REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 629 OF 2010
Sahabuddin & Anr. … Appellants
Versus
State of Assam … Respondent
J U D G M E N T
Swatanter Kumar, J.
1. It is the case of the prosecution that the accused Sahabuddin was
married to one Sajna Begum, the deceased on 17th May, 2001, and they were
staying together. She was three months’ pregnant.
During her last visit
to her parental home, she wailed and was not willing to go back to her
husband’s house, stating that her husband and her brother-in-law would kill
her if their demands of dowry were not met.
However, the wish of her
parents prevailed and she was sent back to her matrimonial home. After
lapse of barely a couple of months i.e. on 9th September, 2001,
approximately four months after her marriage, at about 10 p.m., one
Sarifuddin, the elder brother-in-law of Sajna Begum, informed her uncle,
Taibur Rahman, PW7 that she fell down in the kitchen due to dizziness.
Ten minutes later, Sarifuddin came back and informed them that Sajana Begum
fell down and froth was coming out of her mouth and thereafter she died.
PW7 informed the mother of the deceased, Abejan Bibi, PW3, about the death
of her daughter, Sajna Begum.
When they reached the place of occurrence,
they saw that their daughter was lying dead. Suspecting that it was not a
natural death and that there had been some foul play on the part of the
accused persons i.e. the husband and the brother-in-law of the deceased,
PW3, lodged an FIR.
2. The FIR, Ext. 3, was registered under Section 304(B) of the Indian
Penal Code, 1860 (for short “IPC”).
However, the Court of competent
jurisdiction on the basis of the police report and upon hearing both the
parties found that a prima facie case under Section 302/34 IPC was made out
against the accused Sahabuddin and Sarifuddin.
They were charged with the
same offence and the case was put to trial.
The Investigating Officer,
Someshwar Boro, PW11, took over the investigation, examined a number of
witnesses and seized the dead body from the place in question. The body of
the deceased was subjected to post mortem. On 10th September, 2001,
Dr.
Swapan Kumar Sen, PW1 in the post mortem report, Ext. 1 stated that
injuries on the body of the deceased were ante-mortem and that there were
multiple bruises on the lower abdomen.
Also, the neck was swollen and
face was congested and swollen. Although, the cause of death could not be
ascertained, the visceras were preserved to be sent to the Forensic Science
Laboratory, Guwahati, for forensic and chemical analysis.
PW2, an
Executive Magistrate, who had conducted inquest on the body of the deceased
noticed that the hands of the deceased were close fisted and saliva was
coming out of her mouth along with a little quantity of foam. Black spots
were found on her belly and some spots were also noticed on her back. Ext.
2 is the inquest report.
3. The mother of the deceased, Abejan Bibi, PW3 was another material
witness and according to her, assault marks could be seen all over the body
of the deceased and that her neck was swollen. PW3 also stated that she
saw black marks on the left side of the abdomen of her deceased daughter.
Thus, on being suspicious that her daughter had been killed, PW3 lodged the
FIR.
PW4 who had accompanied PW3, stated PW3 to be her aunt and the
statement of PW 4 was quite similar to that of PW3. PW7, Taibur Rahman
was the uncle of the deceased, Sajna Begum who had first been informed of
her demise by her brother in law, Sarifuddin.
4. However, PW8 and PW9 were the prosecution witnesses who did not fully
support the case of the prosecution and were thus declared hostile by the
prosecution.
Both these witnesses were the neighbours of the accused
persons.
Accused in their statements under Section 313 of the Code of
Criminal Procedure (for short “the CrPC”) denied all the allegations and
opted to lead defence. The accused persons had examined as many as three
witnesses, who were primarily produced to establish the plea of alibi,
affirming that the accused were not present in the house, when the incident
took place.
5. Disbelieving the defence put forth by the accused, the Trial Court
held both the accused guilty of the offence punishable under Section 302
read with Section 34 IPC and having found them guilty, awarded them life
imprisonment and a fine of Rs. 5000/- and in default to undergo simple
imprisonment for six months.
6. At this stage, we may also notice that the Trial Court had observed
that PW1, Dr. Swapan Kumar Sen, the medical officer needs to be censured as
his report was found to be perfunctory in nature.
