HIMANSHU MOHAN RAJversusSTATE OF U.P. AND ANR.

                            [2017] 2 S.C.R. 678



A                       HIMANSHU MOHAN RAJ
                                     v.
                        STATE OF U.P.. AND ANR.
                      (Criminal Appeal No.827of2011)
B                            MARCH 07, 2017
            [S. A. BOBDE AND L. NAGESWARA RAO, JJ.]
            Penal Code, 1860 - s.302 - Appeal against acquittal -
    Prosecution case was that the accused persons got into an
    altercation with the waiter of a hotel run by deceased and his brother
c   (PW-1) - Deceased and PW-1 tried to pacify the accused persons -
    Upon heated arguments, one of accomplices exhorted the accused
    to fire the shot - Accused fired five rounds resulting in death of
    brother of PW-1 - Trial court convicted respondent-accused u!s.302
    for murder and awarded life imprisonment - High Court set aside
D   the conviction and acquitted the respondent - Appeal by
    complainant/State against acquittal - Held: P. W 1 is the brother of
    the deceased - The testimony of this witness did not shake in any
    material particulars in the cross-examination - His testimony was
    credible and it proved that the accused shot the deceased as alleged
    by the prosecution - The ballistics report stated that the empty
E
    cartridges found ot the scene of the crime were not fired from the
    gun recovered from the accused - But this had no bearing on the
    credibility of the deposition of P. W 1 that the accused shot the
    deceased with a gun, particularly as it was corroborated by the
    bullets in the body - The fact that accused shot the deceased with a
F   gun was also corroborated by the testimony of P. W2 - Plea offalse
    implication was also ruled out - The facts and circumstances of the
    case warranted interference with the acquittal order - Respondent
    convicted u!s.302 and sentenced to undergo life imprisonment.
           Allowing the appeals, the Court
G           HELD: 1. P. W. 1 is the brother of the deceased and the
    first informant. The testimony of this witness has not shaken in
    any material particularly in the cross examination. The testimony
    of P.W. 2 completely corroborates the version of P.W. 1 in all
    material details of the incident. There is no reason to reject this
H
                                  678
    HIMANSHU MOHAN RA! v. STATE OF U.P. AND ANR.                       679


testimony on the ground that bis statement was recorded after          A
30 days particularly since there was a change of investigating
officers. [Paras 7, 9) [684-D; 685-F)
        2. There is no requirement that the FIR must be in the
handwriting of the informant. Neither is it necessary to doubt the
FIR because author of FIR was not examined. The FIR was                 B
otherwise proved in the evidence of the Police Officer (P.W. 7)
who stated that PW-1 and his uncle came with a written report
and he wrote the chik recorded on the FIR. It cannot be inferred·
from any of the above circumstances that the FIR was ante-timed.
Nor is it possible to disbelieve the timing of the FIR because the
Police Constable went to the scene of crime and seized a shirt          c
before the registration of the FIR at 23:05 hours i.e. at 22:00
hours. In fact, the police inspector (P.W. 6) stated in his evidence
that he seized the shirt "around 10 in the night"' and that he does
not remember the exact time. Apparently the police recovered a
licensed gun from the accused while he was boarding a train and         D
the ballis.tic report showed that the licensed gun was not used for
the killing. This means that the Police did not recover the actual
weapon used for the killing and the accused had ample time to
dispose off the weapon. It is, however, not possible to reject the
credible ocular evidence of the eyewitness who witnessed the
shooting and who are found be truthful. It is possible that the         E
prosecution may not recover the actual weapon in some cases.
However, this cannot have the effect of discrediting reliable ocular
testimony particularly when the lead bullets were recovered and
were found belonging to a commonly used 7.65 m.m. caliber i.e •
.32 bore weapon. [Paras 11, 12, 14 and 15) [686-B-D, F-H)               F
       3. There was no iota of evidence on record which would
suggest any motive on part of P.W.1 to falsely implicate the
accused. There was no evidence that the police conspired to frame
the accused who was a congress leader and had protested against
police high handedness. The expert evidence to the effect that          G
the empty cartridges which were found on the spot were not fired
from the weapon that was recovered, does not really create a
contradiction with the ocular evidence of P.W. 1 that the accused
fired at the deceased with a gun and killed him. It so happens
that the gun recovered by the police, turns out to be the gun that
                                                                        H
680            SUPREME COURT REPORTS                     [2017] 2 S.C.R.


