MUNNA LAL versus THE STATE OF UTTAR PRADESH

[2023] 3 S.C.R. 224

[2023] 3 S.C.R.

MUNNA LAL

THE STATE OF UTTAR PRADESH

(Criminal Appeal No.490 of 2017)

BJANUARY 24, 2023

[S. RAVINDRA BHAT AND DIPANKAR DATTA, JJ.]

Code of Criminal Procedure, 1973 : s. 374(2) –Appeal fromconvictions – Murder of the complainant’s father – Previous enmitybetween the parties – On the fateful day, the appellants armed withCweapons inflicted gun shot injuries and blows to the victim resultingin his death – FIR against the appellants – Surviving appellantsconvicted u/s. 302 IPC and sentenced to life imprisonment – Upheldby the High Court – On appeal, held : PW-2 being inimical to theappellants, his testimony to be taken carefully – PW-3 was at theDbest, chance witness – Circumstances on record do not justify thepresence of PW-3 at the place of occurrence – Oral testimony ofPW-2 and PW-3, the so-called eye witness, not free from doubt andtheir evidence not of unimpeachable quality – Rule of prudencedemands corroboration of their versions from other witnesses presentat the place of occurrence and witnessed the murder of the victim,Ehowever, they were not examined – Moreover, non-examination ofthe investigating officer created reasonable doubt in the prosecutioncase – On proper evaluation, it has transpired that there werereasons for which PW-2 might have falsely implicated the appellantsand also that PW-3 was not wholly reliable witness – There is aFfair degree of uncertainty in the prosecution story and the courtsbelow appear to have somewhat been influenced by the oraltestimony of PW-2 and PW-3, without taking into consideration theeffect of the other attending circumstances, thereby warrantinginterference – Charge that the appellants had murdered the victim,not proved beyond reasonable doubt, thus, entitled to benefit ofGdoubt – Order of conviction and sentence passed by the courtsbelow set aside – Evidence Act, 1872.

Allowing the appeals, the Court

HELD: 1.1 By reason of the uncontroverted evidence of aHcontinued enmity existing from 10 (ten) years preceding the

alleged murder of the victim by and between the two groups, itcould be established that PW-2 nurtured personal ill–will towardsthe appellants and the possibility of PW-2 having acted withintention to keep the appellants away from legal proceedings aswell as interference in property rights cannot be totally ruledout; hence, PW-2 being inimical to the appellants, his testimonyhas to be taken with pinch of salt and deeper scrutiny of theother evidence on record is also indeed called for. [Para 31][238-D-F]

1.2. Having found from the oral evidence of PW-2 whattranspired on the fateful morning, it is considered necessary tolook into the oral testimony of PW-3. There was indeed an attempton the part of the appellants to establish that PW-3 was relativeof PW-2 and that being an interested witness apart from ‘chancewitness’, his testimony is not wholly reliable. It is not clear fromthe testimony of PW-3 as to why, so early in the morning, he hadthe occasion to pass by the place of occurrence. It is found thatPW-3 is resident of place N whereas PW-2 happened to be aresident of place S. The distance between the two places is 1–2miles. The incident of murder happened within the jurisdictionallimits of Police Station T. It has not surfaced from the evidence ofPW-3 very early from where he started and where he was headedfor. ‘GD’ could be the village, where the matrimonial home of thesister of PW-3 is; but for what purpose he had left is not too clear.It was not said by PW-3 that he was on his way to his sister’sresidence. In cross–examination, PW-3 denied having resided inplace S. [Para 32][238-F-H; 239-A-B]1.3. In order to prove the guilt of the appellants beyondreasonable doubt, some more particulars were required giventhe circumstance that PW-3 was at best ‘chance witness’.Incidentally, PW-2 had denied being related to PW-3 and it wasnot elicited by the prosecution from PW-2 as to how he came toknow the name of PW-3, given the fact that the latter was aresident of different village. Similarly, PW-3 too did not say thathe knew PW-2 or his father from before. The nature ofacquaintance that PW-2 and PW-3 had, ought to have beenbrought out by the prosecution. That apart, although it is truethat PW-3 gave vivid description of how N was shot by ML, no

Aspecific role was attributed insofar as SL is concerned exceptthat all 4 (four) accused were “beating” (as deciphered from theevidence recorded in Hindi) and not “killing” (as available fromthe translated version in the paper–book) N. Again, in course ofcross–examination, PW-3 deposed that ML had shot N withoutelaborating whether SL also inflicted any injury on N. There is anBapparent inconsistency between the versions of PW-2 and PW-3insofar as the role attributed to SL by PW-2 is concerned, whichcan hardly be overlooked. [Para 33][239-C-E]

1.4. The circumstances as appearing from the record donot justify the presence of PW-3 at the place of occurrence. TheCoral testimony of PW-2 and PW-3 is not free from doubt and theirevidence not being of unimpeachable quality, the rule of prudencewould demand corroboration of their versions from otherwitnesses who, according to PW-2 and PW-3, were present at theplace of occurrence and witnessed the murder of N. [Para 34][239-DF-G]

