MAHAVIR SINGHversusSTATE OF MADHYA PRADESH

                             [2016) 8 S.C.R. 394


A                           MAHAVIR SINGH
                                      v.
                      STATE OF MADHYA PRADESH
                     (Criminal Appeal No. 1141 of2007)
B                           NOVEMBER 09, 2016
                  [A.K. SIKRI AND N.V. RAMANA, JJ.)
         Penal Code, 1860 - s. 302 - Appellant-accused alongwith
  other co-accused charged u/ss. 302, 147, 1./8 and 149 !PC - Trial
  court acquitted all the accused in view of contradictory statements
c of  PWs, conflict befll'een ocular and medical evidence, delay in
  recording statements of witnesses, non-availability of proper site
  plan and absence of authenticated ballistic expert report - High
  Court partly allowing the appeal of the State convicted the appe/lant-
  accused uls. 302 - On appeal, held: In the facts of the case there
D was no .compelling and substantial reason for the High court to
  interfere with the order of acqui1tal, as the prosecution miserably
  failed to establish the guilt of the accused beyond doubt - Mere
  sei::ure of gun and cartridges, enmity between the parties, and
  altercation and exchange of heated words between the rival groups
  cannot establish the guilt beyond reasonable doubt - Appellant-
E
  accused is acquitted.
           Criminal trial - Contradict01y statements - Held: It is natural
    for human beings to state variant statements due to time gap - But
    if the stalements go to defeat !he case of the prosecution, such
    contradictions are material and the court has to be mindful of such
F
    statements.
          Evidence - Ocular evidence vis-a-vis medical evidence -
    Ocular testimony has greater evidentimy value vis-a-vis medical
    evidence - But when medical evidence makes the oral testimony
    improbable, ocular evidenc_e may be disbelieved.
G
    Witnesses:
          Interested witness - Evidentiary value - The evidence of
    interested witness needs to be scrutinized with utmost care - It can
    only be relied upon, if the evidence has ring of truth to it, is cogent,
H
                                    394
     MAHAVIR SINGH v. STATE OF MADHYA PRADESH                            395


credible and trustworthy - A contradicted testimony of an interested     A
witness cannot be usually treated as conclusive.
      Chance Witness - Evidentimy value - Though evidence of
chance witness is qcceptable. yet such witness has to reasonably
explain his presence at 1he place of occurrenc:e.
      Appeal -Appeal against acquiual - Held: There are no fetters       B
011 the powers of' appellate court to revieH'. re-appreciale and
reconsider the evidence. on facts as ivell as /all' - But the court is
required lo be cautious in interfering with m1 appeal unless there
are compelling and substanlial grounds to inte1fere ll'ith the order
of acquittal.                                                             c
      Investigation - Investigating office1~ dealing ll'ith a murder
case. is expected to be diligent. truthfitl and fair in his approach -
His pe1for111a11ce should always be in conformity with the police
manual -A default and breach of duty may prove fatal to prosecution
case.                                                                     D
      Allowing the appeal, the Court
       HELD: 1.1 In the criminal .inrisprudence, an accused is
presumed to be innocent till he is convicted by a competent court
after a full-fledged trial, and once the trial court by cogent
reasoning acquits the accused, then the reaffirmation of his              E
innocence places more burden on the appellate court while dealing
with the appeal. No doubt, it is settled law that there are no
fetters on the power of the appellate court to review, reappreciate
and reconsider the evidence both on facts and law upon which
the order of acquittal is passed. But the court has to be very
                                                                          F
cautious in interfering with an appeal unless there are compelling
and substantial grounds to interfere with the order of acquittal.
The appellate court while passing an order has to give clear
reasoning for such a conclusion. It is no doubt true that there
cannot be any strait jacket formula as to under what circumstances
appellate court can interfere with the order of acquittal, but the        G
same depends on facts and circumstances of each case. [Paras
12,_ p 1[403-E.-Hl
     1.2 In the present case, from the same set of facts, the trial
court as well as the High Court have arrived at different
                                                                          H
396            SUPREME COURT REPORTS                       [2016] 8 S.C.R.


