JAI PRAKASH versus STATE OF UTTAR PRADESH AND OTHERS on 28 November 2019

SUPREME COURT REPORTS

[2019] 14 S.C.R.

JAI PRAKASH

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v.

STATE OF UTTAR PRADESH AND OTHERS

(Criminal Appeal Nos.1790-1791 of 2019)

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NOVEMBER 28, 2019

[R. BANUMATHI, A.S. BOPANNA ANDHRISHIKESH ROY, JJ.]

Penal Code, 1860 :

Css. 302 and 120B – Prosecution under – Conviction of threeof the four accused by trial court, relying on two eye-witnesses – Inappeal, High Court acquitted all the accused – Appeal to SupremeCourt – Held : There are material inconsistencies in the version ofeye-witnesses – There is also discrepancy between the medicalevidence and oral evidence – There are material lapses in theDinvestigation – Such discrepancies raise serious doubt about theprosecution case – Accused were rightly acquitted by High Court.

Constitution of India :

Art. 136 – Jurisdiction under – Scope of – Held : In exerciseEof power u/Art. 136, the Court would not ordinarily interfere withthe findings of High Court unless it is satisfied that such a findingis vitiated by some glaring infirmity in the appraisement of evidenceor such finding is perverse or arbitrary.

Dismissing the appeals, the Court

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HELD: 1. As per the complaint/FIR and also the statementof PW-1, after his morning walk and after relieving himself whilehe was coming back home, he saw the respondents-accusedNos.1, 2 and 4 sitting in the flour mill of accused No.3 with armsin their possession. Case of the prosecution is that there wasGprevious enmity between the family of appellant and accused No.2which was the cause of murder of the deceased. When that beingthe motive and if the accused were so found armed with weaponsin the flour mill of accused No. 3, the question arises as to whythe appellant sent his brother-deceased to purchase gutkha fromthe shop. This has not been explained by the appellant.H[Para 15][1066-E-F]

2. If the accused were looking for vengeance from brotherof the complainant (PW1) and the deceased, why the respondents-accused allowed the complainant (PW1) to let go unharmed; moreso, when PW-1 was normally in the habit of going for morningwalk. If the motive for the crime is accepted, then all the brotherswould be targets; but here attack was on only the deceasedbrother and PW-1 was spared although attackers were fully armedand near the place of occurrence. Case of the prosecution doesnot appear to be natural that the respondents-accused Nos.1, 2and 4 have attacked the deceased who happened to pass throughthe flour mill by chance after purchase of gutkha. [Para 16][1067-B-C]

3. PW-3 stated that on the date of occurrence, he alongwith another person had gone to the house of complainant (PW-1) to discuss about the electric decoration work for the marriageceremony of daughter of someone in their mohalla. Admittedly,the deceased was the electrician by profession who was to attendto the electric work and the decoration. It is not explained as towhy the deceased who was to attend to the electric work and thedecoration work, instead of discussing the need of the prospectiveclients i.e. PW-3, would go out to purchase gutkha. Curiously,the person (the actual client) did not accompany PW-3 and theother person to the house of the deceased for discussion. Thisraises serious doubts about the presence of PW-3 in the scene ofoccurrence and the case of the prosecution. [Para 17][1067-D-F]

4. As per the deposition of PW-1, there was a goomty fromwhich gutka could be purchased, at a distance of just fifteen stepsfrom the house of the appellant and the shop from where thedeceased had gone to buy the gutkha was at a distance of about150-200 steps; again said 100-125 steps from the house of theappellant. It has nowhere been stated when the deceased couldnot have gotten gutkha right near his house and why should hego to a shop at some distance away from the house. PW-1 firstlystated that he gave money to the deceased going to purchasegutkha, however subsequently, he stated that in the shop creditaccount was maintained. The reason stated for deceased goingat a little bit far away place to purchase gutkha leaving his A

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Aprospective clients for decoration of electric work is not quiteconvincing. [Para 18] [1067-G-H; 1068-A]

5. The High Court observed that PW-3 was a chance witnessand expressed doubts about the presence of PW-3 in the sceneof occurrence and there is no good reason to take a differentBview. [Para 19] [1068-D]

