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REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1073 OF 2008

SUNIL KUNDU AND ANR. … APPELLANTS Versus

STATE OF JHARKHAND … RESPONDENT WITH

CRIMINAL APPEAL NO. 1419 OF 2008

HIRA LAL YADAV … APPELLANT Versus

STATE OF JHARKHAND         …      RESPONDENT

WITH

CRIMINAL APPEAL NO. 1512  OF 2009

NAGESHWAR PRASAD SAH … APPELLANT

Versus

STATE OF JHARKHAND                 …      RESPONDENT

JUDGMENT

(SMT.) RANJANA PRAKASH DESAI, J.

1. The appellants Sunil  Kundu, Bablu Kundu, Nageshwar  

Sah  and  Hira  Lal  Yadav  (‘A1-Sunil’,  ‘A2-Bablu’,  ‘A3-

Nageshwar’ and ‘A4-Hiralal’, for convenience) were tried  

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for offences punishable under Section 302 read with Section  

34 and Section 201 read with Section 34 of the Indian Penal  

Code (for short,  ‘the IPC’) and Section 27 of the Arms Act,  

1959 (for short ‘the Arms Act’).  The Sessions Court by its  

judgment and order dated 15-17/09/2004 acquitted them of  

charges under Section 201 read with Section 34 of the IPC  

and  Section  27  of  the  Arms  Act.   They  were,  however,  

convicted  for  offence  punishable  under  Section  302  read  

with  Section  34  of  the  IPC  and  sentenced  to  life  

imprisonment  and  to  pay  fine  of  Rs.5,000/-  each.  They  

carried appeals to the High Court of Jharkhand, Ranchi.  The  

High Court confirmed their conviction and sentence.  Hence,  

these appeals by special leave.  

2. This case is a glaring example of how cause of justice  

can  be  defeated  by  inefficient,  lackadaisical  and  

incompetent  investigating  agency.   As  we  go  ahead,  the  

reasons for these observations would be clear.  

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3. At the trial, the case of the prosecution, in short, was  

that  on  29/01/1996  at  about  5.00  p.m.  deceased  Suresh  

Yadav (for convenience, “the deceased”) reached near the  

shop  of  Bijan  Kaur  situated  in  Refugee  Colony,  Jamtara,  

Mihijam Pitch Road by a motorcycle driven by him.  PW-3  

Basudeo Mallick was sitting in the middle of the seat and  

PW-6 Narendra Yadav was sitting behind him.  When they  

reached near the shop of Bijan Kaur, they saw A1-Sunil, A2-

Bablu,  A3-Nageshwar  and  A4-Hiralal  standing  there.   The  

accused  started  pelting  stones  on  them,  resulting  in  

imbalance of the motorcycle.  The motorcycle fell down.  All  

the accused attacked the deceased with knife and bhujali.  

They  resorted  to  blank  firing  to  scare  the  people.  The  

deceased started running towards the southern side of the  

railway line  but  he collapsed in  the  field.   PW-3 Basudeo  

Mallick  was  assaulted  with  an  iron  rod.   PW-6  Narendra  

Yadav,  who  is  an  advocate  by  profession,  somehow  

managed to escape.  He ran to Mihijam Police Station and  

informed about the incident.  Along with the police, he came  

to the scene of offence.  They shifted the deceased to the  

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Chittaranjan  Railway  Hospital.   At  the  hospital,  PW-6  

Narendra  Yadav’s  statement  was  recorded  by  the  

investigating  officer  -  PW-7  Girish  Prasad  Mishra.   It  was  

treated as FIR.  On the basis  of  the FIR,  investigation was  

conducted and upon completion of investigation the accused  

came to be charged as aforesaid.  

4. In support of its case, the prosecution examined nine  

witnesses.  The prosecution story rests on the evidence of  

PW-4  Shankar  Yadav,  PW-5  Jaldhari  Yadav  and  PW-6  

Narendra  Yadav.   The  accused  pleaded  not  guilty  to  the  

charge.  They contended that they were falsely involved in  

this case out of previous enmity.  They pleaded defence of  

alibi  and examined 21 witnesses in  support  of  their  case.  

Their plea of alibi was rejected and they were convicted as  

aforesaid.   

5. We  will  first  begin  with  the  FIR  lodged  by  PW-6  

Narendra  Yadav  because  it  is  not  consistent  with  the  

prosecution  case  which  was  developed  in  the  court.  