A     conclusions, such an exercise cannot be undertaken by the High
      Court in an appeal unless the conclusion drawn by the trial court
      cannot be sustained based on the facts and circumstances and
      when two conclusions are possible based on the evidence available
      on record, the appellate court should be all the more reluctant to
      interfere with the findings recorded by the trial court. [Para
 B
      15)[404-F-G]
            2. Both the courts below formed a common opinion that
      the prosecution has failed to prove the charges under Sections
      148 and 302/149 of IPC against the co-accused and discharged
      them from those charges. The disagreement between the trial
 c    court and the High Court is only in respect of the charge under
      Section 302, IPC against the appellant. The difference of opinion
      between the courts below in deciding whether or not the appellant
      has committed the offence with which he is charged, mainly
      revolves around the presence of alleged direct eyewitnesses at
D     the spot, possibility of appellant's inflicting firearm injury to the
      deceased in view of the positioning of the injury sustained by the
      deceased, the material infirmity, if any, and contradiction in the
      ocular and medical evidencc.[Paras 16, 23)[404-H; 405-A-B; 407-
      G-H; 408-A]

 E           3. Though, at the outset, the accused/appellant absolutely
      rejected the allegation and pleaded not guilty by taking the
      defence of alibi that on the date of incident, he was irrigating his
      field, but his claim has not been supported by any evidence. [Para
      16)(405-B)
 F      4. The parties arc admittedly in hostile terms and the
  incident in question occurred in a broad day light at the residence
  of the deceased. The prosecution, in support of its version, has
  heavily relied upon the statements of eyewitnesses PW 7, PW 8,
  PW 9 and PW 11. The trial Judge disbelieved the presence of
  eyewitnesses on the spot in view of delayed recording of their
G statements by the Investigating Officer and also they remained
  unsuccessful in revealing exactly as to where the bullet had struck
  the deceased. Nowhere in the First Information Report, the name
  or presence of eyewitness PW 8 was mentioned as a witness to
  the incident. [Para 17)1405-D-FJ
H
     MAHAVIR SINGH v. STATE OF MADHYA PRADESH                         397


      5. The High Court has attached a lot of weight to the A
evidence of PW 9, who has admitted that he has been a witness
in another case against the accused for the deceased. Thus PW 9
has been acting as a pocket witness for the family. Further, the
credibility of this independent witness can be challenged on the
fact that the commotion was only heard by PW9, whereas the
                                                                    8
rest of the members of the locality did not come for help. This
admission by PW 9 not only forces the Court to doubt the veracity
of his own deposition but also has created doubts on the version
of PW 7. As PW 9 is a chance witness as well as an interested
witness, causes suspicion and does not inspire confidence. The
evidence of interested witness needs to be scrutinized with c
utmost care. It can only be relied upon if the evidence has a ring
of truth to it, is cogent, credible and trustworthy. A contradicted
testimony of an interested witness cannot be usually treated as
conclusive. It is to be seen that although the evidence of a chance
witness is acceptable in India, yet the chance witness has to
                                                                    D
 reasonably explain the presence at that particular point more so
when his deposition is being assailed as being tainted. [Paras 18,
191(405-F-H; 406-A-C]
      6. The evidence of PW 12 reveals that when the deceased
sustained bullet injury, he might have been in a standing position
and the bullet would have entered from left side and exited from       E
right side of the body. This fact, however, is corroborated with
the evidences of PW 7 and PW 8, but the statements of PW 9 and
PW 11 do not support it. Similarly, there were contradictions
between the statements of PW 12 and that of the eyewitnesses
as to the distance and height of the assaulter while inflicting the    F
grievous injury to the deceased and whether the deceased was
standing on the platform (Clwbutara) or came down from it, while
receiving the bullet injury. PW 12 was not clear and definite to
say exactly from what position and distance the assaulter could
have fired the gun. [Para 20](406-D-F]
                                                                       G
      7. One gun, 12 live and 9 empty cartridges were recovered
from the appellant. The prosecution's story is somewhat
strengthened by the ballistic expert's report. But nowhere it was
mentioned that the death of the victim occurred by the bullet
released from the seized gun. Merely the seizure of gun and
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398            SUPREME COURT REPORTS                       [2016] 8 S.C.R.



