MUNNA LALversusTHE STATE OF UTTAR PRADESH

224                       [2023]
               SUPREME COURT     3 S.C.R. 224
                              REPORTS                     [2023] 3 S.C.R.


A                                MUNNA LAL
                                       v.
                     THE STATE OF UTTAR PRADESH
                       (Criminal Appeal No.490 of 2017)
B                             JANUARY 24, 2023
          [S. RAVINDRA BHAT AND DIPANKAR DATTA, JJ.]
             Code of Criminal Procedure, 1973 : s. 374(2) –Appeal from
      convictions – Murder of the complainant’s father – Previous enmity
      between the parties – On the fateful day, the appellants armed with
C
      weapons inflicted gun shot injuries and blows to the victim resulting
      in his death – FIR against the appellants – Surviving appellants
      convicted u/s. 302 IPC and sentenced to life imprisonment – Upheld
      by the High Court – On appeal, held : PW-2 being inimical to the
      appellants, his testimony to be taken carefully – PW-3 was at the
D     best, a chance witness – Circumstances on record do not justify the
      presence of PW-3 at the place of occurrence – Oral testimony of
      PW-2 and PW-3, the so-called eye witness, not free from doubt and
      their evidence not of unimpeachable quality – Rule of prudence
      demands corroboration of their versions from other witnesses present
      at the place of occurrence and witnessed the murder of the victim,
E
      however, they were not examined – Moreover, non-examination of
      the investigating officer created reasonable doubt in the prosecution
      case – On proper evaluation, 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
F     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 – Charge that the appellants had murdered the victim,
      not proved beyond reasonable doubt, thus, entitled to benefit of
G
      doubt – Order of conviction and sentence passed by the courts
      below set aside – Evidence Act, 1872.
            Allowing the appeals, the Court
            HELD: 1.1 By reason of the uncontroverted evidence of a
H     continued enmity existing from 10 (ten) years preceding the
                                      224
      MUNNA LAL v. THE STATE OF UTTAR PRADESH                           225


alleged murder of the victim by and between the two groups, it          A
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
                                                                        B
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][238-
D-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       C
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       D
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       E
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         F
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             G
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
                                                                        H
226           SUPREME COURT REPORTS                      [2023] 3 S.C.R.


A     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
B
      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
C     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][239-
D     F-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 PW-
      2 and PW-3 that K, CL and KH were present at the place of
E     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,
F     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
G     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,
H
       MUNNA LAL v. THE STATE OF UTTAR PRADESH                            227


being fixed up as an eye-witness later during the process of              A
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         B
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              C
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           D
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–           E
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.              F
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           G
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
                                                                          H
228           SUPREME COURT REPORTS                      [2023] 3 S.C.R.


A     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
B     in its entirety, leads to form an opinion that the evidence of PW-
      4 of he having recovered a bullet leading to its seizure at the
      place of occurrence as doubtful.[Para 41][241-G]
             1.10. Although, mere defects in the investigative process
      by itself cannot constitute ground for acquittal, it is the legal
C     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
D     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
E     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
F     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
G     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
H     be said to have been proved beyond reasonable doubt; hence,
       MUNNA LAL v. THE STATE OF UTTAR PRADESH                            229


they are entitled to the benefit of doubt. The trial court’s judgment     A
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 :                B
      [2009] 13 SCR 774 – referred to.
                       Case Law Reference
[2009] 13 SCR 774               referred to              Para 23
     CRIMINAL APPELLATE JURISDICTION : Criminal Appeal                    C
No.490 of 2017.
      From the Judgment and Order dated 09.07.2014 of the High Court
of Judicature at Allahabad in CRLA No.539 of 1986.
      With
                                                                          D
      Criminal Appeal No.491 of 2017.
      Mukesh K. Giri, Adv. for the Appellant.
     Ankur Prakash, Sanjay Kumar Tyagi, Prabhat Kumar Rai, Sanjay
Kumar, Pawan, Memansak Bhardwaj, Ms. Hardikaa, Advs. for the
Respondent.                                                               E
      The Judgment of the Court was delivered by
      DIPANKAR DATTA, J.
      THE CHALLENGE
        These two criminal appeals, arising out of the same occurrence,   F
call in question the judgment and order of the High Court of Judicature
at Allahabad dated 9th July, 2014 dismissing Criminal Appeal No.539 of
1986 [being an appeal under section 374(2) of the Code of Criminal
Procedure (hereafter “Cr. P.C.”, for short)] carried by the appellants
from the judgment and order dated 29th January, 1986 of the Court of
                                                                          G
IInd Additional Sessions Judge, Shahjahanpur, Uttar Pradesh, in S.T.
No.499 of 1985.
      FIRST INFORMATION REPORT (F.I.R.)
     2. Narayan, father of Ram Vilas, was murdered in the morning of
 th
5 September, 1985 round about 10.00 hours. A written complaint was        H
230            SUPREME COURT REPORTS                         [2023] 3 S.C.R.