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According to PW-6 Narendra Yadav, on 29/1/1996, at about  

5.00 p.m., the deceased reached near the shop of Bijan Kaur  

situated in Refugee Colony, Jamtara, Mihijam Pitch Road by a  

motorcycle driven by him.   PW-3 Basudeo was sitting in the  

middle of the seat and he was sitting behind PW-3 Basudeo.  

When they reached near the shop of Bijan Kaur, they saw  

A1-Sunil,  A2-Bablu,  A3-Nageshwar  and  A4-Hiralal  standing  

there.  The accused started pelting stones on them, resulting  

in imbalance of the motorcycle.  A2-Bablu gave a blow with  

rod and the motorcycle fell down.  Thereafter, A1-Sunil fired  

at  the  deceased  and  the  deceased  got  injured.   A3-

Nageshwar  stabbed  the  deceased  with  knife  all  over  his  

body.   A4-Hiralal  fired  at  the  deceased  with  a  pistol  and  

injured him.  They also assaulted PW-3 Basudeo Mallik with  

an iron rod.  Thereafter, he ran to Mihijam Police Station and  

brought the police to the scene of offence.  They shifted the  

deceased  to  the  Anupam  Seva  Sadan.   On  the  doctor’s  

advise, the deceased was shifted to the Chittaranjan Railway  

Hospital  where  he  was  declared  dead.   The  incident  had  

occurred due to previous enmity between the deceased on  

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the one hand and A3-Nageshwar and A4-Hiralal on the other  

hand.   He did not  refer  to the presence of PW-4 Shankar  

Yadav and PW-5 Jaldhari Yadav in the FIR.  

6. We have heard Mr. Sanyal, senior advocate appearing  

for  A1-Sunil  and  A2-Bablu  and,  Mr.  Nagendra  Rai,  senior  

advocate appearing for A3-Nageshwar and A4-Hiralal.  So far  

as the genesis of the case and the alleged unreliability of the  

evidence of PW-4 Shankar Yadav and PW-5 Jaldhari Yadav is  

concerned,  Mr.  Sanyal  stated  that  he  was  adopting  the  

submissions of Mr. Nagendra Rai.  We have also heard Mr.  

Ratan Kumar Choudhari  learned counsel  appearing for the  

State  of  Jharkhand.   We  have  perused  their  written  

submissions.  

7. Mr. Sanyal, senior advocate submitted that A1-Sunil is  

said  to  have  fired  at  the  deceased  with  a  pistol.   He  is,  

however, acquitted of offence under Section 27 of the Arms  

Act.  Besides, PW-1 Dr. Chakravorty stated in his evidence  

that there was no firearm injury on the deceased.  Counsel  

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submitted that the State’s submission that the firearm was  

used only to frighten people is not borne out by the evidence  

of witnesses.  Besides, no bullets or empty cartridges were  

seized  from the  scene  of  offence.   So  far  as  A2-Bablu  is  

concerned,  counsel  pointed out  that  while  PW-6 Narendra  

Yadav stated in the FIR that A2-Bablu hit the deceased with  

iron rod, in the court he stated that he was holding knife.  

This  was  done  to  bring  his  evidence  in  conformity  with  

postmortem notes.  PW-1 Dr. Chakravorty stated that he did  

not  find  any  iron  rod  injury  on  the  deceased.   The  

prosecution  story  is,  therefore,  untrue.   Relying  on  Mani  

Ram & Ors.  v.  State of U.P.  1  , counsel submitted that if  

the oral evidence is inconsistent with the medical evidence,  

it is a fundamental defect which discredits the prosecution  

case.  Drawing our attention to  Kapildeo Mandal & Ors.  

v.  State of Bihar  2  , counsel submitted that the accused are  

entitled  to  benefit  of  doubt  where  oral  evidence  is  

inconsistent  with  medical  evidence.   He further  submitted  

that when medical evidence does not support the presence  

1 1994 Supp.. (2) SCC 289 2 (2008) 16 SCC 99

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

Chaudhary  v.  State of Bihar  3  )  .  Counsel also relied on  

Sahebrao Mohan Berad v.  State of Maharashtra  4  .    

