GAJOO versus STATE OF UTTARAKHAND

9. In support of his contention, the learned counsel for the H appellant had laid a lot of emphasis on the statement of PW4. GAJOO v. STATE OF UTTARAKHAND [SWATANTER KUMAR, J.] According to him, PW4 had not completely stated the case of the prosecution, and therefore, the accused was entitled to acquittal.

10. In the cross-examination, PW4 has made certain statements which no doubt, do not support the case of the prosecution. He stated that he had not given the names of the murderers to his uncle. The statement of PW4 has to be read collectively along with the statement of PW1, PW2 and PW3. PW4 was a minor, when he saw his mother dead in the year 1987. His statement was recorded on 22nd January, 1990 i.e. more than two and a half years after the date of occurrence. We are unable to see any serious contradictions or untruthfulness in the statement of this witness. Even if his statement has to be evaluated as it is on record, he had stated the facts that when he returned from the house of Chetu Ram after attending the Katha, he saw his mother lying dead and thereafter he went and informed his uncle who subsequently lodged the report with the police the next morning and in view of the statement of PW2 and PW3, the accused were arrested.

We fail to understand as to what advantage the accused intends to draw from this statement of PW4. It was not the case of the prosecution that PW4 was an eye-witness or had seen the accused persons murdering his mother. The trial court, on that behalf had recorded that in view of the death of his mother as well as the co-accused, his elder brother, Rampa!, he might not have stated certain facts correctly before the Court. We do not see any reason for making such a remark in the judgment. There are no material or other contradictions in the statements of these four witnesses. PW2 is stated to be related to PW1 who in turn is related to the deceased. Also, PW3 is related to the deceased. Thus, according to the submission on behalf of G the accused all of them become interested witnesses who have attempted to falsely implicate the appellant. The statement of these witnesses, therefore, cannot be relied upon, they being relatives and interested witnesses of the deceased and other witnesses.

11. We are not impressed with this argument. The appreciation of evidence of such related witnesses has been discussed by this Court in its various judgments. In the case of Da/ip Singh v. State of Punjab [(1954 SCR 145], while rejecting the argument that witnesses who are close-relatives B of the victim should not be relied upon, the Court held as under:- c "26. A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily, a close relative would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth. However, we are not attempting any sweeping generalisation. Each case must be judged on its own facts. Our observations are only made to combat what is so often put forward in cases before us as a general rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts."

12. Similar view was taken by this Court in the case of State of A.P. v. S. Rayappa and Others [(2006) 4 SCC 512]. The court observed that it is now almost a fashion that public is reluctant to appear and depose before the court, especially in criminal cases and the cases for that reason itself are dragged for years and years. The Court also stated the principle G that, "by now, it is a well-established principle of law that testimony of a witness otherwise inspiring confidence cannot be discarded on the ground that he being a relation of the deceased is an interested witness. A close relative who is a very natural witness cannot be termed as interested witness. GAJOO v. STATE OF UTTARAKHAND [SWATANTER KUMAR, J.] The term interested postulates that the person concerned must have some direct interest in seeing the accused person being convicted somehow or the other either because of animosity or for some other reasons."

13. This Court has also taken the view that related witness does not necessarily mean or is equivalent to an interested witness. A witness may be called 'interested' only when he or she derives some benefit from the result of litigation; in the decree in a civil case, or in seeing an accused person punished. {Ref. State of Uttar Pradesh v. Kishanpal and Others [(2008) 16 sec 73]}

14. In the case of Darya Singh & Ors. v. State of Punjab [AIR 1965 SC 328], the Court held as under:- "6 …. 0n principle, however, it is difficult to accept the o plea that if a witness is shown to be a relative of the deceased and it is also shown that he shared the hostility of the victim towards the assailant, his evidence can never be accepted unless it is corroborated on material particulars."

15. Once, the presence of PW2 and PW3 is shown to be natural, then to doubt their statement would not be a correct approach in law. It has unequivocally come on record through various witnesses, including PW4, that there was a 'Satyanarayan Katha' at the house of Chetu Ram which was attended by various villagers. It was on their way back at midnight when PW2 and PW3 had seen the occurrence in dark with the help of the torches that they were carrying. The mere fact that PW2 happens to be related to PW1 and to the deceased, would not result in doubting the statement of these witnesses which otherwise have credence, are reliable and are duly corroborated by other evidence. In such cases, it is only the members of the family who come forward to depose. Once it is established that their depositions do not suffer from material contradictions, are trustworthy and in consonance with (2012] 7 S.C.R. A the above-stated principles, the Courts would not be justified in overlooking such valuable piece of evidence.

