Director C.B.I vs Sh Bhagya Kalita (A-1) And Anr on 15 September, 2021

[Cites 15, Cited by 0]

Gauhati High Court

Director C.B.I vs Sh Bhagya Kalita (A-1) And Anr on 15 September, 2021

1. This appeal has been instituted by the Central Bureau of Investigation (CBI) with the leave of this Court, assailing the judgement and order of acquittal dated 22/07/2017 passed by the Court of learned Additional Sessions Judge No. 2, Kamrup (M), Guwahati, in connection with Sessions case No. 9/1999.

2. Heard Mr. R.K.Dev Choudhury, learned Assistant Solicitor General of India (ASGI), appearing for the appellant. We have also heard Mr. A.K. Bhattacharya, learned senior counsel assisted by Mr. B.K. Singh and Mr.D.K. Bhattacharya, learned counsel for the respondent no.1 as well as Mr. D.K. Mishra, learned senior counsel assisted by Mr. A. Shandilya, learned counsel for the respondent no. 2.

3. The facts and circumstances leading to filing of the present appeal may be briefly noticed as follows :-

On 31/07/1995, at about 10-15 p.m., unidentified gunman shot dead Smt. Karabi Das and grievously injured her daughter Dubori Das @ Chandrani Dharitri Das at their rented house situated at Ambari, behind the AGP Office complex. Karabi Das died on the spot whereas her injured daughter Dubori Das succumbed to her bullet injuries a few minutes later while undergoing treatment at the nearby Wintrobe Hospital.

4. One Manajit Bhagawati (PW-3), a neighbour of the deceased, had orally informed the Latasil Police Station about the occurrence, based on which, GD entry No. 920 dated 31/07/1995 was made by the Officer-in-Charge of the Police Station and a Police party rushed to the place of occurrence. On reaching their, the Police had found the dead body of Karabi Das lying in a pool of blood. On the same evening, Sri Prabal Das, who is the brother-in-law of the deceased Karabi Das, had lodged an ejahar (Ext.-5) before the Officer-in-Charge, Latasil Police Station, stating that at about 10-15 p.m., his sister-in-law Karabi Das, wife of Mr. Ujjal Kumar Das and his niece Ms. Chandrani Dharitri Das had been shot dead by some Page No.# 3/16 unidentified gunmen at the place of residence, which is the rented house of Late Manabendra Sarma. It has also been mentioned in the FIR that on reaching the place of occurrence, the informant had found that the dead body of his sister-in-law was lying in their rented house in a pool of blood and his niece as lying dead in the nearby Wintrobe Nursing Home. At the time of the incident, the maid servant Ms. Manju (PW-2) was at the terrace to collect clothes and the husband of the deceased Karabi Das was at Bombay in connection with some work.

5. On receipt of the ejahar (Ext-5), Latasil Police Station case No. 70/1995 was registered by the Assam Police under Section 302 of the Indian Penal Code (IPC) and the usual investigation had commenced. During the course of investigation, the Police had also prepared Inquest report, carried out post-mortem examination on the dead body, seized certain articles, recorded the statement of the witnesses. The Police had also sent Smt. Manju Dey (PW-2) and the minor son of deceased Karabi Das, viz. Angshuman Arbind Das (PW-35) for recording their statement before the Magistrate and accordingly, the statements of those two witnesses were recorded by the Magistrate under Section 164 Cr.P.C. on the next day of the incident i.e. on 01/08/1995. It also appears from the record that the accused nos. 1 and 2 were arrested by the Police but the accused No. 3, viz. Bhupen Medhi could not be found.

6. During the course of investigation, the confessional statement of accused No. 2/respondent no. 2 Fatiur Ali, who was serving as the Driver of the accused No.1/respondent no.1 at the time of the incident, was also recorded under Section 164 Cr.P.C. (Ext.-32). However, at that stage, the investigation in connection with Latasil PS Case No. 70/1995 was handed over to the CBI by the order dated 22/09/1995 passed by this Court in connection with CR No. 3587/1995. Accordingly, CBI case No. RC 9/SCB/1995/Cal was registered against unknown persons on 06/11/1995 based on the FIR (Ext-5) and investigation in the case was taken up by the CBI.

