Allahabad High Court
Ramesh vs State Of U.P. on 30 May, 2019
Equivalent citations: AIRONLINE 2019 ALL 1064, 2019 (108) ACC (SOC) 135 (ALL)
Author: Pritinker Diwaker
Bench: Pritinker Diwaker, Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD
Reserved on 29.4.2019
Delivered on 30.5.2019
CRIMINAL APPEAL No.5213 of 2010
Ramesh ..... Appellant
Vs.
State of Uttar Pradesh ..... Respondent
With:
CRIMINAL APPEAL No.5565 of 2010
1. Satyendra @ Pappu
2. Bhola @ Karunesh
3. Bhura @ Varunesh .....Appellants
Vs.
State of Uttar Pradesh ....Respondent
With:
CRIMINAL APPEAL No.5964 of 2010
Khem Singh alias Mana .....Appellant
Vs.
State of Uttar Pradesh .....Respondent
***
Counsel for the Appellants: Sri Anil Tiwari
Sri Ajay Rajendra
Counsel for the Respondent: Sri Ajit Ray, AGA
***
Hon'ble Pritinker Diwaker, J.
Hon'ble Rajeev Misra, J.
Per: Pritinker Diwaker, J.
As all these appeals arise out of a common judgment and order dated 30.07.2010 passed by the Additional Sessions Judge/Special Judge (SC/ST Act), Etawah in Sessions Trial No.41 of 2006 (State Vs. Satyendra @ Pappu and others), convicting the appellants under Sections 148 and 302 read with Section 149 of IPC and sentencing them to undergo two years rigorous imprisonment and further to undergo imprisonment for life, with a fine of Rs.20,000/- each, in default thereof, one year additional jail sentence and all sentences are directed to run concurrently, they are being disposed by this common judgment.
2. In the present case, there are two deceased, namely, Sheela and her brother Ram Prakash. As per prosecution case, about 16 months prior to the date of occurrence, i.e., 23.09.2005, brother of the two deceased, namely, Har Prakash @ Pappu was done to death by accused Satyendra, Bhura, Khem Singh and one Ram Bahadur. In the said case, Satya Prakash, another brother of the two deceased was an important witness and the accused persons wanted to ensure that the said Satya Prakash may not give any evidence against them. On 23.09.2005, i.e. the date of occurrence at 6.30 am, all the accused-appellants had gone to the house of the deceased persons and caused firearm injuries to Sheela and Ram Prakash. After sustaining injuries, Sheela expired at the place of occurrence itself, whereas injured Ram Prakash was initially taken to the Government Hospital, Bharthana, then Etawah, then Gwalior and thereafter at Agra, where he succumbed to his injuries on 28.09.2005.
3. FIR (Ex.Ka.3) was lodged on 23.09.2005 at 8.10 am by another brother of the two deceased, namely, Chandra Prakash (PW-1) against all the five accused persons under Sections 147, 148, 149, 307 and 302 of IPC.
Inquest on the dead body of the deceased-Sheela was conducted, vide Ex.Ka.6 and the body was sent for postmortem which was conducted on 23.09.2005 by Dr A K Tiwari (PW-3) vide Ex.Ka.2.
As per Autopsy Surgeon, following injuries were found on the body of deceased Sheela:
"1. Fire arm wound of entry of 2.5 x 2.5 cm x cavity deep on right side jt. angle 6 cm above Iliac crest margin inverted contused collar present around the wound. Wound passing through right kidney, mesentry, spleen, stomach and left lobe of liver and other structure. One metallic piece recovered from chest wall of left side flank between 10 in x 11 in rib. Metallic piece sealed. Abdominal cavity full of Blood."
Cause of death of deceased-Sheela was 'shock and haemorrhage as a result of ante-mortem injuries'.
4. At Agra, injured Ram Prakash was treated by Dr Rakesh Agrawal (PW-11) and according to him before the death of Ram Prakash, he operated him on 26.09.2005 and the injury sustained by injured Ram Prakash could have been made by the firearm.
