Important Point
Lapse of Investigation should not prevent the Court from accepting the eye witnesses’ evidence if it is otherwise truthful.

Judgment

Thomas, J.—The place of occurrence of this double murder case is within the vicinity of the Sessions Court of Allahabad. Victims of the murder were inter se brothers-in-law and the alleged murderers were also like that. One of the victims was facing trial in another murder case at the same Sessions Court and with his murder the said trial stood abated in that case. But the trial in the present case passed through all the stages and the sessions court convicted the two ac­cused of murder and death penalty was imposed on them. The High Court of Allahabad on appeal acquitted them both. So the State of U.P. has come up with this appeal by special leave.

2. Murder for murder was the motivation for the occurrence as per the prosecution case. Synopsis of this case is that a man named Pappu (who was the brother of first accused Sikandar Ali) was slain about a year prior to the incident in this case, and police had challaned Shamsher Singh alias Niley (one of the deceased) as an accused in that murder case along with some others. That case was committed to the Court of Sessions and the trial was proceeding before the Sessions Court. There was a posting of the case on 16.7.1986 on which day the deceased Shamsher Singh went to the Sessions Court in the company of his broth­er-in-law Ramji Tripathi one other deceased in this case), his brother Avtar Singh (P.W. 1) and father Harnam Singh (P.W. 2). As the court adjourned the case to another date the parties and those who escorted them dispersed from the precincts of the court. While the two deceased rode on a scooter P.W. 1 and P.W. 2 were on foot. They first passed the Treasury Gate and when the scooter turned to the right side of the road the two assailants, who were in ambush behind the compound wall, stretched up and fired from their pistols at the scooterist and his pillion rider. Both fell down on the road and the appellants fled from the scene and escaped in spite of a chase made by Avtar Singh.

3. Shamsher Singh died at the spot. The other injured (Ramji) was taken to the hospital in a police jeep but he too did not survive long due to fatal bullet injuries sustained. P.W. 1 Avtar Singh went to the nearby police station and lodged FIR at 1.15 P.M.

4. The trial Court, relying on the testimony of P.W. 1 and P.W. 2, came to the conclusion that assailants of the two victims were the accused in this case. Hence, they were convicted and sentenced to death. Reference made by the Sessions Judge for confirmation of the death sentence was considered along with the appeals filed by the two ac­cused and by the judgment under appeal learned Judges of the High Court have set aside the conviction and sentence.

5. High Court declined to rely on the testimony of P.W. 1 and P.W. 2 mainly on the strength of the evidence collected by the High Court under Section 391 read with Section 311 of the Code of Criminal Proce­dure. Such a course was adopted by the High Court when it noticed that a police jeep had reached the spot of occurrence soon after the inci­dent in which vehicle injured Ramji was rushed to the nearest hospi­tal. Learned Judges therefore felt that examination of the said police officer was of vital importance in this case particularly for appreci­ating the evidence of the eye-witnesses.

6. Shri Ram Prakash Tandon, the 3rd Field Officer (Police) was thus summoned by the High Court for examination. In his evidence Shri Tandon said that while perambulating around the area he reached the spot and found two injured persons lying on the road,. one of them was already dead and the other was not yet dead and that the surviving person was rushed to Sir Tej Bahadur Sapru Hospital and then he returned to the place of occurrence again.

7. High Court thought if P.W. 1 Avtar Singh who is the real brother of one of the victims and P.W. 2 Harnam Singh being his father were present at the scene it would not have escaped the notice of the police officer. Learned Judges further pointed out that as