JAI PRAKASHversusSTATE OF UTTAR PRADESH AND OTHERS

1056                      [2019]REPORTS
                SUPREME COURT    14 S.C.R. 1056           [2019] 14 S.C.R.


 A                               JAI PRAKASH
                                        v.
                 STATE OF UTTAR PRADESH AND OTHERS
                     (Criminal Appeal Nos.1790-1791 of 2019)
 B                            NOVEMBER 28, 2019
                   [R. BANUMATHI, A.S. BOPANNA AND
                         HRISHIKESH ROY, JJ.]
             Penal Code, 1860 :
 C            ss. 302 and 120B – Prosecution under – Conviction of three
       of the four accused by trial court, relying on two eye-witnesses – In
       appeal, High Court acquitted all the accused – Appeal to Supreme
       Court – Held : There are material inconsistencies in the version of
       eye-witnesses – There is also discrepancy between the medical
       evidence and oral evidence – There are material lapses in the
 D
       investigation – Such discrepancies raise serious doubt about the
       prosecution case – Accused were rightly acquitted by High Court.
             Constitution of India :
               Art. 136 – Jurisdiction under – Scope of – Held : In exercise
 E     of power u/Art. 136, the Court would not ordinarily interfere with
       the findings of High Court unless it is satisfied that such a finding
       is vitiated by some glaring infirmity in the appraisement of evidence
       or such finding is perverse or arbitrary.
             Dismissing the appeals, the Court
 F           HELD: 1. As per the complaint/FIR and also the statement
       of PW-1, after his morning walk and after relieving himself while
       he was coming back home, he saw the respondents-accused
       Nos.1, 2 and 4 sitting in the flour mill of accused No.3 with arms
       in their possession. Case of the prosecution is that there was
 G     previous enmity between the family of appellant and accused No.2
       which was the cause of murder of the deceased. When that being
       the motive and if the accused were so found armed with weapons
       in the flour mill of accused No. 3, the question arises as to why
       the appellant sent his brother-deceased to purchase gutkha from
       the shop. This has not been explained by the appellant.
 H     [Para 15][1066-E-F]
                                      1056
        JAI PRAKASH v. STATE OF UTTAR PRADESH                          1057


       2. If the accused were looking for vengeance from brother       A
of the complainant (PW1) and the deceased, why the respondents-
accused allowed the complainant (PW1) to let go unharmed; more
so, when PW-1 was normally in the habit of going for morning
walk. If the motive for the crime is accepted, then all the brothers
would be targets; but here attack was on only the deceased
                                                                       B
brother and PW-1 was spared although attackers were fully armed
and near the place of occurrence. Case of the prosecution does
not appear to be natural that the respondents-accused Nos.1, 2
and 4 have attacked the deceased who happened to pass through
the flour mill by chance after purchase of gutkha. [Para 16]
[1067-B-C]                                                             C
      3. PW-3 stated that on the date of occurrence, he along
with another person had gone to the house of complainant (PW-
1) to discuss about the electric decoration work for the marriage
ceremony of daughter of someone in their mohalla. Admittedly,
the deceased was the electrician by profession who was to attend       D
to the electric work and the decoration. It is not explained as to
why the deceased who was to attend to the electric work and the
decoration work, instead of discussing the need of the prospective
clients i.e. PW-3, would go out to purchase gutkha. Curiously,
the person (the actual client) did not accompany PW-3 and the
other person to the house of the deceased for discussion. This         E
raises serious doubts about the presence of PW-3 in the scene of
occurrence and the case of the prosecution. [Para 17]
[1067-D-F]
      4. As per the deposition of PW-1, there was a goomty from
which gutka could be purchased, at a distance of just fifteen steps    F
from the house of the appellant and the shop from where the
deceased had gone to buy the gutkha was at a distance of about
150-200 steps; again said 100-125 steps from the house of the
appellant. It has nowhere been stated when the deceased could
not have gotten gutkha right near his house and why should he          G
go to a shop at some distance away from the house. PW-1 firstly
stated that he gave money to the deceased going to purchase
gutkha, however subsequently, he stated that in the shop credit
account was maintained. The reason stated for deceased going
at a little bit far away place to purchase gutkha leaving his
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1058           SUPREME COURT REPORTS                     [2019] 14 S.C.R.