5. The postmortem report of deceased-Ram Prakash is Ex.Ka.5, which was conducted on 28.09.2005 by Dr A A Khan (PW-5) and as per Autopsy Surgeon, he sustained the following injuries:
"Face is a stitched wound 15 cm long on top of the skull, 2 cm Rt. let. to mid line.
Prior end of the wound started from the top of head, 3 cm above to the medial end of Rt. eye brow.
Tracheostomy hole - 1 cm x 1 cm - on front of neck."
Cause of death of deceased-Ram Prakash was 'due to shock and septicemia as a result of ante-mortem injuries.
6. Vide Exs. Ka.14 and 15, recovery of plain soil and blood stained soil were made. 15 empty cartridges were also seized and as per Forensic Science Laboratory (un-exhibited), all empty cartridges were found to be of 12 bore and 315 bore guns.
7. While framing charge, the trial judge has framed charge against the accused persons under Sections 148 and 302/149 of IPC.
8. So as to hold accused persons guilty, prosecution has examined eleven witnesses. Statements of accused persons were recorded under Section 313 of Cr PC in which, they pleaded their innocence and false implication.
9. By the impugned judgment, the trial Judge has convicted all the accused persons under Sections 148 and 302/149 of IPC and sentenced them as mentioned in paragraph no.1 of this judgment. Hence, these appeals.
10. Counsel for the appellants submits:
(i) that FIR is anti-timed/anti-dated.
(ii) that Chandra Prakash (PW-1) and Dhyan Singh (PW-2) have been examined as eye witnesses to the incident but from their evidence, it is clear that they had not seen the occurrence and have been planted as eye witnesses.
(iii) that there was strong motive for (PW-1) and (PW-2) to falsely implicate the accused-appellants, as on earlier occasion, their brother Har Prakash @ Pappu was killed by someone and accused Satyendra, Bhura and Khem Singh were made accused.
(iv) that a very improbable story has been put forth by the prosecution, where it is alleged that in presence of family members of the deceased, open fire was made in which two persons have died. Counsel for the appellants submits that presence of animal at the place of occurrence in a village is quite common and there is no evidence that any animal had suffered injury nor there is proof of bullet marks in the house of the deceased.
(v) that if somebody wants to send a message for compromise, one will not go to take gun along with him and moreover, at least in the morning hours, nobody would enter anybody's house carrying arms with them.
(vi) that as per Dhyan Singh (PW-2), there were number of witnesses present at the place of occurrence, but no such witness has been examined by the prosecution.
(vii) that Dhyan Singh (PW-2) himself is not a reliable witness because he has been examined as a chance witness and his presence at the place of occurrence is doubtful.
(viii) that possibility of deceased-Sheela being killed by someone else at another place and then false implication of the accused appellants cannot be ruled out.
(ix) that there is no conclusive evidence on record that deceased Ram Prakash sustained injury in the same incident.
(x) that in the Majroobi letter (letter sent for medical examination of the injured) case crime number has not been mentioned.
(xi) that there are material contradictions in the statements of Chandra Prakash (PW-1) and Dhyan Singh (PW2).
(xii) that from the morning till the cremation of deceased Sheela, Chandra Prakash (PW-1) was all along with her but clothes of this witness have not been seized by the prosecution nor there is any report in this respect.
Counsel for the appellants has placed reliance on the decisions of the Supreme Court in the cases of Baldev Singh vs State of Madhya Pradesh1, State of Rajasthan vs Sheo Singh2 and Radhakrishnan Nair vs State of Kerala3.
11. On the other hand, supporting the impugned judgment, it has been argued by the State Counsel:
(i) that conviction of the appellants is accordance with law and there is no infirmity in the same.
(ii) that there was a strong motive for the appellants to commit the murder as accused Satyendra, Bhura and Khem Singh were facing trial in respect of murder of Har Prakash @ Pappu and these accused persons had extended threat to the family members of the two deceased.