7. It appears from the record that after the CBI had taken over the investigation, statement of Smt.Manju Dey (PW-2) under Section 164 Cr.P.C. was recorded before the Magistrate once again on 18/05/1996.

8. It appears that during investigation, the accused no.1 Bhagya Kalita was also subjected to narco-analysis test and opinion of the expert was obtained.

9. Upon completion of investigation, the CBI had submitted charge sheet (Ext-43) against the accused No.1/respondent no.1 u/s. 120B/302 IPC and against the accused No. 2/ Page No.# 4/16 respondent no. 2 u/s. 302/34 IPC by showing the accused no. 3 Bhupen Medhi as an absconder. On the basis of the charge sheet submitted by the CBI, the learned Sessions Judge had framed charge under Section 302 IPC against the accused no.1 Sri Bhagya Kalita and charges under section 302/114 of the IPC against the accused no. 2 Fatiur Ali. The accused persons had pleaded not guilty. Therefore, the matter went up for trial.

10. There is no eye witness to the occurrence and the prosecution case is entirely based on circumstantial evidence. In order to bring home the charges framed against the accused persons, the prosecution had examined as many as 56 witnesses and had exhibited certain documents. Thereafter, the statement of the accused persons were recorded under Section 313 Cr.P.C., wherein they had denied all the incriminating circumstances put to them. Accused no.1 had stated that on the day of the occurrence, he was in the chamber of his Advocate PW-1 till 10 p.m. The accused no. 2 Fatiur Ali had retracted from his confessional statement recorded earlier under Section 164 Cr.P.C. The defence side, however, did not lead any evidence.

11. The prosecution case was heavily dependent on the evidence of PWs 2 and 35, who were the star witnesses in this case. That apart, the prosecution had also relied upon the evidence of PW-1, PW-3 to bring home the charge framed by the Court. After considering the evidence brought on record, the learned trial Court was of the view that the prosecution had failed to establish the charges brought against both the accused persons and, therefore, both of them were acquitted by the impugned judgement and order dated 22/08/2017, which is under challenge in the instant appeal.

12. Mr. Dev Choudhury, learned ASGI has argued that the learned trial Court had failed to appreciate the evidence brought on record in the proper perspective and accordingly, had arrived at an erroneous conclusion acquitting the accused persons. He submits that the impugned judgement is vitiated by perversity and as such, liable to be set aside by this Court.

13. Opposing the said submission, Mr. A.K. Bhattacharya, learned senior counsel for the respondent no.1 has argued that this is a case of no evidence. According to the learned senior counsel, the trial court had meticulously evaluated the evidence on record and rightly acquitted the accused persons of the charge framed against them due to lack of evidence. Pointing out the lapses in the investigation as well as the lackadaisical approach of the prosecution, Mr. Bhattacharya submits that the manner in which the investigation as well as Page No.# 5/16 trial was conducted in this case, it is apparent that the investigating agency never had any serious intention to prosecute the real culprits but his client had been unnecessarily subjected to protracted litigation at the instance of the CBI. By referring to the testimonies of some of the witnesses including the PWs 1 and 2, the learned senior counsel submits that the prosecution has not only failed to connect the respondent no.1 with the offence in any manner but, if the evidence led by the prosecution is taken on its face value, then it would be established on the face of the record that the charge brought against the respondent no.1 was clearly unsustainable in the eye of law. In support of his above contention, Mr. Bhattacharya has placed reliance on a decision of the Supreme Court rendered in the case of State of Uttar Pradesh Vs. Wasif Haider and others reported in (2019) 2 SCC 303, to contend that benefit of doubt arising out of inefficient investigation must always go in favour of the accused persons.

