Page 1

                                     REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL No. 827 OF 2011

HIMANSHU MOHAN RAI                                                 …APPELLANT

VERSUS

STATE OF U.P. AND ANR.                                           …RESPONDENTS

WITH

CRIMINAL APPEAL No. 829 OF 2011

JUDGMENT

S. A. BOBDE, J.

Criminal  Appeal  No.827 of  2011 is  filed by P.W. 1 (Himanshu

Mohan  Rai)  and  the  same  is  directed  against  the  acquittal  of

respondent No.2 - Imran Afreen.  The Sessions Court convicted the

respondent-accused  under  Section  302  of  the  Indian  Penal   

Code, 1860 (hereinafter referred to as the ‘IPC’) for the murder of the

deceased, Lalit  Mohan Rai.  He was sentenced to life imprisonment

along with  a fine of  Rs.50,000/-  by the Sessions Court.   The High

Court set aside the judgment of the Sessions Court and acquitted the

1

Page 2

respondent-accused.  The  State  of  Uttar  Pradesh  has  also  preferred

Criminal Appeal No.829 of 2011 against the acquittal.

The FIR

2. The incident took place on 01.01.2005 between 20:30 – 21:00

hours in front of Hotel Shalimar which belonged to the deceased and

his brother.  The FIR was registered on the same day at 23:05 hours

by  one,  Himanshu  Mohan  Rai  (P.W.1),  the  brother  of  deceased.

According to the FIR, the offence was committed by Imran Afreen, and

two of his accomplices whose names and addresses were unknown at

the time of the reporting of the offence.  The informant reported that

at about 20:30 hours, a waiter from his hotel, namely Manoj Kumar

Singh  alias Bahadur had gone to Varuna Bridge to bring milk. While

returning  to  the  hotel  from getting  the  milk,  he  collided  with  the

appellant who along with his accomplices was in a state of intoxication.

They assaulted the waiter in their state of inebriation, and the waiter

ran into Hotel Shalimar for taking refuge.  The appellant followed the

waiter in Indigo Car No.U.P.-65-X-0002 and his accomplices followed

the  waiter  on  Yamaha  motorcycle  No.U.P.Z-5214.   They  forcibly

entered the hotel and started beating the waiter up.   

The first informant, the deceased and Rajnath Singh (owner of

the hotel building) tried to pacify the assailants and took them outside

the hotel.  Outside the hotel, the appellant took out his pistol and fired

2

Page 3

several  shots at the informant’s older brother, Lalit Mohan Rai. Lalit

Mohan Rai got injured and fell down.  Chander Shekhar Rai, Krishan

Kumar Singh and many others gathered upon hearing the sounds of

the gun shots.  Looking at the crowd, the accused and his accomplices

ran away leaving their vehicles behind.  

Lalit Mohan Rai was taken to Chauraha Hospital for treatment

where he died.

The Investigation          

3. The investigation was initially conducted by Station Head Officer,

D.P.  Shukla  (P.W.  6).  The  appellants  alleged  that  D.  P.  Shukla   

was hand in gloves with the accused.  The offence registered under

Section 302 IPC was changed by the police inspector and registered

under  Section  304  IPC  instead.  Consequently,  the  investigation   

was transferred to a sub-inspector by the name of Srinivas Pande (P.W.

5).  The appellant complained that Srinivas Pande was partial to the

accused and thereafter, the investigation was transferred back to an

inspector by the name of R.K. Singh (P.W. 7).

4. The accused was arrested on 05.01.2005.

The Sessions Court

5. The Sessions Court convicted the three accused Imran Afreen,

Gufran Afreen and Abdul Wasi for the offence under Section 302 of the

3

Page 4

IPC.  Gufran Afreen and Abdul Wasi were found to be juvenile and

therefore prosecuted under the Juvenile Justice Act.  

The Sessions Court found that the prosecution story was proved.

Imran Afreen got into an altercation with Bahadur, the waiter of Hotel

Shalimar.  Bahadur  ran  into  Hotel  Shalimar  which  was  run  by  the

deceased and his brother (P.W. 1).  Imran Afreen in an Indigo car and

the other accomplices on a Yamaha motor bike followed Bahadur and

entered the hotel.  Lalit Mohan Rai along with Himanshu Mohan Rai

and Rajnath Singh took the assailants outside the hotel to pacify them.

