whether the High Court without properly appreciating the evidence erred in setting aside the conviction of the respondents-accused Nos.1, 2 and 4. The duty of the appellate court is to consider and appreciate the evidence adduced by the prosecution and arrive at an independent conclusion. Medical Evidence: As per the deposition of PWs 1 and 3, accused Bhupendra Yadav fired at the deceased on his chest; Lallu @ Lal Diwan fired on the jaw and Raju Teli fired on the leg of the deceased. As per post-mortem report dated 17.11.1992, there were four firearm lacerated wounds. Apart from the injuries on the chest, jaw and the leg, there was firm arm injury on the right thigh 2 cm above the knee. PWs 1 and 3 have not explained the fourth firearm injury; nor they have made any mention of the accused firing multiple shots. This discrepancy between the medical evidence and the oral evidence assumes significance in view of the elaborated depositions made by the witnesses and the FIR which explains minute detail of the entire incident. Non recovery of empty shells of cartridges It is well-settled that any omission on the part of the Investigating Officer cannot go against the prosecution case. If the Investigating Officer has deliberately omitted to do what he ought to have done in the interest of justice, it means that such acts or omissions of Investigating Officer should not be taken in favour of the accused. But In his cross-examination, PW-5-Investigating Officer has stated that the broken pieces of cartridges, bursts and empty shells of the cartridges were not found on the site of the incident. PW-4-SubInspector of Police has also not made reference about the “empty shells of cartridges” in the scene of occurrence. The prosecution case of course, cannot be doubted merely on the ground of nonrecovery of weapons and other piece of evidence. But in the present case, an elaborately written FIR was registered immediately after the occurrence i.e. at 09.30 am. The Sub-Inspector of Police (PW-5) had promptly taken up the investigation and on the direction of PW-5, SI-R.N. Singh took sample earth and the blood-stained earth from the scene of occurrence and recovered a pair of footwear of the deceased and packet of kissan gutkha and prepared recovery memo of the same which are marked as Ex.-Ka.10 and Ex.-Ka.11 respectively. When the Investigating Officer had taken care even to recover packet of kissan gutkha from the scene of occurrence, curiously, the “empties” of the fired cartridges were not recovered. The material pieces of evidence like “empties” were lost; but this vital omission has not been explained. This factum assumes importance particularly, in view of the fact that the FIR is alleged to have been registered promptly at 09:30 a.m. of the occurrence which occurred at 09:00 am. The inquest was also conducted at 10:00 a.m. and the investigation also promptly started.

REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOS. 1790-1791 OF 2019
[Arising out of SLP(Crl.) Nos.269-70 of 2019]
JAI PRAKASH …Appellant
VERSUS
STATE OF UTTAR PRADESH
AND OTHERS …Respondents
WITH
CRIMINAL APPEAL NOS.1792-93 OF 2019
[Arising out of SLP(Crl.) Nos.288-89 of 2019]
J U D G M E N T
R. BANUMATHI, J.
Leave granted.

  1. These appeals arise out of the impugned judgment dated
    16.11.2018 passed by the High Court of Judicature at Allahabad in
    Criminal Appeal Nos.2403 and 5829 of 2005 whereby the High
    Court allowed the appeals thereby setting aside the conviction of
    respondents-accused Nos.1, 2 and 4 passed by the trial court under
    Sections 302 IPC and 120B IPC and acquitted them of the charges
    under Sections 302 IPC and 120-B IPC.
  2. Being aggrieved by the acquittal, the appellant-complainant
    has preferred Criminal Appeals arising out of SLP(Crl.) Nos.269-70
    1
    of 2019. The State of Uttar Pradesh has filed the other Criminal
    Appeals arising out of SLP(Crl.) Nos.288-89 of 2019.
