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Thursday, March 16, 2017

where the evidence of the eye witness has been found to be truthful and as in this case corroborated by the fact that the bullets were recovered from the body of the deceased, it is obvious that cannot have the effect of an acquittal.- In this case, the ballistics report need not be rejected as untrue; it simply states that the empty cartridges found at the scene of the crime were not fired from the gun recovered from the accused. But this had no bearing on the credibility of the deposition of P.W. 1 that the accused shot the deceased with a gun, particularly as it is corroborated by the bullets in the body. In this case we find it safe to accept the evidence of Himanshu Mohan Rai and disregard the apparent contradictions. We might add that the fact that accused shot the deceased with a gun is also corroborated by the testimony of P.W. 2.- It is not possible for us to accept the reasoning of the High Court on the basis of the minor doubts and technicalities that the judgment of the Sessions Court convicting and sentencing the accused for the murder of Lalit Mohan Rai has no legs to stand on. The judgment of the Sessions Court which had the advantage of watching the demeanor of the witnesses could not have been lightly set aside. In the case of State of U.P. vs. Anil Singh[5], the Court held as follows: “17. It is also our experience that invariably the witnesses add embroidery to prosecution story, perhaps for the fear of being disbelieved. But that is no ground to throw the case overboard, if true, in the main. If there is a ring of truth in the main, the case should not be rejected. It is the duty of the court to cull out the nuggets of truth from the evidence unless there is reason to believe that the inconsistencies or falsehood are so glaring as utterly to destroy confidence in the witnesses. It is necessary to remember that a Judge does not preside over a criminal trial merely to see that no innocent man is punished. A Judge also presides to see that a guilty man does not escape. One is as important as the other. Both are public duties which the Judge has to perform.” We find that the facts and circumstances of this case warrant an interference with the acquittal of the accused. Accordingly, Criminal Appeal No.827 of 2011 and Criminal Appeal No.829 of 2011 are allowed. The judgment dated 22.04.2010 passed in Criminal Appeal No.8239 of 2008 by the High Court is set aside.

                                                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION

                       CRIMINAL APPEAL No. 827 OF 2011


                             HIMANSHU MOHAN RAI
                            …APPELLANT     VERSUS

STATE              OF              U.P.               AND               ANR.
…RESPONDENTS

                                    WITH

                       CRIMINAL APPEAL No. 829 OF 2011

                                  JUDGMENT

S. A. BOBDE, J.

      Criminal Appeal No.827 of 2011 is filed  by  P.W.  1  (Himanshu  Mohan
Rai) and the same is directed against the acquittal  of  respondent  No.2  -
Imran Afreen.  The Sessions Court  convicted  the  respondent-accused  under
Section 302 of the Indian Penal
Code, 1860 (hereinafter referred to as the ‘IPC’)  for  the  murder  of  the
deceased, Lalit Mohan Rai.  He was  sentenced  to  life  imprisonment  along
with a fine of Rs.50,000/- by the Sessions Court.  The High Court set  aside
the judgment of the Sessions Court  and  acquitted  the  respondent-accused.
The State of Uttar Pradesh has also  preferred  Criminal  Appeal  No.829  of
2011 against the acquittal.

The FIR
2.    The incident took place on 01.01.2005 between 20:30 – 21:00  hours  in
front of Hotel Shalimar which belonged to  the  deceased  and  his  brother.
The FIR was registered on the same day  at  23:05  hours  by  one,  Himanshu
Mohan Rai (P.W.1), the brother of  deceased.   According  to  the  FIR,  the
offence was committed by Imran Afreen, and  two  of  his  accomplices  whose
names and addresses were unknown  at  the  time  of  the  reporting  of  the
offence.  The informant reported that at about 20:30 hours,  a  waiter  from
his hotel, namely Manoj Kumar Singh alias Bahadur had gone to Varuna  Bridge
to bring milk. While returning to  the  hotel  from  getting  the  milk,  he
collided with the appellant who along with his accomplices was  in  a  state
of intoxication.  They assaulted the waiter in their state  of  inebriation,
and the waiter ran into Hotel Shalimar for  taking  refuge.   The  appellant
followed the waiter in Indigo  Car  No.U.P.-65-X-0002  and  his  accomplices
followed the waiter  on  Yamaha  motorcycle  No.U.P.Z-5214.   They  forcibly
entered the hotel and started beating the waiter up.

