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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 629 OF 2010

Sahabuddin & Anr. …  Appellants

Versus

State of Assam … Respondent

J U D G M E N T

Swatanter Kumar, J.

1. It  is  the  case  of  the  prosecution  that  the  accused  

Sahabuddin was married to one Sajna Begum, the deceased on  

17th May, 2001, and they were staying together.  She was three  

months’ pregnant.  During her last visit to her parental home,  

she wailed and was not  willing to go back to her husband’s  

house, stating that her husband and her brother-in-law would  

kill her if their demands of dowry were not met.   However, the  

wish of her parents prevailed and she was sent back to her  

matrimonial home.   After lapse of barely a couple of months  

i.e. on 9th September, 2001, approximately four months after  

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her  marriage,  at  about  10  p.m.,  one  Sarifuddin,  the  elder  

brother-in-law  of  Sajna Begum,  informed  her  uncle,  Taibur  

Rahman,  PW7 that  she  fell  down  in  the  kitchen  due  to  

dizziness.    Ten  minutes  later,  Sarifuddin  came  back  and  

informed  them  that  Sajana  Begum  fell  down  and  froth  was  

coming  out  of  her  mouth  and  thereafter  she  died.   PW7  

informed the mother of the deceased, Abejan Bibi, PW3, about  

the death of her daughter, Sajna Begum.    When they reached  

the place of occurrence, they saw that their daughter was lying  

dead.    Suspecting that it  was not a natural  death and that  

there  had  been  some  foul  play  on  the  part  of  the  accused  

persons  i.e.  the  husband  and  the  brother-in-law  of  the  

deceased, PW3, lodged an FIR.  

2. The FIR, Ext. 3, was registered under Section 304(B) of the  

Indian Penal Code, 1860 (for short “IPC”).  However, the Court  

of competent jurisdiction on the basis of the police report and  

upon hearing both the parties found that a  prima facie case  

under Section 302/34 IPC was made out against the accused  

Sahabuddin and Sarifuddin.   They were charged with the same  

offence  and  the  case  was  put  to  trial.    The  Investigating  

Officer,  Someshwar  Boro,  PW11,  took over  the investigation,  

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examined a  number  of  witnesses and seized  the dead body  

from the place in  question.   The body of  the deceased was  

subjected  to  post  mortem.    On  10th September,  2001,  Dr.  

Swapan Kumar  Sen,  PW1 in  the  post  mortem report,  Ext.  1  

stated that injuries  on the body of the deceased were ante-

mortem  and  that  there  were  multiple  bruises  on  the  lower  

abdomen.   Also, the neck was swollen and face was congested  

and  swollen.   Although,  the  cause  of  death  could  not  be  

ascertained,  the  visceras were  preserved  to  be  sent  to  the  

Forensic  Science Laboratory,  Guwahati,  for  forensic  and  

chemical  analysis.    PW2,  an Executive Magistrate,  who had  

conducted inquest on the body of the deceased noticed that  

the hands of  the deceased were close fisted and saliva was  

coming out of her mouth along with a little quantity of foam.  

Black spots were found on her belly and some spots were also  

noticed on her back.  Ext. 2 is the inquest report.    

3. The  mother  of  the  deceased,  Abejan  Bibi,  PW3  was  

another material witness and according to her, assault marks  

could be seen all over the body of the deceased and that her  

neck was swollen.   PW3 also stated that she saw black marks  

on  the  left  side  of  the  abdomen of  her  deceased  daughter.  

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Thus, on being suspicious that her daughter had been killed,  

PW3 lodged the FIR.   PW4 who had accompanied PW3, stated  

PW3  to  be  her  aunt  and  the  statement  of  PW 4  was  quite  

similar to that of PW3.   PW7, Taibur Rahman was the uncle of  

the deceased, Sajna Begum who had first been informed of her  

demise by her brother in law, Sarifuddin.