  3. Briefly stated case of the prosecution is as under:-
    Complainant-Jai Prakash and deceased Ravi Prakash are
    real brothers. On 17.11.1992 shortly prior to 09.00 am, the
    appellant-complainant came back home after relieving himself near
    the Urai bus stand. At that time, he noticed the accused persons
    sitting with arms in their possession in the flour mill of Shankar Teliaccused No.3 (since acquitted by the trial court). Complainant
    came to his house. At that time, Sanjay Mishra and Ajay Kumar
    (PW-3) came to the house of deceased for discussion regarding the
    work of electric decoration in connection with the marriage of
    daughter of one Maiku Soni. The appellant sent Ravi Prakash to
    bring gutkha for Ajay Kumar (PW-3) and Sanjay Mishra. After
    purchasing gutkha when the deceased was returning from the shop
    and reached in front of accused No.3-Shankar Teli’s flour mill,
    accused Bhupendra Yadav (A2) armed with double barrelled gun,
    accused Raju Teli (A4) armed with single barrelled gun and accused
    Lallu @ Lal Diwan (A1) armed with country made pistol, caught hold
    of the deceased Ravi Prakash. Ravi Prakash tried to free himself by
    raising alarm. Accused Bhupendra Yadav fired bullet in the chest of
    2
    the deceased Ravi Prakash, accused Raju Teli fired in the leg and
    accused Lallu @ Lal Diwan fired in the jaw of the deceased. Ravi
    Prakash fell down on the spot. Appellant-Jai Prakash, Ajay Kumar
    (PW-3) and Sanjay Mishra who saw the occurrence rushed to the
    spot to save the deceased Ravi Prakash. On seeing them coming,
    accused persons came out of the flour mill and fled away from the
    scene of occurrence.
  4. As per the complainant, motive for the commission of the
    offence was the previous enmity harboured by accused Bhupendra
    Yadav with the family of the appellant due to newspaper publishing
    regarding the activities of accused Bhupendra Yadav by another
    brother of the appellant namely Om Prakash, in the weekly journal
    August Nama. Due to which, accused Bhupendra Yadav had
    beaten up Om Prakash and Om Prakash lodged complaint against
    accused Bhupendra Yadav. Sometimes prior to the occurrence,
    accused Bhupendra Yadav had beaten up the appellant also and on
    the basis of the complaint, a case was registered against accused
    Bhupendra Yadav. According to the appellant, as a consequence of
    the said enmity, Ravi Prakash was fired at by the accused and
    murdered.
    3
  5. Regarding the occurrence, PW-1-Jai Prakash got the
    complaint written by one Munni Lal and on the same day at 09.30
    am, the appellant lodged the same before the Police Station Rath,
    District-Hamirpur. Based on the complaint, FIR in Crime No.474 of
    1992 (Ex.-Ka.3) was registered against the accused under Sections
    302 IPC and 120B IPC. Investigation of the case was taken up by
    the Investigating Officer-PW-5-SI-Shobha Mani Tripathi. The
    Investigating Officer went to the place of occurrence and under his
    instructions, SI-R.N. Singh held inquest on the body of deceased
    Ravi Prakash. The dead body of Ravi Prakash was sent to hospital
    for post-mortem examination. SI-R.N. Singh took sample of simple
    and blood-stained earth from the scene of occurrence and
    recovered a pair of chappal of the deceased (Ex.-Ka.10) and packet
    of kisaan gutkha (Ex.-Ka.11) and prepared recovery memo.
  6. On the same day i.e. 17.11.1992 at about 04.15 pm, dead
    body of Ravi Prakash was sent to Rajkiya Purush Chikitsalaya, Rath
    where post-mortem was conducted on the dead body by Dr. B.K.
    Gupta (PW-2) who noted the following injuries:-
    (i) A firearm lacerated wound of entry on left side of chest, 4 cm
    below the medial left clavicle and 3 cm left to midline of chest.
    (ii) Multiple firearm lacerated wound of exit on left side of scapular
    region, 3 cm left to midline of back.
    4
    (iii) A firearm lacerated wound of entry on right side lower jaw, 5 cm
    right to the tip of chin.
    (iv) A firearm lacerated wound of entry on back of right thigh, 7.5 cm
    above the knee joint.
    (v) A firearm lacerated wound of entry on right thigh, 20 cm above the
    knee joint.
    (vi) A firearm lacerated wound of exit on antero right thigh, 10 cm
    above knee joint.