      The first informant, the deceased and  Rajnath  Singh  (owner  of  the
hotel building) tried to pacify the assailants and  took  them  outside  the
hotel.  Outside the hotel, the appellant  took  out  his  pistol  and  fired
several shots at the informant’s  older  brother,  Lalit  Mohan  Rai.  Lalit
Mohan Rai got injured and fell down.  Chander  Shekhar  Rai,  Krishan  Kumar
Singh and many others gathered upon hearing the sounds  of  the  gun  shots.
Looking at the crowd, the accused  and  his  accomplices  ran  away  leaving
their vehicles behind.

      Lalit Mohan Rai was taken to Chauraha Hospital for treatment where  he
died.


The Investigation
3.    The investigation was initially conducted  by  Station  Head  Officer,
D.P. Shukla (P.W. 6). The appellants alleged that D. P. Shukla
was hand in gloves with the accused.  The offence registered  under  Section
302 IPC was changed by the police inspector  and  registered  under  Section
304 IPC instead. Consequently, the investigation
was transferred to a sub-inspector by the name of Srinivas Pande  (P.W.  5).
The appellant complained that Srinivas Pande was partial to the accused  and
thereafter, the investigation was transferred back to an  inspector  by  the
name of R.K. Singh (P.W. 7).

4.    The accused was arrested on 05.01.2005.

The Sessions Court
5.    The Sessions Court convicted the three accused  Imran  Afreen,  Gufran
Afreen and Abdul Wasi for the offence under Section 302 of the IPC.   Gufran
Afreen and Abdul Wasi were found to be  juvenile  and  therefore  prosecuted
under the Juvenile Justice Act.

      The Sessions Court found that the prosecution story was proved.  Imran
Afreen got into an altercation with Bahadur, the waiter of  Hotel  Shalimar.
Bahadur ran into Hotel Shalimar which  was  run  by  the  deceased  and  his
brother (P.W. 1).  Imran Afreen in an Indigo car and the  other  accomplices
on a Yamaha motor bike followed Bahadur and entered the hotel.  Lalit  Mohan
Rai along with Himanshu Mohan Rai and  Rajnath  Singh  took  the  assailants
outside the hotel to pacify them.  Outside the hotel,  there  was  a  heated
discussion upon which one of the accomplices exhorted Imran Afreen  to  fire
the shot by saying-“what are you looking at?” and  told  him  to  shoot  and
kill Lalit Mohan Rai. Imran Afreen then fired five rounds.  Lalit Mohan  Rai
fell down and was taken to the hospital by P.W. 1.  He was declared dead  at
the hospital.

The High Court
6.    The High Court disbelieved the story of the prosecution and set  aside
the conviction recorded by the Sessions Judge: -

(i)   Mainly on the ground that P.W. 1 is not a reliable witness in view  of
the following:

(a)   The altercation between Bahadur  and  the  accused  on  the  road  was
admittedly not witnessed by P.W. 1. He had met  the  waiter  on  01.01.2005,
02.01.2005 and 03.01.2005.  He admitted that he did not  meet  Bahadur  till
the time of the cremation of his brother.

(b)   P.W. 1 came to know the names of the accused  on  05.01.2005  when  he
had gone to the house of Congress Leader Abdul  Kalam  to  pay  homage.   He
overhead the names of the accused, who he did  know  before,  but  disclosed
their names to the police only on 09.01.2005.


(c)   P.W. 1 had gone to Ghazipur  and  returned  only  in  the  evening  of
05.01.2005.  The fact that the inquest was performed in his presence in  the
afternoon, and thereafter the dead body was sent for  post  mortem,  negates
his presence.


