Important Leading Judgements

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Dayal Singh & Ors. Versus State of Uttaranchal

Head Note

In this important case Hon'ble decided three important issue -

  1.  Where acts of omission and commission, deliberate  or  otherwise,  are committed by the investigating agency or other significant  witnesses instrumental in proving the offence, what approach,  in  appreciation of evidence, should be adopted?

  2. Depending upon the answer to the  above,  what  directions  should  be issued by the courts of competent jurisdiction?

  3. Whenever there is some conflict in the eye-witness version  of  events and the medical evidence, what effect will it have on the case of the prosecution and what would be the manner in which  the  Court  should appreciate such evidence?

HELD- WHERE THERE IS AN INCONSISTENCY WITH MEDICAL EVIDENCE (POST MORTEM) AND EYE WITNESS, THE RELIABLE TESTIMONY OF EYE WITNESS SHALL PREVIAL - REFER PARA 11 AND 12 OF JUDGMENT

Supreme Court of India : Upload Date - 8/3/2012

Judgement

                                                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA

                       CRIMINAL APPELLATE JURISDICTION

                       CRIMINAL APPEAL NO.529 OF 2010


Dayal Singh & Ors.                                       … Appellants

                                   Versus

State of Uttaranchal                               … Respondent


                               J U D G M E N T


Swatanter Kumar, J.


1.    Settled  canons  of  criminal  jurisprudence  when  applied  in  their
correct perspective, give rise to the following questions for  consideration
of the Court in the present appeal:

a)    Where acts of omission and commission, deliberate  or  otherwise,  are
       committed by the investigating agency or other significant  witnesses
       instrumental in proving the offence, what approach,  in  appreciation
       of evidence, should be adopted?

b)    Depending upon the answer to the  above,  what  directions  should  be
       issued by the courts of competent jurisdiction?

c)    Whenever there is some conflict in the eye-witness version  of  events
       and the medical evidence, what effect will it have on the case of the
       prosecution and what would be the manner in which  the  Court  should
       appreciate such evidence?

2.    The facts giving rise to the questions in the present appeal are  that
the fields of Gurumukh Singh and Dayal Singh were adjoining in  the  village
Salwati within the limits  of  Police  Station  Sittarganj,  district  Udham
Singh Nagar.  These fields were separated by a mend  (boundary  mound).   On
8th December, 1985, Gurumukh Singh, the complainant,  who  was  examined  as
PW2, along with his father Pyara Singh, had gone to their fields.  At  about
12 noon, Smt. Balwant Kaur, PW4, wife of Pyara Singh came to the  fields  to
give meals to Pyara Singh and their son  Gurumukh  Singh.   At  about  12.45
p.m, the accused persons, namely, Dayal Singh, Budh  Singh  &  Resham  Singh
(both sons of Dayal Singh) and Pahalwan Singh came to  the  fields  wielding
lathis and started hurling abuses.  They  asked  Pyara  Singh  and  Gurumukh
Singh as to why they were placing earth  on  their  mend,  upon  which  they
answered that mend was a joint  property  belonging  to  both  the  parties.
Without any provocation, all the accused  persons  started  attacking  Pyara
Singh with lathis.  Gurumukh Singh, PW2, at  that  time,  was  at  a  little
distance from his father and Smt. Balwant Kaur, PW4, was nearby.  On  seeing
the occurrence, they raised an alarm and went to rescue  Pyara  Singh.   The
accused, however, inflicted lathi injuries on both  PW2  and  PW4.   In  the
meanwhile, Satnam Singh, who was ploughing  his  fields,  which  were  quite
close to the fields of the parties and Uttam Singh (PW5) who was  coming  to
his village from another village, saw the  occurrence.   These  two  persons
even challenged the accused persons upon which the accused persons ran  away
from the place of occurrence.  Pyara Singh, who had  been  attacked  by  all
the accused persons with lathis fell down and succumbed to his  injuries  on
the  spot.   Few  villagers  also  came  to  the  spot.   According  to  the
prosecution, pagri (Ex.1) of one of the accused, Budh Singh, had  fallen  on
the spot which was subsequently taken into custody by the Police.   Gurumukh
Singh, PW2, left the dead body of his deceased father in the custody of  the
villagers and went to the police station where he got  the  report,  Exhibit
Ka-3, scribed by Kashmir Singh in relation to the  occurrence.   The  report
was lodged at about 2.15 p.m. on 8th December, 1985 by PW2  in  presence  of
SI  Kartar  Singh,  PW6.   FIR  (Exhibit  Ka-4A)  was  registered  and   the
investigating machinery was put into motion.   The  two  injured  witnesses,
namely, PW2 and PW4 were examined  by  Dr.  P.C.  Pande,  PW1,  the  medical
officer at the Public Health Centre, Sittarganj on the date  of  occurrence.
 At 4.00 p.m., the doctor examined PW2 and noticed  the  following  injuries
on the person of the injured witness vide Injury Report, Ex. Ka-1.

           PW-2

           “1.   Lacerated wound of 5 cm X 1 cm and 1 cm in depth.  Margins
                 were lacerated.  Red fresh blood was  present  over  wound.
                 Wound was caused by hard and blunt object.   Wound  was  at
                 the junction of left parietal and occipital bone 7 cm  from
                 upper part of left ear caused by blunt object.  Advised  X-
                 ray.  Skull A.P. and lateral and the injury was kept  under
                 observation.

           2.    Contusion of 6 cm X 2.5 cm on left side of body 3 cm above
                 the left ilic crest.  Simple in nature caused by  hard  and
                 blunt object.”

      According to the Doctor, the injuries were caused by  hard  and  blunt
object and they were fresh in duration.

      On 8.12.1985 at 7.30 p.m. Dr. P.C. Pande (PW1) examined  the  injuries
of Smt. Balwant Kaur PW4 and found the  following  injuries  on  her  person
vide injury report Ex.Ka.2:

           PW-4

           1.    Contusion 6 cm X 3 cm on left shoulder caused by hard  and
                 blunt object.

           2.    Contusion of 5 cm X 2 cm on lateral side of middle of left
                 upper arm.  Bluish red in colour caused by hard  and  blunt
                 object.

