MRITUNJOY BISWASversusPRANAB @ KUTI BISWAS AND ANOTHER

                  [2013] 7 S.C.R. 1105


                   MRITUNJOY BISWAS                             A
                             v.
       PRANAB @ KUTI BISWAS AND ANOTHER
          (Criminal Appeal No. 378 of 2007)
                    AUGUST 08, 2013
                                                                B
   [K.S. RADHAKRISHNAN AND DIPAK MISRA, JJ.]

    Penal Code, 1860:
     s.302 - Murder caused by gun-shot - Conviction by trial
court - Acquittal by High Court - Held: Husband of deceased C
has clearly deposed to have seen the accused firing at his
wife -- Nephew of deceased (informant) has stood by his
earlier version -~ They are the most natural witnesses and
there is no reason that they would falsely implicate the
accused - Besides, in the instant case, abscondence of the D
accused gains significance - Non-examination of the treating
doctor at Primary Health Centre does not affect the
prosecution case -- When there is ample unimpeachable
ocular evidence and the same has been corroborated by
medical evidence, non-recovery of the weapon does not affect E
prosecution case - Judgment of acquittal passed by High
Court being wholly unsustainable, is set aside and conviction
recorded by trial court, restored - Investigation - Evidence.
    APPE~L:
                                                                F
      Criminal appeal - Power of appellate court - Held:
 Appellate court has full power to review at large all the
·evidence, and to reach the conclusion that upon the said
 evidence, the order of acquittal should be reversed.
      EVIDENCE:                                                 G
    Appreciation of evidence - Minor contradictions and
inconsistencies - High Court setting aside the conviction and
acquitting the ac.cused by referring_ to some discrepancies -
                            1105                                H
    1106   SUPREME COURT REPORTS                [2013] 7 S.C.R.


A Held: Every omission cannot take place of a material
  omission and, therefore, minor contradictions, inconsistencies
  or insignificant embellishments not affecting the core of the
  case, should not be taken to be a ground to reject the
  prosecution evidence - While appreciating the evidence of
B a witness, the approach must be as to whether the evidence
  of the witness read as a whole appears to have a ring of truth
  - High Court in its appreciation of evidence has laid undue
  emphasis on some contradictions which do not affect the
  prosecution case - It has read the evidence not as a whole
c but in utter fragmentation and appreciated the same in total
  out of context - Testimonies of prosecution witnesses are
  credible and there is no reason to treat their testimony as
  untrustworthy- Penal Code, 1860 - s.302.
        FIR:
D       Non-mentioning name of accused in FIR - Held:
    Evidence shows that accused was named at earliest
    opportunity - There is nothing on record to suggest that he
    was falsely implicated by way of an afterthought.
E      Respondent no. 1 was prosecuted on the allegation
  that on 20.4.2001, at about 8.25 p.m. he fired at the wife
  of PW-8, who succumbed to her injuries on the following
  day. The trial court convicted and sentenced him to life
  imprisonment u/s 302 IPC. However, on appeal, the High
F Court acquitted the accused giving him benefit of doubt.
  Aggrieved, the complainant filed the appeal.
        Allowing the appeal, the Court
       HELD: 1. The appellate court has full power to review
  at large all the evidence and to reach the conclusion that
G upon the said evidence, the order of acquittal should be
  reversed. [para 12] (1117-D-E]
      Jadunath Singh v. State of U.P. (1971) 3 SCC 577,
  Surajpal Singh v. State 1952 SCR 193 =1952 AIR 52; Sanwat
                                               =
H Singh v. State of Rajasthan 1961 SCR 120 1961 AIR 715;
 MRITUNJOY BISWAS v. PRANAB @ KUTI BISWAS 1107


Damodarprasad Chandrikaprasad v. State of Maharashtra A
1972 (2) SCR 622 = 1972 (1) SCC 107, State of Bombay v.
Rusi Mistry AIR 1960 SC 391; Shivaji Sahabrao Bobade v.
State of Maharashtra 1974 (1) SCR 489 = 1973 (2) SCC 793,
Chandrappa v. State of Karnataka 2007(2) SCR 630 2007 =
(4) SCC 415; S. Ganesan v. Rama Raghuraman 2011 B
(1) SCR 27 = 2011 (2) SCC 83, Jugendra Singh v. State of
Uttar Pradesh 2012 (6) SCR 193    =2012 (6 ) SCC 297; and
State of Madhya Pradesh v. Dal Singh and Ors. 2013 (7)
SCALE 513 - referred to.
   Sheo Swarup v. King Emperor AIR 1934 PC 227, Nur              C
Mohammad v. Emperor AIR 1945 PC 151- referred to.
    2.1. The High Court has taken serious exception to
the non-mentioning of the name of the accused in the FIR.
PW-8, the husband of the deceased had screamed about
the gun-shot and PW-1 (informant) had rushed to his              D
house and thereafter immediately proceeded to get a
vehicle to take the victim to a hospital. In such a situation,
to expect that he should have heard PW-8 mentioning the
name of the accused would be in the realm of hyper-
tech nical approach. The evidence shows that the                 E
accused was named at the earliest opportunity. There is
nothing brought on record to suggest that he was falsely
implicated by way of an afterthought. The exception
taken to the fact that though the deceased was aware of
the name of the accused, yet she did not utter the name          F
of the assailant and, therefore, the prosecution version
does not inspire confidence, is inapposite. It is
inappropriate to assume that she should have heard the
 name of the accused and to expect of her to me~tion the
same to the others. The doubt expressed is not a                 G
reasonable one and such a degree of e:xactitude should
not have been emphasised upon. The finding of the High
Court on this score cannot be accepted. [para 24 and 27]
[1122-D, F-H; 1123-A-B; 1125-B-C]
                                                                 H
    1108   "SUPREME COURT REPORTS              [2013] 7 S.C.R.