A     lodged soon thereafter, at about 12.10 hours, by Ram Vilas leading to
      registration of an F.I.R. under section 302 of the Indian Penal Code
      (hereafter “IPC”, for short). One Dr. Mohd. Hanif Khan was the scribe
      of the said FIR. Munna Lal, Sheo Lal, Babu Ram, and Kalika were
      accused of committing such murder.
B           INQUEST
             3. Consequent upon registration of the F.I.R., Shailendra Bahadur
      Chandra, the Station Police Officer of Police Station Tilhar (who was
      also the Investigating Officer) proceeded to the place of occurrence,
      along with Ram Pal Sagar, S.I., and Udham Singh, constable. Inquest
C     had been conducted by Ram Pal Sagar in course whereof a bullet was
      recovered at the place of occurrence from the blood oozing out from
      one of the injuries suffered by Narayan.
            CHARGE(S)
              4. Upon completion of investigation, charge-sheet under section
D     302 was filed before the concerned court against each of the 4 (four)
      accused. Kalika had passed away in the meanwhile. Upon committal,
      the trial court framed the following charges:
            “Charge
            I, Sanwal Singh, II Addl. Sess. Judge, Shahjahanpur, do hereby
E
            charge you : -
            1. Shiv Lal
            2. Munna Lal
            3. Babul Ram, as follows:
F
            That you along with Kalika on 05.09.85 at about
            10.00 A.M. in village Fatehpur Bujurg alias Mohaddipur, police
            station Tilhar, District : Shahjahanpur, at the field of Budhu Khan
            situated in the west of village Abadi did commit murder by
G           intentionally and knowingly causing the death of Narain in that
            you Munna caused injuries by gunshot, you Babu Ram caused
            injuries by tamancha and you Shiv Lal caused injuries by Kanta
            and your associate Kalika deceased caused injuries by lathi and
            all of you intentionally co-operated in the commission of the said
            offence and that you thereby committee an offence punishable
H           under section 302 I.P.C. and within the cognizance of this court
       MUNNA LAL v. THE STATE OF UTTAR PRADESH                              231
                [DIPANKAR DATTA, J. ]

      of sessions.                                                          A
      And I hereby direct that you be tried by this court of sessions on
      the said charge.
      TRIAL
      5. The prosecution examined 5 (five) witnesses to support its case    B
and more than a dozen of documentary evidence. None was examined
on behalf of the defence.
      6. PW-1 was Dr. Ramesh, who conducted post-mortem. The
following ante-mortem injuries were found on the cadaver of Narayan:
      (1)    Lacerated wound 2 cm x 1 cm over forehead 3 cm above           C
             left eye brow wall maggots present.
      (2)    Lacerated wound 4 cm x 1 cm over chin 1 cm below lower
             lip. Maggots were present.
      (3)    Lacerated wound 3 cm x 1 cm left side face 2 cm left
                                                                            D
             lateral to left side of mouth.
      (4)    Incised wound 17 cm x 8 cm over front of abdomen cavity
             deep 5 cm above umbilicus. Visceral organs prolapsing.
      (5)    Gunshot wound of entry 2 cm x 1 cm over front of abdomen
             3 cm right lateral to umbilicus tattooing present. Direction   E
             backward downward.
      (6)    Gunshot wound of exit 6 cm x 5 cm over left side of hip 5
             cm below iliac crest.
      (7)    Gunshot wound of entry 2 cm x 1 cm over front of right
             thigh 15 cm below ilicae spine (ant) with direction backward   F
             lateral.
      (8)    Gunshot wound of exit 3 cm x 2 cm over lateral side of
             right thigh 12 cm below iliae crest.”
       7. According to PW-1, “death of Narayan occurred due to
                                                                            G
shock and haemorrhage and much bleedings”; injury nos. 5 and 6
and likewise injury nos.7 and 8 noted above were respectively the entry
and exit wounds corresponding with each other, which could be caused
by gun and tamancha shots, whereas injury nos. 1, 2, and 3 were possible
by lathi and injury no.4 could be caused by “kanta”.
                                                                            H
232            SUPREME COURT REPORTS                          [2023] 3 S.C.R.