           3.    Contusion of 4 cm X 2 cm on left parietal bone 6  cm  from
                 left ear caused by hard and blunt object.

      According to Dr. Pande, these injuries were caused by hard  and  blunt
object and the duration was within 12 hours and the nature of  the  injuries
was simple.  According to Dr. Pande  the  injuries  of  both  these  injured
persons could have been received on 8.12.1985 at 12.45 p.m. by lathi.”

 

3.    As noted above, according to Dr. Pande, the injuries were caused by  a
hard and blunt object and duration was  within  12  hours.   Thereafter,  SI
Kartar Singh, PW6, proceeded to the place of occurrence in village  Salwati.
 He found the dead body  of  Pyara  Singh  lying  in  the  fields.   In  the
presence of panchas, including Balwant Singh, PW8,  he  noticed  that  there
were three injuries on the person of the deceased, Pyara Singh and  prepared
Inquest Report vide Ex. Ka-6 recording his opinion that  the  deceased  died
on account of the injuries found on his  body.   After  preparing  the  site
plan, Ext. Ka-10, he also  wrote  a  letter  to  the  Superintendent,  Civil
Hospital, Haldwani for post mortem, being Exhibit Ka-9. The  dead  body  was
taken to the said hospital by Constable Chandrapal  Singh,  PW7.   Dr.  C.N.
Tewari, PW3, medical officer in the Civil Hospital, Haldwani, performed  the
post mortem upon the body of the deceased and did not find  any  ante-mortem
or post-mortem injuries on the dead body.  On internal examination,  he  did
not find any injuries and could not ascertain the cause of death.   Further,
he preserved the viscera and gave  the  post-mortem  report,  Exhibit  Ka-4.
After noticing that there was no injury or abnormality found  upon  external
and internal examination  of  the  dead  body,  the  doctor  in  his  report
recorded as under:

           “Viscera  in  sealed  jars  handed  over  to  the   accompanying
           Constables.

           Jar No.1 sample preservative saline water.

           Jar No.2 Pieces of stomach

           Jar No.3 Pieces of liver, spleen and kidney.

           Death occurred about one day back.

           Cause  of  death  could  not  be  ascertained.   Hence,  viscera
           preserved.”

 

4.    It appears  from  the  record  that  the  deceased’s  viscera,   which
allegedly was handed over by doctor to the police, was either never sent  to
the  Forensic  Science  Laboratory  (for  short,  the  ‘FSL’)  for  chemical
examination, or if sent, the report  thereof  was  neither  called  for  nor
proved before the Court.  In fact, this has been left to the imagination  of
the Court.

5.    The accused persons, at about 5.45 p.m. on  the  same  day,  lodged  a
written report at the same  Police  Station,  which  was  received  by  Head
Constable Inder Singh, who prepared the check report Exhibit  C-1  and  made
appropriate entry.  The case was registered under Section 307 of the  Indian
Penal Code, 1860  (IPC)  against  PW2,  Gurumukh  Singh.   Dayal  Singh  was
arrested in furtherance of the FIR, Exhibit Ka-4A.  He  was  also  sent  for
medical examination and was examined by  Dr.  K.P.S.  Chauhan,  CW2.   After
examining the said  accused  at  about  7.45  p.m.,  the  doctor  found  two
injuries on his person and prepared the report (Exhibit C-4).  According  to
Dr. Chauhan, the injuries on the person  of  the  accused  could  have  been
received by a firearm object and injuries were fresh within six hours.

6.    The  investigating  officer  completed  the  investigation  and  filed
charge sheet (Exhibit Ka-11) against the accused persons  on  15th  January,
1986.  It may be noticed that in furtherance to  Exhibit  C-2,  neither  any
case was registered nor any charge-sheet was presented before the  Court  of
competent jurisdiction.  The accused  also  took  no  steps  to  prove  that
report in Court.  They also did not file any private complaint.

7.     Considering  the  ocular  and  other   evidence   produced   by   the
prosecution, the learned Trial Court vide its  judgment  of  conviction  and
order of sentence, both dated 29th June, 1990,  found  the  accused  persons
guilty of offences under Section 302 read with Section 34  IPC  as  well  as
under Section 323 read with Section 34 IPC.  The Trial Court, while  dealing
with the arguments of the accused for application of Section 34, as well  as
the submission that the witnesses had not attributed specific  role  to  the
respective accused persons, held as under:

           “The attack was premeditated and  the  accused  had  come  fully
           prepared to do the overt act.  The injury was caused on the head
           of the deceased which is a vital part of the body  at  which  it
           was aimed by employing lathi, it  was  clear  that  the  accused
           persons had intended to cause death by giving blow on vital part
           of the body of the deceased.  After receiving the injuries,  the
           deceased fell down and even thereafter he was  attacked  by  the
           accused persons and he died on the spot immediately.   This  all
           goes to show that the accused persons who all  were  armed  with
           lathis and had attacked in furtherance of their common intention
           by surrounding Sri Pyara  Singh.   At  that  juncture  when  the
           occurrence took place suddenly and the witnesses  were  at  some
           distance it was quite natural for  the  witnesses  not  to  have
           noted as to whose lathi blow caused the injuries  on  Sri  Pyara
           Singh and also on the injured persons. It was thus quite natural
           in such circumstances for the witnesses not to  have  noted  the
           minute details of the incident.  The Hon’ble Supreme  Court  has
           held in 1971 Cri.L.J. 1135 Har Prasad  vs.   State            of
           Madhya Pradesh that in view  of  the  large  number  of  accused
           involved  in  the  occurrence  it  is  quite  natural  for   the
           prosecution witnesses to get a bit confused.  In fact, no cross-
           examination was made on this respect of the case which has  been
           discussed by me above.  The fact that the  accused  persons  had
           gone to the place of occurrence  fully  armed  with  lathis  and
           immediately  on  the  basis  of  ‘mend’  started  attacking  the
           deceased Sri Pyara Singh indicates that they had gone there with
           premeditation and prior concert.   All  the  four  accused  were
           physically present at the time of  the  commission  of  offence.
           The criminal act was done by the accused persons  and  they  all
           had shared the common intention by  engaging  in  that  criminal
           enterprise  for  which  they  had  come  fully  prepared.    The
           prosecution has succeeded in showing  the  existence  of  common
           purpose or design.  All the accused persons were confederates in
           the commission of the offence and they had participated in  that
           common intention.  Each of the accused person is liable for  the
           fact done in pursuance of that common purpose  of  design.   The
           acts done by the accused persons are similar  as  they  all  had
           come prepared armed with lathis and lathi blows were  struck  on
           the  deceased  Sri  Pyara  Singh  by  the  accused  persons   in
           furtherance of their common intention.  Each of them  is  liable
           for the blows struck with lathi on the deceased and also on  the
           injured persons.  It is proved beyond all reasonable doubt  that
           lathi blow was struck on the head of Sri Pyara Singh which was a
           vital part and he died on the spot due to injuries.  Whoever may
           have struck that lathi blow, each  of  the  accused  person   is
           liable for the lathi blows struck  on  the  vital  part  of  the
           deceased.  Since the ladhi blow was struck on the  head  of  the
           deceased which is a vital part, the offence  amounts  to  murder
           (See 1972 SCC (Cri) 438 Gudar Dusadh Vs. State of  Bihar).   The
           death of Sri Pyara Singh was caused in the occurrence and it  is
           proved to the hilt and beyond all reasonable doubt that he  died
           on the spot on account of lathi blows inflicted on him.   It  is
           nobody’s case that he died natural death.  The  accused  persons
           have committed offence punishable under  Section  302/34  I.P.C.
           for committed offence punishable under Section 323/34 I.P.C. for
           causing voluntary hurt to Sri Gurumukh Singh  and  Smt.  Balwant
           Kaur.”

