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REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1073 OF 2008
SUNIL KUNDU AND ANR. … APPELLANTS
Versus
STATE OF JHARKHAND … RESPONDENT
WITH
CRIMINAL APPEAL NO. 1419 OF 2008
HIRA LAL YADAV … APPELLANT
Versus
STATE OF JHARKHAND … RESPONDENT
WITH
CRIMINAL APPEAL NO. 1512 OF 2009
NAGESHWAR PRASAD SAH … APPELLANT
Versus
STATE OF JHARKHAND … RESPONDENT
JUDGMENT
(SMT.) RANJANA PRAKASH DESAI, J.
1. The appellants Sunil Kundu, Bablu Kundu, Nageshwar
Sah and Hira Lal Yadav (‘A1-Sunil’, ‘A2-Bablu’, ‘A3-
Nageshwar’ and ‘A4-Hiralal’, for convenience) were tried
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for offences punishable under Section 302 read with Section
34 and Section 201 read with Section 34 of the Indian Penal
Code (for short, ‘the IPC’) and Section 27 of the Arms Act,
1959 (for short ‘the Arms Act’). The Sessions Court by its
judgment and order dated 15-17/09/2004 acquitted them of
charges under Section 201 read with Section 34 of the IPC
and Section 27 of the Arms Act. They were, however,
convicted for offence punishable under Section 302 read
with Section 34 of the IPC and sentenced to life
imprisonment and to pay fine of Rs.5,000/- each. They
carried appeals to the High Court of Jharkhand, Ranchi. The
High Court confirmed their conviction and sentence. Hence,
these appeals by special leave.
2. This case is a glaring example of how cause of justice
can be defeated by inefficient, lackadaisical and
incompetent investigating agency. As we go ahead, the
reasons for these observations would be clear.
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3. At the trial, the case of the prosecution, in short, was
that on 29/01/1996 at about 5.00 p.m. deceased Suresh
Yadav (for convenience, “the deceased”) reached near the
shop of Bijan Kaur situated in Refugee Colony, Jamtara,
Mihijam Pitch Road by a motorcycle driven by him. PW-3
Basudeo Mallick was sitting in the middle of the seat and
PW-6 Narendra Yadav was sitting behind him. When they
reached near the shop of Bijan Kaur, they saw A1-Sunil, A2-
Bablu, A3-Nageshwar and A4-Hiralal standing there. The
accused started pelting stones on them, resulting in
imbalance of the motorcycle. The motorcycle fell down. All
the accused attacked the deceased with knife and bhujali.
They resorted to blank firing to scare the people. The
deceased started running towards the southern side of the
railway line but he collapsed in the field. PW-3 Basudeo
Mallick was assaulted with an iron rod. PW-6 Narendra
Yadav, who is an advocate by profession, somehow
managed to escape. He ran to Mihijam Police Station and
informed about the incident. Along with the police, he came
to the scene of offence. They shifted the deceased to the
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Chittaranjan Railway Hospital. At the hospital, PW-6
Narendra Yadav’s statement was recorded by the
investigating officer - PW-7 Girish Prasad Mishra. It was
treated as FIR. On the basis of the FIR, investigation was
conducted and upon completion of investigation the accused
came to be charged as aforesaid.
4. In support of its case, the prosecution examined nine
witnesses. The prosecution story rests on the evidence of
PW-4 Shankar Yadav, PW-5 Jaldhari Yadav and PW-6
Narendra Yadav. The accused pleaded not guilty to the
charge. They contended that they were falsely involved in
this case out of previous enmity. They pleaded defence of
alibi and examined 21 witnesses in support of their case.
Their plea of alibi was rejected and they were convicted as
aforesaid.
5. We will first begin with the FIR lodged by PW-6
Narendra Yadav because it is not consistent with the
prosecution case which was developed in the court.
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According to PW-6 Narendra Yadav, on 29/1/1996, at about
5.00 p.m., the deceased reached near the shop of Bijan Kaur
situated in Refugee Colony, Jamtara, Mihijam Pitch Road by a
motorcycle driven by him. PW-3 Basudeo was sitting in the
middle of the seat and he was sitting behind PW-3 Basudeo.