7. Challenging the legality and correctness of the judgment of the Trial
Court, the accused persons preferred an appeal before the High Court. The
High Court vide its judgment dated 27th November, 2008 dismissed the
appeal, confirming the finding of guilt and order of sentence passed by the
Trial Court, giving rise to the filing of the present appeal.
8. The learned counsel appearing for the appellants has raised the
following contentions while impugning the judgment under appeal:-
1. The story of the prosecution is improbable and prosecution has not
been able to establish its case beyond reasonable doubt.
2. PW3 to PW7 are all interested witnesses. By virtue of them being
the relatives of the deceased, these witnesses wanted to falsely
implicate the accused persons. Hence, their statements cannot be
relied upon and in any case, there are contradictions in the
statements of these witnesses. Thus, the accused is entitled to
the benefit of doubt.
3. PW8 and PW9 did not support the case of the prosecution. The
Court should have returned a finding in favour of the accused by
appreciating the statements of DW1, DW2 and DW3, in its correct
perspective and examining them in light of the statements of the
PW8 and PW9.
9. We are unable to find any merit in the contentions raised on behalf
of the appellants, which we propose to discuss together as the Court has to
refer to the same evidence for appreciation of the contentions raised on
behalf of both the appellants. Thus, it will be appropriate to discuss
the pleas together.
10. This is a case of circumstantial evidence as there is no eye witness
to the occurrence which has been produced by the prosecution.
11. Let us examine the various circumstances by which the prosecution has
attempted to establish the guilt of the accused beyond reasonable doubt.
PW3 is the mother of the deceased who had been informed by PW7, the uncle
of the deceased about her death. PW5 and PW7 are the uncles of the
deceased. PW4 is the cousin sister and PW6 is the sister of the
deceased. These persons had accompanied PW3 to the house of the accused,
when they got the news of death of the deceased.
12. It has been specifically stated by these witnesses that there were
marks on the body of the deceased, her neck was congested and swollen and
so was the face. The statement of these witnesses and particularly of PW3,
finds due corroboration with the post mortem report prepared by PW1 and,
therefore, it will be useful to refer to the entire statement of this
witness.
“On 10/9/2001 I was at Karimganj Civil hospital as Senior M & H.O.
On that day at 3-30 p.m. I held post mortem examination on the dead
body of Sajna Begum aged 18 years, a female Muslim, from Durlabpur
under Patharkandi P.S. on police requisition, being identified by
Head Constable Rabindra Deb and Md. Khairuddin, a relation of the
deceased and found as :-
External Appearance
An average built female aged about 18 years whose rigor mortis was
absent, eyes closed, mouth half open, froth in nostrils present
which was whitish. Multiple bruises on the lower abdomen. Neck
was swollen. Face was congested & swollen.
Cranium & Spinal Canal
All organs pale
Thorax
Heart was pale & chambers contained blood. Vessels contained
blood. All other organs were pale.
Abdomen
Stomach & its contents congested and contained ricy food materials.
Large intestine etc – pale & empty. Other organs were pale.
Organs of generation etc – pale. Uterus was 3 months pregnancy.
More details
Injuries were ante mortem.
Visaras also preserved for forensic and clinical analysis through
FSL, Guwahati.
1) Stomach and its contents.
2) Part of heart, lung, liver, spleen, kidney and rib.
Opinion
As the actual cause of death could not be ascertained the visceras
preserved for forensic & chemical analysis to FSL, Guwahati.
Ext. 1 is the Report, Ext. 1(1) is my signature.
Bruises and swollen face being congested may be due to some
physical assault. Black spots detected by the Executive
Magistrate at the time of preparing his inquest report corresponds
to bruises on the lower abdomen as described by my in my p.m.
report.
XXXXXXXXXXXXXXX
I was not present at the time of holding inquest by the Magistrate.
Bruise resembles to black spot. Normally after death, no black
spot is noticed on a dead person. Black spots may be caused due
to poisoning or suffocation.
Bruise may be caused due to dashing against piece of bamboo, bamboo
fencing etc.
Pale I mean bloodless and it may happen in normal death also.
Definite cause of death could not be detected.
Symptoms as described above may happen due to epilepsy.”
