STATE OF UTTAR PRADESHversusWASIF HAIDER ETC.

                       [2018] 14 S.C.R. 1161                             1161


                  STATE OF UTTAR PRADESH                                 A
                                  v.
                       WASIF HAIDER ETC.
             (Criminal Appeal Nos. 1702-1706 of 2014)
                       DECEMBER 10, 2018                                 B
                 [N. V. RAMANA AND
           MOHAN M. SHANTANAGOUDAR, JJ.]
       Penal Code, 1860 – ss.302 and 307 r/w ss.149, 148 – Appeal
against acquittal – PW-2-Police Official got to know that a crowd        C
of around 200-300 rioters was causing rampage and destruction
at a temple – PW-2 accompanied by the police force and a senior
official proceeded towards scene of occurrence – Rioters started
firing upon them, injuring the senior official, who later succumbed
to the injuries – Respondents-accused persons arrested – Trial court
convicted the respondents – High Court set aside the conviction –        D
Held: In appeal against acquittal, the appellate court would interfere
only where there exists perversity of fact and law – Present case is
ridden with multiple investigative laches and flaws which go to the
root of the matter– Specific identification of the respondents, from
a group of 200-300 rioters, with 100% perfection; without a mention      E
of any distinguishing marks seems highly improbable considering
the distance of the witnesses from the place of occurrence– Test
Identification Parade (TIP) has to be conducted timely, if not, then
the delay has to be explained – However, in the present case, not
only there was delay in conducting the TIP, but there was no
explanation for the same – This creates doubt about its genuineness      F
– Further, although the charges were framed u/s.307,IPC, the
prosecution failed to substantiate the charges by means of evidence
– Trial Court erred in convicting the respondents for the aforesaid
offence, without any evidence – Prosecution failed to link the chain
of circumstances to dispel the cloud of doubt about the culpability      G
of the respondents – Suspicion, however grave cannot take place
of proof – Investigative lapses have fortified the presumption of
innocence in favor of the respondents – Benefit of doubt arising
out of faulty investigation accrues in favor of the accused – No
perversity in the judgment of the High Court – Concurrent order of
                                                                         H
                                1161
1162               SUPREME COURT REPORTS                   [2018] 14 S.C.R.


 A     acquittal for offences under the Arms Act and Explosive Substances
       Act also not interfered with - Arms Act, 1959 – ss.25, 27 – Explosive
       Substances Act, 1908 – ss.4, 15 – Criminal Law Amendment Act,
       1932.
             Dismissing the appeals, the Court
 B           HELD: 1.1 The present case is ridden with multiple
       investigative laches and flaws which goes to the root of the matter.
       Firstly, out of the seven eye witnesses who participated in the
       TIP, five of them identified the accused-respondents without
       committing any mistake. Accused no.3 has big protruding teeth,
 C     the accused no.4 was suffering from polio hence, had permanent
       physical disability, but surprisingly this fact was never mentioned
       either in the F.I.R. or in the witness statements. The specific
       identification of the four accused-respondents, from a group of
       200-300 rioters, with 100% perfection; without a mention of any
       distinguishing marks seems highly improbable considering the
 D     distance of the witnesses from the place of occurrence. Moreover,
       there existed an inordinate delay of 55 days in conducting the
       TIP of the accused no.1 and 2. Although, the involvement of
       accused no.3 and 4 was brought to light on 03.08.2001 itself, the
       prosecution did not take any effort to arrest or interrogate them
 E     for 6 weeks. But no reasonable explanation was provided for the
       aforesaid inordinate delay. [Paras 13, 14][1168-D-H]
             1.2 Furthermore, no documentary evidence has been
       provided to prove that the identity of the accused was kept
       concealed. TIP has to be conducted timely, if not, then the delay
 F     has to be explained and such delay should not cause exposure of
       the accused. However, in the case at hand, not only there was a
       delay in conducting the TIP, but no explanation for the same has
       been forthcoming from the prosecution. This creates a
       considerable doubt about the genuineness of the TIP.
       [Para 15][1169-A-D]
 G
             1.3 Secondly, it is surprising that, although the post-mortem
       report describes that there were only two wounds in the body of
       the deceased, one being the entry and the other being the exit
       wound, allegedly a bullet was still recovered from the ashes of
       the deceased. The recovery of bullet from the ashes of the
 H     deceased is irreconcilable with the post-mortem report which
     STATE OF UTTAR PRADESH v. WASIF HAIDER ETC.                       1163