1.5. As per the evidence of PW-2 and PW-3, there wereother eye-witnesses of whom K was key witness, and CL andKH were independent witnesses. Since it was the version of PW-2 and PW-3 that K, CL and KH were present at the place ofEoccurrence and had also witnessed, inter alia, the incident of“beating” of N with ‘kanta’ by SL and firing of gunshot at himby ML, direct evidence could have been provided by either ofthe three (K, CL and KH) corroborating the versions of PW-2and PW-3. For reasons best known to the prosecution, these threeindividuals, named both by PW-2 and PW-3 as other eye-witnesses,Fwere not examined leading this Court to draw an inference thathad they been examined, the prosecution story would not havebeen supported by them.[Para 35][239-G-H; 240-A-B]

1.6. The statement of PW-3 under section 161, Cr. P.C.was recorded nearly 24 days after the incident. Since theGInvestigating Officer did not enter the witness box, the appellantsdid not have the occasion to cross–examine him and thereby elicitthe reason for such delay. Consequently, the delay in recordingthe statement of PW3 in course of investigation, is not referredto and, therefore, remains unjustified. The possibility of PW-3,

being fixed up as an eye-witness later during the process ofinvestigation, cannot be totally ruled out. [Para 38][240-F]

1.7. Though PW-4 is said to have reached the place ofoccurrence at 1.30 p.m. on 5th September, 1985 and recovered abullet in the blood oozing out from the injury at the hip of thedead body, no effort worthy of consideration appears to have beenmade to seize the weapons by which the murderous attack waslaunched. It is true that mere failure/neglect to effect seizure ofthe weapon(s) cannot be the sole reason for discarding theprosecution case but the same assumes importance on the faceof the oral testimony of the so-called eyewitnesses, i.e., PW-2and PW-3, not being found to be wholly reliable. The missinglinks could have been provided by the Investigating Officer who,again, did not enter the witness box. Whether or not non–examination of witness has caused prejudice to the defence isessentially question of fact and an inference is required to bedrawn having regard to the facts and circumstances obtaining ineach case. The reason why the Investigating Officer could notdepose as witness, as told by PW-4, is that he had been sent fortraining. It was not shown that the Investigating Officer under nocircumstances could have left the course for recording of hisdeposition in the trial court. It is worthy of being noted that neitherthe trial court nor the High Court considered the issue of non–examination of the Investigating Officer. In the facts of the instantcase, particularly conspicuous gaps in the prosecution case andthe evidence of PW-2 and PW-3 not being wholly reliable, theinstant case as one where examination of the Investigating Officerwas vital since he could have adduced the expected evidence.His non–examination creates material lacuna in the effort ofthe prosecution to nail the appellants, thereby creating reasonabledoubt in the prosecution case. [Para 39][240-G-H; 241-A-D]

1.8 As far as non-obtaining of ballistic report is concerned,it is no doubt true that its essentiality would depend upon thecircumstances of each case. Since no weapon of offence was seized,no ballistic report was called for and obtained. No evidence hasbeen taced in the records that ML had licensed gun. However,nothing turns on it. The failure/neglect to seize the weapons ofoffence, on facts and in the circumstances of the instant case, has

Athe effect of denting the prosecution story so much so that thesame, together with non-examination of material witnessesconstitutes vital circumstance amongst others for granting theappellants the benefit of doubt. [Para 40][241-E-F]

1.9. The medical evidence tendered by PW-1, if believedBin its entirety, leads to form an opinion that the evidence of PW-4 of he having recovered bullet leading to its seizure at theplace of occurrence as doubtful.[Para 41][241-G]

1.10. Although, mere defects in the investigative processby itself cannot constitute ground for acquittal, it is the legalCobligation of the Court to examine carefully in each case theprosecution evidence de hors the lapses committed by theInvestigating Officer to find out whether the evidence broughton record is at all reliable and whether such lapses affect theobject of finding out the truth. Being conscious of the aboveposition in law and to avoid erosion of the faith and confidence ofDthe people in the administration of criminal justice, the evidenceled by the prosecution is examined threadbare and refrained fromgiving primacy to the negligence of the Investigating Officer aswell as to the omission or lapses resulting from the perfunctoryinvestigation undertaken by him. The endeavour of this CourtEhas been to reach the root of the matter by analysing and assessingthe evidence on record and to ascertain whether the appellantswere duly found to be guilty as well as to ensure that the guiltydoes not escape the rigours of law. The disturbing features in theprocess of investigation, since noticed, have not weighed in theCourt’s mind to give the benefit of doubt to the appellants but onFproper evaluation of the various facts and circumstances, it hastranspired that there were reasons for which PW-2 might havefalsely implicated the appellants and also that PW-3 was not awholly reliable witness. There is fair degree of uncertainty inthe prosecution story and the courts below appear to haveGsomewhat been influenced by the oral testimony of PW-2 andPW-3, without taking into consideration the effect of the otherattending circumstances, thereby warranting interference. [Para42][242-B-F]

1.11. The charge that the appellants had murdered N, cannotHbe said to have been proved beyond reasonable doubt; hence,

they are entitled to the benefit of doubt. The trial court’s judgmentof conviction and order of sentence being unsustainable, is setaside; consequently, the impugned judgment and order passedby the High Court, upholding the conviction and sentence, too isset aside. [Para 43][242-G; 243-A]

Jarnail Singh vs. State of Punjab (2009) 9 SCC 719 :[2009] 13 SCR 774 – referred to.