13. As is evident from the statement of PW1, the deceased was three
months pregnant. He specifically made a note of the fact that her neck was
swollen, her face was congested and swollen and there were multiple bruises
on her lower abdomen. According to this witness, the actual cause of
death could not be ascertained, but he stated that the presence of bruises
on the body of the deceased and her face being swollen and congested may be
due to some physical assault. In his cross-examination, he stated that
the black spots may be caused due to poisoning or suffocation and also that
symptoms described above may also occur due to epilepsy.
14. Certainly, the doctor did not give a concrete opinion as to the cause
of death. The report of the chemical analyst and the report of the
Forensic Science Laboratory were not placed on record so that the Court
could at least come to a definite conclusion on the basis of scientific
analysis. FSL Report was not sent, no report was obtained and, in fact
according to PW11, the viscera could not be examined by the laboratory as
it was not sent in time. It is evident that the investigation conducted
by the Investigating Officer, PW11 and the post mortem examination by the
doctor was improper in its very nature. Thus, the remarks made by the
Trial Court in this behalf are fully justified.
15. Reverting to the evidence, the post mortem report, Ext. 1 clearly
corroborates the statement of five witnesses, PW3, PW4, PW5, PW6 and PW7
and there is no reason for the Court to cast a doubt upon their statement.
All these witnesses are related to the deceased. Merely because they
are all relatives of the deceased will not by itself cause any prejudice to
the case of the prosecution. In such events, it is not the outsiders who
would come to the rescue and would stand by the victim/deceased and their
family, but it is the members of their family who would go to witness such
an unfortunate incident.
16. An interested witness is the one who is desirous of falsely
implicating the accused with an intention of ensuring their conviction.
Merely being a relative would not make the statement of such witness
equivalent to that of an interested witness. The statement of a related
witness can safely be relied upon by the Court, as long as it is
trustworthy, truthful and duly corroborated by other prosecution evidence.
At this stage, we may refer to the judgment of this Court in the case of
Gajoo v. State of Uttarakhand [JT 2012 (9) SC 10], where the Court while
referring to various previous judgments of this Court, held as under:-
We are not impressed with this argument. The appreciation of
evidence of such related witnesses has been discussed by this
Court in its various judgments. In the case of Dalip Singh v.
State of Punjab [(1954 SCR 145], while rejecting the argument
that witnesses who are close-relatives of the victim should not
be relied upon, the Court held as under:-
“26. A witness is normally to be considered independent
unless he or she springs from sources which are likely to be
tainted and that usually means unless the witness has cause,
such as enmity against the accused, to wish to implicate him
falsely. Ordinarily, a close relative would be the last to
screen the real culprit and falsely implicate an innocent
person. It is true, when feelings run high and there is
personal cause for enmity, that there is a tendency to drag
in an innocent person against whom a witness has a grudge
along with the guilty, but foundation must be laid for such
a criticism and the mere fact of relationship far from being
a foundation is often a sure guarantee of truth. However, we
are not attempting any sweeping generalisation. Each case
must be judged on its own facts. Our observations are only
made to combat what is so often put forward in cases before
us as a general rule of prudence. There is no such general
rule. Each case must be limited to and be governed by its
own facts.”
Similar view was taken by this Court in the case of State of
A.P. v. S. Rayappa and Others [(2006) 4 SCC 512]. The court
observed that it is now almost a fashion that public is
reluctant to appear and depose before the court especially in
criminal cases and the cases for that reason itself are dragged
for years and years. The Court also stated the principle that,
“by now, it is a well-established principle of law that
testimony of a witness otherwise inspiring confidence cannot be
discarded on the ground that he being a relation of the deceased
is an interested witness. A close relative who is a very
natural witness cannot be termed as interested witness. The term
interested postulates that the person concerned must have some
direct interest in seeing the accused person being convicted
somehow or the other either because of animosity or some other
reasons.”
This Court has also taken the view that related witness does
not necessarily mean or is equivalent to an interested witness.
A witness may be called interested only when he or she derives
some benefit from the result of litigation; in the decree in a
civil case, or in seeing an accused person punished. {Ref. State
of Uttar Pradesh v. Kishanpal and Others [(2008) 16 SCC 73]}
In the case of Darya Singh & Ors. v. State of Punjab [AIR 1965
SC 328], the Court held as under:-
“6....On principle, however, it is difficult to accept the
plea that if a witness is shown to be a relative of the
deceased and it is also shown that he shared the hostility of
the victim towards the assailant, his evidence can never be
accepted unless it is corroborated on material particulars.”