6. There are several material discrepancies between theevidence of PW-1 and PW-3 as to the occurrence. The Court isconscious of the well settled position that the minor discrepanciesnot touching upon the core of the prosecution case, would notCaffect the credibility of the witnesses or the prosecution case. Ofcourse, PWs 1 and 3 have given their evidence in the court nearlyafter a decade; but they are said to have witnessed the occurrencefrom a close distance. Whether there was scuffle between thedeceased and the respondents-accused is an integral part of themain incident and the witnesses are expected to be consistent inDtheir version. The inconsistencies in the version of PWs 1 and 3as to whether there was a scuffle or not is not explained by theprosecution which again raises serious doubts about theprosecution case. [Para 20] [1068-E-H; 1069-A]

7. As per post-mortem report, there were four firearmElacerated wounds. PWs 1 and 3 have not explained the fourthfirearm injury; nor they have made any mention of the accusedfiring multiple shots. This discrepancy between the medicalevidence and the oral evidence assumes significance in view ofthe elaborated depositions made by the witnesses and the FIRFwhich explains minute detail of the entire incident.[Para 21][1069-B-C]

8.1. There are also several lapses in the investigation ofthe case like non-recovery of “empties” fired from the guns onthe deceased, non-recovery of fire arms used by the respondents-Gaccused etc. It is well-settled that any omission on the part ofthe Investigating Officer cannot go against the prosecution case.If the Investigating Officer has deliberately omitted to do whathe ought to have done in the interest of justice, it means thatsuch acts or omissions of Investigating Officer should not betaken in favour of the accused. The prosecution case of course,Hcannot be doubted merely on the ground of non-recovery of weapons and other piece of evidence. But in the present case,an elaborately written FIR was registered immediately after theoccurrence. When the Investigating Officer had taken care evento recover packet of kissan gutkha from the scene of occurrence,curiously, the “empties” of the fired cartridges were notrecovered. The material pieces of evidence like “empties” werelost; but this vital omission has not been explained. This factumassumes importance particularly, in view of the fact that the FIRis alleged to have been registered promptly. Any act ofcommission/omission of the Investigating Officer cannot go tothe advantage of the accused. But in a case of this nature whereFIR is said to have been registered within half an hour of theoccurrence and the investigation also commenced then and there,there is no reason as to why the “empties” and “bursts” fromthe scene of occurrence were not recovered.[Para 22][1069-D-H]

8.2. Furthermore, as per the evidence of InvestigatingOfficer (PW-5), the accused were arrested on the very next dayof occurrence. Despite that, the weapons used by them were notrecovered. Of course, the case of the prosecution has to beexamined de hors such omissions of the Investigating Officer likenon-recovery of weapons etc. But material discrepancies in theevidence of PWs 1 and 3 coupled with the unnaturalness of theprosecution case, non-recovery of weapons and empties raiseserious doubts about the prosecution case. [Para 23] [1070-E]

9. The duty of the appellate court is to consider andappreciate the evidence adduced by the prosecution and arriveat an independent conclusion. Like the trial court, the appellatecourt also must be satisfied of its conclusion. In exercise of powerunder Article 136 of the Constitution of India, the Supreme Courtwould not ordinarily interfere with the findings of the High Courtunless it is satisfied that such a finding is vitiated by some glaringinfirmity in the appraisement of evidence or such finding isperverse or arbitrary. In the present case, the High Court hasanalysed entire evidence and recorded its finding as to how thetrial court has gone wrong in not appreciating the materialinconsistencies in the prosecution case. The findings recordedby the High Court in acquitting the respondents-accused Nos.1, A

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A2 and 4 does not suffer from any infirmity warranting interferencewith the impugned judgment. The appeals filed by the complainantand the State of Uttar Pradesh are liable to be dismissed.[Para 24] [1071-F-H; 1071-A-B]

State of Uttar Pradesh v. Punni and Others (2008) 11BSCS 153 : [2008] 1 SCR 85 –relied on.

Case Law Reference

[2008] 1 SCR 85relied onPara 24

CRIMINAL APPELLATE JURISDICTION: Criminal AppealNos. 1790-1791 of 2019C

From the Judgment and Order dated 16.11.2018 of the High Courtof Judicature AT Allahabad in Criminal Appeal No. 2403 of 2005 withCriminal Appeal No. 5829 of 2005

With

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Criminal Appeal Nos. 1792-1793 of 2019.