A     was not used. This creates no contradiction between the evidence
      of P. W. 1 and the ballistics r.eport though broadly it may amount
      to a contradiction in the prosecution case. The judgment of the
      Sessions Court which had the advantage of watching the demeanor
      of the witnesses could not have been lightly set aside. In such
      cases where the evidence of the eye witness has been found to
B
      be truthful and as in this case corroborated by the fact that the
      bullets were recovered from the body of the deceased, it is
      obvious that cannot have the effect of an acquittal. The respondent
      accused is convicted under Section 302 IPC and is sentenced to
      undergo life imprisonment. [Paras 15, 16, 18, 19 and 21) (687-E;
c     688-A-B, E-F; 690-B]
             Anvaruddin v. Shakoor (1990) 3 SCC 266; Brijpal
             Singh_ v. State of MP. (2003) 11 SCC 219 : (2004)
             SCC (Cri) 90; Gangabhavani v. Rayapati Venkat
             Reddy and Ors. (2014) 1 ACR 147; Shivaji Sahabrao
D            Bobade v. State of Maharashtra (1973) 2 SCC 793 :
             [1974] 1 SCR 489; State of UP. v. Anil Singh [1988)
             Supp SCC 686 : [1988) Suppl. SCR 611 - relied on.
                            Case Law Reference
      (199()) 3 sec 266                 relied on           Para 15
E
      (2003) n sec 219                  relied on           Para 15
      {2014) 1 ACR 147                  relied on           Para 16

      J1974J 1 SCR 489                  relied on           Para 20
F
      [1988) Suppl. SCR 611             relied on           Para 20
             CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
      No. 827 of201 I.
             From the Judgment and Order dated 22.04.2010 of the High
G     Court of Judicature at Allahabad in Crl. Appeal No. 8239 of2008
                                        WITH
             Cr!. A. No. 829 of 2011.
             Amrendra Sharan, Sr. Adv., Dr. Divyesh Pratap Singh, Kunwar
H
    HIMANSHU MOHAN RA! v. STATE OF U.P. AND ANR.                                681



Aditya Singh, Suraj Prakash Singh, Dr. Kai lash Chand, Vivek Vishnoi,            A
M. R. Shamshad, Aditya Samaddar, Farrukh Rasheed, Alamgir, Zahid
Hussain, Aseem Chandra, Ms. Aprajita Mukherjee, Sidhartha Dave,
Ms. Jamliben, Advs. for the appearing parties.                     ·
        The Judgment of the Court was delivered by
        S.A. BOBDE,J. I. Criminal Appeal No.827 of201 l is filed by             B
P.W. 1 (Himanshu Mohan Rai) and the same is directed against the
acquittal of respondent No.2 - Imran Afreen. The Sessions Court
convicted the respondent-accused under Section 302 of the Indian Penal
Code, 1860 (hereinafter referred to as the '!PC') for the murder of the
deceased, Lalit Mohan Rai. He was sentenced to life imprisonment                 c
along with a fine ofRs.50,000/- by the Sessions Court. The High Court
set aside the judgment of the Sessions Court and acquitted the respondent-
accused. The State ofUttar Pradesh has also preferred Criminal Appeal
No.829 of 2011. against the acquittal.
The FIR                                                                          D
         2. The incident took place on 01.01.2005 between 20:30-21 :00
hours in front of Hotel Shalimar which belonged to the deceased and his
brother. The FIR was registered on the same day at 23 :05 hours by one,
Himanshu Mohan Rai (P.W. l ), the brother of deceased. According to
the FIR, the offence was committed by lmran Afreen, and two of his               E
accomplices whose names and addresses were unknown at the time of
the reporting of the offence. The informant reported that at about 20:30
hours, a waiter from his hotel, namely Manoj Kumar Singh alias Bahadur
had gone to Varuna Bridge to bring milk. While returning to the hotel
from getting the milk, he collided with the appellant who along with his
accomplices was in a state of intoxication. They assaulted the waiter in         F
their state of inebriation, and the waiter ran into Hotel Shalimar for taking
refuge. The appellant followed the waiter in Indigo CarNo.U.P.-65-X-
0002 and his accomplices followed the waiter on Yamaha motorcycle
No.U.P.Z-5214. They forcibly entered the hotel and started beatingthe
waiter up.
                                                                                 G
         The first informant, the deceased and Rajnath Singh (owner of
the hotel building) tried to pacify the assailants and took them outside the
hotel. Outside the hotel, the appellant took out his pistol and fired several
shots at the informant's older brother, Lal it Mohan Rai. Lal it Mohan Rai
got injured and fell down. Chander Shekhar Rai, Krishan Kumar Singh
                                                                                 H
682            SUPREME COURT REPORTS                          [201 7] 2 S.C.R.


