistent disregard of theprovisions of the Code of Criminal Procedure in the matter ofinvestigation it must be held in almost all cases that it hasprejudiced the accused in the matter of trial, for otherwise itwouldenableapoliceofficerbelowtherankofDeputySuperintendent of Police to make an investigation free from thestatutory safeguards designed to prevent the abuse of policepowers, to secure the necessary information and thereafter to takethe requisite permission of the Magistrate and then to shape hisinvestigation to achieve the desired result or to implement scheme.No doubt this practice, if it exists, must be condemned; but thequestion is, does the infringement of the salutary provisions of theact in the matter of investigation, without more, invalidate thetrial? If we accept the broad proposition advanced by the learnedcounsel, we would be disregarding the provisions of Section 537 ofthe Code of Criminal Procedure; would be ignoring an honestbody of compelling evidence on the basis of dereliction of duty bythe police. The question is not whether in investigating offence thepolice have disregarded the provisions of the Act, but whetheraccused has been prejudiced by such disregard in the matter ofhis defence at trial. It is, therefore, necessary for the accused tothrow reasonable doubt that the prosecution evidence is suchthat it must have been manipulated shaped by reason of theirregularity in the matter of investigation, or that was preventedby reason of such irregularity from putting forward his defence oradducing evidence in support thereof. But where the prosecutionevidence has been held to be true and where the accused had full

say in the matter, the conviction cannot obviously be set aside onthe ground of some irregularity or illegality in the matter ofinvestigation: there must be sufficient nexus, either establishedor probabilized, between the conviction and the irregularity in theinvestigation.In this case, as we have earlier pointed out, not only thetrial was fair and the evidence convincing, but even the earlier defectwas rectified by having practically de novo investigation in strictcompliance with the provisions of the Code of Criminal Procedure.We cannot, therefore, hold that the accused has been prejudiced by theillegality committedby thepoliceinthefirststageoftheinvestigation.”

(Emphasis supplied)

23.The legal conspectus that emerges from careful consideration of theaforesaid decisions is encapsulated hereinbelow:

i.Benefit arising from any faulty investigation cannot go to theprosecution and ought to go to the accused, since the quality andcredibility of evidence required to bring home the guilt of the accusedcannot be different in cases where the investigation is satisfactory vis-à-vis cases in which it is not and the guilt of the accused is required tobe established by the prosecution beyond reasonable doubt de horswhether the investigation was faulty or not.

ii.Some defect in the investigation, lapse on the part of the investigatingofficer, would not entitle the accused to acquittal.officer, would not entitle the accused to acquittal.

iii.Even if there is some negligence on the part of the investigatingagency or omissions etc., the court will have to scrutinize the evidenceof the prosecution de hors the lapses in the investigation.iv.If the evidence on record bears out the case of the prosecution and theevidence is of sterling quality and reliable, lapses or irregularities inthe investigation will not attribute to the benefit of the accused.However, if the lapses or irregularities go to the root of the matter anddislodge the substratum of the case of the prosecution or affect theobject of finding out the truth, they cannot be ignored.

v.However, to set aside the conviction there must be sufficient nexus,either established or probabilized, between the conviction and theirregularity in the investigation. Conviction cannot be set aside on thebasis of some irregularity or illegality in the matter of investigation, ifthe prosecution evidence on which the accused has been convicted isheld to be true and the accused had full say in the matter.24.In the present case, following instances of defective investigation havebeen pointed out on behalf of the Appellants:

a) Finger prints were not obtained from the firearm seized from themedical shop;

b) CDR of the mobile phone of the deceased, which was allegedlysnatched therefrom on the fateful night, were procured only till the15.02.2011 i.e. the date of the incident, and not thereafter; andsnatched therefrom on the fateful night, were procured only till the15.02.2011 i.e. the date of the incident, and not thereafter; and

c) TheVisualSitePlan[Ex.PW-23/A]preparedbyPW-23on16.02.2011 i.e. the very next day of the incident, finds mention of aspot from where ‘K’ allegedly fired the firearm. However, the namesof the assailants were not known until 26.03.2011.16.02.2011 i.e. the very next day of the incident, finds mention of aspot from where ‘K’ allegedly fired the firearm. However, the namesof the assailants were not known until 26.03.2011.

25.No doubt that the said defects in the investigation would attribute onlyto the benefit of the Appellants and not the prosecution.to the benefit of the Appellants and not the prosecution.

26.However, since there is no reasonable nexus between the finding ofconviction rendered by the Trial Court vis-à-vis the aforesaid defects and theAppellants have been convicted de hors the defects, it cannot be now urgedbefore us that the Appellants are entitled to be acquitted on this groundalone.

27.Even otherwise, since no question was put to the relevant witnesses incross-examination in relation to the said defects, in order to enable them tooffer an explanation, the defects would not attribute to the benefit of theAppellants at all. [Ref: Mahavir Singh v. State of Haryana reported as(2014) 6 SCC 716]

28.We shall now examine whether the evidence de hors the said defectsis sufficient and reliable to uphold the finding of conviction rendered by theTrial Court.