When they reached near the shop of Bijan Kaur, they saw
A1-Sunil, A2-Bablu, A3-Nageshwar and A4-Hiralal standing
there. The accused started pelting stones on them, resulting
in imbalance of the motorcycle. A2-Bablu gave a blow with
rod and the motorcycle fell down. Thereafter, A1-Sunil fired
at the deceased and the deceased got injured. A3-
Nageshwar stabbed the deceased with knife all over his
body. A4-Hiralal fired at the deceased with a pistol and
injured him. They also assaulted PW-3 Basudeo Mallik with
an iron rod. Thereafter, he ran to Mihijam Police Station and
brought the police to the scene of offence. They shifted the
deceased to the Anupam Seva Sadan. On the doctor’s
advise, the deceased was shifted to the Chittaranjan Railway
Hospital where he was declared dead. The incident had
occurred due to previous enmity between the deceased on
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the one hand and A3-Nageshwar and A4-Hiralal on the other
hand. He did not refer to the presence of PW-4 Shankar
Yadav and PW-5 Jaldhari Yadav in the FIR.
6. We have heard Mr. Sanyal, senior advocate appearing
for A1-Sunil and A2-Bablu and, Mr. Nageshwar Rao, senior
advocate appearing for A3-Nageshwar and A4-Hiralal. So far
as the genesis of the case and the alleged unreliability of the
evidence of PW-4 Shankar Yadav and PW-5 Jaldhari Yadav is
concerned, Mr. Sanyal stated that he was adopting the
submissions of Mr. Nageshwar Rao. We have also heard Mr.
Ratan Kumar Choudhari learned counsel appearing for the
State of Jharkhand. We have perused their written
submissions.
7. Mr. Sanyal, senior advocate submitted that A1-Sunil is
said to have fired at the deceased with a pistol. He is,
however, acquitted of offence under Section 27 of the Arms
Act. Besides, PW-1 Dr. Chakravorty stated in his evidence
that there was no firearm injury on the deceased. Counsel
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submitted that the State’s submission that the firearm was
used only to frighten people is not borne out by the evidence
of witnesses. Besides, no bullets or empty cartridges were
seized from the scene of offence. So far as A2-Bablu is
concerned, counsel pointed out that while PW-6 Narendra
Yadav stated in the FIR that A2-Bablu hit the deceased with
iron rod, in the court he stated that he was holding knife.
This was done to bring his evidence in conformity with
postmortem notes. PW-1 Dr. Chakravorty stated that he did
not find any iron rod injury on the deceased. The
prosecution story is, therefore, untrue. Relying on Mani
Ram & Ors. v. State of U.P.1
, counsel submitted that if
the oral evidence is inconsistent with the medical evidence,
it is a fundamental defect which discredits the prosecution
case. Drawing our attention to Kapildeo Mandal & Ors.
v. State of Bihar2
, counsel submitted that the accused are
entitled to benefit of doubt where oral evidence is
inconsistent with medical evidence. He further submitted
that when medical evidence does not support the presence
1
1994 Supp.. (2) SCC 289
2
(2008) 16 SCC 99
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of the accused, his presence is ruled out. (See Anjani
Chaudhary v. State of Bihar3
). Counsel also relied on
Sahebrao Mohan Berad v. State of Maharashtra4
.
8. Mr. Nageshwar Rao, learned senior advocate submitted
that the evidence of the prosecution witnesses is
inconsistent with and belied by the medical evidence. He
pointed out that PW-5 Jaldhari Yadav deposed that he and
PW-6 Narendra Yadav, the first informant took the dead body
to the hospital and gave statement leading to registration of
the FIR. This shows that it was recorded at the Chittaranjan
Railway Hospital. Earlier statement made before the police
has been suppressed. In the FIR and also in the court, PW-6
Narendra Yadav alleged that two persons had fired at the
deceased, but no firearm injury was found on the deceased.
There is a variance between the FIR and the evidence of PW-
6 Narendra Yadav. PW-4 Shankar Yadav and PW-5 Jaldhari
Yadav have improved their versions in the court. These two
witnesses have stated that when they went to the hospital,
3
(2011) 2 SCC 747
4
(2011) 4 SCC 249
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PW-6 Narendra Yadav was present. But, their names are not
mentioned in the FIR. According to the defence, S.D.E.
No.473 dated 29/1/1996 was recorded at 5.55 p.m. when
PW-6 Narendra Yadav had gone to the police station to
inform the police about the occurrence, but no names were
disclosed and hence, no names are mentioned therein.