A         Pandurang and Others v. State of Hyderabad
    1955 SCR 1083 =AIR 1955 SC .216; Rotash v. State of
    Rajasthan 2006 (10) Suppl. SCR 264 = 2006 (12) SCC 64;
    Mui/a and Another v. State of Uttar Pradesh 2010
    (2) SCR 633 = 2010 (3) SCC 508; Ranjit Singh and Others
B v. State of Madhya Pradesh 2010 (14) SCR 133 = 2011
    (4) SCC 336, Rattan Singh v. State of H.P. 1996 (9) Suppl.
    SCR 938 = 1997 (4) SCC 161, Pedda Narayana v. State of
    A.P. 1975 (0) Suppl. SCR 84 = 1975 (4) SCC 153, Sone Lal
    v. State of U.P. 1978 (4) SCC 302, Gumam Kaur v. Bakshish
c   Singh 1980 Suppl. SCC 567; Kirender Sarkar v. State of
    Assam 2009 (6) SCR 1133 = 2009 (12) SCC 342; Jitender
    Kumar v. State of Haryana 2012 (4) SCR 408 = 2012 (6)
    SCC 204; Gurbachan Singh v. Satpal Singh and Others 1989
    (1) Suppl. SCR 292 = AIR 1990 SC 209; State of U.P. v.
D Krishna Gopal and Another (1988) 4 SCC 302, Krishnan v.
    State 2003 (1) Suppl. SCR 771 = 2003 (7) SCC 56, Va/son
    and Another v. State of Kera/a 2008 (11) SCR 642 = 2008 (12)
    SCC 241 a; Bhaskar Ramappa Madar and Others v. State
  · of Kamataka 2009 (5) SCR 256 = 2009 (11) SCC 690 - relied
E on.
        · 2.2. The High Court has referred to the some
    discrepancies which are absolutely in the realm of minor
    discrepancies. Minor discrepancies are not to be given
    undue emphasis and the evidence is to be considered .
    from the point of view of trustworthiness. The test is
F whether the evidence inspires confidence in the mind of
    the court. If an omission or discrepancy goes to the root
    of the matter and ushers in incongruities, the defence
    can take advantage of such inconsistencies. However,
    every omission cannot take place of a material omission
G and, therefore, minor contradictions, inconsistencies or
    insignificant embellishments not affecting the core of the
    case should not be taken to be a ground to reject the
    prosecution evidence. The omission should create a
    serious doubt -about creditworthiness of a witness.
H Further, while appreciating the evidence of a witness, the
  MRITUNJOY BISWAS v. PRANAB @ KUTI BISWAS 1109


approach must be whether the evidence of the witness A
read as a whole appears to have a ring of truth. In the
instant case, the High Court in its appreciation of
evi.dence has given unnecessary and undue emphasis
on certain contradictions which do not affect the .
prosecution case and has read the evidence not as a B
whole but in utter fragmentation and appreciated the
same in total out of context. It has erroneously discarded
the credible evidence by paving the path of totally hyper-
technical approach. [para 28-29) (1125-D; 1126-B; 1127-
A-B, E]                                                        C
     Leela Ram (dead) through Duli Chand v. State of
                                                 =
Haryana and another 1999 (3) Suppl. SCR 435 1999 (9)
SCC 525, and Rammi alias Rameshwar v. State of M.P. 1999
(3) Suppl. SCR 1 = 1999 (8) SCC 649; Shyamal Ghosh v.
State of West Bengal 2012 (10) SCR 95 = 2012 (7) SCC 646; D
State of UP. v. M.K. Anthony 1985 (1) sec 505- relied on
       2.3. The testimonies of PWs-1, 2, 3, 7 and 8 are
 credible and there is no reason to treat their testimony
 as untrustworthy. PW-8, the husband of the deceased
  has clearly deposed to have seen the accused in the light    E
  of the lamp firing at the back of his wife; and PW-1, the
  nephew of the deceased, has stood by his earlier version.
  Nothing has been elicitated in the cross-examination to
  discard their testimony. They are the most natural
  witnesses and there is no reason that they would falsely     F
  implicate the accused leaving the real culprit solely
  because some quarrel had earlier taken place. The other
  two witnesses have deposed about the accused running
  away from the place of occurrence immediately. That
  apart, the accused had absconded from the village.           G
  Though abscondence cannot from the fulcrum of a guilty
· mind but it is a relevant piece of evidence to be
  considered along with other evidence and its value
  would always depend the circumstances of each case.
  In the instance case, if the evidence of the witnesses are   H
    · 1110   SUPREME COURT REPORTS              (2013) 7 S.C.R.

A read in a cumulative manner, the abscondence of the
  accused gains significance. [para 29) [1126-B-G]
       Matru Alias Girish Chandra v. State of Uttar Pradesh
                      =
  1971 (3) SCR 914 1971 (2) SCC 75, State of M.P. Through
  C.B.I. and Others v. Pa/tan Mal/ah and Others 2005
                  =
B (1) SCR 710 2005 (3) SCC 169; and Bipin Kumar Monda/
                                                   =
  v. State of West Bengal 2010 (8) SCR 1036 2010 (12)
  sec 91 - relied on.
       2.4. As far as non-examination of the treating doctor
C at the Primary Health Centre is concerned, the same does
  not even remotely affect the case of the prosecution. The
  High Court has taken exception to his non-examination
  solely on the base that his evidence in the court would
  have reflected the exact health condition of the deceased.
  When the testimonies of other witnesses are accepted on
D their own creditworthiness, this aspect has to melt into
  insignificance. [para 30) [1127-F-G, H; 1128-A]
      2.5. When there is ample unimpeachable ocular
  evidence and the same has been corroborated by the
E medical evidence, non-recovery of the weapon does not
  affect the prosecution case. [para 33) [1129-B]
         Lakhan Sao v. State of Bihar and Another (2000) 9 SCC
     82; State of Rajasthan v. Arjun Singh and Others 2011 (10)
              =
     SCR 823 2011 (9) sec 115 - relied on.
F       Lakshmi and· Others v. State of U.P. 2002 (1) Suppl.
              =
     SCR 733 2002 (7) SCC 198 - referred to.
       2.6. The judgment of acquittal passed by the High
  Court being wholly unsustainable is set aside and the
G judgment of conviction by the trial Court is restored. [para
  34) [1129-C)
                          Case Law Reference:
         (1971) 3 sec- 577                referred to para12
H        AIR 1934 PC 227                  referred to para 12
MRITUNJOY BISWAS v. PRANAB@ KUTI BISWAS 1111