A     cartridges from the appellant, the ongoing enmity between the
      parties on account of various criminal litigations and the altercation
      and exchange of heated words between the rival groups on the
      morning of the same day, cannot establish the guilt of accused
      beyond reasonable doubt. !Para 21][406-G-H; 407-A-B)
 B          8. Though the ocular testimony of a witness has greater
      evidentiary value vis-a-vis medical evidence, when medical
      evidence makes the ocular testimony inq>robable, that becomes
      a relevant factor in the process of the evaluation of evidence.
      However, where the medical evidence goes far that it completely
      rules out all possibility of the ocular evidence being true, the
 c    ocular evidence may be disbelieved. [Para 22)(407-C-D)
            Abdul Sayeed v. State of M.P. 2010 (13) SCR 311 :
            (2010) 10 sec 259 - relied on.
         9. It is the duty of the Apex Court to separate chaff from
 D the  husk  and to dredge the truth from the pandemonium of
   Statements. It is but natural for human beings to state variant
   statements due to time gap but if such statements go to defeat
   the core of the prosecution then such contradictions are material
   and the Court has to be mindful of such statements. In the present
   matter, there are material exaggerations and contradictions, which
 E inevitably raises doubt which is reasonable in normal
   circumstances. [Para 2411408-B-C]
            Tahsildhar Singh v. State of Ul~ AIR 1959 SC 1012 i
            1959 Suppl. SCR 875; Pudhu Raja v. State 2012 (8)
            SCR 740; (2012) 11 SCC 196: State of U.P. v. Naresh
 F          (2011) 4 sec 324 - relied on.
         10. The Investigating Ol'licer, dealing with a murder case,
   is expected to be diligent, truthful and fair in his approach and
   his performance should always be in conformity with the police
   manual and a default or breach of duty may prove fatal to the
 G prosecution's case. In the present case, the investigation was
   carried out with unconcerned and uninspiring performance. There
   was no firm and sincere effort with the needed zeal and spirit to
   bring home the guilt of the accused. [Para 26][408-F-G)
            11. There are. no compelling and substantial reasons for
 H
     MAHAVIR SINGH v. STATE OF MADHYA PRADESH                              399


the High Court to interfere with the order of acquittal when the A
prosecution has miserably failed to establish the guilt of the
accused. The accused has also already undergone nine years' of
imprisonment and therefore it is a fit case inviting interference
by this Court. (Para 26)(408-H; 409-A]
                       Case Law Reference                                  B
20l0 (13) SCR 311                relied on               Para 22
1959 Suppl. SCR 875             relied on                Para 24
2012 (8) SCR 740                 relied on               Para 24
2011 (15) SCR 34                 relied on               Para 24
                                                                           c
      CRIMINALAPPELLATE JURISDICTION: Criminal Appeal No.
1141 of2007.
     From the Judgment and Order dated 19.03.2007 qfthe High Court
ofM. P. at Gwalior in Government Appeal No. 36/96.
       Anurag Dubey, Ms. Anu Sawhney, Ms. Meenakshi P, S. R.                D
Setia. Advs. for the Appellant.
       C. D. Singh, Ms. Sakshi Kakkar, D. S. Parmar, Sandeepan, Advs.
for the Respondent.
      The Judgment of the Court was delivered by
      N.V. RAMANA, J. I. This appeal arises out of the judgment
                                                                            E
and or<ler dated I 91hMarch, 2007 passed by the High Court of Madhya
Pradesh, Bench at Gwalior in Criminal Appeal No. 36of1996 whereby
the High Court has partly allowed the appeal preferred by the State by
confirming the judgment of the Trial Court forthe offence under Section
148 of IPC and convicted the appellant herein for the offence under         F
Section 302, IPC and sentenced him to undergo imprisonment for life.
      2. The brief facts of the case as culled out from the case of the
prosecution are that on 26'h December, 1987 at about I p.111. while
Gambhir Singh (PW 7) (brother of the deceased) was having lunch at
his home, the appellant along with a group of co-accused persons, each      G
armed with deadly weapons rushed to his house hurling abusive filthy
words and picked up a quarrel with his brother Jagannath Singh
(deceased) who was sitting outside on a platform (Chabutara) along
with his nephew Bir Singh (PW 11 ). When Jagannath Singh (deceased)
raised objection to their behavior, the appellant fired a gunshot in the
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400            SUPREME COURT REPORTS                           [2016) 8 S.C.R.