A            8. Ram Vilas, son of the deceased, while deposing as PW-2 stated
      that a quarrel had taken place 10 (ten) years before between Narayan
      and Jaswant (father of Sheo Lal) and Sheo Lal and that Jaswant died in
      that quarrel. One ‘Aajudhi’, on the side of Sheo Lal, was murdered.
      Narayan was, however, acquitted. PW-2 identified, inter alia, Munna
      Lal and Sheo Lal who were present in the Court. According to PW-2, on
B
      the date of the fateful incident, he along with his father Narayan after
      ploughing their field had reached the field of Budhu Khan when the 4
      (four) accused persons suddenly came out from the field belonging to
      Sheo Lal. The said accused viz., Munna Lal, Sheo Lal, Babu Ram and
      Kalika, were armed with ‘bandook’ (gun), ‘kanta’ (sharp edged weapon),
C     ‘tamancha’ (locally made gun), and ‘lathi’ (stick) respectively. They were
      hurling abuses, and exhorting to kill Narayan. Narayan received gunshot
      injuries from Munna Lal and Babu Ram, whereas Sheo Lal and Kalika
      inflicted blows on him by kanta and lathi, respectively. Such incident
      was also witnessed by Kedar, Hemraj, Khamkaran and Chhange Lal.
      Kedar and Hemraj requested not to kill. It was reiterated that Hemraj
D
      had come at the time of incident and had seen the incident. After the
      accused persons fled, other persons had reached there. PW-2 finding
      that Narayan was dead, reached the shop of Dr. Hanif and narrated the
      incident to him whereupon Dr. Hanif had written the complaint and read
      over the contents to PW-2. PW-2 neither signed nor affixed his thumb
E     impression on the report written by Dr. Hanif but when PW-2 took the
      report to the police station, he had affixed his thumb impression on the
      report which was written by the ‘munshi’ in the police station.
            9. In course of cross-examination, PW-2 disclosed that Narayan
      had made an application for cancelling the license of the gun of Jaswant
F     and had made ‘pairvi’. Narayan had earlier been tried in a case under
      section 302, IPC and he also filed a cross-case; further, a case under
      section 107/116, Cr. P.C. was pending against Narayan; also, a case
      under section 145, Cr. P.C. was pending wherein PW-2 and his father
      Narayan were the accused persons. In the latter case, Munna Lal was
      a witness against them. Since the murder of ‘Aajudhi’, there has been
G     constant enmity with Sheo Lal. However, till the murder of Narayan,
      there was no ‘marpeet’ or ‘pairokari’ with PW-2 or his father. PW-2
      “had not affixed thumb impression on the report at the police station”
      but had affixed his thumb impression on it at the ‘dukaan’ (shop) of
      Hanif and handed over the same to the munshi.
H
       MUNNA LAL v. THE STATE OF UTTAR PRADESH                              233
                [DIPANKAR DATTA, J. ]