    (vii) Multiple abrasion on medial aspect of right leg above the medial
    malleolus.
    PW-2-Doctor opined that the death of the deceased was due to
    haemorrhagic shock as a result of ante-mortem injuries and issued
    Ex.-Ka.2-Post-Mortem Certificate. After completion of investigation,
    charge sheet was filed against all the four accused under Sections
    302 IPC and 120B IPC.
  7. When questioned, all the accused denied the charges and
    pleaded not guilty. To bring home the guilt of the accused, the
    prosecution examined total six witnesses – eye witnesses PWs 1
    and 3 and Doctor-PW-2 and IO (PW-5) and other witnesses. Upon
    consideration of the evidence, the trial court convicted accused
    Nos.1, 2 and 4 under Sections 302 IPC and 120B IPC and
    sentenced them to undergo life imprisonment. The trial court held
    that the evidence of eye witness-PW-1-Jai Prakash, brother of
    deceased and PW-3-Ajay Kumar are natural and acceptable. The
    5
    trial court held that PW-3-Ajay Kumar has given satisfying reasons
    for his presence at the house of PW-1 and the presence of PW-3
    outside the house of PW-1 is natural and cannot be doubted.
    Insofar as the question of non-examination of Sanjay Mishra and
    other persons in the mohalla, the trial court held that in the present
    social conditions and circumstances, independent witnesses are
    apprehensive that if they appear as witnesses in the criminal cases,
    their future will not be safe and therefore, non-examination of the
    independent witnesses will not affect the prosecution case. After
    referring to the post-mortem report and the evidence of PW-2-
    Doctor, the trial court held that the medical evidence corroborates
    the evidence of PWs 1 and 3. The trial court also held that nonrecovery of the guns and the contradictions pointed by the accused
    in the evidence of PWs 1 and 3, would not affect the case of the
    prosecution. With those findings, the trial court convicted accused
    Nos.1, 2 and 4. However, the trial court gave benefit of doubt to
    accused No.3-Shankar Teli and acquitted him.
  8. Being aggrieved, the respondents-accused Nos.1, 2 and 4
    have preferred appeals before the High Court. By referring to the
    contents of the FIR (Ex.-Ka.3), the High Court held that within short
    time, it is least possible for an illiterate person like PW-1 to lodge a
    6
    complaint with such details and the possibility cannot be ruled out
    that the First Information Report has been lodged after discussion
    and on the advice of Om Prakash. After referring to the deposition
    of PW-1 and PW-3, the High Court held that the presence of the
    witnesses at the place and at the time of occurrence appears to be
    doubtful. After referring to Post-Mortem Report, the High Court
    further held that in the Post-Mortem Report, it is mentioned that the
    large intestine of deceased was full and therefore, death might have
    taken place before Ravi Prakash attended nature call as generally,
    people attend the call of nature in the morning and it is least
    possible that the deceased has not attended the call of nature
    before 09.00 am. Doubting the presence of PW-3 at the place and
    time of occurrence, the High Court held that PW-3 could not
    properly explain the reason as to why he went to the house of PW-1
    and his version appears unnatural. Pointing out that there was
    motive for Om Prakash to instigate his brother PW-1 to make false
    allegations against the accused on the murder of his brother Ravi
    Prakash, the High Court held that accused Nos.1, 2 and 4 deserve
    to be given benefit of doubt. With those findings, the High Court
    allowed the appeals filed by the accused and set aside their
    conviction and sentence passed by the trial court and acquitted
    them.
    7
  9. Taking us through the evidence and the judgment of the trial
    court as well as the High Court, Mr. R. Basant, learned Senior
    counsel for the appellant has submitted that PW-1 has clearly stated
    each and every detail of the incident which is amply corroborated by
    the evidence of PW-3 and the evidence of PWs 1 and 3 are natural
    and their evidence is consistent with the medical evidence as well
    as the case of the prosecution. It was further submitted that
    considering the well-settled position, the trial court recorded the
    finding that the general public are reluctant to come forward to
    depose before the court and it is not proper to reject the case of the
    prosecution for non-examination of the independent witnesses. It
    was submitted that the High Court erred in holding that nonexamination of the independent witnesses and Munni Lal-scribe of
    the complaint is fatal to the prosecution case. Learned Senior
    counsel further submitted that the lapses in the investigation like
    non-sending of the blood-stained earth and sample earth taken from
    the scene of occurrence and non-recovery of “empties” from the
    scene of occurrence and other lapses would not affect the
    prosecution case and the High Court erred in reversing the
    conviction and acquitting the accused.
