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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.490 OF 2017

MUNNA LAL … APPELLANT

VS.

THE STATE OF UTTAR PRADESH … RESPONDENT

WITH

CRIMINAL APPEAL NO.491 OF 2017

SHEO LAL … APPELLANT

VS.

THE STATE OF UTTAR PRADESH … RESPONDENT

J U D G M E N T

DIPANKAR DATTA, J.

THE CHALLENGE

These two criminal appeals, arising out of the same

occurrence, call in question the judgment and order of

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the High Court of Judicature at Allahabad dated 9

th

July,

2014 dismissing Criminal Appeal No.539 of 1986 [being an

appeal under section 374(2) of the Code of Criminal

Procedure (hereafter “Cr. P.C.”, for short)] carried by

the appellants from the judgment and order dated 29

th

January, 1986 of the Court of IInd Additional Sessions

Judge, Shahjahanpur, Uttar Pradesh, in S.T. No.499 of

1985.

FIRST INFORMATION REPORT (F.I.R.)

2. Narayan, father of Ram Vilas, was murdered in the

morning of 5

th

September, 1985 round about 10.00 hours. A

written complaint was lodged soon thereafter, at about

12.10 hours, by Ram Vilas leading to registration of an

F.I.R. under section 302 of the Indian Penal Code

(hereafter “IPC”, for short). One Dr. Mohd. Hanif Khan

was the scribe of the said FIR. Munna Lal, Sheo Lal, Babu

Ram, and Kalika were accused of committing such murder.

INQUEST

3. Consequent upon registration of the F.I.R.,

Shailendra Bahadur Chandra, the Station Police Officer of

Police Station Tilhar (who was also the Investigating

Officer) proceeded to the place of occurrence, along with

Ram Pal Sagar, S.I., and Udham Singh, constable. Inquest

had been conducted by Ram Pal Sagar in course whereof a

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bullet was recovered at the place of occurrence from the

blood oozing out from one of the injuries suffered by

Narayan.

CHARGE(S)

4. Upon completion of investigation, charge-sheet under

section 302 was filed before the concerned court against

each of the 4 (four) accused. Kalika had passed away in

the meanwhile. Upon committal, the trial court framed the

following charges:

“Charge

I, Sanwal Singh, II Addl. Sess. Judge, Shahjahanpur,

do hereby charge you : -

1. Shiv Lal

2. Munna Lal

3. Babul Ram, as follows:

That you along with Kalika on 05.09.85 at about

10.00 A.M. in village Fatehpur Bujurg alias

Mohaddipur, police station Tilhar, District :

Shahjahanpur, at the field of Budhu Khan situated in

the west of village Abadi did commit murder by

intentionally and knowingly causing the death of

Narain in that you Munna caused injuries by gunshot,

you Babu Ram caused injuries by tamancha and you

Shiv Lal caused injuries by Kanta and your associate

Kalika deceased caused injuries by lathi and all of

you intentionally co-operated in the commission of

the said offence and that you thereby committee an

offence punishable under section 302 I.P.C. and

within the cognizance of this court of sessions.

And I hereby direct that you be tried by this

court of sessions on the said charge.

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TRIAL

5. The prosecution examined 5 (five) witnesses to

support its case and more than a dozen of documentary

evidence. None was examined on behalf of the defence.

6. PW-1 was Dr. Ramesh, who conducted post-mortem. The

following ante-mortem injuries were found on the cadaver

of Narayan:

(1)Lacerated wound 2 cm x 1 cm over forehead

3 cm above left eye brow wall maggots

present.

(2)Lacerated wound 4 cm x 1 cm over chin 1 cm

below lower lip. Maggots were present.

(3)Lacerated wound 3 cm x 1 cm left side face

2 cm left lateral to left side of mouth.

(4)Incised wound 17 cm x 8 cm over front of

abdomen cavity deep 5 cm above umbilicus.

Visceral organs prolapsing.

(5)Gunshot wound of entry 2 cm x 1 cm over

front of abdomen 3 cm right lateral to

umbilicus tattooing present. Direction

backward downward.