 A     prospective clients for decoration of electric work is not quite
       convincing. [Para 18] [1067-G-H; 1068-A]
             5. The High Court observed that PW-3 was a chance witness
       and expressed doubts about the presence of PW-3 in the scene
       of occurrence and there is no good reason to take a different
 B     view. [Para 19] [1068-D]
              6. There are several material discrepancies between the
       evidence of PW-1 and PW-3 as to the occurrence. The Court is
       conscious of the well settled position that the minor discrepancies
       not touching upon the core of the prosecution case, would not
 C     affect the credibility of the witnesses or the prosecution case. Of
       course, PWs 1 and 3 have given their evidence in the court nearly
       after a decade; but they are said to have witnessed the occurrence
       from a close distance. Whether there was scuffle between the
       deceased and the respondents-accused is an integral part of the
       main incident and the witnesses are expected to be consistent in
 D     their version. The inconsistencies in the version of PWs 1 and 3
       as to whether there was a scuffle or not is not explained by the
       prosecution which again raises serious doubts about the
       prosecution case. [Para 20] [1068-E-H; 1069-A]
             7. As per post-mortem report, there were four firearm
 E     lacerated wounds. PWs 1 and 3 have not explained the fourth
       firearm injury; nor they have made any mention of the accused
       firing multiple shots. This discrepancy between the medical
       evidence and the oral evidence assumes significance in view of
       the elaborated depositions made by the witnesses and the FIR
 F     which explains minute detail of the entire incident.[Para 21]
       [1069-B-C]
             8.1. There are also several lapses in the investigation of
       the case like non-recovery of “empties” fired from the guns on
       the deceased, non-recovery of fire arms used by the respondents-
 G     accused etc. It is well-settled that any omission on the part of
       the Investigating Officer cannot go against the prosecution case.
       If the Investigating Officer has deliberately omitted to do what
       he ought to have done in the interest of justice, it means that
       such acts or omissions of Investigating Officer should not be
       taken in favour of the accused. The prosecution case of course,
 H     cannot be doubted merely on the ground of non-recovery of
        JAI PRAKASH v. STATE OF UTTAR PRADESH                            1059


weapons and other piece of evidence. But in the present case,            A
an elaborately written FIR was registered immediately after the
occurrence. When the Investigating Officer had taken care even
to recover packet of kissan gutkha from the scene of occurrence,
curiously, the “empties” of the fired cartridges were not
recovered. The material pieces of evidence like “empties” were
                                                                         B
lost; but this vital omission has not been explained. This factum
assumes importance particularly, in view of the fact that the FIR
is alleged to have been registered promptly. Any act of
commission/omission of the Investigating Officer cannot go to
the advantage of the accused. But in a case of this nature where
FIR is said to have been registered within half an hour of the           C
occurrence and the investigation also commenced then and there,
there is no reason as to why the “empties” and “bursts” from
the scene of occurrence were not recovered.[Para 22]
[1069-D-H]
      8.2. Furthermore, as per the evidence of Investigating             D
Officer (PW-5), the accused were arrested on the very next day
of occurrence. Despite that, the weapons used by them were not
recovered. Of course, the case of the prosecution has to be
examined de hors such omissions of the Investigating Officer like
non-recovery of weapons etc. But material discrepancies in the
evidence of PWs 1 and 3 coupled with the unnaturalness of the            E
prosecution case, non-recovery of weapons and empties raise
serious doubts about the prosecution case. [Para 23] [1070-E]
      9. The duty of the appellate court is to consider and
appreciate the evidence adduced by the prosecution and arrive
at an independent conclusion. Like the trial court, the appellate        F
court also must be satisfied of its conclusion. In exercise of power
under Article 136 of the Constitution of India, the Supreme Court
would not ordinarily interfere with the findings of the High Court
unless it is satisfied that such a finding is vitiated by some glaring
infirmity in the appraisement of evidence or such finding is             G
perverse or arbitrary. In the present case, the High Court has
analysed entire evidence and recorded its finding as to how the
trial court has gone wrong in not appreciating the material
inconsistencies in the prosecution case. The findings recorded
by the High Court in acquitting the respondents-accused Nos.1,
                                                                         H
1060            SUPREME COURT REPORTS                        [2019] 14 S.C.R.