A     and many others gathered upon hearing the sounds of the gun shots.
      Looking at the crowd, the accused and his accomplices ran away leaving
      their vehicles behind.
             Lalit Mohan Rai was taken to Chauraha Hospital for treatment
      where he died.
B     The I!!vestieation
              3. The investigation was initially conducted by Station Head
      Officer, D.P. Shukla (P.W. 6). The appellants alleged that D. P. Shukla
      was hand in gloves with the accused. The offence registered under
      Section 302 JPC was changed by the police inspector and registered
C     under Section 304 !PC instead. Consequently, the investigation was
      transferred to a sub-inspector by the name of Srinivas Pande (P. W. 5).
      The appellant complained that Srinivas Pande was partial to the accused
      and thereafter, the investigation was transferred back to an inspector by
      the name of R.K. Singh (P. W. 7).
D             4. The accused was arrested on 05.01.2005.
      The Sessions Court
              5. The Sessions Court convicted the three.accused lmran Afreen,
      Gufran Afreen and Abdul Wasi for the offence under Section 302 of the
      IPC. Gufran Afreen and Abdul Wasi were found to be juvenile and
E     therefore prosecuted under the Juvenile Justice Act.
              The Sessions Court found that the prosecution story was proved.
      lmran Afreen got into an altercation with Bahadur, the waiter of Hotel
      Shalimar. Bahadur ran into Hotel Shalimar which was run by the
      deceased and his brother (P.W. !). Imran Afreen in an Indigo car and
F     the other accomplices on a Yamaha motor bike followed Bahadur and
      entered the hotel. Lal it Mohan Rai along with Himanshu Mohan Rai
      and Rajnath Singh took the assailants outside the hotel to pacify them.
      Outside the hotel, there was a heated discussion upon which one of the
      accomplices exhorted Imran Afreen to fire the shot by saying-"what
      are you looking at?" and told him to shoot and. kill Lal it Mohan Rai.
G
      lmran Afreen then fired five rounds. Lal it Mohan Rai foll down and was
      taken to the hospital by P.W. I. He was declared dead at the hospital.
      The High Court
              6. The High Court disbelieved the story of the prosecution and
 H    set aside the conviction recorded by the Sessions Judge: -
    HIMANSHU MOHAN RA! v. STATE OF U.P. AND ANR.                            683
                          rs.
                   A. BOBDE, J.l