Outside the hotel, there was a heated discussion upon which one of

the  accomplices  exhorted  Imran  Afreen  to  fire  the  shot  by

saying-“what are you looking at?” and told him to shoot and kill Lalit

Mohan Rai. Imran Afreen then fired five rounds.  Lalit Mohan Rai fell

down and was taken to the hospital by P.W. 1.  He was declared dead

at the hospital.

The High Court

6. The High Court disbelieved the story of the prosecution and set

aside the conviction recorded by the Sessions Judge: -    

(i) Mainly on the ground that P.W. 1 is not a reliable witness in view

of the following:   

4

Page 5

(a) The altercation between Bahadur and the accused on the road

was admittedly not witnessed by P.W. 1. He had met the waiter on

01.01.2005, 02.01.2005 and 03.01.2005.  He admitted that he did not

meet Bahadur till the time of the cremation of his brother.   

(b) P.W. 1 came to know the names of the accused on 05.01.2005

when he had gone to the house of Congress Leader Abdul Kalam to

pay homage.  He overhead the names of the accused, who he did

know  before,  but  disclosed  their  names  to  the  police  only  on

09.01.2005.  

(c) P.W. 1 had gone to Ghazipur and returned only in the evening of

05.01.2005.  The fact that the inquest was performed in his presence

in  the  afternoon,  and  thereafter  the  dead  body  was  sent  for  post

mortem, negates his presence.  

(d) P.W. 1 did not write the FIR himself even though he was literate,

having received an education of intermediate level. He told his uncle,

Girjesh Rai, about the incident. Girjesh Rai wrote the incident down

and P.W. 1 signed it after reading what was written.  Subsequently,

Girjesh Rai went to the Police Station Cant and lodged the report.  

The High Court concluded that he was nowhere around the place

at the time of incident.

5

Page 6

(ii) The prosecution withheld the examination of the waiter, Bahadur,

who was an eye witness even though the investigating officer met him

at the place of incident during the time of recovery and prepared the

site plan at his instance.

(iii) The  prosecution  withheld  2  persons  Rajnath  Singh  and  K.K.

Singh who were examined before the Juvenile Justice Board but were

declared hostile.  Their names appear in the list of witnesses but they

were not examined.  

(iv) The assertion that the dead body of the deceased was taken in a

tempo  was  neither  substantiated  nor  shown  to  the  Investigating

Officer.  There was no blood found and the blood stained clothes of the

witnesses were also not produced before the police.  

(v) The FIR was ante-timed and shown as registered at 23:05 hours,

although it was registered later on.   

The Witnesses

7. Himanshu Mohan Rai (P.W. 1) is the brother of the deceased and

the first informant.  He used to manage Hotel Shalimar along with the

deceased.  This was not disputed by the accused.

7(a). P.W. 1 stated that he saw the incident clearly as the hotel was

decorated with lighting for New Year’s Eve and therefore identified the

accused in that light.  He stated that he removed the blood stained

6

Page 7

sweater, presumably  worn  by  Lalit  Mohan  Rai,  and  kept  it  in  the

storage of the scooter belonging to Girjesh Rai.   

He also  stated  that  Bahadur was  present  when Imran Afreen

shot Lalit Mohan Rai.  He omitted giving the names of the accused in

the  application  dated  08.01.2005,  given  to  the  S.S.P  to  apply  the

appropriate section because he did not think it  was necessary.  He

denied the suggestion that his brother was killed by some professional

killers away from the hotel.   

The  testimony  of  this  witness  has  not  been  shaken  in  any

material  particularly  in  the  cross  examination.   We  find  nothing

incredible about the testimony of this witness and there is no reason to

discard to discard it.  

7(b).   Shri Amarendra Sharan, counsel for the respondent-accused,

submitted that the presence of P.W. 1 is doubtful because the witness

did not produce his blood stained clothes before the Court nor did he

show  the  blood  stained  sweater  to  the  police.   P.W.  1  gave  no

explanation for there being no sweater on the body of the deceased,

when the deceased was taken to the hospital.   