Testimonies of PW-3 and PW-20

29.In the present case, PW-3 and PW-20 are the star witnesses of theprosecution. They are stated to have witnessed the entire incident. Therefore,it would firstly be prudent to examine the testimonies of these two witnesses,in order to determine their credibility.

30.Both PW-3 and PW-20 were declared hostile and permission wasgranted to the APP to cross-examine them, however, their evidence cannotbe rejected in toto on the said ground alone and the same can be accepted tothe extent their version is found to be dependable on careful scrutinythereof. [Ref: Khujji v. State of M.P. reported as (1991) 3 SCC 627]

31.In relation to discrepancies in the evidence of witnesses, the Hon’bleSupreme Court in State of U.P. v. Naresh reported as (2011) 4 SCC 324,observed as follows:

“30. In all criminal cases, normal discrepancies are bound tooccur in the depositions of witnesses due to normal errors ofobservation, namely, errors of memory due to lapse of time or dueto mental disposition such as shock and horror at the time ofoccurrence. Where the omissions amount to contradiction,creating serious doubt about the truthfulness of the witness andother witnesses also make material improvement while deposing

in the court, such evidence cannot be safe to rely upon. However,minorcontradictions,inconsistencies,embellishmentsorimprovements on trivial matters which do not affect the core ofthe prosecution case, should not be made ground on which theevidence can be rejected in its entirety. The court has to form itsopinion about the credibility of the witness and record findingas to whether his deposition inspires confidence.“9. Exaggerations per se do not render the evidence brittle. But itcan be one of the factors to test credibility of the prosecutionversion, when the entire evidence is put in crucible for beingtested on the touchstone of credibility.”[Ed.: As observed in BihariNath Goswami v. Shiv Kumar Singh, (2004) 9 SCC 186, p. 192, para9.]

Therefore, mere marginal variations in the statements of witnesscannot be dubbed as improvements as the same may beelaborations of the statement made by the witness earlier. Theomissions which amount to contradictions in material particularsi.e. go to the root of the case/materially affect the trial or core ofthe prosecution's case, render the testimony of the witness liableto be discredited.[Vide State v. Saravanan [(2008) 17 SCC 587 :(2010)4SCC(Cri)580:AIR2009SC152], Arumugam v. State [(2008) 15 SCC 590 : (2009) 3 SCC (Cri) 1130 :AIR 2009 SC 331] , Mahendra Pratap Singh v. State of U.P. [(2009)11 SCC 334 : (2009) 3 SCC (Cri) 1352] and Sunil KumarSambhudayal Gupta (Dr.) v. State of Maharashtra [(2010) 13 SCC657 : JT (2010) 12 SC 287] .] ”

(Emphasis supplied)

32.The Hon’ble Supreme Court in Lal Bahadur v. State (NCT of Delhi)

reported as (2013) 4 SCC 557, reiterated the principle laid down inBharwada Bhoginbhai Hirjibhai v. State of Gujrat reported as (1983) 3SCC 217, in relation to minor discrepancies in evidence of eye-witnesses, asfollows:

“(1) By and large witness cannot be expected to possess aphotographic memory and to recall the details of an incident. It isnot as if video tape is replayed on the mental screen.

(2) Ordinarily it so happens that witness is overtaken by events.The witness could not have anticipated the occurrence which sooften has an element of surprise. The mental faculties thereforecannot be expected to be attuned to absorb the details.

(3) The powers of observation differ from person to person. Whatone may notice, another may not. An object or movement mightemboss its image on one person's mind, whereas it might gounnoticed on the part of another.

(4) By and large people cannot accurately recall conversationand reproduce the very words used by them or heard by them.They can only recall the main purport of the conversation. It isunrealistic to expect witness to be human tape recorder.

(5) In regard to exact time of an incident, or the time duration ofan occurrence, usually, people make their estimates by guess workon the spur of the moment at the time of interrogation. And onecannot expect people to make very precise or reliable estimates insuch matters. Again, it depends on the time-sense of individualswhich varies from person to person.

(6) Ordinarily witness cannot be expected to recall accuratelythe sequence of events which takes place in rapid succession or ina short time span. witness is liable to get confused, or mixed upwhen interrogated later on.

(7) witness, though wholly truthful, is liable to be overawed by-the court atmosphere and the piercing crossexamination made bythe counsel and out of nervousness mix up facts, get confusedregarding sequence of events, or fill up details from imaginationon the spur of the moment. The subconscious mind of the witnesssometimes so operates on account of the fear of looking foolish orbeing disbelieved though the witness is giving truthful and—honest account of the occurrence witnessed by himperhaps it is

sort of psychological defence mechanism activated on the spurof the moment.”