(d)   P.W. 1 did not write the FIR himself  even  though  he  was  literate,
having received an education of  intermediate  level.  He  told  his  uncle,
Girjesh Rai, about the incident. Girjesh Rai wrote  the  incident  down  and
P.W. 1 signed it after reading what was written.  Subsequently, Girjesh  Rai
went to the Police Station Cant and lodged the report.

      The High Court concluded that he was nowhere around the place  at  the
time of incident.

(ii)  The prosecution withheld the examination of the waiter,  Bahadur,  who
was an eye witness even though the investigating  officer  met  him  at  the
place of incident during the time of recovery and prepared the site plan  at
his instance.

(iii) The prosecution withheld 2 persons Rajnath Singh and  K.K.  Singh  who
were examined before the Juvenile Justice Board but were  declared  hostile.
Their names appear in the list of witnesses but they were not examined.

(iv)  The assertion that the dead body of the deceased was taken in a  tempo
was neither substantiated nor shown to  the  Investigating  Officer.   There
was no blood found and the blood stained clothes of the witnesses were  also
not produced before the police.

(v)   The FIR was  ante-timed  and  shown  as  registered  at  23:05  hours,
although it was registered later on.

The Witnesses
7.    Himanshu Mohan Rai (P.W. 1) is the brother of  the  deceased  and  the
first informant.  He used to manage Hotel Shalimar along with the  deceased.
 This was not disputed by the accused.

7(a). P.W. 1 stated that he saw  the  incident  clearly  as  the  hotel  was
decorated with lighting for New Year’s  Eve  and  therefore  identified  the
accused in that  light.   He  stated  that  he  removed  the  blood  stained
sweater, presumably worn by Lalit Mohan Rai, and kept it in the  storage  of
the scooter belonging to Girjesh Rai.

      He also stated that Bahadur was present when Imran Afreen  shot  Lalit
Mohan Rai.  He omitted giving the names of the accused  in  the  application
dated 08.01.2005, given to  the  S.S.P  to  apply  the  appropriate  section
because he did not think it was necessary.  He denied  the  suggestion  that
his brother was killed by some professional killers away from the hotel.

      The testimony of this witness has not  been  shaken  in  any  material
particularly in the cross examination.  We  find  nothing  incredible  about
the testimony of this witness and there is no reason to discard  to  discard
it.

7(b).    Shri  Amarendra  Sharan,  counsel   for   the   respondent-accused,
submitted that the presence of P.W. 1 is doubtful because  the  witness  did
not produce his blood stained clothes before the Court nor did he  show  the
blood stained sweater to the police.  P.W. 1 gave no explanation  for  there
being no sweater on the body of the deceased, when the  deceased  was  taken
to the hospital.

      We do not consider this reason  sufficient  enough  to  discredit  the
story of P.W. 1 in its entirety.  It is possible that the  witness  did  not
remember what happened to the sweater in the emergency that arose after  his
brother was shot.  There  is  also  no  merit  in  the  criticism  that  the
incident of the first quarrel with the waiter  had  been  mentioned  in  the
FIR, even though the witness stated later that Bahadur did not  explain  the
incident to him.  It is possible that Bahadur  mentioned  the  incident  and
did not explain how the quarrel  arose.   The  other  omissions  during  the
course of cross examination, such as the failure of P.W. 1 to  mention  that
he overheard the names of the other accused at the funeral, is not  crucial.
 We also do not find anything unbelievable in the statement of  the  witness
that he learnt the names of the other accused at the funeral  of  local  MLA
Abdul Kalam.


