SUNIL KUNDU AND ANR.versusSTATE OF JHARKHAND

                         [2013) s s.C.R. 924


A                     SUNIL KUNDU AND ANR.
                                   v.
                      STATE OF JHARKHAND
                 (Criminal Appeal No. 1073 of 2008)
                            APRIL 9, 2013
B
     [AFTAB ALAM AND RANJANA PRAKASH DESAI, JJ.]

         Penal Code, 1860 - s. 302134 - Murder - Prosecution
    for - Conviction by Courts below - Held: In view of serious
C   lapses in the case, prosecution case not proved beyond
    reasonable doubt - Hence, the accused are liable to be
    acquitted.

         Criminal Jurisprudence - Prosecution must stand or fall
0   on its own - If it has not proved its case beyond reasonable
    doubt, it cannot draw support from weakness of the defence
    case.

          Investigation - Defective investigation - Effect of - Held:
     Lapses and i"egularities in investigation, if they do not go to
E ..,)he root of the matter, if they do not dislodge the substratum
   ' of prosecution case, they can be ignored - In the present
     case, lapses, being serious, cannot be ignored.

        Witness - Interested witness - Evidentiary value - Held:
F   Evidence of interested witness, if consistent, can be relied
    upon and not to be mechanically over-looked - In the present
    case, the interested witnesses, not being truthful, their
    presence itself being doubtful, cannot be relied upon.

       Criminal Trial - Direct evidence and medical evidence
G - Inconsistency between ""'." Effect of- Held: Where eye-witness
  is cogent, medical evidence recedes in background - But
  when eye-witness account is totally inconsistent with medical
  evidence, there is reason to believe that improvements are

H                                 924
                        .
SUNIL KUNDU AND ANR. v. STATE OF JHARKHAND 925


made in the Court to bring the prosecution case in conformity A
with the post-mortem report - In the present case, eye-witness
account is inconsistent with medical evidence as regards
firearm injury, hence not credible.

    The appellants-accused were prosecuted for murder 8
of one person. The prosecution case is mainly supported
by three eye-witnesses namely PWs 4, 5 and 6. Another
eye-witness (PW3) turned hostile during trial. Trial court
convicted all the accused uls. 302134 IPC and sentenced
them to life imprisonment. High Court confirmed their C
conviction. Hence the present appeals.
    Allowing the appeals, the Court
     HELD: 1. In the present case, there is a major lacuna
in the prosecution story. It has been alleged that at least D
two of the accused were carrying pistols; the deceased
was fired at and he was injured. This case is not borne
out by the medical evidence. No bullets or empty
cartridges have been recovered from the scene of
offence. In view of this major lacuna of the prosecution E
story and the inconsistencies in the evidence of the :·
prosecution witnesses, it would not be possible to term
them as minor inconsistencies or variations which
should be ignored. Besides, all the three important
prosecution witnesses namely, PWs 4, 5 and 6 are related
to the deceased and, therefore, are interested witnesses. F
The evidence of an interested witness is not to be
mechanically overlooked. If it is consistent, it can be
relied upon and conviction can be based on it because,
an interested witness is not likely to leave out the real
culprit. But in the present case, the interested witnesses G
are not truthful. Their presence itself is doubtful.
According to PW-6, they were present at the scene of
offence, but their names are not mentioned in the FIR. The
genesis of the prosecution case is suppressed.
Moreover, admittedly, there is deep· rooted enmity H
    926      SUPREME COURT REPORTS            [2013) 5 S.C.R.


A   between the accused and the deceased. Though enmity
    is a double edged weapon, but possibility of false
    involvement because of deep rooted enmity also cannot
    be ruled out. [Para 15] [939-G-H; 940-A-D]

         2. Use o·f firearms by the accused is not proved.
8
    There are no firearm injuries on the deceased. When
    there is cogent eye-witness account, the medical
    evidence recedes in the background. However, when the
    eye-witness account is totally inconsistent with the
    medical evidence and there is reason to believe that
C   improvements are made in the court to bring the
    prosecution case in conformity with the post-mortem
    notes, it is a cause for concern. In such a situation, the
    tainted eye-witness' account cannot be believed keeping
    aside the medical evidence. Tainted eye-witness account
D   which is glaringly inconsistent with the medical evidence
    as regards firearm injury has shaken the credibility of the
    prosecution case. [Para 16] [940-E-G; 941-C, G-H]
          Mani Ram and Ors. vs. State of U.P. 1994 Supp. (2)
E SCC 289: 1994(1) Suppl. SCR 63; Kapildeo Manda/ and
    Ors. vs. State of Bihar (2008) 16 SCC 99: 2007 (12)
     SCR 668; Anjani Chaudhary vs. State of Bihar (2011) 2 SCC
    747: 2010 (13) SCR 227; Sahebrao Mohan Berad vs. State
    of Maharashtra (2011) 4 SCC 249; Sk. Yusuf vs. State of
F   West Bengal (2011) 11 SCC 754: 2011 (8) SCR 83 - relied
    on.
         3. Another very important lacuna in the prosecution
    case is that sanha entry made by the police on the
    information of PW6, was purposely suppressed by the
G   prosecution, as it did not contain the names of the
    accused. This is evident from the fact that when the trial
    court directed the prosecution to produce the relevant
    Sanha Entries, the officer-in-charge of the Police Station
    sent a report along with the register containing sanha
H   entries stating that the original sanha entries were not
SUNIL KUNDU AND ANR. v. STATE OF JHARKHAND 927