(iii) that had Chandra Prakash (PW-1) wanted to falsely implicate the accused persons, he would have also taken the name of Ram Bahadur, who was one of the accused in the case of murder of Har Prakash @ Pappu.
(iv) that a very prompt FIR has been lodged by Chandra Prakash (PW-1). Learned counsel submits that the incident occurred at 6.30 am and at 8.10 am, FIR has been lodged, whereas the distance between the place of occurrence and that of police station is about six kilometers.
(v) that apart from the presence of Chandra Prakash (PW-1) and Dhyan Singh (PW-2), from the evidence of (PW-1), it is apparent that his other family members were also present and likewise (PW-2) has categorically stated that other persons were also present at the place of occurrence. Learned counsel submits that non-examination of other family members of (PW-1) and (PW-2) shall not be fatal for the prosecution because (PW-1) and (PW-2) have duly supported the prosecution case.
(vi) that minor contradictions in the statements of (PW-1) and (PW-2) are required to be ignored considering the fact that they are rustic villagers and their Court statements were recorded after about one year of the incident.
(vii) that defective investigation, if any, is of no help to the defence and law in this respect is well settled.
(viii) that the place of occurrence has been duly proved by the prosecution and no contrary evidence is there on record to show that the incident could have taken place at some other place.
(ix) that deceased Ram Prakash sustained injury in the same incident as is clear from the FIR, from the diary statements of (PW-1) and (PW-2) and most importantly, from the statement of Dr Rakesh Agrawal (PW-11), who medically examined and operated deceased Ram Prakash at Agra. He has also stated that Ram Prakash suffered gun shot injury.
12. We have heard learned counsel for the parties and perused the record.
13. Chandra Prakash (PW-1) is a brother of both the deceased and an eyewitness to the incident, has stated that on the date of incident, at about 6:30 am, when he was offering food to animals and his sister Sheela was fetching water from Hand Pump along with his brother Ram Prakash, accused appellants reached there, carrying firearms with them and asked him as to whether he is willing to compromise the earlier matter or not and when he refused for any such compromise, they started firing resulting the instantaneous death of his sister Sheela and injuries to Ram Prakash. He states that injured Ram Prakash was taken to police station from where he was shifted to hospital and he dictated the FIR to Yogendra which was read over to him and then he filed the same, vide Ex.Ka.3. He further states that he returned back to the place of occurrence and by that time, body of deceased (Sheela) was kept in the courtyard. He has clarified that his brother Satya Prakash is an eyewitness in the case of murder of his another brother Har Prakash.
In the lengthy cross examination, this witness was subjected to various tricky and technical questions, but he remained firm and has reiterated as to the manner in which the incident took place. He states that at the time of occurrence, his other family members were also present though there are minor contradictions in the statement of this witness, but they are of insignificant in nature.
14. Dhyan Singh (PW-2) is a cousin brother of Chandra Prakash (PW-1), has stated that on the date of occurrence, he came to the house of (PW-1) and stayed there in the night. In the morning of 23.9.2005 at about 6.30 am, when he was standing in the platform of the house of (PW-1), deceased Sheela and Ram Prakash were fetching water from Hand-pump, accused persons reached there, carrying firearms with them and asked (PW-1) to compromise the earlier matter and when it was refused by (PW-1), they opened fire, resulting instantaneous death of Sheela and gunshot injury to Ram Prakash and after committing murder, all the accused persons fled away from the spot.
In the cross examination, this witness remained firm and nothing adverse could be elicited from him. He states that the incident was witnessed by his aunt and uncle who were also present along with him. It is relevant to note that according to Chandra Prakash (PW-1), incident was witnessed by his other family members, whereas according to (PW-2) incident was witnessed by his aunt and uncle, i.e. mother and father of (PW-1).
15. Dr A K Tiwari (PW-3) conducted the postmortem on the body of deceased Sheela, vide Ex.Ka.2 and found injuries on her body, as mentioned in para 3 of this judgment.