A     abdomen of the deceased as a result of which he fell down on the ground
      and succumbed to the injuries.
             3. Gambhir Singh (P.W. 7) carried the body of the deceased to the
      police station, Lahar on a bullock cart and lodged the FIR (Annexure P-
      l) at 4.15 PM on the same day. Dilip Singh Yadav (PW-13) prepared
 B    inquest memo and Dr. A. K. Upadhyay (P.W. 12) conducted autopsy on
      the dead body. On the next day, Di lip Singh Yadav (PW 13) seized blood
      stained soil and plain soil from the place of occurrence, as per seizure
      memo. He also seized a gun, 12 live cartridges and 9 empty cartridges
      from the possession of appellant Mahavir Singh, an axe from Sobaran
      (co-accused) and a lathi from Kanched Singh (another co-accused) as
 c    per seizure memo and sent them to the Forensic Science Laboratory at
      Sagar. Consequently, statements of witnesses were recorded under
      section 161 of Cr.P.C., spot map was prepared and Charge-sheet was
      filed against the appellant under sections 302, 147, 148 and 149 of the
      IPC in the Court of Judicial Magistrate First Class, Lahar who committed
 D    the case to Court of Sessions for Trial. The Trial Court framed charges
      u/s 302 and 148 of IPC against the appellant and under sections 148,
      302/149 of IPC against co-accused. All the accused pleaded not guilty
      and claimed to be tried. To prove the guilt of the accused, the prosecution
      has examined 13 witnesses and marked several Exhibits while the accused
      examined none in defence and no exhibits were marked on his behalf.
 E
             4. The Trial Court by its judgment and order dated 30•h November,
      1994 acquitted the appellant from the alleged offences mainly on the
      ground that there are contradictions in the evidence of eyewitnesses to
      that of medical evidence, prosecution has failed to prove beyond
      reasonable doubt formation of unlawful assembly with a motive of
 F    committing murder of the deceased and also failed to establish that the
      bullet had been fired with the firearm seized from the appellant.
             5. Dissatisfied with the Judgment of the Trial Court, the State
      preferred an appeal before the High Court claiming that the judgment of
      the Trial Court is perverse and illegal inasmuch as it did not appreciate
 G    the prosecution evidence in right perspective and ignored the evidence
      of the eyewitnesses. The High Court, on a reanalysis of evidence of
      prosecution witnesses and other material available on record came to
      the conclusion that the Trial Court was right in acquitting the other co-
      accused persons but found fault with the acquittal of the appellant under
 H    Section 302 IPC. The High Court, therefore, partly al_lowed the appeal
      MAHAVIR SINGH v. STATE OF MADHYA PRADESH                                   401
                  [N.V. RAMANA, J.]

by confirming the judgment of the Trial Court in respect of the charge           A
under Section 148 and convicted the appellant herein for the offence
under Section 302, IPC and sentenced him to undergo imprisonment for
life. Aggrieved by the Judgment of the High Court, the appellant
approached this Court in appeal.
        6. Learned counsel forthe appellant submitted that the Trial Court        B
rightly acquitted the appellant, after elaborately considering the evidence
on record, upon coming to the conclusion that there is lack of credibility
in the testimony of the prosecution witnesses, and, in particular, the medical
and ocular testimonies are conflicting; there was considerable delay on
the part of Investigating Officer in recording the evidences of alleged
eyewitnesses inasmuch as statements by none of the eyewitnesses were              c
recorded on the day of occurrence of the incident.
       7. In the background of this factual matrix, learned counsel for
               •
the appellant has advanced his arguments that since the appellant and
victim parties have prior enmity over some pending criminal cases, the
family members of the deceased, i.e., Gambhir Singh (PW 7), Shanti D
Devi (PW 8), Bir Singh (PW 11) in connivance and with the help of a
pocket witness Madho Singh (PW 9) concocted the story, by projecting
himself as an eyewitness, and falsely implicated the appellant. According
to him, this fact is clearly established with the contradictions in the medical
evidence and the unreliable evidence of the alleged interested eyewitness. E
The presence of Gambhir Singh (PW 7), at the time of occurrence, as
heavily relied upon by the prosecution, proves to be false in the light of
evidence of Bir Singh (PW 11) who nowhere in his testimony mentioned
that Gambhir Singh (PW 7) alone came out of the house and witnessed
the incident and Madho Singh (PW 9) claimed that soon after the shooting,
Gambhir Singh (PW 7), Bir Singh (PW 11) and Shanti Devi (PW 8) F
came out of the house and therefore the accused fled away from the
spot. It is also contended that the alleged eyewitnesses Gambhir Singh
(PW 7), Bir Singh (PW 11) and Shanti Devi (PW 8) made material
improvements in their testimonies before the Court in order to connect
the case of prosecution with the medical report. Thus, the presence of G
the eyewitnesses at the place of occurrence is doubtfu I.
       8. Learned counsel further urged that as per the site plan prepared
by the Investigation Officer and also as per the medical evidence, the
deceased Jagannath Singh was standing when he was shot. According
to the medical report, the injuries sustained by the deceased are possible        H
402            SUPREME COURT REPORTS                           [2016] 8 S.C.R.