R. Basant, Ajay Kumar Mishra, Basva Prabhu S. Patil, Sr. Advs.,Manoj K. Mishra, Rajiv Trivedi, Jyoti Mishra, M. Krishnan G., ShashankShekhar Singh, Ms. Ruchira Goyal, M/s. Nazish Fatima, Ajay Singh,Debasish Mukherjee, Manish Pratap Singh, Ramjee Pandey,EP. K. Sharma, Uday Prakash Yadav, Kafeel Ahmad, Sujit Kr., AbhisthKumar, Kartikeya Bhargava, Rohit Amit Sthalekar, Advs. for theappearing parties.

The Judgment of the Court was delivered by FR. BANUMATHI, J.

1. Leave granted.

2. These appeals arise out of the impugned judgment dated16.11.2018 passed by the High Court of Judicature at Allahabad inCriminal Appeal Nos.2403 and 5829 of 2005 whereby the High CourtGallowed the appeals thereby setting aside the conviction of respondents-accused Nos.1, 2 and 4 passed by the trial court under Sections 302 IPCand 120B IPC and acquitted them of the charges under Sections 302IPC and 120-B IPC.

3. Being aggrieved by the acquittal, the appellant-complainant haspreferred Criminal Appeals arising out of SLP(Crl.) Nos.269-70 of 2019.The State of Uttar Pradesh has filed the other Criminal Appeals arisingout of SLP(Crl.) Nos.288-89 of 2019.

4. Briefly stated case of the prosecution is as under:-

Complainant-Jai Prakash and deceased Ravi Prakash are realbrothers. On 17.11.1992 shortly prior to 09.00 am, the appellant-complainant came back home after relieving himself near the Urai busstand. At that time, he noticed the accused persons sitting with arms intheir possession in the flour mill of Shankar Teli-accused No.3 (sinceacquitted by the trial court). Complainant came to his house. At thattime, Sanjay Mishra and Ajay Kumar (PW-3) came to the house ofdeceased for discussion regarding the work of electric decoration inconnection with the marriage of daughter of one Maiku Soni. Theappellant sent Ravi Prakash to bring gutkha for Ajay Kumar (PW-3)and Sanjay Mishra. After purchasing gutkha when the deceased wasreturning from the shop and reached in front of accused No.3-ShankarTeli’s flour mill, accused Bhupendra Yadav (A2) armed with doublebarrelled gun, accused Raju Teli (A4) armed with single barrelled gunand accused Lallu @ Lal Diwan (A1) armed with country made pistol,caught hold of the deceased Ravi Prakash. Ravi Prakash tried to freehimself by raising alarm. Accused Bhupendra Yadav fired bullet in thechest of the deceased Ravi Prakash, accused Raju Teli fired in the legand accused Lallu @ Lal Diwan fired in the jaw of the deceased. RaviPrakash fell down on the spot. Appellant-Jai Prakash, Ajay Kumar(PW-3) and Sanjay Mishra who saw the occurrence rushed to the spotto save the deceased Ravi Prakash. On seeing them coming, accusedpersons came out of the flour mill and fled away from the scene ofoccurrence.

5. As per the complainant, motive for the commission of theoffence was the previous enmity harboured by accused Bhupendra Yadavwith the family of the appellant due to newspaper publishing regardingthe activities of accused Bhupendra Yadav by another brother of theappellant namely Om Prakash, in the weekly journal August Nama. Dueto which, accused Bhupendra Yadav had beaten up Om Prakash andOm Prakash lodged complaint against accused Bhupendra Yadav.Sometimes prior to the occurrence, accused Bhupendra Yadav had beaten A

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Aup the appellant also and on the basis of the complaint, a case wasregistered against accused Bhupendra Yadav. According to the appellant,as a consequence of the said enmity, Ravi Prakash was fired at by theaccused and murdered.