available. This Court found that the pages containing the A
relevant Sanha Entries were torn and missing. When
confronted with this, the investigating officer, PW-7 at one
stage denied this allegation. Later on, he stated that he
does not remember whether any sanha entry was made.
When it was suggested to him that in the sanha entry, no B
names of the accused were mentioned and it was
removed from the record to falsely implicate the accused,
he said that it is a matter for investigation. This casts a
shadow of doubt on the credibility of the prosecution
story. [Para 17] [842-A-E, F-H]                              c
     4. It is not correct to say that advers' inference
needs to be drawn against the accused as they were
absconding. Absconding by itself does not prove the
guilt of a person. A person may run away due to fear of
false implication or arrest. When the prosecution is not D
able to prove its case beyond reasonable doubt, it
cannot take advantage of the fact that the accused have
not been able to probabljse their defence. The
prosecution must stand or fall on its own feet. It cannot
draw support from the weakness of the case of the E
accused, if it has not proved its case beyond reasonable
doubt. [Para 18] [943-A-B, C-0]

     5.1. The investigation of the present case was
defective. It is true that acquitting the accused merely on F
the ground of lapses or irregularities in the investigation
of a case would amount to putting premium on the
deprecable conduct of an incompetent investigating
agency at the cost of the victims which may lead to
encouraging perpetrators of crimes. The lapses or G
irregularities in the investigation could be ignored
subject to a rider. They can be ignored only if despite
their existence, the evidence on record bears out the
case of the prosecution and the evidence is of sterling
quality. If the lapses or irregularities do not go to the root
                                                            H
    928      SUPREME COURT REPORTS            [2013] 5 S.C.R.


A   of the matter, if they do not dislodge the substratum of
    the prosecution case, they can be ignored. [Para 19] [943-
    D-G]
    .   5.2. In the present case, the lapses in investigation
    are very serious. PW-5 is a pancha to the seizure
8
    panchnama under which weapons and other articles
    were seized from the scene of offence and also to the
    inquest panchnama. Independent panchas have not
    been examined. The investigating officer has stated in his
    evidence that the seized articles were not sent to the
C   court along with the charge-sheet. They were kept in the
    Malkhana of the police station. He has admitted that the
    seized articles were not sent to the Forensic Science
    Laboratory. No explanation is offered by him about the
    missing sanha entries. His evidence on that aspect is
D   evasive. Clothes of the deceased were not sent to the
    Forensic Science Laboratory. The inv.estigating officer
    admitted that no seizure list of the cloThes of the
    deceased was made. Blood group of the deceased was
    not ascertained. No link is established between the blood
E   found on the seized articles and the blood of the
    deceased. It is difficult to make allowance for such gross
    lapses. Besides, the evidence of eye-witnesses does not
    inspire confidence. Undoubtedly, a grave suspicion is
    created about the involvement of the accused in the
F   offence of murder. Suspicion, however strong, cannot
    take the place of proof. In such a case, benefit of doubt
    must go to the accused. [Para 19] [943-G-H; 9~-A-D]
                        Case Law Reference:
G         1994 (1) Suppl. SCR 63 relied on           Para 7
          2007 (12) SCR 668       relied on          Para 7
          2010 (13) SCR227        relied on          Para 7
          (2011 > 4 sec 249       relied on          Para 7
H
 SUNIL KUNDU AND ANR. v. STATE OF JHARKHAND 929


     2011 (8) SCR 83              relied on            Para 18      A

     CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
 No. 1073 of 2008.

     From the Judgment & Order dated 20.08.2007 of the High
 Court of Jharkhand, Ranchi in Criminal Appeal No. 1762 of          B
 2004.

                              WITH
 Crl. Appeal No. 1419 of 2008, 1512 of 2009
                                                                    c
     S.B. Sanyal, Nagendra Rai, Subhro Sanyal, Kumar
 Rajeev, Shantanu Sagar, Smarhar Singh, Gopi Raman, Vishnu
 Sharma for the Appellants.

      Ratan Kumar Choudhuri, Amrendra Kr. Chou~ey,                  D
 Krishnanand Pandey for the Respondent.

     The Judgment of the Court was delivered by

       (SMT.) RANJANA PRAKASH DESAI, J. 1. The
  appellants Sunil Kundu, Bablu Kundu, Nageshwar Sah and Hira       E
  Lal Yadav ('A1-Sunil', 'A2-Bablu', 'A3-Nageshwar' and 'A4-
  Hiralal', for convenience) were tried for offences punishable
  under Section 302 read with Section 34 and Section 201 read
  with Section 34 of the Indian Penal Code (for short, 'the IPC')
  and Section 27 of the Arms Act, 1959 (for short 'the Arms         F
  Act'). The Sessions Court by its judgment and order dated 15-
  17/09/2004 acquitted them of charges under Section 201 read
  with Seciion 34 of the IPC and Section 27 of the Arms Act. They
  were, however, convicted for offence punishable under Section
  302 read with Section 34 of the IPC and sentenced to life         G
  imprisonment and to pay fine of Rs.5,000/- each. They carried
  app~als to the High Court of Jharkhand, Ranchi. The High Court
· confirmed tQeir conviction and sent~nce. Hence, these appeals
  by special leave.                                          ·
                                                                    H
    930     SUPREME COURT REPORTS                 [2013) 5 S.C.R.