33.In this backdrop, we shall first examine the testimony of PW-3. PW-3was admittedly not acquainted to the Appellants beforehand and shared noenmity therewith, although, he was related to the deceased. But he cannot betermed as an interested witness merely as reason of being the son of thedeceased. However, needless to state that as consequence of PW-3’srelation with the deceased, his evidence is liable to be meticulously andcarefully examined. [Ref: Waman and Ors. v. State of Maharashtrareported as (2011) 7 SCC 295, State of Rajasthan v. Kalki reported as(1981) 2 SCC 752, Dalip Singh v. State reported as AIR 1953 SC 364,Ashok Kumar Chaudhary v. State of Bihar reported as (2008) 12 SCC 173,, and Raju (supra]

34.In relation to the sequence of events, PW-3 on 27.01.2012 deposedbefore the court that, around 9:00 P.M. on the date of the incident i.e.15.02.2011, PW-20 came to meet him at the medical shop. Around 11:00P.M. when he was present at the medical shop along with PW-20 and thedeceased, boy aged 25-26 years came to take medicine as he hadpurportedly met with an accident. After taking painkiller the boy left.However, after 10-15 minutes around 11:30 P.M. that boy came again. By

that time two shutters of the medical shop were already down and only oneshutter was open. Further, that another boy was standing outside the medicalshop and talking on the phone. The boy who purchased the medicine put agun on his forehead and asked for cash, mobile and other valuables. PW-3tried to snatch the firearm from that boy and in that process firearm fell fromhis hand. Thereafter, two more boys came inside the medical shop and whileone of them was carrying firearm, other was carrying knife. One of themput firearm on PW-3; other put knife on PW-20; and the third onesnatched the mobile phone from the deceased which he had taken out to callthe police. Further, that these boys took the cash from the medical shop andwhile they were trying to run away noise was raised by PW-3. Thereafter,one of the boys fired the fatal bullet. The assailants also left behind bikewhile they were trying to run away. On being declared hostile, during thecourse of cross-examination by the APP, PW-3 deposed that the boy whohad purchased the medicine came to the medical shop for the second timearound 11:40 P.M and was carrying firearm.

Pursuant to the arrest of Appellant No.3, PW-3 was re-called forexamination on 29.04.2013. It was then deposed by PW-3 that PW-20 cameto the medical shop at 8:30 P.M and at 9:00 P.M. the first assailant came to

buy medicine. After buying the medicine the first assailant kept standingoutside, on the counter of the medical shop. Another boy who was hisassociate was also standing outside the medical shop with bike and afterhalf and hour both of them left from there. Around 11:10 P.M., the firstassailant who purchased the medicine came back to the medical shop and puta firearm on his head. After two minutes, two more assailants came insidethe medical shop, one with knife and other with pistol. The two assailantscarrying the firearm put the same on his forehead, and the third assailantcarrying the knife took PW-20 inside, near the inverter. Subsequent thereto,PW-3 caught the hands of both the assailants who had put the firearm onhim, and in that process, firearm of one of the assailants fell. The deceasedasked PW-3 to catch hold of both the assailants so that in the meanwhile hecould make call to the police. The deceased dropped his mobile phonewhile taking out the same and noise was raised by PW-3. Thereafter, whilefleeing from the crime spot, one of the assailants fired the fatal bullet. Theassailants also took away the mobile phone of the deceased and some pettyarticles from the shop, however, left behind their bike. Subsequent thereto,PW-3 was again declared hostile and the APP was again granted permissionto cross-examine him. During the course of cross-examination, PW-3

deposed that the painkiller was bought at 11:00 P.M. Further, that the twoother assailants came inside the medical shop after the first assailant wascaught; and of the two boys who came subsequently, one of them snatchedthe mobile phone of the deceased and the other fired the fatal bullet.

During the course of cross-examination on behalf of the appellants on04.03.2015, PW-3 deposed that PW-20 came to the medical shop at 8:30P.M and the first assailant bought the painkiller at 11:00 P.M. He was evenconfronted with his previous statement to the police [Ex.PW-3/A], wheretime when PW-20 came to the medical shop was mentioned as 9:00 P.M. Itwas further deposed that first assailant returned to the medical shop at 11:10P.M, however, in his statement to the police [Ex.PW-3/A], with which hewas confronted, the time was mentioned as 11:40 P.M. Further, PW-3deposed that he had stated to the police that the assailant carrying the knifetook PW-20 inside; one of the assailants was carrying long knife; theassailants carrying the firearms had put the same on his head; deceased askedhim to apprehend both the assailants; some petty articles were taken awayfrom the medical shop by the assailants and they left behind their bike; theassailant who was standing outside the medical shop also ran away with the

other three assailants, however, none of these details were confronted to beso mentioned in the statement given by PW-3 to the police.

35.A perusal of the testimony of PW-3 in relation to the timeline ofsequence of events would reveal that, he first deposed that the first assailantcame to the medical shop to buy painkiller at 11:00 P.M. and left around11:15 P.M. Thereafter, the time was varied to 9:00 P.M. and 9:30 P.M.,respectively. Subsequent thereto, the time when the first assailant came tobuy medicine was again stated to be as 11:00 P.M.

Insofar as, the time when the first assailant returned to the medicalshop is concerned, PW-3 initially deposed that first assailant returned at11:30 P.M.; then as 11:40 P.M.; and thereafter again varied it to as 11:10P.M.

However, these inconsistencies with respect to time being minor innature can be overlooked if deposition with respect to other aspects inspiresconfidence.

36.In relation to the sequence of events, even though PW-3 initially didnot depose anything about an associate accompanying the first assailant topurchase painkiller; subsequently another associate was introduced by him,

who was deposed to be standing outside the medical shop along with the firstassailant.