Case Law Reference

[2009] 13 SCR 774referred toPara 23

CRIMINAL APPELLATE JURISDICTION : Criminal AppealNo.490 of 2017.

From the Judgment and Order dated 09.07.2014 of the High Courtof Judicature at Allahabad in CRLA No.539 of 1986.

With

Criminal Appeal No.491 of 2017.

Mukesh K. Giri, Adv. for the Appellant.

Ankur Prakash, Sanjay Kumar Tyagi, Prabhat Kumar Rai, SanjayKumar, Pawan, Memansak Bhardwaj, Ms. Hardikaa, Advs. for theRespondent.

The Judgment of the Court was delivered by

DIPANKAR DATTA, J.

THE CHALLENGE

These two criminal appeals, arising out of the same occurrence,call in question the judgment and order of the High Court of Judicatureat Allahabad dated 9[th] July, 2014 dismissing Criminal Appeal No.539 of1986 [being an appeal under section 374(2) of the Code of CriminalProcedure (hereafter “Cr. P.C.”, for short)] carried by the appellantsfrom the judgment and order dated 29[th] January, 1986 of the Court ofIInd Additional Sessions Judge, Shahjahanpur, Uttar Pradesh, in S.T.No.499 of 1985.

FIRST INFORMATION REPORT (F.I.R.)

2. Narayan, father of Ram Vilas, was murdered in the morning of5[th] September, 1985 round about 10.00 hours. written complaint was

Alodged soon thereafter, at about 12.10 hours, by Ram Vilas leading toregistration of an F.I.R. under section 302 of the Indian Penal Code(hereafter “IPC”, for short). One Dr. Mohd. Hanif Khan was the scribeof the said FIR. Munna Lal, Sheo Lal, Babu Ram, and Kalika wereaccused of committing such murder.

BINQUEST

3. Consequent upon registration of the F.I.R., Shailendra BahadurChandra, the Station Police Officer of Police Station Tilhar (who wasalso the Investigating Officer) proceeded to the place of occurrence,along with Ram Pal Sagar, S.I., and Udham Singh, constable. InquestChad been conducted by Ram Pal Sagar in course whereof bullet wasrecovered at the place of occurrence from the blood oozing out fromone of the injuries suffered by Narayan.

CHARGE(S)

4. Upon completion of investigation, charge-sheet under sectionD302 was filed before the concerned court against each of the 4 (four)accused. Kalika had passed away in the meanwhile. Upon committal,the trial court framed the following charges:

“Charge

I, Sanwal Singh, II Addl. Sess. Judge, Shahjahanpur, do herebyEcharge you : -

1. Shiv Lal

2. Munna Lal

3. Babul Ram, as follows:

That you along with Kalika on 05.09.85 at about

10.00 A.M. in village Fatehpur Bujurg alias Mohaddipur, policestation Tilhar, District : Shahjahanpur, at the field of Budhu Khansituated in the west of village Abadi did commit murder byGintentionally and knowingly causing the death of Narain in thatyou Munna caused injuries by gunshot, you Babu Ram causedinjuries by tamancha and you Shiv Lal caused injuries by Kantaand your associate Kalika deceased caused injuries by lathi andall of you intentionally co-operated in the commission of the saidoffence and that you thereby committee an offence punishableHunder section 302 I.P.C. and within the cognizance of this court

of sessions.

And I hereby direct that you be tried by this court of sessions onthe said charge.

TRIAL

5. The prosecution examined 5 (five) witnesses to support its caseand more than dozen of documentary evidence. None was examinedon behalf of the defence.

6. PW-1 was Dr. Ramesh, who conducted post-mortem. Thefollowing ante-mortem injuries were found on the cadaver of Narayan:

(1)Lacerated wound 2 cm x 1 cm over forehead 3 cm aboveleft eye brow wall maggots present.

(2)Lacerated wound 4 cm x 1 cm over chin 1 cm below lowerlip. Maggots were present.

(3)Lacerated wound 3 cm x 1 cm left side face 2 cm leftDlateral to left side of mouth.

(4)Incised wound 17 cm x 8 cm over front of abdomen cavitydeep 5 cm above umbilicus. Visceral organs prolapsing.

(5)Gunshot wound of entry 2 cm x 1 cm over front of abdomen3 cm right lateral to umbilicus tattooing present. Directionbackward downward.

(6)Gunshot wound of exit 6 cm x 5 cm over left side of hip 5cm below iliac crest.

(7)Gunshot wound of entry 2 cm x 1 cm over front of rightthigh 15 cm below ilicae spine (ant) with direction backwardFlateral.