Sanha Entry No.473 is missing. Thus the earlier version
recorded by the police has been suppressed by the
prosecution. Evidence of PW-4 Shankar Yadav is of no use to
the prosecution as he clearly stated that the accused were
not known to him and he had heard about them from others.
Counsel submitted that the place of occurrence is a busy
place. No independent witness has been examined by the
prosecution. Admittedly, there is enmity between the two
sides. Medical evidence does not support the prosecution
case. The prosecution has, therefore, failed to prove its case
beyond reasonable doubt. Counsel submitted that the
accused must, therefore, be acquitted.
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9. Mr. Ratan Kumar Choudhary, learned counsel for the
State, on the other hand, submitted that so far as the
manner in which the incident took place is concerned, there
is no variation in the evidence of PW-4 Shankar Yadav, PW-5
Jaldhari Yadav and PW-6 Narendra Yadav. There may be
minor variations which do not affect the substratum of the
prosecution case. Merely because the names of PW-4
Shankar Yadav and PW-5 Jaldhari Yadav are not mentioned
in the FIR, it cannot be said that they were not present. It is
true that PW-4 Shankar Yadav stated that he did not know
the names of the accused, but he stated that he got to know
the names at the scene of offence and he identified the
accused in the court. Counsel pointed out that the
investigating officer stated in his evidence that due to terror
created by the accused, no one came forward to give
statement. The accused have criminal history and,
therefore, non-examination of independent witnesses does
not affect the prosecution case. Counsel submitted that the
medical evidence supports the prosecution case. Counsel
submitted that the story about Sanah Entry No.473 is
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concocted to create doubt about the prosecution story.
There is no such sanha entry. Counsel submitted that
conviction of the accused is perfectly legal and justified. The
appeals, therefore, deserve to be dismissed.
10. Before going to the evidence of eye-witnesses, we shall
advert to the post-mortem notes because while it is alleged
that the accused used firearms, the post-mortem notes do
not show that the deceased had received any firearm injury.
As per the post-mortem notes, there were 24 incised wounds
and multiple abrasions of varying sizes over both knee joints
of the dead body. Cause of death is stated to be “due to
profuse heamorrhage and shock as a result of ante mortem
injury Nos.(i) and (xv) caused by sharp cutting weapon”.
They could be caused by a bhujali or chhura (knife). Injury
Nos.(1) and (xv) are incised wounds. The post-mortem notes
further state that injury No.(xxiii) can be caused by iron rod.
Injury No.(xxiii) is described as “multiple abrasions of
varying sizes over both knee joints”. PW-1 Dr. Chakraborty
who conducted the post-mortem, reiterated the findings
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recorded in the post-mortem notes and stated that there
was no firearm injury on the deceased. He denied that
multiple abrasions found on both the knee joints could be
caused by a fall.
11. The main plank of the argument of learned counsel for
the accused is that since there is no firearm injury on the
deceased, the entire prosecution story must fall to the
ground. Therefore, we must now turn to the evidence of PW-
6 Narendra Yadav. PW-6 Narendra Yadav is the first
informant. His presence at the scene of offence cannot be
doubted because all the witnesses including PW-3 Basudeo
Mallik who turned hostile stated that he was sitting on the
motorcycle which was being driven by the deceased.
Besides, during this incident, he received injuries due to fall
of the motorcycle. PW-2 Dr. Mishra stated in his evidence
that on the date of incident i.e. on 29/1/1996 he examined
PW-6 Narendra Yadav. He described the nature of injuries
suffered by this witness and produced injury certificate
which is at Ex-21. His evidence is consistent with the
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evidence of other witnesses only to the extent that when the
motorcycle reached near the shop of Bijan Kaur, all the
accused had assembled there; they started pelting stones
and A3-Nageshwar hit with a rod and that the motorcycle fell
down. After this, his evidence is inconsistent with the
evidence of other witnesses. He stated that the deceased
ran to the railway line towards the south. A1-Sunil fired at
him with a pistol. A2-Bablu who was armed with a chhura
inflicted injuries at many places on the body of the
deceased. A3-Nageshwar beat the deceased with a rod. A4-
Hiralal fired at the deceased with a pistol. PW3-Basudeo
Mallik was beaten by A3-Nageshwar with rod. Then, he went
to the police station and gave intimation regarding the
incident. He brought the police to the scene of offence. The
deceased was lying in unconscious condition. They shifted
the deceased to Anupam Seva Sadan for treatment. On the
advice of the doctor, the deceased was taken to the
Chittaranjan Railway Hospital where he was declared dead.