       10. Hemraj, an eye-witness, deposed as PW-3. Sister of PW-3          A
resides in Gopalpur Dhadhipura and he is on visiting terms. The distance
between Mohaddipur and Gopalpur is 1-2 miles. Whenever PW-3 used
to travel to Gopalpur from his village, he used to take the outer road of
village Mohaddipur. When he reached near the field of Budhu Khan, the
accused persons armed with gun, kanta, tamancha, and lathi, were killing
                                                                            B
Narayan. PW-2 was present at the place of occurrence. Two passersby
viz., Chhange Lal and Khemkaran had reached there. Apart from PW-
3, Kedar who was grazing two buffaloes had also seen the incident.
After inflicting blows on Narayan, the accused persons fled towards the
southern direction. Narayan had died.
       11. In course of cross-examination, PW-3 denied the suggestions      C
that he was related to the family of Narayan. PW-3 reiterated that Kedar
was grazing animals near the place of occurrence and Khemkaran and
Chhange Lal came there in his (PW-3) presence. By the time PW-3 left
the place of occurrence, 20 (twenty) to 25 (twenty-five) persons
assembled there of whom one old lady and one girl from the family of        D
Narayan were weeping. Neither could PW-3 identify the wife of Ram
Vilas nor did he know the name of villagers who reached there later.
       12. Ram Pal Sagar, who conducted inquest, was PW-4. PW-4
deposed that in course of inquest, he found a bullet in the blood oozing
out from the injury at the hip of the deceased. He proved the charge-       E
sheet and the seizure memo pertaining to the bullet that was recovered.
PW-4 also deposed that, among others, he could find Kedar on reaching
the place of occurrence.
     13. Constable Udham Singh deposed as PW-5. PW-5 had
accompanied the Investigating Officer to the place of occurrence, where     F
PW-4 had conducted the inquest.
       14. Significantly, Dr. Hanif, Kedar, Chhange Lal, Khemkaran and
the Investigating Officer were not examined by the prosecution. Further,
neither the gun and the tamancha nor the kanta and lathi were seized.
Also, there were no forensic laboratory or ballistic reports.               G
      15. Ultimately, upon consideration of the evidence on record, the
Sessions Judge held that the consistent and unimpeachable direct evidence
proved the case, which was supported by dependable probabilities,
existence of motive, medical evidence and all other circumstances. In
so holding, the ocular account of PWs 2 and 3 weighed with the trial
                                                                            H
234            SUPREME COURT REPORTS                           [2023] 3 S.C.R.


A     court while holding Munna Lal, Sheo Lal and Babu Ram guilty of the
      offences with which they were charged. It was also held that the prompt
      F.I.R. presented a guarantee about the truthfulness of the case.
      Consequently, by his judgment dated 29th January, 1986, the judge
      convicted the surviving accused, viz., Munna Lal, Sheo Lal and Babu
      Ram, and imposed upon them the sentence of life imprisonment.
B
            APPEAL
             16. As noted above, the aforesaid judgment and order of the
      Sessions Judge was carried in appeal before the High Court of Judicature
      at Allahabad by Munna Lal, Sheo Lal and Babu Ram.
C           17. During the pendency of the appeal, Babu Ram passed away;
      hence, the appeal at his instance stood abated.
             18. Upon hearing arguments advanced on behalf of Munna Lal
      and Sheo Lal as well as on behalf of the State of Uttar Pradesh and on
      consideration of the materials on record, the High Court concurred with
D     the findings returned by the Sessions Judge and observed that there was
      no sufficient ground to interfere. While dismissing the said appeal, the
      High Court directed Munna Lal and Sheo Lal, who were on bail, to
      surrender before the trial court to serve out the remaining period of their
      sentences within 30 days, failing which the trial court was directed to
E     ensure their arrest and to send them to jail for serving sentences in
      accordance with law.
            PROCEEDINGS BEFORE THIS COURT
             19. Aggrieved by the dismissal of Criminal Appeal No.539 of 1986
      by the High Court, Munna Lal and Sheo Lal applied for special leave to
F     appeal whereupon leave was granted by this Court by an order dated 6th
      March, 2017.
             20. In the meanwhile, Munna Lal and Sheo Lal had been taken
      into custody after dismissal of their appeal by the High Court. Both the
      appellants having served their respective sentences in excess of 11 years
G     and 11 months, they applied for bail. While considering the application(s)
      for bail on 10th January, 2023, this Court directed the parties to return
      better prepared the following day to address on the merits of the appeals.
            21. Mr. Mukesh K. Giri, learned counsel appearing for the
      appellants viz., Munna Lal and Sheo Lal, and Mr. Sanjay Kumar Tyagi,
H     learned counsel for the respondent, have been heard at sufficient length.
       MUNNA LAL v. THE STATE OF UTTAR PRADESH                                 235
                [DIPANKAR DATTA, J. ]