8. Mr.  Nagendra Rai,  learned senior advocate submitted  

that  the  evidence  of  the  prosecution  witnesses  is  

inconsistent with and belied by the medical evidence.  He  

pointed out that PW-5 Jaldhari Yadav deposed that he and  

PW-6 Narendra Yadav, the first informant took the dead body  

to the hospital and gave statement leading to registration of  

the FIR.  This shows that it was recorded at the Chittaranjan  

Railway Hospital.  Earlier statement made before the police  

has been suppressed.  In the FIR and also in the court, PW-6  

Narendra Yadav alleged that two persons had fired at the  

deceased, but no firearm injury was found on the deceased.  

There is a variance between the FIR and the evidence of PW-

6 Narendra Yadav. PW-4 Shankar Yadav and PW-5 Jaldhari  

Yadav have improved their versions in the court.  These two  

witnesses have stated that when they went to the hospital,  

3 (2011) 2 SCC 747 4 (2011) 4 SCC 249

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PW-6 Narendra Yadav was present.  But, their names are not  

mentioned  in  the  FIR.   According  to  the  defence,  S.D.E.  

No.473 dated 29/1/1996 was recorded at  5.55 p.m.  when  

PW-6  Narendra  Yadav  had  gone  to  the  police  station  to  

inform the police about the occurrence, but no names were  

disclosed  and  hence,  no  names  are  mentioned  therein.  

Sanha  Entry  No.473  is  missing.   Thus  the  earlier  version  

recorded  by  the  police  has  been  suppressed  by  the  

prosecution.  Evidence of PW-4 Shankar Yadav is of no use to  

the prosecution as he clearly stated that the accused were  

not known to him and he had heard about them from others.  

Counsel  submitted that  the place of  occurrence is  a  busy  

place.  No independent witness has been examined by the  

prosecution.  Admittedly, there is enmity between the two  

sides.  Medical evidence does not support the prosecution  

case.  The prosecution has, therefore, failed to prove its case  

beyond  reasonable  doubt.   Counsel  submitted  that  the  

accused must, therefore, be acquitted.  

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9. Mr.  Ratan Kumar  Choudhary,  learned counsel  for  the  

State,  on  the  other  hand,  submitted  that  so  far  as  the  

manner in which the incident took place is concerned, there  

is no variation in the evidence of PW-4 Shankar Yadav, PW-5  

Jaldhari  Yadav and PW-6 Narendra Yadav.   There may be  

minor variations which do not affect the substratum of the  

prosecution  case.   Merely  because  the  names  of  PW-4  

Shankar Yadav and PW-5 Jaldhari Yadav are not mentioned  

in the FIR, it cannot be said that they were not present.  It is  

true that PW-4 Shankar Yadav stated that he did not know  

the names of the accused, but he stated that he got to know  

the  names  at  the  scene  of  offence  and  he  identified  the  

accused  in  the  court.   Counsel  pointed  out  that  the  

investigating officer stated in his evidence that due to terror  

created  by  the  accused,  no  one  came  forward  to  give  

statement.   The  accused  have  criminal  history  and,  

therefore,  non-examination of  independent witnesses does  

not affect the prosecution case.  Counsel submitted that the  

medical  evidence supports the prosecution case.   Counsel  

submitted  that  the  story  about  Sanah  Entry  No.473  is  

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concocted  to  create  doubt  about  the  prosecution  story.  

There  is  no  such  sanha  entry.   Counsel  submitted  that  

conviction of the accused is perfectly legal and justified.  The  

appeals, therefore, deserve to be dismissed.

10. Before going to the evidence of eye-witnesses, we shall  

advert to the post-mortem notes because while it is alleged  

that the accused used firearms, the post-mortem notes do  

not show that the deceased had received any firearm injury.  

As per the post-mortem notes, there were 24 incised wounds  

and multiple abrasions of varying sizes over both knee joints  

of the dead body.  Cause of death is stated to be “due to  

profuse heamorrhage and shock as a result of ante mortem  

injury  Nos.(i)  and  (xv)  caused  by  sharp  cutting  weapon”.  

They could be caused by a bhujali or chhura (knife).  Injury  

Nos.(1) and (xv) are incised wounds.  The post-mortem notes  

further state that injury No.(xxiii) can be caused by iron rod.  

Injury  No.(xxiii)  is  described  as  “multiple  abrasions  of   

varying sizes over both knee joints”.  PW-1 Dr. Chakraborty  

who  conducted  the  post-mortem,  reiterated  the  findings  

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recorded  in  the  post-mortem notes  and stated  that  there  

was  no  firearm  injury  on  the  deceased.   He  denied  that  

multiple abrasions found on both the knee joints could be  

caused by a fall.  