allegedly states an exit wound, implying that the bullet had already   A
left the body. The aforesaid fact raises a suspicion on both the
Post-Mortem report and the F.S.L. report as they are incompatible
with each other. Thirdly, the prosecution has failed to establish
that the bullet allegedly recovered from the ashes of the deceased
20 days later was indeed fired from the pistol recovered from
                                                                       B
respondent no.1. Even, the recovery of pistol is doubtful.
[Paras 16, 17][1169-D-G]
       1.4 Fourthly, as regards to the place of incident, the
prosecution failed to ascertain the same with precision. Fifthly,
the prosecution failed to examine the orderly of the deceased
who was also injured in the same incident and had suffered a           C
gunshot injury. Sixthly, the prosecution has also failed to adduce
any independent witness. Even though it is wrong to disbelieve
the evidence adduced from the official witnesses, but prudence
demands that their evidence needs to be tested on the altar of
strict scrutiny. Considering the aforesaid facts and circumstances,    D
the evidences adduced by the prosecution witnesses do not inspire
the confidence of this Court. Lastly, it is surprising that although
the charges have been framed under Section 307 of IPC, the
prosecution has absolutely failed to substantiate the charges by
means of evidence. The trial court has erred in convicting the
respondents for the aforesaid offence, without any evidence to         E
prove the same. [Paras 19-21][1170-A-F]
      1.5 The prosecution has failed to link the chain of
circumstances so as to dispel the cloud of doubt about the
culpability of the respondents. A suspicion, however grave it
cannot take place of proof, i.e., there is a long distance between     F
“may be” and “must be”, which must be traversed by the
prosecution to prove its case beyond reasonable doubt. In the
present case, the cumulative effect of the aforesaid investigative
lapses has fortified the presumption of innocence in favor of the
accused-respondents. In such cases, the benefit of doubt arising       G
out of a faulty investigation accrues in favor of the accused. There
exists no perversity in the judgment of the High Court. The
concurrent order of acquittal for offences committed under the
Arms Act and Explosive Substances Act is also not interfered
with. [Paras 22, 24, 26 and 27][1170-F-G; 1171-B-F]
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1164                SUPREME COURT REPORTS                   [2018] 14 S.C.R.


 A           Bannareddy and Ors. v. State of Karnataka and Ors.
             (2018) 5 SCC 790 ; Rabindra Kumar Pal @ Dara
             Singh v. Republic of India (2011) 2 SCC 490 : [2011] 1
             SCR 929 ; Mulla v. State of UP (2010) 3 SCC 508 ;
             Kailash Gour and Ors. v. State of Assam (2012) 2 SCC
             34 – relied on.
 B
             Narendra Singh v. State of MP (2004) 10 SCC 699 –
             referred to.
                              Case Law Reference
       (2018) 5 SCC 790                relied on                Para 12
 C
       [2011] 1 SCR 929                relied on                Para 12
       (2010) 3 SCC 508                relied on                Para 15
       (2004) 10 SCC 699               referred to              Para 22
       (2012) 2 SCC 34                 relied on                Para 23
 D
             CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
       Nos. 1702-1706 of 2014.
             From the Judgment and Order dated 29.05.2009 of the High Court
       of Judicature at Allahabad in Criminal Appeal Nos. 1419, 1430, 1518,
 E     898 of 2004 and Government Appeal No. 5270 of 2005.
             Dinesh Kr. Goswami, Ankur Prakash, K. Luikang Michael,
       Sushil Tomar, Ashutosh K. Sharma, Garvesh Kabra, T. Mahipal,
       Ms. Kamini Jaiswal, Mohd. Irshad Hanif, Arif Ali Khan, Adeel Siddiqui,
       Rizwan Ahmad, Sheik Moulali Basha, Aamir Naseem, Naeem Ilyas,
 F     Ram Mishra, Jatinderpal Singh, Siddhartha Dave, Farrukh Rasheed,
       Abu Bakr Sabbaq, Ms. Jemtiben AO, Advs. for the appearing parties.
             The Judgment of the Court was delivered by
             N. V. RAMANA, J.
              1. These appeals by special leave arise out of the common
 G
       impugned judgment dated 29.05.2009, passed by the High Court of
       Allahabad in Criminal Appeal Nos. 1419, 1430, 1518 and 898 of 2004,
       whereby the High Court has reversed the judgment of conviction passed
       by the Additional Sessions Judge, Kanpur in Sessions Trial No. 164/2002
       dated 22.01.2004 under Sections 302 read with 149, 307 read with 149,
 H     148 IPC and Section 7 of Criminal Law Amendment Act, 1932. Whereas
     STATE OF UTTAR PRADESH V. WASIF HAIDER ETC.                             1165
                  [N. V. RAMANA, J.]