16. Naresh Singh (PW-4), registered the FIR. Dr A A Khan (PW-5), conducted the postmortem on the body of the deceased Ram Prakash and found injuries as mentioned in para 5 of this judgment. He found certain foreign bodies while operating the deceased and has stated that it could be of some bullet. Gorakh Nath Shukla (PW-6) assisted during investigation. Sanjai Kumar Jaiswal (PW-7) did part investigation. R N Tyagi (PW-8), Investigating Officer, has filed charge-sheet. Hari Shankar Shukla (PW-9), is the first Investigating Officer. Laljeet Pal (PW-10) has proved the injury record of injured Ram Prakash and Dr Rakesh Agrawal (PW-11), medically examined Ram Prakash at Agra Hospital and has stated that initially the injured was hospitalized at Gwalior from where he was referred to Agra. He further states that the patient was unconscious and his wound in the head was found open and brain tissues were coming out from the wound. He states that he operated the patient and injuries could have been made by firearm.
17. In 313 Cr PC statement, but for general defence, no specific defence has been taken by the accused persons.
18. Close scrutiny of the evidence makes it clear that earlier the brother of two deceased and Chandra Prakash (PW-1), namely Har Prakash @ Pappu was murdered and accused Satyendra @ Pappu, Bhura @ Varunesh and Khem Singh @ Mana were facing the trial along with one Ram Bahadur. Another brother of the deceased, namely, Satya Prakash was an eyewitness to the first incident. On 23.9.2005, all the accused persons gained entry in the house of the deceased, asked (PW-1) as to whether he is willing to compromise the matter or not and when it was refused, they opened fire, resulting instantaneous death of innocent Sheela and head injury to Ram Prakash. Incident has been witnessed by Chandra Prakash (PW-1), Dhyan Singh (PW-2) and other family members of (PW-1), but in the Court, only (PW-1) and (PW-2) have been examined, who have duly supported the prosecution case.
In the lengthy cross examination, (PW-1) and (PW-2) remained firm and their testimony cannot be doubted in any manner. Their statements inspire confidence of this Court and most importantly, the same has been duly supported by the postmortem report of Sheela and medical examination report as well as postmortem report of Ram Prakash. Minor contradictions in the statements of (PW-1) and (PW-2) are required to be ignored considering the fact that they are rustic villagers and their court statements were recorded after about one year of the incident. Law in this respect stands crystallized.
19. In the case of Bharwada Bhoginbhai Hirjibhai vs. State of Gujarat4, the Supreme Court, while considering the minor contradictions in the statement of the witnesses, held as under:
"5 ... ... ... We do not consider it appropriate or permissible to enter upon a reappraisal or re-appreciation of the evidence in the context of the minor discrepancies painstakingly highlighted by the learned counsel for the appellant. Overmuch importance cannot be attached to minor discrepancies. The reasons are obvious:
(1) By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed in the mental screen.
(2) Ordinarily, it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprise. The mental faculties therefore cannot be expected to be attuned to absorb the details.
(3) The powers of observation defer from person to person. What one may notice, another may not. An object or movement might emboss its image on one person's mind, whereas it might go unnoticed on the part of another.
(4) By and large people cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human tape-recorder.
(5) In regard to exact time of an incident, or the time duration of an occurrence, usually, people make their estimates by guess work on the spur of the moment at the time of interrogation. And one cannot expect people to make very precise or reliable estimates in such matters. Again, it depends on the time-sense of individuals which varies from person to person.
(6) Ordinarily, a witness cannot be expected to recall accurately the sequence of events which takes place in rapid succession or in short time span. A witness is liable to get confused or mixed up when interrogated later on.
(7) A witness, though wholly truthful, is liable to be overawed by the court atmosphere and the piercing cross-examination made by the counsel and out nervousness mix up facts, get confused regarding sequence of events, or fill up details from imagination on the spur of the moment. The subconscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved though the witness is giving a truthful and honest account of the occurrence witnessed by him - perhaps it is a sort of a psychological defence mechanism activated on the spur of the moment."