6. Regarding the occurrence, PW-1-Jai Prakash got the complaintBwritten by one Munni Lal and on the same day at 09.30 am, the appellantlodged the same before the Police Station Rath, District-Hamirpur. Basedon the complaint, FIR in Crime No.474 of 1992 (Ex.-Ka.3) was registeredagainst the accused under Sections 302 IPC and 120B IPC. Investigationof the case was taken up by the Investigating Officer-PW-5-SI-ShobhaMani Tripathi. The Investigating Officer went to the place of occurrenceCand under his instructions, SI-R.N. Singh held inquest on the body ofdeceased Ravi Prakash. The dead body of Ravi Prakash was sent tohospital for post-mortem examination. SI-R.N. Singh took sample ofsimple and blood-stained earth from the scene of occurrence andrecovered a pair of chappal of the deceased (Ex.-Ka.10) and packet of Dkisaan gutkha (Ex.-Ka.11) and prepared recovery memo.

7. On the same day i.e. 17.11.1992 at about 04.15 pm, dead bodyof Ravi Prakash was sent to Rajkiya Purush Chikitsalaya, Rath wherepost-mortem was conducted on the dead body by Dr. B.K. Gupta (PW-2) who noted the following injuries:- E

(i) A firearm lacerated wound of entry on left side of chest, 4cm below the medial left clavicle and 3 cm left to midline ofchest.

(ii) Multiple firearm lacerated wound of exit on left side ofscapular region, 3 cm left to midline of back.F

(iii) A firearm lacerated wound of entry on right side lower jaw,5 cm right to the tip of chin.

(iv) A firearm lacerated wound of entry on back of right thigh,7.5 cm above the knee joint.

(v) A firearm lacerated wound of entry on right thigh, 20 cmabove the knee joint.

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(vi) A firearm lacerated wound of exit on antero right thigh, 10cm above knee joint.

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(vii) Multiple abrasion on medial aspect of right leg above themedial malleolus.

PW-2-Doctor opined that the death of the deceased was due tohaemorrhagic shock as a result of ante-mortem injuries and issued Ex.-Ka.2-Post-Mortem Certificate. After completion of investigation, chargesheet was filed against all the four accused under Sections 302 IPC and120B IPC.

8. When questioned, all the accused denied the charges andpleaded not guilty. To bring home the guilt of the accused, the prosecutionexamined total six witnesses - eye witnesses PWs 1 and 3 and Doctor-PW-2 and IO (PW-5) and other witnesses. Upon consideration of theevidence, the trial court convicted accused Nos.1, 2 and 4 under Sections302 IPC and 120B IPC and sentenced them to undergo life imprisonment.The trial court held that the evidence of eye witness-PW-1-Jai Prakash,brother of deceased and PW-3-Ajay Kumar are natural and acceptable.The trial court held that PW-3-Ajay Kumar has given satisfying reasonsfor his presence at the house of PW-1 and the presence of PW-3 outsidethe house of PW-1 is natural and cannot be doubted. Insofar as thequestion of non-examination of Sanjay Mishra and other persons in themohalla, the trial court held that in the present social conditions andcircumstances, independent witnesses are apprehensive that if they appearas witnesses in the criminal cases, their future will not be safe andtherefore, non-examination of the independent witnesses will not affectthe prosecution case. After referring to the post-mortem report and theevidence of PW-2-Doctor, the trial court held that the medical evidencecorroborates the evidence of PWs 1 and 3. The trial court also held thatnon-recovery of the guns and the contradictions pointed by the accusedin the evidence of PWs 1 and 3, would not affect the case of theprosecution. With those findings, the trial court convicted accused Nos.1,2 and 4. However, the trial court gave benefit of doubt to accusedNo.3-Shankar Teli and acquitted him.