(6)Gunshot wound of exit 6 cm x 5 cm over

left side of hip 5 cm below iliac crest.

(7)Gunshot wound of entry 2 cm x 1 cm over

front of right thigh 15 cm below ilicae

spine (ant) with direction backward

lateral.

(8)Gunshot wound of exit 3 cm x 2 cm over

lateral side of right thigh 12 cm below

iliae crest.”

7. According to PW-1, “death of Narayan occurred due

to shock and haemorrhage and much bleedings” ; injury nos.

5 and 6 and likewise injury nos.7 and 8 noted above were

respectively the entry and exit wounds corresponding with

each other, which could be caused by gun and tamancha

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shots, whereas injury nos. 1, 2, and 3 were possible by

lathi and injury no.4 could be caused by “kanta”.

8. Ram Vilas, son of the deceased, while deposing as

PW-2 stated that a quarrel had taken place 10 (ten) years

before between Narayan and Jaswant (father of Sheo Lal)

and Sheo Lal and that Jaswant died in that quarrel. One

‘Aajudhi’, on the side of Sheo Lal, was murdered. Narayan

was, however, acquitted. PW-2 identified, inter alia,

Munna Lal and Sheo Lal who were present in the Court.

According to PW-2, on the date of the fateful incident,

he along with his father Narayan after ploughing their

field had reached the field of Budhu Khan when the 4

(four) accused persons suddenly came out from the field

belonging to Sheo Lal. The said accused viz., Munna Lal,

Sheo Lal, Babu Ram and Kalika, were armed with ‘bandook’

(gun), ‘kanta’ (sharp edged weapon), ‘tamancha’ (locally

made gun), and ‘lathi’ (stick) respectively. They were

hurling abuses, and exhorting to kill Narayan. Narayan

received gunshot injuries from Munna Lal and Babu Ram,

whereas Sheo Lal and Kalika inflicted blows on him by

kanta and lathi, respectively. Such incident was also

witnessed by Kedar, Hemraj, Khamkaran and Chhange Lal.

Kedar and Hemraj requested not to kill. It was reiterated

that Hemraj had come at the time of incident and had seen

the incident. After the accused persons fled, other

persons had reached there. PW-2 finding that Narayan was

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dead, reached the shop of Dr. Hanif and narrated the

incident to him whereupon Dr. Hanif had written the

complaint and read over the contents to PW-2. PW-2

neither signed nor affixed his thumb impression on the

report written by Dr. Hanif but when PW-2 took the report

to the police station, he had affixed his thumb

impression on the report which was written by the

‘munshi’ in the police station.

9. In course of cross-examination, PW-2 disclosed that

Narayan had made an application for cancelling the

license of the gun of Jaswant and had made ‘pairvi’.

Narayan had earlier been tried in a case under section

302, IPC and he also filed a cross-case; further, a case

under section 107/116, Cr. P.C. was pending against

Narayan; also, a case under section 145, Cr. P.C. was

pending wherein PW-2 and his father Narayan were the

accused persons. In the latter case, Munna Lal was a

witness against them. Since the murder of ‘Aajudhi’,

there has been constant enmity with Sheo Lal. However,

till the murder of Narayan, there was no ‘marpeet’ or

‘pairokari’ with PW-2 or his father. PW-2 “had not

affixed thumb impression on the report at the police

station” but had affixed his thumb impression on it at

the ‘dukaan’ (shop) of Hanif and handed over the same to

the munshi.

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10.Hemraj, an eye-witness, deposed as PW-3. Sister of

PW-3 resides in Gopalpur Dhadhipura and he is on visiting

terms. The distance between Mohaddipur and Gopalpur is

1-2 miles. Whenever PW-3 used to travel to Gopalpur from

his village, he used to take the outer road of village

Mohaddipur. When he reached near the field of Budhu Khan,

the accused persons armed with gun, kanta, tamancha, and

lathi, were killing Narayan. PW-2 was present at the

place of occurrence. Two passersby viz., Chhange Lal and

Khemkaran had reached there. Apart from PW-3, Kedar who

was grazing two buffaloes had also seen the incident.