Insofar as the deposition of PW-3 with respect to the second visit bythe assailants is concerned, he initially deposed that the other two assailantscame inside the medical shop after the firearm of the first assailant felldown, pursuant to being snatched by him. To the contrary, it wassubsequently deposed by PW-3 that the other two assailants came inside themedical shop two minutes after the first assailant, and in his attempt to catchhold the hands of both the assailants carrying the firearm, one of the firearmfell. Although, on being cross-examined by the APP, PW-3 again deposed onthe lines of his earlier statement.

In relation to the aspect whether cash was taken away from themedical shop or not, PW-3 intially deposed that the assailants took awaycash from the medical shop, whereas, subsequently PW-3 mentioned nothingabout cash being taken away but only petty articles. It would also be relevantto note that nothing was stated by PW-3 in his statement to the police inrelation to petty articles being taken away by the assailants from the medicalshop.

Further, although PW-3 initially deposed that the mobile phone of thedeceased was snatched by one of the assailants, it was subsequently deposedby him that the mobile phone fell down. Furthermore, contrary to hisdeposition in court, PW-3 in his statement to the police [Ex.PW-3/A] neithermentioned, inter alia, that either of the assailants was carrying knife; northat deceased carrying the knife had taken PW-20 inside near the inverter.There was also no mention of the fact that the assailants carrying firearmshad put the same on his forehead; or that another boy was standing outsidethe medical shop, who ran away with the other three assailants.

37.Coming to the aspect of number of assailants involved in thecommission of offence and the role alleged to be played by the Appellantstherein. On the first date of examination i.e. 27.01.2012, PW-3 deposed thatAppellant Nos.1 and 2 subsequently entered the medical shop and the formerfired the fatal bullet. On being declared hostile, during the course of cross-examination by the APP, PW-3 deposed that one of the two assailants whocame subsequently fired the fatal bullet. There was no mention of any fourthperson being involved in the commission of the offence or that he saw afourth person standing outside the medical shop.

Pursuant to the arrest of Appellant No.3, on being re-called forexamination, PW-3 for the first time on 29.04.2013 deposed that he saw onemore person standing outside the medical shop, who ran away with the otherthree assailants. PW-3 further deposed that due to lapse of time he cannotidentify the assailants. On that date, PW-3 was again declared hostile andpermission was granted to the APP to cross-examine him. During the courseof cross-examination by the APP, PW-3 deposed that even though on27.01.2012 he had identified two assailants in the court, due to lapse of timehe has forgotten their faces. PW-3 even refused to identify the assailantwhose firearm had fallen down; who snatched the mobile phone from thedeceased; who was standing outside the medical shop during the course ofcommission of the underlying offence. PW-3 was even confronted by theAPP with his statements made to the police [Mark PW-3/PX1 and PW-3/PX2], wherein it was stated by him that Appellant No.2 bought medicinefrom the medical shop; Appellant No.3 snatched the mobile phone from thedeceased; and ‘K’ fired the bullet from the firearm, but to no avail. Further,PW-3 even refused to recall whether live cartridge and an empty shell wererecovered from the crime spot, despite he being witness to thoserecoveries.

On the next date of examination i.e. 17.02.2014, during the course ofcross-examination by the APP, PW-3 surprisingly identified Appellant No.2as the person who came at the medical shop to first buy the medicine andthen again came first with firearm, which was snatched by him; eventhough he had refused to so identify him on the last date of hearing. Further,PW-3 identified Appellant No.3 as the other person who was carrying thefirearm. However, he was not able to identify whom out of Appellant No.2or Appellant No.3 fired the fatal bullet. Furthermore, PW-3 also deposed thata live cartridge was seized; and sketches of the firearm, cartridge and emptyshell were prepared in his presence.

38.A bare perusal of the testimony of PW-3 would show that in histestimony in relation to the number of persons involved in the commission ofthe offence and the role played by the Appellants, there are materialcontradictions.

Initially there was no mention of fourth person being involved in thecommission of the offence, whereas, after the arrest of Appellant No.3, anattempt has been made to factor in the involvement of fourth person. Itwould also be relevant to note that even in the statement of PW-3 to thepolice [Ex.PW-3/A], there was no mention of any fourth person standing

outside the medical shop. PCR form [Ex.PW-13/A] also finds mention ofonly three persons being involved in the commission of the offence.

In relation to the aspect who fired the fatal bullet it would be relevantto note that PW-3 first identified Appellant Nos.1 and 2 as the assailants whoentered the shop subsequently, and the former as the one who fired the fatalbullet. Thereafter, he refused to identify either of the Appellants. Butsubsequent thereto, he identified Appellant No.2 as the person who boughtthe painkiller and from whom he had snatched the firearm; and AppellantNo.3 as the second assailant carrying firearm, who entered the shopsubsequently. At this point, it would also be relevant to note that PW-3 in hisstatement to the police had stated that ‘K’ fired the fatal bullet. Going by thetestimony of PW-3, if Appellant Nos.2 and 3 were only carrying firearms,how was it possible for Appellant No.1 or ‘K’ to fire the fatal bullet unlessand until there was an exchange of firearm, to which effect nothing has beendeposed by PW-3. Moreover, even though first it was stated by PW-3 to thepolice that ‘K’ fired the fatal bullet and thereafter in court that AppellantNo.1 did; on subsequent date i.e. 17.02.2014, PW-3 deposed that he wasunsure as to whom out of Appellant Nos.2 and 3 fired the firearm. Therefore,resiling from his earlier statement completely by not even mentioning the

name of either Appellant No.1 or ‘K’ with the other appellants, betweenwhom he was confused as to who fired the firearm.