He stated that at the Chittaranajan Railway Hospital, his
statement was recorded. He made a mistake in identifying
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of A2-Bablu in the court. The case of this witness that A1-
Sunil and A4-Hiralal had pistols in their hands and they fired
at the deceased which resulted in the firearm injury being
caused to him is belied by the post-mortem notes.
Admittedly, the postmortem notes do not indicate that the
deceased had suffered any firearm injury. It is pertinent to
note that no bullets or empty cartridges were recovered
from the scene of offence. Therefore, this witness has
obviously not come out with the truth. It must also be borne
in mind that he ran to the police station after the deceased
fell down and the alleged cutting of throat of the deceased
by the accused is not witnessed by him. He has also not
witnessed the alleged blank firing resorted to by the accused
while running away. It would not be out of place to mention
here that he admitted in his cross-examination that the
deceased was living in the house of his maternal uncle and
he is his relation. He stated that he was also staying with
the deceased. He stated that after the police came to the
scene of offence, they seized the articles lying on the scene
of offence whereas PW-5 Jaldhari Yadav stated that the
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seizure panchanama was prepared in the evening at 8.00
p.m. after the police came back to the scene of offence from
the hospital. We find it difficult to place reliance on this
witness.
12. Statement of PW-3 Basudeo Mallick, who was also
sitting on the motorcycle driven by the deceased was
recorded by PW-8 Satish Chandra Singh, Judicial Magistrate,
under Section 164 of the Code of Criminal Procedure.
However, he turned hostile. The prosecution could draw
support from his evidence only to the extent that he, PW-6
Narendra Yadav and the deceased reached Refugee Colony
at 5.30 p.m. on the date of the incident; that he was hit with
a hard object on his head and he fell down. PW-2 Dr. S.K.
Mishra, who had examined him on 29/1/1996 has described
injuries suffered by him and produced injury report (Ex-2).
Thus, his presence and the fact that some incident took
place on that day at Refugee Colony are established. But,
his evidence is of no further use to the prosecution because
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on the major aspect of the prosecution story, he has not
supported it.
13. PW-4 Shankar Yadav is admittedly related to the
deceased. It must be noted that this witness is a chance
witness. He is the resident of Mouza Kush Bediya. He stated
that he was coming from Kanboe to his house. He admitted
that from the place of incident, his house is about one mile
away. He really had no reason to be there. He has not
explained why he was at the scene of offence on that day.
He stated that he saw the accused standing near a grill
making shop. The deceased came there. The accused
started throwing stones on the deceased’s motorcycle. He
was hit by rod. He lost grip of the handle. The motorcycle
fell down. The deceased started running away. The accused
chased him and caught him. A1-Sunil fired. Because of the
firing, people who had assembled there started running
away. All the four accused started assaulting the deceased
with bhujali and knife. When he fell down, A4-Hiralal Yadav
cut his throat. According to this witness, PW-5 Jaldhari
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Yadav was present. After that, all the accused fled away. It
is pertinent to note that he admitted that he did not know
the names of the accused and he got to know the names of
the accused from the people who had assembled there. He
admitted that the deceased and his brother were accused in
some other sessions case and the accused are witnesses in a
criminal case where his brother is involved. Faced with the
case set out in the FIR that the deceased was fired at by the
accused and was injured, which is contrary to the postmortem notes, this witness has tried to bring his evidence in
conformity with the post-mortem notes. He stated that A1-
Sunil fired but avoided to say that he fired at the deceased.
He suggested that firing was merely done to scare people.
This attempt has proved to be unsuccessful because the
police have not recovered a single bullet or empty cartridge
from the scene of offence.