We do not consider this reason sufficient enough to discredit the

story of P.W. 1 in its entirety.  It is possible that the witness did not

remember what happened to the sweater in the emergency that arose

7

Page 8

after his brother was shot.  There is also no merit in the criticism that

the incident of the first quarrel with the waiter had been mentioned in

the FIR, even though the witness stated later that Bahadur did not

explain the incident to him.  It is possible that Bahadur mentioned the

incident  and  did  not  explain  how  the  quarrel  arose.   The  other

omissions during the course of cross examination, such as the failure

of P.W. 1 to mention that he overheard the names of the other accused

at  the  funeral,  is  not  crucial.   We  also  do  not  find  anything

unbelievable in the statement of the witness that he learnt the names

of the other accused at the funeral of local MLA Abdul Kalam.   

8. Chandra Shekhar Rai (P.W. 2) was interrogated after about 25 to

30 days and was questioned 8 days after the incident.  He is criticized

as  a  planted  witness.   In  this  regard  it  may  be  noted  that  the

investigation was first carried out by S.H.O. D.P. Shukla (P.W. 6), who

was the investigating officer from the time of the incident to 00:10

hours on the next day.  Remarkably, this investigating officer changed

the registration of the offence of murder under Section 302 to Section

304  of  the  IPC.   Since  Section  304  became  a  lesser  offence,  the

investigation  was  transferred  to  a  sub-inspector  by  the  name  of

Sriniwas Pande (P.W. 5) who was the investigating officer from 00:10

hours on 02.01.2005 to 18:00 hours on 09.01.2005.  On receiving a

complaint by the accused that the investigation was not being done

8

Page 9

properly, the police transferred the investigation back to an inspector

of the Police; one R.K. Singh (P.W.7) who took over on 09.01.2005 and

investigated the matter till the charge-sheet was filed on 19.01.2005.

This is possibly why P.W. 2 was not interrogated for a long time.  It

appears that the new investigating officer took time to follow up on the

leads, interrogate P.W. 2 and record his statement.  

9. In these circumstances, we do not consider the delay to cause

such suspicion as to warrant the complete rejection of the testimony of

P.W. 2.   The testimony of P.W. 2 completely corroborates the version

of P.W. 1 in all material details of the incident. We are not inclined to

reject this testimony on the ground that his statement was recorded

after 30 days particularly since there was a change of investigating

officers.

We thus find that the evidence of the P.W. 2 corroborates the

evidence of P.W. 1. The testimony is credible and it proves that the

accused shot the deceased as alleged by the prosecution.

Ante-timed FIR

10. The  FIR  was  lodged  on  01.01.2005  at  23:05  hours.  P.W.  1

narrated  the  incident  of  collision  with  Bahadur  even  though  he

admitted  in  his  cross-examination  that  he  had  no  opportunity  to

discuss the cause of the incident with Bahadur. It was submitted on

9

Page 10

behalf  of  the  respondent  that  the  FIR  was  ante-timed.  It  was

contended by the learned counsel for the respondent that the FIR is

not in the handwriting of the informant, nor dictated by him. Girijesh

Rai who wrote the FIR was not examined by the Court.  

11. It is not possible to accept the criticism that P.W. 1 was not told

by Bahadur about the quarrel but it is mentioned in the FIR. A closer

look at the cross examination of P.W. 1 shows that the waiter did not

tell him the cause of the quarrel. There is also no requirement that the

FIR  must  be  in  the  handwriting  of  the  informant.  Neither  is  it

necessary to doubt the FIR because Girjesh Rai was not examined. The

FIR has been otherwise proved in the evidence of the Police Officer

(P.W. 7) who states that Himanshu Mohan Rai and Girjesh Rai came

with a written report and he wrote the chik recorded as GD 1/005 on

the FIR. This is supported by the deposition of P.W. 1 who referred to

the handwriting of Girjesh Rai and his signatures and identified it on  

the Tehrir.

12. It cannot be inferred from any of the above circumstances that

the FIR was ante-timed. Nor is it possible to disbelieve the timing of

the FIR because the Police Constable went to the scene of crime and

seized a shirt before the registration of the FIR at 23:05 hours i.e. at

22:00  hours.  In  fact,  the  police  inspector  (P.W.  6)  stated  in  his

10

Page 11

evidence that he seized the shirt “around 10 in the night” and that he

does not remember the exact time.  

Ballistic Report does not confirm that the shots were fired from

the recovered weapon

13. P.W.  6  made  recovery  of  three  khokha  kartoos  0.32  bore   

in  the  presence  of  Bahadur  and  Krishna  Kumar  Singh.  Evidently,   

there is no positive report from the ballistic expert and the report   

does not  confirm that  the  shots  were  fired from the weapon that   

was recovered.  