        (i) Mainly on the ground that P.W. 1 is not a reliable witness in   A
view of the following:
       (a) The altercation between Bahadur and the accused on the
road was admittedly not witnessed by P. W. I. He had met the waiter on
01.01.2005, 02.01.2005 and 03.01.2005 ..He admitted that he did not
meet Bahadur till the time of the cremation of his brother.                  B
        (b) P.W. 1 came to know the names of the accused on 05.01.2005
when he had gone to the house of Congress Leader Abdul Kalam to pay
homage. He overhead the names of. the accused, who he did know
before, but disclosed their names to the police only on 09.01.2005.
         (c) P.W. 1 had gone to Ghazipur and returned only in the evening    c
of 05.01.2005. The fact that the inquest was performed in his presence
in the afternoon, and thereafter the dead body was sent for post mortem,
negates his presence.
         (d) P.W. 1 did not write the FIR himself even though he was
literate, having received an education of intermediate level. He told his    D
uncle, Girjesh Rai, about the incident. Girjesh Rai wrote the incident
down and P.W. 1 signed it after reading what was written. Subsequently,
Gi1jesh Rai went to the Police Station Cant and lodged the report.
         The High Court concluded that he was nowhere around the place
at the time of incident.                                                     E

         (ii) The prosecution withheld the examination of the waiter,
Bahadur, who was an eye witness even though the investigating officer
met him at the place of incident during the time ofrecovery and prepared
the site plan at his instance.
                                                                             F
       (iii) The prosecution \vithheld 2 persons Rajnath Singh and K.K.
Singh who were examined before the Juvenile Justice Board but were
declared hostile. Their names appear in the list of witnesses but they
were not examined.
        (iv) The assertion that the dead body of the deceased was taken
in a tempo was neither substantiated nor shown to the Investigating          G
Officer. There was no blood found and the blood stained clothes of the
witnesses were also not produced before the police.
        (v) The FIR was ante-timed and shown as registered at 23:05
hours, although it was registered later on.
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684            SUPREME COURT REPORTS                           [20 I 7] 2 S.C.R.



A     The Witnesses
              7. Himanshu Mohan Rai (P.W. I) is the brother of the deceased
      and the first-informant. He used to manage Hotel Shalimar along with
      the deceased. This was not disputed by the accused.
              7(a). P,W. I stated that he saw the incident clearly as the hotel
B     was decorated with lighting for New Year's Eve and therefore identified
      the accused in that light. He stated that he removed the blood stained
      sweater, presumably worn by Lal it Mohan Rai, and kept it in the storage
      of the scooter belonging to Girjesh Rai.
             ·He also stated that Bahadur was present when Imran Afreen
c     shot Lal it Mohan Rai. He omitted giving the names of the accused in
      the application dated 08.01.2005, given to the S.S.P to apply the
      appropriate section because he did not think it was necessary. He denied
      the suggestion that his brother was killed by some professional killers
      away from the hotel.
D              The testimony of this witness has not been shaken in .any material
      particularly in the cross examination. We find nothing incredible about
      the testimony of this witness and there is no reason to discard to discard
      it.
               7(b). Shri Amarendra Sharan, counsel for the respondent-accused,
E     submitted that the presence of P.W. 1 is doubtful because the witness
      did not produce his blood stained clothes before the Court nor did he
      show the blood stained sweater to the police. P.W. 1 gave no explanation
      for there being no sweater on the body of the deceased, when the deceased
      was taken to the hospital.
F              We do not consider this reason sufficient enough to discredit the
      story of P.W. I in its entirety. It is possible that the witness did not
      remember what happened to the sweater in the emergency that arose
      after his brother was shot. There is also no merit in the criticism that the
      incident of the first quarrel with the waiter had been mentioned in the
      FIR, even though the witness stated later that Bahadur did not explain
G     the incident to him. It is possible that Bahadur mentioned the incident
      and did not explain how the quarrel arose. The other omissions during
      the course of cross examination, such as the failure of P.W. I to mention
      that he overheard the names of the other accused at the funeral, is not
      crucial. We also do not find anything unbelievable in the statement of
H
    HIMANSHU MOHAN RAl v. STATE OF U.P. AND ANR.                              685
                           rs.
                   A. BOBDE, J.l