A  only when the assaulter stands at a height above the victim. Contrary to
   this, the case advanced by the prosecution, coupled with the evidence of
   alleged eyewitness, is that the appellant was standing on a lower level
   and the deceased was standing on a higher level i.e. on the platform. In
   his statement Madho Singh (PW 9) categorically mentioned that the
   deceased was sitting on the platform (Chabutara) and the appellant
 B
   was standing on the ground, when he was shot. While the medical report
   indicated that the margins of the wounds were inverted and the bullet
   must have been fired from a distance of within 6 feet, and as per the
   testimonies of the direct eyewitnesses, the said distance varied between
   12 to 22.5 feet. The absence of human blood at the alleged place of
 c incident i.e. on the platform and presence of blood on the ·ground in front
   of the platform further renders the prosecution's case even more doubtful.
   This blood also could not be matched with that of the deceased and
   therefore, recovery of weapons is ofno relevance. Simply (or the reason
   that the post-mortem report indicated that the deceased had died due to
   one single gunshot, and mere recovery of nine empty cartridges from
 D
   the appellant does not in any way connect him with the crime, when the
   empty cartridges were not recovered from the place of incident and also
   in the absence of authenticated proof that the bullet shot at the deceased
   was fired from the gun owned by the appellant. Learned counsel thus
   submits that the statements of eyewitness are not trustworthy.
 E Considering the facts in their entirety, such as delayed recording of
   statements of the eyewitnesses and an unsuccessful attempt to reveal
   as to where the bullet had struck the victim and the unmatched statements
    by prosecution witnesses with that of the medical expert, the learned
   Trial Court was pleased to record the order of acquittal of the appellant.

 F           9. The learned counsel finally submitted that the High Court, on
      the other hand, failed to appreciate the evidence in true legal perspective
      and wrongly interfered with the well reasoned judgment of acquittal
      passed by the Trial Court based on a cogent and detailed reasoning and
      that the High Court committed a grave error by convicting the accused
      forthe offence under Section 302 !PC. The impugned judgment is contrary
 G    to the settled legal principles as it did not give due weightage to the
      medical evidence and rejected the same without ascribing any reason.
      Thus, interference by the High Court with the reasoned judgment of
      acquittal passed by the Trial Court is unwarranted. Learned counsel
      submits that in the light of settled legal principles, the conviction of the
 H
      MAHAVIR SINGH v. STATE OF MADHYA PRADESH                             403
                  [N.V. RAMANA, J.]

appellant by the High Court is vague and uncalled for and the same A
requires to be set aside by this Court.
       I 0. On the other hand, learned counsel appearing for the State,
argued that the judgment of the Trial Court acquitting the appellant was
wholly erroneous as it was passed without taking into account the
prosecution evidence in its right perspective. There was no inconsistency B
in the evidence of eyewitnesses who were very much present at the
scene of offence and the Trial Court was not justified in ignoring their
evidences. The High Court, after re~appreciating the entire evidence on
record, took a justifiable stand in convicting the accused under Section
302 of the IPC by a well reasoned judgment and that there is no illegality
or perversity in the conviction of the accused calling interference by this c
Court.
       11. We have heard the learned counsel on either side at length
and perused the material available on record. Now it is imperative to
look into the scope of interference by the appellate Court in an appeal
against acquittal and whether the High Court was justified in convicting    D
the accused under Section 302, IPC by reversing the order of acquittal
passed by the Trial Court.
        12. In the criminal jurisprudence, an accused is presumed to be
innocent till he is convicted by a competent Court after a full-fledged
trial, and once the Trial Court by cogent reasoning acquits the accused, E
then the reaffirmation of his innocence places more burden on the
appellate Court while dealing with the appeal. No doubt, it is settled law
that there are no fetters on the power of the appellate Com1 to review,
reappreciate and reconsider the evidence both on facts and law upon
which the order of acquittal is passed. But the court has to be very
cautious in interfering with an appeal unless there are compelling and F
substantial grounds to interfere with the order of acquittal. The appellate
Court while passing an order has to give clear reasoning for such a
conclusion.
        13. It is no doubt true that there cannot be any straitjacket formula
as to under what circumstances appellate Court can interfere with the G
order of acquittal, but the same depends on facts and circumstances of
each case. In the case on hand, we have to examine the rationale behind
the conclusion of the High Court in convicting the accused and the
compelling reasons to deviate from the order of acquittal passed by the
Trial Court.
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404             SUPREME COURT REPORTS                           [2016] 8 S.C.R.