the High Court in Government Appeal no. 5270 of 2005 preferred by the        A
appellant-State, has dismissed the appeal against the acquittal of accused
no.1-respondent (Wasif Haider) for offences under Sections 25 and 27
of Arms Act, 1959 and Sections 4 and 15 of Explosive Substances Act,
1908, while affirming the judgment dated 3.8.2005 passed by the Additional
Sessions judge, Kanpur acquitting the accused no.1-respondent (Wasif
                                                                             B
Haider) in Sessions Trial No. 143 and 144 of 2002.
       2. Brief facts as unfolded from the prosecution story are that,
while the complainant (P.W.2- S.O., P.S. Moolganj, Kanpur) along with
other police personnel was on duty at the parade crossing, he came to
know that a crowd of around 200-300 rioters were causing rampage
and destruction at the Chaubey Gola Temple. Immediately, the                 C
complainant accompanied by the police force and A.D.M (Finance and
Revenue)-Sri Chandra Prakash Pathak (hereinafter referred as “the
deceased”), and half a section of Provincial Armed Constabulary
[“PAC”] proceeded towards scene of occurrence. Admittedly, when
the deceased along with police personnel were at a distance of around        D
100-150 paces from Sunehri Mosque on the Nai Sarak, rioters started
firing upon them resultantly injuring the deceased and his orderly, Ram
Chandra. In order to control the law and order situation, the police were
compelled to fire in their defense. When the police party reached the
mosque, the rioters had already fled away. Subsequently, when the police
party reached Chaubey Gola Temple where rioters had already looted           E
some houses and had also committed arson. In the meanwhile, the police
also received the information that the deceased had succumbed to the
gunshot injuries in the hospital. Finally, the F.I.R., Case Crime No. 7 of
2001 came to be registered at 8.05P.M. on 16.03.2001 against 200-300
unknown rioters.                                                             F
       3. On the same night, after conducting the inquest proceedings,
the dead body was sent for post mortem examination and the investigation
commenced. The investigation officer after recording the statement of
witnesses, inspected the place of occurrence and prepared Site Plan
ext. Ka-6. A bullet which was recovered from the ashes of deceased           G
was sent for Forensic examination.
      4. On 02.08.2001 accused no. 2-respondent (Mumtaz alias
Maulana) was brought to Kanpur by the Delhi police. On 04.08.2001,
accused no. 1-respondent (Wasif Haider) was arrested. Accused no. 3-
respondent (Hazi Atiq) and accused no. 4-respondent (Safat Rasool)           H
1166                 SUPREME COURT REPORTS                         [2018] 14 S.C.R.


 A     were arrested on 17.09.2001 and 18.09.2001 respectively and thereafter
       the Test Identification Parade (hereinafter referred to as “TIP”) was
       held on 27.09.2001 at District Jail, Kanpur. Subsequent to the completion
       of investigation, the charge-sheet was submitted.
              5. The accused pleaded not guilty and claimed to be tried. It is
 B     pertinent to note that in the statements made by the accused under Section
       313 of Cr.P.C. They claimed that there existed an inordinate delay in
       conducting the TIP, as this time period was used by the prosecution
       witnesses to see them at their homes or places of work to mark them
       carefully for the subsequent identification. They stressed on the fact
       that they were not kept concealed in a veil (baparda). The accused-
 C     respondents have further stated that, prior to the TIP, the police had
       taken their photographs and had shown it to the other witnesses. This
       creates a considerable doubt about the genuineness of the TIP. Further,
       the accused-respondents have alleged that, they were wrongfully roped
       in the case when the police failed to trace the real culprits. The accused
 D     respondents have also put forth that, although they had clear antecedents,
       but they were implicated in the crime falsely.
             6. By order dated 22.01.2004, the trial court, while relying upon
       the prosecution version, rejected the defence story and convicted the
       accused persons as under,
 E                                        CHARGES                  CONVICTION
                ACCUSED