14. Mr. D.K. Mishra, learned senior counsel appearing for the respondent no. 2 has argued that the prosecution appears to have examined the PW-1 to counter the plea of alibi which was never raised by the accused persons. In any case, submits Mr. Mishra, the question of establishing the plea of alibi would rise only if the prosecution succeeds in discharging the initial burden of leading evidence so as to prima facie establish the charge, which they have failed to do in this case. By referring to a decision of the Supreme Court rendered in the case of Jayantibhaia Bhenkarbhai Vs. State of Gujarat reported in (2002) 8 SCC 165, Mr. Mishra has argued that the plea of alibi taken by the accused would call for consideration by the Court only when the prosecution discharges its burden satisfactorily.

15. By referring to the retracted confessional statement of the accused no.2/respondent no. 2, it has also been argued by Mr. Mishra that an exculpatory confessional statement of co- accused cannot be relied upon by the Court nor can it be treated as evidence. In support of his above contention, the learned senior counsel has relied upon the decision of the Privy Council rendered in the case of Pakala Narayan Swami Vs. Emperor reported in AIR 1939 PC 47 and State of T.N. Vs. J. Jaylalita reported in (2000) 5 SCC 440.

16. By placing reliance on the decision of the Supreme Court rendered in the case of Selvi and others Vs. State of Karnataka reported in (2010) 7 SCC 263, Mr. Mishra has also argued that the narco test conducted on the accused no.1 against his wishes would have no evidential value. He submits that even if the same had been conducted with the consent of Page No.# 6/16 the accused, then also, in view of the law laid down in Selvi & Ors. (Supra), the result of such narco analysis would not have been admissible in evidence. Mr. Mishra therefore, submits that there is no scope for this Court to reverse the judgement of the learned trial Court and hence, this appeal be dismissed at the stage of admission hearing.

17. We have considered the arguments advanced by the learned counsel for both sides and have also gone through the materials available on record.

18. As noted above, the respondent nos. 1 and 2 along with absconding accused no. 3 had been charged of committing the murder of Karabi Das and Dubori Das. In order to prove the murder charge, the prosecution side had examined 56 witnesses. However, we find that as many as 28 prosecution witnesses did not, in any manner, implicated the accused persons, as a result of which they were not even cross examined by the defence side. Out of the remaining witnesses, heavy reliance has been placed by the prosecution side on the testimony of PWs. 1, 2 and 35. Let us, therefore, briefly refer to their evidence.

19. PW-1 late Pachu Gopal Baruah was the Advocate General of the State of Assam at the relevant point of time. He has deposed before the Court that on 31/07/1995, the accused Bhagya Kalita had visited his chamber for holding consultation with regard to filing of a proceeding before the High Court. The accused was in his chamber in between 8 p.m. to 10 p.m. In his cross examination, PW-1 has stated that on a free road, it takes about 10 minutes to reach Rabindra Bhawan from his residence.

20. PW-2 Ms. Manju Dey was working as a domestic help in the residence of the deceased Karabi Das at the time of the incident. PW-2 has deposed that deceased Karabi and Dubori had been shot dead by "somebody" and at that time, Ujjal Das (PW-4) i.e. the husband of Karabi was not at home. She has also deposed that the family of Ujjal Das consisted of himself, wife Karabi Das, daughter Dubori Das and son Angshuman Arbind Das. PW-2 has also stated that the occurrence took place at 9-30 p.m. and before the occurrence took place, they were watching a TV serial "Alif Laila". At the end of the serial, she had served dinner to Dubori and then went to the roof of the building for collecting clothes. When she came down to the lower floor, she had seen that Dubori and Karabi were lying on the floor in a pool of blood and at that moment, Angshuman (PW-35) was hiding under the TV table in the bed room. At that time, she did not see any other person either in the bed room or in the other rooms. This witness has also deposed that she knew accused "Bhagya Kalita" but did Page No.# 7/16 not know the other accused persons and that "Bhagya Kalita" used to visit their house occasionally, in her presence and he also used to talk to her as well as Ujjal Das and Karabi. PW-2 has also stated that on the day of the occurrence, she did not see any vehicle in the campus of Ujjal Das and that the CBI had examined and took her statement. PW-2 had also proved her signature Ext. 1(1) in the seizure list. Ext-1, by means of which, the chappal was seized. During her cross examination by the accused no.1, this witness has stated that she did not know the contents of Ext.-1 nor was the same read over to her