9. Being aggrieved, the respondents-accused Nos.1, 2 and 4 havepreferred appeals before the High Court. By referring to the contentsof the FIR (Ex.-Ka.3), the High Court held that within short time, it isleast possible for an illiterate person like PW-1 to lodge a complaint withsuch details and the possibility cannot be ruled out that the First AB

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AInformation Report has been lodged after discussion and on the adviceof Om Prakash. After referring to the deposition of PW-1 and PW-3,the High Court held that the presence of the witnesses at the place andat the time of occurrence appears to be doubtful. After referring toPost-Mortem Report, the High Court further held that in the Post-MortemReport, it is mentioned that the large intestine of deceased was full andBtherefore, death might have taken place before Ravi Prakash attendednature call as generally, people attend the call of nature in the morningand it is least possible that the deceased has not attended the call ofnature before 09.00 am. Doubting the presence of PW-3 at the placeand time of occurrence, the High Court held that PW-3 could not properlyCexplain the reason as to why he went to the house of PW-1 and hisversion appears unnatural. Pointing out that there was motive for OmPrakash to instigate his brother PW-1 to make false allegations againstthe accused on the murder of his brother Ravi Prakash, the High Courtheld that accused Nos.1, 2 and 4 deserve to be given benefit of doubt.With those findings, the High Court allowed the appeals filed by theDaccused and set aside their conviction and sentence passed by the trialcourt and acquitted them.

10. Taking us through the evidence and the judgment of the trialcourt as well as the High Court, Mr. R. Basant, learned Senior counselfor the appellant has submitted that PW-1 has clearly stated each andEevery detail of the incident which is amply corroborated by the evidenceof PW-3 and the evidence of PWs 1 and 3 are natural and their evidenceis consistent with the medical evidence as well as the case of theprosecution. It was further submitted that considering the well-settledposition, the trial court recorded the finding that the general public areFreluctant to come forward to depose before the court and it is not properto reject the case of the prosecution for non-examination of theindependent witnesses. It was submitted that the High Court erred inholding that non-examination of the independent witnesses and MunniLal-scribe of the complaint is fatal to the prosecution case. LearnedSenior counsel further submitted that the lapses in the investigation likeGnon-sending of the blood-stained earth and sample earth taken from thescene of occurrence and non-recovery of “empties” from the scene ofoccurrence and other lapses would not affect the prosecution case andthe High Court erred in reversing the conviction and acquitting theaccused.

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11. Mr. Basava Prabhu S. Patil, learned Senior counsel appearingfor accused No.2-Bhupendra Yadav submitted that the motive is attributedto Om Prakash-brother of PW-1 and when the accused were havingsuch enmity with Om Prakash, it is not known as to why the accusedshould attack Ravi Prakash and no injury was caused to PW-1 who waseasily available to the accused even before Ravi Prakash passed throughthe flour mill of Shankar Teli (PW-3). The learned Senior counsel furthersubmitted the PW-3 is a chance witness and as such, his presence in thehouse of PW-1 is not natural and PW-3 could not have witnessed theincident. It was further submitted that the High Court rightly pointed outthe improbability of the occurrence that the accused who were waitingin Shankar Teli’s flour mill, would not have anticipated that Ravi Prakashwould pass through the flour mill and considering the improbability of theprosecution case, the High Court rightly reversed the conviction and theimpugned judgment warrants no interference.

12. Mr. P.K. Sharma, learned counsel appearing for accused No.4-Raju Teli submitted that the conduct of PW-1, brother of deceased wasunnatural as he made no attempt to save his younger brother rather hewas interested only in preparing the complaint (Ex.-Ka.3) and going tothe police station. Learned counsel further submitted that the Post-Mortem Report shows four gun-shot injuries which are not in consonancewith the oral evidence and the discrepancies between the oral and medicalevidence has not been properly explained. The learned counsel submittedthat PW-3 is a chance witness and the High Court rightly held that hispresence in the house of PW-1 at the time of incident is unnatural. Itwas submitted that the prosecution case is highly doubtful since duringthe investigation, neither the fire arms were recovered nor the “empties”of the cartridges have been recovered from the place of occurrence andno ballistic opinion had been obtained by the prosecution to prove thatthe injury on the person of the deceased were caused by the alleged firearms used by the accused.

13. Mr. Kartikeya Bhargava, learned counsel appearing foraccused No.1-Lallu @ Lal Diwan submitted that there werecontradictions between the evidence of PWs 1 and 3 as to whetherthere was scuffle prior to the incident and this has not been properlyappreciated by the trial court. The learned counsel further submittedthat the multiple bruises found on the body of deceased has not beenproperly explained by the prosecution and the High Court rightly reversed A

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Athe conviction of the accused and the impugned judgment warrants nointerference.