      APPELLANTS’ARGUMENTS                                                     A
        22. Mr. Giri took serious exception to the findings returned by the
trial court and the High Court. According to him, from the evidence on
record, it is absolutely clear that there was a long-standing enmity between
Narayan and Jaswant (father of Munna Lal) and the courts below failed
to take note that it was a clear case of false implication. Further, he        B
contended that the statement of Hemraj, PW-3, under section 161, Cr.
P.C. was recorded on 29th September, 1985, i.e., more than 24 (twenty-
four) days after Narayan was allegedly murdered by the appellants. In
the absence of the Investigating Officer entering the witness box, there
was no justifiable explanation for this delay in recording such statement
and the same deeply prejudiced the appellants. Next, referring to non-         C
production of Dr. Hanif, Kedar, Chhange Lal and Khemkaran, as
prosecution witnesses, it was contended by him that the same ought to
have been held fatal for the prosecution case.
      23. Continuing further, Mr. Giri contended that PW-3 was only a
chance witness, and being a resident of a village different from the village   D
where the appellants and Narayan with his family members resided, he
had no reason to be there at the place of occurrence at 10.00 hours in
the morning and no plausible explanation was proferred by him. For
supporting his contention that the evidence of a chance witness requires
cautious and close scrutiny, that his presence at the place of occurrence      E
must be adequately established, and that deposition of a chance witness,
whose presence at the place of occurrence remains doubtful, should be
discarded, reliance was placed by Mr. Giri on the decision of this Court
reported in (2009) 9 SCC 719 (Jarnail Singh vs. State of Punjab).
       24. Mr. Giri further contended that Munna Lal’s double barrel           F
gun was covered by a licence and no attempt was ever made to seize
such gun. Interestingly, a bullet having been seized at the place where
Narayan’s dead body lay, there was also no attempt to obtain the opinion
of a ballistic expert to ascertain whether the bullet could have been fired
from Munna Lal’s gun.
                                                                               G
       25. Also, Mr. Giri contended that failure of the prosecution to
have the testimony of the Investigating Officer recorded ought to be
regarded as a serious flaw which lends credence to the defence version
that Narayan might have been murdered by someone else but because
of the previous enmity, Munna Lal and Sheo Lal were falsely arraigned
as accused.                                                                    H
236             SUPREME COURT REPORTS                            [2023] 3 S.C.R.


A           ARGUMENTS OF THE STATE
             26. Per contra, Mr. Tyagi, learned counsel for the common
      respondent, contended that the trial court as well as the High Court
      meticulously scanned the evidence on record and returned findings that
      Munna Lal and Sheo Lal along with Babu Ram were guilty of the offence
B     of murder. Mere flaws in the process of investigation, according to him,
      would not be sufficient for dislodging the findings so returned. The
      versions of PW-2 and PW-3, the eye- witnesses, were found to be reliable
      and trustworthy by the courts below and there being nothing on record
      to impeach such versions, no interference is called for. He also contended
      that omission to seize the weapons of offence and/or mere non-production
C     of ballistic report cannot by itself be fatal for the prosecution case where
      credible ocular evidence is available on record unmistakably pointing to
      the guilt of the accused. He concluded by submitting that the appeals
      being devoid of any merit, deserve dismissal.
            THE QUESTION
D
            27. The question that this Court is tasked to decide on these
      criminal appeals is, whether the trial court, on the basis of the materials
      before it, was justified in recording conviction and consequently,
      sentencing the appellants to spend the rest of their lives in prison. Since
      the High Court has upheld the judgment and order of the trial court, the
E     answer to this question would guide this Court to decide the appeals one
      way or the other.
            DECISION
            28. Before embarking on the exercise of deciding the fate of these
      appellants, it would be apt to take note of certain principles relevant for
F     a decision on these two appeals. Needless to observe, such principles
      have evolved over the years and crystallized into ‘settled principles of
      law’. These are:
             (a). Section 134 of Indian Evidence Act, 1872, enshrines the well-
      recognized maxim that evidence has to be weighed and not counted. In
G     other words, it is the quality of evidence that matters and not the quantity.
      As a sequitur, even in a case of murder, it is not necessary to insist upon
      a plurality of witnesses and the oral evidence of a single witness, if
      found to be reliable and trustworthy, could lead to a conviction.
            (b). Generally speaking, oral testimony may be classified into three
H     categories, viz.:
       MUNNA LAL v. THE STATE OF UTTAR PRADESH                                   237
                [DIPANKAR DATTA, J. ]