  AIR 1945 PC 151              referred to para 12    A
  1952 SCR 193                 referred to para 12
  1961 SCR 120                 referred ·to para 12
  1972 (2) SCR 622            . referred to para 13   B
  AIR 1960 SC 391              referred to para 13
  1974 (1) SCR 489             referred to para 14
  2007 (2) SCR 630             referred to para 15
                                                      c
  2011 (1) SCR 27              referred to para 16
  2012 (6) SCR 193             referred to para 16
  2013 (7) SCALE 513           referred to para 16
  1955 SCR 1083                relied on   para 19    D

  20.06 (10) Suppl. SCR 264    relied on   para 20
  2010 (2) SCR 633             relied on   para 21
  2010 (14) SCR 133            relied on   para 22    E
  1996 (9) Suppl. SCR 938      relied on   para 22
  1975 (0) Suppl. SCR 84       relied on   para 22
  1978 (4) sec 302             relied on   para 22
                                                      F
  1980 Suppl. sec 567          relied on   para 22
  2009 (6) SCR 1133            relied on   para 22
  2012 (4) SCR 408             relied on   para 23
                                                      G
  1989 (1) Suppl. SCR 292      relied on   para 24
  (1988) 4 sec 302             relied on   para 25
  2003 (1) Suppl. SCR 771      relied on   par~ 26

                                                      H
    1112    SUPREME COURT REPORTS                [2013] 7 S.C.R.


A       2008 (11) SCR 642                  relied on    para 26
        2009 (5) SCR 256                   relied on    para 26
        1999 (3) Suppl. SCR 435            relied on    para 28
        1999 (3) Suppl. SCR 1              relied on    para 28
B
        2012 (10) SCR 95                   relied on    para 28
        1971 (3) SCR 914                   relied on    para 28
        2005 (1) SCR 710                   relied on    para 29
c
        2010 (8) SCR 1036                  relied on    para 29
        1985 (1 > sec 505                  relied on    para 29
        2002 (1) Suppl. SCR 733            referred to para 31
D       (2000) 9 sec 82                    relied on    para 32
        2011 (10) SCR 823                  relied on    para 32
        CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
    No. 378 of 2007.
E
        From the Judgment and Order dated 25.09.2006 of the
    High Court at Calcutta in Criminal Appeal No. 558 of 2004.

        Rauf Rahim, Yadunandan Bansal for the Appellant.
F       Rukhsana Choudhury, Chanchal Kumar Ganguli, Avijit
    Bhatta~_;;lrjee, Soumi Kundu for the Respondents.

        The Judgment of the Court was delivered by

G     DIPAK MISRA, J. 1. Assailing the judgment of acquittal
  dated 25.9.2006 passed by the High Court of Calcutta in
  Criminal Appeal No. 558 of 2004 whereby the judgment of
  conviction and order of sentence dated 12.8.2003 and
  13.8.2003 respectively passed in Sessions Case No. 52 of
H 2001 by the learned Third Additional Sessions Judge, Nadia,
 MRITUNJOY BISWAS v. PRANAB@ KUTI BISWAS 1113
              [DIPAK MISRA, J.]

convicting the accused-respondent No. 1 under Section 302 of        A
the Indian Penal Code (for short "IPC") and sentencing him to
suffer imprisonment for life and to pay a fine of Rs.1,000/-, in
default, to suffer further imprisonment for one year, has been
reversed, the instant appeal has been preferred by special
leave.                                                              B

     2. The factual score that needs to be exposited is that on
20.4.2001 abo.ut 8.25 p.m. Gnanendra Nath Biswas, PW-8, the
husband of the deceased, was lying on a cot in the bedroom
with his wife Ashalata Biswas who was reading a "Panchali"          C
and he was listening to the radio. A lamp was burning near the
cot as the house did not have any electric light. All on a sudden
a miscreant fired at the deceased Ashalata Biswas through the
eastern window of the room as a result of which she sustained
severe injuries. Hearing the scream of the husband, their
nephew, Mritunjoy Biswas, PW-1, along with others came              D
inside and took Ashalata Biswas to the Krishnaganj Hospital.
The doctors, after primary treatment, advised them to take her
to Shaktinagar Hospital and, accordingly, PW-1 along with Sujit
Kumar Biswas, PW-10 and one Lakshmi Biswas took her to
Shaktinagar Hospital. Thereafter, PW-1 went to Krishnaganj          E
Police Station and lodged a written complaint, Ext.-1, and
returned home. On the basis of the complaint ASI Kohkan
Chandra Roy, PW-11, registered P.S. case No. 32 of 2001
dated 20.4.2001 under Section 326 IPC and Sections 25/27
of the Arms Act, 1959 and, eventually, the case was endorsed        F
to S.I. Anupam Chakraborty, PW-13, for investigation.

       3. On 21.4.2001 when the victim succumbed to his injuries,
the case was converted to one under Section 302 of l.P.C.
Accused Pranab, who was absconding, was arrested on                 G
24.4.2001. The Investigating Officer sent the dead body for post
mortem, examined the witnesses and after collecting all the
evidence submitted the chargesheet to the competent Court
which in turn transmitted the case to the Court of Session for
trial.
                                                                    H
    1114    SUPREME COURT REPORTS                  (2013] 7 S.C.R.


