PROSECUTION

As a general principle, it can be stated that error, illegality or defect in

investigation cannot have any impact unless miscarriage of justice is brought about
or serious prejudice is caused to the accused. (Union of India vs. Prakash P.
Hinduja AIR 2003 SC 2612). If the prosecution case is established by the
evidence adduced, any failure or omission on the part of the I.O cannot render the
case of the prosecution doubtful. (Amar Singh vs. Balwinder Singh, AIR 2003
SC 1164, Sambu Das vs. State of Assam AIR 2010 SC 3300).

An accused cannot be acquitted on the sole ground of defective investigation; to do

so would be playing into the hands of the I.O whose investigation was defective by
design. (Dhanaj Singh vs. State of Punjab AIR 2004 SC 1920).

If ocular evidence is reliable, defect in investigation such as not forwarding the

seized gun to FSL would not matter. (Amar Singh vs. Balwinder Singh AIR
2003 SC 1164).

There is a no legal requirement that pellets removed from the body of the deceased
during autopsy should be sent to the Ballistie expert to determine whether the
pellets were fired from the exhibited gun or not. On the contrary, such recovery
clearly confirms the case that the deceased died of gunshot injuries. Failure to send
the pellets to an expert does not render the prosecution case unacceptable. (State of
H.P vs. Mast Ram AIR 2004 SC 5754).

Cogent evidence of eyewitnesses cannot be rejected on account of the failure of

the IO to send blood stained cloth (wrapped around the wound) for chemical
examination. (Nirmal Singh vs. State of Bihar AIR 2005 SC 1265).

In a case of killing by shooting, where the IO failed to collect bloodstained soil

and empty shells from the scene, since the eye-witnesses deposed to the firing of
shots resulting in death, which was corroborated by medical evidence, the default
of the IO did not cause prejudice to the accused. (Maqbool vs. State of A.P. , AIR
2011 SC 184).

Absence of recovery of pellets from the scene or from the body of the injured
persons or of pistol or cartridge does not detract from the prosecution case. It does
not in every case prejudice the accused or affect the credibility of the prosecution
case. (State of Rajasthan vs. Arjun Singh, AIR 2011 SC 3380, Dandu
Jaggaraju vs. State of A.P. , AIR 2011SC 3387, Raj Kishore Jha vs. State of
Bihar AIR 2003 SC 4664).

The observations of the Supreme Court in AIR 2007 (2) ALD (Crl.) 924 Girja
Prasad (Dead) by LRs Vs. State of Madhya Pradesh are relevant and are
extracted herein as under:-

"It is well-settled that credibility of witness has to be tested on the touchstone of

truthfulness and trustworthiness. It is quite possible that in a given case, a Court of
Law may not base conviction solely on the evidence of Complainant or a Police
Official but it is not the law that police witnesses should not be relied upon and
their evidence cannot be accepted unless it is corroborated in material particulars
by other independent evidence. The presumption that every person acts honestly
applies as much in favour of a Police Official as any other person. No infirmity
attaches to the testimony of Police Officials merely because they belong to Police
Force. There is no rule of law which lays down that no conviction can be recorded
on the testimony of Police Officials even if such evidence is otherwise reliable and
trustworthy. The rule of prudence may require more careful scrutiny of their
evidence. But, if the Court is convinced that what was stated by a witness has a
ring of truth, conviction can be based on such evidence."

Even as way back as more than half a century ago, the Supreme Court in 1956
Crl. LJ 426 Aher Raj Khima Vs. State of Saurashtra had held:-

"The presumption that a person acts honestly applies as much in favour of a police
officer as of other persons, and it is not judicial approach to distrust and suspect
him without good grounds therefore. Such an attitude could do neither credit to the
magistracy nor good to the public. It can only run down the prestige of the police
administration."

In (1996) 3 SCC 338 Tahir v. State (Delhi) dealing with a similar question, the
Apex Court has held as under:

"Where the evidence of the police officials, after careful scrutiny, inspires
confidence and is found to be trustworthy and reliable, it can form basis of
conviction and the absence of some independent witness of the locality to
lend corroboration to their evidence, does not in any way affect the
creditworthiness of the prosecution case."
SEC 34 OF IPC

Kripal Singh v. State of Uttar Pradesh A.I.R. 1954 SC 706-

Fact- One fine morning Man Singh and Sher Singh going to Jairaj’s field. Bhupal,
Kripal and Sheoraj were on the way and asked them as to where were they going.
Man Singh etc. told them that they were going to harvest sugarcane field of jairaj.
Bhupal, Kripal and Sheoraj abused them and asked not to go and work there. But
Man Singh and Sher Singh did not listen to them and proceeded on. When they had
gone only a few yards the appellants rushed at them and started beating. Bhupal
and Kripal beat with the handle of spears and Sheoraj with a lathi. Jairaj also
arrived and asked as to why were they beating his labourers. He also stopped them
from beating. It was then that sheoraj hit Jairaj on his legs with the lathis and he
fell down. Kripal stabbed him with his spear near the ear. Bhupal stabbed with
spear on the left jaw, put his legs on his chest and extracted the spear-blade from
his jaw. Jairaj died with the coming out of the spear-blade from his jaw. The High
Court upheld the conviction under section 302 read with section 34 of the Indian
Penal Code for committing the murder. Appeal filed to Supreme Court.

Held- When there is no indication of premeditation or of a pre-arranged plan, the

mere fact that the two accused were seen at spot or that the two accused fired as a
result of which one person died and two others received simple injury could not be
held sufficient to infer common intention.[Defence]

However the common intention may develop on the spot as between a number of
persons and this has to be inferred from the act and conduct of the accused, and
facts and circumstances of the case. [Prosecution]