A       2. This case is a glaring example of how cause of justice
    can be defeated by inefficient, lackadaisical and incompetent
    investigating agency. As we go ahead, the reasons for these
    observations would be clear.
         3. At the trial, the case of the prosecution, in short, was
B ,.that on 29/01/1996 at about 5.00 p.m. deceased Suresh Yadav
   (for convenience, "the deceased") reached near the shop of
   Bijan Kaur situated in Refugee Colony, Jamtara, Mihijam Pitch
   Road by a motorcycle driven by him. PW-3 Basudeo Mallick
   was sitting in the middle of the seat and PW-6 Narendra Yadav
C was sitting behind him. When they reached near the shop of
   Bijan Kaur, they saw A1-Sunil, A2-Bablu, A3-Nageshwar and
   A4-Hiralal standing there. The accused started pelting stones
   on them, resulting in imbalance of the motorcycle. The
   motorcycle fell down. All the accused attacked the deceased
D with knife and bhujali. They resorted to blank firing to scare the
   people. The deceased started running towards the southern
   side of the railway line but he collapsed in the field. PW-3
   Basudeo Mallick was assaulted with an iron rod. PW-6
   Narendra Yadav, who is an advocate by profession, somehow
E managed to escape. He ran to Mihijam Police Station and
   informed abo\!t the incident. Along with the police, he came to
   the scene of offence. They shifted the deceased to the
   Chittaranjan Railway Hospital. At the hospital, PW-6 Narendra
   Yadav's statement was recorded by the investigating officer -
F PW-7 Girish Prasad Mishra. It was treated as FIR. On the basis
   of the FIR, investigation was conducted and upon completion
   of investigation the accused came to be charged as aforesaid.
       4. In support of its case, the prosecution examined nine
  witnesses. The prosecution story rests on the evidence of PW-
G 4 Shankar Yadav, PW-5 Jaldhari Yadav and PW-6 Narendra
  Yadav. The accused pleaded not guilty to the charge. They
  contended that they were falsely involved in this case out of
  previous enmity. They pleaded defence of alibi and examined
  21 witnesses in support of their case. Their plea of alibi was
H rejected and they were convicted as aforesaid.
SUNIL KUNDU AND ANR. v. STATE OF JHARKHAND 931
        [RANJANA PRAKASH DESAI, J.]
      5. We will. first begin with the FIR lodged by PW-6           A
Narendra Yadav because it is not consistent with the
prosecution case which was developed in the court. According
to PW-6 Narendra Yadav, on 29/1/1996, at about 5.00 p.m.,
the deceased reached near the shop of Bijan Kaur situated in
Refugee Colony, Jamtara, Mihijam Pitch Road by a motorcycle         B
driven by him. PW-3 Basudeo was sitting in the middle of the
seat and he "'was sitting behind PW-3 Basudeo. When they
reached near the shop of Bijan Kaur, they saw A1-Sunil, A2-
Bablu, A3-Nageshwar and A4-Hiralal standing there. The
accused started pelting stones on them, resulting in imbalance      c
of the motorcycle. A2-Bablu gave a blow with rod and the
motorcycle fell down. Thereafter, A 1-Sunil fired at the deceased
and the deceased got injured. A3-Nageshwar stabbed the
deceased with knife all over his body. A4-Hiralal fired at the
deceased with a pistol and injured him. They also assaulted
                                                                    0
 PW-3 Basudeo Mallik with an iron rod. Thereafter, he ran to
 Mihijam Police Station and brought the police to the scene of
offence. They shifted the deceased to the Anupam Seva Sadan.
On the doctor's advise, the deceased was shifted to the
 Chittaranjan Railway Hospital where he was declared dead.          E
 The incident had occurred due to previous enmity between the
 deceased on the one hand and A3-Nageshwar and A4-Hiralal
 on ttie other hand. He did not refer to the presence of PW-4
 Shankar Yadav and PW-5 Jaldhari Yadav in the FIR.

     6. We have heard Mr. Sanyal, senior advocate appearing         F
for A1-Sunil and A2-Bablu and, Mr. Nagendra Rai, senior
advocate appearing for A3-Nageshwar and A4-Hiralal. So far
as the genesis of the case and the alleged unreliability of the
evidence of PW-4 Shankar Yadav and PW-5 Jaldhari Yadav
is concerned, Mr. Sanyal stated that he was adopting the            G
submissions of Mr. Nagendra Rai. We have also heard Mr.
Ratan Kumar Choudhari learned counsel appearing for the
State of Jharkhand. We have perused their written
submissions.
                                                                    H
    932        SUPREME COURT REPORTS              [2013] 5 S.C.R.