Once, the presence of PW2 and PW3 is shown to be natural, then
to doubt their statement would not be a correct approach in law.
It has unequivocally come on record through various witnesses
including PW4 that there was a ‘Satyanarayan Katha’ at the house
of Chetu Ram which was attended by various villagers. It was on
their way back at midnight when PW2 and PW3 had seen the
occurrence in dark with the help of the torches that they were
carrying. The mere fact that PW2 happens to be related to PW1
and to the deceased, would not result in doubting the statement
of these witnesses which otherwise have credence, are reliable
and are duly corroborated by other evidence. In such cases, it
is only the members of the family who come forward to depose.
Once it is established that their depositions do not suffer from
material contradictions, are trustworthy and in consonance with
the above-stated principles, the Court would not be justified in
overlooking such valuable piece of evidence.
17. In light of the above principles and the evidence noticed supra, we
have no doubt in our mind that the statements of PWs were reliable and
trustworthy, as they were fully corroborated by other prosecution,
documentary and ocular evidence. The learned counsel appearing for the
appellants contended that there are material variations and contradictions
in the statement of PW3 and PW6 respectively with regard to the time of
incident as well as death of the deceased. Therefore, neither these
witnesses can be relied upon nor can prosecution be said to have proved its
case beyond reasonable doubt. Such a submission can only be noticed to
be rejected.
18. PW3 had mentioned that she came to know about the death of her
daughter at about 9.30 p.m., however, according to PW6, it was about 8 or 9
o’clock when she was informed of the death of her sister. This would hardly
be a contradiction. It is a plausible fact that there could be some
variations in the statements of witnesses with respect to a particular
incident. Thus, in the facts and circumstances of the present case, a mere
variation in time is not a material contradiction. It was the uncle of
the deceased, PW7, who had been informed by the co-accused, the brother-in-
law of the deceased, firstly about the sickness of the deceased and then
about her death.
19. Every variation or immaterial contradiction cannot provide advantage
to the accused. In the facts and circumstances of the present case,
variation of 45 minutes or an hour in giving the time of incident will not
be considered fatal. It is a settled principle of law that while
appreciating the evidence, the Court must examine the evidence in its
entirety upon reading the statement of a witness as a whole, and if the
Court finds the statement to be truthful and worthy of credence, then every
variation or discrepancy particularly which is immaterial and does not
affect the root of the case of the prosecution case would be of no
consequences. Reference in this regard can be made to State represented by
Inspector of Police v. Saravanan and Anr. [(2008) 17 SCC 587].
20. Next, it was contended that PW8 and PW9 had not supported the case of
the prosecution and, therefore, the accused should be entitled to benefit
of doubt. PW8 had stated that just before the sunset, the deceased fell
down while she was fetching water from the river. She got up and ran like
a mad man. According to him, the deceased was caught by evil spirits and
was an epileptic. PW9, narrated that he heard cries while he was working
in the paddy field and when he went to the house of the accused, he saw the
deceased struggling for life. He met the mother-in-law of the deceased and
stated that none else was present there. According to him, the deceased
died of epilepsy.
21. We may notice that both these witnesses are neighbours of the accused
and the same has also been confirmed by them. They affirmed the death of
the deceased but gave different versions as to the place and the manner in
which she died. The statements of such witnesses would hardly carry any
weight in face of statements of PW3 to PW7. The possibility of their
turning hostile by virtue of them being neighbours of the accused cannot be
ruled out.
22. The prosecution has been able to establish various circumstances
which complete the chain of events and such chain of events undoubtedly
point towards the guilt of the accused persons. These circumstances are;
the victim coming to her parental home and declining to go back to her
matrimonial home, she being persuaded to go to her matrimonial home by her
parents and within a few days thereafter, she dies at her in laws place.
Further that she had various injuries on her lower abdomen and that her
neck and face were congested and swollen. The post mortem report
completely corroborates the statements of PWs. Ext. 2, the inquest
report, also fully substantiates the case of the prosecution. Besides
this, PW3 had categorically stated that her daughter was not suffering from
epilepsy or any other disease and that she died as a result of torture
inflicted on her by the accused persons. In the cross-examination, two
suggestions were put forth to her, one that the deceased died of epilepsy
and secondly, that supernatural powers had seized her and that she could
not be cured by Imam and thus, died, both of which were denied by her. In
any case, this contradiction in the stand taken by the defence itself point
towards the untruthfulness and falsity of the defence.