20. On material particulars, these witnesses remained firm and have reiterated as to the manner in which the incident occurred. While considering the evidence of witnesses, the Supreme Court in Gulam Sarbar v State of Bihar (Now Jharkhand)5 observed as under:
14. In the matter of appreciation of evidence of witnesses, it is not number of witnesses but quality of their evidence which is important, as there is no requirement under the Law of Evidence that any particular number of witnesses is to be examined to prove/disprove a fact. It is a time-honoured principle that evidence must be weighed and not counted. The test is whether the evidence has a ring of truth, is cogent, credible and trustworthy or otherwise. The legal system has laid emphasis on value provided by each witness, rather than the multiplicity or plurality of witnesses. It is quality and not quantity, which determines the adequacy of evidence as has been provided by Section 134 of the Evidence Act. Even in Probate cases, where the law requires the examination of at least one attesting witness, it has been held that production of more witnesses does not carry any weight. Thus, conviction can even be based on the testimony of a sole eye witness, if the same inspires confidence. (Vide: Vadivelu Thevar & Anr. v. State of Madras; AIR 1957 SC 614; Kunju @ Balachandran v. State of Tamil Nadu, AIR 2008 SC 1381; Bipin Kumar Mondal v. State of West Bengal AIR 2010 SC 3638; Mahesh & Anr. v. State of Madhya Pradesh (2011) 9 SCC 626; Prithipal Singh & Ors. v. State of Punjab & Anr. (2012) 1 SCC 10; and Kishan Chand v. State of Haryana, JT 2013 (1) SC 222.
21. We find no substance in the argument of the defence that the FIR is anti-timed. The incident occurred at 6:30 am on 23.9.2005 and at 8:10 am, FIR was lodged in the police station which was about 6 kms. away from the place of occurrence. Considering the fact that deceased Sheela died at the spot and Ram Prakash initially sustained injury, Chandra Prakash (PW-1) might have taken sometime to adjust himself and then rushed to the police station for lodging the FIR. One hour and 40 minutes delay in lodging the FIR, thus, cannot be called unusual. There was no time for (PW-1) to concoct the story or fabricate the evidence in any manner. Therefore, it cannot be said that the report is anti-timed. Moreover, there is no evidence that as to in what manner this entire false story has been cooked up by (PW-1). In absence of any such evidence, merely on the basis of some lines of the statement of eyewitness, it cannot be presumed that the FIR is anti-timed. Law in this respect is very clear.
In Jai Prakash Singh v State of Bihar6 the Supreme Court observed as under:
12. The FIR in criminal case is a vital and valuable piece of evidence though may not be substantive piece of evidence. The object of insisting upon prompt lodging of the FIR in respect of the commission of an offence is to obtain early information regarding the circumstances in which the crime was committed, the names of actual culprits and the part played by them as well as the names of eye-witnesses present at the scene of occurrence. If there is a delay in lodging the FIR, it looses the advantage of spontaneity, danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of large number of consultations/deliberations. Undoubtedly, the promptness in lodging the FIR is an assurance regarding truth of the informant's version. A promptly lodged FIR reflects the first hand account of what has actually happened, and who was responsible for the offence in question. (Vide: Thulia Kali v. State of T.N. (1972) 3 SCC 393, State of Punjab v. Surja Ram, 1995 Supp. (3) SCC 419, Girish Yadav v. State of MP, (1996) 8 SCC 186 and Takdir Samsuddin Sheikh v. State of Gujarat (2011) 10 SCC 158."
The Supreme Court in Madru Singh vs. State of Madhya Pradesh7 and Ram Sanjiwan Singh Vs. State of Bihar8, answered the similar question in 'negative'. In the said decisions, it has been held by the Supreme Court that from the cross-examination of prosecution witnesses, circumstances have to be elicited which would show that the FIR was ante-timed and then alone an inference can be drawn that the FIR was ante-timed.
