Paragraph numbers below are the court’s original numbering, recovered from the source text.
11. It is not possible to accept the criticism that P. W. I was not told by Bahaduraboutthe quarrel but it is mentioned in the FIR. A closer look at the cross examination of P. W. I shows that the waiter did not tell him the cause of the quarrel. There is also no requirement that the FIR must be in the handwriting of the informant. Neither is it necessary to doubt the FIR because Girjesh Rai was not examined. The FIR has been otherwise proved in the evidence of the Police Officer (P. W. 7) who states that Himanshu Mohan Rai and Girjesh Rai came with a written report and he wrote the chik recorded as GD 1/005 on the FIR. This is supported by the deposition of P. W. I who referred to the handwriting of Girjesh Rai and his signatures and identified it on the Tehrir.
12. It cannot be inferred from any of the above circumstances that the FIR was ante-timed. Nor is it possible to disbelieve the timing of the FIR because the Police Constable went to the scene of crime and seized a shirt before the registration of the FIR at 23:05 hours i.e. at 22:00 hours. In fact, the police inspector (P.W. 6) stated in his evidence that he seized the shirt "around I 0 in the night" and that he does not remember the exact time. Ballistic Report does not confirm that the shots were fired from the recovered weapon
13. P. W. 6 made recovery of three khokha kartoos 0.32 bore in the presence of Bahadur and Krishna Kumar Singh. Evidently, there is no positive report from the ballistic expert and the report does not confinn that the shots were fired from the weapon that was recovered.
14. Apparently the police recovered a licensed gun from the accused lmran Afreen while he was boarding a train and the ballistic report showed that the licensed gun was not used for the killing. This means that the Police did not recover the actual weapon used for the killing and the accused had ample time to dispose off the weapon. It is however not possible to reject the credible ocular evidence of the eyewitness who witnessed the shooting and who are found be truthful.
15. It is possible that the prosecution may not recover the actual weapon in some cases. However, this cannot have the effect of discrediting reliable ocular testimony as we have here that the accused shot and killed the deceased, particularly when the lead bullets have been recovered and are found belonging to a commonly used 7.65 m.m. caliber i.e . .32 bore weapon. HIMANSHU MOHAN RAI v. STATE OF U.P. AND ANR. [S. A. BOBDE, J.] Jn Anvaruddin vs. Shakoor'. this Court considered the effect of obscure and oscillating evidence of the ballistic expert. The Court observed that: "] 0 …. .Jn this nebulous state of the evidence of the ballistic expert we are of the view that the High Court was wholly wrong in doubting the direct evidence of the three eye-witnesses on this ground. Where the expert evidence is obscure and oscillating, it is not proper to discredit the direct testimony of the eye-witnesses on such uncertain evidence. Jn such a situation unless the evidence of the eye-witnesses is shaken by some glaring infirmities, it would not be proper to doubt the correctness of their statements …. " In the case of Brijpa/ Singh vs. State of MP'. this Court observed that there was reliable ocular evidence of the accused having shot the deceased.
However, the ballistic expert as in this case reported that though both the guns were found to have !;,~en discharged recently, the empty cartridges that were seized from the spot did not match the rifle that was recovered. This Court observed that normally, if the eyewitness's evidence is absolutely acceptable, then such evidence could be accepted even ifthere is some contradiction in the medical or ballistics reports. However, the oral evidence was not found acceptable in this. case. In contrast, we find the oral evidence in the present case, particularly that ofP.W. 1, tci be completely acceptable and truthful. There is no iota of evidence on record which would suggest any motive on his part to falsely implicate the accused. We might add that there is no evidence as argued by the learned counsel forthe respondent, that the police conspired to frame the accused who was a congress leader and had protested against police high handedness.
16. In a different context, this Court in Gangabhavani vs. Rayapati Venkat Reddy and Ors'., observed that in case there is a contradiction between medical evidence and ocular evidence, the law is that though the ocular testimony of the eye witness has greater evidentiary value vis-a-vis medical evidence, where the medical evidence goes so far that it completely rules out all the possibility of the ocular evidence being true, the ocular evidence may be disbelieved. In the present case, 1 (1990)3 sec 266 2 (2003) 11 sec 219: (2004) sec (Cri) 90 3 (2014) 1ACR147 c c the expert evidence to the effect that the empty cartridges which were found on the spot were not fired from the weapon that was recovered, does not really create a contradiction with the ocular evidence of P. W. l that the accused fired at the deceased with a gun and killed him. It so happens that the gun recovered by the police, turns outto be the gun that was not us~d. This creates no contradiction between the evidence of P.W. l and the ballistics report though broadly it may amount to a contradiction in the prosecution case.