8.    Chandra Shekhar Rai (P.W. 2) was interrogated after  about  25  to  30
days and was questioned 8 days after the incident.  He is  criticized  as  a
planted witness.  In this regard it may be noted that the investigation  was
first carried out by S.H.O. D.P. Shukla (P.W. 6), who was the  investigating
officer from the time of the incident  to  00:10  hours  on  the  next  day.
Remarkably, this investigating  officer  changed  the  registration  of  the
offence of murder under Section 302  to  Section  304  of  the  IPC.   Since
Section 304 became a lesser offence, the investigation was transferred to  a
sub-inspector  by  the  name  of  Sriniwas  Pande  (P.W.  5)  who  was   the
investigating officer from 00:10 hours  on  02.01.2005  to  18:00  hours  on
09.01.2005.  On receiving a complaint by the accused that the  investigation
was not being done properly, the police transferred the  investigation  back
to an inspector of the Police; one R.K.  Singh  (P.W.7)  who  took  over  on
09.01.2005 and investigated the matter till the charge-sheet  was  filed  on
19.01.2005. This is possibly why P.W. 2 was  not  interrogated  for  a  long
time.  It appears that the new investigating officer took time to follow  up
on the leads, interrogate P.W. 2 and record his statement.

9.    In these circumstances, we do not consider the  delay  to  cause  such
suspicion as to warrant the complete rejection of the testimony of  P.W.  2.
 The testimony of P.W. 2 completely corroborates the version of  P.W.  1  in
all material details of the incident. We are not  inclined  to  reject  this
testimony on the ground that  his  statement  was  recorded  after  30  days
particularly since there was a change of investigating officers.

      We thus find  that  the  evidence  of  the  P.W.  2  corroborates  the
evidence of P.W. 1. The  testimony  is  credible  and  it  proves  that  the
accused shot the deceased as alleged by the prosecution.

Ante-timed FIR
10.   The FIR was lodged on 01.01.2005 at 23:05 hours. P.W. 1  narrated  the
incident of collision with Bahadur even though he  admitted  in  his  cross-
examination that he had no opportunity to discuss the cause of the  incident
with Bahadur. It was submitted on behalf of the respondent that the FIR  was
ante-timed. It was contended by the learned counsel for the respondent  that
the FIR is not in the handwriting of the informant,  nor  dictated  by  him.
Girijesh Rai who wrote the FIR was not examined by the Court.

11.   It is not possible to accept the criticism that P.W. 1  was  not  told
by Bahadur about the quarrel but it is mentioned in the FIR. A  closer  look
at the cross examination of P.W. 1 shows that the waiter did  not  tell  him
the cause of the quarrel. There is also no requirement that the FIR must  be
in the handwriting of the informant. Neither is it necessary  to  doubt  the
FIR because Girjesh Rai was not examined. The FIR has been otherwise  proved
in the evidence of the Police Officer (P.W.  7)  who  states  that  Himanshu
Mohan Rai and Girjesh Rai came with a written report and he wrote  the  chik
recorded as GD 1/005 on the FIR. This is  supported  by  the  deposition  of
P.W. 1 who referred to the handwriting of Girjesh  Rai  and  his  signatures
and identified it on
the Tehrir.

12.   It cannot be inferred from any of the  above  circumstances  that  the
FIR was ante-timed. Nor is it possible to disbelieve the timing of  the  FIR
because the Police Constable went to the scene of crime and seized  a  shirt
before the registration of the FIR at 23:05 hours i.e. at  22:00  hours.  In
fact, the police inspector (P.W. 6) stated in his evidence  that  he  seized
the shirt “around 10 in the night” and that he does not remember  the  exact
time.

Ballistic Report does not  confirm  that  the  shots  were  fired  from  the
recovered weapon

13.   P.W. 6 made recovery of three khokha kartoos 0.32 bore
in the presence of Bahadur and Krishna Kumar Singh. Evidently,
there is no positive report from the ballistic expert and the report
does not confirm that the shots were fired from the weapon that
was recovered.

14.   Apparently the police recovered a licensed gun from the accused  Imran
Afreen while he was boarding a train and the ballistic  report  showed  that
the licensed gun was not used for the killing. This means  that  the  Police
did not recover the actual weapon used for the killing
and the accused had ample time to dispose off the  weapon.   It  is  however
not possible to reject the credible ocular evidence of
the eyewitness who witnessed the shooting and who are found
be truthful.