It is further settled position of law that FIR can be proved ante-timed or ante-dated by adducing proper evidence. The lodger of FIR should be subjected to proper cross examination as to on what basis defence pleads the FIR to be ante-timed or ante-dated. Likewise, the police officer, who has recorded the FIR, is also required to be properly cross-examined as to on what basis defence pleads the FIR to be ante-dated or ante-timed. If no such requirement of law is completed and no such proper cross-examination of the witnesses is being done, it cannot be presumed that the FIR is ante-dated or ante-timed.
22. We further find no substance in the argument of the defence that (PW-1) and (PW-2) are 'created witnesses'. No such contrary evidence is available on record to presume this fact as well. Both (PW-1) and (PW-2) appear to be the natural witnesses who had seen the occurrence.
It is settled position of law that the evidence of an interested witness should not be equated with that of a tainted evidence or that of an approver so as to require corroboration as a matter of necessity. All that the Courts require as a rule of prudence, not as a rule of law, is that the evidence of such witness should be scrutinized with a little care. It has to be realized that related and interested witness would be the last persons to screen the real culprits and falsely substitute innocent ones in their places. Indeed there may be circumstances where only interested evidence may be available and no other, e.g. when an occurrence takes place at midnight in the house then the only witnesses who could see the occurrence may be the family members. In such cases, it would not be proper to insist that the evidence of the family members should be disbelieved merely because of their interestedness. But once such witness is scrutinized with a little care and the Court is satisfied that the evidence of the interested witness have a ring of truth such evidence could be relied upon even without corroboration. Thus, the evidence cannot be disbelieved merely on the ground that the witnesses are related to each other or to the deceased. In case the evidence has a ring of truth to it, is cogent, credible and trustworthy, it can, and certainly should, be relied upon. (See Anil Rai vs. State of Bihar (2001) 7 SCC 318; State of U.P. vs. Jagdeo Singh (2003) 1 SCC 456; Bhagalool Lodh & Anr. vs. State of U.P. (2011) 13 SCC 206; Dahari & Ors. vs. State of U.P. (2012) 10 SCC 256; Raju @ Balachandran & Ors. vs. State of Tamil Nadu (2012) 12 SCC 701; Gangabhavani vs. Rayapati Venkat Reddy & Ors. (2013) 15 SCC 298; Jodhan vs. State of M.P. (2015) 11 SCC 52) The Supreme Court in Bur Singh and Anr. vs. State of Punjab9 has held that merely because the eyewitnesses are family members their evidence cannot per se be discarded. When there is allegation of interestedness, the same has to be established. Mere statement that being relatives of the deceased they are likely to falsely implicate the accused cannot be a ground to discard the evidence which is otherwise cogent and credible. Further, the Supreme Court in Sudhakar v. State10 and Ganapathi v. State of Tamil Nadu11 relying in its earlier judgments held as under:
"18. Then, next comes the question 'what is the difference between a related witness and an interested witness?. The plea of "interested witness", "related witness" has been succinctly explained by this Court that "related" is not equivalent to "interested". The witness may be called "interested" only when he or she derives some benefit from the result of a litigation in the decree in a civil case, or in seeing an accused person punished. In this case at hand PW 1 and 5 were not only related witness, but also 'interested witness' as they had pecuniary interest in getting the accused petitioner punished. [refer State of U.P. v. Kishanpal and Ors., (2008) 16 SCC 73] : (2008 AIR SCW 6322). As the prosecution has relied upon the evidence of interested witnesses, it would be prudent in the facts and circumstances of this case to be cautious while analyzing such evidence. It may be noted that other than these witnesses, there are no independent witnesses available to support the case of the prosecution."