17. In this case, the ballistics report need not be rejected as untrue; it simply states that the empty cartridges found at the scene of the crime were not fired from the gun recovered from the accused. But this had no bearing on the credibility of the deposition of P. W. I that the accused shot the deceased with a gun, particularly as it is corroborated by the bullets in the body. In this case we find it safe to accept the evidence of Himanshu Mohan Rai and disregard the apparent contradictions. We might add that the fact that accused shot the deceased with a gun is also corroborated by the testimony of P. W. 2.
18. It is not possible for us to accept the reasoning of the High Court on the basis of the minor doubts and technicalities that the judgment of the Sessions Court convicting and sentencing the accused for the murder of Lal it Mohan Rai has no legs to stand on. The judgment of the Sessions Court which had the advantage of watching the demeanor of the witnesses could not have been lightly set aside.
19. In such cases where the evidence of the eye witness has been found to be truthful and as in this case corroborated by the fact that the bullets were recovered from the body of the deceased, it is obvious that c.annot have the effect of an acquittal.
20. This Court has held that an acquittal may undoubtedly be interfered with in certain circumstances. In Shivaii Sahabrao Bobade vs. State of Maharashtra', this Court held that: "6 …… The dangers of exaggerated°<levotion to the rule of benefit of doubt at the expense of social defence and to the soothing sentiment that all acquittals are always good regardless of justice to the victim and the comnfunity, demand espeeial emphasis in the contemporary context of escalating crime and escape. The judicial instrument has a public accountability. The cherished '<1973)2 sec 793 HIMANSHU MOHAN RAJ v. STATE OF U.P. AND ANR. [S. A. BOBDE, J.] principles or golden thread of proof beyond reasonable doubt which runs through the web of our law should not be stretched morbidly to embrace every hunch, hesitancy and degree of doubt. The excessive solicitude reflected in the attitude that a thousand guilty men may go but one innocent martyr shall not suffer is a false dilemma. Only reasonable doubts belong to the accused. Otherwise any practical systems of justice will then break down and lose credibility with the community. The evil of acquitting a guilty person light heartedly as a learned Author has sapiently observed, goes much beyond the simple fact that just one guilty person has gone unpunished. If unmerited acquittals become general, they tend to lead to a cynical disregard of the law, and this in turn leads to a public demand for harsher legal presumptions against indicted "persons" and more severe punishment of those who are found guilty. Thus, too frequent acquittals of the guilty may lead to a ferocious penal law, eventually eroding the judicial protection of the guiltless. For all these reasons it is true to say, with Viscount Simon, that "a miscarriage of justice may arise from the acquittal of the guilty no less than from the conviction of the innocent …
"In short, our jurisprudential enthusiasm for presumed innocence must be moderated by the pragmatic need to make criminal justice potent and realistic. A balance has to be struck between chasing chance possibilities as good enough to set the delinquent free and chopping the logic of preponderant probability to punish marginal innocents …… " 'In the case of State of UP vs. Anil Singh', the Court held as follows: "17. It is also our experience that invariably the witnesses add embroidery to prosecution story, perhaps for the fear of being disbelieved. But that is no ground to throw the case overboard, if true, in the main. If there is a ring of truth in the main, the case should not be rejected. It is the duty of the court to cull out the nuggets of truth from the evidence unles£ there is reason to believe that the inconsistencies or falsehood are so glaring as utterly to destroy confidence in the witnesses. It is necessary to remember that a JUdge does not preside over a criminal trial merely to see that no innocent man is punishe~. A Judge also ' (I 988) Supp sec 686 c c (2017] 2 S.C.R. presides to see that a guilty man does not escape. One is as important as the other. Both are public duties which the Judge has to perform."
21. We find that the facts and circumstances of this case warrant an interference with the acquittal of the accused. Accordingly, Criminal ·Appeal No.Sp of2011 and Criminal Appeal No.829of2011 are allowed. The judgment dated 22.04.2010 passed in Criminal Appeal No.8239 of 2008 by the High Court is set aside. The respondent accused – lmran Afreen is convicted under Section 302 !PC and is hereby sentenced to undergo life imprisonment. Accordingly, respondent No.2 – lmran Afreen is directed to surrender before the competent authority within a period of two weeks from today to undergo the remaining sentence. Dcvika Gujral Appeals allowed.