After inflicting blows on Narayan, the accused persons

fled towards the southern direction. Narayan had died.

11.In course of cross-examination, PW-3 denied the

suggestions that he was related to the family of Narayan.

PW-3 reiterated that Kedar was grazing animals near the

place of occurrence and Khemkaran and Chhange Lal came

there in his (PW-3) presence. By the time PW-3 left the

place of occurrence, 20 (twenty) to 25 (twenty-five)

persons assembled there of whom one old lady and one girl

from the family of Narayan were weeping. Neither could

PW-3 identify the wife of Ram Vilas nor did he know the

name of villagers who reached there later.

12.Ram Pal Sagar, who conducted inquest, was PW-4. PW-4

deposed that in course of inquest, he found a bullet in

the blood oozing out from the injury at the hip of the

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deceased. He proved the charge-sheet and the seizure memo

pertaining to the bullet that was recovered. PW-4 also

deposed that, among others, he could find Kedar on

reaching the place of occurrence.

13.Constable Udham Singh deposed as PW-5. PW-5 had

accompanied the Investigating Officer to the place of

occurrence, where PW-4 had conducted the inquest.

14.Significantly, Dr. Hanif, Kedar, Chhange Lal,

Khemkaran and the Investigating Officer were not examined

by the prosecution. Further, neither the gun and the

tamancha nor the kanta and lathi were seized. Also, there

were no forensic laboratory or ballistic reports.

15. Ultimately, upon consideration of the evidence on

record, the Sessions Judge held that the consistent and

unimpeachable direct evidence proved the case, which was

supported by dependable probabilities, existence of

motive, medical evidence and all other circumstances. In

so holding, the ocular account of PWs 2 and 3 weighed

with the trial court while holding Munna Lal, Sheo Lal

and Babu Ram guilty of the offences with which they were

charged. It was also held that the prompt F.I.R.

presented a guarantee about the truthfulness of the case.

Consequently, by his judgment dated 29

th

January, 1986,

the judge convicted the surviving accused, viz., Munna

Lal, Sheo Lal and Babu Ram, and imposed upon them the

sentence of life imprisonment.

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APPEAL

16.As noted above, the aforesaid judgment and order of

the Sessions Judge was carried in appeal before the High

Court of Judicature at Allahabad by Munna Lal, Sheo Lal

and Babu Ram.

17.During the pendency of the appeal, Babu Ram passed

away; hence, the appeal at his instance stood abated.

18.Upon hearing arguments advanced on behalf of Munna

Lal and Sheo Lal as well as on behalf of the State of

Uttar Pradesh and on consideration of the materials on

record, the High Court concurred with the findings

returned by the Sessions Judge and observed that there

was no sufficient ground to interfere. While dismissing

the said appeal, the High Court directed Munna Lal and

Sheo Lal, who were on bail, to surrender before the trial

court to serve out the remaining period of their

sentences within 30 days, failing which the trial court

was directed to ensure their arrest and to send them to

jail for serving sentences in accordance with law.

PROCEEDINGS BEFORE THIS COURT

19.Aggrieved by the dismissal of Criminal Appeal No.539

of 1986 by the High Court, Munna Lal and Sheo Lal applied

for special leave to appeal whereupon leave was granted

by this Court by an order dated 6

th

March, 2017.

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20. In the meanwhile, Munna Lal and Sheo Lal had been

taken into custody after dismissal of their appeal by the

High Court. Both the appellants having served their

respective sentences in excess of 11 years and 11 months,

they applied for bail. While considering the

application(s) for bail on 10

th

January, 2023, this Court

directed the parties to return better prepared the

following day to address on the merits of the appeals.

21.Mr. Mukesh K. Giri, learned counsel appearing for

the appellants viz., Munna Lal and Sheo Lal, and Mr.

Sanjay Kumar Tyagi, learned counsel for the respondent,

have been heard at sufficient length.

