LexSUNIL KUNDU AND ANR. versus STATE OF JHARKHAND
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A B [2013) s s.C.R. 924 SUNIL KUNDU AND ANR. v. STATE OF JHARKHAND (Criminal Appeal No. 1073 of 2008) APRIL 9, 2013 [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] 8 2. Use o·f firearms by the accused is not proved. 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; 9
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