Relationship is not a factor to affect credibility of a witness. There is no proposition in law that relatives are to be treated as untruthful witnesses. To the contrary, reason has to be shown when a plea of partiality is raised to show that the witnesses had reason to shield the actual culprit and falsely implicate the accused. A witness who is a relative of deceased or victim of the crime cannot be characterized as 'interested'. The term 'interested' postulates that the witness has some direct or indirect 'interest' in having the accused somehow or other convicted due to animus or for some other oblique motive. A close relative cannot be characterized as an 'interested' witness. He is a 'natural' witness. His evidence, however, must be scrutinized carefully. If on such scrutiny his evidence is found to be intrinsically reliable, inherently probable and wholly trustworthy, conviction can be based on the 'sole testimony of such witness. (See- Harbans Kaur and another vs. State of Haryana, 2005 AIR SCW 2074; Namdeo vs. State of Maharashtra, 2007 AIR SCW 1835; Sonelal vs. State of M.P., 2008 AIR SCW 7988; and Dharnidhar vs. State of Uttar Pradesh and Others & other connected appeals, (2010) 7 SCC 759).
23. We also find no substance in the argument of the defence that there are certain defects in the investigation and taking into account the said defects, the appellants are to be acquitted. Even assuming that there are some defects in the investigation, benefit thereof cannot be given to the accused. It is settled proposition of law that for certain defects in investigation, the accused cannot be acquitted. This aspect has been considered in various decisions. In C. Muniappan v. State of Tamil Nadu12, the following discussion and conclusion are relevant which are as follows:-
"55. There may be highly defective investigation in a case. However, it is to be examined as to whether there is any lapse by the IO and whether due to such lapse any benefit should be given to the accused. The law on this issue is well settled that the defect in the investigation by itself cannot be a ground for acquittal. If primacy is given to such designed or negligent investigations or to the omissions or lapses by perfunctory investigation, the faith and confidence of the people in the criminal justice administration would be eroded. Where there has been negligence on the part of the investigating agency or omissions, etc. which resulted in defective investigation, there is a legal obligation on the part of the court to examine the prosecution evidence dehors such lapses, carefully, to find out whether the said evidence is reliable or not and to what extent it is reliable and as to whether such lapses affected the object of finding out the truth. Therefore, the investigation is not the solitary area for judicial scrutiny in a criminal trial. The conclusion of the trial in the case cannot be allowed to depend solely on the probity of investigation.
In Dayal Singh v State of Uttaranchal13, while reiterating the principles rendered in C. Muniappan (supra), the Apex Court held thus:
"18. ... Merely because PW 3 and PW 6 have failed to perform their duties in accordance with the requirements of law, and there has been some defect in the investigation, it will not be to the benefit of the accused persons to the extent that they would be entitled to an order of acquittal on this ground. ..."
In Gajoo v State of Uttrakhand14, while reiterating the same principle again, the Apex Court held that defective investigation, unless affects the very root of the prosecution case and is prejudicial to the accused should not be an aspect of material consideration by the Court. Since the Court has adverted to all the earlier decisions with regard to defective investigation and outcome of the same, it is useful to refer the dictum laid down in those cases:
20. In regard to defective investigation, this Court in Dayal Singh v. State of Uttranchal while dealing with the cases of omissions and commissions by the investigating officer, and duty of the court in such cases, held as under: (SCC pp. 280-83, paras 27-36) "27. Now, we may advert to the duty of the court in such cases. In Sathi Prasad v. State of U.P., 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 Dhanaj Singh v. State of Punjab, held: (SCC p. 657, para 5) ''5. 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.'
28. Dealing with the cases of omission and commission, the Court in Paras Yadav v. State of Bihar 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 dehors 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.
29. In Zahira Habibullah Sheikh (5) v. State of Gujarat, 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: (SCC p. 398, para 42) ''42. Legislative measures to emphasise 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 a fair trial where the accused and the prosecution both get a fair deal. Public interest in the proper administration of justice must be given as much importance, if not more, as the interest of the individual accused. In this courts have a vital role to play.' (emphasis in original)
30. With the passage of time, the law also developed and the dictum of the court emphasised 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.