APPELLANTS’ARGUMENTS

22.Mr. Giri took serious exception to the findings

returned by the trial court and the High Court. According

to him, from the evidence on record, it is absolutely

clear that there was a long-standing enmity between

Narayan and Jaswant (father of Munna Lal) and the courts

below failed to take note that it was a clear case of

false implication. Further, he contended that the

statement of Hemraj, PW-3, under section 161, Cr. P.C.

was recorded on 29

th

September, 1985, i.e., more than 24

(twenty-four) days after Narayan was allegedly murdered

by the appellants. In the absence of the Investigating

Officer entering the witness box, there was no

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justifiable explanation for this delay in recording such

statement and the same deeply prejudiced the appellants.

Next, referring to non-production of Dr. Hanif, Kedar,

Chhange Lal and Khemkaran, as prosecution witnesses, it

was contended by him that the same ought to have been

held fatal for the prosecution case.

23.Continuing further, Mr. Giri contended that PW-3 was

only a chance witness, and being a resident of a village

different from the village where the appellants and

Narayan with his family members resided, he had no reason

to be there at the place of occurrence at 10.00 hours in

the morning and no plausible explanation was proferred by

him. For supporting his contention that the evidence of a

chance witness requires cautious and close scrutiny, that

his presence at the place of occurrence must be

adequately established, and that deposition of a chance

witness, whose presence at the place of occurrence

remains doubtful, should be discarded, reliance was

placed by Mr. Giri on the decision of this Court reported

in (2009) 9 SCC 719 (Jarnail Singh vs. State of Punjab).

24.Mr. Giri further contended that Munna Lal’s double

barrel gun was covered by a licence and no attempt was

ever made to seize such gun. Interestingly, a bullet

having been seized at the place where Narayan’s dead body

lay, there was also no attempt to obtain the opinion of a

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ballistic expert to ascertain whether the bullet could

have been fired from Munna Lal’s gun.

25.Also, Mr. Giri contended that failure of the

prosecution to have the testimony of the Investigating

Officer recorded ought to be regarded as a serious flaw

which lends credence to the defence version that Narayan

might have been murdered by someone else but because of

the previous enmity, Munna Lal and Sheo Lal were falsely

arraigned as accused.

ARGUMENTS OF THE STATE

26.Per contra, Mr. Tyagi, learned counsel for the

common respondent, contended that the trial court as well

as the High Court meticulously scanned the evidence on

record and returned findings that Munna Lal and Sheo Lal

along with Babu Ram were guilty of the offence of murder.

Mere flaws in the process of investigation, according to

him, would not be sufficient for dislodging the findings

so returned. The versions of PW-2 and PW-3, the eye-

witnesses, were found to be reliable and trustworthy by

the courts below and there being nothing on record to

impeach such versions, no interference is called for. He

also contended that omission to seize the weapons of

offence and/or mere non-production of ballistic report

cannot by itself be fatal for the prosecution case where

credible ocular evidence is available on record

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unmistakably pointing to the guilt of the accused. He

concluded by submitting that the appeals being devoid of

any merit, deserve dismissal.

THE QUESTION

27.The question that this Court is tasked to decide on

these criminal appeals is, whether the trial court, on

the basis of the materials before it, was justified in

recording conviction and consequently, sentencing the

appellants to spend the rest of their lives in prison.

Since the High Court has upheld the judgment and order of

the trial court, the answer to this question would guide

this Court to decide the appeals one way or the other.

DECISION

28.Before embarking on the exercise of deciding the

fate of these appellants, it would be apt to take note of

certain principles relevant for a decision on these two

appeals. Needless to observe, such principles have

evolved over the years and crystallized into ‘settled

principles of law’. These are:

(a).Section 134 of Indian Evidence Act, 1872, enshrines

the well-recognized maxim that evidence has to be weighed

and not counted. In other words, it is the quality of

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evidence that matters and not the quantity. As a

sequitur, even in a case of murder, it is not necessary

to insist upon a plurality of witnesses and the oral

evidence of a single witness, if found to be reliable and

trustworthy, could lead to a conviction.