A       4. The plea of the accused was that he was innocent, and
    had been falsely implicated due to animosity.

       5. The prosecution, in order to bring home the charge
  against the accused, examined 14 witnesses and brought
  number of documents on record. The main witnesses are
8
  Mritunjoy Biswas, PW-1, the nephew of the deceased, Subhash
  Biswas, PW-2, a witness to seizure, Kamal Krishna Biswas,
  PW-3, who had deposed that at the time of occurrence the
  accused was not in the house, Dr. Ajit Kumar Biswas, PW-5,
C who had conducted the post mortem, Shantiranjan Samadar,
  PW-6, and Bishnu Pada Kritania, PW-7, who had seen the
  accused running and on a query being made did not give any
  reply, Gnanendra Nath Biswas, PW-8, the husband of the
  deceased and Anupam Chakraborty, PW-13, the Investigating
  Officer. The defence chose not to adduce any evidence.
D
       6. After conclusion of the trial, on appreciation of the
  evidence on record, the learned trial Judge came to hold that
  the accused was guilty of the offence punishable under Section
  302 IPC and, accordingly, convicted him and imposed the
E sentence as has been stated hereinbefore.

         7. On an appeal being preferred the High Court found
    certain flaws in the case of the prosecution and opined that the
    learned trial Judge had fallen into error in appreciation of
    evidence on record and, accordingly, came to hold that the
F   accused was entitled to benefit of doubt. Being of this view it
    reversed the judgment of conviction and acquitted the accused.

       8. Mr. Rauf Rahim, learned counsel appearing for the
  appellant, has submitted that the High Court has fallen into grave
G error by opining that the non-mentioning of the name of the
  accused in the FIR by the informant was fatal to the case of
  the prosecution which is against the settled principle of law. The
  conclusion on this score, as the learned counsel would contend,
  is based on conjecture that PW-1, who has stated to have
H arrived at the spot immediately, had the occasion to know the
 MRITUNJOY BISWAS v. PRANAB @ KUTI BISWAS 1115
              [DIPAK MISRA, J.]

name of the accused from PW-8 though the circumstances and            A
the material brought on record project a different picture. It is
further urged by him that the High Court has failed to appreciate
the evidence in a reasonable manner by recording a finding that
the deceased, while being carried in the van to the hospital,
despite being conscious, did not mention that it was the              B
 accused who had fired a gunshot through the window. The non-
examination of Lakshmi Biswas who had accompanied the
deceased to the hospital, has been given undue emphasis by
the High Court which has resulted in an erroneous perception
both in fact and in law. It is canvassed by him that there was        c
no reason on the part of the High Court not to accept the
testimonies of PW-1, PW-2 and PW-8 who were the most
 natural witnesses and further the High Court has totally ignored
the other obtaining circumstances which make the judgment of
 reversal totally unsustainable. Therefore, it is urged that the
                                                                      0
 appeal deserves to be allowed and the judgment of acquittal
 being untenable requires to be lancinated.

    . 9. Ms. Rukhsana Choudhury, learned counsel appearing
for respondent No. 1, supporting the judgment of the High Court,
has contended that the appreciation of the evidence by the            E
 learned trial Judge being absolutely unacceptable, the High
Court has appropriately disturbed the findings and, hence, the
judgn:ient of acquittal does not warrant any interference by this
Court. It is her further submission that the High Court has rightly
reached the conclusion that on the basis of such sketchy              F
evidence it was inapposite to convict the accused and has
justifiably extended the benefit of doubt. The learned counsel
would also lay emphasis on the fact there had been no recovery
of gun from the accused and, therefore, the prosecution version
does not inspire confidence and on that bedrock alone the             G
verdict of the High Court deserves to be treated as impeccable.
The learned counsel would further contend that when the
material witnesses, namely, Lakshmi Biswas and the treating
doctor at the primary hospital have not been examined, the High
Court is correct in its approach to record an acquittal and the       H
    1116    SUPREME COURT REPORTS                [2013] 7 S.C.R.


A view being not an implausible one should be allowed to stand.
  That apart, it is argued that the material omissions and
  discrepancies in the evidence of witnesses create an incurable
  dent in the case of the prosecution and the High Court has taken
  note of the same in a sound manner and, hence, the conclusion
B resulting in acquittal cannot be flawed.

          10. Mr. Chanchal Kumar Ganguli, learned counsel
    appearing for the State, supporting the stand and stance put
    forth by the learned counsel for the appellant, submitted that
C while treating the testimonies of PWs-1, 2, 7 and 8 as incredible
    and unacceptable, the reasons given by the High Court are
    absolutely unreasonable and, therefore, the reversal of .
    conviction is vulnerable; that the deceased, as she was
    conscious, could have divulged the name of the deceased
    shows total incorrect approach inasmuch as the deceased was
D in a painful condition and she has told, as deposed by PW-3,
    that she would not survive; that the non-mentioning of the name
    of the accused in the FIR cannot be treated as fatal to the case
    of the prosecution when the entire evidence brought on record
    prove the guilt of the accused; that non-examination of the two
E witnesses and non-recovery of the weapon used are absolutely
    immaterial, for the prosecution matchoose not to examine a
    witness and, in any event, their non-examination and non-
    recovery .of the weapon cannot belie the .version of the
    prosecution; that PW-2, Subhas Biswas, who had identified the
F accused fleeing way from the house of the deceased in the
    focus of the torch has been commented upon on the ground
  . that the torch was not seized by the poltce but the same may
    be a lacunae in the investigating agency and cannot be a
    ground to discard the unimpeachable evidence of PW-2; and
G that the approach of the High Court is manifestly erroneous
    inasmuch as it has consjdered certain circumstances and
    opined that they are weak pieces of circumstantial evidence
    with the aid of which the accused cannot be convicted though
    there is direct evidence of natural witnesses pertaining to the
H role played by the accused. The emphasis on the fact that
      MRITUNJOY BISWAS v. PRANAB @ KUTI BISWAS 1117
                   [DIPAK MISRA, J.]