A          14. On a thorough analysis of the judgment impugned, it is evident
   that the High Court has not recorded any reasons for partly setting aside
   the judgment of the Trial Court which has acquitted all the accused
   persons from the same set of facts before it. The High Court which has
   set aside the acquittal order of the Trial Court has observed that the Trial
   Court has based its reasoning on guess work. We find it that even the
 B
   High Cou11 has committed the same mistake and basing on the same
   facts and guess work has arrived at the conclusion that the appellant is
   guilty.
              15. It is specifically urged by the learned counsel for the appellant
      that as per the medical evidence, the injuries sustained by the deceased
 c    are possible only when the assaulter stands at a height above the victim.
      In this process, the court has guessed that Mahavir Singh (accused-
      appellant) and Jagannath (deceased) were of similar height which is
      nobody's case and no evidence is available on record to come to a
      conclusion that the height of the two is same. The evidence available on
 D    record in this regard is a statement of Dr. A.K. Upadhyay (PW 12) that
      the deceased was of average Height. Now in order to establish that the
      bullet traveled in a downward direction, they have explained that the
      position of the gun usually kept in a downward position resting on the
      chest. Now the logical fallacy is to have assumed the height of the platform
      whose height has not been recorded due to sloppy investigation by the
 E    Investigating Officers. There exists a reasonable doubt because of the
      fact that the height of the platform was not recorded and the same
      cannot be guessed at this point of time. Fu11hcr, the deposition of the
      Doctor is very clear that the shooter might have been at a lower level.
      While some of the witnesses have suggested that the deceased was on
 F    the ground while others have pointed out to the fact that he was standing
      on the platform. Therefore, from the same set of facts, the Trial Court
      as well as the High Court have arrived at different conclusions, such an
      exercise cannot be undertaken by the High Couii in an Appeal unless
      the conclusion drawn by the Trial Court cannot be sustained based on
      the facts and circumstances and when two conclusions are possible
 G    based on the evidence available on record, the appellate court should be
      all the more reluctant to interfere with the findings recorded by the Trial
      Court.
            16. It appears to us that the difference of opinion between the
      Courts below in deciding whether or not the appellant has committed the
 H
      MAHAVIR SINGH v. STATE OF MADHYA PRADESH                                  405
                             ~

                  [N.V. RAMANA, J.]

offence with which he is charged, mainly revolves around the presence           A
of alleged direct eyewitnesses at the spot, possibility of appellant's
inflicting firearm injury to the deceased in view of the positioning of the
injury sustained by the deceased, the material infirmity, if any, and
contradiction in the ocular and medical evidence. It is, however, clear
that though, at the outset, the accused/appellant absolutely rejected the       B
allegation and pleaded not guilty by taking the defence of alibi that, on
the date of incident, he was irrigating his field, but his claim has not been
supported by any evidence.
       17. Undoubtedly, Gambhir Singh (PW 7-brother of the deceased)
has accepted that certain criminal proceedings were pending between C
the accused and his family members. He also admits that one case had
already been filed by the accused prior to the incident. Admittedly, Shanti
Devi (PW 8-wife of the deceased) also has deposed that there was an
altercation between her son Yijender and Dhullu, on which they killed
her husband. Thus, the parties are admittedly in hostile terms and the
incident in question occurred in a broad day light at the residence of the D
deceased by doing away his precious life. The prosecution, in support of
its version, has heavily relied upon the statements of eyewitnesses
Gambhir Singh (PW 7-complainant and also brother of the deceased),
Shanti Devi (PW 8-wife of the deceased), Madho Singh (PW 9) and Bir
Singh (PW I I-nephew of the deceased). The learned Trial Judge
disbelieved the presence of eyewitnesses on the spot in view of delayed E
recording of their statements by the Investigating Officer (PW 13) and
also they remained unsuccessful in revealing exactly as to where the
bullet had struck the deceased. We also find that nowhere in the First
Information Report, the name or presence of eyewitness Shanti Devi
(PW 8) was mentioned as a witness to the incident.                          F
       18. The High Court has attached a lot of weight to the evidence
of the said Madho Singh (PW 9) as he is an independent witness. On
perusal of the record, it appears that the said person already had deposed
for the victim family on a number of previous occasions, that too against
the same accused. This being the fact, it is important to analyze the            G
jurisprudence on interested witness. It is a settled principle that the
evidence of interested witness needs to be scrutinized with utmost care.
It can only be relied upon if the evidence has a ring of truth to it, is
cogent, credible and trustworthy. Here we may refer to chance witness
also. It is to be seen that although the evidence of a chance witness is
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406             SUPREME COURT REPORTS                           (2016) 8 S.C.R.