14. PW-5 Jaldhari Yadav is also related to the deceased. He
is a chance witness. According to him, on the date of
incident, he had gone to the station to buy cattle feed. He
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stated that the place of occurrence would be less than a mile
from the station. Before he could enter the shop, the
members of the deceased’s family came there and asked
him to search for the deceased, but they did not tell him how
far he should go to look for him. According to him, he did
not ask them as to where the deceased had gone or at what
time he used to return home. This story does not stand to
reason. It is not understood how the members of the
deceased’s family would know that this witness would be in
the market at the relevant time so that they could contact
him and ask him to search for the deceased. It is not
understood how without any particulars being furnished to
him, he embarked on the task and went to the scene of
offence, which was less than a mile away from the station.
In any case, his evidence does not inspire confidence. He
stated that on the date of incident when he was at Bijan
Kaur’s shop situated on Pitch Road, he saw motorcycle of the
deceased. PW-3 Basudeo Mallik was lying on the ground.
A1-Sunil, A2-Bablu, A3-Nageshwar and A4-Hiralal were
beating the deceased with rod, bhujali and knife. PW-4
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Shankar Yadav came there and started shouting ‘Maar Diya;
Maar Diya’. About 20 to 25 stab injuries were inflicted on the
deceased. According to him, A1-Sunil and A2-Bablu fired in
the air. People got scared and they ran helter-skelter. He
further stated that A3-Nageshwar and A4-Hiralal cut the
throat of the deceased and all of them fled away. According
to him, treating the deceased as dead, while running away,
the accused resorted to blank firing. Just like PW-4 Shankar
Yadav, this witness has also tried to bring his evidence in
conformity with the post-mortem notes which do not show
any firearm injury. It bears repetition to state that not a
single bullet or empty cartridge was recovered from the
scene of offence. The use of firearm by the accused is not
supported by any evidence. He claims to have lifted the
dead body, but he stated that his clothes were not smeared
with blood. The police have not seized his clothes, which
creates suspicion about the prosecution case. Moreover,
from his evidence, it appears that PW-4 Shankar Yadav came
after the deceased was assaulted, whereas PW-4 Shankar
Yadav claims that he was there right from the beginning.
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15. Having dealt with the evidence of these three important
witnesses, we would like to focuss on the inconsistencies in
their evidence. PW-4 Shankar Yadav stated that A1-Sunil
fired and due to the firing, people got scared. PW-5 Jaldhari
Yadav stated that A1-Sunil and A2-Bablu fired in air to scare
the people. He further stated that treating the deceased as
dead, they resorted to blank firing. PW-6 Narendra Yadav
stated that A1-Sunil and A4-Hiralal fired and injured the
deceased. Thus, there are three different versions given by
three witnesses. According to PW-4 Shankar Yadav, only A1
Sunil was carrying the pistol. According to PW-5 Jaldhari
Yadav, A1-Sunil and A2-Bablu had pistols and they fired in
the air to scare the people. PW-6 Narendra Yadav goes a
step further and says that A1-Sunil and A4-Hiralal fired and
injured the deceased. Neither PW-4 Shankar Yadav nor PW-5
Jaldhari Yadav stated that A4-Hiralal had a pistol in his hand.
There is no firearm injury on the deceased. PW-4 Shankar
Yadav stated that A4-Hiralal cut the throat of the deceased
whereas PW-5 Jaldhari Yadav stated that A3-Nageshwar and
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A4-Hiralal cut the throat of the deceased. According to PW-6
Narendra Yadav, A3-Nageshwar had a rod in his hand and he
had attacked the deceased with the rod. He had also dealt a
rod blow on the motorcycle. This is not consistent with PW-5
Jaldhari Yadav’s case that A3-Nageshwar cut the throat of
the deceased. This would mean that A3-Nageshwar was
carrying a bhujali or knife. PW-6 Narendra Yadav stated that
A2-Bablu gave several knife blows on the deceased but PW-5
Jaldhari Yadav stated that he fired in the air meaning
thereby he had a pistol in his hand. It was argued by Mr.
Ratan Kumar Choudhary, learned counsel for the State that
different persons react differently to a particular situation
and as such there may be minor variations in their
statements. He submitted that minor contradictions and
inconsistencies which do not go to the root of the
prosecution version need to be ignored. In this case, it is not
possible for us to adopt such an approach because there is a
major lacuna in the prosecution story. It has been alleged
that at least two of the accused were carrying pistols; the
deceased was fired at and he was injured. This case is not
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borne out by the medical evidence. At the cost of repetition,
we must state that no bullets or empty cartridges have been
recovered from the scene of offence. If we keep this major
lacuna of the prosecution story in mind and consider the
abovementioned inconsistencies in the evidence of the
prosecution witnesses, it would not be possible to term them
as minor inconsistencies or variations which should be
ignored. Besides, all the three important prosecution
witnesses are related to the deceased and, therefore, are
interested witnesses. We are aware that the evidence of an
interested witness is not to be mechanically overlooked. If it
is consistent, it can be relied upon and conviction can be
based on it because, an interested witness is not likely to
leave out the real culprit. But in this case, the interested
witnesses are not truthful. Their presence itself is doubtful.