                                       S. 302/ 149 IPC          Life Imprisonment

           [1]. Wasif Haider [A-                                   RI for 5 years
                                       S. 307/ 149 IPC
                    1]
 F           [2]. Mumtaz alias              S. 148                 RI for 1 year

              Maulana [A-2]           S. 7 Criminal Law           RI for 3 months
            [3]. Hazi Atiq [A-3]       Amendment Act
           [4]. Safat Rasool [A-
                                   All of them were acquitted for the charges under
                    4]
 G                                 Sections 395, 397, 436 and 153A IPC.

                                   Acquitted for charges under Sections 25 and 27 of
                                   Arms Act, 1959 and Sections 4 and 15 of Explosive
            Wasif Haider [A-1]
                                   Substances Act, 1908.
 H
     STATE OF UTTAR PRADESH V. WASIF HAIDER ETC.                                1167
                  [N. V. RAMANA, J.]

       7. Aggrieved by the abovementioned order of conviction and               A
sentence, the accused-respondents appealed before the High Court. The
High Court on analysis of evidence found that, not only there exists
various contradictions in the testimonies of the prosecution witnesses
but there exists lack of corroboration of the same. While passing the
order of acquittal the High Court observed that the case of prosecution
                                                                                B
was ridden with flaws in investigation, most importantly the identification
of the accused was highly suspicious and the TIP was held to be “too
good to be believed”. Accordingly, the High Court through the impugned
judgment acquitted the accused-respondents and set aside the aforesaid
order of conviction as the prosecution failed to prove its case beyond
reasonable doubt.                                                               C
      8. Aggrieved by the impugned order passed by the High Court
acquitting all the accused, the State of Uttar Pradesh has preferred these
appeals.
       9. The learned Counsel, Mr. Dinesh Kumar Goswami, on behalf
of the appellant-State while supporting the prosecution’s case, submitted       D
that pursuant to the arrest of the accused-respondents their identification
was properly done after taking due precautions and following the
procedure. Moreover, the prosecution witnesses had clearly identified
the accused persons in the identification parade and in the court as well.
On the issue of delay caused in conducting the TIP, the counsel also            E
vehemently submitted that, there was no inordinate delay in conducting
the TIP as canvassed by the counsels for the accused-respondents. The
High Court has committed a grave error by not placing reliance on the
TIP as there is nothing on record to vitiate the results of the same.
Lastly, the learned counsel submitted that since there existed sufficient
evidence to prove the culpability of the accused-respondents, the Sessions      F
Judge had correctly passed the order of conviction against them and
therefore prayed for setting aside the impugned order.
       10. On the other hand, the learned Counsel, Ms. Kamini Jaiswal,
appearing on behalf of the accused-respondents no. 1, 3 and 4, while
supporting the order of acquittal rendered by the High Court, submitted         G
that, the entire prosecution story hinges on the identification of the
accused-respondents, the genuineness of which in itself is questionable.
It was further argued that, when admittedly the witnesses were at a
great distance from the place of occurrence, it was not plausible to identify
                                                                                H
1168                 SUPREME COURT REPORTS                      [2018] 14 S.C.R.