14. We have carefully considered the contentions and perusedthe impugned judgment and materials on record. The point falling forconsideration is as contended by the appellants, whether the High CourtBwithout properly appreciating the evidence erred in setting aside theconviction of the respondents-accused Nos.1, 2 and 4.

15. Case of the prosecution is that at about 09.00 am on 17.11.1992,while returning from the shop after purchasing gutkha, deceased RaviPrakash reached the front of flour mill of Shankar Teli, accusedCBhupendra Yadav (A2) having double barrelled gun, accused Raju Teli(A4) armed with single barrelled gun and accused Lallu @ Lal Diwan(A1) armed with country made pistol (tamancha), caught hold of RaviPrakash and Ravi Prakash raised alarm and tried to free himself fromthe grip of the accused. At that time, accused Bhupendra Yadav, RajuTeli and Lallu @ Lal Diwan fired from their respective weapons andDfired shot on the chest, leg and jaw of Ravi Prakash respectively due towhich Ravi Prakash fell down on the spot. Appellant Jai Prakash (PW-1), Ajay Kumar (PW-3) and Sanjay Mishra rushed to the spot to saveRavi Prakash and on seeing them, all the three accused escaped fromthe place of occurrence. As per the complaint/FIR (Ex.-Ka.3) and alsoEthe statement of PW-1, after his morning walk and after relieving himselfat the Urai bus stand, while coming back home, he saw the respondents-accused Nos.1, 2 and 4 sitting in the flour mill of Shankar Teli with armsin their possession. Case of the prosecution is that there was previousenmity between the family of appellant and accused Bhupendra Yadavwhich is the cause of murder of Ravi Prakash. When that being theFmotive and if the accused were so found armed with weapons in theflour mill of Shankar Teli, the question arises as to why the appellantsent his brother-Ravi Prakash to purchase gutkha from the shop of oneChoco Kori. This has not been explained by the appellant.

16. The respondents-accused Nos.1, 2 and 4 armed with weaponsGwere sitting in the flour mill of Shankar Teli and were talking to eachother. The motive alleged by the prosecution is that about two yearsprior to the occurrence, Om Prakash-brother of the appellant-Jai Prakashhad written about the illegal activities of accused Bhupendra Yadav andbrought out news in the newspaper due to which accused BhupendraHYadav had assaulted Om Prakash. In this regard, Om Prakash had

lodged a criminal case in the police station and FIR has been registeredand due to this enmity, the accused are alleged to have committed murderof Ravi Prakash. Both the appellant-Jai Prakash and Ravi Prakash arebrothers of Om Prakash. If the accused were looking for vengeance ofOm Prakash-brother of Ravi Prakash, why the respondents-accusedallowed Jai Prakash (PW-1) to let go unharmed; more so, when PW-1was normally in the habit of going for morning walk. If the motive forthe crime is accepted, then all brothers of Om Prakash would be targets;but here attack was on only the deceased brother and PW-1 was sparedalthough attackers were fully armed and near the place of occurrence.As pointed out by the High Court, case of the prosecution does notappear to be natural that the respondents-accused Nos.1, 2 and 4 haveattacked Ravi Prakash who happened to pass through the flour mill bychance after purchase of gutkha.

17. PW-3-Ajay Kumar stated that on the date of occurrence i.e.17.11.1992, he along with Sanjay Mishra had gone to the house of JaiPrakash (PW-1) to discuss about the electric decoration work for themarriage ceremony of daughter of one Maiku Soni in their mohalla.Admittedly, Ravi Prakash was the electrician by profession who was toattend to the electric work and the decoration. It is not explained as towhy deceased Ravi Prakash who was to attend to the electric work andthe decoration work, instead of discussing the need of the prospectiveclients i.e. PW-3, would go out to purchase gutkha. Curiously, Maikudid not accompany Ajay Kumar (PW-3) and Sanjay Mishra to the houseof Ravi Prakash for discussion. As pointed out by the High Court, neitherMaiku nor any member of the family had gone with PW-3 to talk aboutthe decoration for the marriage ceremony of daughter of Maiku. Thisraises serious doubts about the presence of PW-3 in the scene ofoccurrence and the case of the prosecution.