A      7. Mr. Sanyal, senior advocate submitted that A1-Sunil is
  said to have fired at the deceased with a pistol. He is, however,
  acquitted of offence under Section 27 of the Arms Act.
  Besides, PW-1 Dr. Chakravorty stated in his evidence that
  there was no firearm injury on the deceased. Counsel
B submitted that the State's submission that the firearm was used
  only tq frighten people is not borne out by the evidence of
  witnesses. Besides, no bullets or empty cartridges were seized
  from the scene of offence. So far as A2-Bablu is concerned,
  counsel pointed out that while PW-6 Narendra Yadav stated in
c the FIR that A2-Bablu hit'the deceased with iron rod, in the court
  he stated that he was holding knife. This was done to bring his
  evidence in conformity with postmortem notes. PW-1 Dr.
  Chakravorty stated that he did not find any iron rod injury on
  the deceased: The prosecution story is, therefore, untrue.
  Relying on Mani Ram & Ors. v. State of U.P. 1, counsel
D submitted that if the oral evidence is inconsistent with the
  medical evidence, it is a fundamental defect which discredits
  the prosecution case. Drawing our attention to Kapildeo Manda/
  & Ors. v. State of Bihar2, counsel submitted that the accused
  are entitled to benefit of doubt where oral evidence is
E inconsistent with medical evidence. He further submitted that
  when medical evidence does not support the presence of the
  accused, his presence is ruled out. (See Anjani Chaudhary v.
  State of Bihar). Counsel also relied on Sahebrao Mohan
  Berad v. State of Maharashtra".
F
       8. Mr. Nagendra Rai, learned senior advocate submitted
  that the evidence of the prosecution witnesses is inconsistent
  with and belied by the medical evidence. He pointed out that
  PW-5 Jaldhari Yadav deposed that he and PW-6 Narendra
G Yadav, the first informant took the dead body to the hospital and

    1.   1994 Supp. (2) sec 289.
    2.   c2008) 1e sec 99.
    3.   c2011i 2 sec 747.
H 4.     c2011i 4 sec 249.
SUNIL KUNDU AND ANR. v. STATE OF JHARKHAND 933
        [RANJANA PRAKASH DESAI, J.]

gave statement leading to registration of the FIR. This shows        A
that it was recorded at the Chittaranjan Railway Hospital. Earlier
statement made before the police has been suppressed. In the
FIR and also in the court, PW-6 Narendra Yadav alleged that
two persons had fired at the deceased, but no firearm injury
was found on the deceased. There is a variance between the           B
FIR and the evidence of PW-6 Narendra Yadav. PW-4 Shankar
Yadav and PW-5 Jaldhari Yadav have improved their versions
in the court. These two witnesses have stated that when they
went to the hospital, PW-6 Narendra Yadav was present. But,
their names are not mentioned in the FIR. According to the           c
defence, S.D.E. No.473 dated 29/1/1996 was recorded at 5.55
p.m. when PW-6 Narendra Yadav had gone to the police station
to inform the police about the occurrence, but no names were
disclosed and hence, no names are mentioned therein. Sanha
Entry No.473 is missing. Thus the earlier version recorded by        0
the police has been suppressed by the prosecution. Evidence
of PW-4 Shankar Yadav is of no use to the prosecution as he
clearly stated that the accused were not known to him and he
had heard about them from others. Counsel submitted that the
place of occurrence is a busy place. No independent witness
has been examined by the prosecution. Admittedly, there is
                                                                     E
enmity between the two sides. Medical evidence does not
support the prosecution case. The prosecution has, therefore,
failed to prove its case beyond reasonable doubt. Counsel
submitted that the accused must, therefore, be acquitted.
                                                                     F
      9. Mr. Ratan Kumar Choudhary, learned counsel for the
 State, on the other hand, submitted that so far as the manner
 in which the incident took place is concerriedL there is no
variation in the evidence of PW-4 Shankar Yadav, PW-5
 Jaldhari Yadav and PW-6 Narendra Yadav. There may be minor          G
variations which do not affect the substratum of the prosecution
I
·case. Merely because the names of PW-4 Shankar Yadav and
 PW-5 Jaldhari Yadav are not mentioned in the FIR, it cannot
 be said that they were not present. It is true that PW-4 Shankar
Yadav stated that he did not know the names of the accused,          H
    934      SUPREME COURT REPORTS                 [2013] 5 S.C.R.


A but he stated that he got to know the names at the scene of
  offence and he identified the accused in the court. Counsel
  pointed out that the investigating officer stated in his evidence
  that due to terror created by the accused, no one came forward
  to give statement. The accused have criminal history and,
B therefore, non~examination of independent witnesses does not
  affect the prosecution case. Counsel submitted that. the medical
  evidence supports the prosecution case. Counsel submitted
  that the story about Sanah Entry No.473 is concocted to create
  doubt about the prosecution story. There is no such sanha entry.
c Counsel submitted that conviction of the accused is perfectly
  legal and justified. The appeals, therefore, deserve to be
  dismissed.