(8)Gunshot wound of exit 3 cm x 2 cm over lateral side ofright thigh 12 cm below iliae crest.”

7. According to PW-1, “death of Narayan occurred due toshock and haemorrhage and much bleedings”; injury nos. 5 and 6and likewise injury nos.7 and 8 noted above were respectively the entryand exit wounds corresponding with each other, which could be causedby gun and tamancha shots, whereas injury nos. 1, 2, and 3 were possibleby lathi and injury no.4 could be caused by “kanta”.

A8. Ram Vilas, son of the deceased, while deposing as PW-2 statedthat quarrel had taken place 10 (ten) years before between Narayanand Jaswant (father of Sheo Lal) and Sheo Lal and that Jaswant died inthat quarrel. One ‘Aajudhi’, on the side of Sheo Lal, was murdered.Narayan was, however, acquitted. PW-2 identified, inter alia, MunnaLal and Sheo Lal who were present in the Court. According to PW-2, onBthe date of the fateful incident, he along with his father Narayan afterploughing their field had reached the field of Budhu Khan when the 4(four) accused persons suddenly came out from the field belonging toSheo Lal. The said accused viz., Munna Lal, Sheo Lal, Babu Ram andKalika, were armed with ‘bandook’ (gun), ‘kanta’ (sharp edged weapon),C‘tamancha’ (locally made gun), and ‘lathi’ (stick) respectively. They werehurling abuses, and exhorting to kill Narayan. Narayan received gunshotinjuries from Munna Lal and Babu Ram, whereas Sheo Lal and Kalikainflicted blows on him by kanta and lathi, respectively. Such incidentwas also witnessed by Kedar, Hemraj, Khamkaran and Chhange Lal.Kedar and Hemraj requested not to kill. It was reiterated that HemrajDhad come at the time of incident and had seen the incident. After theaccused persons fled, other persons had reached there. PW-2 findingthat Narayan was dead, reached the shop of Dr. Hanif and narrated theincident to him whereupon Dr. Hanif had written the complaint and readover the contents to PW-2. PW-2 neither signed nor affixed his thumbEimpression on the report written by Dr. Hanif but when PW-2 took thereport to the police station, he had affixed his thumb impression on thereport which was written by the ‘munshi’ in the police station.

9. In course of cross-examination, PW-2 disclosed that Narayanhad made an application for cancelling the license of the gun of JaswantFand had made ‘pairvi’. Narayan had earlier been tried in case undersection 302, IPC and he also filed cross-case; further, case undersection 107/116, Cr. P.C. was pending against Narayan; also, caseunder section 145, Cr. P.C. was pending wherein PW-2 and his fatherNarayan were the accused persons. In the latter case, Munna Lal was

witness against them. Since the murder of ‘Aajudhi’, there has beenGconstant enmity with Sheo Lal. However, till the murder of Narayan,there was no ‘marpeet’ or ‘pairokari’ with PW-2 or his father. PW-2“had not affixed thumb impression on the report at the police station”but had affixed his thumb impression on it at the ‘dukaan’ (shop) ofHanif and handed over the same to the munshi.H

10. Hemraj, an eye-witness, deposed as PW-3. Sister of PW-3resides in Gopalpur Dhadhipura and he is on visiting terms. The distancebetween Mohaddipur and Gopalpur is 1-2 miles. Whenever PW-3 usedto travel to Gopalpur from his village, he used to take the outer road ofvillage Mohaddipur. When he reached near the field of Budhu Khan, theaccused persons armed with gun, kanta, tamancha, and lathi, were killingNarayan. PW-2 was present at the place of occurrence. Two passersbyviz., Chhange Lal and Khemkaran had reached there. Apart from PW-3, Kedar who was grazing two buffaloes had also seen the incident.After inflicting blows on Narayan, the accused persons fled towards thesouthern direction. Narayan had died.11. In course of cross-examination, PW-3 denied the suggestionsthat he was related to the family of Narayan. PW-3 reiterated that Kedarwas grazing animals near the place of occurrence and Khemkaran andChhange Lal came there in his (PW-3) presence. By the time PW-3 leftthe place of occurrence, 20 (twenty) to 25 (twenty-five) personsassembled there of whom one old lady and one girl from the family ofNarayan were weeping. Neither could PW-3 identify the wife of RamVilas nor did he know the name of villagers who reached there later.

12. Ram Pal Sagar, who conducted inquest, was PW-4. PW-4deposed that in course of inquest, he found bullet in the blood oozingout from the injury at the hip of the deceased. He proved the charge-sheet and the seizure memo pertaining to the bullet that was recovered.PW-4 also deposed that, among others, he could find Kedar on reachingthe place of occurrence.

13. Constable Udham Singh deposed as PW-5. PW-5 hadaccompanied the Investigating Officer to the place of occurrence, wherePW-4 had conducted the inquest.

14. Significantly, Dr. Hanif, Kedar, Chhange Lal, Khemkaran andthe Investigating Officer were not examined by the prosecution. Further,neither the gun and the tamancha nor the kanta and lathi were seized.Also, there were no forensic laboratory or ballistic reports.