              (i)     Wholly reliable;                                           A
              (ii)    Wholly unreliable;
              (iii)   Neither wholly reliable nor wholly unreliable.
       The first two category of cases may not pose serious difficulty
for the court in arriving at its conclusion(s). However, in the third category   B
of cases, the court has to be circumspect and look for corroboration of
any material particulars by reliable testimony, direct or circumstantial, as
a requirement of the rule of prudence.
       (c). A defective investigation is not always fatal to the prosecution
where ocular testimony is found credible and cogent. While in such a             C
case the court has to be circumspect in evaluating the evidence, a faulty
investigation cannot in all cases be a determinative factor to throw out a
credible prosecution version.
      (d). Non-examination of the Investigating Officer must result in
prejudice to the accused; if no prejudice is caused, mere non-examination        D
would not render the prosecution case fatal.
      (e). Discrepancies do creep in, when a witness deposes in a natural
manner after lapse of some time, and if such discrepancies are
comparatively of a minor nature and do not go to the root of the
prosecution story, then the same may not be given undue importance.
                                                                                 E
        29. On appreciation of the oral evidence tendered by PW-2 and
PW-3, this Court is of the view that its conclusions would have been no
different from those arrived at in the judgments impugned but for certain
vital factors, proposed to be discussed a little later, which unfortunately
did not engage the attention of the courts below. Also, had the lacunae
                                                                                 F
been of a minor nature, it may not have been at all difficult for this Court
to accept what PW-2 and PW-3 deposed, in the light of the medical
evidence tendered by PW-1, and uphold the finding that Narayan
succumbed to the gunshot and other injuries inflicted upon him by the
appellants. Truly, it would have been an open and shut case of murder in
which Narayan was the victim and the appellants were the perpetrators            G
of the crime.
      30. However, the situation takes a turn for the worse for the
prosecution in view of the previous history of enmity, spread over almost
10 (ten) years prior to the murder of Narayan, between him (Narayan)
and the appellants. Not only did the appellants testify in course of             H
238             SUPREME COURT REPORTS                            [2023] 3 S.C.R.


A     examination under section 313, Cr. P.C. that Munna Lal was a witness
      on behalf of Sheo Lal in proceedings under section 145, Cr. P.C. relating
      to a property dispute between the predecessors-in-interest of Sheo Lal
      and Ram Vilas (PW-2), it is evident from the deposition of PW-2 himself
      that there was a long standing quarrel during the last 10 (ten) years
      between Narayan on the one hand and Jaswant (father of Sheo Lal)
B
      and Sheo Lal on the other; further that, Jaswant and one other person
      had died in that quarrel; and that, such enmity continued since Sheo Lal
      wanted to take forcible possession of the residential land prior to the
      murder of Narayan, for which a case under section 145, Cr. P.C. had
      been registered and in which Munna Lal was a witness against PW-2.
C     The endeavour on the part of the appellants has been to demonstrate
      before this Court that Munna Lal and Sheo Lal have been falsely
      implicated since PW-2 intended to ensure that they are put behind the
      bars and thereby an end to the property dispute is brought about in a
      manner not countenanced by law.
D             31. This part of the contention of the appellants cannot be totally
      brushed aside. By reason of the uncontroverted evidence of a continued
      enmity existing from 10 (ten) years preceding the alleged murder of
      Narayan by and between the two groups, it could be established that
      PW-2 nurtured personal ill-will towards the appellants and the possibility
      of PW-2 having acted with intention to keep the appellants away from
E     legal proceedings as well as interference in property rights cannot be
      totally ruled out; hence, PW-2 being inimical to the appellants, his testimony
      has to be taken with a pinch of salt and a deeper scrutiny of the other
      evidence on record is also indeed called for bearing the settled principles,
      referred to above, in mind.
F            32. Having found from the oral evidence of PW-2 what transpired
      on the fateful morning, it is considered necessary to look into the oral
      testimony of PW-3. There was indeed an attempt on the part of the
      appellants to establish that PW-3 was a relative of PW-2 and that being
      an interested witness apart from a ‘chance witness’, his testimony is not
G     wholly reliable. It is not clear from the testimony of PW-3 as to why, so
      early in the morning, he had the occasion to pass by the place of
      occurrence. It is found that PW-3 is a resident of Nevdiya, Police Station
      Khudaganj, District Shahjahanpur whereas PW-2 happened to be a
      resident of Fatehpur Bujurg, Police Station Tilhar, District Shahjahanpur.
      The distance between the two places is 1-2 miles. The incident of murder
H
       MUNNA LAL v. THE STATE OF UTTAR PRADESH                               239
                [DIPANKAR DATTA, J. ]