· independent witnesses have not been examined is                   A
  inconsequential as the witnesses examined are most natural
  witnesses and they have no reason to implicate the accused
  in the crime. The High Court, Mr. Ganguli would contend, has
  laid immense stress on some minor discrepancies which are
  not vital for which the view expressed cannot be regarded as      B
  irreproachable.

      11. Before we scrutinize whether the High Court has
 appositely appreciated the evidence on record and whether the
 findings recorded on such appreciation by it are totally
 unreasonable or perverse leading to serious illegality, which      C
 would warrant interference by this Court, we would like to refer
 to certain authorities in the field that lay down the parameters
 for reversing a judgment of acquittal.

       12. In Jadunath Singh v. State of U.P. 1, a three-Judge      D
  Bench opined that in an appeal against acquittal, the appellate
  Court has full power to review at large all the evidence and to
  reach the conclusion that upon that evidence, the order of
  acquittal should be reversed. The Bench referred to the
  principles laid down. in Sheo Swarup v. King Emperor2, Nur        E
· Mohammad v. Emperor3, Surajpa/ Singh v. State4 and Sanwat
  Singh v. State of Rajasthan5 •

      13. In Damodarprasad Chandrikaprasad v. State of
 Maharashtra 6, it has been ruled that once the appellate Court
 comes to the conclusion that the view of the trial Court is        F
 unreasonable, that itself provides reason for interference. The
 learned Judges referred to the decision in State of Bombay v.

 1.    (1971) 3 SCC577.
                                                                    G
 2.    AIR 1934 PC 227.
 3.    AIR 1945 PC 151.
 4.    AIR 1952 SC 52.
 5.    AIR 1961 SC 715.
 6.    (1972) 1 sec 101.                                            H
    1118      SUPREME COURT REPORTS                  [2013] 7 S.C.R.

A   Rusi Mistry7 to come to the conclusion that if the finding shocks
    the conscience of the Court or the norms of legal process have
    been disregarded or substantial and great injustice has been
    done, the same can be interfered with.

        14. In Shivaji Sahabrao Bobade v. State of Maharashtra 8,
8
  a three-Judge Bench expressed the opinion that there are no
  fetters on the plenary power of the appellate court to review the
  whole evidence on which the order of acquittal is founded and,
  indeed, it has a duty to scrutinize the probative material de
  novo, informed, however, by the weighty thought that the
C rebuttable innoc~nce attributed to the accused having been
  converted into an acquittal, the homage our jurisprudence owes
  to individual liberty constrains the higher court not to upset the
  finding without very convincing reasons and comprehensive
  consideration.
D
        15. In Chandrappa v. State of Kamataka 9, this Court has
  held that an appellate court has full power to review,
  reappreciate and reconsider the evidence upon which the order
  of acquittal is founded and the Code of Criminal Procedure,
E 1973 puts no limitation, restriction or condition on exercise of
  such power and an appellate court on the evidence before it
  may reach its own conclusion, both on questions of fact and of
  law. It has been further laid down therein that various
  expressions, such as, "substantial and compelling reasons",
F "good and sufficient grounds", "very strong circumstances",
  "distorted conclusions", "glaring mistakes", etc. are not
  intended to curtan·extensive powers of an appellate court in an
  appeal against acquittal. Such phraseologies are more in the
  nature of i•ffourishes of language" to emphasise the reluctance
G of an appellate court to interf~r~ with acquittal than to curtail the
  power of the court to review the evidence and to, come to its
  own conclusion.
    7.   AIR 1960 SC 391.
    a.   (1973) 2 sec 793.
H   9.   (2001) 4 sec 415.
 MRITUNJOY BISWAS v. PRANAB@ KUTI BISWAS 1119
              [DIPAK MISRA, J.]

    16. These principles have been reiterated in S. Ganesan            A
v. Rama Raghuraman 10 , Jugendra Singh v. State of Uttar
Pradesh 11 and State of Madhya Pradesh v. Dal Singh and
Ors.12.
      17. Keeping in view the aforesaid principles, we are             8
required to scrutinize the base on which the findings have been
recorded by the learned trial Judge and the appreciation on
which the High Court thought it appropriate to reverse the
conviction. It is perceptible that the learned trial Judge, scanning
the evidence on record, opined that PWs-1, 2, 7 and 8 were
the most natural witnesses and their evidence deserved to be           C
accepted; that PW-3 who had gone to the house of the accused
at the time of occurrence but immediately thereafter he came
inside and in a different tone enquired about disturbance
caused outside which was significant in the context of the
occurrence; that the testimony of PW-7 deserved credence and           D
he had stated that the mother of the accused came to his house
in search of the accused at 8.00 p.m. in the night of the incident
and he also heardthe sound of a gunshot after five minutes
from the time of dep~rture of the mother of the accused from
his house; that itwas quite natural that there would be some           E
discrepancies in the evidence of the prosecution witnesses, for
 after passage of time a witness cannot recollect everything with
 precision; and that the post mortem report revealed that the
deceased had suffered a gunshot injury; that the defective
 investigation would not affect the prosecution case and,              F
 accordingly, rested his conclusion on the said findings.

     18. The flaws noticed by the High Court are that the
informant had not mentioned the name of the accused in the
FIR though he could have mentioned; that though the deceased
who was conscious while being taken to the hospital in a van,          G
yet she did not divulge the name of the person who had fired
10. (2011) 2 sec 83.
11. (2012) e sec 2s1.
12. 2013 (7) SCALE 513.                                                H
    1120     SUPREME COURT REPORTS               [2013) 7 S.C.R.