14. Apparently the police recovered a licensed gun from the accused

Imran Afreen while he was boarding a train and the ballistic report

showed that the licensed gun was not used for the killing. This means

that the Police did not recover the actual weapon used for the killing  

and the accused had ample time to dispose off  the weapon.  It  is

however  not  possible  to  reject  the  credible  ocular  evidence  of   

the  eyewitness  who  witnessed  the  shooting  and  who  are  found   

be truthful.

15. It is possible that the prosecution may not recover the actual

weapon  in  some  cases.  However,  this  cannot  have  the  effect  of

discrediting reliable ocular testimony as we have here that the accused

shot  and  killed  the  deceased,  particularly  when  the  lead  bullets   

11

Page 12

have been recovered and are found belonging to a commonly used   

7.65 m.m. caliber i.e. .32 bore weapon.

In  Anvaruddin  vs. Shakoor1, this Court considered the effect of

obscure  and  oscillating  evidence of  the  ballistic  expert.   The Court

observed that:

“10…..In this nebulous state of the evidence of the ballistic  expert  we are of  the view that the High Court  was  wholly  wrong  in  doubting  the  direct evidence of the three eye-witnesses on this ground. Where  the  expert  evidence  is  obscure  and oscillating,  it  is not proper to discredit the direct testimony of the eye-witnesses on such uncertain evidence. In such a situation unless the evidence of the  eye-witnesses  is  shaken  by  some  glaring infirmities,  it  would  not  be  proper  to  doubt  the correctness of their statements….”

In  the  case  of Brijpal  Singh  vs. State  of  M.P.2, this  Court

observed that there was reliable ocular evidence of the accused having

shot  the  deceased.  However,  the  ballistic  expert  as  in  this  case

reported  that  though  both  the  guns  were  found  to  have  been

discharged recently, the empty cartridges that were seized from the

spot did not match the rifle that was recovered.  This Court observed

that normally, if  the eyewitness’s evidence is  absolutely acceptable,

then  such  evidence  could  be  accepted  even  if  there  is  some

contradiction  in  the  medical  or  ballistics  reports.  However, the  oral

evidence was not found acceptable in this case. In contrast, we find

the oral evidence in the present case, particularly that of P.W. 1, to be 1 (1990) 3 SCC 266 2 (2003) 11 SCC 219 : (2004) SCC (Cri) 90

12

Page 13

completely acceptable and truthful.  There is no iota of evidence on

record which would suggest any motive on his part to falsely implicate

the accused. We might add that there is no evidence as argued by the

learned counsel for the respondent, that the police conspired to frame

the accused who was a congress leader  and had protested against

police high handedness.

16. In a different context, this Court in  Gangabhavani  vs. Rayapati

Venkat Reddy and Ors3., observed that in case there is a contradiction

between medical evidence and ocular evidence, the law is that though

the ocular testimony of the eye witness has greater evidentiary value

vis-à-vis  medical  evidence, where the medical  evidence goes so far

that it completely rules out all the possibility of the ocular evidence

being true,  the ocular evidence may be disbelieved.  In the present

case, the expert evidence to the effect that the empty cartridges which

were  found on  the spot  were  not  fired  from the weapon that  was

recovered,  does  not  really  create  a  contradiction  with  the  ocular

evidence of P.W. 1 that the accused fired at the deceased with a gun

and killed him.  It so happens that the gun recovered by the police,

turns  out  to  be  the  gun  that  was  not  used.  This  creates   

no  contradiction  between  the  evidence  of  P.W. 1  and  the  ballistics

report  though  broadly  it  may  amount  to  a  contradiction  in  the

prosecution case.  3 (2014) 1 ACR 147

13

Page 14

17. In this case, the ballistics report need not be rejected as untrue;

it simply states that the empty cartridges found at the scene of the

crime were not fired from the gun recovered from the accused. But

this had no bearing on the credibility of the deposition of P.W. 1 that

the  accused  shot  the  deceased  with  a  gun,  particularly  as  it   

is corroborated by the bullets in the body.  In this case we find it   

safe to accept the evidence of Himanshu Mohan Rai and disregard   

the apparent contradictions. We might add that the fact that accused

shot the deceased with a gun is also corroborated by the testimony  

of P.W. 2.