    8
  10. Mr. Basava Prabhu S. Patil, learned Senior counsel appearing
    for accused No.2-Bhupendra Yadav submitted that the motive is
    attributed to Om Prakash-brother of PW-1 and when the accused
    were having such enmity with Om Prakash, it is not known as to
    why the accused should attack Ravi Prakash and no injury was
    caused to PW-1 who was easily available to the accused even
    before Ravi Prakash passed through the flour mill of Shankar Teli
    (PW-3). The learned Senior counsel further submitted the PW-3 is
    a chance witness and as such, his presence in the house of PW-1 is
    not natural and PW-3 could not have witnessed the incident. It was
    further submitted that the High Court rightly pointed out the
    improbability of the occurrence that the accused who were waiting
    in Shankar Teli’s flour mill, would not have anticipated that Ravi
    Prakash would pass through the flour mill and considering the
    improbability of the prosecution case, the High Court rightly
    reversed the conviction and the impugned judgment warrants no
    interference.
  11. Mr. P.K. Sharma, learned counsel appearing for accused
    No.4-Raju Teli submitted that the conduct of PW-1, brother of
    deceased was unnatural as he made no attempt to save his
    younger brother rather he was interested only in preparing the
    9
    complaint (Ex.-Ka.3) and going to the police station. Learned
    counsel further submitted that the Post-Mortem Report shows four
    gun-shot injuries which are not in consonance with the oral
    evidence and the discrepancies between the oral and medical
    evidence has not been properly explained. The learned counsel
    submitted that PW-3 is a chance witness and the High Court rightly
    held that his presence in the house of PW-1 at the time of incident is
    unnatural. It was submitted that the prosecution case is highly
    doubtful since during the investigation, neither the fire arms were
    recovered nor the “empties” of the cartridges have been recovered
    from the place of occurrence and no ballistic opinion had been
    obtained by the prosecution to prove that the injury on the person of
    the deceased were caused by the alleged fire arms used by the
    accused.
  12. Mr. Kartikeya Bhargava, learned counsel appearing for
    accused No.1-Lallu @ Lal Diwan submitted that there were
    contradictions between the evidence of PWs 1 and 3 as to whether
    there was scuffle prior to the incident and this has not been properly
    appreciated by the trial court. The learned counsel further submitted
    that the multiple bruises found on the body of deceased has not
    been properly explained by the prosecution and the High Court
    10
    rightly reversed the conviction of the accused and the impugned
    judgment warrants no interference.
  13. We have carefully considered the contentions and perused
    the impugned judgment and materials on record. The point falling
    for consideration is as contended by the appellants, whether the
    High Court without properly appreciating the evidence erred in
    setting aside the conviction of the respondents-accused Nos.1, 2
    and 4.