happened within the jurisdictional limits of Police Station Tilhar. It has   A
not surfaced from the evidence of PW-3 very clearly from where he
started and where he was headed for. Gopalpur Dhadipura could be the
village, where the matrimonial home of the sister of PW-3 is; but for
what purpose he had left is not too clear. It was not said by PW-3 that he
was on his way to his sister’s residence. In cross-examination, PW-3
                                                                             B
denied having resided in “Fatehpur Bujurg urf Mohaddipur”.
       33. In order to prove the guilt of the appellants beyond reasonable
doubt, some more particulars were required given the circumstance that
PW-3 was at best a ‘chance witness’. Incidentally, PW-2 had denied
being related to PW-3 and it was not elicited by the prosecution from
PW-2 as to how he came to know the name of PW-3, given the fact that         C
the latter was a resident of a different village. Similarly, PW-3 too did
not say that he knew PW-2 or his father from before. The nature of
acquaintance that PW-2 and PW-3 had, ought to have been brought out
by the prosecution. That apart, although it is true that PW-3 gave a vivid
description of how Narayan was shot by Munna Lal, no specific role           D
was attributed insofar as Sheo Lal is concerned except that all 4 (four)
accused were “beating” (as deciphered from the evidence recorded in
Hindi) and not “killing” (as available from the translated version in the
paper-book) Narayan. Again, in course of cross-examination, PW-3
deposed that Munna Lal had shot Narayan without elaborating whether
Sheo Lal also inflicted any injury on Narayan. There is an apparent          E
inconsistency between the versions of PW-2 and PW-3 insofar as the
role attributed to Sheo Lal by PW-2 is concerned, which can hardly be
overlooked.
        34. However, what is of prime importance is that the circumstances
as appearing from the record do not justify the presence of PW-3 at the      F
place of occurrence. This Court is, therefore, of the firm view that the
oral testimony of PW-2 and PW-3 is not free from doubt and their evidence
not being of unimpeachable quality, the rule of prudence would demand
a corroboration of their versions from other witnesses who, according to
PW-2 and PW-3, were present at the place of occurrence and witnessed         G
the murder of Narayan.
      35. As per the evidence of PW-2 and PW-3, there were other
eye-witnesses of whom Kedar was a key witness, and Chhange Lal
and Khemkaran were independent witnesses. Since it was the version
of PW-2 and PW-3 that Kedar, Chhange Lal and Khemkaran were                  H
240            SUPREME COURT REPORTS                           [2023] 3 S.C.R.


A     present at the place of occurrence and had also witnessed, inter alia,
      the incident of “beating” of Narayan with a ‘kanta’ by Sheo Lal and
      firing of a gunshot at him by Munna Lal, direct evidence could have
      been provided by either of the three (Kedar, Chhange Lal and
      Khemkaran) corroborating the versions of PW-2 and PW-3. For reasons
      best known to the prosecution, these three individuals, named both by
B
      PW-2 and PW-3 as other eye-witnesses, were not examined leading
      this Court to draw an inference that had they been examined, the
      prosecution story would not have been supported by them.
             36. Not only were Kedar, Chhange Lal and Khemkaran not
      examined, the prosecution also did not examine Dr. Hanif to whom PW-
C     2 had approached and allegedly narrated the incident of murder for being
      transcribed into a report. Whether at all Dr. Hanif had taken down the
      version of PW-2 in writing could have been deposed by him but in the
      absence thereof, a cloud of doubt is formed for which this Court is again
      compelled to draw an inference that Dr. Hanif may not have been in the
D     picture at all. This Court, however, does not attach much importance to
      the clear inconsistency in the deposition of PW-2 as to where precisely
      he affixed his thumb impression on the report, i.e., in the shop of Dr.
      Hanif or at the police station. It is a minor discrepancy which can be
      discarded.
E            37. The aforesaid circumstances have to be appreciated in the
      light of three other circumstances, which could be viewed as extenuating.
             38. First, statement of PW-3 under section 161, Cr. P.C. was
      recorded nearly 24 days after the incident. Since the Investigating Officer
      did not enter the witness box, the appellants did not have the occasion to
F     cross-examine him and thereby elicit the reason for such delay.
      Consequently, the delay in recording the statement of PW-3 in course of
      investigation, is not referred to and, therefore, remains unjustified. The
      possibility of PW-3, being fixed up as an eye-witness later during the
      process of investigation, cannot be totally ruled out.