 A     specifically the accused-respondents, that too in the absence of any
       particular hulia or distinguishing marks from amongst a crowd of 200-
       300 rioters. Further, there was inordinate delay in conducting the TIP
       which was fatal for the prosecution.
              11. Further, the learned Counsel, Mr. Siddhartha Dave, on behalf
 B     of accused-respondent no. 2 submitted that accused-respondent no. 2
       has been dragged into the matter only on account of confessional
       statement of the co-accused which has not been corroborated, and no
       other incriminating evidence is available on record.
               12. Heard learned counsels for the parties. At the outset, we would
 C     like to state that in an appeal against acquittal, the appellate court would
       interfere only where there exists perversity of fact and law [See
       Bannareddy and Ors. v. State of Karnataka and Ors., (2018) 5 SCC
       790]. Further, the presumption of innocence is further reinforced against
       the acquitted-accused by having a judgment in his favor [See Rabindra
       Kumar Pal @ Dara Singh v. Republic of India, (2011) 2 SCC 490 in
 D     para. 94].
             13. We concur with the aforesaid order of acquittal rendered by
       the High Court, as the present case is ridden with multiple investigative
       laches and flaws which goes to the root of the matter. We shall be
       addressing the same in seriatim.
 E
             14. Firstly, it is apt to note that out of the seven eye witnesses
       who participated in the TIP, five of them identified the accused without
       committing any mistake. As observed by the accused no.3-respondent,
       Hazi Atiq has big protruding teeth, the accused no.4-respondent Safat
       Rasool was suffering from polio hence had permanent physical disability,
 F     but surprisingly this fact was never mentioned either in the F.I.R. or in
       the witness statements. The specific identification of the four accused-
       respondents, from a group of 200-300 rioters, with 100% perfection;
       without a mention of any distinguishing marks seems highly improbable
       considering the distance of the witnesses from the place of occurrence.
 G     Moreover, there existed an inordinate delay of 55 days in conducting the
       TIP of the accused no.1 and 2. Although, the involvement of accused
       no.3 and 4 was brought to light on 03.08.2001 itself, the prosecution did
       not take any effort to arrest or interrogate them for 6 weeks. But no
       reasonable explanation was provided for the aforesaid inordinate delay.

 H
     STATE OF UTTAR PRADESH V. WASIF HAIDER ETC.                               1169
                  [N. V. RAMANA, J.]

       15. Furthermore, no documentary evidence has been provided to           A
proof that the identity of the accused was kept concealed. On the contrary,
D.W.3, Mohd. Shamim Siddique, Record Keeper in the Police Office
stated that the general diary does not mention that the accused no.2-
respondent Mumtaz alias Maulana was kept baparda. The defence
also pleaded that, the aforesaid inordinate delay was used by the
                                                                               B
prosecution witnesses to see the accused-respondents at their homes or
places of work to mark them carefully for the subsequent identification.
Additionally, accused no.1-respondent Wasif Haider, in his statement
under Section 313 Cr.P.C. went to the extent of saying that, prior to the
TIP he was shown to the witnesses and his photographs and videotapes
were prepared. In Mulla v. State of U.P., (2010) 3 SCC 508 para 55,            C
this court laid down that a TIP has to be conducted timely, if not, then the
delay has to be explained and such delay should not cause exposure of
the accused. However, in the case at hand, not only there was a delay in
conducting the TIP, but no explanation for the same has been forthcoming
from the prosecution. This creates a considerable doubt about the
                                                                               D
genuineness of the TIP.
       16. Secondly, it is surprising that, although the post-mortem report
describes that there were only two wounds in the body of the deceased,
one being the entry and the other being the exit wound, allegedly a bullet
was still recovered from the ashes of the deceased. The F.S.L. report
shows that this bullet was charred and blistered. This recovery of bullet      E
from the ashes of the deceased is irreconcilable with the post-mortem
report which allegedly states an exit wound, implying that the bullet had
already left the body. The aforesaid fact raises a suspicion on both the
Post-Mortem report and the F.S.L. report as they are incompatible with
each other.                                                                    F
      17. Thirdly, the prosecution has failed to establish that the bullet
allegedly recovered from the ashes of the deceased 20 days later was
indeed fired from the pistol recovered from accused-respondent Wasif
Haider. Even, the recovery of pistol is doubtful. While, the prosecution
case reveals that one .380 bore pistol colt was recovered from the             G
possession of the accused-respondent Wasif Haider, on the contrary,
the evidence of P.W.2-S.O., Rajendra Dhar Dwivedi reveals that one
.320 bore pistol colt was recovered pursuant to his arrest. Additional
contradiction can be seen in the sanction order wherein two pistols of
.380 bore were shown to be recovered from the possession of the
accused-respondent Wasif Haider.                                               H
1170                 SUPREME COURT REPORTS                     [2018] 14 S.C.R.