21. PW-3 Sri Manojit Bhagawati was the person who had first reported the incident to the nearby Latasil Police Station. PW-3 has deposed that on 31/07/1995, at about 10-30 p.m. while he was returning from his shop and had arrived at the gate of the house where the deceased persons used to live, he had found the maid servant (PW-2) crying. On enquiry, she had told him that some unknown persons had shot Karabi and Dubori. The PW-3 had stated that the Chowkidar of the building had told him that he had also heard gunshot. He then went to the Latasil Police Station and informed the incident to the Officer-in-Charge.

22. PW-35 Angshuman Arbind Das i.e. the son of the deceased Karabi Das was about 6 years old when the incident took place. He has deposed that on 31/07/1995, he was at home and was watching a video (CD) at around 9/9-30 p.m. At that time, his mother Karabi, elder sister Dubori and the maid Manju (PW-2) were at home. Then the door bell rang and immediately, his mother went and opened the door. At that, two persons entered the house and one of them had shot at his mother with a gun. He watched it hiding behind the curtain. At that time, his sister Dubori screamed "Maa Maa" (mother, mother) and ran towards the door. Then the person had shot at Dubori also. When that person saw him, he tried to shoot him as well and then he ran and took shelter under the dining table, as a result of which, the bullet did not hit him. Thereafter, that person went down stairs. Manju (PW-2) had gone upstairs to bring clothes. She then came down, took him and went to a nearby PCO (Public Call Office) and called up his grandfather and grandmother. Thereafter, his grandpa and grandma came and called Pramila. On that day, his father was not at home as he had gone to Mumbai. PW-35 had also stated that he did not know the two persons who had shot at his mother and his sister and he cannot recognize them even if he sees them now. This witness has also categorically stated that the two accused persons present in the dock were not seen by him on the date of the incident. Cross examination of this witness was declined.

Page No.# 8/16

23. Since the prosecution had placed heavy reliance on the testimony as well as the statement of these two witnesses i.e. PWs 2 and 35, recorded under Section 164 Cr.P.C. We went through the LCR so as to find out as what these two witnesses had actually stated before the Magistrate. From the statement of PW-2 recorded before the Magistrate u/s. 164 Cr.P.c. on 01/08/1995, we find that she had stated that last night at around 10 p.m., she had gone to the roof to gather clothes after serving meal to Dubori and her brother Angshuman. On her return, she had seen "Baidew" i.e. Karabi lying near the door and after her, the daughter (Dubori) was also lying in a pool of blood. When she asked the boy Angshuman, who was behind the TV, he told her that the security officer of "Bhagya Uncle" (Accused No.

1) had shot at his mother. Then she went downstairs and called the neighbours. This statement of PW-2 recorded u/s. 164 Cr.P.C. appears to be in consonance with her deposition before the Court, when she did not implicate the accused no. 1.

24. From the aforesaid statement of PW-2 recorded under Section 164 Cr.P.C., what is also apparent is that she did not see the occurrence but saw the victims lying in a pool of blood after the incident took place. The minor son of Karabi i.e. Angshuman had told her that the security officer of "Bhagya Uncle" had shot at his mother.