23. If she was sick, as affirmed by her in laws, then why was she not
taken to any doctor or a hospital by the accused persons. She admittedly
did not die of any heart attack or haemorrhage. She died in the house of
the appellants and therefore, it was expected of the appellants to furnish
some explanation in their statement under Section 313 CrPC as to the exact
cause of her death. Unfortunately, except barely taking the plea of alibi,
accused persons chose not to bring the truth before the Court i.e. the
circumstances leading to the death of the deceased.
24. The plea of alibi was taken by the appellants and was sought to be
proved by the statement of defence witnesses, DW1, DW2 and DW3
respectively. These witnesses have rightly been disbelieved by the Trial
Court as well as by the High Court. We also find no merit in the plea of
alibi as it is just an excuse which has been put forward by the accused
persons to escape the liability in law. There is a complete
contradiction in the material facts of the statement of DW1, DW2 and DW3.
According to the statements of DWs that none of the family members were
present on the spot is strange in light of the fact that the deceased was
so ill that she died after a short while due to her illness. If none of
the accused, whom these witnesses knew were present, then it is not only
doubtful but even surprising as to how they came in contact with the
deceased at the relevant time. The falsity of the evidence of the defence
is writ large in the present case. For these reasons, we find the conduct
of the accused unnatural and the statement of these witnesses
untrustworthy. The plea of alibi is nothing but a falsehood.
25. Once, the Court disbelieves the plea of alibi and the accused does
not give any explanation in his statement under Section 313 CrPC, the Court
is entitled to draw adverse inference against the accused. At this stage,
we may refer to the judgment of this Court in the case of Jitender Kumar v.
State of Haryana [(2012) 6 SCC 204], where the Court while disbelieving
the plea of alibi had drawn an adverse inference and said that this fact
would support the case of the prosecution.
“51. The accused in the present appeal had also taken the plea
of alibi in addition to the defence that they were living in a
village far away from the place of occurrence. This plea of
alibi was found to be without any substance by the Trial Court
and was further concurrently found to be without any merit by
the High Court also. In order to establish the plea of alibi
these accused had examined various witnesses. Some documents
had also been adduced to show that the accused Pawan Kumar and
Sunil Kumar had gone to New Subzi Mandi near the booth of DW-1
and they had taken mushroom for sale and had paid the charges to
the market committee, etc. Referring to all these documents,
the trial court held that none of these documents reflected the
presence of either of these accused at that place. On the
contrary the entire plea of alibi falls to the ground in view of
the statements of PW-10 and PW-11. The statements of these
witnesses have been accepted by the Courts below and also the
fact that they have no reason to falsely implicate the accused
persons. Once, PW-10 and PW-11 are believed and their
statements are found to be trustworthy, as rightly dealt with by
the Courts below, then the plea of abili raised by the accused
loses its significance. The burden of establishing the plea of
alibi lay upon the appellants and the appellants have failed to
bring on record any such evidence which would, even by
reasonable probability, establish their plea of alibi. The
plea of alibi in fact is required to be proved with certainty so
as to completely exclude the possibility of the presence of the
accused at the place of occurrence and in the house which was
the home of their relatives. {Ref. Shaikh Sattar v. State of
Maharashtra [(2010) 8 SCC 430]}.”
26. For the reasons afore-stated, we find no merit in the contentions
raised on behalf of the appellants. Before we part with this file, we
cannot help but to observe that the competent authority ought to have taken
some action on the basis of the observations made by the Trial Court in its
judgment under appeal.
27. The Investigating Officer has conducted investigation in a suspicious
manner and did not even care to send the viscera to the laboratory for its
appropriate examination. As already noticed, in his statement, PW11 has
stated that viscera could not be examined by the laboratory as it was not
sent in time. There is a deliberate attempt on the part of the
Investigating Officer to misdirect the evidence and to withhold the
material evidence from the Court.