18. It  is  not  possible  for  us  to  accept  the  reasoning  of  the   

High Court on the basis of the minor doubts and technicalities that   

the judgment of the Sessions Court  convicting and sentencing the   

accused for the murder of Lalit Mohan Rai has no legs to stand on.   

The  judgment  of  the  Sessions  Court  which  had  the  advantage  of

watching the demeanor of the witnesses could not have been lightly

set aside.  

19. In such cases where the evidence of the eye witness has been

found to be truthful and as in this case corroborated by the fact that

the bullets were recovered from the body of the deceased, it is obvious

that cannot have the effect of an acquittal.

14

Page 15

20. This  Court  has  held  that  an  acquittal  may  undoubtedly  be

interfered with in certain circumstances.  In Shivaji Sahabrao Bobade

vs. State of Maharashtra4, this Court held that:  

“6……The dangers of exaggerated devotion to the rule  of  benefit  of  doubt at  the expense of  social defence  and  to  the  soothing  sentiment  that  all acquittals are always good regardless of justice to the  victim  and  the  community,  demand  especial emphasis in the contemporary context of escalating crime  and  escape.  The judicial  instrument  has  a public  accountability.  The  cherished  principles  or golden  thread  of  proof  beyond  reasonable  doubt which runs through the web of our law should not be  stretched  morbidly  to  embrace  every  hunch, hesitancy  and  degree  of  doubt.  The  excessive solicitude reflected in the attitude that a thousand guilty men may go but one innocent martyr shall not  suffer  is  a  false  dilemma.  Only  reasonable doubts  belong  to  the  accused.  Otherwise  any practical  systems of  justice  will  then break down and lose credibility with the community. The evil of acquitting  a  guilty  person  light  heartedly  as  a learned Author has sapiently observed, goes much beyond the simple fact that just one guilty person has  gone  unpunished.  If  unmerited  acquittals become  general,  they  tend  to  lead  to  a  cynical disregard of  the law, and this  in turn leads to a public  demand  for  harsher  legal  presumptions against  indicted  “persons”  and  more  severe punishment of  those who are found guilty. Thus, too frequent acquittals of the guilty may lead to a ferocious penal law, eventually eroding the judicial protection of the guiltless. For all these reasons it is true  to  say,  with  Viscount  Simon,  that  “a miscarriage of justice may arise from the acquittal of the guilty no less than from the conviction of the innocent  …”  In  short,  our  jurisprudential enthusiasm  for  presumed  innocence  must  be moderated by the pragmatic need to make criminal justice potent and realistic.  A balance has to be   

4 (1973) 2 SCC 793

15

Page 16

struck between chasing chance possibilities as good enough to set the delinquent free and chopping the logic of preponderant probability to punish marginal innocents…...“

In the case of State of U.P.  vs. Anil Singh5, the Court held as

follows:  

“17.  It  is  also  our  experience  that  invariably   the witnesses add embroidery to prosecution story, perhaps for the fear of being disbelieved. But that is no ground to throw the case overboard, if true, in the main. If there is a ring of truth in the main, the  case  should  not  be rejected.  It  is  the  duty   of the court to cull out the nuggets of truth from the evidence unless there is reason to believe that the  inconsistencies  or  falsehood  are  so  glaring   as utterly to destroy confidence in the witnesses.   It  is  necessary to remember that  a Judge does   not  preside  over  a  criminal  trial  merely  to  see   that  no  innocent  man  is  punished.  A  Judge   also  presides  to  see  that  a  guilty  man  does   not  escape.  One  is  as  important  as  the  other.   Both  are  public  duties  which  the  Judge  has   to perform.”

21. We find that the facts and circumstances of this case warrant

an interference with the acquittal of the accused. Accordingly, Criminal

Appeal  No.827  of  2011  and  Criminal  Appeal  No.829  of  2011   

are  allowed.  The  judgment  dated  22.04.2010  passed  in  Criminal

Appeal  No.8239  of  2008  by  the  High  Court  is  set  aside.    

The respondent accused  - Imran Afreen is convicted under Section   

302   IPC  and   is  hereby  sentenced  to  undergo  life  imprisonment.

5 (1988) Supp SCC 686

16

Page 17

Accordingly, respondent No.2 - Imran Afreen is directed to surrender

before  the  competent  authority  within  a  period  of  two weeks  from

today to undergo the remaining sentence.

………………………………..J. [S.A. BOBDE]

………………………………..J. [L. NAGESWARA RAO]

New Delhi March 07, 2017

17