25. In her statement recorded for the second time u/s164 Cr.P.C. about 10 months later, the PW-2 had given a different version wherein she had stated that while coming down with the clothes, she had heard the accused no.1 Bhagya Kalita telling the deceased Karabi that he would finish everything and Karabi was crying loudly. She had heard gunshots and saw the accused Bhagya Kalita fleeing the place by leaving behind his chappal. It appears from the record that the PW-2 who was re-examined as a witness so as to implicate the accused no. 1 but when the witness did not support the prosecution case, she was cross-examined by the prosecution, thereby treating her as a hostile witness.

26. In his statement recorded u/s. 164 Cr.P.C. on 01/08/1995, PW-35 Angshuman Arbind Das had stated that he knew the two persons who had fired and they used to come to his place along with "Bhagya Mama" (Bhagya Uncle) and used to sit in the vehicle. One of the two persons who had fired the shot was the security officer of "Bhagya Mama". However, PW-35 did not say so while deposing before the Court.

27. From a conjoint a reading of the evidence of PWs 2 and 35, it is evident that while deposing before the Court they did not implicate either of the accused persons. Although the Page No.# 9/16 PW-2 had implicated the accused no. 1 in her second statement recorded u/s. 164 Cr.P.C. marked as Ext. 32A and the PW-35 had also mentioned in his statement recorded u/s. 164 Cr.P.C. that the shooter was the security personal of the accused No.1, their evidence did not say so. The accused persons obviously could not have been convicted of murder charge on the basis of statements of the witnesses recorded u/s. 164 Cr.P.C., which did not have any evidential value.

28. We also find that a pair of "Chappal" apparently belonging to the accused no.1 was seized by the CBI by Ext.-1 and PWs 2 and 37 were the seizure witness of the Chappals. However, during trial, the seized pair of Chappal was not even exhibited properly by the prosecution. PW-2 had also failed to recognize any such chappal.

29. It further appears that in the confessional statement of the accused no. 2 (Ext-32), he did not admit to have committed any crime but had merely stated that he had heard sounds of gunshot while he was sitting in the car and on going upstairs, he had seen that the deceased was lying on the floor and accused no. 3 Bhupen Medhi was armed with two guns. We have grave doubt as to whether Ext- 32 could at all be termed as a confessional statement. However, even assuming that it is one, even then, the so called confessional statement of the accused no. 2 could at best implicate the the accused no. 3 for firing the gunshot but not himself. It is to be noted herein that the prosecution had neither alleged nor proved common intention on the part of the accused persons in this case. The accused no. 2 Fatiur Ali had also retracted from his above statement during his examination u/s. 313 Cr.P.C. Be that as it may, the confessional statement Ext.-32 is apparently an exculpatory statement, wherein, the respondent no. 2 had clearly tried to implicate the third accused viz. Bhupen Medhi by saying that he was the one who was carrying guns. The aforesaid statement of the accused no. 2 Fatiur Ali, being an exculpatory statement, the same, in our opinion, could not have been used to convict him. Even otherwise, in view of the law laid down by the Supreme Court in the case of Palaka Narayan Swami (Supra) and J. Jaylalita (Supra), such exculpatory statement of a co-accused, cannot be treated as a piece of evidence which could be relied upon by the prosecution.

30. We also find that some empty cartridges were seized from the bathroom of the accused no. 1. Dr. S.S. Murthi, the expert from the Central Forensic Science Laboratory, who had examined 3 fire arms and 3 Nos. of 9 mm Machine Carbine was examined as PW-49.

Page No.# 10/16 However, the report of PW-49 could not definitely link the bullets with the seized carbines. There is no other FSL report available in this case to implicate the respondent nos. 1 and 2 i.e. the accused nos. 1 and 2 with the occurrence.

31. The two Personal Security Officers (PSOs) of the accused no. 1 were examined as PWs - 38 and 39 but both of them did not implicate the accused persons in their deposition, as a result of which, the defence side did not cross-examine them.