 

8.    The above judgment of the Trial Court  was  assailed  by  the  accused
persons in appeal before the High Court.  The High Court, vide its  judgment
dated 17th March, 2008, dismissed the appeal and affirmed  the  judgment  of
conviction and order of sentence passed by learned Trial Court  giving  rise
to the present appeal.

9.    From the narration of the  above  facts,  brought  on  record  by  the
prosecution and proved in accordance with law, it is clear  that  there  are
three eye-witnesses to  the  occurrence.   Out  of  them,  two  are  injured
witnesses, namely PW2 and PW4.  PW2 is the son of the deceased  and  PW4  is
the wife.  Presence of these two witnesses at the  place  of  occurrence  is
normal and natural.  According  to  PW4,  she  had  gone  to  the  place  of
occurrence to give food to her husband and son around 12 noon, which is  the
normal hour for lunch in the villages.  The son of the deceased had come  to
the field with his father to work.  They were  putting  earth  on  the  mend
which was objected to by the accused persons who had come there with  lathis
and with a  premeditated  mind  of  causing  harm  to  the  deceased.   Upon
enquiry, the deceased informed the accused  persons  that  the  mend  was  a
joint property of the parties.  Without  provocation,  the  accused  persons
thereupon  started  hurling  abuses  upon  Pyara  Singh  and  his  son,  and
assaulted the deceased with lathis.   PW2  and  PW4  intervened  to  protect
their father and husband respectively, but to  no  consequence  and  in  the
process, they  suffered  injuries.   In  the  meanwhile,  when  the  accused
persons were challenged by PW5 and Satnam  Singh,  who  were  close  to  the
place of occurrence, they ran away.   The  presence  of  PW2,  PW4  and  PW5
cannot be doubted.  The statement made by them  in  the  Court  is  natural,
reliable and does not suffer from  any  serious  contradictions.   Once  the
presence of eye-witnesses cannot be doubted  and  it  has  been  established
that their statement is reliable, there is no reason for the  Court  to  not
rely upon the statement of such eye witnesses in accepting the case  of  the
prosecution.   The  accused  persons  had  come  with  pre-meditated   mind,
together with common intention, to assault the  deceased  and  all  of  them
kept on assaulting the deceased till the time he  fell  on  the  ground  and
became breathless.

10.   This Court has repeatedly held that an eye-witness version  cannot  be
discarded by the Court merely on the ground that such  eye-witness  happened
to be a relation or friend of  the  deceased.   The  concept  of  interested
witness essentially must carry with it the element of unfairness  and  undue
intention to falsely implicate the accused.  It is only when these  elements
are present, and statement of the witness is unworthy of credence  that  the
Court would examine the possibility  of  discarding  such  statements.   But
where the presence of the eye-witnesses is proved to be  natural  and  their
statements are nothing but truthful disclosure of actual  facts  leading  to
the occurrence and the occurrence itself, it will  not  be  permissible  for
the Court to discard the statements of such  related  or  friendly  witness.
The Court in the case of Dharnidhar v. State of Uttar Pradesh [(2010) 7  SCC
759] took the following view :

           “12. There is no hard-and-fast  rule  that  family  members  can
           never be true witnesses to the occurrence  and  that  they  will
           always depose falsely before the court. It  will  always  depend
           upon the facts and circumstances of a given case.  In  Jayabalan
           v. UT of Pondicherry (2010) 1 SCC 199, this Court  had  occasion
           to consider whether the evidence of interested witnesses can  be
           relied upon. The Court took the view that  a  pedantic  approach
           cannot  be  applied  while  dealing  with  the  evidence  of  an
           interested witness. Such evidence cannot be  ignored  or  thrown
           out solely because it comes from a person closely related to the
           victim. The Court held as under: (SCC p. 213, paras 23-24)

                 “23. We are of the considered view that in cases where  the
                 court is called upon to  deal  with  the  evidence  of  the
                 interested witnesses, the  approach  of  the  court,  while
                 appreciating the evidence of such  witnesses  must  not  be
                 pedantic. The court must be cautious  in  appreciating  and
                 accepting the evidence given by  the  interested  witnesses
                 but the court must not be suspicious of such evidence.  The
                 primary  endeavour  of  the  court  must  be  to  look  for
                 consistency. The evidence of a witness cannot be ignored or
                 thrown out solely because it comes  from  the  mouth  of  a
                 person who is closely related to the victim.