         10. Before going to the evidence of eye-witnesses, we shall
    advert to the post-mortem notes because while it is alleged that
D   the accused used firearms, the post-mortem notes do not show
    that the deceased had received any firearm injury. As per the
    post-mortem notes, there were 24 incised wounds and multiple
    abrasions of varying sizes over both knee joints of the dead
    body. Cause of death is stated to be "due to profuse
E   heamorrhage and shock as a result of ante mortem injury
    Nos.(i) and (xv) caused by sharp cutting weapon". They could
    be caused by a bhujali or chhura (knife). Injury Nos.(1) and (xv)
    are incised wounds. The post-mortem notes further state that
    injury No.(xxiii) can be caused by iron rod. Injury No.(xxiii) is
F   described as "multiple abrasions of varying sizes over both
    knee joints". PW-1 Dr. Chakraborty who conducted the post-
    mortem, reiterated the findings recorded in the post-mortem
    notes and stated that there was no firearm injury on the
    deceased. He denied that multiple abrasions found on both the
G   knee joints could be caused by a fall.

        11. The main plank of the argument of learned counsel for
    the accused is that since there is no firearm injury on the
    deceased, the entire prosecution story must fall to the ground.
    THerefore, we must now turn to the evidence of PW-6 Narendra
H
SUNIL KUNDU AND ANR. v. STATE OF JHARKHAND 935
        [RANJANA PRAKASH DESAI, J.]

Yadav. PW-6 Narendra Yadav is the first informant. His A
presence at the scene ofoffence cannot be doubted because
all the witnesses including PW-3 Basudeo Mallik who turned
hostile stated that he was sitting on the motorcycle which was
being driven by the deceased. Besides, during this incident,
he received injuries due to fall of the motorcycle. PW-2 Dr. B
Mishra stated in his evidence that on the date of incident i.e.
on 29/1/1996 he examined PW-6 Narendra Yadav. He
described the nature of injuries suffered by this witness and
produced injury certificate which is at Ex-21. His evidence is
consistent with the evidence of other witnesses only to the c
extent that when the motorcycle reached near the shop of Bijan
Kaur, all the accused had assembled there; they started pelting
stones and A3-Nageshwar hit with a rod and that the
motorcycle fell down. After this, his evidence is inconsistent with
the evidence of other witnesses. He stated that the deceased
                                                                    0
ran to the railway line towards the south. A1-Sunil fired at him
with a pistol. A2-Bablu who was armed with a chhura inflicted
injuries at many places on the body of the deceased. A3-
Nageshwar beat the deceased with a rod. A4-Hiralal fired at
the deceased with a pistol. PW3-Basudeo Mallik was beaten
by A3-Nageshwar with rod. Then, he went to the police station E
and gave intirnation regarding the incident. He brought the police
to the scene of offence. The deceased was lying in
unconscious condition. They shifted the deceased to Anupam
Seva Sadan for treatment. On the advice of the doctor, the
deceased was taken to the Chittaranjan Railway Hospital where F
he was declared dead. He stated that at the Chittaranajan
Railway Hospital, his statement was recorded. He made a
mistake in identifying of A2-Bablu in the court. The case of this
witness that A 1-Sunil and A4-Hiralal had pistols in their hands
and they fired at the deceased whith resulted in the firearm G
injury being caused to him is belied by the post-mortem notes.
Admittedly, the postmortem notes do not indicate that the
deceased had suffered any firearm injury. It is pertinent to note
that no bullets or empty cartridges were recovered from the
scene of offence. Therefore, this witness has obviously not H
    936      SUPREME COURT REPORTS                 [2013] 5 S.C.R.


A come out with the truth. It must also be borne in mind that he
  ran to the police station after the deceased fell down and the
  alleged cutting of throat of the deceased by the accused is not
  witnessed by him. He has also not witnessed the alleged blank
  firing resorted to by the accused while running away. It would
B not be out of place to mention here that he admitted in his cross- ·
  examination that the deceased was living in the house of his
  maternal uncle and he is his relation. He stated that he was also
  staying with the deceased. He stated that after the police came
  to the scene of offence, they seized the articles lying on the
c scene of offence whereas PW-5 Jaldhari Yadav stated that the
  seizure panchanama was prepared in the evening at 8.00 p.m.
  after the police came back to the scene of offence from the
  hospital. We find it difficult to place reliance on this witness.

         12. Statement of PW-3 Basudeo Mallick, who was also
'D sitting on the motorcycle driven by the deceased was recorded
   by PW-8 Salish Chandra Singh, Judicial Magistrate, under
   Section 164 of the Code of Criminal Procedure. However, he
   turned hostile. The prosecution could draw support from his
   evidence only to the extent that he, PW-6 Narendra Yadav and
 E the deceased reached Refugee Colony at 5.30 p.m. on the date
   of the incident; that he was hit with a hard object on his head
   and he fell down. PW-2 Dr. S.K. Mishra, who had examined
   him on 29/1/1996 has described injuries suffered by him and
   produced injury report (Ex-2). Thus, his presence and the fact
 F that some incident took place on that day at Refugee Colony
   are established. But, his evidence is of no further use to the
   prosecution because on the major aspect of the prosecution
   story, he has not supported it.