32. We also find that the prosecution had projected a case to the effect that the accused no. 1 have an illicit affair with deceased Karabi Das and the incident was the outcome of her association with some other persons. However, there is not even an iota of evidence to prove that. As a matter of fact, the husband of the deceased Ujjal Das (PW-4), her father Girija Kanta Das (PW-11) and her brother Sourabh Kr. Das (PW-15) were called as witnesses by the prosecution but none of them had implicated the accused no. 1. On the contrary, PW-11 had deposed before the Court that the accused no.1 was very much familiar to his family and his daughter's family and also stated that the wife of the accused no.1 viz. Geeta Kalita had conspired with the accused no. 3 to kill her daughter and grand daughter. He has also stated that he knew that accused nos. 1 and 3 were not in talking terms. Even till today, the accused no. 1 respect him as his uncle and he treated the accused no.1 as his nephew and his grand daughter used to call him "Bhagya Mama" (Bhagya Uncle).

33. Even the PW-15 had stated that the relationship between the accuse dno.1 and Karabi Das was like a brother and sister and the husband of Karabi i.e. Ujjal Das (PW-4) had friendly relationship with the accused no. 1.

34. In the above context, it would be pertinent to note herein that, based on the statement of the witnesses recorded during investigation, two other accused viz. Geeta Kalita (w/o. accused No. 1) and Arup Dutta were arrested but their names were not included in the charge sheet, as a result of which those accused persons were not sent up for trial.

35. The other witnesses examined by the prosecution and the documents exhibited do not even remotely implicate the accused nos. 1 and 2. Therefore, we do not deem it necessary to embark on an exercise to discuss those materials in details for the purpose of disposal of this appeal.

36. After taking note of the evidence available on record and on a threadbare evaluation of the materials placed on record, the learned trial Court has passed the impugned Page No.# 11/16 judgement acquitting the accused nos. 1 and 2 due to want to evidence against them. After a meticulous analysis of the materials available on record as well as on examination of the impugned judgement and order dated 22/07/2017, we do not find any good ground to disagree with the findings of the learned trial Court. Rather, having regard to the nature of evidence brought on record, we are of the considered opinion that there is not even a remote possibility for this Court to reverse the judgement and order of acquittal passed by the learned trial Court. We find that there is no evidence to prove the charge brought against the accused nos. 1 and 2. As a matter of fact, the only view possible in this case, in our opinion, is the one adopted by the learned trial Court.

37. Mr. Dev Choudhury has argued that the fact that the accused persons had fled their residence soon after the occurrence and were arrested by the Police after two days, was not considered by the learned trial Court. We are afraid, the above submission cannot be accepted. The fact that the accused persons were not found in their residence soon after the occurrence, viewed in the light of the evidence brought on record cannot be deemed as an incriminating circumstance to convict them of murder charge U/s. 302 of the IPC.

38. It is no doubt sad that two innocent lives were lost in a tragic incident that took place in the heart of Guwahati city way back on 31/07/1995 and, therefore, every attempt ought to be made so as to bring the culprits to justice. However, unless there is cogent evidence available on record to establish the charge brought against the accused persons, they cannot be convicted by the Court of law. The present in our opinion, is yet another, classic example where the prosecution had completely failed to adduce evidence to prove the charge brought against the accused nos. 1 and 2.

39. For the reasons stated herein above, we do not find any good ground to admit this appeal. The appeal is accordingly dismissed.