the witness that he learnt the names of the other accused at the funeral      A
oflocal MLAAbdul Kalam.
         8. Chandra Shekhar Rai (P.W. 2) was interrogated after about
25 to 30 days and was questioned 8 days after the incident. He is
criticized as a planted witness. In this regard it may be noted that the
investigation was first carried out by S.H.O. D.P. Shukla (P.W. 6), who       B
was the investigating officer from the time of the incident to 00: 10 hours
on the next day. Remarkably, this investigating officer changed the
registration of the offence ofmurderimder Section 302 to Section 304
of the !PC. Since Section 304 became a lesser offence, the investigation
was transferred to a sub-inspector by the name ofSriniwas Pande (P.W.
5) who was the investigating officer from 00: 10 hours on 02.01.2005 to        c
18:00 hours on 09.01.2005. On receiving a complaint by the accused
that the inves!igation was not being done properly, the police transferred
the investigation back to an inspector of the Police; one R.K. Singh
(P. W. 7) who took overon 09.01.2005 and investigated the matter ti 11 the
charge-sheet was filed on 19.01.2005. This is possibly why P.W. 2 was          D
not interrogated for a long time. It appears that the new investigating
officer took time to follow up on the leads, interrogate P.W. 2 and record
his statement.
         9. 111 these circumstances, we do not consider the delay to cause
such suspicion as to warrant the complete rejection of the testimony of
P.W. 2. The testimony of P. W. 2 completely corroborates the version           E
of P.W. I in all material details of the incident. We are not inclined to
reject this testimony on the ground that his statement was recorded after
30 days particularly since there was a change of investigating officers.
       We thus find that the evidence of the P. W. 2 corroborates the.
evidence of P.W. 1. The testimony is credible and it proves that the           F
accused shot the deceased as alleged by the prosecution.
Ante-timed FIR
         I 0. The FIR was lodged on 01.01.2005 at 23 :05 hours. P. W. I
narrated the incident of collision with Bahadur even though he admitted
in his cross-examination that he had no opportunity to discuss the cause       G
of the incident with Bahadur. It was submitted on behalf of the respondent
that the FIR was ante-timed. It was contended by the learned counsel
for the respondent that the FIR is not in the handwriting of the informant,
nor dictated by him. Girijesh Rai who wrote the FIR was not examined
by the Court. .
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686             SUPREME COURT REPORTS                           [2017] 2 S.C.R.


A              11. It is not possible to accept the criticism that P. W. I was not
      told by Bahaduraboutthe quarrel but it is mentioned in the FIR. A closer
      look at the cross examination of P. W. I shows that the waiter did not tell
      him the cause of the quarrel. There is also no requirement that the FIR
      must be in the handwriting of the informant. Neither is it necessary to
      doubt the FIR because Girjesh Rai was not examined. The FIR has
B
      been otherwise proved in the evidence of the Police Officer (P. W. 7)
      who states that Himanshu Mohan Rai and Girjesh Rai came with a
      written report and he wrote the chik recorded as GD 1/005 on the FIR.
      This is supported by the deposition of P. W. I who referred to the
      handwriting of Girjesh Rai and his signatures and identified it on the
c     Tehrir.
               12. It cannot be inferred from any of the above circumstances
      that the FIR was ante-timed. Nor is it possible to disbelieve the timing of
      the FIR because the Police Constable went to the scene of crime and
      seized a shirt before the registration of the FIR at 23:05 hours i.e. at
      22:00 hours. In fact, the police inspector (P.W. 6) stated in his evidence
D
      that he seized the shirt "around I 0 in the night" and that he does not
      remember the exact time.
      Ballistic Report does not confirm that the shots were fired from
      the recovered weapon
              13. P. W. 6 made recovery of three khokha kartoos 0.32 bore in
E
      the presence of Bahadur and Krishna Kumar Singh. Evidently, there is
      no positive report from the ballistic expert and the report does not confinn
      that the shots were fired from the weapon that was recovered.
               14. Apparently the police recovered a licensed gun from the
      accused lmran Afreen while he was boarding a train and the ballistic
 F    report showed that the licensed gun was not used for the killing. This
      means that the Police did not recover the actual weapon used for the
      killing and the accused had ample time to dispose off the weapon. It is
      however not possible to reject the credible ocular evidence of the
      eyewitness who witnessed the shooting and who are found be truthful.
 G            15. It is possible that the prosecution may not recover the actual
      weapon in some cases. However, this cannot have the effect of
      discrediting reliable ocular testimony as we have here that the accused
      shot and killed the deceased, particularly when the lead bullets have
      been recovered and are found belonging to a commonly used 7.65 m.m.
      caliber i.e . .32 bore weapon.
H
    HIMANSHU MOHAN RAI v. STATE OF U.P. AND ANR.                                    687
                 [S. A. BOBDE, J.]