According to PW-6 Narendra Yadav, they were present at the
scene of offence, but their names are not mentioned in the
FIR. The genesis of the prosecution case is suppressed.
Moreover, admittedly, there is deep rooted enmity between
the accused and the deceased to which we have made
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reference earlier. We are mindful of the fact that enmity is a
double edged weapon but possibility of false involvement
because of deep rooted enmity also cannot be ruled out.
16. As we have already stated the major lacuna in this case
is that use of firearms by the accused is not proved. There
are no firearm injuries on the deceased. It is true that when
there is cogent eye-witness account, the medical evidence
recedes in the background. However, when the eye-witness
account is totally inconsistent with the medical evidence and
there is reason to believe that improvements are made in
the court to bring the prosecution case in conformity with
the post-mortem notes, it is a cause for concern. In such a
situation, it is difficult to say that one must believe the
tainted eye-witness’ account and keep the medical evidence
aside. In this connection, we may usefully refer to the
judgment in Sahebrao where this Court observed that when
the doctor’s experience has not been questioned, he is the
only competent person to opine on the nature of injuries and
cause of death. We may also refer to the judgment of this
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Court in Anjani Chaudhary, where the medical evidence
did not support the appellant’s presence as there was no
injury on the deceased which could be caused by a lathi and
the appellant was stated to be carrying a lathi. Since the
eye-witnesses therein were not found to be reliable, this
Court acquitted the appellant therein. In Kapildeo Mandal,
all the eye-witnesses had categorically stated that the
deceased was injured by the use of firearm, whereas the
medical evidence specifically indicated that no firearm injury
was found on the deceased. This Court held that while
appreciating variance between medical evidence and ocular
evidence, oral evidence of eye-witnesses has to get priority
as medical evidence is basically opinionative. But, when the
evidence of the eye-witnesses is totally inconsistent with the
evidence given by the medical experts then evidence is
appreciated in a different perspective by the courts. It was
observed that when medical evidence specifically rules out
the injury claimed to have been inflicted as per the eyewitnesses’ version, then the court can draw adverse
inference that the prosecution version is not trustworthy.
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This judgment is clearly attracted to the present case. In
Mani Ram, PW-2 the only sole eye-witness therein stated
that the two appellants therein chased deceased-Basdeo and
both of them fired at him from the kattas while he was
running. However, according to the postmortem report,
injury No.7, which was caused by a firearm, was situated on
the right shoulder and front of upper arm and outer part.
There was no injury either on the back or anywhere behind
the shoulder. Since the prosecution case was that the
deceased was fired at while he was running, firearm injuries
should have been there on his back. In view of this
discrepancy, this Court observed that where the direct
evidence is not supported by the expert evidence then the
evidence is wanting in the most material part of the
prosecution case and, therefore, it would be difficult to
convict the accused on the basis of such evidence. We feel
that the accused can draw support from this case also.
Tainted eye-witness account which is glaringly inconsistent
with the medical evidence as regards firearm injury has
shaken the credibility of the prosecution case.
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17. There is yet another very important and distressing
lacuna in the prosecution case. Learned counsel for the
accused submitted that PW-6 Narendra Yadav went to the
police station and informed the police about the incident in
question. A sanha entry was made. However, PW-6
Narendra Yadav did not name the accused. It was submitted
that this sanha entry was purposely suppressed by the
prosecution as it did not contain the names of the accused.