15.   It is possible that the prosecution may not recover the actual  weapon
in some  cases.  However,  this  cannot  have  the  effect  of  discrediting
reliable ocular testimony as we have here that the accused shot  and  killed
the deceased, particularly when the lead bullets
have been recovered and are found belonging to a commonly used
7.65 m.m. caliber i.e. .32 bore weapon.
      In Anvaruddin vs. Shakoor[1], this  Court  considered  the  effect  of
obscure and  oscillating  evidence  of  the  ballistic  expert.   The  Court
observed that:

“10…..In this nebulous state of the evidence of the ballistic expert we  are
of the view that the High Court was wholly  wrong  in  doubting  the  direct
evidence of the  three  eye-witnesses  on  this  ground.  Where  the  expert
evidence is obscure and oscillating, it  is  not  proper  to  discredit  the
direct testimony of the eye-witnesses on such uncertain evidence. In such  a
situation unless the  evidence  of  the  eye-witnesses  is  shaken  by  some
glaring infirmities, it would not be proper  to  doubt  the  correctness  of
their statements….”

      In the case  of  Brijpal  Singh  vs.  State  of  M.P.[2],  this  Court
observed that there was reliable ocular evidence of the accused having  shot
the deceased. However, the ballistic expert as in this  case  reported  that
though both the guns were found to have been discharged recently, the  empty
cartridges that were seized from the spot did not match the rifle  that  was
recovered.  This Court observed that normally, if the eyewitness’s  evidence
is absolutely acceptable, then such  evidence  could  be  accepted  even  if
there is some contradiction in the medical or ballistics  reports.  However,
the oral evidence was not found acceptable in this  case.  In  contrast,  we
find the oral evidence in the present case, particularly that of P.W. 1,  to
be completely acceptable and truthful. There  is  no  iota  of  evidence  on
record which would suggest any motive on his part to falsely  implicate  the
accused. We might add that there is no evidence as  argued  by  the  learned
counsel for the respondent, that the police conspired to frame  the  accused
who was a congress leader and had protested against police high handedness.

16.   In a different  context,  this  Court  in  Gangabhavani  vs.  Rayapati
Venkat Reddy and Ors[3]., observed that in case  there  is  a  contradiction
between medical evidence and ocular evidence, the law  is  that  though  the
ocular testimony of the eye witness has greater evidentiary value  vis-à-vis
medical evidence, where the medical evidence goes so far that it  completely
rules out all the possibility of the ocular evidence being true, the  ocular
evidence may be disbelieved. In the present case,  the  expert  evidence  to
the effect that the empty cartridges which were found on the spot  were  not
fired from  the  weapon  that  was  recovered,  does  not  really  create  a
contradiction with the ocular evidence of P.W. 1 that the accused  fired  at
the deceased with a gun  and  killed  him.   It  so  happens  that  the  gun
recovered by the police, turns out to be the gun that  was  not  used.  This
creates
no contradiction between the evidence of P.W. 1 and  the  ballistics  report
though broadly it may amount to a contradiction in the prosecution case.

17.   In this case, the ballistics report need not be  rejected  as  untrue;
it simply states that the empty cartridges found at the scene of  the  crime
were not fired from the gun recovered from the  accused.  But  this  had  no
bearing on the credibility of the deposition of  P.W.  1  that  the  accused
shot the deceased with a gun, particularly as it
is corroborated by the bullets in the body.  In this case we find it
safe to accept the evidence of Himanshu Mohan Rai and disregard
the apparent contradictions. We might add that the fact  that  accused  shot
the deceased with a gun is also corroborated by the testimony
of P.W. 2.

18.   It is not possible for us to accept the reasoning of the
High Court on the basis of the minor doubts and technicalities that
the judgment of the Sessions Court convicting and sentencing the
accused for the murder of Lalit Mohan Rai has no legs to stand on.
The judgment of the Sessions Court which had the advantage of  watching  the
demeanor of the witnesses could not have been lightly set aside.

19.   In such cases where the evidence of the eye witness has been found  to
be truthful and as in this case corroborated by the fact  that  the  bullets
were recovered from the body of the deceased,  it  is  obvious  that  cannot
have the effect of an acquittal.