       13. PW-4 Shankar Yadav .is admittedly related to the
G deceased. It must be. noted that this witness is a chance
  witness. He is the resident of Mouza Kush Bediya. He stated
  that he was coming from Kanboe to his house. He admitted
  that from the place of incident, his house is about on~ mile
  away. He really had no reason to be there. He has not explained
H
SUNIL KUNDU AND ANR. v. STATE OF JHARKHAND 937
        [RANJANA PRAKASH DESAI, J.]

why he was at the scene of offence on that day. He stated that· A
he saw the accused standing near a grill making shop. The
deceased came there. The accused started throwing stones
on the deceased's motorcycle. He was hit by rod. He lost grip
of the handle. The motorcycle fell down. The deceased started
running away. The accused chased him and caught him. A1- B
Sunil fired. Because of the firing, people who had assembled
there started running away. All-the four accused started
assaulting the deceased with bh.ujali and knife. When he fell
down, A4-Hiralal Yadav cut his thfQat. According to this witness,
PW-5 Jaldhari Yadav was present. After that, all the accused         c
fled away. It is pertinent to not~~that he admitted that he did not
know the names of the accused and he got to know the names
of the accused from the people who had assembled there. He
admitted that the deceased and his brother were accused in
some other sessions case and the accused are witnesses in 0
a criminal case where his brother is involved. Faced with the
case set out in the FIR that the deceased was fired at by the
accused and was injuretJ, which is contrary to the post-mortem
notes, this witness has tried to bring his evidence in conformity
with the post-mortem-' notes. He stated that A 1-Sunil fired but E
avoided to say thathe fired at the deceased. He suggested
that firing was merely done to scare people. Tliis attempt has ·
proved to be unsuccessful because the police have not
recovered a single bullet or empty cartridge from the scene of
offence.
                                                                     F
      14. PW-5 Jaldhari Yadav is also jelated to the deceased.
He is a chance witness. According to him, on the date of
incident, he had gone to the station to buy cattle feed. He stated
that the place of occurrence would be less than a mile from the
station. Before he could enter the shop, the members of the          G
deceased's family came there and asked him to search for the
deceased, but they did not tell him how far he should go to look
for him. According to him, he did not ask them as to where the
deceased had gone or at what time he used to return home.
This story does not stand to reason. It is not understood how        H
   938      SUPREME COURT REPORTS                [2013) 5 S.C.R.


A the members of the deceased's family would know that this
  witness would be in the market at the relevant time so that they
  could contact him and ask him to search for the deceased. It
  is not understood how without any particulars being furnished
  to him, he embarked on the task and went to the scene of
B offence, which was less than a mile away from the station. In
  any case, his evidence does not inspire confidence. He stated
  that on the date of incident when he was at Bijan Kaur's shop
  situated on Pitch Road, he saw motorcycle of the deceased.
  PW-3 Basudeo Mallik was lying on the ground. A1-Sunil, A2-
C Bablu, A3-Nageshwar and A4-Hiralal were beating the
  deceased with rod, bhujali and knife. PW-4 Shankar Yadav
  came there and started shouting 'Maar Diya; Maar Diya'. About
  20 to 25 stab injuries were inflicted on the deceased.
  According to him, A1-Sunil and A2-Bablu fired in the air.
0 People got scared and they ran helter-skelter. He further stated
  that A3-Nageshwar and A4-Hiralal cut the throat of the
  deceased and all of them fled away. According to him, treating
  the deceased as dead, while running away, the accused
  resorted to blank firing. Just like PW-4 Shankar Yadav, this
E witness has also tried to bring his evidence in conformity with
  the post-mortem notes which do not show any firearm injury. It
  bears repetition to state that not a single bullet or empty
  cartridge was recovered from the scene of offence. The use of
  firearm by the accused is not supported by any evidence. He
  claims to have lifted the dead body, but he stated that his
F clothes were not smeared with blood. The police have not
  seized his clothes, which creates suspicion about the
  prosecution case. Moreover, from his evidence, it appears that
  PW-4 Shankar Yadav came after the deceased was assaulted,
  whereas PW-4 Shankar Yadav claims that he was there right
G from the beginning.

        15. Having dealt with the evidence of these three important
  witnesses, we would like to focuss on the inconsistencies in
  their evidence. PW-4 Shankar Yadav stated that A 1-Sunil fired
H and due to the firing, people got scared. PW-5 Jaldhari Yadav •
  SUNIL KUNDU AND ANR. v. STATE OF JHARKHAND 939
          [RANJANA PRAKASH DESAI, J.]