11. The main plank of the argument of learned counsel for  

the accused is that since there is no firearm injury on the  

deceased,  the  entire  prosecution  story  must  fall  to  the  

ground.  Therefore, we must now turn to the evidence of PW-

6  Narendra  Yadav.   PW-6  Narendra  Yadav  is  the  first  

informant.  His presence at the scene of offence cannot be  

doubted because all the witnesses including PW-3 Basudeo  

Mallik who turned hostile stated that he was sitting on the  

motorcycle  which  was  being  driven  by  the  deceased.  

Besides, during this incident, he received injuries due to fall  

of the motorcycle.  PW-2 Dr. Mishra stated in his evidence  

that on the date of incident i.e. on 29/1/1996 he examined  

PW-6 Narendra Yadav.  He described the nature of injuries  

suffered  by  this  witness  and  produced  injury  certificate  

which  is  at  Ex-21.   His  evidence  is  consistent  with  the  

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evidence of other witnesses only to the extent that when the  

motorcycle  reached  near  the  shop  of  Bijan  Kaur,  all  the  

accused had assembled there;  they started pelting stones  

and A3-Nageshwar hit with a rod and that the motorcycle fell  

down.   After  this,  his  evidence  is  inconsistent  with  the  

evidence of other witnesses.  He stated that the deceased  

ran to the railway line towards the south.  A1-Sunil fired at  

him with a pistol.  A2-Bablu who was armed with a chhura  

inflicted  injuries  at  many  places  on  the  body  of  the  

deceased.  A3-Nageshwar beat the deceased with a rod.  A4-

Hiralal  fired at  the deceased with  a  pistol.   PW3-Basudeo  

Mallik was beaten by A3-Nageshwar with rod.  Then, he went  

to  the  police  station  and  gave  intimation  regarding  the  

incident.  He brought the police to the scene of offence.  The  

deceased was lying in unconscious condition.  They shifted  

the deceased to Anupam Seva Sadan for treatment.  On the  

advice  of  the  doctor,  the  deceased  was  taken  to  the  

Chittaranjan Railway Hospital where he was declared dead.  

He  stated  that  at  the  Chittaranajan  Railway  Hospital,  his  

statement was recorded.  He made a mistake in identifying  

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of A2-Bablu in the court.  The case of this witness that A1-

Sunil and A4-Hiralal had pistols in their hands and they fired  

at the deceased which resulted in the firearm injury being  

caused  to  him  is  belied  by  the  post-mortem  notes.  

Admittedly, the postmortem notes do not indicate that the  

deceased had suffered any firearm injury.  It is pertinent to  

note  that  no  bullets  or  empty  cartridges  were  recovered  

from  the  scene  of  offence.   Therefore,  this  witness  has  

obviously not come out with the truth.  It must also be borne  

in mind that he ran to the police station after the deceased  

fell down and the alleged cutting of throat of the deceased  

by the accused is  not  witnessed by him.  He has also not  

witnessed the alleged blank firing resorted to by the accused  

while running away. It would not be out of place to mention  

here  that  he  admitted  in  his  cross-examination  that  the  

deceased was living in the house of his maternal uncle and  

he is his relation.  He stated that he was also staying with  

the deceased.  He stated that after the police came to the  

scene of offence, they seized the articles lying on the scene  

of  offence  whereas  PW-5  Jaldhari  Yadav  stated  that  the  

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seizure panchanama was prepared in the evening at  8.00  

p.m. after the police came back to the scene of offence from  

the hospital.   We find it  difficult  to  place reliance on this  

witness.  

12. Statement  of  PW-3  Basudeo  Mallick,  who  was  also  

sitting  on  the  motorcycle  driven  by  the  deceased  was  

recorded by PW-8 Satish Chandra Singh, Judicial Magistrate,  

under  Section  164  of  the  Code  of  Criminal  Procedure.  

However,  he  turned  hostile.   The  prosecution  could  draw  

support from his evidence only to the extent that he, PW-6  

Narendra Yadav and the deceased reached Refugee Colony  

at 5.30 p.m. on the date of the incident; that he was hit with  

a hard object on his head and he fell down.  PW-2 Dr. S.K.  

Mishra, who had examined him on 29/1/1996 has described  

injuries suffered by him and produced injury report (Ex-2).  