(b).Generally speaking, oral testimony may be classified

into three categories, viz.:

(i) Wholly reliable;

(ii) Wholly unreliable;

(iii)Neither wholly reliable nor wholly

unreliable.

The first two category of cases may not pose serious

difficulty for the court in arriving at its

conclusion(s). However, in the third category of cases,

the court has to be circumspect and look for

corroboration of any material particulars by reliable

testimony, direct or circumstantial, as a requirement of

the rule of prudence.

(c).A defective investigation is not always fatal to the

prosecution where ocular testimony is found credible and

cogent. While in such a case the court has to be

circumspect in evaluating the evidence, a faulty

investigation cannot in all cases be a determinative

factor to throw out a credible prosecution version.

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(d).Non-examination of the Investigating Officer must

result in prejudice to the accused; if no prejudice is

caused, mere non-examination would not render the

prosecution case fatal.

(e).Discrepancies do creep in, when a witness deposes in

a natural manner after lapse of some time, and if such

discrepancies are comparatively of a minor nature and do

not go to the root of the prosecution story, then the

same may not be given undue importance.

29.On appreciation of the oral evidence tendered by PW-

2 and PW-3, this Court is of the view that its

conclusions would have been no different from those

arrived at in the judgments impugned but for certain

vital factors, proposed to be discussed a little later,

which unfortunately did not engage the attention of the

courts below. Also, had the lacunae been of a minor

nature, it may not have been at all difficult for this

Court to accept what PW-2 and PW-3 deposed, in the light

of the medical evidence tendered by PW-1, and uphold the

finding that Narayan succumbed to the gunshot and other

injuries inflicted upon him by the appellants. Truly, it

would have been an open and shut case of murder in which

Narayan was the victim and the appellants were the

perpetrators of the crime.

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30.However, the situation takes a turn for the worse

for the prosecution in view of the previous history of

enmity, spread over almost 10 (ten) years prior to the

murder of Narayan, between him (Narayan) and the

appellants. Not only did the appellants testify in course

of examination under section 313, Cr. P.C. that Munna Lal

was a witness on behalf of Sheo Lal in proceedings under

section 145, Cr. P.C. relating to a property dispute

between the predecessors-in-interest of Sheo Lal and Ram

Vilas (PW-2), it is evident from the deposition of PW-2

himself that there was a long standing quarrel during the

last 10 (ten) years between Narayan on the one hand and

Jaswant (father of Sheo Lal) and Sheo Lal on the other;

further that, Jaswant and one other person had died in

that quarrel; and that, such enmity continued since Sheo

Lal wanted to take forcible possession of the residential

land prior to the murder of Narayan, for which a case

under section 145, Cr. P.C. had been registered and in

which Munna Lal was a witness against PW-2. The endeavour

on the part of the appellants has been to demonstrate

before this Court that Munna Lal and Sheo Lal have been

falsely implicated since PW-2 intended to ensure that

they are put behind the bars and thereby an end to the

property dispute is brought about in a manner not

countenanced by law.

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31.This part of the contention of the appellants cannot

be totally brushed aside. By reason of the uncontroverted

evidence of a continued enmity existing from 10 (ten)

years preceding the alleged murder of Narayan by and

between the two groups, it could be established that PW-2

nurtured personal ill-will towards the appellants and the

possibility of PW-2 having acted with intention to keep

the appellants away from legal proceedings as well as

interference in property rights cannot be totally ruled

out; hence, PW-2 being inimical to the appellants, his

testimony has to be taken with a pinch of salt and a

deeper scrutiny of the other evidence on record is also

indeed called for bearing the settled principles,

referred to above, in mind.

32.Having found from the oral evidence of PW-2 what

transpired on the fateful morning, it is considered

necessary to look into the oral testimony of PW-3. There

was indeed an attempt on the part of the appellants to

establish that PW-3 was a relative of PW-2 and that being

an interested witness apart from a ‘chance witness’, his

testimony is not wholly reliable. It is not clear from

the testimony of PW-3 as to why, so early in the morning,

he had the occasion to pass by the place of occurrence.