Further, the testimony of PW-3 has remained inconsistent in relationto the aspect who bought the medicine from the medical shop. PW-3 in hisstatement to the police has stated that Appellant No.2 bought the medicine,however, in his testimony in court deposed that latter came to the medicalshop subsequently. Thereafter, during the course of cross-examination by theAPP, PW-3 refused to identify Appellant No.2 as the person who bought themedicine; and on subsequent date surprisingly identified the latter.Furthermore, PW-3 was not even able to identify the person who snatchedthe mobile phone of the deceased, despite having identified Appellant No.3before the police.

39.To justify these contradictions in the testimony of PW-3, learned APPwould invite our attention to an application filed by PW-3 before the TrialCourt, wherein it was stated that the accused persons on 27.01.2012threatened him after his deposition in court. Pursuant thereto, protection wasafforded to PW-3 vide an order dated 31.08.2012. However, this submissionwould not come to the aid of the prosecution, since even if we were toconsider the submission in relation to PW-3 being threatened on 27.01.2012

to be true, it is evident that it did not hold PW-3 from deposing against theAppellants on subsequent dates.

40.Now we shall examine the testimony of PW-20. In relation to thesequence of events, it has been deposed by PW-20 that he reached at themedical shop around 9:00 P.M. The first assailant came to purchase themedicine around 10:45 P.M. and after taking the same he left. At that time,PW-3 and the deceased were present along with him at the medical shop.Ten minutes after leaving, the first assailant came back to the medical shopalong with an associate. Both of them were carrying firearms. They jumpedover the counter of the medical shop and came inside. They asked PW-3 forall the valuables, to which PW-3 objected and caught their hands, and in thatprocess firearm of one of the assailants fell down. In the meanwhile, thirdassailant who was carrying knife came inside the medical shop and pulleddown the shutter thereof. Further, the third assailant caught hold of PW-20and took him behind the rack where he was made to sit on the floor. PW-20further deposed that from behind the rack he was not able to see what washappening in the front and could only hear the noise of PW-3 shouting andthe sound of bullet being fired. After firing the bullet all the assailants ranaway. PW-20 thereafter came to the counter of the shop and noticed that the

deceased had received bullet injury on the right side of his forehead. PW-20 further deposed that later he came to know that the assailants had alsotaken away the mobile phone of the deceased. PW-20 was thereafterdeclared hostile and permission was granted to the APP to cross-examinehim, wherein it was deposed by him as follows:

“ It is correct that the assailant who came first was wearing grey colourshirt and black jeans and he told me that he has met with an accidentand bought painkiller for Rs.10 and he came back alone after 20-25minutes and brought out pistol from his shirt and threatened to handover the cash, mobile, jewelry and ring failing which he would firefrom the pistol. It is correct that when we tried to catch hold of thatperson, the pistol fell down from his hand. Vol. this happened after thearrival of the second person and we tried to catch hold both of them andthen the pistol had fallen down from the hand of one of them. It iscorrect that Mulkh Raj Batra asked us to apprehend the assailantotherwise he would run away and then he brought out mobile phone tocall the police at 100 number and then the other two assailants came atthe shop. I do not know that out of the two persons who came later, oneof them snatched the mobile phone make Nokia 1600 of grey blackcolour from Mulkh Raj Batra while the third assailant fired from kattaat Mulkh Raj Batra or that I had stated so in my statement to the police,confronted with portion to of statement Mark PW20/A where thisfact is mentioned. It is correct that Mulkh Raj Batra becameunconscious because of bullet Injury on his head and our attention gotdiverted towards him and all the three assailants managed to runaway…”

41.Insofar as the role alleged to be played by the Appellants in the

commission of offence is concerned, PW-20 initially identified Appellant

No.3 as the person who first came to the medical shop to buy painkiller and

after some time came back with his associate. PW-20 identified AppellantNo.2 as the associate. However, during the course of cross-examination bythe APP, PW-20 deposed that out of Appellant Nos.2 and 3, one of themcame first to buy medicine. PW-20 also refused to identify Appellant No.3 asthe person who snatched the mobile phone of the deceased. During thecourse of cross-examination by the APP, PW-20 further admitted that beforethe police he had stated that Appellant No.2 bought the painkiller andthereafter came again to the medical shop with firearm; Appellant No.3snatched the mobile of the deceased; ‘K’ fired the fatal bullet. Further, PW-20 denied the suggestion put to him by the APP that he was not taken behindthe desk or that he had seen the entire incident, including the firing of thefatal bullet by ‘K’.