A     acceptable in India, yet the chance witness has to reasonably explain
      the presence at that particular point more so when his deposition is being
      assailed as being tainted.
             19. A contradicted testimony of an interested witness cannot be
      usually treated as conclusive. The said Madho Singh (PW 9) has admitted
 B    that he has been a witness in another case against the accused for the
      deceased. Here it is to be seen that the said Madho Singh (PW 9)
      has been acting as a pocket witness for the family. Further, the
      credibility of this independent witness can be challenged on the
      fact that the commotion was only heard by the said Madho Singh
      (PW 9) whereas the rest of the members of the locality did not
 c    come for help. As Madho Singh (PW 9) is a chance witness as well as
      an interested witness herein, causes suspicion and does not inspire
      confidence. This admission by Madho Singh (PW 9) not only forces us
      to doubt the veracity of his own deposition but also has created doubts
      on the version ofGambhir Singh (PW 7).
 D            20. We have thoroughly examined the evidence of expert witnesses
      as well as other ocular witnesses. The evidence of Dr. A.K. Upadhyay
      (PW 12) reveals that when the deceased sustained bullet injury, he might
      have been in a standing position and the bullet would have entered from
      left side and exited from right side of the body. This fact, however,
 E    corroborated with the evidences of PW 7 (Gambhir Singh) and PW 8
      (Shanti Devi), but the statements of PW 9 (Madho Singh) and PW 11
      (Bir Singh) do not support it. Similarly, there were contradictions between
      the statements of Dr. Upadhyay (PW 12) and that of the eyewitnesses
      as to the distance and height of the assaulter while inflicting the grievous
      injury to the deceased and whether the deceased was standing on the
 F    platform (Chabutara) or came down from it while receiving the bullet
      injury. We find from the statement of Dr. Upadhyay (l'W 12) that he
      was not clear and definite to say exactly from what position and distance
      the assaulter could have tired the gun.
             21. Going by the seizure memo (Ex.P/3) apparently one gun, 12
 G    live and 9 empty cartridges were recovered from the appellant. The
      evidences of eyewitnesses support this fact and no question was put to
      the 1.0. after the recovery of the gun and cartridges, that whether he
      himself shot from the seized gun to create evidence. The prosecution's
      story is somewhat strengthened by the ballistic expett's report (Ex. P/
 H
      MAHAVIR SINGH v. STATE OF MADHYA PRADESH                                 407
                  [N.V. RAMANA, J.]