 A            18. Fourthly, as regards to the place of incident, the prosecution
       failed to ascertain the same with precision. While the F.I.R. reveals the
       place of occurrence to be in front of Sunehri Masjid, P.W.2, the
       complainant later improved over his earlier statement and stated that,
       the incident actually took place in Noorani Masjid. On the contrary, the
       two site plans show the place of incident to be Noorani Masjid.
 B
             19. Fifthly, the prosecution failed to examine Ram Chandra, the
       orderly of the deceased who was also injured in the same incident and
       had suffered a gunshot injury. The prosecution was also unable to prove
       the injury report of the above victim. Such a failure is fatal to the
       prosecution case as his presence in the place of occurrence is beyond
 C     doubt. It has been placed on record that, despite Ram-Chandra attending
       the proceedings of the trial regularly he was not examined by the
       prosecution.
             20. Sixthly, the prosecution has also failed to adduce any
       independent witness. Even though it is wrong to disbelieve the evidence
 D     adduced from the official witnesses, but prudence demands that their
       evidence needs to tested on the altar of strict scrutiny. Considering the
       aforesaid facts and circumstances, the evidences adduced by the
       prosecution witnesses do not inspire the confidence of this Court.
              21. Lastly, it is surprising that although the charges have been
 E     framed under Section 307 of IPC, the prosecution has absolutely failed
       to substantiate the charges by means of evidence. It is rather unfortunate
       that the courts below have failed to take note of the same. The trial
       court has erred in convicting the respondents for the aforesaid offence,
       without any evidence to prove the same.
 F             22. In the instant appeals before us, the prosecution has failed to
       link the chain of circumstances so as to dispel the cloud of doubt about
       the culpability of the accused-respondents. It is a well settled principle
       that a suspicion, however grave it may be cannot take place of proof,
       i.e., there is a long distance between “may be” and “must be”, which
 G     must be traversed by the prosecution to prove its case beyond reasonable
       doubt [See Narendra Singh v. State of M.P., (2004)10 SCC 699].
             23. This Court in Kailash Gour and Ors. v. State of Assam,
       (2012) 2 SCC 34 has held that,
             “44. The prosecution, it is axiomatic, must establish its case
 H           against the accused by leading evidence that is accepted by
     STATE OF UTTAR PRADESH V. WASIF HAIDER ETC.                                1171
                  [N. V. RAMANA, J.]

      the standards that are known to criminal jurisprudence                    A
      regardless whether the crime is committed in the course of
      communal disturbances or otherwise. In short, there can only
      be one set of rules and standards when it comes to trials and
      judgment in criminal cases unless the statute provides for anything
      specially applicable to a particular case or class of cases…”
                                                                                B
                                                    (emphasis supplied)
       24. In the present case, the cumulative effect of the aforesaid
investigative lapses has fortified the presumption of innocence in favor
of the accused-respondents. In such cases, the benefit of doubt arising
out of a faulty investigation accrues in favor of the accused.                  C
       25. Although we acknowledge the gravity of the offence alleged
against the accused-respondents and the unfortunate fact of a senior
official losing his life in furtherance of his duty we cannot overlook the
fact that the lapses in the investigation have disabled the prosecution to
prove the culpability of the accused. The accused cannot be expected to         D
relinquish his innocence at the hands of an inefficacious prosecution,
which is ridden with investigative deficiencies. The benefit of doubt arising
out of such inefficient investigation, must be bestowed upon the accused.
       26. In our opinion, there exists no perversity in the judgment of
the High Court. Further, in the absence of compelling reasons, this Court       E
is not keen to entertain these appeals challenging the order of acquittal.
      27. We are also not inclined to interfere with the concurrent order
of acquittal for offences committed under the Arms Act and Explosive
Substances Act presently before us in Criminal Appeal no. 1706 of 2014.
        28. The appeals are accordingly dismissed. Pending applications,        F
if any, shall also stand disposed of.

Divya Pandey                                               Appeals dismissed.

                                                                                G




                                                                                H