It is found that PW-3 is a resident of Nevdiya, Police

Station Khudaganj, District Shahjahanpur whereas PW-2

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happened to be a resident of Fatehpur Bujurg, Police

Station Tilhar, District Shahjahanpur. The distance

between the two places is 1-2 miles. The incident of

murder happened within the jurisdictional limits of

Police Station Tilhar. It has not surfaced from the

evidence of PW-3 very clearly from where he started and

where he was headed for. Gopalpur Dhadipura could be the

village, where the matrimonial home of the sister of PW-3

is; but for what purpose he had left is not too clear. It

was not said by PW-3 that he was on his way to his

sister’s residence. In cross-examination, PW-3 denied

having resided in “Fatehpur Bujurg urf Mohaddipur”.

33.In order to prove the guilt of the appellants beyond

reasonable doubt, some more particulars were required

given the circumstance that PW-3 was at best a ‘chance

witness’. Incidentally, PW-2 had denied being related to

PW-3 and it was not elicited by the prosecution from PW-2

as to how he came to know the name of PW-3, given the

fact that the latter was a resident of a different

village. Similarly, PW-3 too did not say that he knew PW-

2 or his father from before. The nature of acquaintance

that PW-2 and PW-3 had, ought to have been brought out by

the prosecution. That apart, although it is true that PW-

3 gave a vivid description of how Narayan was shot by

Munna Lal, no specific role was attributed insofar as

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Sheo Lal is concerned except that all 4 (four) accused

were “beating” (as deciphered from the evidence recorded

in Hindi) and not “killing” (as available from the

translated version in the paper-book) Narayan. Again, in

course of cross-examination, PW-3 deposed that Munna Lal

had shot Narayan without elaborating whether Sheo Lal

also inflicted any injury on Narayan. There is an

apparent inconsistency between the versions of PW-2 and

PW-3 insofar as the role attributed to Sheo Lal by PW-2

is concerned, which can hardly be overlooked.

34.However, what is of prime importance is that the

circumstances as appearing from the record do not justify

the presence of PW-3 at the place of occurrence. This

Court is, therefore, of the firm view that the oral

testimony of PW-2 and PW-3 is not free from doubt and

their evidence not being of unimpeachable quality, the

rule of prudence would demand a corroboration of their

versions from other witnesses who, according to PW-2 and

PW-3, were present at the place of occurrence and

witnessed the murder of Narayan.

35.As per the evidence of PW-2 and PW-3, there were

other eye-witnesses of whom Kedar was a key witness, and

Chhange Lal and Khemkaran were independent witnesses.

Since it was the version of PW-2 and PW-3 that Kedar,

Chhange Lal and Khemkaran were present at the place of

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occurrence and had also witnessed, inter alia, the

incident of “beating” of Narayan with a ‘kanta’ by Sheo

Lal and firing of a gunshot at him by Munna Lal, direct

evidence could have been provided by either of the three

(Kedar, Chhange Lal and Khemkaran) corroborating the

versions of PW-2 and PW-3. For reasons best known to the

prosecution, these three individuals, named both by PW-2

and PW-3 as other eye-witnesses, were not examined

leading this Court to draw an inference that had they

been examined, the prosecution story would not have been

supported by them.

36.Not only were Kedar, Chhange Lal and Khemkaran not

examined, the prosecution also did not examine Dr. Hanif

to whom PW-2 had approached and allegedly narrated the

incident of murder for being transcribed into a report.

Whether at all Dr. Hanif had taken down the version of

PW-2 in writing could have been deposed by him but in the

absence thereof, a cloud of doubt is formed for which

this Court is again compelled to draw an inference that

Dr. Hanif may not have been in the picture at all. This

Court, however, does not attach much importance to the

clear inconsistency in the deposition of PW-2 as to where

precisely he affixed his thumb impression on the report,

i.e., in the shop of Dr. Hanif or at the police station.