A through the window; that Lakshmi Biswas, who had
  accompanied Mritunjoy Biswas, PW-1 and Sujit Biswas, PW-
  10, to the hospital was not examined; that the evidence of PW-
  2 and PW-7, who saw the accused running away from the place
  of occurrence, was very weak piece of evidence to connect the
B accused with the crime; that the testimony of PW-3 that he had
  not found the accused in his house soon before the incident
  was inconsequential; that details of treatment of the deceased
  in the Krishnaganj Hospital had not been brought on record by
  the prosecution from which the condition of the deceased could
c have been known; that the prosecution should have, in all
  fairness, examined the treating doctor at the Primary Health
  Centre; and that the evidence on record did not establish the
  guilt of the accused beyond reasonable doubt and, hence, he
  was entitled to benefit of doubt.
D      19. The first ground of attack is non-mentioning the name
  of the accused in the FIR. Pyramiding the said submission, the
  learned counsel for the appellant would sublT!it that once the
  name of the accused is not mentioned in the FIR, the
  prosecution version in entirety is bound to collapse. In this
E context, we may fruitfully refer to a three-Judge Bench decision
  in Pandurang and Others v. State of Hyderabad1 3 wherein it
  has been held that on the facts of the case that the first
  information report did not mention the name of any person as
  assailant though it was alleged that the names were known was
F of no consequence specially when their names were disclosed
  at the time of inquest and their absence did not make the
  prosecution version a concocted one and further it could not
  be said that it was a planned one to rope someone later on.
       20. In' Rotash v. State of Rajasthan 14 wherein the FIR did
G not contain the name of the appellant before this Court, a
  contention was advanced that the informant who was known t6
  the accused and who could easily identify the assailant, yet he

    13. AIR 1955 SC 216.
H   14. c2006) 12 sec 64.
 MRITUNJOY BISWAS v. PRANAB@ KUTI BISWAS 1121
              [DIPAK MISRA, J.]

was not named in the FIR and, therefore, the prosecution case        A
was not to be believed. The Court took note of the fact that the
investigation had taken place in quite promptitude and the
accused persons were arrested being named by the witnesses.
After taking note of the fact situation the Court proceeded to
observe as follows: -                                                B
     "The first information report, as is well known, is not an
     encyclopedia of the entire case. It need not contain all the
     details. We, however, although did not intend to ignore the
     importance of naming of an accused in the first information
     report, but herein we have seen that he had been named          C
     in the earliest possible opportunity. Even assuming that
     PW 1 did not name him in the first information report, we
     do not find any reason to disbelieve the statement of Mooli
     Devi, PW 6. The question is as to whether a person was
     implicated by way of an afterthought or not must be judged      o
     having regard to the entire factual scenario obtaining in the
     case."
     21. In Mui/a and Another v. State of Uttar Pradesh 15, the
accused persons were not named in the FIR. Taking into
consideration the material brought on record, the Court              E
observed that though none was named in the FIR, yet
subsequently the names of the appellants had come into light
during investigation and, hence, non-mentioning the names of
the accused persons would not be fatal to the prosecution case.
    22. In R:-:injit Singh and Others v. State of Madhya             F
Pradesh 16 , after referring to authorities Rotash (supra), Rattan
Singh v. State of H.P. 17 , Pedda Narayana v. State of A.P. 18,
Sone Lal v. State of U.P. 19 , Gurnam Kaur v. Bakshish Singh20

15. c2010) 3 sec 508.
                                                                     G
16. c2011) 4 sec 336.
11. (1997) 4 sec 161.
18. (1975) 4 SCC.153.
19. (1978) 4 sec 302.
20. 1980 supp sec 567.                                               H
    1122     SUPREME COURT REPORTS                [2013] 7 S.C.R.


A   and Kirender Sarkar v. State of Assam21 , the Court opined that
    in case the informant fails to name a particular accused in the
    FIR, and the said accused is named at the earliest opportunity,
    when the statements of witnesses are recorded, it cannot tilt
    the balance in favour of the accused.
B      23. In Jitender Kumar v. State of Haryana 22, it has been
  stated that an accused who has not been named in the FIR, to
  whom a definite role has been attributed in the commission of
  the crime and when such role is established by cogent and
  reliable evidence and the prosecution has also been able to
C prove its case beyond reasonable doubt, such an accused may
  be punished in accordance with law, if found guilty.

        24. In the case at hand, the High Court has taken serious
  exception to the non-mentioning of the name of the accused in
0 the  FIR on the ground that the informant had t.he occasion to
  know the name of the assailant from the husband of the
  deceased as he had told the name of the accused to his
  nephew who had lodged the FIR and further the deceased had
  not mentioned the name of the accused though she was
E conscious and was able to speak. On a studied scrutiny of the
  evidence on record we are disposed to think that the reasons
  ascribed by the High Court on this score are unacceptable, for
  they do not really stand to reason. The husband, PW-8, had
  screamed about the gun-shot and PW-1 had rushed to his
  house and thereafter immediately proceeded to get a vehicle
F to take the victim to a hospital. In such a situation, to expect
  that he should have heard PW-8 mentioning the name of the
  accused would be in the realm of hyper-technical approach.
  That apart, the evidence brought on record, as we find, the
  accused has been named at the earliest opportunity and there
G is nothing brought on record to suggest that he has been falsely
  implicated by way of an afterthought. Quite apart from the
  above, the exception taken to the fact that though the deceased
    21. (2009) 12 sec 342.
H 22. c2012) e sec 204.
., MRITUNJOY BISWAS v. PRANAB @ KUTI BISWAS 1123
                [DIPAK MISRA, J.]