18. Next, as per the deposition of PW-1, there is a goomty placedon the square platform of Munna Musalman from which gutka can betaken out. This goomti is at a distance of just fifteen steps from thehouse of the appellant and the shop of Choco Kori where Ravi Prakashhad gone to buy the gutkha is at a distance of about 150-200 steps;again said 100-125 steps from the house of the appellant. It has nowherebeen stated when the deceased could not have gotten gutkha right nearhis house and why should he go to a shop at some distance away fromthe house. Of course, PW-1 firstly stated that he gave money to Ravi AB

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APrakash to purchase gutkha, however subsequently, he stated that inthe shop of Choco Kori, credit account was maintained. The reasonstated that Ravi Prakash had gone to the shop of Choco Kori at a littlebit far away place to purchase gutkha leaving his prospective clientsfor decoration of electric work is not quite convincing.

B19. PW-3-Ajay Kumar is a resident of mohalla Mughalpura, townand PS Rath, District-Hamirpur. In his evidence, PW-3 stated that healong with Sanjay Mishra had gone to the house of PW-1. PW-3 furtherstated that he called PW-1 outside and when he was talking to PW-1,PW-1 asked Ravi Prakash to bring gutkha from the shop for Ajay Kumarand Sanjay Mishra. As discussed earlier, when PW-3 had gone to theChouse of PW-1 to discuss about the electric decoration work for themarriage ceremony of daughter of Maiku, neither Maiku nor any memberof his family accompanied PW-3 to discuss about the electric work inthe marriage ceremony of daughter of Maiku. In his cross-examination,PW-3 could not explain the reason as to why he went to the house ofDPW-1. The High Court observed that PW-3 is a chance witness andexpressed doubts about the presence of PW-3 in the scene of occurrenceon 17.11.1992 and we do not find any good reason to take a differentview.

20. There are several material discrepancies between the evidenceEof PW-1 and PW-3 as to the occurrence. PW-3 has stated that whenRavi Prakash passed through the way, the respondents-accused cameout of the flour mill and there was a scuffle for sometime with RaviPrakash and the accused fired the bullet shots from their guns and thepistol. On the other hand, PW-1 has only stated that the respondents-accused have fired at Ravi Prakash and has not stated anything aboutFthe scuffle. The witnesses who have deposed in the court afterconsiderable lapse of time of course, cannot be expected to havephotographic memory of the case. We are conscious of the well settledposition that the minor discrepancies not touching upon the core of theprosecution case, would not affect the credibility of the witnesses or theGprosecution case. Of course, PWs 1 and 3 have given their evidence inthe court in 2003-04 near after a decade; but they are said to havewitnessed the occurrence from a close distance. Whether there wasscuffle between Ravi Prakash and the respondents-accused is an integralpart of the main incident and the witnesses are expected to be consistentin their version. The inconsistencies in the version of PWs 1 and 3 as toH

whether there was a scuffle or not is not explained by the prosecutionwhich again raises serious doubts about the prosecution case.

21. Medical Evidence: As per the deposition of PWs 1 and 3,accused Bhupendra Yadav fired at the deceased on his chest; Lallu @Lal Diwan fired on the jaw and Raju Teli fired on the leg of the deceased.As per post-mortem report dated 17.11.1992, there were four firearmlacerated wounds. Apart from the injuries on the chest, jaw and the leg,there was fire arm injury on the right thigh 2 cm above the knee. PWs 1and 3 have not explained the fourth firearm injury; nor they have madeany mention of the accused firing multiple shots. This discrepancy betweenthe medical evidence and the oral evidence assumes significance in viewof the elaborated depositions made by the witnesses and the FIR whichexplains minute detail of the entire incident.