20.   This Court has held that an acquittal may  undoubtedly  be  interfered
with in certain circumstances.  In Shivaji  Sahabrao  Bobade  vs.  State  of
Maharashtra[4], this Court held that:

“6……The dangers of exaggerated devotion to the rule of benefit of  doubt  at
the expense of social  defence  and  to  the  soothing  sentiment  that  all
acquittals are always good regardless of  justice  to  the  victim  and  the
community,  demand  especial  emphasis  in  the  contemporary   context   of
escalating  crime  and  escape.  The  judicial  instrument  has   a   public
accountability. The cherished principles or golden thread  of  proof  beyond
reasonable doubt which runs through  the  web  of  our  law  should  not  be
stretched morbidly to embrace every hunch, hesitancy and  degree  of  doubt.
The excessive solicitude reflected in the attitude that  a  thousand  guilty
men may go but one innocent martyr shall not  suffer  is  a  false  dilemma.
Only reasonable doubts  belong  to  the  accused.  Otherwise  any  practical
systems of justice will then  break  down  and  lose  credibility  with  the
community. The evil of acquitting a  guilty  person  light  heartedly  as  a
learned Author has sapiently observed, goes  much  beyond  the  simple  fact
that just one guilty person has gone  unpunished.  If  unmerited  acquittals
become general, they tend to lead to a cynical disregard  of  the  law,  and
this in turn leads  to  a  public  demand  for  harsher  legal  presumptions
against indicted “persons” and more  severe  punishment  of  those  who  are
found guilty. Thus, too frequent acquittals of the  guilty  may  lead  to  a
ferocious penal law, eventually  eroding  the  judicial  protection  of  the
guiltless. For all these reasons it is true to  say,  with  Viscount  Simon,
that “a miscarriage of justice may arise from the acquittal  of  the  guilty
no less  than  from  the  conviction  of  the  innocent  …”  In  short,  our
jurisprudential enthusiasm for presumed innocence must be moderated  by  the
pragmatic need to make criminal
justice potent and realistic. A balance has to be

struck between chasing chance  possibilities  as  good  enough  to  set  the
delinquent free and  chopping  the  logic  of  preponderant  probability  to
punish marginal innocents…...“


      In the case of State of U.P. vs. Anil  Singh[5],  the  Court  held  as
follows:

“17. It is also our experience that invariably
the witnesses add embroidery to prosecution story, perhaps for the  fear  of
being disbelieved. But that is no ground to throw  the  case  overboard,  if
true, in the main. If there is a ring of truth in the main, the case  should
not be rejected. It is the duty
of the court to cull out the nuggets  of  truth  from  the  evidence  unless
there is reason to believe that the  inconsistencies  or  falsehood  are  so
glaring
as utterly to destroy confidence in the witnesses.
It is necessary to remember that a Judge does
not preside over a criminal trial merely to see
that no innocent man is punished. A Judge
also presides to see that a guilty man does
not escape. One is as important as the other.
Both are public duties which the Judge has
to perform.”

21.   We find that the facts and circumstances of this case warrant
an interference with the acquittal of  the  accused.  Accordingly,  Criminal
Appeal No.827 of 2011 and Criminal Appeal No.829 of 2011
are allowed.  The  judgment  dated  22.04.2010  passed  in  Criminal  Appeal
No.8239 of 2008 by the High Court is set aside.
The respondent accused - Imran Afreen is convicted under Section
302   IPC  and   is  hereby  sentenced  to  undergo  life  imprisonment.

Accordingly, respondent No.2 - Imran Afreen is directed to surrender  before
the competent authority within a period of two weeks from today  to  undergo
the remaining sentence.

                                                            ………………………………..J.
                                                                [S.A. BOBDE]



                                                            ………………………………..J.
                                                          [L. NAGESWARA RAO]
New Delhi
March 07, 2017
-----------------------
[1]    (1990) 3 SCC 266
[2]    (2003) 11 SCC 219 : (2004) SCC (Cri) 90
[3]    (2014) 1 ACR 147
[4]    (1973) 2 SCC 793
[5]    (1988) Supp SCC 686


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