       Jn Anvaruddin vs. Shakoor'. this Court considered the effect                 A
of obscure and oscillating evidence of the ballistic expert. The Court
observed that:
        "] 0 .... .Jn this nebulous state of the evidence of the ballistic expert
        we are of the view that the High Court was wholly wrong in
        doubting the direct evidence of the three eye-witnesses on this              B
        ground. Where the expert evidence is obscure and oscillating, it
        is not proper to discredit the direct testimony of the eye-witnesses
        on such uncertain evidence. Jn such a situation unless the
        evidence of the eye-witnesses is shaken by some glaring
        infirmities, it would not be proper to doubt the correctness of
        their statements .... "
                                                                                     c
         In the case of Brijpa/ Singh vs. State of MP'. this Court
observed that there was reliable ocular evidence of the accused having
shot the deceased. However, the ballistic expert as in this case reported
that though both the guns were found to have !;,~en discharged recently,
the empty cartridges that were seized from the spot did not match the                D
rifle that was recovered. This Court observed that normally, if the
eyewitness's evidence is absolutely acceptable, then such evidence could
be accepted even ifthere is some contradiction in the medical or ballistics
reports. However, the oral evidence was not found acceptable in this.
case. In contrast, we find the oral evidence in the present case, particularly       E
that ofP.W. 1, tci be completely acceptable and truthful. There is no iota
of evidence on record which would suggest any motive on his part to
falsely implicate the accused. We might add that there is no evidence as
argued by the learned counsel forthe respondent, that the police conspired
to frame the accused who was a congress leader and had protested
against police high handedness.                                                      F

      16. In a different context, this Court in Gangabhavani vs.
Rayapati Venkat Reddy and Ors'., observed that in case there is a
contradiction between medical evidence and ocular evidence, the law is
that though the ocular testimony of the eye witness has greater evidentiary
value vis-a-vis medical evidence, where the medical evidence goes so                 G
far that it completely rules out all the possibility of the ocular evidence
being true, the ocular evidence may be disbelieved. In the present case,
1
  (1990)3 sec 266
2
  (2003) 11 sec 219: (2004) sec (Cri) 90
3
  (2014) 1ACR147
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688             SUPREME COURT REPORTS                           [2017] 2 S.C.R.


A     the expert evidence to the effect that the empty cartridges which were
      found on the spot were not fired from the weapon that was recovered,
      does not really create a contradiction with the ocular evidence of P. W. l
      that the accused fired at the deceased with a gun and killed him. It so
      happens that the gun recovered by the police, turns outto be the gun that
      was not us~d. This creates no contradiction between the evidence of
B
      P.W. l and the ballistics report though broadly it may amount to a
      contradiction in the prosecution case.
              17. In this case, the ballistics report need not be rejected as
      untrue; it simply states that the empty cartridges found at the scene of
      the crime were not fired from the gun recovered from the accused. But
c     this had no bearing on the credibility of the deposition of P. W. I that the
      accused shot the deceased with a gun, particularly as it is corroborated
      by the bullets in the body. In this case we find it safe to accept the
      evidence of Himanshu Mohan Rai and disregard the apparent
      contradictions. We might add that the fact that accused shot the deceased
D     with a gun is also corroborated by the testimony of P. W. 2.
              18. It is not possible for us to accept the reasoning of the High
      Court on the basis of the minor doubts and technicalities that the judgment
      of the Sessions Court convicting and sentencing the accused for the
      murder of Lal it Mohan Rai has no legs to stand on. The judgment of the
E     Sessions Court which had the advantage of watching the demeanor of
      the witnesses could not have been lightly set aside.
              19. In such cases where the evidence of the eye witness has
      been found to be truthful and as in this case corroborated by the fact
      that the bullets were recovered from the body of the deceased, it is
F     obvious that c.annot have the effect of an acquittal.
              20. This Court has held that an acquittal may undoubtedly be
      interfered with in certain circumstances. In Shivaii Sahabrao Bobade
      vs. State of Maharashtra', this Court held that:
              "6 ...... The dangers of exaggerated°<levotion to the rule of benefit
G             of doubt at the expense of social defence and to the soothing
              sentiment that all acquittals are always good regardless ofjustice
              to the victim and the comnfunity, demand espeeial emphasis in
              the contemporary context of escalating crime and escape. The
              judicial instrument has a public accountability. The cherished
H     '<1973)2 sec 793
    HIMANSHU MOHAN RAJ v. STATE OF U.P. AND ANR.                               689
                 [S. A. BOBDE, J.]