                 24. From a perusal of the record, we find that the evidence
                 of PWs 1 to 4 is clear and categorical in reference to  the
                 frequent quarrels between the deceased and  the  appellant.
                 They  have   clearly   and   consistently   supported   the
                 prosecution version with regard to the beating and the ill-
                 treatment meted out to the deceased  by  the  appellant  on
                 several occasions which compelled the deceased to leave the
                 appellant's house and take shelter in  her  parental  house
                 with an intention to live there permanently.  PWs  1  to  4
                 have unequivocally stated that the deceased  feared  threat
                 to her life  from  the  appellant.  The  aforesaid  version
                 narrated by the prosecution witnesses viz. PWs 1 to 4  also
                 finds  corroboration  from  the   facts   stated   in   the
                 complaint.”

           13. Similar view was taken by this  Court  in  Ram  Bharosey  v.
           State of U.P. AIR 1954 SC 704, where the Court stated the dictum
           of law that a close relative of the deceased does not,  per  se,
           become an interested witness. An interested witness is  one  who
           is interested in securing the conviction  of  a  person  out  of
           vengeance or enmity or due to disputes and  deposes  before  the
           court only with that intention and not to further the  cause  of
           justice. The law relating to  appreciation  of  evidence  of  an
           interested witness is well  settled,  according  to  which,  the
           version of an interested witness cannot be thrown overboard, but
           has to be examined carefully before accepting the same.”

 

11.   Similar view was taken by this Court in the cases of Mano Dutt &  Anr.
v. State of UP [(2012 (3) SCALE 219] and Satbir Singh &  Ors.  v.  State  of
Uttar Pradesh [(2009) 13 SCC 790].

12.   With some vehemence, it has then  been  contended  on  behalf  of  the
appellant that the post mortem report and the  statement  of  PW3,  Dr.  C.N
Tewari, specifically state that no external or internal injuries were  found
on the body  of  the  deceased.   In  other  words,  no  injury  was  either
inflicted by the accused or suffered by  the  deceased.   In  face  of  this
expert medical evidence,  the  statement  of  the  eye-witnesses  cannot  be
believed.  The expert evidence should be given precedence  and  the  accused
persons are entitled to acquittal.  This argument is liable to  be  rejected
at the very outset despite the fact  that  it  sounds  attractive  at  first
blush.  No doubt the post mortem report (Exhibit Ka-4) and the statement  of
PW3 Dr. C.N. Tewari, does show/reflect that he had not noticed any  injuries
upon the person of the deceased externally or  even  after  opening  him  up
internally.  But the fact of the matter is that Pyara Singh  died.   How  he
suffered  death  is  explained  by  three  witnesses,  PW2,  PW4  and   PW5,
respectively. Besides this, the  statement  of  the  investigating  officer,
PW6, also clearly shows that  the  body  of  the  deceased  contained  three
apparent injuries.  He recorded in his investigative  proceedings  that  the
accused had died of these injuries and was found lying dead at the place  of
occurrence.  It is not only the statement of PW-6, but also the  Panchas  in
whose presence the body was recovered, who  have  endorsed  this  fact.  The
course of events as recorded in the investigation points  more  towards  the
correctness of the case of the prosecution than otherwise. Strangely,  Dayal
Singh and other accused persons not only took the stand of  complete  denial
in their statement under Section 313 of  the  Code  of  Criminal  Procedure,
1973 (CrPC) but even went  to  the  extent  of  stating  that  they  had  no
knowledge (pata nahin) when they were asked whether Pyara Singh had died  as
a result of injuries.

13.   We have already discussed above that the presence of PW2, PW4 and  PW5
at the place of occurrence was in the normal course of business  and  cannot
be doubted.  Their statements are reliable, cogent and consistent  with  the
story of the prosecution. Merely because PW3 and PW6 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.  Reference in this regard can usefully be made  to
the case of C. Muniappan v. State of Tamil Nadu {AIR 2010 SC 3718  :  (2010)
9 SCC 567}.

14.   Now,  we  will  deal  with  the  question  of  defective  or  improper
investigation  resulting  from  the  acts  of  omission  and/or  commission,
deliberate or otherwise, of the  Investigating  Officer  or  other  material
witnesses, who are obliged to perform certain duties in discharge  of  their
functions and then to examine its effects.  In order to examine this  aspect
in conformity with the rule of law and keeping in mind the basic  principles
of criminal jurisprudence, and the  questions  framed  by  us  at  the  very
outset of this judgment, the following points need consideration:

        i) Whether there have been acts of omission  and  commission  which
           have resulted in improper or defective investigation.

 


       ii) Whether such default and/or acts of omission and commission have
           adversely affected the case of the prosecution.

 


      iii) Whether such default and acts were deliberate, unintentional  or
           resulted from unavoidable circumstances of a given case.

 


       iv)  If  the  dereliction  of  duty  and  omission  to  perform  was
           deliberate, then  is  it  obligatory  upon  the  court  to  pass
           appropriate directions including directions in regard to  taking
           of penal or other civil action against such officer/witness.

 


15.   In order to answer these determinative parameters,  the  Courts  would
have to examine the prosecution evidence in its entirety, especially when  a
specific reference  to  the  defective  or  irresponsible  investigation  is
noticed in light of the facts and circumstances of a given case.


16.   The Investigating Officer, as well as the doctor who are dealing  with
the investigation of a criminal case, are obliged to act in accordance  with
the police manual and the known canons of  medical  practice,  respectively.
They are both obliged to be diligent, truthful and fair  in  their  approach
and  investigation.   A  default  or  breach  of  duty,   intentionally   or
otherwise, can sometimes prove fatal to the case  of  the  prosecution.   An
Investigating Officer is  completely  responsible  and  answerable  for  the
manner and methodology adopted in completing his investigation.   Where  the
default and omission is so flagrant that it speaks volumes of  a  deliberate
act or such irresponsible attitude of investigation, no court can afford  to
overlook it, whether it did or did not cause prejudice to the  case  of  the
prosecution.   It  is  possible  that  despite  such  default/omission,  the
prosecution may still prove its case beyond reasonable doubt and  the  court
can so return its finding.  But, at the same time, the default and  omission
would have a reasonable chance of defeating the case of the  prosecution  in
some events and the guilty could go scot-free.  We may illustrate such  kind
of investigation with an example where a huge recovery  of  opium  or  poppy
husk is made from a vehicle and the  Investigating  Officer  does  not  even
investigate or make an attempt to find out  as  to  who  is  the  registered
owner of the vehicle and whether such owner was involved in  the  commission
of the crime or not.  Instead, he merely apprehends a cleaner  and  projects
him as the principal offender  without  even  reference  to  the  registered
owner.  Apparently, it would prima facie be  difficult  to  believe  that  a
cleaner of a truck would have the capacity to  buy  and  be  the  owner,  in
possession of such a huge quantity, i.e., hundreds of bags, of  poppy  husk.
The investigation projects the poor cleaner as  the  principal  offender  in
the case without even reference to the registered owner.