It was suggested that the FIR of PW-6 Narendra Yadav is a
doctored document and the names of the accused were
subsequently added at the hospital. In order to examine
whether there is any substance in this submission, we
carefully examined the record. We found that after
recording the above submissions of the defence counsel, the
trial court by its order dated 23/10/2003 directed the
prosecution to produce Sanha Entry Nos.465 to 476 dated
29/1/1996 i.e. the date of incident. The officer-in-charge of
Mihijam Police Station sent a report dated 4/11/2003 along
with the register containing sanha entries stating that the
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original sanha entries of 29/1/1996 are not available. The
said report is at Ex-O. Along with the said letter, the
relevant register is produced. In order to find out whether
really the sanha entries dated 29/1/1993 are missing, we
went through the said register carefully and we found that
the pages containing Sanha Entry Nos.465 to 476 dated
29/1/1996 are torn and missing. This appears to support the
case of the accused that the sanha entries dated 29/1/1996
were purposely not produced because they contained
information of the occurrence communicated by PW-6
Narendra Yadav first in point of time and the names of the
accused were not mentioned therein. When confronted
with this, the investigating officer, PW-7 Girish Mishra at one
stage denied this allegation. Later on, he stated that he
does not remember whether any sanha entry was made.
When it was suggested to him that in the sanha entry, no
names of the accused were mentioned and it was removed
from the record to falsely implicate the accused, he said that
it is a matter for investigation. This casts a shadow of doubt
on the credibility of the prosecution story.
27Page 28
18. It was argued that the accused were absconding and,
therefore, adverse inference needs to be drawn against
them. It is well settled that absconding by itself does not
prove the guilt of a person. A person may run away due to
fear of false implication or arrest. (See Sk. Yusuf v. State
of West Bengal5
). It is also true that the plea of alibi taken
by the accused has failed. The defence witnesses examined
by them have been disbelieved. It was urged that adverse
inference should be drawn from this. We reject this
submission. When the prosecution is not able to prove its
case beyond reasonable doubt it cannot take advantage of
the fact that the accused have not been able to probablise
their defence. It is well settled that the prosecution must
stand or fall on its own feet. It cannot draw support from the
weakness of the case of the accused, if it has not proved its
case beyond reasonable doubt.
5
(2011) 11 SCC 754
28Page 29
19. We began by commenting on the unhappy conduct of
the investigating agency. We conclude by reaffirming our
view. We are distressed at the way in which the
investigation of this case was carried out. It is true that
acquitting the accused merely on the ground of lapses or
irregularities in the investigation of a case would amount to
putting premium on the deprecable conduct of an
incompetent investigating agency at the cost of the victims
which may lead to encouraging perpetrators of crimes. This
Court has laid down that the lapses or irregularities in the
investigation could be ignored subject to a rider. They can
be ignored only if despite their existence, the evidence on
record bears out the case of the prosecution and the
evidence is of sterling quality. If the lapses or irregularities
do not go to the root of the matter, if they do not dislodge
the substratum of the prosecution case, they can be ignored.
In this case, the lapses are very serious. PW-5 Jaldhari
Yadav is a pancha to the seizure panchnama under which
weapons and other articles were seized from the scene of
offence and also to the inquest panchnama. Independent
29Page 30
panchas have not been examined. The investigating officer
has stated in his evidence that the seized articles were not
sent to the court along with the charge-sheet. They were
kept in the Malkhana of the police station. He has admitted
that the seized articles were not sent to the Forensic Science
Laboratory. No explanation is offered by him about the
missing sanha entries. His evidence on that aspect is
evasive. Clothes of the deceased were not sent to the
Forensic Science Laboratory. The investigating officer
admitted that no seizure list of the clothes of the deceased
was made. Blood group of the deceased was not
ascertained. No link is established between the blood found
on the seized articles and the blood of the deceased. It is
difficult to make allowance for such gross lapses. Besides,
the evidence of eye-witnesses does not inspire confidence.
Undoubtedly, a grave suspicion is created about the
involvement of the accused in the offence of murder. It is
well settled that suspicion, however strong, cannot take the
place of proof. In such a case, benefit of doubt must go to
the accused. In the circumstances, we quash and set aside
30Page 31
the impugned judgment and order. The appellants-accused
are in jail. We direct that the appellants – A1-Sunil Kundu,
A2-Bablu Kundu, A3-Nageshwar Prasad Sah and A4-Hira Lal
Yadav be released forthwith unless otherwise required in
any other case.
20. The appeals are disposed of in the aforestated terms.
………………………….J.
(Aftab Alam]
………………………….J.
(Ranjana Prakash Desai)
New Delhi
April 9, 2013.
31