  14. Case of the prosecution is that at about 09.00 am on
    17.11.1992, while returning from the shop after purchasing gutkha,
    deceased Ravi Prakash reached the front of flour mill of Shankar
    Teli, accused Bhupendra Yadav (A2) having double barrelled gun,
    accused Raju Teli (A4) armed with single barrelled gun and accused
    Lallu @ Lal Diwan (A1) armed with country made pistol (tamancha),
    caught hold of Ravi Prakash and Ravi Prakash raised alarm and
    tried to free himself from the grip of the accused. At that time,
    accused Bhupendra Yadav, Raju Teli and Lallu @ Lal Diwan fired
    from their respective weapons and fired shot on the chest, leg and
    jaw of Ravi Prakash respectively due to which Ravi Prakash fell
    down on the spot. Appellant Jai Prakash (PW-1), Ajay Kumar (PW3) and Sanjay Mishra rushed to the spot to save Ravi Prakash and
    on seeing them, all the three accused escaped from the place of
    11
    occurrence. As per the complaint/FIR (Ex.-Ka.3) and also the
    statement of PW-1, after his morning walk and after relieving
    himself at the Urai bus stand, while coming back home, he saw the
    respondents-accused Nos.1, 2 and 4 sitting in the flour mill of
    Shankar Teli with arms in their possession. Case of the prosecution
    is that there was previous enmity between the family of appellant
    and accused Bhupendra Yadav which is the cause of murder of
    Ravi Prakash. When that being the motive and if the accused were
    so found armed with weapons in the flour mill of Shankar Teli, the
    question arises as to why the appellant sent his brother-Ravi
    Prakash to purchase gutkha from the shop of one Choco Kori. This
    has not been explained by the appellant.
  15. The respondents-accused Nos.1, 2 and 4 armed with
    weapons were sitting in the flour mill of Shankar Teli and were
    talking to each other. The motive alleged by the prosecution is that
    about two years prior to the occurrence, Om Prakash-brother of the
    appellant-Jai Prakash had written about the illegal activities of
    accused Bhupendra Yadav and brought out news in the newspaper
    due to which accused Bhupendra Yadav had assaulted Om
    Prakash. In this regard, Om Prakash had lodged a criminal case in
    the police station and FIR has been registered and due to this
    12
    enmity, the accused are alleged to have committed murder of Ravi
    Prakash. Both the appellant-Jai Prakash and Ravi Prakash are
    brothers of Om Prakash. If the accused were looking for vengeance
    of Om Prakash-brother of Ravi Prakash, why the respondentsaccused allowed Jai Prakash (PW-1) to let go unharmed; more so,
    when PW-1 was normally in the habit of going for morning walk. If
    the motive for the crime is accepted, then all brothers of Om
    Prakash would be targets; but here attack was on only the
    deceased brother and PW-1 was spared although attackers were
    fully armed and near the place of occurrence. As pointed out by the
    High Court, case of the prosecution does not appear to be natural
    that the respondents-accused Nos.1, 2 and 4 have attacked Ravi
    Prakash who happened to pass through the flour mill by chance
    after purchase of gutkha.
  16. PW-3-Ajay Kumar stated that on the date of occurrence i.e.
    17.11.1992, he along with Sanjay Mishra had gone to the house of
    Jai Prakash (PW-1) to discuss about the electric decoration work for
    the marriage ceremony of daughter of one Maiku Soni in their
    mohalla. Admittedly, Ravi Prakash was the electrician by profession
    who was to attend to the electric work and the decoration. It is not
    explained as to why deceased Ravi Prakash who was to attend to
    13
    the electric work and the decoration work, instead of discussing the
    need of the prospective clients i.e. PW-3, would go out to purchase
    gutkha. Curiously, Maiku did not accompany Ajay Kumar (PW-3)
    and Sanjay Mishra to the house of Ravi Prakash for discussion. As
    pointed out by the High Court, neither Maiku nor any member of the
    family had gone with PW-3 to talk about the decoration for the
    marriage ceremony of daughter of Maiku. This raises serious
    doubts about the presence of PW-3 in the scene of occurrence and
    the case of the prosecution.
  17. Next, as per the deposition of PW-1, there is a goomty placed
    on the square platform of Munna Musalman from which gutka can
    be taken out. This goomti is at a distance of just fifteen steps from
    the house of the appellant and the shop of Choco Kori where Ravi
    Prakash had gone to buy the gutkha is at a distance of about 150-
    200 steps, again said 100-125 steps from the house of the
    appellant. It has nowhere been stated when the deceased could not
    have gotten gutkha right near his house and why should he go to a
    shop at some distance away from the house. Of course, PW-1
    firstly stated that he gave money to Ravi Prakash to purchase
    gutkha, however subsequently, he stated that in the shop of Choco
    Kori, credit account was maintained. The reason stated that Ravi
    14
    Prakash had gone to the shop of Choco Kori at a little bit far away
    place to purchase gutkha leaving his prospective clients for
    decoration of electric work is not quite convincing.