15. Ultimately, upon consideration of the evidence on record, theSessions Judge held that the consistent and unimpeachable direct evidenceproved the case, which was supported by dependable probabilities,existence of motive, medical evidence and all other circumstances. Inso holding, the ocular account of PWs 2 and 3 weighed with the trial

Acourt while holding Munna Lal, Sheo Lal and Babu Ram guilty of theoffences with which they were charged. It was also held that the promptF.I.R. presented guarantee about the truthfulness of the case.Consequently, by his judgment dated 29[th] January, 1986, the judgeconvicted the surviving accused, viz., Munna Lal, Sheo Lal and BabuRam, and imposed upon them the sentence of life imprisonment.B

APPEAL

16. As noted above, the aforesaid judgment and order of theSessions Judge was carried in appeal before the High Court of Judicatureat Allahabad by Munna Lal, Sheo Lal and Babu Ram.

17. During the pendency of the appeal, Babu Ram passed away;hence, the appeal at his instance stood abated.

18. Upon hearing arguments advanced on behalf of Munna Laland Sheo Lal as well as on behalf of the State of Uttar Pradesh and onconsideration of the materials on record, the High Court concurred withDthe findings returned by the Sessions Judge and observed that there wasno sufficient ground to interfere. While dismissing the said appeal, theHigh Court directed Munna Lal and Sheo Lal, who were on bail, tosurrender before the trial court to serve out the remaining period of theirsentences within 30 days, failing which the trial court was directed toEensure their arrest and to send them to jail for serving sentences inaccordance with law.

PROCEEDINGS BEFORE THIS COURT

19. Aggrieved by the dismissal of Criminal Appeal No.539 of 1986by the High Court, Munna Lal and Sheo Lal applied for special leave toFappeal whereupon leave was granted by this Court by an order dated 6[th]March, 2017.

20. In the meanwhile, Munna Lal and Sheo Lal had been takeninto custody after dismissal of their appeal by the High Court. Both theappellants having served their respective sentences in excess of 11 yearsGand 11 months, they applied for bail. While considering the application(s)for bail on 10[th] January, 2023, this Court directed the parties to returnbetter prepared the following day to address on the merits of the appeals.

21. Mr. Mukesh K. Giri, learned counsel appearing for theappellants viz., Munna Lal and Sheo Lal, and Mr. Sanjay Kumar Tyagi,Hlearned counsel for the respondent, have been heard at sufficient length.

APPELLANTS’ARGUMENTS

22. Mr. Giri took serious exception to the findings returned by thetrial court and the High Court. According to him, from the evidence onrecord, it is absolutely clear that there was long-standing enmity betweenNarayan and Jaswant (father of Munna Lal) and the courts below failedto take note that it was clear case of false implication. Further, hecontended that the statement of Hemraj, PW-3, under section 161, Cr.P.C. was recorded on 29[th] September, 1985, i.e., more than 24 (twenty-four) days after Narayan was allegedly murdered by the appellants. Inthe absence of the Investigating Officer entering the witness box, therewas no justifiable explanation for this delay in recording such statementand the same deeply prejudiced the appellants. Next, referring to non-production of Dr. Hanif, Kedar, Chhange Lal and Khemkaran, asprosecution witnesses, it was contended by him that the same ought tohave been held fatal for the prosecution case.

23. Continuing further, Mr. Giri contended that PW-3 was only achance witness, and being resident of village different from the villagewhere the appellants and Narayan with his family members resided, hehad no reason to be there at the place of occurrence at 10.00 hours inthe morning and no plausible explanation was proferred by him. Forsupporting his contention that the evidence of chance witness requirescautious and close scrutiny, that his presence at the place of occurrencemust be adequately established, and that deposition of chance witness,whose presence at the place of occurrence remains doubtful, should bediscarded, reliance was placed by Mr. Giri on the decision of this Courtreported in (2009) 9 SCC 719 (Jarnail Singh vs. State of Punjab).

24. Mr. Giri further contended that Munna Lal’s double barrelgun was covered by licence and no attempt was ever made to seizesuch gun. Interestingly, bullet having been seized at the place whereNarayan’s dead body lay, there was also no attempt to obtain the opinionof ballistic expert to ascertain whether the bullet could have been firedfrom Munna Lal’s gun.

25. Also, Mr. Giri contended that failure of the prosecution tohave the testimony of the Investigating Officer recorded ought to beregarded as serious flaw which lends credence to the defence versionthat Narayan might have been murdered by someone else but becauseof the previous enmity, Munna Lal and Sheo Lal were falsely arraignedas accused.