 A     2 and 4 does not suffer from any infirmity warranting interference
       with the impugned judgment. The appeals filed by the complainant
       and the State of Uttar Pradesh are liable to be dismissed.
       [Para 24] [1071-F-H; 1071-A-B]
             State of Uttar Pradesh v. Punni and Others (2008) 11
 B           SCS 153 : [2008] 1 SCR 85 –relied on.
                                 Case Law Reference
             [2008] 1 SCR 85            relied on                Para 24
             CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
 C     Nos. 1790-1791 of 2019
             From the Judgment and Order dated 16.11.2018 of the High Court
       of Judicature AT Allahabad in Criminal Appeal No. 2403 of 2005 with
       Criminal Appeal No. 5829 of 2005
                                        With
 D
             Criminal Appeal Nos. 1792-1793 of 2019.
              R. Basant, Ajay Kumar Mishra, Basva Prabhu S. Patil, Sr. Advs.,
       Manoj K. Mishra, Rajiv Trivedi, Jyoti Mishra, M. Krishnan G., Shashank
       Shekhar Singh, Ms. Ruchira Goyal, M/s. Nazish Fatima, Ajay Singh,
       Debasish Mukherjee, Manish Pratap Singh, Ramjee Pandey,
 E     P. K. Sharma, Uday Prakash Yadav, Kafeel Ahmad, Sujit Kr., Abhisth
       Kumar, Kartikeya Bhargava, Rohit Amit Sthalekar, Advs. for the
       appearing parties.
             The Judgment of the Court was delivered by
 F           R. BANUMATHI, J.
             1. Leave granted.
             2. These appeals arise out of the impugned judgment dated
       16.11.2018 passed by the High Court of Judicature at Allahabad in
       Criminal Appeal Nos.2403 and 5829 of 2005 whereby the High Court
 G     allowed the appeals thereby setting aside the conviction of respondents-
       accused Nos.1, 2 and 4 passed by the trial court under Sections 302 IPC
       and 120B IPC and acquitted them of the charges under Sections 302
       IPC and 120-B IPC.

 H
         JAI PRAKASH v. STATE OF UTTAR PRADESH                              1061
                   [R. BANUMATHI, J.]

       3. Being aggrieved by the acquittal, the appellant-complainant has   A
preferred Criminal Appeals arising out of SLP(Crl.) Nos.269-70 of 2019.
The State of Uttar Pradesh has filed the other Criminal Appeals arising
out of SLP(Crl.) Nos.288-89 of 2019.
      4. Briefly stated case of the prosecution is as under:-
       Complainant-Jai Prakash and deceased Ravi Prakash are real           B
brothers. On 17.11.1992 shortly prior to 09.00 am, the appellant-
complainant came back home after relieving himself near the Urai bus
stand. At that time, he noticed the accused persons sitting with arms in
their possession in the flour mill of Shankar Teli-accused No.3 (since
acquitted by the trial court). Complainant came to his house. At that       C
time, Sanjay Mishra and Ajay Kumar (PW-3) came to the house of
deceased for discussion regarding the work of electric decoration in
connection with the marriage of daughter of one Maiku Soni. The
appellant sent Ravi Prakash to bring gutkha for Ajay Kumar (PW-3)
and Sanjay Mishra. After purchasing gutkha when the deceased was
returning from the shop and reached in front of accused No.3-Shankar        D
Teli’s flour mill, accused Bhupendra Yadav (A2) armed with double
barrelled gun, accused Raju Teli (A4) armed with single barrelled gun
and accused Lallu @ Lal Diwan (A1) armed with country made pistol,
caught hold of the deceased Ravi Prakash. Ravi Prakash tried to free
himself by raising alarm. Accused Bhupendra Yadav fired bullet in the       E
chest of the deceased Ravi Prakash, accused Raju Teli fired in the leg
and accused Lallu @ Lal Diwan fired in the jaw of the deceased. Ravi
Prakash fell down on the spot. Appellant-Jai Prakash, Ajay Kumar
(PW-3) and Sanjay Mishra who saw the occurrence rushed to the spot
to save the deceased Ravi Prakash. On seeing them coming, accused
persons came out of the flour mill and fled away from the scene of          F
occurrence.
       5. As per the complainant, motive for the commission of the
offence was the previous enmity harboured by accused Bhupendra Yadav
with the family of the appellant due to newspaper publishing regarding
the activities of accused Bhupendra Yadav by another brother of the         G
appellant namely Om Prakash, in the weekly journal August Nama. Due
to which, accused Bhupendra Yadav had beaten up Om Prakash and
Om Prakash lodged complaint against accused Bhupendra Yadav.
Sometimes prior to the occurrence, accused Bhupendra Yadav had beaten
                                                                            H
1062               SUPREME COURT REPORTS                      [2019] 14 S.C.R.