was aware of the name of the accused and she was in a                 A
position to talk and further was administered an injection for
amelioration of pain, yet she did not utter the name of the
assailant and, therefore, the prosecution version does not
inspire confidence, is inapposite. This approach, as we
understand, is based on the principle that it is obligatory on the    B
part of the prosecution to prove the guilt of the accused beyond
reasonable doubt however complex and the intriguing may be
the facts and circumstances of the case. Needless to say, the
aforesaid test is not an absolute guidance in all circumstances
for the court, for the doubts that are raised in the mind of the      c
court must be reasonable. In this context, we may ptofitably refer
to what has been stated by Sabyasachi Mukharji, J. (as his
Lordship then was) in Gurbachan Singh v. Satpa/ Singh and
Others23 : -

      "The standard adopted must be the standard adopted by           D
      a prudent man which, of course, may vary from case to
      case, circumstances to circumstances. Exaggerated
      devotion to the rule of benefit of doubt must not nurture
      fanciful doubts or lingering suspicions and thereby destroy
      social defence. Justice cannot be made sterile on the plea      E
      that it is better to let hundred guilty escape than punish an
      innocent. Letting guilty escape is not doing justice,
      according to law.

      5. The conscience of the court can never be bound by any        F
      rule but that is coming itself dictates the consciousness and
      prudent exercise of the judgment. Reasonable doubt is
      simply that degree of doubt which would permit a
      reasonable and just man to come to a conclusion.
      Reasonableness of the doubt must be commensurate with           G
      the nature of the offence to be investigated."

      25. In State of U.P. v. Krishna Gopa/ and AnotheF4,
 23. AIR 1990 SC 209.
 24. (1988) 4 sec 302
                                                                      H
      1124     SUPREME COURT REPORTS                   (2013] 7 S.C.R.


 A Venkatachaliah, J. (as his Lordship then was) has opined thus:-

           "Doubts would be called reasonable if they are free from
           a zest for abstract speculation. Law cannot afford any
           favourite other than truth. To constitute reasonable doubt,
           it must be free from an overemotional response. Doubts
 B
           must be actual and substantial doubts as to the guilt of the
           accused person arising from the evidence, or from the lack
           of it, as opposed to mere vague apprehensions. A
           reasonable doubt is not an imaginary, trivial or a merely
           possible doubt; but a fair doubt based upon reason and
 c         common sense. It must grow out of the evidence in the
           case.

           26. The concept of probability, and the degrees of it,
           cannot obviously be expressed in terms of units to be
 o         mathematically enumerated as to how many of such units
           constitute proof beyond reasonable doubt. There is an
           unmistakable subjective element in the evaluation of the
           degrees of probability and the quantum of proof. Forensic
           probability must, in the last analysis, rest on a robust
 E         common sense and, ultimately on the trained intuitions of
           the judge. While the protection given by the criminal
           process to the accused persons is not to be eroded, at
           the same time, uninformed legitimization of trivialities would
           make a mockery of administration of criminal justice."

· F        26. The aforesaid principle has been reiterated in
      Krishnan v. State25 , Va/son and Another v. State of Kerala 26
      and Bhaskar Ramappa Madar and Others v. State of
      Kamataka 27 •

 G         27. The bedrock of reasoning of the High Court is to be
      tested on the anvil of the aforesaid enunciation of law. On a

      25. c2003) 1 sec 56.
      2e. c2ooa) 12 sec 241.
 H 21. c2009) 11 sec 690.
 MRITUNJOY BISWAS v. PRANAB@ KUTI BISWAS 1125
              [DIPAK MISRA, J.]

careful and anxious scrutiny of the evidence on record it is        A
difficult to accept the doubt expressed by the High Court in this
regard. It is to be borne in mind that the deceased was being
carried to the hospital after being shot on her back and, at that
juncture, she had spoken few words but it is inappropriate to
assume that she should have heard the name of the accused           8
and further it was expected of her to mention the same to the
others. The doubt expressed, as we perceive, is not a
 reasonable one and such a degree of exactitude should not
 have been emphasised upon. Hence, we are unable to
 persuade ourselves to accept the finding of the High Court on      C
this score.

     28. As is evincible, the High Court has also taken note of ·
certain omissions and discrepancies treating them to be
material omissions and irreconcilable discrepancies. It is worthy
to note that the High Court has referred to the some D
discrepancies which we find are absolutely in the realm of minor
discrepancies. It is well settled in law that the minor
discrepancies are not to be given undue emphasis and the
evidence is to be considered from the point of view of
trustworthiness. The test is whether the same inspires E
confidence in the mind of the court. If the evidence is incredible ·
and cannot be accepted by the test of prudence, then it may
create a dent in the prosecution version. If an omission or
discrepancy goes to the root of the matter and ushers in
 incongruities, the defence can take advantage of such F ·
inconsistencies. It needs no special emphasis to state that every
omission cannot take place of a material omission and,
therefore, minor contradictions, inconsistencies or insignificant
embellishments do not affect the core of the prosecution case
and should not be taken to be a ground to reject the prosecution G
evidence. The omission should create a serious doubt about
the truthfulness or creditworthiness of a witness. It is only the
serious contradictions and omissions which materially affect the
case of the prosecution but not every contradiction or omission
(See Leela Ram (dead) through Duli Chand v. State of H
         1126     SUPREME COURT REPORTS                   [2013) 7 S.C.R.


     A Haryana and Another28 , Rammi alias Rameshwar v. State of
       M.P. 29 and Shyama/ Ghosh v. State of West Benga/3°.