AARGUMENTS OF THE STATE

26. Per contra, Mr. Tyagi, learned counsel for the commonrespondent, contended that the trial court as well as the High Courtmeticulously scanned the evidence on record and returned findings thatMunna Lal and Sheo Lal along with Babu Ram were guilty of the offenceBof murder. Mere flaws in the process of investigation, according to him,would not be sufficient for dislodging the findings so returned. Theversions of PW-2 and PW-3, the eye- witnesses, were found to be reliableand trustworthy by the courts below and there being nothing on recordto impeach such versions, no interference is called for. He also contendedthat omission to seize the weapons of offence and/or mere non-productionCof ballistic report cannot by itself be fatal for the prosecution case wherecredible ocular evidence is available on record unmistakably pointing tothe guilt of the accused. He concluded by submitting that the appealsbeing devoid of any merit, deserve dismissal.

THE QUESTIOND

27. The question that this Court is tasked to decide on thesecriminal appeals is, whether the trial court, on the basis of the materialsbefore it, was justified in recording conviction and consequently,sentencing the appellants to spend the rest of their lives in prison. Sincethe High Court has upheld the judgment and order of the trial court, theEanswer to this question would guide this Court to decide the appeals oneway or the other.

DECISION

28. Before embarking on the exercise of deciding the fate of theseappellants, it would be apt to take note of certain principles relevant forFa decision on these two appeals. Needless to observe, such principleshave evolved over the years and crystallized into ‘settled principles oflaw’. These are:

(a). Section 134 of Indian Evidence Act, 1872, enshrines the well-recognized maxim that evidence has to be weighed and not counted. InGother words, it is the quality of evidence that matters and not the quantity.As sequitur, even in case of murder, it is not necessary to insist upona plurality of witnesses and the oral evidence of single witness, iffound to be reliable and trustworthy, could lead to conviction.

(b). Generally speaking, oral testimony may be classified into threeHcategories, viz.:

(i)Wholly reliable;A

(ii)Wholly unreliable;

(iii)Neither wholly reliable nor wholly unreliable.

The first two category of cases may not pose serious difficultyfor the court in arriving at its conclusion(s). However, in the third categoryof cases, the court has to be circumspect and look for corroboration ofany material particulars by reliable testimony, direct or circumstantial, asa requirement of the rule of prudence.

(c). defective investigation is not always fatal to the prosecutionwhere ocular testimony is found credible and cogent. While in such acase the court has to be circumspect in evaluating the evidence, faultyinvestigation cannot in all cases be determinative factor to throw out acredible prosecution version.

(d). Non-examination of the Investigating Officer must result inprejudice to the accused; if no prejudice is caused, mere non-examinationwould not render the prosecution case fatal.

(e). Discrepancies do creep in, when witness deposes in naturalmanner after lapse of some time, and if such discrepancies arecomparatively of minor nature and do not go to the root of theprosecution story, then the same may not be given undue importance.

29. On appreciation of the oral evidence tendered by PW-2 andPW-3, this Court is of the view that its conclusions would have been nodifferent from those arrived at in the judgments impugned but for certainvital factors, proposed to be discussed little later, which unfortunatelydid not engage the attention of the courts below. Also, had the lacunaebeen of minor nature, it may not have been at all difficult for this Courtto accept what PW-2 and PW-3 deposed, in the light of the medicalevidence tendered by PW-1, and uphold the finding that Narayansuccumbed to the gunshot and other injuries inflicted upon him by theappellants. Truly, it would have been an open and shut case of murder inwhich Narayan was the victim and the appellants were the perpetratorsof the crime.

30. However, the situation takes turn for the worse for theprosecution in view of the previous history of enmity, spread over almost10 (ten) years prior to the murder of Narayan, between him (Narayan)and the appellants. Not only did the appellants testify in course of

Aexamination under section 313, Cr. P.C. that Munna Lal was witnesson behalf of Sheo Lal in proceedings under section 145, Cr. P.C. relatingto property dispute between the predecessors-in-interest of Sheo Laland Ram Vilas (PW-2), it is evident from the deposition of PW-2 himselfthat there was long standing quarrel during the last 10 (ten) yearsbetween Narayan on the one hand and Jaswant (father of Sheo Lal)Band Sheo Lal on the other; further that, Jaswant and one other personhad died in that quarrel; and that, such enmity continued since Sheo Lalwanted to take forcible possession of the residential land prior to themurder of Narayan, for which case under section 145, Cr. P.C. hadbeen registered and in which Munna Lal was witness against PW-2.CThe endeavour on the part of the appellants has been to demonstratebefore this Court that Munna Lal and Sheo Lal have been falselyimplicated since PW-2 intended to ensure that they are put behind thebars and thereby an end to the property dispute is brought about in amanner not countenanced by law.