 A     up the appellant also and on the basis of the complaint, a case was
       registered against accused Bhupendra Yadav. According to the appellant,
       as a consequence of the said enmity, Ravi Prakash was fired at by the
       accused and murdered.
              6. Regarding the occurrence, PW-1-Jai Prakash got the complaint
 B     written by one Munni Lal and on the same day at 09.30 am, the appellant
       lodged the same before the Police Station Rath, District-Hamirpur. Based
       on the complaint, FIR in Crime No.474 of 1992 (Ex.-Ka.3) was registered
       against the accused under Sections 302 IPC and 120B IPC. Investigation
       of the case was taken up by the Investigating Officer-PW-5-SI-Shobha
       Mani Tripathi. The Investigating Officer went to the place of occurrence
 C     and under his instructions, SI-R.N. Singh held inquest on the body of
       deceased Ravi Prakash. The dead body of Ravi Prakash was sent to
       hospital for post-mortem examination. SI-R.N. Singh took sample of
       simple and blood-stained earth from the scene of occurrence and
       recovered a pair of chappal of the deceased (Ex.-Ka.10) and packet of
 D     kisaan gutkha (Ex.-Ka.11) and prepared recovery memo.
             7. On the same day i.e. 17.11.1992 at about 04.15 pm, dead body
       of Ravi Prakash was sent to Rajkiya Purush Chikitsalaya, Rath where
       post-mortem was conducted on the dead body by Dr. B.K. Gupta (PW-
       2) who noted the following injuries:-
 E           (i)    A firearm lacerated wound of entry on left side of chest, 4
                    cm below the medial left clavicle and 3 cm left to midline of
                    chest.
             (ii)    Multiple firearm lacerated wound of exit on left side of
                     scapular region, 3 cm left to midline of back.
 F
             (iii) A firearm lacerated wound of entry on right side lower jaw,
                   5 cm right to the tip of chin.
             (iv) A firearm lacerated wound of entry on back of right thigh,
                  7.5 cm above the knee joint.
 G           (v)    A firearm lacerated wound of entry on right thigh, 20 cm
                    above the knee joint.
             (vi) A firearm lacerated wound of exit on antero right thigh, 10
                  cm above knee joint.

 H
         JAI PRAKASH v. STATE OF UTTAR PRADESH                                1063
                   [R. BANUMATHI, J.]

      (vii) Multiple abrasion on medial aspect of right leg above the         A
            medial malleolus.
      PW-2-Doctor opined that the death of the deceased was due to
haemorrhagic shock as a result of ante-mortem injuries and issued Ex.-
Ka.2-Post-Mortem Certificate. After completion of investigation, charge
sheet was filed against all the four accused under Sections 302 IPC and       B
120B IPC.
       8. When questioned, all the accused denied the charges and
pleaded not guilty. To bring home the guilt of the accused, the prosecution
examined total six witnesses - eye witnesses PWs 1 and 3 and Doctor-
PW-2 and IO (PW-5) and other witnesses. Upon consideration of the             C
evidence, the trial court convicted accused Nos.1, 2 and 4 under Sections
302 IPC and 120B IPC and sentenced them to undergo life imprisonment.
The trial court held that the evidence of eye witness-PW-1-Jai Prakash,
brother of deceased and PW-3-Ajay Kumar are natural and acceptable.
The trial court held that PW-3-Ajay Kumar has given satisfying reasons
for his presence at the house of PW-1 and the presence of PW-3 outside        D
the house of PW-1 is natural and cannot be doubted. Insofar as the
question of non-examination of Sanjay Mishra and other persons in the
mohalla, the trial court held that in the present social conditions and
circumstances, independent witnesses are apprehensive that if they appear
as witnesses in the criminal cases, their future will not be safe and         E
therefore, non-examination of the independent witnesses will not affect
the prosecution case. After referring to the post-mortem report and the
evidence of PW-2-Doctor, the trial court held that the medical evidence
corroborates the evidence of PWs 1 and 3. The trial court also held that
non-recovery of the guns and the contradictions pointed by the accused
in the evidence of PWs 1 and 3, would not affect the case of the              F
prosecution. With those findings, the trial court convicted accused Nos.1,
2 and 4. However, the trial court gave benefit of doubt to accused
No.3-Shankar Teli and acquitted him.
       9. Being aggrieved, the respondents-accused Nos.1, 2 and 4 have
preferred appeals before the High Court. By referring to the contents         G
of the FIR (Ex.-Ka.3), the High Court held that within short time, it is
least possible for an illiterate person like PW-1 to lodge a complaint with
such details and the possibility cannot be ruled out that the First

                                                                              H
1064            SUPREME COURT REPORTS                         [2019] 14 S.C.R.