  18. PW-3-Ajay Kumar is a resident of mohalla Mughalpura, town
    and PS Rath, District-Hamirpur. In his evidence, PW-3 stated that
    he along with Sanjay Mishra had gone to the house of PW-1. PW-3
    further stated that he called PW-1 outside and when he was talking
    to PW-1, PW-1 asked Ravi Prakash to bring gutkha from the shop
    for Ajay Kumar and Sanjay Mishra. As discussed earlier, when PW3 had gone to the house of PW-1 to discuss about the electric
    decoration work for the marriage ceremony of daughter of Maiku,
    neither Maiku nor any member of his family accompanied PW-3 to
    discuss about the electric work in the marriage ceremony of
    daughter of Maiku. In his cross-examination, PW-3 could not explain
    the reason as to why he went to the house of PW-1. The High
    Court observed that PW-3 is a chance witness and expressed
    doubts about the presence of PW-3 in the scene of occurrence on
    17.11.1992 and we do not find any good reason to take a different
    view.
  19. There are several material discrepancies between the
    evidence of PW-1 and PW-3 as to the occurrence. PW-3 has stated
    15
    that when Ravi Prakash passed through the way, the respondentsaccused came out of the flour mill and there was a scuffle for
    sometime with Ravi Prakash and the accused fired the bullet shots
    from their guns and the pistol. On the other hand, PW-1 has only
    stated that the respondents-accused have fired at Ravi Prakash and
    has not stated anything about the scuffle. The witnesses who have
    deposed in the court after considerable lapse of time of course,
    cannot be expected to have photographic memory of the case. We
    are conscious of the well settled position that the minor
    discrepancies not touching upon the core of the prosecution case,
    would not affect the credibility of the witnesses or the prosecution
    case. Of course, PWs 1 and 3 have given their evidence in the
    court in 2003-04 near after a decade; but they are said to have
    witnessed the occurrence from a close distance. Whether there
    was scuffle between Ravi Prakash and the respondents-accused is
    an integral part of the main incident and the witnesses are expected
    to be consistent in their version. The inconsistencies in the version
    of PWs 1 and 3 as to whether there was a scuffle or not is not
    explained by the prosecution which again raises serious doubts
    about the prosecution case.
    16
  20. Medical Evidence: As per the deposition of PWs 1 and 3,
    accused Bhupendra Yadav fired at the deceased on his chest; Lallu
    @ Lal Diwan fired on the jaw and Raju Teli fired on the leg of the
    deceased. As per post-mortem report dated 17.11.1992, there were
    four firearm lacerated wounds. Apart from the injuries on the chest,
    jaw and the leg, there was firm arm injury on the right thigh 2 cm
    above the knee. PWs 1 and 3 have not explained the fourth firearm
    injury; nor they have made any mention of the accused firing
    multiple shots. This discrepancy between the medical evidence and
    the oral evidence assumes significance in view of the elaborated
    depositions made by the witnesses and the FIR which explains
    minute detail of the entire incident.
  21. There are also several lapses in the investigation of the case
    like non-recovery of “empties” fired from the guns on the deceased,
    non-recovery of fire arms used by the respondents-accused etc. It
    is well-settled that any omission on the part of the Investigating
    Officer cannot go against the prosecution case. If the Investigating
    Officer has deliberately omitted to do what he ought to have done in
    the interest of justice, it means that such acts or omissions of
    Investigating Officer should not be taken in favour of the accused.