  stated that A'l-Sunil and A2-Bablu fired in air to scare the A
  people. He further stated that treating the deceased as dead,
  they resorted to blank firing. PW-6 Narendra Yadav stated that
  A1-Sunil and A4-Hiralal fired and injured the deceased. Thus,
  there are three different versions given by three witnesses.
  According to PW-4 Shankar Yadav, only A 1 Sunll was carrying B
  the pistol. According to PW-5 Jaldhari Yadav, A1-Sunil and A2-
  Bablu had pistols and they fired in the air to scare the people.
' PW-6 Narendra Yadav goes a step further and says that A1-
  Sunil and A4-Hiralal fired and injured the deceased. Neither
   PW-4 Shankar Yadav nor PW-5 Jaldhari Yadav stated that A4- C
   Hiralal had a pistol in his hand. There is no firearm injury on
  the deceased. PW-4 Shankar Yadav stated that A4-Hiralal cut
   the throat of the deceased whereas PW-5 Jaldhari Yadav stated
   that A3-Nageshwar and A4-Hiralal cut the throat of the
  deceased. According to PW-6 Narendra Yadav, A3- D
   Nageshwar had a rod in his hand and he had attacked the
   deceased with the rod. He had also dealt a rod blow on the
   motorcycle. This is not consistent with PW-5 Jaldhari Yadav's
   case that A3-Nageshwar cut the throat of the deceased. This
  would mean that A3-Nageshwar was carrying a bhujali or knife. E
   PW-6 Narendra Yadav stated that A2-Bablu gave several knife
   blows on the deceased but PW-5 Jaldhari Yadav stated that
                                               a
   he fired in the air meaning thereby he had pistol in his hand.
    It was argued by Mr. Ratan Kumar Choudhary, learned counsel
                                                        a
   for the State that different persons react differently to particular F
   situation and as such there may be minor variations in their
   statements. He submitted that minor contradictions and
    inconsistencies which do not go to the root of the prosecution
   version need to be ignored. In this case, it is not possible for
   us to adopt such an approach because there is a major lacuna G
   in the prosecution story. It has been alleged that at least two of
  the accused were carrying pistols; the deceased was fired at
   and he was injured. This case is not borne out by the medical
   evidence. At the cost of repetition, we must state that no bullets
   or empty cartridges have been recovered from the scene of
   offence. If we keep this major lacun~ of the prosecution story H
    940      SUPREME COURT REPORTS                   [2013) 5 S.C.R.


A in mind and consider the abovementioned inconsistencies in
  the evidence of the prosecution witnesses, it would not be
  possible to term them as minor inconsistencies or variations
  which should be ignored. Besides, all the three important
  prosecution witnesses are related to the deceased and,
B therefore, are interested witnesses. We are aware that the
  evidence of an interested witness is not to be mechanically
  overlooked. If it is consistent, it can be relied upon and
  conviction can be based on it because, an interested witness
  is not likely to leave out the real culprit. But in this case, the
c interested witnesses are not truthful. Their presence itself is
  doubtful. According to PW-6 Narendra Yadav, they were
  present at the scene of offence, but their names are not
  mentioned in the FIR. The genesis of the prosecution case is
  suppressed. Moreover, admittedly, there is deep rooted enmity
  between the accused and the deceased to which we have
0
  made reference earlier. We are mindful of the fact that enmity
      a
  iS double edged weapon but possibility of false involvement
  because of deep rooted enmity also cannot be ruled out.

        16. Aswe have already stated the major lacuna in this case
E is that use of firearms by the accused is not proved. There are
  no firearm injuries on the deceased. It is true that when there
  is cogent eye-witness account, the medical evidence recedes
  in the background. However, when the eye-witness account is
  totally inconsistent with the medical evidence and there is
F reason to believe that improvements are made in the court to
  bring the prosecution case in conformity with the post-mortem
  notes, it is a cause for concern. In such a situation, it is difficult
  to say that one must believe the tainted eye-witness' account
  and keep the medical evidence aside. In this connection, we
G may usefully refer to the judgment in Sahebrao where this Court
  observed that when the doctor's experience has not been
  questioned, he is the only competent person to opine on the
   nature of injuries and cause of death. We may also refer to the
  judgment of this Court in Anjani Chaudhary, where the medical
H evidence did not support the appellant's presence as there/was
. SUNIL KUNDU AND ANR. v. STATE OF JHARKHAND941
          [RANJANA PRAKASH DESAI, J.]

 no injury on the deceased which could be caused by a lathi and      A
 the appellant was stated to be carrying a lathi. Since the eye-
 witnesses therein were not found to be reliable, this Court
 acquitted the appellant therein. In Kapildeo Manda/, all the eye-
 witnesses had categorically stated that the deceased was
  injured by the use of firearm, whereas the medical evidence        B
  specifically indicated that no firearm injury was found on the
  deceased. This Court held that while appreciating variance
  between medical evidence and ocular evidence, oral evidence
  of eye-witnesses has to get priority as medical evidence is
  basically opinionative. But, when the evidence of the eye-         c
  witnesses is totally inconsistent with the evidence given by the
  medical experts then evidence is appreciated in a different
  perspective by the courts. It was observed that when medical
  evidence specifically rules out the injury claimed to have been
  inflic~,:_as per the eye-witnesses' version, then the court can    D
  draw adverse inference that the prosecution version is not
  trustworthy. This judgment is clearly attracted to the present
  case. In Mani Ram, PW-2 the only sole eye-witness therein
  stated that the two appellants therein chased deceased-
  Basdeo and both of them fired at him from the kattas while he
  was running. However, according to the postmortem report,          E
·injury No.7, which was caused by a firearm, was situated on
  the right shoulder and front of upper arm and outer part. There
  was no injury either on the back or anywhere behind the
, shoulder. Since the prosecution case was that the deceased
  was fired at while he was running, firearm injuries should have    F
  been there on his back. In view of this discrepancy, this Court
  observed that where the direct evidence is not supported by
  the expert evidence then the evidence is wanting in the most
  material part of the prosecution case and, therefore, it would
  be difficult to convict the accused on the basis of such           G
  evidence. We feel that the accused can draw support from this
  case also. Tainted eye-witness account which is glaringly
  inconsistent with the medical evidence as regards firearm injury
  has shaken the credibility of the prosecution case.
                                                                     H
    942      SUPREME COURT REPORTS                  [2013] 5 S.C.R.