17.    Even  the  present  case  is  a  glaring  example  of   irresponsible
investigation.  It, in fact, smacks of  intentional  mischief  to  misdirect
the investigation as well as to withhold material evidence from  the  Court.
It cannot be considered a case of bona fide  or  unintentional  omission  or
commission.  It is not a case of faulty investigation simplicitor but is  an
investigation coloured with motivation or an  attempt  to  ensure  that  the
suspect can go scot free.  This can safely be gathered from the following:

a)     The  entire   investigation,   including   the   statement   of   the
      investigating officer, does not  show  as  to  what  happened  to  the
      viscera which was, as per the statement of PW3,  handed  over  to  the
      Constable, PW7, who,  in  turn,  stated  that  the  viscera  had  been
      deposited in the Police Station Malkhana.  In the entire statement  of
      the Investigating Officer, there  is  no  reference  to  viscera,  its
      collection from the hospital, its deposit in the Malkhana and  whether
      it was sent to the FSL at all or not.  If sent, what  was  the  result
      and, if not, why?

b)    Conduct of the Investigating Officer is  more  than  doubtful  in  the
      present case.  In his statement, he had stated that he  noticed  three
      injuries on the body of the deceased.  He also admitted  that  in  the
      post mortem report, no internal or external injuries were shown on the
      body of the deceased.  According to him, he  had  asked  PW3  in  that
      regard but  the  reply  of  the  doctor  was  received  late  and  the
      explanation  rendered  was  satisfactory.   Firstly,  this  reply   or
      explanation does not find place on record.  There is  no  document  to
      that effect and secondly, even in his oral evidence, he does  not  say
      as to what the explanation was.

c)    In his statement, PW3, Dr. C.N. Tewari, stated that he  did  not  find
      any external or internal  injuries  even  after  performing  the  post
      mortem on the body of the deceased.  This remark on  the  post  mortem
      report apparently is falsified both by the eye-witnesses  as  well  as
      the Investigating Officer.  It will be beyond apprehension as to how a
      healthy person could die, if there were no injuries on  his  body  and
      when, admittedly, it was not a case of  cardiac  arrest  or  death  by
      poison etc., more so, when he was alleged to have been assaulted  with
      dandas (lathi) by four  persons  simultaneously.   In  any  case,  the
      doctor gave no cause for death of the deceased  and  prepared  a  post
      mortem  report  which  ex  facie  was  incorrect  and  tantamount   to
      abrogation of duty.  The Trial Court  while  giving  the  judgment  of
      conviction, noticed that medico-legal post  mortem  examination  is  a
      very important part of the prosecution evidence and, therefore, it  is
      necessary that it  be  conducted  by  a  doctor  fully  competent  and
      experienced. The Court also commented adversely upon the  professional
      capabilities and/or misconduct of Dr. C.N. Tewari, as follows:

           “Whatever may have been the reasons but it is quite evident that
           Dr. C.N. Tewari failed in his professional duty and he  did  not
           perform post mortem examination properly after  considering  the
           inquest report and the  police  papers  sent  to  him.   If  his
           finding deferred from the finding of the Panchas he should  have
           informed his superior officers in that regard  so  that  another
           opinion could have been obtained before the disposal of the dead
           body.  The evidence leaves no room  for  doubt  that  Sri  Pyara
           Singh was attacked with lathis as alleged by the prosecution and
           he received three injuries already referred to above which  were
           mentioned in the inquest report (Ex.Ka-6)….

           The case of the prosecution cannot be thrown on account  of  the
           gross negligence and apathy of  the  Medical  Officer  Dr.  C.N.
           Tewari who had performed autopsy on the dead body of  Sri  Pyara
           Singh.  Since the Medical Officer Dr. C.N. Tewari had  conducted
           in a manner not befitting the medical  profession  and  prepared
           post mortem report against facts for reasons best known  to  him
           and was negligent in his duty in ascertaining  the  injuries  on
           the body of the deceased, hence it is just and proper  that  the
           Director General, Medical health U.P. be informed in this regard
           for taking necessary action and for eradicating  such  practices
           in future.”
                                                         (Emphasis supplied)


18.   From the record, it is evident that the learned counsel appearing  for
the State was also not aware if any action had been taken against  Dr.  C.N.
Tewari.   On  the  contrary,  Mr.  Ratnakar  Dash,  learned  senior  counsel
appearing for Dr. C.N. Tewari, informed us that no  action  was  called  for
against Dr. C.N. Tewari as he had authored the post mortem report and  given
his evidence truthfully and  without  any  dereliction  of  duty.   He  also
informed us that since Dr. C.N. Tewari is now retired and is not well,  this
Court need not pass any further directions.

19.   We are not impressed with this contention  at  all.  We  have  already
noticed that PW3, Dr. C.N. Tewari, certainly did not act with the  requisite
professionalism.  He even  failed  to  truthfully  record  the  post  mortem
report, Exhibit Ka-4.  At the cost of repetition, we  may  notice  that  his
report is contradictory to the  evidence  of  the  three  eye-witnesses  who
stood the  test  of  cross-examination  and  gave  the  eye-version  of  the
occurrence.  It is also in conflict with the statement of  PW6  as  well  as
the inquest report (Exhibit Ka-6) prepared by him where he had noticed  that
there were three injuries on the body of the deceased.   It  is  clear  that
the post mortem report is silent and PW3 did not even notice  the  cause  of
death.  If he was not able to record a finding with regard to the  cause  of
death,  he  was  expected  to  record  some  reason  in   support   thereof,
particularly when it is conceded before us by the learned  counsel  for  the
parties, including the counsel for Dr. C.N. Tewari that it was  not  a  case
of death by administering poison.