28. Similarly, PW1, the doctor who conducted the post mortem of the
corpse of the deceased was expected to categorically state the cause of
death in which he miserably failed. He is a doctor who is expected to
perform a specialized job. His evidence is of great concern and is
normally relied upon by the Courts. For reasons best known to him, he
made his evidence totally vague, uncertain and indefinite. Given the
expertise and knowledge possessed by a doctor PW1, was expected to state
the cause of death with certainty or the most probable cause of death in
the least. According to PW1, the black spots noticed on the deceased may
be because of poisoning or it could be because of suffocation, although he
also mentioned in his report that the symptoms described above may occur
due to epilepsy. It is not possible to imagine that there would be no
distinction whatsoever, if such injuries were inflicted by assault or
suffocation or be the result of an epileptic attack.
29. In our considered view, the doctor has also failed to discharge his
professional obligations in terms of the professional standards expected of
him. He has attempted to misdirect the evidence before the Court and has
intentionally made it so vague that in place of aiding the ends of justice,
he has attempted to help the accused.
30. In our considered view, action should be taken against both these
witnesses. Before we pass any direction in this regard, we may refer to
the judgment of this Court in Gajoo (supra), where the Court had directed
an action against such kind of evidence and witnesses;
“In regard to the defective investigation, this Court in the case of
Dayal Singh and Others. v. State of Uttaranchal [Criminal Appeal 529
of 2010, decided on 3rd August, 2012] while dealing with the cases of
omissions and commissions by the investigating officer, and duty of
the Court in such cases held as under:-
“22. Now, we may advert to the duty of the Court in such cases.
In the case of Sathi Prasad v. The State of U.P. [(1972) 3 SCC
613], this Court stated that it is well settled that if the police
records become suspect and investigation perfunctory, it becomes
the duty of the Court to see if the evidence given in Court should
be relied upon and such lapses ignored. Noticing the possibility
of investigation being designedly defective, this Court in the case
of Dhanaj Singh @ Shera & Ors. v. State of Punjab [(2004) 3 SCC
654], held, “in the case of a defective investigation the Court has
to be circumspect in evaluating the evidence. But it would not be
right in acquitting an accused person solely on account of the
defect; to do so would tantamount to playing into the hands of the
investigating officer if the investigation is designedly
defective.”
(Emphasis supplied)
23. Dealing with the cases of omission and commission, the
Court in the case of Paras Yadav v. State of Bihar [AIR 1999 SC
644], enunciated the principle, in conformity with the previous
judgments, that if the lapse or omission is committed by the
investigating agency, negligently or otherwise, the prosecution
evidence is required to be examined de hors such omissions to find
out whether the said evidence is reliable or not. The contaminated
conduct of officials should not stand in the way of evaluating the
evidence by the courts, otherwise the designed mischief would be
perpetuated and justice would be denied to the complainant party.
In the case of Zahira Habibullah Sheikh & Anr. Vs. State of Gujarat
& Ors. [(2006) 3 SCC 374], the Court noticed the importance of the
role of witnesses in a criminal trial. The importance and primacy
of the quality of trial process can be observed from the words of
Bentham, who states that witnesses are the eyes and ears of
justice. The Court issued a caution that in such situations, there
is a greater responsibility of the court on the one hand and on the
other the courts must seriously deal with persons who are involved
in creating designed investigation. The Court held that
legislative measures to emphasize prohibition against tampering
with witness, victim or informant have become the imminent and
inevitable need of the day. Conducts which illegitimately affect
the presentation of evidence in proceedings before the Courts have
to be seriously and sternly dealt with. There should not be any
undue anxiety to only protect the interest of the accused. That
would be unfair, as noted above, to the needs of the society. On
the contrary, efforts should be to ensure fair trial where the
accused and the prosecution both get a fair deal. Public interest
in proper administration of justice must be given as much
importance if not more, as the interest of the individual accused.
The courts have a vital role to play. (Emphasis supplied)
24. With the passage of time, the law also developed and the
dictum of the Court emphasized that in a criminal case, the fate of
proceedings cannot always be left entirely in the hands of the
parties. Crime is a public wrong, in breach and violation of public
rights and duties, which affects the community as a whole and is
harmful to the society in general.
27. In Ram Bali v. State of Uttar Pradesh [(2004) 10 SCC 598],
the judgment in Karnel Singh v. State of M.P. [(1995) 5 SCC 518]
was reiterated and this Court had observed that ‘in case of
defective investigation the court has to be circumspect while
evaluating the evidence. But it would not be right in acquitting an
accused person solely on account of the defect; to do so would
tantamount to playing into the hands of the investigation officer
if the investigation is designedly defective’.