 A     Information Report has been lodged after discussion and on the advice
       of Om Prakash. After referring to the deposition of PW-1 and PW-3,
       the High Court held that the presence of the witnesses at the place and
       at the time of occurrence appears to be doubtful. After referring to
       Post-Mortem Report, the High Court further held that in the Post-Mortem
       Report, it is mentioned that the large intestine of deceased was full and
 B
       therefore, death might have taken place before Ravi Prakash attended
       nature call as generally, people attend the call of nature in the morning
       and it is least possible that the deceased has not attended the call of
       nature before 09.00 am. Doubting the presence of PW-3 at the place
       and time of occurrence, the High Court held that PW-3 could not properly
 C     explain the reason as to why he went to the house of PW-1 and his
       version appears unnatural. Pointing out that there was motive for Om
       Prakash to instigate his brother PW-1 to make false allegations against
       the accused on the murder of his brother Ravi Prakash, the High Court
       held that accused Nos.1, 2 and 4 deserve to be given benefit of doubt.
       With those findings, the High Court allowed the appeals filed by the
 D
       accused and set aside their conviction and sentence passed by the trial
       court and acquitted them.
              10. Taking us through the evidence and the judgment of the trial
       court as well as the High Court, Mr. R. Basant, learned Senior counsel
       for the appellant has submitted that PW-1 has clearly stated each and
 E     every detail of the incident which is amply corroborated by the evidence
       of PW-3 and the evidence of PWs 1 and 3 are natural and their evidence
       is consistent with the medical evidence as well as the case of the
       prosecution. It was further submitted that considering the well-settled
       position, the trial court recorded the finding that the general public are
 F     reluctant to come forward to depose before the court and it is not proper
       to reject the case of the prosecution for non-examination of the
       independent witnesses. It was submitted that the High Court erred in
       holding that non-examination of the independent witnesses and Munni
       Lal-scribe of the complaint is fatal to the prosecution case. Learned
       Senior counsel further submitted that the lapses in the investigation like
 G     non-sending of the blood-stained earth and sample earth taken from the
       scene of occurrence and non-recovery of “empties” from the scene of
       occurrence and other lapses would not affect the prosecution case and
       the High Court erred in reversing the conviction and acquitting the
       accused.
 H
         JAI PRAKASH v. STATE OF UTTAR PRADESH                               1065
                   [R. BANUMATHI, J.]

       11. Mr. Basava Prabhu S. Patil, learned Senior counsel appearing      A
for accused No.2-Bhupendra Yadav submitted that the motive is attributed
to Om Prakash-brother of PW-1 and when the accused were having
such enmity with Om Prakash, it is not known as to why the accused
should attack Ravi Prakash and no injury was caused to PW-1 who was
easily available to the accused even before Ravi Prakash passed through
                                                                             B
the flour mill of Shankar Teli (PW-3). The learned Senior counsel further
submitted the PW-3 is a chance witness and as such, his presence in the
house of PW-1 is not natural and PW-3 could not have witnessed the
incident. It was further submitted that the High Court rightly pointed out
the improbability of the occurrence that the accused who were waiting
in Shankar Teli’s flour mill, would not have anticipated that Ravi Prakash   C
would pass through the flour mill and considering the improbability of the
prosecution case, the High Court rightly reversed the conviction and the
impugned judgment warrants no interference.
       12. Mr. P.K. Sharma, learned counsel appearing for accused No.4-
Raju Teli submitted that the conduct of PW-1, brother of deceased was        D
unnatural as he made no attempt to save his younger brother rather he
was interested only in preparing the complaint (Ex.-Ka.3) and going to
the police station. Learned counsel further submitted that the Post-
Mortem Report shows four gun-shot injuries which are not in consonance
with the oral evidence and the discrepancies between the oral and medical
evidence has not been properly explained. The learned counsel submitted      E
that PW-3 is a chance witness and the High Court rightly held that his
presence in the house of PW-1 at the time of incident is unnatural. It
was submitted that the prosecution case is highly doubtful since during
the investigation, neither the fire arms were recovered nor the “empties”
of the cartridges have been recovered from the place of occurrence and       F
no ballistic opinion had been obtained by the prosecution to prove that
the injury on the person of the deceased were caused by the alleged fire
arms used by the accused.
       13. Mr. Kartikeya Bhargava, learned counsel appearing for
accused No.1-Lallu @ Lal Diwan submitted that there were                     G
contradictions between the evidence of PWs 1 and 3 as to whether
there was scuffle prior to the incident and this has not been properly
appreciated by the trial court. The learned counsel further submitted
that the multiple bruises found on the body of deceased has not been
properly explained by the prosecution and the High Court rightly reversed
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1066            SUPREME COURT REPORTS                          [2019] 14 S.C.R.