20.   Similarly, the Investigating Officer has  also  failed  in  performing
his duty in accordance with law.  Firstly, for  not  recording  the  reasons
given by Dr. C.N. Tewari for non-mentioning of injuries on the  post  mortem
report, Exhibit Ka-4, which had appeared  satisfactory  to  him.   Secondly,
for not sending to the FSL the viscera and other samples collected from  the
body of the deceased by Dr. C.N. Tewari, who allegedly handed over the  same
to the police, and their disappearance.   There  is  clear  callousness  and
irresponsibility on their part  and  deliberate  attempt  to  misdirect  the
investigation to favour the accused.

21.   This results in shifting of avoidable burden and  exercise  of  higher
degree  of  caution  and  care  on  the  courts.   Dereliction  of  duty  or
carelessness is an abuse of discretion under a definite law  and  misconduct
is a violation of indefinite law. Misconduct  is  a  forbidden  act  whereas
dereliction of duty is the forbidden quality of an act  and  is  necessarily
indefinite.  One is a transgression of some established  and  definite  rule
of action, with least element of discretion, while the  other  is  primarily
an abuse of discretion.  This Court in the case of State of  Punjab  &  Ors.
v. Ram Singh Ex. Constable [(1992) 4 SCC 54] stated that the ambit of  these
expressions had to be construed with reference to  the  subject  matter  and
the context where the term occurs, regard being given to the  scope  of  the
statute and the public purpose it seeks to serve.  The police service  is  a
disciplined service and it requires maintenance of strict  discipline.   The
consequences  of  these  defaults  should  normally   be   attributable   to
negligence.  Police officers and doctors, by their profession, are  required
to maintain duty decorum of high standards.  The standards of  investigation
and the prestige of the profession are dependent upon  the  action  of  such
specialized persons.  The police manual and even the provisions of the  CrPC
require the investigation to be conducted in a particular manner and  method
which, in our opinion, stands clearly violated in  the  present  case.   Dr.
C.N. Tewari, not only breached the requirement of adherence to  professional
standards but also became instrumental in preparing  a  document  which,  ex
facie, was incorrect and stood falsified by the  unimpeachable  evidence  of
eye witnesses placed by the prosecution on record.  Also, in the same  case,
the Court, while referring to the decision in Ram Bihari  Yadav  and  Others
v. State of Bihar & Ors. [(1995) 6 SCC 31] noticed that if primacy is  given
to such designed or negligent investigation, to the omission  or  lapses  by
perfunctory investigation or omissions, the  faith  and  confidence  of  the
people would be shaken not only in the law enforcement agency  but  also  in
the administration of justice.

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.”

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.

25.   Reiterating the above principle, this Court in the  case  of  National
Human Rights Commission v. State of Gujarat [(2009)  6  SCC  767],  held  as
under:

           “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.”

 

26.   In the case of State of  Karnataka  v.  K.  Yarappa  Reddy  [2000  SCC
(Crl.) 61], 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 Paragraph 19, held as follows:

                 “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  investigation  officers.  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.”

 

 

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]}.

31.   Profitably, reference to the value of an expert in the eye of law  can
be assimilated as follows:

           “The essential principle governing expert evidence is  that  the
           expert is not only to provide reasons to support his opinion but
           the result should be directly demonstrable.  The court is not to
           surrender its own judgment to that of the expert or delegate its
           authority to a third party, but should assess his evidence  like
           any other evidence.  If the report of  an  expert  is  slipshod,
           inadequate or cryptic and the  information  of  similarities  or
           dissimilarities is not available in his report and his  evidence
           in the case, then his opinion is of no use.  It is  required  of
           an expert whether a government expert or private, if he expects,
           his opinion to be accepted to put before the court the  material
           which induces him to come to his conclusion so  that  the  court
           though not  an  expert,  may  form  its  own  judgment  on  that
           material.  If the expert in his evidence as a witness  does  not
           place the whole lot of similarities  or  dissimilarities,  etc.,
           which influence his mind to lead him to a particular  conclusion
           which he states in the court then he fails in his duty  to  take
           the court into confidence.  The court is not to believe the ipse
           dixit of an expert.  Indeed the value  of  the  expert  evidence
           consists mainly on the ability of the witness by reason  of  his
           special training and experience to  point  out  the  court  such
           important facts as it otherwise might fail to observe and in  so
           doing the court is enabled to exercise its own view or  judgment
           respecting the cogency of reasons and the  consequent  value  of
           the conclusions formed thereon.  The opinion is required  to  be
           presented  in  a  convenient  manner  and  the  reasons  for   a
           conclusion based on certain visible  evidence,  properly  placed
           before the Court.  In other words the value of  expert  evidence
           depends largely on the cogency of reasons on which it is based.”

           [See: Forensic Science in Criminal Investigation & Trial (Fourth
           Edition) by B.R. Sharma]

 

32.   The purpose of expert testimony is to provide the trier of  fact  with
useful, relevant information. The overwhelming majority rule in  the  United
States, is that an expert need not be a  member  of  a  learned  profession.
Rather, experts in the United States have a wide range  of  credentials  and
testify regarding a tremendous variety of subjects based  on  their  skills,
training, education or experience.  The role of the expert is  to  apply  or
supply  specialized,  valuable  knowledge  that  lay  jurors  would  not  be
expected to possess.  An expert may present  the  information  in  a  manner
that would be unacceptable with an ordinary witness.  The common  law  tried
to strike a balance between the benefits and dangers of expert testimony  by
allowing expert  testimony  to  be  admitted  only  if  the  testimony  were
particularly important to aiding the trier of fact.  Even in United  States,
if the helpfulness of expert testimony is substantially  outweighed  by  the
risk of unfair prejudice, confusion or waste of  time,  then  the  testimony
should be excluded under the relevant Rules,  and  State  equally  balanced.
Expert testimony on any issue of fact and significance  of  its  application
has been doubted by the scholars in the United States.  Even under  the  law
prevalent in that country, the opinion of an expert has  to  be  scientific,
specific and experience based.   Conflict  in  expert  opinions  is  a  well
prevalent practice there.  While referring to such incidence David  H.  Kaye
and other authors in ‘The New  Wigmore  A  Treatise  on  Evidence  –  Expert
Evidence’ (2004 Edition) opined as under :