Thus,  his  presence  and  the  fact  that  some  incident  took  

place on that day at Refugee Colony are established.  But,  

his evidence is of no further use to the prosecution because  

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on the major  aspect  of  the prosecution story,  he has not  

supported it.   

13. PW-4  Shankar  Yadav  is  admittedly  related  to  the  

deceased.  It must be noted that this witness is a chance  

witness.  He is the resident of Mouza Kush Bediya.  He stated  

that he was coming from Kanboe to his house.  He admitted  

that from the place of incident, his house is about one mile  

away.   He really had no reason to be there.   He has not  

explained why he was at the scene of offence on that day.  

He  stated  that  he  saw  the  accused  standing  near  a  grill  

making  shop.   The  deceased  came  there.   The  accused  

started throwing stones on the deceased’s motorcycle.  He  

was hit by rod.  He lost grip of the handle.  The motorcycle  

fell down.  The deceased started running away.  The accused  

chased him and caught him.  A1-Sunil fired.  Because of the  

firing,  people  who  had  assembled  there  started  running  

away.  All the four accused started assaulting the deceased  

with bhujali and knife. When he fell down, A4-Hiralal Yadav  

cut  his  throat.   According  to  this  witness,  PW-5  Jaldhari  

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Yadav was present.  After that, all the accused fled away.  It  

is pertinent to note that he admitted that he did not know  

the names of the accused and he got to know the names of  

the accused from the people who had assembled there.  He  

admitted that the deceased and his brother were accused in  

some other sessions case and the accused are witnesses in a  

criminal case where his brother is involved.  Faced with the  

case set out in the FIR that the deceased was fired at by the  

accused  and  was  injured,  which  is  contrary  to  the  post-

mortem notes, this witness has tried to bring his evidence in  

conformity with the post-mortem notes.  He stated that A1-

Sunil fired but avoided to say that he fired at the deceased.  

He suggested that firing was merely done to scare people.  

This  attempt  has  proved  to  be  unsuccessful  because  the  

police have not recovered a single bullet or empty cartridge  

from the scene of offence.  

14. PW-5 Jaldhari Yadav is also related to the deceased.  He  

is  a  chance  witness.   According  to  him,  on  the  date  of  

incident, he had gone to the station to buy cattle feed.  He  

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stated that the place of occurrence would be less than a mile  

from  the  station.   Before  he  could  enter  the  shop,  the  

members  of  the deceased’s  family  came there and asked  

him to search for the deceased, but they did not tell him how  

far he should go to look for him.  According to him, he did  

not ask them as to where the deceased had gone or at what  

time he used to return home.  This story does not stand to  

reason.   It  is  not  understood  how  the  members  of  the  

deceased’s family would know that this witness would be in  

the market at the relevant time so that they could contact  

him  and  ask  him  to  search  for  the  deceased.   It  is  not  

understood how without any particulars being furnished to  

him,  he embarked on  the task and went  to  the scene of  

offence, which was less than a mile away from the station.  

In any case, his evidence does not inspire confidence.  He  

stated that  on the date of  incident when he was at Bijan  

Kaur’s shop situated on Pitch Road, he saw motorcycle of the  

deceased.  PW-3 Basudeo Mallik was lying on the ground.  

A1-Sunil,  A2-Bablu,  A3-Nageshwar  and  A4-Hiralal  were  

beating  the  deceased  with  rod,  bhujali  and  knife.   PW-4  

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Shankar Yadav came there and started shouting ‘Maar Diya;  

Maar Diya’. About 20 to 25 stab injuries were inflicted on the  

deceased.  According to him, A1-Sunil and A2-Bablu fired in  

the air.  People got scared and they ran helter-skelter. He  

further  stated  that  A3-Nageshwar  and  A4-Hiralal  cut  the  

throat of the deceased and all of them fled away.  According  

to him, treating the deceased as dead, while running away,  

the accused resorted to blank firing.  Just like PW-4 Shankar  

Yadav, this witness has also tried to bring his evidence in  

conformity with the post-mortem notes which do not show  

any firearm injury.   It  bears repetition to state that not a  

single  bullet  or  empty  cartridge  was  recovered  from  the  

scene of offence.  The use of firearm by the accused is not  

supported by any evidence.   He claims to have lifted the  

dead body, but he stated that his clothes were not smeared  

with blood.  The police have not seized his clothes, which  

creates  suspicion  about  the  prosecution  case.   Moreover,  

from his evidence, it appears that PW-4 Shankar Yadav came  

after  the deceased was assaulted,  whereas PW-4 Shankar  

Yadav claims that he was there right from the beginning.   