42.A bare perusal of the testimony of PW-20 would reveal that he wastaken behind rack by one of the assailants from where he could not seewho fired the fatal bullet resulting in the death of the deceased. Therefore,deposition of PW-20 loses significance with respect to the assailant whofired the fatal bullet at the deceased or the sequence of events leading to thefatal bullet being fired. It would also be relevant to note that PW-20 has onlyidentified Appellant Nos.2 and 3 in court; and deposed only to the role

played by them in the commission of the offence, that too inconsistently.Nothing has been deposed by PW-20 against Appellant No.1 and the formerhas attributed no role to him, either in his deposition in court or statement tothe police. Consequently, the presence of Appellant No.1 at the crimespot/medical shop is itself in doubt if the testimony of PW-20 is consideredin isolation of the testimony of PW-2.

Moreover, PW-20 stated before the police that ‘K’ fired the fatalbullet, whereas, he has admitted in his testimony before the court that he wastaken behind the desk by one of the assailants and therefore could not seewho fired the bullet.

There are contradictions in the testimony of PW-20 even in relation tonumber of assailants involved in the commission of the offence. PW-20 alikePW-3 initially deposed only about three assailants. However, subsequentlyfour assailants in total were introduced, of which two were deposed to havecome first and two thereafter. But, PW-20 thereafter deposed in court that hesaw three assailants running away. Even in his statement to the police, PW-20 had stated only towards the role played by three assailants viz. AppellantNos.2 and 3 and ‘K’.

Further, PW-20 in his statement to the police had stated that AppellantNo.2 bought the medicine from the medical shop. However, PW-20 in histestimony initially deposed that Appellant No.3 bought the medicine andthereafter that out of Appellant Nos.2 and 3 one of them came first to buymedicine.

Further, there are inconsistencies in the testimony of PW-20 inrelation to the aspect whether there was an attempt to overpower twoassailants or one.

The testimony of PW-20 is also contradictory with respect to whomout of him and PW-3 caught the hands of the assailants, due to which firearmof one of the assailants fell down. PW-20 initially deposed that PW-3 caughttheir hands, whereas subsequently it was deposed by him that he along withthe latter caught their hands.

What was least expected of PW-20 was to be able to identify theassailant who allegedly took him inside near the inverter. However, there isno clarity in his testimony even in relation to that aspect.

PW-20 in court was also not able to identify Appellant No.3 as theperson who snatched the mobile phone of the deceased, even though in hisstatement to the police [Ex.PW-23/N] he had stated to that effect.

43.The testimonies of PW-3 and PW-20 also do not inspire confidencewhen considered inter se. On examination of the testimonies of PW-3 andPW-20 vis-à-vis each other, it would come to light that the testimonies of theeye witnesses are inconsistent with respect to the number of assailantsinvolved in the commission of the offence as well as on other materialaspects. There is also no clarity even with respect to the person who fired thefatal bullet, let alone the role played by the other assailants.

44.The Trial Court whilst acknowledging the contradictions in thetestimonies of PW-3 and PW-20, concluded that there is no confusion withrespect to the presence of the Appellants at the crime spot. The Trial Courtfurther went on to observe that PW-3 and PW-20 have deposed the incidentin cogent manner and their testimonies coincided completely with whatthey stated during investigation.

45.In our considered view, the conclusion arrived at by the Trial Courtthat there is no confusion with respect to the presence of the Appellants atthe crime spot and they are liable to be convicted, is perverse.

46.As discussed hereinbefore, PW-3 and PW-20 have not deposed in acoherent manner and there are material contradictions and inconsistenceis intheir testimonies with respect to the sequence of events, role played by the

Appellants, as well as, in relation to the number of assailants involved in thecommisssion of the underlying offence; and, resultantly, the same do notinspire confidence. As consequence thereof, even the identification by PW-3 and PW-20 of the Appellants also comes under the shadow. In this behalf,we are also guided by the decision of the Hon’ble Supreme Court in ParveenKumar (supra). In the said report, the Hon’ble Supreme Court whilerejecting the two dying delcarations, being inconsistent to each other,observed as follows:

“ 9. Counsel for the State submitted that since the respondent hasbeen named in both the dying declarations, his conviction couldbe sustained.We are afraid we cannot accede to his request. In thefirst place, in appeal against acquittal, this Court will not set aside thefindings of fact and the order of acquittal recorded by the High Courtunlessitissatisfiedthatthefindingsrecordedarewhollyunreasonable, perverse, not based on evidence on record, or sufferfrom serious legal infirmity. The mere fact that on the basis of thesame evidence another view is possible, is not ground for settingaside an order of acquittal. We find that the view taken by the HighCourt is possible reasonable view on the evidence on record and,therefore, we will not be justified in setting aside the order ofacquittal.

