Munna Lal vs The State of Uttar Pradesh

HELD: 1.1 By reason of the uncontroverted evidence of a continued enmity existing from 10 (ten) years preceding the alleged murder of the victim 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. [Para 31][238D-F]

1.2. 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 place N whereas PW-2 happened to be a resident of place S. The distance between the two places is 1–2 miles. The incident of murder happened within the jurisdictional limits of Police Station T. It has not surfaced from the evidence of PW-3 very early from where he started and where he was headed for. ‘GD’ 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 place S. [Para 32][238-F-H; 239-A-B]

1.3. 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 N was shot by ML, no specific role was attributed insofar as SL 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) N. Again, in course of cross–examination, PW-3 deposed that ML had shot N without elaborating whether SL also inflicted any injury on N. There is an apparent inconsistency between the versions of PW-2 and PW-3 insofar as the role attributed to SL by PW-2 is concerned, which can hardly be overlooked. [Para 33][239-C-E]

1.4. The circumstances as appearing from the record do not justify the presence of PW-3 at the place of occurrence. 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 N. [Para 34][239F-G]

1.5. As per the evidence of PW-2 and PW-3, there were other eye-witnesses of whom K was a key witness, and CL and KH were independent witnesses. Since it was the version of PW2 and PW-3 that K, CL and KH were present at the place of occurrence and had also witnessed, inter alia, the incident of “beating” of N with a ‘kanta’ by SL and firing of a gunshot at him by ML, direct evidence could have been provided by either of the three (K, CL and KH) 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.[Para 35][239-G-H; 240-A-B]

1.6. The 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 PW3 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. [Para 38][240-F]

1.7. Though PW-4 is said to have reached the place of occurrence at 1.30 p.m. on 5th 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 eyewitnesses, i.e., PW-2 and PW-3, not being found to be wholly reliable. The missing links could have 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 instant case, particularly conspicuous gaps in the prosecution case and the evidence of PW-2 and PW-3 not being wholly reliable, the instant 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. [Para 39][240-G-H; 241-A-D]

1.8 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. Since no weapon of offence was seized, no ballistic report was called for and obtained. No evidence has been taced in the records that ML had a licensed gun. However, nothing turns on it. The failure/neglect to seize the weapons of offence, on facts and in the circumstances of the instant 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. [Para 40][241-E-F]

1.9. The medical evidence tendered by PW-1, if believed in its entirety, leads to form an opinion that the evidence of PW4 of he having recovered a bullet leading to its seizure at the place of occurrence as doubtful.[Para 41][241-G]

1.10. 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, the evidence led by the prosecution is examined 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 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. [Para 42][242-B-F]

1.11. The charge that the appellants had murdered N, cannot be said to have been proved beyond reasonable doubt; hence, they are entitled to the benefit of doubt. The trial court’s judgment of conviction and order of sentence being unsustainable, is set aside; consequently, the impugned judgment and order passed by the High Court, upholding the conviction and sentence, too is set aside. [Para 43][242-G; 243-A]

Jarnail Singh vs. State of Punjab (2009) 9 SCC 719 : [2009] 13 SCR 774 – referred to.