           “The district court  opinion  reveals  that  one  pharmacologist
           asserted  “that  Danocrine  more  probably   than   not   caused
           plaintiff’s death from pulmonary hypertension,” but it describes
           the reasoning behind this  opinion  in  the  vaguest  of  terms,
           referring  only  to  “extensive  education   and   training   in
           pharmacology” and an  unspecified  “scientific  technique”  that
           “relied upon epidemiological, clinical and  animal  studies,  as
           well as plaintiff’s medical records and medical  history…”   The
           nature of these studies and their relationship to the  patient’s
           records is left unstated.  The district court incanted the  same
           mantra  to  justify  admitting  the  remaining  testimony.    It
           asserted that the other experts “similarly base their  testimony
           upon a careful review of medical literature concerning Danocrine
           and pulmonary hypertension, and plaintiff’s medical records  and
           medical history.”

           The court of appeals elaborated on the testimony of two  of  the
           experts.  The physician “was confident to a  reasonable  medical
           certainty  that  the  Danocrine  caused  Mrs.  Zuchowicz’s  PPH”
           because of “the temporal relationship between the  overdose  and
           the start of the disease and the differential etiology method of
           excluding  other  possible  causes.”   Yet   the   “differential
           etiology” here was barely more than a differential diagnosis  of
           PPH.  The causes of PPH are generally  unknown  and  it  appears
           that the only other putative alternative causes considered  were
           drugs other than Danocrine.  It is not at all clear that such  a
           “differential etiology” is adequate to support a  conclusion  of
           causation  to  any  kind  of   a   “medical   certainty.”    The
           pharmacologist, not being a  medical  doctor,  testified  “to  a
           reasonable degree of scientific  certainty  .  .  .  [that]  the
           overdose of Danocrine, more likely than not, caused PPH. . .  .”
           He postulated a mechanism by which this might have occurred: “I)
           a decrease in estrogen; 2) hyperinsulinemia, in which abnormally
           high levels of insulin circulate in the body; and 3) increase in
           free testosterone and progesterone .  .  .  that  .  .  .  taken
           together, likely caused a dysfunction of the endothelium leading
           to PPH.”

           In sum, plaintiff’s experts did not know what  else  might  have
           caused the hypertension, and they offered a conjecture as  to  a
           causal chain leading from the drug to  the  hypertension.   This
           logic would be more than  enough  to  justify  certain  clinical
           recommendations—the advice to Mrs. Zuchowicz to discontinue  the
           medication, for example.  But is it enough to  allow  an  expert
           not merely to testify to  a  reasonable  diagnosis  of  PPH,  or
           “unexplained pulmonary hypertension,” as the condition  also  is
           known, but also be able to propound a novel explanation that has
           yet to be verified, even in an animal model?”

 

33.         The Indian law on  Expert  Evidence  does  not  proceed  on  any
significantly different footing.  The skill and experience of an  expert  is
the ethos of his opinion, which itself should be  reasoned  and  convincing.
Not to say that no other view would be possible, but  if  the  view  of  the
expert has to find due weightage in the mind of the  Court,  it  has  to  be
well authored and convincing.  Dr. C.N. Tewari was expected to  prepare  the
post mortem report with appropriate reasoning and not  leave  everything  to
the imagination of the Court. He created a serious  doubt  as  to  the  very
cause of death of the deceased.  His report apparently shows an  absence  of
skill and experience and was, in fact, a deliberate attempt to disguise  the
investigation.

34.   We really need not reiterate various judgments which  have  taken  the
view that the purpose of an expert opinion is primarily to assist the  Court
in arriving at a final conclusion.  Such report  is  not  binding  upon  the
Court.  The Court is expected to analyse the report, read it in  conjunction
with the other evidence on record and then form  its  final  opinion  as  to
whether such report is worthy of reliance or not.  Just to  illustrate  this
point  of  view,  in  a  given  case,  there  may   be   two   diametrically
contradictory opinions of handwriting experts and both the opinions  may  be
well reasoned. In such case, the Court has to critically examine the  basis,
reasoning, approach and experience of the expert to come to a conclusion  as
to which of the two reports can be safely relied upon  by  the  Court.   The
assistance and value of expert opinion is indisputable,  but  there  can  be
reports which are, ex facie, incorrect or deliberately so  distorted  as  to
render the entire prosecution case unbelievable.  But if such  eye-witnesses
and other prosecution  evidence  are  trustworthy,  have  credence  and  are
consistent with the eye version given by the eye-witnesses, the  Court  will
be well within its jurisdiction to discard the expert  opinion.   An  expert
report, duly proved, has its evidentiary value but such appreciation has  to
be within the limitations prescribed and with  careful  examination  by  the
Court.  A  complete  contradiction  or  inconsistency  between  the  medical
evidence and the ocular evidence on the one hand and the  statement  of  the
prosecution witnesses  between  themselves  on  the  other,  may  result  in
seriously denting the case of  the  prosecution  in  its  entirety  but  not
otherwise.

35.   Reverting to the case in hand, the Trial  Court  has  rightly  ignored
the deliberate lapses of the investigating  officer  as  well  as  the  post
mortem report prepared by Dr. C.N. Tewari.  The consistent statement of  the
eye-witnesses  which  were  fully  supported  and  corroborated   by   other
witnesses, and  the  investigation  of  the  crime,  including  recovery  of
lathis, inquest report, recovery of the pagri of one  of  the  accused  from
the  place  of  occurrence,  immediate  lodging  of  FIR  and  the  deceased
succumbing to his injuries within a very short time, establish the  case  of
the prosecution beyond reasonable doubt.  These lapses on the  part  of  PW3
and PW6 are a deliberate attempt  on  their  part  to  prepare  reports  and
documents in a designedly defective manner which would have  prejudiced  the
case of the prosecution and resulted in the acquittal of  the  accused,  but
for the correct approach of the trial court to do justice  and  ensure  that
the guilty did not go scot-free.  The evidence of the eye-witness which  was
reliable and worthy of credence has justifiably  been  relied  upon  by  the
court.

