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