22. There are also several lapses in the investigation of the caselike non-recovery of “empties” fired from the guns on the deceased,non-recovery of fire arms used by the respondents-accused etc. It iswell-settled that any omission on the part of the Investigating Officercannot go against the prosecution case. If the Investigating Officer hasdeliberately omitted to do what he ought to have done in the interest ofjustice, it means that such acts or omissions of Investigating Officershould not be taken in favour of the accused. In his cross-examination,PW-5-Investigating Officer has stated that the broken pieces of cartridges,bursts and empty shells of the cartridges were not found on the site ofthe incident. PW-4-Sub-Inspector of Police has also not made referenceabout the “empty shells of cartridges” in the scene of occurrence. Theprosecution case of course, cannot be doubted merely on the ground ofnon-recovery of weapons and other piece of evidence. But in the presentcase, an elaborately written FIR was registered immediately after theoccurrence i.e. at 09.30 am. The Sub-Inspector of Police (PW-5) hadpromptly taken up the investigation and on the direction of PW-5, SI-R.N. Singh took sample earth and the blood-stained earth from the sceneof occurrence and recovered a pair of footwear of the deceased andpacket of kissan gutkha and prepared recovery memo of the samewhich are marked as Ex.-Ka.10 and Ex.-Ka.11 respectively. When theInvestigating Officer had taken care even to recover packet of kissangutkha from the scene of occurrence, curiously, the “empties” of thefired cartridges were not recovered. The material pieces of evidencelike “empties” were lost; but this vital omission has not been explained.

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AThis factum assumes importance particularly, in view of the fact that theFIR is alleged to have been registered promptly at 09:30 a.m. of theoccurrence which occurred at 09:00 am. The inquest was also conductedat 10:00 a.m. and the investigation also promptly started. The accused-respondents allegedly ran away from the scene of occurrence immediatelyafter shooting at the deceased thus, they could not have possibly removedBthe cartridges, pieces, etc. themselves. This is not the case of theprosecution. It is also not the case of the prosecution that the area wascleaned and somebody has removed the “empties”. In such view of thematter, the non-recovery of “bursts and empty shells of cartridges” and“broken pieces of cartridges” from the scene of occurrence raises seriousCdoubt about the actual place of occurrence. As pointed out earlier, anyact of commission/omission of the Investigating Officer cannot go to theadvantage of the accused. But in a case of this nature where FIR issaid to have been registered within half an hour of the occurrence andthe investigation also commenced then and there, we find no reason asto why the “empties” and “bursts” from the scene of occurrence wereDnot recovered.

23. Furthermore, as per the evidence of Investigating OfficerShobha Mani Tripathi (PW-5), the accused were arrested on the verynext day of occurrence i.e. 18.11.1992. Even though the accused werearrested on the very next day, the weapons used by them were notErecovered. Of course, the case of the prosecution has to be examinedde hors such omissions of the Investigating Officer like non-recovery ofweapons etc. But material discrepancies in the evidence of PWs 1 and3 coupled with the unnaturalness of the prosecution case, non-recoveryof weapons and empties raise serious doubts about the prosecution case.F

24. The duty of the appellate court is to consider and appreciatethe evidence adduced by the prosecution and arrive at an independentconclusion. Like the trial court, the appellate court also must be satisfiedof its conclusion. In exercise of power under Article 136 of theConstitution of India, in State of Uttar Pradesh v. Punni and othersG(2008) 11 SCS 153, while dealing with the order of acquittal passed bythe High Court, the Supreme Court held that it would not ordinarilyinterfere with the findings of the High Court unless it is satisfied thatsuch a finding is vitiated by some glaring infirmity in the appraisement ofevidence or such finding is perverse or arbitrary. In the present case,the High Court has analysed entire evidence and recorded its finding asH

to how the trial court has gone wrong in not appreciating the materialinconsistencies in the prosecution case. The findings recorded by theHigh Court in acquitting the respondents-accused Nos.1, 2 and 4 doesnot suffer from any infirmity warranting interference with the impugnedjudgment. The appeals filed by the complainant and the State of UttarPradesh are liable to be dismissed.

25. In the result, the impugned judgment dated 16.11.2018 passedby the High Court of Judicature at Allahabad in Criminal Appeal Nos.2403and 5829 of 2005 is affirmed and the criminal appeals arising out ofSLP(Crl.) Nos.269-70 of 2019 filed by the appellant-Jai Prakash andcriminal appeals arising out of SLP(Crl.) Nos.288-89 of 2019 filed bythe State of Uttar Pradesh stand dismissed.

Kalpana K. Tripathy

Appeals dismissed.

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B

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D

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F

G

H