    In his cross-examination, PW-5-Investigating Officer has stated that
    the broken pieces of cartridges, bursts and empty shells of the
    17
    cartridges were not found on the site of the incident. PW-4-SubInspector of Police has also not made reference about the “empty
    shells of cartridges” in the scene of occurrence. The prosecution
    case of course, cannot be doubted merely on the ground of nonrecovery of weapons and other piece of evidence. But in the
    present case, an elaborately written FIR was registered immediately
    after the occurrence i.e. at 09.30 am. The Sub-Inspector of Police
    (PW-5) had promptly taken up the investigation and on the direction
    of PW-5, SI-R.N. Singh took sample earth and the blood-stained
    earth from the scene of occurrence and recovered a pair of footwear
    of the deceased and packet of kissan gutkha and prepared recovery
    memo of the same which are marked as Ex.-Ka.10 and Ex.-Ka.11
    respectively. When the Investigating Officer had taken care even to
    recover packet of kissan gutkha from the scene of occurrence,
    curiously, the “empties” of the fired cartridges were not recovered.
    The material pieces of evidence like “empties” were lost; but this
    vital omission has not been explained. This factum assumes
    importance particularly, in view of the fact that the FIR is alleged to
    have been registered promptly at 09:30 a.m. of the occurrence
    which occurred at 09:00 am. The inquest was also conducted at
    10:00 a.m. and the investigation also promptly started. The
    accused-respondents allegedly ran away from the scene of
    18
    occurrence immediately after shooting at the deceased thus, they
    could not have possibly removed the cartridges, pieces, etc.
    themselves. This is not the case of the prosecution. It is also not the
    case of the prosecution that the area was cleaned and somebody
    has removed the “empties”. In such view of the matter, the nonrecovery of “bursts and empty shells of cartridges” and “broken
    pieces of cartridges” from the scene of occurrence raises serious
    doubt about the actual place of occurrence. As pointed out earlier,
    any act of commission/omission of the Investigating Officer cannot
    go to the advantage of the accused. But in a case of this nature
    where FIR is said to have been registered within half an hour of the
    occurrence and the investigation also commenced then and there,
    we find no reason as to why the “empties” and “bursts” from the
    scene of occurrence were not recovered.
  22. Furthermore, as per the evidence of Investigating Officer
    Shobha Mani Tripathi (PW-5), the accused were arrested on the
    very next day of occurrence i.e. 18.11.1992. Even though the
    accused were arrested on the very next day, the weapons used by
    them were not recovered. Of course, the case of the prosecution
    has to be examined de hors such omissions of the Investigating
    Officer like non-recovery of weapons etc. But material
    19
    discrepancies in the evidence of PWs 1 and 3 coupled with the
    unnaturalness of the prosecution case, non-recovery of weapons
    and empties raise serious doubts about the prosecution case.
  23. The duty of the appellate court is to consider and appreciate
    the evidence adduced by the prosecution and arrive at an
    independent conclusion. Like the trial court, the appellate court also
    must be satisfied of its conclusion. In exercise of power under
    Article 136 of the Constitution of India, in State of Uttar Pradesh v.
    Punni and others (2008) 11 SCS 153, while dealing with the order
    of acquittal passed by the High Court, the Supreme Court held that
    it would not ordinarily interfere with the findings of the High Court
    unless it is satisfied that such a finding is vitiated by some glaring
    infirmity in the appraisement of evidence or such finding is perverse
    or arbitrary. In the present case, the High Court has analysed entire
    evidence and recorded its finding as to how the trial court has gone
    wrong in not appreciating the material inconsistencies in the
    prosecution case. The findings recorded by the High Court in
    acquitting the respondents-accused Nos.1, 2 and 4 does not suffer
    from any infirmity warranting interference with the impugned
    judgment. The appeals filed by the complainant and the State of
    Uttar Pradesh are liable to be dismissed.
    20
  24. In the result, the impugned judgment dated 16.11.2018
    passed by the High Court of Judicature at Allahabad in Criminal
    Appeal Nos.2403 and 5829 of 2005 is affirmed and the criminal
    appeals arising out of SLP(Crl.) Nos.269-70 of 2019 filed by the
    appellant-Jai Prakash and criminal appeals arising out of SLP(Crl.)
    Nos.288-89 of 2019 filed by the State of Uttar Pradesh stand
    dismissed.
    ………………………..J.
    [R. BANUMATHI]
    ………………………..J.
    [A.S. BOPANNA]
    .………………………..J.
    [HRISHIKESH ROY]
    New Delhi;
    November 28, 2019
    21