 A     the conviction of the accused and the impugned judgment warrants no
       interference.
             14. We have carefully considered the contentions and perused
       the impugned judgment and materials on record. The point falling for
       consideration is as contended by the appellants, whether the High Court
 B     without properly appreciating the evidence erred in setting aside the
       conviction of the respondents-accused Nos.1, 2 and 4.
              15. Case of the prosecution is that at about 09.00 am on 17.11.1992,
       while returning from the shop after purchasing gutkha, deceased Ravi
       Prakash reached the front of flour mill of Shankar Teli, accused
 C     Bhupendra Yadav (A2) having double barrelled gun, accused Raju Teli
       (A4) armed with single barrelled gun and accused Lallu @ Lal Diwan
       (A1) armed with country made pistol (tamancha), caught hold of Ravi
       Prakash and Ravi Prakash raised alarm and tried to free himself from
       the grip of the accused. At that time, accused Bhupendra Yadav, Raju
       Teli and Lallu @ Lal Diwan fired from their respective weapons and
 D     fired shot on the chest, leg and jaw of Ravi Prakash respectively due to
       which Ravi Prakash fell down on the spot. Appellant Jai Prakash (PW-
       1), Ajay Kumar (PW-3) and Sanjay Mishra rushed to the spot to save
       Ravi Prakash and on seeing them, all the three accused escaped from
       the place of occurrence. As per the complaint/FIR (Ex.-Ka.3) and also
 E     the statement of PW-1, after his morning walk and after relieving himself
       at the Urai bus stand, while coming back home, he saw the respondents-
       accused Nos.1, 2 and 4 sitting in the flour mill of Shankar Teli with arms
       in their possession. Case of the prosecution is that there was previous
       enmity between the family of appellant and accused Bhupendra Yadav
       which is the cause of murder of Ravi Prakash. When that being the
 F     motive and if the accused were so found armed with weapons in the
       flour mill of Shankar Teli, the question arises as to why the appellant
       sent his brother-Ravi Prakash to purchase gutkha from the shop of one
       Choco Kori. This has not been explained by the appellant.
              16. The respondents-accused Nos.1, 2 and 4 armed with weapons
 G     were sitting in the flour mill of Shankar Teli and were talking to each
       other. The motive alleged by the prosecution is that about two years
       prior to the occurrence, Om Prakash-brother of the appellant-Jai Prakash
       had written about the illegal activities of accused Bhupendra Yadav and
       brought out news in the newspaper due to which accused Bhupendra
 H     Yadav had assaulted Om Prakash. In this regard, Om Prakash had
         JAI PRAKASH v. STATE OF UTTAR PRADESH                              1067
                   [R. BANUMATHI, J.]

lodged a criminal case in the police station and FIR has been registered    A
and due to this enmity, the accused are alleged to have committed murder
of Ravi Prakash. Both the appellant-Jai Prakash and Ravi Prakash are
brothers of Om Prakash. If the accused were looking for vengeance of
Om Prakash-brother of Ravi Prakash, why the respondents-accused
allowed Jai Prakash (PW-1) to let go unharmed; more so, when PW-1
                                                                            B
was normally in the habit of going for morning walk. If the motive for
the crime is accepted, then all brothers of Om Prakash would be targets;
but here attack was on only the deceased brother and PW-1 was spared
although attackers were fully armed and near the place of occurrence.
As pointed out by the High Court, case of the prosecution does not
appear to be natural that the respondents-accused Nos.1, 2 and 4 have       C
attacked Ravi Prakash who happened to pass through the flour mill by
chance after purchase of gutkha.
       17. PW-3-Ajay Kumar stated that on the date of occurrence i.e.
17.11.1992, he along with Sanjay Mishra had gone to the house of Jai
Prakash (PW-1) to discuss about the electric decoration work for the        D
marriage ceremony of daughter of one Maiku Soni in their mohalla.
Admittedly, Ravi Prakash was the electrician by profession who was to
attend to the electric work and the decoration. It is not explained as to
why deceased Ravi Prakash who was to attend to the electric work and
the decoration work, instead of discussing the need of the prospective
clients i.e. PW-3, would go out to purchase gutkha. Curiously, Maiku        E
did not accompany Ajay Kumar (PW-3) and Sanjay Mishra to the house
of Ravi Prakash for discussion. As pointed out by the High Court, neither
Maiku nor any member of the family had gone with PW-3 to talk about
the decoration for the marriage ceremony of daughter of Maiku. This
raises serious doubts about the presence of PW-3 in the scene of            F
occurrence and the case of the prosecution.
       18. Next, as per the deposition of PW-1, there is a goomty placed
on the square platform of Munna Musalman from which gutka can be
taken out. This goomti is at a distance of just fifteen steps from the
house of the appellant and the shop of Choco Kori where Ravi Prakash        G
had gone to buy the gutkha is at a distance of about 150-200 steps;
again said 100-125 steps from the house of the appellant. It has nowhere
been stated when the deceased could not have gotten gutkha right near
his house and why should he go to a shop at some distance away from
the house. Of course, PW-1 firstly stated that he gave money to Ravi
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1068            SUPREME COURT REPORTS                         [2019] 14 S.C.R.