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15. Having dealt with the evidence of these three important  

witnesses, we would like to focuss on the inconsistencies in  

their  evidence.   PW-4 Shankar  Yadav stated that  A1-Sunil  

fired and due to the firing, people got scared.  PW-5 Jaldhari  

Yadav stated that A1-Sunil and A2-Bablu fired in air to scare  

the people.  He further stated that treating the deceased as  

dead, they resorted to blank firing.  PW-6 Narendra Yadav  

stated  that  A1-Sunil  and  A4-Hiralal  fired  and  injured  the  

deceased.  Thus, there are three different versions given by  

three witnesses.  According to PW-4 Shankar Yadav, only A1  

Sunil  was  carrying  the  pistol.   According  to  PW-5 Jaldhari  

Yadav, A1-Sunil and A2-Bablu had pistols and they fired in  

the air to scare the people.  PW-6 Narendra Yadav goes a  

step further and says that A1-Sunil and A4-Hiralal fired and  

injured the deceased.  Neither PW-4 Shankar Yadav nor PW-5  

Jaldhari Yadav stated that A4-Hiralal had a pistol in his hand.  

There is no firearm injury on the deceased.  PW-4 Shankar  

Yadav stated that A4-Hiralal cut the throat of the deceased  

whereas PW-5 Jaldhari Yadav stated that A3-Nageshwar and  

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A4-Hiralal cut the throat of the deceased.  According to PW-6  

Narendra Yadav, A3-Nageshwar had a rod in his hand and he  

had attacked the deceased with the rod.  He had also dealt a  

rod blow on the motorcycle.  This is not consistent with PW-5  

Jaldhari  Yadav’s case that A3-Nageshwar cut the throat of  

the  deceased.   This  would  mean  that  A3-Nageshwar  was  

carrying a bhujali or knife. PW-6 Narendra Yadav stated that  

A2-Bablu gave several knife blows on the deceased but PW-5  

Jaldhari  Yadav  stated  that  he  fired  in  the  air  meaning  

thereby he had a pistol in his hand.  It was argued by Mr.  

Ratan Kumar Choudhary, learned counsel for the State that  

different  persons react  differently  to  a  particular  situation  

and  as  such  there  may  be  minor  variations  in  their  

statements.   He  submitted  that  minor  contradictions  and  

inconsistencies  which  do  not  go  to  the  root  of  the  

prosecution version need to be ignored.  In this case, it is not  

possible for us to adopt such an approach because there is a  

major lacuna in the prosecution story.  It has been alleged  

that at least two of the accused were carrying pistols; the  

deceased was fired at and he was injured.  This case is not  

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borne out by the medical evidence.  At the cost of repetition,  

we must state that no bullets or empty cartridges have been  

recovered from the scene of offence.  If we keep this major  

lacuna of  the  prosecution  story  in  mind and consider  the  

abovementioned  inconsistencies  in  the  evidence  of  the  

prosecution witnesses, it would not be possible to term them  

as  minor  inconsistencies  or  variations  which  should  be  

ignored.  Besides,  all  the  three  important  prosecution  

witnesses are related to the deceased and,  therefore,  are  

interested witnesses.  We are aware that the evidence of an  

interested witness is not to be mechanically overlooked. If it  

is  consistent,  it  can be relied upon and conviction can be  

based on it because, an interested witness is not likely to  

leave out the real culprit.   But in this case, the interested  

witnesses are not truthful.  Their presence itself is doubtful.  

According to PW-6 Narendra Yadav, they were present at the  

scene of offence, but their names are not mentioned in the  

FIR.   The  genesis  of  the  prosecution  case  is  suppressed.  

Moreover, admittedly, there is deep rooted enmity between  

the  accused  and  the  deceased  to  which  we  have  made  

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reference earlier.  We are mindful of the fact that enmity is a  

double  edged weapon but  possibility  of  false  involvement  

because of deep rooted enmity also cannot be ruled out.  