G            39. Secondly, 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
H     sole reason for discarding the prosecution case but the same assumes
       MUNNA LAL v. THE STATE OF UTTAR PRADESH                                   241
                [DIPANKAR DATTA, J. ]

importance on the face of the oral testimony of the so-called eye-               A
witnesses, i.e., PW-2 and PW-3, not being found by this Court 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
                                                                                 B
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       C
issue of non-examination of the Investigating Officer. In the facts of the
present case, particularly conspicuous gaps in the prosecution case and
the evidence of PW-2 and PW-3 not being wholly reliable, this Court
holds the present case as one where examination of the Investigating
Officer was vital since he could have adduced the expected evidence.
                                                                                 D
His non- examination creates a material lacuna in the effort of the
prosecution to nail the appellants, thereby creating reasonable doubt in
the prosecution case.
       40. As far as non-obtaining of ballistic report is concerned, it is no
doubt true that its essentiality would depend upon the circumstances of
each case. Here, since no weapon of offence was seized, no ballistic             E
report was called for and obtained. Although Mr. Giri contended that
Munna Lal had a licensed gun, this Court has not been able to trace any
evidence in the records in regard thereto. However, nothing turns on it.
The failure/neglect to seize the weapons of offence, on facts and in the
circumstances of the present case, has the effect of denting the                 F
prosecution story so much so that the same, together with non-
examination of material witnesses constitutes a vital circumstance
amongst others for granting the appellants the benefit of doubt.
        41. Thirdly, the medical evidence tendered by PW-1, if believed in
its entirety, leads this Court to form an opinion that the evidence of PW-       G
4 of he having recovered a bullet leading to its seizure at the place of
occurrence as doubtful. Injury nos.5 and 7, according to PW-1, were the
entry points of the shots fired at the victim whereas injury nos.6 and 8
were the exit points of such shots. The bullets having pierced the abdomen
and right thigh of the victim and there being corresponding exit points,
what is of concern is how could PW-4 still find a bullet “in the blood           H
242             SUPREME COURT REPORTS                             [2023] 3 S.C.R.


A     oozing out from the injury at the hip of the dead body”. Despite there
      being distinct exit points, it is quite improbable that after the injury at Sr.
      No.6, a bullet could still be found by PW-4 in the blood oozing out from
      the injury at the hip being one of two exit points. In any event, such bullet
      though seized under a seizure memo does not appear to have been exhibited
      at the trial which renders the version of PW-4 unacceptable.
B
             42. Although, mere defects in the investigative process by itself
      cannot constitute ground for acquittal, it is the legal obligation of the
      Court to examine carefully in each case the prosecution evidence de
      hors the lapses committed by the Investigating Officer to find out whether
      the evidence brought on record is at all reliable and whether such lapses
C     affect the object of finding out the truth. Being conscious of the above
      position in law and to avoid erosion of the faith and confidence of the
      people in the administration of criminal justice, this Court has
      examined the evidence led by the prosecutionthreadbare and refrained
      from giving primacy to the negligence of the Investigating Officer as
D     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,
E     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
F     story and the courts below appear to have somewhat been influenced
      by the oral testimony of PW-2 and PW-3, without taking into consideration
      the effect of the other attending circumstances, thereby warranting
      interference.
             CONCLUSION
G            43. For the reasons aforesaid, this Court is of the opinion that the
      charge that the appellants had murdered Narayan, cannot be said to
      have been proved beyond reasonable doubt; hence, they were and are
      entitled to the benefit of doubt. The trial court’s judgment of conviction
      and order of sentence contained in its decision dated 29th January, 1986
H     being unsustainable, stands set aside; consequently, the impugned
        MUNNA LAL v. THE STATE OF UTTAR PRADESH                                243
                 [DIPANKAR DATTA, J. ]

judgment and order dated 9th July, 2014 passed by the High Court,              A
upholding the conviction and sentence, too stands set aside. The appellants
having been lodged in the correctional home since the appellate judgment
and order was made shall be set free immediately, if not wanted in any
other case.
       44. The appeals, thus, stand allowed without any order for costs.       B

Nidhi Jain                                                  Appeals allowed.
(Assisted by : Tamana, LCRA)


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