Page 1 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

1

Page 2 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.

2

Page 3 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

3

Page 4 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.

4

Page 5 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

5

Page 6 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. Nagendra Rai, 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. Nagendra Rai. 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

6

Page 7 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 Bihar

2

, 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

7

Page 8 of the accused, his presence is ruled out. (See Anjani

Chaudhary v. State of Bihar

3

) . Counsel also relied on

Sahebrao Mohan Berad v. State of Maharashtra

4

.

8.Mr. Nagendra Rai, 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

8

Page 9 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.

9

Page 10 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

10

Page 11 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

11

Page 12 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

12

Page 13 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

13

Page 14 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

14

Page 15 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

15

Page 16 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

16

Page 17 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 post-

mortem 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

17

Page 18 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

18

Page 19 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.

19

Page 20 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

20

Page 21 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

21

Page 22 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

22

Page 23 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

23

Page 24 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 eye-

witnesses’ version, then the court can draw adverse

inference that the prosecution version is not trustworthy.

24

Page 25 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.

25

Page 26 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

26

Page 27 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.

27

Page 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 Bengal

5

). 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

28

Page 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

29

Page 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

30

Page 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