28. Where our criminal justice system provides safeguards of
fair trial and innocent till proven guilty to an accused, there it
also contemplates that a criminal trial is meant for doing justice
to all, the accused, the society and a fair chance to prove to the
prosecution. Then alone can law and order be maintained. The
Courts do not merely discharge the function to ensure that no
innocent man is punished, but also that a guilty man does not
escape. Both are public duties of the judge. During the course of
the trial, the learned Presiding Judge is expected to work
objectively and in a correct perspective. Where the prosecution
attempts to misdirect the trial on the basis of a perfunctory or
designedly defective investigation, there the Court is to be deeply
cautious and ensure that despite such an attempt, the determinative
process is not sub-served. For truly attaining this object of a
‘fair trial’, the Court should leave no stone unturned to do
justice and protect the interest of the society as well.
29. This brings us to an ancillary issue as to how the Court
would appreciate the evidence in such cases. The possibility of
some variations in the exhibits, medical and ocular evidence cannot
be ruled out. But it is not that every minor variation or
inconsistency would tilt the balance of justice in favour the
accused. Of course, where contradictions and variations are of a
serious nature, which apparently or impliedly are destructive of
the substantive case sought to be proved by the prosecution, they
may provide an advantage to the accused. The Courts, normally,
look at expert evidence with a greater sense of acceptability, but
it is equally true that the courts are not absolutely guided by the
report of the experts, especially if such reports are perfunctory,
unsustainable and are the result of a deliberate attempt to
misdirect the prosecution. In Kamaljit Singh v. State of Punjab
[2004 Cri.LJ 28], the Court, while dealing with discrepancies
between ocular and medical evidence, held, “It is trite law that
minor variations between medical evidence and ocular evidence do
not take away the primacy of the latter. Unless medical evidence
in its term goes so far as to completely rule out all possibilities
whatsoever of injuries taking place in the manner stated by the
eyewitnesses, the testimony of the eyewitnesses cannot be thrown
out.”
30.
Where the eye witness account is found credible and
trustworthy, medical opinion pointing to alternative possibilities
may not be accepted as conclusive.
The expert witness is expected
to put before the Court all materials inclusive of the data which
induced him to come to the conclusion and enlighten the court on
the technical aspect of the case by examining the terms of science,
so that the court, although not an expert, may form its own
judgment on those materials after giving due regard to the expert’s
opinion, because once the expert opinion is accepted, it is not the
opinion of the medical officer but that of the Court. {Plz. See
Madan Gopal Kakad v. Naval Dubey & Anr. [(1992) 2 SCR 921: (1992) 3
SCC 204]}.”
“The present case, when examined in light of the above principles,
makes it clear that
the defect in the investigation or omission on the
part of the investigation officer cannot prove to be of any advantage
to the accused.
No doubt the investigating officer ought to have
obtained serologist’s report both in respect of Ext. 2 and Ext. 5 and
matched it with the blood group of the deceased.
This is a definite
lapse on the part of the investigating officer which cannot be
overlooked by the Court, despite the fact that it finds no merit in the
contention of the accused.
For the reasons afore-recorded, we dismiss this appeal being without
any merit. However, we direct the Director General of Police,
Uttarakhand to take disciplinary action against Sub-Inspector, Brahma
Singh, PW6, whether he is in service or has since retired, for such
serious lapse in conducting investigation.
The Director General of Police shall take a disciplinary action against
the said officer and if he has since retired, the action shall be taken
with regard to deduction/stoppage of his pension in accordance with the
service rules. The ground of limitation, if stated in the relevant
rules, will not operate as the inquiry is being conducted under the
direction of this Court.”
31. In view of the above settled position of law,
we hereby direct the
Director General of Police, State of Assam and Director General of Health
Services, State of Assam to take disciplinary action against PW1 and PW11,
whether they are in service or have since retired. If not in service,
action shall be taken against them for deduction/stoppage of pension in
accordance with the service rules.
However, the plea of limitation, if
any under the relevant rules would not operate, as the departmental inquiry
shall be conducted in furtherance to the order of this Court.
32. The appeal is dismissed, however with the above directions.
………...….…………......................J.
(Swatanter Kumar)
………...….…………......................J.
(Gyan Sudha Misra)
New Delhi,
December 13, 2012