16. As we have already stated the major lacuna in this case  

is that use of firearms by the accused is not proved.  There  

are no firearm injuries on the deceased.  It is true that when  

there is cogent eye-witness account, the medical evidence  

recedes in the background.  However, when the eye-witness  

account is totally inconsistent with the medical evidence and  

there is reason to believe that improvements are made in  

the court to bring the prosecution case in conformity with  

the post-mortem notes, it is a cause for concern.  In such a  

situation,  it  is  difficult  to  say  that  one  must  believe  the  

tainted eye-witness’ account and keep the medical evidence  

aside.   In  this  connection,  we  may  usefully  refer  to  the  

judgment in Sahebrao where this Court observed that when  

the doctor’s experience has not been questioned, he is the  

only competent person to opine on the nature of injuries and  

cause of death.  We may also refer to the judgment of this  

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Court  in  Anjani  Chaudhary,  where the medical  evidence  

did not  support  the appellant’s  presence as there was no  

injury on the deceased which could be caused by a lathi and  

the appellant was stated to be carrying a lathi.  Since the  

eye-witnesses  therein  were  not  found  to  be  reliable,  this  

Court acquitted the appellant therein. In Kapildeo Mandal,  

all  the  eye-witnesses  had  categorically  stated  that  the  

deceased was injured by the use of  firearm,  whereas the  

medical evidence specifically indicated that no firearm injury  

was  found  on  the  deceased.   This  Court  held  that  while  

appreciating variance between medical evidence and ocular  

evidence, oral evidence of eye-witnesses has to get priority  

as medical evidence is basically opinionative.  But, when the  

evidence of the eye-witnesses is totally inconsistent with the  

evidence  given  by  the  medical  experts  then  evidence  is  

appreciated in a different perspective by the courts.  It was  

observed that when medical evidence specifically rules out  

the  injury  claimed to  have been inflicted as  per  the eye-

witnesses’  version,  then  the  court  can  draw  adverse  

inference  that  the  prosecution  version  is  not  trustworthy.  

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This judgment is clearly attracted to the present case.  In  

Mani Ram,  PW-2 the only sole eye-witness therein stated  

that the two appellants therein chased deceased-Basdeo and  

both  of  them fired  at  him  from the  kattas  while  he  was  

running.   However,  according  to  the  postmortem  report,  

injury No.7, which was caused by a firearm, was situated on  

the right shoulder and front of upper arm and outer part.  

There was no injury either on the back or anywhere behind  

the  shoulder.   Since  the  prosecution  case  was  that  the  

deceased was fired at while he was running, firearm injuries  

should  have  been  there  on  his  back.   In  view  of  this  

discrepancy,  this  Court  observed  that  where  the  direct  

evidence is not supported by the expert evidence then the  

evidence  is  wanting  in  the  most  material  part  of  the  

prosecution  case  and,  therefore,  it  would  be  difficult  to  

convict the accused on the basis of such evidence.  We feel  

that  the  accused  can  draw  support  from  this  case  also.  

Tainted eye-witness account which is glaringly inconsistent  

with  the  medical  evidence  as  regards  firearm  injury  has  

shaken the credibility of the prosecution case.  

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17. There  is  yet  another  very  important  and  distressing  

lacuna  in  the  prosecution  case.   Learned  counsel  for  the  

accused submitted that PW-6 Narendra Yadav went to the  

police station and informed the police about the incident in  

question.   A  sanha  entry  was  made.   However,  PW-6  

Narendra Yadav did not name the accused.  It was submitted  

that  this  sanha  entry  was  purposely  suppressed  by  the  

prosecution as it did not contain the names of the accused.  

It was suggested that the FIR of PW-6 Narendra Yadav is a  

doctored  document  and  the  names  of  the  accused  were  

subsequently  added at  the hospital.   In  order  to  examine  

whether  there  is  any  substance  in  this  submission,  we  

carefully  examined  the  record.   We  found  that  after  

recording the above submissions of the defence counsel, the  

trial  court  by  its  order  dated  23/10/2003  directed  the  

prosecution to produce Sanha Entry Nos.465 to 476 dated  

29/1/1996 i.e. the date of incident.  The officer-in-charge of  

Mihijam Police Station sent a report dated 4/11/2003 along  

with the register containing sanha entries stating that the  

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original sanha entries of 29/1/1996 are not available.  The  

said  report  is  at  Ex-O.   Along  with  the  said  letter,  the  

relevant register is produced. In order to find out whether  

really  the  sanha entries  dated 29/1/1993  are missing,  we  

went through the said register carefully and we found that  

the  pages  containing  Sanha  Entry  Nos.465  to  476  dated  

29/1/1996 are torn and missing.  This appears to support the  

case of the accused that the sanha entries dated 29/1/1996  

were  purposely  not  produced  because  they  contained  

information  of  the  occurrence  communicated  by  PW-6  

Narendra Yadav first in point of time and the names of the  

accused were not mentioned therein.     When confronted  

with this, the investigating officer, PW-7 Girish Mishra at one  

stage denied this  allegation.   Later  on,  he stated that  he  

does  not  remember  whether  any  sanha  entry  was  made.  