               29. It is noticeable that the High Court in its appreciation
         of evidence has really given unnecessary and undue emphasis
         on certain contradictions which really do not affect the
     8   prosecution case. The testimony of PWs-1, 2, 3, 7 and 8 are
         credible and there is no reason to treat their testimony as
         untrustworthy. We have arrived at such a conclusion as we find
         that PW-8, the husband of the deceased has clearly deposed
         about seeing the accused in the light of the lamp to have fired
     C   at the back of his wife and PW-1, the nephew of the deceased,
         has stood by his earlier version. Nothing has been elicitated in
         the cross-examination to discard their testimony. On the
         contrary, they are the most natural witnesses and there is no
         earthly reason that they would falsely implicate the accused
     D   leaving the real culprit solely because some quarrel had earlier
         taken place. Be it noted, the other two witnesses have deposed
         about the accused running away from the place of occurrence
         immediately. That apart, the accused had absconded from the
         village. We are absolutely conscious that mere abscondence
     E   cannot from the fulcrum of a guilty mind but it is a relevant piece
         of evidence to be considered along with other evidence and
         its value would always depend the circumstances of each case
         as has been laid down in Matru Alias Girish Chandra v. State
         of Uttar Pradesh 31 , State of M.P. Through C.B.I. and Others
     F   v. Pa/tan Mal/ah and Others32 and Bipin Kumar Monda/ v.
         State of West Benga/33 • In the instance case, if the evidence
         of the witnesses are re.ad in a cumulative manner, the
         abscondence of the accused gains significance. The High

         2s. (1999) 9 sec 525.
     G
         29. (1999) s sec 649.
         30. c2012) 7 sec 646.
         31. (1971) 2 sec 75.
         32. (2005) 3 sec 169.
         33. c201 O) 12 sec 91.
     H



,-
   MRITUNJOY BISWAS v. PRANAB@ KUTI BISWAS 1127
                [DIPAK MISRA, J.]

 Court, as we find, has read the evidence not as a whole but in A
  utter fragmentation and appreciated the same in total out of
  context. It is to be kept in mind that while appreciating the
  evidence of a witness, the approach must be whether the
  evidence of the witness read as a whole appears to have a ring
  of truth. Once that impression is formed, it is undoubtedly B
  necessary for the court to scrutinise the evidence more
  particularly keeping in view the deficiencies, drawbacks and
· infirmities pointed out in the evidence as a whole and evaluate
  them to find out whether it is against the general tenor of the
  evidence given by the witness and whether the earlier evaluation c
  of the evidence is shaken as to render it unworthy of belief.
  Minor discrepancies on trivial matters not touching the core of
  the case, hyper-technical approach by taking sentences torn out
  of context here or there from the evidence, attaching importance
  to some technical error committed by the investigating officer 0
  not going to the root of the matter would not ordinarily permit
  rejection of the evidence as a whole. (See State of U.P. v. M.K.
  Anthony34). Tested on the anvil of the aforesaid principle, we
  have no shadow of doubt that the High Court has erroneously
  discarded the credible evidence by paving the path of totally E
  hyper-technical approach.

      30. The next aspect which has been highlighted by the High
 Court pertains to non-examination of Lakshmi Biswas and the
 treating doctor at Krishnaganj Hospital. As far as non-
 examination of the treating doctor at the Krishnaganj Hospital    F
 is concerned, we are of the view that the same does not even
 remotely affect the case of the prosecution. The High Court has
 taken exception to his non-examination solely on the base that
 his evidence in the court would have reflected the exact health
 condition of the deceased. Emphasis has been laid on the          G
 same as the appellate court has felt that the same could have
 been a pointer to find out whether the deceased was in a
 conscious state and why she did not mention the name of the
 accused. In our considered opinion when the testimonies of
 34. (1985) 1 sec 505.                                             H



                                                                       •
           1128     SUPREME COURT REPORTS                  [2013] 7 S.C.R.


       A other witnesses are accepted on their own creditworthiness,
         this aspect has to melt into insignificance. As far as non-
         examination of Lakshmi Biswas is concerned, as per the
         prosecution version she had only accompanied the deceased.
         There is no denial of the fact that the deceased had not
       B mentioned the name of the accused. In this backdrop, we really
         fail to appreciate how the non-examination of the said witness
         creates a concavity in the case of the prosecution and,
         accordingly, we are unable to concur with the reasoning of the
         High Court.
       c      31. The learned counsel for the respondent has urged
         before us that there has been no recovery of weapon from the
         accused and hence, the prosecution case deserves to be
         thrown overboard and, therefore, the judgment of acquittal does
         not warrant interference. In Lakshmi and Others v. State of
       D U.P. 35 , this Court has ruled that undoubtedly, the identification
         of tne body, cause of death and recovery of weapon with which
         the injury may have been inflicted on the deceased are some
         of the important factors to be established by the prosecution
         in an ordinary given case to bring home the charge of offence
       E under Section 302 IPC. This, however, is not an inflexible rule.
         It cannot be held as a general and broad proposition of law that
         where these aspects are not established, it would be fatal to
         the case of the prosecution and in all cases and eventualities,
         it ought to result in the acquittal of those who may be charged
       F with the offence of murder.

              32. In Lakhan Sao v. State of Bihar and Anothefl6 , it has
         been opined that the non-recovery of the pistol or spent
         cartridge does not detract from the case of the prosecution
       G where the direct evidence is acceptable.

                33. In State of Rajasthan v. Arjun Singh and Others37 , this

           35. (2002) 1 sec 198.
           36. (2000) 9 sec 82.
       H 37. (2011) 9 sec 115.




-..-
 MRITUNJOY BISWAS v. PRANAB@ KUTI BISWAS 1129
              [DIPAK MISRA, J.]
Court has expressed that mere non-recovery of pistol or               A
cartridge does not detract the case of the prosecution where
clinching and direct evidence is acceptable. Likewise, absence
of evidence regarding recovery of used pellets, bloodstained
clothes, etc. cannot be taken or construed as no such
occurrence had taken place. Thus, when there is ample                 8
unimpeachable ocular evidence and the same has been
corroborated by the medical evidence, non-recovery of the
weapon does not affect the prosecution case.

      34. In view of the aforesaid analysis, the appeal is allowed,
the judgment of acquittal passed by the High Court being wholly       C
unsustainable is set aside and the judgment of conviction of the
trial Court is restored. The respondent is directed to surrender
to custody to serve out the sentence.

R.P.                                             Appeal allowed.