       principles or golden thread of proof beyond reasonable doubt             A
       which runs through the web of our law should not be stretched
       morbidly to embrace every hunch, hesitancy and degree of doubt.
       The excessive solicitude reflected in the attitude that a thousand
       guilty men may go but one innocent martyr shall not suffer is a
       false dilemma. Only reasonable doubts belong to the accused.
                                                                               B
       Otherwise any practical systems of justice will then break down
       and lose credibility with the community. The evil of acquitting a
       guilty person light heartedly as a learned Author has sapiently
       observed, goes much beyond the simple fact that just one guilty
       person has gone unpunished. If unmerited acquittals become
       general, they tend to lead to a cynical disregard of the law, and        c
       this in turn leads to a public demand for harsher legal presumptions
       against indicted "persons" and more severe punishment of those
       who are found guilty. Thus, too frequent acquittals of the guilty
       may lead to a ferocious penal law, eventually eroding the judicial
       protection of the guiltless. For all these reasons it is true to say,
                                                                                D
       with Viscount Simon, that "a miscarriage of justice may arise
       from the acquittal of the guilty no less than from the conviction
       of the innocent ... "In short, our jurisprudential enthusiasm for
       presumed innocence must be moderated by the pragmatic need
       to make criminal justice potent and realistic. A balance has to be
       struck between chasing chance possibilities as good enough to            E
       set the delinquent free and chopping the logic of preponderant
        probability to punish marginal innocents ...... "
       'In the case of State of UP vs. Anil Singh', the Court held as
follows:
        "17. It is also our experience that invariably the witnesses add        F
        embroidery to prosecution story, perhaps for the fear of being
        disbelieved. But that is no ground to throw the case overboard, if
        true, in the main. If there is a ring of truth in the main, the case
        should not be rejected. It is the duty of the court to cull out the
        nuggets of truth from the evidence unles£ there is reason to            G
        believe that the inconsistencies or falsehood are so glaring as
        utterly to destroy confidence in the witnesses. It is necessary to
        remember that a JUdge does not preside over a criminal trial
        merely to see that no innocent man is punishe~. A Judge also
' (I 988) Supp sec 686
                                                                                H
690              SUPREME COURT REPORTS                        (2017] 2 S.C.R.


A              presides to see that a guilty man does not escape. One is as
               important as the other. Both are public duties which the Judge
               has to perform."
               21. We find that the facts and circumstances of this case warrant
       an interference with the acquittal of the accused. Accordingly, Criminal
B     ·Appeal No.Sp of2011 and Criminal Appeal No.829of2011 are allowed.
       The judgment dated 22.04.2010 passed in Criminal Appeal No.8239 of
       2008 by the High Court is set aside. The respondent accused - lmran
       Afreen is convicted under Section 302 !PC and is hereby sentenced
       to undergo life imprisonment. Accordingly, respondent No.2 - lmran
       Afreen is directed to surrender before the competent authority within a
c      period of two weeks from today to undergo the remaining sentence.


      Dcvika Gujral                                              Appeals allowed.