D31. This part of the contention of the appellants cannot be totallybrushed aside. By reason of the uncontroverted evidence of continuedenmity existing from 10 (ten) years preceding the alleged murder ofNarayan by and between the two groups, it could be established thatPW-2 nurtured personal ill-will towards the appellants and the possibilityof PW-2 having acted with intention to keep the appellants away fromElegal proceedings as well as interference in property rights cannot betotally ruled out; hence, PW-2 being inimical to the appellants, his testimonyhas to be taken with pinch of salt and deeper scrutiny of the otherevidence on record is also indeed called for bearing the settled principles,referred to above, in mind.F

32. Having found from the oral evidence of PW-2 what transpiredon the fateful morning, it is considered necessary to look into the oraltestimony of PW-3. There was indeed an attempt on the part of theappellants to establish that PW-3 was relative of PW-2 and that beingan interested witness apart from ‘chance witness’, his testimony is notGwholly reliable. It is not clear from the testimony of PW-3 as to why, soearly in the morning, he had the occasion to pass by the place ofoccurrence. It is found that PW-3 is resident of Nevdiya, Police StationKhudaganj, District Shahjahanpur whereas PW-2 happened to be aresident of Fatehpur Bujurg, Police Station Tilhar, District Shahjahanpur.The distance between the two places is 1-2 miles. The incident of murderH

happened within the jurisdictional limits of Police Station Tilhar. It hasnot surfaced from the evidence of PW-3 very clearly from where hestarted and where he was headed for. Gopalpur Dhadipura could be thevillage, where the matrimonial home of the sister of PW-3 is; but forwhat purpose he had left is not too clear. It was not said by PW-3 that hewas on his way to his sister’s residence. In cross-examination, PW-3denied having resided in “Fatehpur Bujurg urf Mohaddipur”.

33. In order to prove the guilt of the appellants beyond reasonabledoubt, some more particulars were required given the circumstance thatPW-3 was at best ‘chance witness’. Incidentally, PW-2 had deniedbeing related to PW-3 and it was not elicited by the prosecution fromPW-2 as to how he came to know the name of PW-3, given the fact thatthe latter was resident of different village. Similarly, PW-3 too didnot say that he knew PW-2 or his father from before. The nature ofacquaintance that PW-2 and PW-3 had, ought to have been brought outby the prosecution. That apart, although it is true that PW-3 gave vividdescription of how Narayan was shot by Munna Lal, no specific rolewas attributed insofar as Sheo Lal is concerned except that all 4 (four)accused were “beating” (as deciphered from the evidence recorded inHindi) and not “killing” (as available from the translated version in thepaper-book) Narayan. Again, in course of cross-examination, PW-3deposed that Munna Lal had shot Narayan without elaborating whether

Sheo Lal also inflicted any injury on Narayan. There is an apparentinconsistency between the versions of PW-2 and PW-3 insofar as therole attributed to Sheo Lal by PW-2 is concerned, which can hardly beoverlooked.

34. However, what is of prime importance is that the circumstancesas appearing from the record do not justify the presence of PW-3 at theplace of occurrence. This Court is, therefore, of the firm view that theoral testimony of PW-2 and PW-3 is not free from doubt and their evidencenot being of unimpeachable quality, the rule of prudence would demanda corroboration of their versions from other witnesses who, according toPW-2 and PW-3, were present at the place of occurrence and witnessedthe murder of Narayan.

35. As per the evidence of PW-2 and PW-3, there were othereye-witnesses of whom Kedar was key witness, and Chhange Laland Khemkaran were independent witnesses. Since it was the versionof PW-2 and PW-3 that Kedar, Chhange Lal and Khemkaran were

Apresent at the place of occurrence and had also witnessed, inter alia,the incident of “beating” of Narayan with ‘kanta’ by Sheo Lal andfiring of gunshot at him by Munna Lal, direct evidence could havebeen provided by either of the three (Kedar, Chhange Lal andKhemkaran) corroborating the versions of PW-2 and PW-3. For reasonsbest known to the prosecution, these three individuals, named both byBPW-2 and PW-3 as other eye-witnesses, were not examined leadingthis Court to draw an inference that had they been examined, theprosecution story would not have been supported by them.

36. Not only were Kedar, Chhange Lal and Khemkaran notexamined, the prosecution also did not examine Dr. Hanif to whom PW-C2 had approached and allegedly narrated the incident of murder for beingtranscribed into report. Whether at all Dr. Hanif had taken down theversion of PW-2 in writing could have been deposed by him but in theabsence thereof, cloud of doubt is formed for which this Court is againcompelled to draw an inference that Dr. Hanif may not have been in theDpicture at all. This Court, however, does not attach much importance tothe clear inconsistency in the deposition of PW-2 as to where preciselyhe affixed his thumb impression on the report, i.e., in the shop of Dr.Hanif or at the police station. It is minor discrepancy which can bediscarded.

E37. The aforesaid circumstances have to be appreciated in thelight of three other circumstances, which could be viewed as extenuating.

38. First, statement of PW-3 under section 161, Cr. P.C. wasrecorded nearly 24 days after the incident. Since the Investigating Officerdid not enter the witness box, the appellants did not have the occasion toFcross-examine him and thereby elicit the reason for such delay.Consequently, the delay in recording the statement of PW-3 in course ofinvestigation, is not referred to and, therefore, remains unjustified. Thepossibility of PW-3, being fixed up as an eye-witness later during theprocess of investigation, cannot be totally ruled out.

