STATE OF UTTAR PRADESH v. WASIF HAIDER ETC

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, 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 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 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 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]

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 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 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 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 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, 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 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 “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 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] A B C D E F G H 1164 SUPREME COURT REPORTS [2018] 14 S.C.R. A B C D E F G H