It is a minor discrepancy which can be discarded.

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37.The aforesaid circumstances have to be appreciated

in the light of three other circumstances, which could be

viewed as extenuating.

38. First, statement of PW-3 under section 161, Cr. P.C.

was recorded nearly 24 days after the incident. Since the

Investigating Officer did not enter the witness box, the

appellants did not have the occasion to cross-examine him

and thereby elicit the reason for such delay.

Consequently, the delay in recording the statement of PW-

3 in course of investigation, is not referred to and,

therefore, remains unjustified. The possibility of PW-3,

being fixed up as an eye-witness later during the process

of investigation, cannot be totally ruled out.

39.Secondly, though PW-4 is said to have reached the

place of occurrence at 1.30 p.m. on 5

th

September, 1985

and recovered a bullet in the blood oozing out from the

injury at the hip of the dead body, no effort worthy of

consideration appears to have been made to seize the

weapons by which the murderous attack was launched. It is

true that mere failure/neglect to effect seizure of the

weapon(s) cannot be the sole reason for discarding the

prosecution case but the same assumes importance on the

face of the oral testimony of the so-called eye-

witnesses, i.e., PW-2 and PW-3, not being found by this

Court to be wholly reliable. The missing links could have

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been provided by the Investigating Officer who, again,

did not enter the witness box. Whether or not non-

examination of a witness has caused prejudice to the

defence is essentially a question of fact and an

inference is required to be drawn having regard to the

facts and circumstances obtaining in each case. The

reason why the Investigating Officer could not depose as

a witness, as told by PW-4, is that he had been sent for

training. It was not shown that the Investigating Officer

under no circumstances could have left the course for

recording of his deposition in the trial court. It is

worthy of being noted that neither the trial court nor

the High Court considered the issue of non-examination of

the Investigating Officer. In the facts of the present

case, particularly conspicuous gaps in the prosecution

case and the evidence of PW-2 and PW-3 not being wholly

reliable, this Court holds the present case as one where

examination of the Investigating Officer was vital since

he could have adduced the expected evidence. His non-

examination creates a material lacuna in the effort of

the prosecution to nail the appellants, thereby creating

reasonable doubt in the prosecution case.

40.As far as non-obtaining of ballistic report is

concerned, it is no doubt true that its essentiality

would depend upon the circumstances of each case. Here,

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since no weapon of offence was seized, no ballistic

report was called for and obtained. Although Mr. Giri

contended that Munna Lal had a licensed gun, this Court

has not been able to trace any evidence in the records in

regard thereto. However, nothing turns on it. The

failure/neglect to seize the weapons of offence, on facts

and in the circumstances of the present case, has the

effect of denting the prosecution story so much so that

the same, together with non-examination of material

witnesses constitutes a vital circumstance amongst others

for granting the appellants the benefit of doubt.

41.Thirdly, the medical evidence tendered by PW-1, if

believed in its entirety, leads this Court to form an

opinion that the evidence of PW-4 of he having recovered

a bullet leading to its seizure at the place of

occurrence as doubtful. Injury nos.5 and 7, according to

PW-1, were the entry points of the shots fired at the

victim whereas injury nos.6 and 8 were the exit points of

such shots. The bullets having pierced the abdomen and

right thigh of the victim and there being corresponding

exit points, what is of concern is how could PW-4 still

find a bullet “in the blood oozing out from the injury at

the hip of the dead body”. Despite there being distinct

exit points, it is quite improbable that after the injury

at Sr. No.6, a bullet could still be found by PW-4 in the

24

blood oozing out from the injury at the hip being one of

two exit points. In any event, such bullet though seized

under a seizure memo does not appear to have been

exhibited at the trial which renders the version of PW-4

unacceptable.