16. Coming to the next submission on behalf of the accused that there is contradiction between the ocular and medical evidence, it is contended that according to PW2 and PW3, the deceased was killed by use the of Daranti that the accused/appellant Gajoo was carrying, while according to the medical evidence, the death resulted from asphyxia. This argument is based upon misreading of the evidence. PW2 and C PW3 had seen in the dark i.e. in the limited light of the torches that they were carrying, that Rampal was holding the deceased while Gajoo was inflicting injuries on her body with the help of Daranti. As per the Post Mortem Report, Ext. Ka-10, two injuries have been noticed under the chin which are; incised wound 4 cm x % cm muscle deep, incised wound 5 cm x 1 cm D muscle deep and the second injury is just below the first injury. Injury No. (iii) recorded in the post mortem report is very material. According to the docto1, there were three abraded contusions of different sizes, in the middle of the neck. The doctor has specifically recorded that both lungs were E congested, the larynx and trachea were found congested and the expert judgment of the doctor based on these factors was that death occurred due to asphyxia because of strangulation.

17. Rampal was pushing down the deceased on the earth in the Aangan while Gajoo had inflicted the injuries. The injuries evidently were inflicted by accused Gajoo holding Daranti in one hand and holding the neck of the deceased with the other hand. It was the pressing of her neck and body to the earth by both the accused of much greater strength than the deceased, that G resulted in her death.

18. We have also noticed that there is no variation between the medical evidence and the ocular evidence, and once they are co-jointly read, it does not falsify either the statement of the witnesses, PW2 and PW3 or the Post-Mortem Report, Ext. Ka- GAJOO v. STATE OF UTTARAKHAND [SWATANTER KUMAR, J.] 10. In fact, both of them must be read as complimentary to each other. Even if for the sake of argument we assume that there is some variation, still, it would be so immaterial and inconsequential that it would not give any benefit to the accused. It is a settled principle by a series of decisions of this Court that while appreciating the variation between the medical evidence and ocular evidence, primacy is given to the oral evidence of the witnesses. Reference can be made to the judgments of this Court in the case of Kapildeo Manda/ and Ors. v. State of Bihar [(2008) 16 SCC 99], State of UP. v. Krishan Gopa/ [(1998) 4 SCC 302], Bhajan Lal@ Harbhajan c Singh & Ors. v. State of Haryana [(2011) 7 SCC 421].

19. Now, we turn to the last submission on behalf of the accused that no serologist report was obtained in relation to the Daranti, Ext. 2 and blood stained pyjama, Ext. Ka 5, and therefore, the prosecution case should fail. This argument does not impress us at all. No doubt both these exhibits were not sent to the laboratory for obtaining serologist report, but the absence thereof per se would not give any advantage to the accused. This is merely a defect in investigation. A defective investigation, unless affects the very root of the prosecution case and is prejudicial to the accused, should not be an aspect of material consideration by the court. PWS has duly proved the recovery of Daranti, Ext. 2 and the blood stained pyjama, Ext. Ka 5 and has duly stood the test of cross-examination in court. Both these articles were recovered by the investigating officer Brahma Singh, PW6 and the recoveries have been duly established before the court. The recoveries having been proved and the case of the prosecution being duly supported by two eye-witnesses, PW2 and PW3 and two witnesses, PW4 and PWS who were present immediately after the occurrence, have proved the case of the prosecution beyond any reasonable doubt.

20. In regard to the defective investigation, this Court in the case of Dayal Singh and Others. v. State of Uttaranchal A [2012 (7) SCALE 165] while dealing with the cases of omissions and commissions by th~ investigating officer, and duty of the Court in such cases held as under:- c "22. Now, we may advert to the duty of the Court in such cases. In the case of Sathi Prasad v. The State of UP. [(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 sec 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 Habibul/ah 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 GAJOO v. STATE OF UTTARAKHAND [SWATANTER KUMAR, J.] 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 !Tleasures 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 c 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 c 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 Kamataka v. K. Yarappa Reddy [2000 sec (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 thP. 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 GAJOO v. STATE OF UTTARAKHAND [SWATANTER KUMAR, J.] 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 c 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 0fficer's suspicious role in the case."

27. In Ram Bali v. State of Uttar Pradesh [(2004) 10 SCC 598], the judgment in Kamel 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, c 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 GAJOO v. STATE OF UTTARAKHAND [SWATANTER KUMAR, J.] 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]}." c 21. The present case, when examined in light of the above principles, makes it clear that the defect in the investigation or omission on the part of the investigating officer, cannot prove to be of any advantage to the accused. No doubt the investigating officer ought to have obtained serologist's report both in respect of Ext. 2 and Ext. 5 and matched it with the blood group of the deceased. This is a definite lapse on the part of the investigating officer which cannot be overlooked by the Court, despite the fact that it finds no merit in the contention of the accused. 22. For the reasons afore-recorded, we dismiss this appeal being without any merit. However, we direct the Director General of Police, Uttarakhand, to take disciplinary action against Sub-Inspector, Brahma Singh, PW6, whether he is in service or has since retired, for such serious lapse in conducting investigation. 23. The Director General of Police shall take a disciplinary action against the said officer and if he has since retired, the action shall be taken with regard to deduction/stoppage of his pension in accordance with the service rules. The ground of limitation, if stated in the relevant rules, will not operate as the inquiry is being conducted under the direction of this Court. B.B.B. Appeal dismissed.