When it was suggested to him that in the sanha entry, no  

names of the accused were mentioned and it was removed  

from the record to falsely implicate the accused, he said that  

it is a matter for investigation.  This casts a shadow of doubt  

on the credibility of the prosecution story.

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18. It was argued that the accused were absconding and,  

therefore,  adverse  inference  needs  to  be  drawn  against  

them.  It is well settled that absconding by itself does not  

prove the guilt of a person.  A person may run away due to  

fear of false implication or arrest. (See Sk. Yusuf  v.  State  

of West Bengal5).  It is also true that the plea of alibi taken  

by the accused has failed.   The defence witnesses examined  

by them have been disbelieved.  It was urged that adverse  

inference  should  be  drawn  from  this.   We  reject  this  

submission.    When the prosecution is not able to prove its  

case beyond reasonable doubt it cannot take advantage of  

the fact that the accused have not been able to probablise  

their defence.  It is well settled that the prosecution must  

stand or fall on its own feet.  It cannot draw support from the  

weakness of the case of the accused, if it has not proved its  

case beyond reasonable doubt.   

5 (2011) 11 SCC 754

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19. We began by commenting on the unhappy conduct of  

the investigating agency.  We conclude by reaffirming our  

view.   We  are  distressed  at  the  way  in  which  the  

investigation of this case was carried out.   It  is true that  

acquitting the accused merely on the ground of lapses or  

irregularities in the investigation of a case would amount to  

putting  premium  on  the  deprecable  conduct  of  an  

incompetent investigating agency at the cost of the victims  

which may lead to encouraging perpetrators of crimes.  This  

Court has laid down that the lapses or irregularities in the  

investigation could be ignored subject to a rider.   They can  

be ignored only if despite their existence, the evidence on  

record  bears  out  the  case  of  the  prosecution  and  the  

evidence is of sterling quality.  If the lapses or irregularities  

do not go to the root of the matter, if they do not dislodge  

the substratum of the prosecution case, they can be ignored.  

In  this  case,  the  lapses  are  very  serious.   PW-5  Jaldhari  

Yadav is a pancha to the seizure panchnama under which  

weapons and other articles were seized from the scene of  

offence and also to the inquest panchnama.  Independent  

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panchas have not been examined.  The investigating officer  

has stated in his evidence that the seized articles were not  

sent to the court along with the charge-sheet.  They were  

kept in the Malkhana of the police station.  He has admitted  

that the seized articles were not sent to the Forensic Science  

Laboratory.   No  explanation  is  offered  by  him  about  the  

missing  sanha  entries.   His  evidence  on  that  aspect  is  

evasive.   Clothes  of  the  deceased  were  not  sent  to  the  

Forensic  Science  Laboratory.   The  investigating  officer  

admitted that no seizure list of the clothes of the deceased  

was  made.   Blood  group  of  the  deceased  was  not  

ascertained.  No link is established between the blood found  

on the seized articles and the blood of the deceased.  It is  

difficult to make allowance for such gross lapses.  Besides,  

the evidence of eye-witnesses does not inspire confidence.  

Undoubtedly,  a  grave  suspicion  is  created  about  the  

involvement of the accused in the offence of murder.  It is  

well settled that suspicion, however strong, cannot take the  

place of proof.  In such a case, benefit of doubt must go to  

the accused.  In the circumstances, we quash and set aside  

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the impugned judgment and order.  The appellants-accused  

are in jail.  We direct that the appellants – A1-Sunil Kundu,  

A2-Bablu Kundu, A3-Nageshwar Prasad Sah and A4-Hira Lal  

Yadav  be released forthwith unless otherwise required in  

any other case.  

20. The appeals are disposed of in the aforestated terms.

………………………….J. (Aftab Alam]

………………………….J. (Ranjana Prakash Desai)

New Delhi April 9, 2013.

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