42.Although, mere defects in the investigative process

by itself cannot constitute ground for acquittal, it is

the legal obligation of the Court to examine carefully in

each case the prosecution evidence de hors the lapses

committed by the Investigating Officer to find out

whether the evidence brought on record is at all reliable

and whether such lapses affect the object of finding out

the truth. Being conscious of the above position in law

and to avoid erosion of the faith and confidence of the

people in the administration of criminal justice, this

Court has examined the evidence led by the prosecution

threadbare and refrained from giving primacy to the

negligence of the Investigating Officer as well as to the

omission or lapses resulting from the perfunctory

investigation undertaken by him. The endeavour of this

Court has been to reach the root of the matter by

analysing and assessing the evidence on record and to

ascertain whether the appellants were duly found to be

guilty as well as to ensure that the guilty does not

escape the rigours of law. The disturbing features in the

25

process of investigation, since noticed, have not weighed

in the Court’s mind to give the benefit of doubt to the

appellants but on proper evaluation of the various facts

and circumstances, it has transpired that there were

reasons for which PW-2 might have falsely implicated the

appellants and also that PW-3 was not a wholly reliable

witness. There is a fair degree of uncertainty in the

prosecution story and the courts below appear to have

somewhat been influenced by the oral testimony of PW-2

and PW-3, without taking into consideration the effect of

the other attending circumstances, thereby warranting

interference.

CONCLUSION

43.For the reasons aforesaid, this Court is of the

opinion that the charge that the appellants had murdered

Narayan, cannot be said to have been proved beyond

reasonable doubt; hence, they were and are entitled to

the benefit of doubt. The trial court’s judgment of

conviction and order of sentence contained in its

decision dated 29

th

January, 1986 being unsustainable,

stands set aside; consequently, the impugned judgment and

order dated 9

th

July, 2014 passed by the High Court,

upholding the conviction and sentence, too stands set

aside. The appellants having been lodged in the

correctional home since the appellate judgment and order

26

was made shall be set free immediately, if not wanted in

any other case.

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

for costs.

……………….………………………….J

(S. RAVINDRA BHAT)

NEW DELHI;

24

th

JANUARY, 2023. ………………………………………..J

(DIPANKAR DATTA)

27

ITEM NO.1502 COURT NO.14 SECTION II

S U P R E M E C O U R T O F I N D I A

RECORD OF PROCEEDINGS

Criminal Appeal No. 490/2017

MUNNA LAL Appellant(s)

VERSUS

THE STATE OF UTTAR PRADESH Respondent(s)

([HEARD BY: HON. S. RAVINDRA BHAT AND HON. DIPANKAR DATTA,

JJ.]

(IA No. 151655/2022 - GRANT OF BAIL)

WITH

Crl.A. No. 491/2017 (II)

Date : 24-01-2023 These matters were called on for

pronouncement of judgment today.

For Appellant(s) Mr. Mukesh K. Giri, AOR

For Respondent(s) Mr. Ankur Prakash, AOR

Mr. Sanjay Kumar Tyagi, AOR

Mr. Vikas Bansal, Adv.

Mr. Prabhat Kumar Rai, Adv.

Mr. Sanjay Kumar, Adv.

Mr. Pawan, Adv.

Mr. Memansak Bhardwaj, Adv.

Hon’ble Mr. Justice Dipankar Datta pronounced the

reportable judgment of the Bench comprising Hon’ble Mr.

Justice S. Ravindra Bhat and His Lordship.

This Court is of the opinion that the charge that

the appellants had murdered Narayan, cannot be said to

have been proved beyond reasonable doubt; hence, they

were and are entitled to the benefit of doubt. The

trial court’s judgment of conviction and order of

28

sentence contained in its decision dated 29

th

January,

1986 being unsustainable, stands set aside;

consequently, the impugned judgment and order dated 9

th

July, 2014 passed by the High Court, upholding the

conviction and sentence, too stands set aside. The

appellants having been lodged in the correctional home

since the appellate judgment and order was made shall

be set free immediately, if not wanted in any other

case.

The appeals are allowed in terms of signed

reportable judgment.

Pending applications, if any, are disposed of.

(NEETA SAPRA) (MATHEW ABRAHAM)

COURT MASTER (SH) COURT MASTER (NSH)

(Signed reportable judgment is placed on the file)