12) which affirms that the gun seized from the appellant was in perfect        A
order, the empty cartridges bore the same impression on pin as seized
from the accused and the live cartridges were actually fired by the gun
seized from the appellant. But nowhere it was mentioned that the death
of the victim occurred by the bullet released from the seized gun. Merely
the seizure of gun and cartridges from the appellant, the ongoing enmity
                                                                               B
between the parties on account of various criminal litigations and the
altercation and exchange of heated words between the rival groups on
the morning of the same day, cannot establish the guilt of accused beyond
reasonable doubt.
       22. The position of law in cases where there is a contradiction
between medical evidence and ocular evidence can be crystallized to
                                                                               c
the effect that though the ocular testimony of a witness has greater
evidentiary value vis-a-vis medical evidence, when medical evidence
makes the ocular testimony improbable, that becomes a relevant factor
in the process of the evaluation of evidence. However, where the medical
evidence goes far that it completely rules out all possibility of the ocular    D
evidence being true, the ocular evidence may be disbelieved [See: Abdul
Sayeetl v . State of M.P., (2010) 10 SCC 259)
       23. In view of contradictory statements by the prosecution
witnesses coupled with the unmatched medical evidence, delay in
recording of statements of witnesses by the 1.0., non-availability of proper    E
site plan and in the absence of authenticated ballistic expert report that
the bullet had been fired with the seized gun of the appellant, the Trial
Comi had to decide the case against the prosecution and discharge the
appellant from the charges. The High Court, upon carrying the exercise
of reappreciation of evidence, formed the view that the reasons for delay
in recording the statements of witnesses have been properly explained;          F
that as soon as the bullet struck on the abdomen of the deceased, he
immediately fell down from the platform. It further observed that though
the name of Shanti Devi (PW 8) was not mentioned in the FIR, there is
positive evidence on record to establish her presence at the time of
incident along with other eyewitnesses and this fact has been established       G
by their corroborative statements and there is no reason to disbelieve
their statements. Here it is worthwhile to mention that both the Courts
below formed a common opinion that the prosecution has failed to prove
the charges under Sections 148 and 302/149 of !PC against the co-
accused and discharged them from those charges. The disagreement
                                                                                H
408            SUPREME COURT REPORTS                           [2016] 8 S.C.R.


A     between the Trial Court and the High Court is only in respect of the
      charge under Section 302, IPC against the appellant.
              24. It is the duty of the Apex Court to separate chaff from the
      husk and to dredge the truth from the pandemonium of Statements. It is
      but natural for human beings to state variant statements due to time gap
 B    but if such statements go to defeat the core of the prosecution then such
      contradictions are material and the Court has to be mindful of such
      statements [See : Ta/lsi/dltar Sing/I v. State of UP, AIR 1959 SC
      1012; P11d/1u Raja v. State, (2012) 11 SCC 196; State of UP vs.
      Naresh, (2011) 4 SCC 324]. The case in hand is a fit case, wherein
      there are material exaggerations and contradictions, which inevitably
 C    raises doubt which is reasonable in normal circumstances and keeping
      in view the substratum of the prosecution case, we cannot infer beyond
      reasonable doubt that the appellant caused the death of the deceased.
             25. Normally, when a culprit perpetrates a heinous crime of murder
      and takes away the life of a human being, if appropriate punishment is
 D    not awarded to that offender, the Court will be failing in its duty. Such
      crime, when indulged by a criminal blatantly, is not committed against an
      individual alone, but is committed against the society as well to which
      the criminal and victim are a part. It needs no emphasis from this Court
      that the punishment to be awarded for such a crime must be relevant
 E    and it should conform to and be consistent with the atrocity and brutality
      with which the crime has been carried out.
              26. Here in the instant case, no doubt, an innocent man has lost
      his life at the hands of another man, and looking at the way in which the
      investigation was handled, we are sure to observe that it was carried out
 F    in a lackluster manner. The approach of the Investigating Officer in
      recording the statements of witnesses, collecting the evidence and
      preparation of site map has remained unmindful. The Investigating
      Officer, dealing with a murder case, is expected to be diligent, truthful
      and fair in his approach and his performance should always be in
      conformity with the police manual and a default or breach of duty may
 G    prove fatal to the prosecution's case. We may hasten to add that in the
      present case the investigation was carried out with unconcerned and
      uninspiring performance. There was no firm and sincere effort with the
      needed zeal and spirit to bring home the guilt of the accused. We feel
      that there are no compelling and substantial reasons for the High Court
 H    to interfere with the order of acquittal when the prosecution has miserably
      MAHAVIR SINGH v. STATE OF MADHYA PRADESH                                409
                  [N.V. RAMANA, J.]

failed to establish the guilt of the accused. Added to this, the accused A
has already undergone nine years' of imprisonment and we feel that it is
a fit case inviting interference by this Court.
      27. Resultantly, the appeal is allowed and the judgment of conviction
and order of sentence passed by the High Court is set aside. Consequently,
the appellant shall be set at Iiberty forthwith if not required in any other B
case.

Kalpana K. Tripathy                                         Appeal allowed,