A       17. There is yet another very important and distressing
  lacuna in the prosecution case. Learned counsel for the
  accused submitted that PW-6 Narendra Yadav went to the
  police station and informed the police about the incident in
  question. A sanha entry was made. However, PW-6 Narendra
s Yadav did not name the accused. It was submitted that this
  sanha entry was purposely suppressed by the prosecution as
  it did not contain the names of the accused. It was suggested
  that the FIR of PW-6 Narendra Yadav is a doctored document
  and the names of the accused were subsequently added at the
c hospital. In order to examine whether there is any substance in
  this submission, we carefully examined the record. We found
  that after recording the above submissions of .the defence
  counsel, the trial court by its order dated 23/10/2003 directed
  the prosecution to produce Sanha Entry Nos.465 to 476 dated
  29/1/1996 i.e. the date of incident. The officer-in-charge of
0
  Mihijam Police Station sent a report dated 4/11/2003 along
  with the register containing sanha entries stating that the original
  sanha entries of 29/1/1996 are not available. The said report
  is at Ex-0. Along with the said letter, the relevant register is
  produced. In order to find out whether really the sanha entries
E dated 29/1/1993 are missing, we went through the said register
  carefully and we found that the pages containing Sanha Entry
  Nos.465 to 476 dated 29/1/1996 are torn and missing. This
  appears to support the case of the accused that the sanha
  entries dated 29/1/1996 were purposely not produced because
F they contained information of the occurrence communicated by
  PW-6 Narendra Yadav first in point of time and the names of
  the accused were not mentioned therein. When confronted with
  this, the investigating officer, PW-7 Girish Mishra at one stage
  denied this allegation. Later on, he stated that he does not
G remember whether any sanha entry was made. When it was
  suggested to him that in the sanha entry, no names of the
  accused were mentioned and it was removed from the record
  to falsely implicate the accused, he said that it is a matter for
  investigation. This casts a shadow of doubt on the credibility
H of the prosecution story.
SUNIL KUNDU AND ANR. v. STATE OF JHARKHAND 943
        [RANJANA PRAKASH DESAI, J .]

      18. It was argued that the accused were absconding and, A
therefore, adverse inference needs to be drawn against them.
It is well settled that absconding by itself does not prove the
guilt of a person. A person may run away due to fear of false
implication or arrest. (See Sk. Yusuf v. State of West Benga/5).
It is also true that the plea of alibi taken by the accused has B
failed. The defence witnesses examined by them have been
disbelieved. It was urged that adverse inference should be
drawn from this. We reject this submission. When the
prosecution is not able to prove its case beyond reasonable
doubt it cannot take advantage of the fact that the accused have    c
not been able to probablise ·their defence. It is well settled that
the prosecution must stand or fall on its own feet. It cannot draw
support from the weakness of the case of the accused, if it has
not proved its case beyond reasonable doubt.

      19. We began by commenting on the unhappy conduct of D
 the investigating agency. We conclude by reaffirming our view.
 We are distressed at the way in which the investigation of this
 case was carried out. It is true that acquitting the accused
 merely on the ground of lapses or irregularities in the
 investigation of a case would amount to putting premium on the E
 deprecable conduct of an incompetent investigating agency at
the cost of the victims which may lead to encouraging
 perpetrators of crimes. This Court has laid down that the lapses
or irregularities in the investigation could be ignored subject to
 a rider. They can be ignored only if despite their existence, the F
 evidence on record bears out the case of the prosecution and
the evidence is of sterling quality. If the lapses or irregularities ·
do not go to the root of the matter, if they do not dislodge the
substratum of the prosecution case, they can be ignored. In this
case, the lapses are very serious. PW-5 Jaldhari Yadav is a G
pancha to the seizure panchnama under which weapons and
other articles were seized from the scene of offence and also
to the inquest panchnama. Independent panchas have not been

5.   (2011) 11 sec 754.                                             H
    944       SUPREME COURT REPORTS                 [2013) 5 S.C.R.


A   examined. The investigating officer has stated in his evidence
    that the seized articles were not sent to the court along with the
    charge-sheet. They were kept in the Malkhana of the police
    station. He has admitted that the seized articles were not sent
    to the Forensic Science Laboratory. No explanation is offered
B   by him about the missing sanha entries. His evidence on that
    aspect is evasive. Clothes of the deceased were not sent to
    the Forensic Science Laboratory. The investigating officer
    admitted that no seizure list of the clothes of the deceased was
    made. Blood group of the deceased was not ascertained: No
c   link is established between the blood found on the seized
    articles and the blood of the deceased. It is difficult to make
    allowance for such gross lapses. Besides, the evidence of eye-
    witnesses does not inspire confidence. Undoubtedly, a grave
    suspicion is created about the involvement of the accused in
    the offence of murder. It is well settled that suspicion, however
0
    strong, cannot take the place of proof. In such a case, benefit
    of doubt must go to the accused. In the circumstances, we
    quash and set aside the impugned judgment and order. The
    appellants-accused are in jail. We direct that the appellants -
    A1-Sunil Kundu, A2-Bablu Kundu, A3-Nageshwar Prasad Sah
E   and A4-Hira Lal Yadav be released forthwith unless otherwise
    required in any other case.

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

    K.K.T.                                        Appeals allowed.