 A     Prakash to purchase gutkha, however subsequently, he stated that in
       the shop of Choco Kori, credit account was maintained. The reason
       stated that Ravi Prakash had gone to the shop of Choco Kori at a little
       bit far away place to purchase gutkha leaving his prospective clients
       for decoration of electric work is not quite convincing.
 B            19. PW-3-Ajay Kumar is a resident of mohalla Mughalpura, town
       and PS Rath, District-Hamirpur. In his evidence, PW-3 stated that he
       along with Sanjay Mishra had gone to the house of PW-1. PW-3 further
       stated that he called PW-1 outside and when he was talking to PW-1,
       PW-1 asked Ravi Prakash to bring gutkha from the shop for Ajay Kumar
       and Sanjay Mishra. As discussed earlier, when PW-3 had gone to the
 C     house of PW-1 to discuss about the electric decoration work for the
       marriage ceremony of daughter of Maiku, neither Maiku nor any member
       of his family accompanied PW-3 to discuss about the electric work in
       the marriage ceremony of daughter of Maiku. In his cross-examination,
       PW-3 could not explain the reason as to why he went to the house of
 D     PW-1. The High Court observed that PW-3 is a chance witness and
       expressed doubts about the presence of PW-3 in the scene of occurrence
       on 17.11.1992 and we do not find any good reason to take a different
       view.
              20. There are several material discrepancies between the evidence
 E     of PW-1 and PW-3 as to the occurrence. PW-3 has stated that when
       Ravi Prakash passed through the way, the respondents-accused came
       out of the flour mill and there was a scuffle for sometime with Ravi
       Prakash and the accused fired the bullet shots from their guns and the
       pistol. On the other hand, PW-1 has only stated that the respondents-
       accused have fired at Ravi Prakash and has not stated anything about
 F     the scuffle. The witnesses who have deposed in the court after
       considerable lapse of time of course, cannot be expected to have
       photographic memory of the case. We are conscious of the well settled
       position that the minor discrepancies not touching upon the core of the
       prosecution case, would not affect the credibility of the witnesses or the
 G     prosecution case. Of course, PWs 1 and 3 have given their evidence in
       the court in 2003-04 near after a decade; but they are said to have
       witnessed the occurrence from a close distance. Whether there was
       scuffle between Ravi Prakash and the respondents-accused is an integral
       part of the main incident and the witnesses are expected to be consistent
       in their version. The inconsistencies in the version of PWs 1 and 3 as to
 H
         JAI PRAKASH v. STATE OF UTTAR PRADESH                                1069
                   [R. BANUMATHI, J.]

whether there was a scuffle or not is not explained by the prosecution        A
which again raises serious doubts about the prosecution case.
       21. Medical Evidence: As per the deposition of PWs 1 and 3,
accused Bhupendra Yadav fired at the deceased on his chest; Lallu @
Lal Diwan fired on the jaw and Raju Teli fired on the leg of the deceased.
As per post-mortem report dated 17.11.1992, there were four firearm           B
lacerated wounds. Apart from the injuries on the chest, jaw and the leg,
there was fire arm injury on the right thigh 2 cm above the knee. PWs 1
and 3 have not explained the fourth firearm injury; nor they have made
any mention of the accused firing multiple shots. This discrepancy between
the medical evidence and the oral evidence assumes significance in view
of the elaborated depositions made by the witnesses and the FIR which         C
explains minute detail of the entire incident.
       22. There are also several lapses in the investigation of the case
like non-recovery of “empties” fired from the guns on the deceased,
non-recovery of fire arms used by the respondents-accused etc. It is
well-settled that any omission on the part of the Investigating Officer       D
cannot go against the prosecution case. If the Investigating Officer has
deliberately omitted to do what he ought to have done in the interest of
justice, it means that such acts or omissions of Investigating Officer
should not be taken in favour of the accused. In his cross-examination,
PW-5-Investigating Officer has stated that the broken pieces of cartridges,   E
bursts and empty shells of the cartridges were not found on the site of
the incident. PW-4-Sub-Inspector of Police has also not made reference
about the “empty shells of cartridges” in the scene of occurrence. The
prosecution case of course, cannot be doubted merely on the ground of
non-recovery of weapons and other piece of evidence. But in the present
case, an elaborately written FIR was registered immediately after the         F
occurrence i.e. at 09.30 am. The Sub-Inspector of Police (PW-5) had
promptly taken up the investigation and on the direction of PW-5, SI-
R.N. Singh took sample earth and the blood-stained earth from the scene
of occurrence and recovered a pair of footwear of the deceased and
packet of kissan gutkha and prepared recovery memo of the same                G
which are marked as Ex.-Ka.10 and Ex.-Ka.11 respectively. When the
Investigating Officer had taken care even to recover packet of kissan
gutkha from the scene of occurrence, curiously, the “empties” of the
fired cartridges were not recovered. The material pieces of evidence
like “empties” were lost; but this vital omission has not been explained.
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1070             SUPREME COURT REPORTS                          [2019] 14 S.C.R.