36.   Despite clear observations of the Trial  Court,  no  action  has  been
taken by the Director General, Medical Health, Uttar  Pradesh.   We  do  not
see any justification for these lapses on the part of the higher  authority.
 Thus, it is a fit case where this Court should issue notice to  show  cause
why action in accordance with the provisions of the Contempt of Courts  Act,
1971 be not initiated against him and he  be  not  directed  to  conduct  an
enquiry personally and pass appropriate orders  involving  Dr.  C.N.  Tewari
and if found guilty, to impose punishment upon him  including  deduction  of
pension.  Admittedly, this direction was passed when Dr. C.N. Tewari was  in
service.   His  retirement,  therefore,  will  be  inconsequential  to   the
imposing of punishment  and  the  limitation  of  period  indicated  in  the
service regulations would not apply in face of the order of this Court.

37.   Similarly, the Director  General  of  Police  UP/Uttarakhand  also  be
issued notice to take appropriate action  in  accordance  with  the  service
rules against PW6, SI Kartar Singh, irrespective of the fact whether  he  is
in service or has since retired.  If retired, then authorities  should  take
action  for  withdrawal  or  partial  deduction  in  the  pension,  and   in
accordance with law.

38.   Lastly, the learned counsel for the appellant  had,  of  course,  with
some vehemence, argued that the offence even if committed by the  appellant,
would not attract the provisions of Section 302 IPC and would squarely  fall
within the ambit of Part II of Section 304 IPC.  In other  words,  he  prays
for alteration of the offence to an offence  punishable  under  Part  II  of
Section 304 IPC.  We are concerned with a  case  where  four  persons  armed
with lathis had gone to the fields  of  the  deceased.   They  first  hurled
abuses at him and without any provocation started assaulting  him  with  the
dang (lathi) that they were carrying.  Despite efforts to stop them  by  the
the wife and son of the deceased, PW4 and PW2, they did not stop  assaulting
him and assaulted both  these  witnesses  also.   Thereupon,  they  kept  on
assaulting the deceased until he  fell  down  dead  on  the  ground.   Three
injuries were noticed by the Police on the body of the deceased including  a
protuberant injury on the head, which the Court is only left to presume  has
resulted in his death.  In the absence of an  authentic  and  correct  post-
mortem report (Exhibit Ka-4),  the  truthfulness  of  the  prosecution  eye-
witnesses cannot be doubted.  In addition thereto, the stand  taken  by  the
accused that they had suffered  injuries  was  a  false  defence.   Firstly,
according to the doctor, CW2, it was  injuries  of  a  firearm,  while  even
according to the defence, the deceased or his son were not carrying any  gun
at the time of occurrence.  Secondly, they did not choose  to  pursue  their
report with the police at the time of investigation or even when  the  trial
was on before the Trial Court.  The accused persons had gone together  armed
with lathis with a common intention to kill the deceased  and  they  brought
their intention into  effect  by  simultaneously  assaulting  the  deceased.
They had no provocation.  Thus, the intention to kill is  apparent.   It  is
not a case which would squarely fall under  Part  II  of  Section  304  IPC.
Thus,  the  cumulative  effect  of  appreciation  of  evidence,  as   afore-
discussed, is that we find no merit in the present appeal.

39.   Having analyzed and discussed in some elaboration various  aspects  of
this case, we pass the following orders:

A)    The appeal is dismissed both on merits and on quantum of sentence.

B)    The Director Generals, Health Services of  UP/Uttarakhand  are  hereby
      issued notice under the provisions of the Contempt of Courts Act, 1971
      as to why appropriate action be not initiated  against  them  for  not
      complying with the directions contained in the judgment of  the  Trial
      Court dated 29th June, 1990.

C)    The above-said officials are  hereby  directed  to  take  disciplinary
      action against Dr. C.N. Tewari, PW3, whether he is in service  or  has
      since retired, for deliberate dereliction of duty, preparing a  report
      which ex facie was incorrect and was  in  conflict  with  the  inquest
      report (Exhibits Ka-6 and Ka-7) and statement  of  PW6.   The  bar  on
      limitation, if any, under the Rules will not come  into  play  because
      they were directed by the order dated 29th June, 1990 of the Court  to
      do  so.   The  action  even  for  stoppage/reduction  in  pension  can
      appropriately be taken  by  the  said  authorities  against  Dr.  C.N.
      Tewari.

D)    Director Generals of Police  UP/Uttarakhand  are  hereby  directed  to
      initiate, and expeditiously complete, disciplinary proceedings against
      PW6, 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.  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.

E)    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.

40.   The appeal is accordingly dismissed.


                                        ………...….…………......................J.
                                                           (Swatanter Kumar)

 


                                        ………...….…………......................J.
                                          (Fakkir Mohamed Ibrahim Kalifulla)

New Delhi,
August 3, 2012

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

                                                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA

                       CRIMINAL APPELLATE JURISDICTION

                       CRIMINAL APPEAL NO.529 OF 2010

Dayal Singh & Ors.                                       … Appellants

                                   Versus

State of Uttaranchal                                        … Respondent

                                O R D E R


      Today, by a separate judgment, we have directed that action  be  taken
against PW 3 Dr. C.N. Tewari  and  PW  6  SI  Kartar  Singh.   The  Director
General of Police and Director General, Health of  State  of  Uttar  Pradesh
and/or Uttarakhand whoever is the  appropriate  authority,  to  take  action
within three months from today and report the matter to  this  Court.   List
for limited purpose on 15th October, 2012.


                                        ………...….…………......................J.
                                                                  (Swatanter
                                                                      Kumar)


                                        ………...….…………......................J.
                                          (Fakkir Mohamed Ibrahim Kalifulla)

New Delhi,
August 3, 2012

 

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