31. Reiterating the above principle, this Court in NHRC v. State of Gujarat held as under: (SCC pp. 777-78, para 6) ''6. ..."35. ... The concept of fair trial entails familiar triangulation of interests of the accused, the victim and the society and it is the community that acts through the State and prosecuting agencies. Interest of society is not to be treated completely with disdain and as persona non grata. The courts have always been considered to have an overriding duty to maintain public confidence in the administration of justice--often referred to as the duty to vindicate and uphold the ''majesty of the law'. Due administration of justice has always been viewed as a continuous process, not confined to determination of the particular case, protecting its ability to function as a court of law in the future as in the case before it. If a criminal court is to be an effective instrument in dispensing justice, the Presiding Judge must cease to be a spectator and a mere recording machine by becoming a participant in the trial evincing intelligence, active interest and elicit all relevant materials necessary for reaching the correct conclusion, to find out the truth, and administer justice with fairness and impartiality both to the parties and to the community it serves. The courts administering criminal justice cannot turn a blind eye to vexatious or oppressive conduct that has occurred in relation to proceedings, even if a fair trial is still possible, except at the risk of undermining the fair name and standing of the Judges as impartial and independent adjudicators." (Zahira Habibullah case, SCC p. 395, para 35)'
32. In State of Karnataka v. K. Yarappa Reddy, this Court occasioned to consider the similar question of defective investigation as to whether any manipulation in the station house diary by the investigating officer could be put against the prosecution case. This Court, in para 19, held as follows: (SCC p.720) ''19. But can the above finding (that the station house diary is not genuine) have any inevitable bearing on the other evidence in this case? If the other evidence, on scrutiny, is found credible and acceptable, should the court be influenced by the machinations demonstrated by the investigating officer in conducting investigation or in preparing the records so unscrupulously? It can be a guiding principle that as investigation is not the solitary area for judicial scrutiny in a criminal trial, the conclusion of the court in the case cannot be allowed to depend solely on the probity of investigation. It is well-nigh settled that even if the investigation is illegal or even suspicious the rest of the evidence must be scrutinised independently of the impact of it. Otherwise the criminal trial will plummet to the level of the investigating officers ruling the roost. The court must have predominance and pre-eminence in criminal trials over the action taken by the investigating officers. The criminal justice should not be made a casualty for the wrongs committed by the investigating officers in the case. In other words, if the court is convinced that the testimony of a witness to the occurrence is true the court is free to act on it albeit the investigating officer's suspicious role in the case.'
33. In Ram Bali v. State of UP, the judgment in Karnel Singh v. State of M.P. was reiterated and this Court had observed that: (Ram Bali case (SCC p. 604, para 12) ''12. ... 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.'
34. 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 subverted. 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.
35. 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 of 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, the Court, while dealing with discrepancies between ocular and medical evidence, held: (SCC p.159, para 8) ''8. 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.'
36. Where the eyewitness account is found credible and trustworthy, medical opinion pointing to alternative possibilities may not be accepted as conclusive.
''34. ... 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's opinion is accepted, it is not the opinion of the medical officer but [that] of the court.'"
Above proposition of law has been duly considered by the Apex Court in Hema (supra) and it has been further held by the Apex Court:
"(13) It is clear that merely because of some defect in the investigation, lapse on the part of the I.O., it cannot be a ground for acquittal. Further, even if there had been negligence on the part of the investigating agency or omissions etc., it is the obligation on the part of the Court to scrutinize the prosecution evidence de hors such lapses to find out whether the said evidence is reliable or not and whether such lapses affect the object of finding out the truth."
24. Taking cumulative effect of the evidence and the proposition of law, this Court is of the view that the trial Judge was justified in convicting the appellants under Sections 148 and 302 read with Section 149 of IPC. Appeals have no merit, and the same are, accordingly, dismissed. As the appellants are reported to be in Jail, no further order is required in their respect.
Order Date :-30.5.2019 RKK/YK (Pritinker Diwaker, J) (Rajeev Misra, J)