G39. Secondly, though PW-4 is said to have reached the place ofoccurrence at 1.30 p.m. on 5[th] September, 1985 and recovered bulletin the blood oozing out from the injury at the hip of the dead body, noeffort worthy of consideration appears to have been made to seize theweapons by which the murderous attack was launched. It is true thatmere failure/neglect to effect seizure of the weapon(s) cannot be theHsole reason for discarding the prosecution case but the same assumes

importance on the face of the oral testimony of the so-called eye-witnesses, i.e., PW-2 and PW-3, not being found by this Court to bewholly reliable. The missing links could have been provided by theInvestigating Officer who, again, did not enter the witness box. Whetheror not non- examination of witness has caused prejudice to the defenceis essentially question of fact and an inference is required to be drawnhaving regard to the facts and circumstances obtaining in each case.The reason why the Investigating Officer could not depose as witness,as told by PW-4, is that he had been sent for training. It was not shownthat the Investigating Officer under no circumstances could have leftthe course for recording of his deposition in the trial court. It is worthy ofbeing noted that neither the trial court nor the High Court considered theissue of non-examination of the Investigating Officer. In the facts of thepresent case, particularly conspicuous gaps in the prosecution case andthe evidence of PW-2 and PW-3 not being wholly reliable, this Courtholds the present case as one where examination of the InvestigatingOfficer was vital since he could have adduced the expected evidence.His non- examination creates material lacuna in the effort of theprosecution to nail the appellants, thereby creating reasonable doubt inthe prosecution case.

40. As far as non-obtaining of ballistic report is concerned, it is nodoubt true that its essentiality would depend upon the circumstances ofeach case. Here, since no weapon of offence was seized, no ballisticreport was called for and obtained. Although Mr. Giri contended thatMunna Lal had licensed gun, this Court has not been able to trace anyevidence in the records in regard thereto. However, nothing turns on it.The failure/neglect to seize the weapons of offence, on facts and in thecircumstances of the present case, has the effect of denting theprosecution story so much so that the same, together with non-examination of material witnesses constitutes vital circumstanceamongst others for granting the appellants the benefit of doubt.

41. Thirdly, the medical evidence tendered by PW-1, if believed inits entirety, leads this Court to form an opinion that the evidence of PW-4 of he having recovered bullet leading to its seizure at the place ofoccurrence as doubtful. Injury nos.5 and 7, according to PW-1, were theentry points of the shots fired at the victim whereas injury nos.6 and 8were the exit points of such shots. The bullets having pierced the abdomenand right thigh of the victim and there being corresponding exit points,what is of concern is how could PW-4 still find bullet “in the blood

Aoozing out from the injury at the hip of the dead body”. Despite therebeing distinct exit points, it is quite improbable that after the injury at Sr.No.6, bullet could still be found by PW-4 in the blood oozing out fromthe injury at the hip being one of two exit points. In any event, such bulletthough seized under seizure memo does not appear to have been exhibitedat the trial which renders the version of PW-4 unacceptable.B

42. Although, mere defects in the investigative process by itselfcannot constitute ground for acquittal, it is the legal obligation of theCourt to examine carefully in each case the prosecution evidence dehors the lapses committed by the Investigating Officer to find out whetherthe evidence brought on record is at all reliable and whether such lapsesCaffect the object of finding out the truth. Being conscious of the aboveposition in law and to avoid erosion of the faith and confidence of thepeople in the administration ofcriminal justice, this Court hasexamined the evidence led by the prosecutionthreadbare and refrainedfrom giving primacy to the negligence of the Investigating Officer asDwell as to the omission or lapses resulting from the perfunctoryinvestigation undertaken by him. The endeavour of this Court has beento reach the root of the matter by analysing and assessing the evidenceon record and to ascertain whether the appellants were duly found to beguilty as well as to ensure that the guilty does not escape the rigours oflaw. The disturbing features in the process of investigation, since noticed,Ehave not weighed in the Court’s mind to give the benefit of doubt to theappellants but on proper evaluation of the various facts and circumstances,it has transpired that there were reasons for which PW-2 might havefalsely implicated the appellants and also that PW-3 was not whollyreliable witness. There is fair degree of uncertainty in the prosecution

Fstory and the courts below appear to have somewhat been influencedby the oral testimony of PW-2 and PW-3, without taking into considerationthe effect of the other attending circumstances, thereby warrantinginterference.

CONCLUSIONG

43. For the reasons aforesaid, this Court is of the opinion that thecharge that the appellants had murdered Narayan, cannot be said tohave been proved beyond reasonable doubt; hence, they were and areentitled to the benefit of doubt. The trial court’s judgment of convictionand order of sentence contained in its decision dated 29[th] January, 1986Hbeing unsustainable, stands set aside; consequently, the impugned

judgment and order dated 9[th] July, 2014 passed by the High Court,upholding the conviction and sentence, too stands set aside. The appellantshaving been lodged in the correctional home since the appellate judgmentand order was made shall be set free immediately, if not wanted in anyother case.

44. The appeals, thus, stand allowed without any order for costs.

Nidhi Jain(Assisted by : Tamana, LCRA)

Appeals allowed.