40. Having held as above, we deem it necessary to make certain observations as regards the manner in which the investigation and trial has been conducted in this case. Taking note of the heinous nature of the crime and the sensational twin murder that took place on 31/07/1995, this High Court had handed over the investigation in connection with Latasil PS Case No. 70/1995 from the Assam Police to the CBI presumably with an expectation that the investigation in this case would be completed with utmost expedition and with highest degree of efficiency. However, with a deep sense of anguish, we are Page No.# 12/16 constrained to observe that after a protracted legal battle spanning over more than two decades, not only has the trial lead to acquittal of the accused persons but even the co- accused Bhupen Medhi is still absconding. It appears that there was practically no attempt on the part of the Investigation Officer to collect proper evidence so as to bring the real culprits to justice. On a query made by this Court, the appellant's counsel has admitted, in his usual fairness, that he is unaware as to whether any real effort on the part of the CBI has been made to trace out Bhupen Medhi, so as to bring him to justice. Not only that, the series of lapses and the cavalier fashion, in which the trial has been conducted in this case, leave us with an impression that the same was not merely out of inadvertence but in all probability, a deliberate attempt to shield the actual culprit. It is equally disturbing to note that the two accused persons in this case has apparently been subjected to a lengthy process of trial in a criminal proceeding when there was hardly any evidence available to prosecute them. In order to substantiate the above inference, we would like to briefly point out certain issues pertaining to the investigation of the case :-

(i) Despite the statement of the accused no. 2 implicating the accused no. 3, no serious attempt appears to have been made by the CBI to arrest the absconding accused No. 3 Bhupen Medhi even more than 25 years after the occurrence.

(ii) Save and except recording the statement of PWs 2 and 35, the IO did not make any serious attempt to collect evidence so as to implicate the accused nos. 1 and 2 with the occurrence.

(iii) The IO did not make proper attempt to collect the forensic evidence so as to connect the seized Chappals and the bullets recovered from the residence of the accused no.1 with the occurrence.

(iv) None of the witnesses had implicate the accused nos. 1 and 2 with the incident. The father, brother and husband of the deceased, who had practically deposed in favour of the accused, were called as witnesses.

Notwithstanding the same, many of the PWs appear to have been purposelessly examined and re-examined to such an extent that even the star witness PW-2 had to be declared hostile in her re-examination.

(v) Although, the accused persons did not take specifically the plea of Page No.# 13/16 alibi, yet, the first witness called by the prosecution i.e. PW-1 testifying that the accused no.1 was in his chamber from 8 p.m. to 10 p.m. had practically demolished the prosecution case right at the inception.

(vi) No circumstantial evidence could be collected by the I.O. to implicate the accused nos. 1 and 2 in commissioning of the offence.

41. The aforementioned chain of events undeniably goes to show that the present is yet another case of botched up investigation and poorly conducted trial. The investigating officials and the prosecutors have miserably failed in discharging their bounden duty to bring the culprits of a heinous offence to justice. On a close scrutiny of the case diary as well as the LCR, it is difficult for us to believe that a premier investigating agency of the country, like the CBI could have conducted such an investigation in an offence involving commission of heinous crime.

42. Taking note of serious omission and lapses in conducting investigation in a case involving offence under Section 302 of the IPC, wherein, even the cause of death of the victim remained obscure and observing that the Investigating Officer had conducted investigation in a suspicious manner, the Supreme Court in the case of Sahabuddin and another Vs. State of Assam reported in (2012) 13 SCC 213, had directed the Director General of the State of Assam as well as the Director of Health Services, Assam, to initiate disciplinary action against the Health Officer and the IO, regardless of whether they are in service or have retired and if necessary, steps to be initiated for deduction/stoppage of their pension, in accordance with Rules.

43. In the case of Dayal Singh and others Vs. State of Uttaranchal reported in (2012)8SCC 263, taking note of the lapses on the part of the IO on his failure to carry out proper investigation in a case involving heinous offence, the Hon'ble Supreme Court had made the following directions :-

"47.4. Director Generals of Police UP/Uttarakhand are hereby directed to initiate, and expeditiously complete, disciplinary proceedings against PW-6, SI Kartar Singh, whether he is in service or has since retired, for the acts of omission and commission, deliberate dereliction of duty in not mentioning reasons for non-disclosure of cause of death as explained by the doctor, not sending the viscera to the FSL and for conducting the investigation of this case in a most callous and irresponsible manner.

Page No.# 14/16 The question of limitation, if any, under the Rules, would not apply as it is by direction of the Court that such enquiry shall be conducted.