 A     This factum assumes importance particularly, in view of the fact that the
       FIR is alleged to have been registered promptly at 09:30 a.m. of the
       occurrence which occurred at 09:00 am. The inquest was also conducted
       at 10:00 a.m. and the investigation also promptly started. The accused-
       respondents allegedly ran away from the scene of occurrence immediately
       after shooting at the deceased thus, they could not have possibly removed
 B
       the cartridges, pieces, etc. themselves. This is not the case of the
       prosecution. It is also not the case of the prosecution that the area was
       cleaned and somebody has removed the “empties”. In such view of the
       matter, the non-recovery of “bursts and empty shells of cartridges” and
       “broken pieces of cartridges” from the scene of occurrence raises serious
 C     doubt about the actual place of occurrence. As pointed out earlier, any
       act of commission/omission of the Investigating Officer cannot go to the
       advantage of the accused. But in a case of this nature where FIR is
       said to have been registered within half an hour of the occurrence and
       the investigation also commenced then and there, we find no reason as
       to why the “empties” and “bursts” from the scene of occurrence were
 D
       not recovered.
              23. Furthermore, as per the evidence of Investigating Officer
       Shobha Mani Tripathi (PW-5), the accused were arrested on the very
       next day of occurrence i.e. 18.11.1992. Even though the accused were
       arrested on the very next day, the weapons used by them were not
 E     recovered. Of course, the case of the prosecution has to be examined
       de hors such omissions of the Investigating Officer like non-recovery of
       weapons etc. But material discrepancies in the evidence of PWs 1 and
       3 coupled with the unnaturalness of the prosecution case, non-recovery
       of weapons and empties raise serious doubts about the prosecution case.
 F            24. The duty of the appellate court is to consider and appreciate
       the evidence adduced by the prosecution and arrive at an independent
       conclusion. Like the trial court, the appellate court also must be satisfied
       of its conclusion. In exercise of power under Article 136 of the
       Constitution of India, in State of Uttar Pradesh v. Punni and others
 G     (2008) 11 SCS 153, while dealing with the order of acquittal passed by
       the High Court, the Supreme Court held that it would not ordinarily
       interfere with the findings of the High Court unless it is satisfied that
       such a finding is vitiated by some glaring infirmity in the appraisement of
       evidence or such finding is perverse or arbitrary. In the present case,
       the High Court has analysed entire evidence and recorded its finding as
 H
          JAI PRAKASH v. STATE OF UTTAR PRADESH                               1071
                    [R. BANUMATHI, J.]

to how the trial court has gone wrong in not appreciating the material        A
inconsistencies in the prosecution case. The findings recorded by the
High Court in acquitting the respondents-accused Nos.1, 2 and 4 does
not suffer from any infirmity warranting interference with the impugned
judgment. The appeals filed by the complainant and the State of Uttar
Pradesh are liable to be dismissed.
                                                                              B
       25. In the result, the impugned judgment dated 16.11.2018 passed
by the High Court of Judicature at Allahabad in Criminal Appeal Nos.2403
and 5829 of 2005 is affirmed and the criminal appeals arising out of
SLP(Crl.) Nos.269-70 of 2019 filed by the appellant-Jai Prakash and
criminal appeals arising out of SLP(Crl.) Nos.288-89 of 2019 filed by
the State of Uttar Pradesh stand dismissed.                                   C


Kalpana K. Tripathy                                      Appeals dismissed.


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