10. While appreciating the credibility of the evidence producedbefore the court, the court must view the evidence as whole andcome to conclusion as to its genuineness and truthfulness. Themere fact that two different versions are given but one name iscommon in both of them cannot be ground for convicting thenamed person. The court must be satisfied that the dyingdeclaration is truthful. If there are two dying declarations givingtwo different versions, serious doubt is created about thetruthfulness of the dying declarations. It may be that if there wasany other reliable evidence on record, this Court could have

considered such corroborative evidence to test the truthfulness ofthe dying declarations. The two dying declarations, however, inthe instant case stand by themselves and there is no other reliableevidence on record by reference to which their truthfulness can betested. It is well settled that one piece of unreliable evidencecannot be used to corroborate another piece of unreliableevidence.The High Court while considering the evidence on recordhasrightlyappliedtheprincipleslaiddownbythisCourtin Thurukanni Pompiah v. State of Mysore [AIR 1965 SC 939 : (1965)2 Cri LJ 31] and Khushal Rao v. State of Bombay [1958 SCR 552 :1958 Cri LJ 106] .

11. The High Court having subjected the dying declarations to closescrutiny, has reached the conclusion that they are not reliable. Weentirely agree.

12. We, therefore, find no merit in the appeal and the same isaccordingly dismissed.”

(Emphasis supplied)

47.Further, the Trial Court also fell into error in holding that PW-3 and

PW-20 have deposed in cogent manner and their testimonies coincidedcompletely with what they said during investigation. This conclusion arrivedat by the Trial Court is wrong on the face it, inasmuch as, the respectivetestimonies of PW-3 and PW-20 when compared to the statements made bythem to the police during investigation, would show that there are materialcontradictions in both the versions.

48.In view of the foregoing discussion, we are of the considered view thatPW-3 and PW-20 are not creditworthy witnesses so as to render finding ofconviction upon the testimonies thereof.

Test Identification Parade (TIP)

49.Coming to the aspect of TIP proceedings. Appellant No.2 wasidentified in TIP by PW-20 on 21.04.2011 [Ex.PW-7/B]. On 17.12.2011,TIP in relation to Appellant No.3 was also conducted, however, he refused toparticipate in the same [Ex.PW-7/B1]. Further, it is an admitted position thatno TIP was conducted of Appellant No.1.

50.No doubt that refusal by Appellant No.3 to participate in TIP wouldenable the court to draw an adverse inference against him, but that would notsubstitute for the burden on the prosecution to prove the charges against anaccused beyond reasonable doubt.

51.Insofar as the factum of identification by PW-20 of Appellant No.2 inTIP is concerned, reliance has been rightly placed by counsel for theAppellants on the decision of this Court in Rahisuddin (supra), wherein, aDivision Bench of this Court whilst disbelieving the testimony of the solitary

eye-witness observed as follows:

“37. The testimony of the solitary eye-witness, namely Lalit Kumar @Rinku does not inspire confidence and it would not be safe to act uponit to fasten finding of guilt. As highlighted by us, the conduct of thesaid witness is unnatural and the version of occurrence adduced byhim is in teeth with the scientific/medical evidence produced by theprosecution. The fact that state of articles found lying at scene ofcrime is not explained by the testimony of this witness, raises morequestions than answering the same.

-38. Indeed, successful identification of the accused by an eyewitness in TIP does lend corroboration/assurance to the dockidentification of such accused in Court. However, merely becausea witness identified the accused in TIP at the stage of investigationcannot cast aside the serious embellishments in his testimonybefore the Court and immune his evidence from judicial scrutiny.It is settled proposition of law that the Test IdentificationParade is merely an aid at the step of investigation and cannotattain the altar of substantive evidence.

39. The case of the prosecution hinges exclusively on the testimony ofLalit Kumar @ Rinku and there is no other evidence available onrecord to evince the involvement of the present appellant. We haveexpressed weighty reasons that impel us to jettison the evidence ofLalit Kumar @ Rinku from judicial consideration and de hors the saidevidence, case of the prosecution does not survive.”

(Emphasis supplied)

52.In view of the foregoing, when the testimony of PW-20 itself has been

discredited, identification of Appellant No.2 by PW-20 in TIP will not cometo the aid of the prosecution.

Recovery

53.The other piece of evidence sought to be relied upon by theprosecution is the recovery of mobile phone of the deceased from AppellantNo.1.

54.The circumstances of the present case indicate that robbery andmurder were part of the same transaction. However, mere recovery of stolenproperty from the accused, in the absence of any other evidence, would not

be safe ground to draw an inference that Appellant No.1 committed themurder. Furthermore, in such circumstance, conviction would be also bedependent upon the nature of the property recovered, and whether it waslikely to pass readily from hand to hand. Suspicion would not take the placeof proof. [Ref: State of Rajasthan v. Talevar, reported as (2011) 11 SCC666]

55.In the present case, the property recovered from Appellant No.1 is themobile phone of the deceased. The mobile phone was was likely to be passedreadily from hand to hand. It would also be relevant to note that the recoverywas made two months after the date of the incident.

56.Therefore, recovery of the mobile phone of the deceased fromAppellant No.1 two months after the incident would not be sufficient toconvict Appellant No.1 for the underlying offences and, at most, he can beconvicted for the offence punishable under the provision of section 411 IPC,for being in possession of stolen property. [Ref: Nagappa Dondiba Kalal v.State of Karnataka reported as 1980 (Supp) SCC 336]

57.Even though contention was sought to be raised on behalf ofAppellant No.1 that the recovery of mobile phone from Appellant No.1 istainted since, inter alia, there is no mention either in the PCR form [Ex.PW-

13/A] or the crime team report [Ex.PW-2/A] about the mobile phone beingtaken away by the assailants; the said contention is liable to be rejected,inasmuch as, relevant witnesses were not examined even in this behalf.