47.5. We hold, declare and direct that it shall be appropriate exercise of jurisdiction as well as ensuring just and fair investigation and trial that courts return a specific finding in such cases, upon recording of reasons as to deliberate dereliction of duty, designedly defective investigation, intentional acts of omission and commission prejudicial to the case of the prosecution, in breach of professional standards and investigative requirements of law, during the course of the investigation by the investigating agency, expert witnesses and even the witnesses cited by the prosecution. Further, the Courts would be fully justified in directing the disciplinary authorities to take appropriate disciplinary or other action in accordance with law, whether such officer, expert or employee witness, is in service or has since retired.

44. Expressing deep anguish on the defective investigation and faulty prosecution in another case involving rape and murder of a six years old child, the Supreme Court had made similar observations in the case of State of Gujarat Vs. Kishanbhai and others reported in (2014) 5 SCC 108, wherein, while upholding the order of acquittal of the accused passed by the High Court, the Hon'ble Supreme Court had observed that in such cases every acquittal should be understood as a failure of justice delivery system in serving the cause of justice. Likewise, every acquittal should ordinarily lead to the inference that an innocent person was wrongfully prosecuted. It was, therefore, essential that every State should put in place a procedural mechanism which would ensure that the cause of justice is served while safeguarding the interest of those who are innocent. Taking strong exception to the lapses in conducting investigation in the aforesaid case, the Supreme Court had passed directions for fixing responsibilities. The observations made in paragraphs 23, 24 and 25 of the said decision would be relevant and are, therefore, reproduced herein below :-

"23. On the culmination of a criminal case in acquittal, the investigating/prosecuting official(s) concerned responsible for such acquittal must necessarily be identified. A finding needs to be recorded in each case, whether the lapse was innocent or blameworthy. Each erring officer must suffer the consequences of his lapse, by appropriate departmental action, whenever called for. Taking into consideration the Page No.# 15/16 seriousness of the matter, the official concerned may be withdrawn from investigative responsibilities, permanently or temporarily, depending purely on his culpability. We also feel compelled to require the adoption of some indispensable measures, which may reduce the malady suffered by parties on both sides of criminal litigation. Accordingly we direct, the Home Department of every State Government, to formulate a procedure for taking action against all erring investigating/prosecuting officials/officers. All such erring officials/officers identified, as responsible for failure of a prosecution case, on account of sheer negligence or because of culpable lapses, must suffer departmental action. The above mechanism formulated would infuse seriousness in the performance of investigating and prosecuting duties, and would ensure that investigation and prosecution are purposeful and decisive. The instant direction shall also be given effect to within 6 months.

24. A copy of the instant judgment shall be transmitted by the Registry of this Court, to the Home Secretaries of all State Governments and Union Territories, within one week. All the Home Secretaries concerned, shall ensure compliance with the directions recorded above. The records of consideration, in compliance with the above direction, shall be maintained.

25. We hope and trust the Home Department of the State of Gujarat, will identify the erring officers in the instant case, and will take appropriate departmental action against them, as may be considered appropriate, in accordance with law."

45. Having regard to the facts and circumstances of the case, we are of the considered opinion that in order to preserve the faith of the public in the criminal justice system of this country and more particularly, the reputation of a premier investigating agency such as the CBI, exemplary action is required to be initiated so as to figure out whether this is a case of deliberate lapses or negligence of the I.O. aimed at protecting the guilty or was it sheer negligence and inefficiency of the investigating team, as a result of which the actual culprit could not be brought to justice. We, therefore, direct the Registry to send an authentic copy of this judgement to the Director, Central Bureau of Investigation (CBI) , New Delhi, inviting his attention to the issues raised herein above, so as to enable him to take appropriate action in the matter.

Page No.# 16/16

46. With the above observations, the appeal stands disposed of.

Send back the LCR.

                                JUDGE                                 JUDGE


Sukhamay



Comparing Assistant

Unlock Advanced Research with PRISMAI

Gauhati High Court