No explanation

58.The Hon’ble Supreme Court in Rajkumar v. State of MadhyaPradesh reported as (2014) 5 SCC 353, observed in relation to duty of theaccused to furnish an explanation under Section 313 CrPC regarding anyincriminating material produced against him, as follows:

“ 21. Admittedly, the appellant did not take any defence whilemaking his statement under Section 313 CrPC, rather boldlyalleged that the family of the deceased had roped him falsely atthe instance of the police. However, the appellant could not revealas to for what reasons the police was by any means inimical tohim.

22. The accused has duty to furnish an explanation in hisstatement under Section 313 CrPC regarding any incriminatingmaterial that has been produced against him. If the accused hasbeen given the freedom to remain silent during the investigationas well as before the court, then the accused may choose tomaintain silence or even remain in complete denial when hisstatement under Section 313 CrPC is being recorded. However, insuch an event, the court would be entitled to draw an inference,including such adverse inference against the accused as may bepermissible in accordance with law.(Vide Ramnaresh v. State ofChhattisgarh [(2012) 4 SCC 257 : (2012) 2 SCC (Cri) 382] , MunishMubar v. State of Haryana [(2012) 10 SCC 464 : (2013) 1 SCC (Cri)52:AIR2013SC912]and RajKumarSingh v. StateofRajasthan [(2013) 5 SCC 722 : (2013) 4 SCC (Cri) 812] .)

23. In the instant case, as the appellant did not take any defence orfurnish any explanation as to any of the incriminating materialplaced by the trial court, the courts below have rightly drawn anadverse inference against him.The appellant has not denied hispresence in the house on that night. When the children were left in thecustody of the appellant, he was bound to explain as under whatcircumstances Gounjhi died.”

(Emphasis supplied)

59.No doubt that failure of accused to furnish an explanation with respectto any incriminating material put to him would entitle the court to draw anadverse inference against him, however, we should not be oblivious of thefact that the initial burden is on the prosecution to prove all the chargesagainst the accused beyond reasonable doubt. The guilt of the accused mustbe conclusively proved by direct or circumstantial substantive piece ofevidence.

60.Further, the prosecution must stand or fall on its own legs and itcannot derive any strength from the weakness of the defence. Although,where all the links in the chain of events are complete, false plea or adefence may be called into aid but only to lend assurance to the court. Inother words, before using the additional link it must be proved that all thelinks in the chain are complete and do not suffer from any infirmity. It is notthe law that any infirmity or lacuna in the prosecution case could be cured or

supplied by false defence or plea which is not accepted by the court.[Ref: Sharad Birdhichand Sarda v. State of Maharashtra reported as(1984) 4 SCC 116]

61.The evidence available on record has either been discredited or held tobe not sufficient to render conviction thereupon. The prosecution has failedto bring home the guilt of the accused. Now the prosecution cannot seek tofall back on the statement of the Appellants recorded without oath underSection 313 CrPC.

62.Therefore, in light of the facts and circumstances of the present case,failure on the part of the Appellants to furnish an explanation with respect tothe incriminating material put to them, would not come to the aid of theprosecution.Conclusion

63.A Division Bench of the High Court of Bombay in Geeta KeshavShankar v. The State of Maharashtra reported as 2009 (111) BomLR 1163observed as follows:

“ 62. The standard of proof in criminal case has to be beyondreasonable doubt. This expression is of higher standard, of course,there cannot be absolute standard stating degree of proof. Thiscould depend upon the facts of given case. Doubts would becalledreasonableiftheyarefreefrom zestforabstractspeculation. To constitute reasonable doubt, it must be free fromanoveremotionalresponse.Doubtsmustbeactualand

substantial doubts as to the guilt of the accused person arisingfrom the evidence.”

(Emphasis supplied)

64.In the given factual background, the possibility of persons other thanthe Appellants having committed the underlying offence cannot be ruled outwith fair degree of certainty. Convicting the appellants on the scantyevidence available on record would amount to conviction on mere suspicionand supposition. In our considered view, the offence has not been provedagainst the Appellants beyond reasonable doubt and lacks the certaintyrequired and mandated by law.

65.Therefore, the present appeals are allowed and the impugned judgmentis set aside. However, in the given factual scenario, Appellant No.1 isconvicted for the offence punishable under the provision of section 411 IPCand is directed to undergo imprisonment for period of 3 years. However, ifalready undergone incarceration for the said period, Appellant No.1 alongwith Appellant Nos.2 and 3 are directed to be set at liberty forthwith, subjectto their not being required in any other case.66.Pending applications stand disposed off.

67.Copy of the judgment be supplied to the Appellants through theSuperintendent,CentralJail,Tiharfornecessaryinformationandcompliance, and also be sent for updation of the records.

SIDDHARTH MRIDUL, J.

NAJMI WAZIRI, J.

FEBRUARY 23, 2018ap/mk