4. However, PW8 and PW9 were the prosecution witnesses  

who did not fully support the case of the prosecution and were  

thus declared hostile by the prosecution.   Both these witnesses  

were the neighbours of the accused persons.   Accused in their  

statements  under  Section  313  of  the  Code  of  Criminal  

Procedure (for short “the CrPC”) denied all the allegations and  

opted to lead defence.   The accused persons had examined as  

many  as  three  witnesses,  who  were  primarily  produced  to  

establish the plea of alibi,  affirming that the accused were not  

present in the house, when the incident took place.

5. Disbelieving  the  defence  put  forth  by  the  accused,  the  

Trial  Court  held  both  the  accused  guilty  of  the  offence  

punishable  under  Section  302  read with  Section  34 IPC  and  

having found them guilty, awarded them life imprisonment and  

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a  fine  of  Rs.  5000/-  and  in  default  to  undergo  simple  

imprisonment for six months.

6. At this stage, we may also notice that the Trial Court had  

observed that PW1, Dr. Swapan Kumar Sen, the medical officer  

needs to be censured as his report was found to be perfunctory  

in nature.

7. Challenging the legality and correctness of the judgment  

of  the  Trial  Court,  the  accused persons  preferred  an  appeal  

before the High Court.   The High Court vide its judgment dated  

27th November,  2008  dismissed  the  appeal,  confirming  the  

finding of guilt and order of sentence passed by the Trial Court,  

giving rise to the filing of the present appeal.

8. The  learned  counsel  appearing  for  the  appellants  has  

raised the following contentions while impugning the judgment  

under appeal:-

1. The  story  of  the  prosecution  is  improbable  and  

prosecution  has  not  been  able  to  establish  its  case  

beyond reasonable doubt.

2. PW3 to PW7 are all interested witnesses.  By virtue of  

them  being  the  relatives  of  the  deceased,  these  5

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witnesses  wanted  to  falsely  implicate  the  accused  

persons.  Hence, their statements cannot be relied upon  

and  in  any  case,  there  are  contradictions  in  the  

statements of  these witnesses.   Thus,  the accused is  

entitled to the benefit of doubt.

3. PW8  and  PW9  did  not  support  the  case  of  the  

prosecution.   The Court should have returned a finding  

in favour of the accused by appreciating the statements  

of DW1, DW2 and DW3, in its correct perspective and  

examining them in light of the statements of the PW8  

and PW9.

9. We are unable to find any merit in the contentions raised  

on  behalf  of  the  appellants,  which  we  propose  to  discuss  

together as the Court has to refer to the same evidence for  

appreciation of  the contentions raised on behalf  of  both the  

appellants.   Thus, it will be appropriate to discuss the pleas  

together.

10. This is a case of circumstantial evidence as there is no eye  

witness  to  the  occurrence  which  has  been  produced  by  the  

prosecution.    

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11. Let us examine the various circumstances by which the  

prosecution has attempted to establish the guilt of the accused  

beyond reasonable doubt.   PW3 is the mother of the deceased  

who had been informed by PW7,  the uncle  of  the deceased  

about her death.  PW5 and PW7 are the uncles of the deceased.  

PW4 is the cousin sister and PW6 is the sister of the deceased.  

These  persons  had  accompanied  PW3  to  the  house  of  the  

accused, when they got the news of death of the deceased.    

12. It  has  been  specifically  stated  by  these  witnesses  that  

there were marks on the body of the deceased, her neck was  

congested and swollen and so was the face.  The statement of  

these  witnesses  and  particularly  of  PW3,  finds  due  

corroboration with the post mortem report prepared by PW1  

and, therefore, it will be useful to refer to the entire statement  

of this witness.

“On 10/9/2001 I was at Karimganj Civil hospital  as Senior M & H.O.  On that day at 3-30 p.m. I  held  post  mortem  examination  on  the  dead  body of Sajna Begum aged 18 years, a female  Muslim, from Durlabpur under Patharkandi P.S.  on police requisition, being identified by Head  Constable Rabindra Deb and Md. Khairuddin, a  relation of the deceased and found as :-

External Appearance

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An average built female aged about 18 years  whose rigor  mortis  was  absent,  eyes  closed,  mouth  half  open,  froth  in   nostrils  present  which was whitish.    Multiple bruises on the  lower abdomen.   Neck was swollen.   Face was  congested & swollen.

Cranium & Spinal Canal

All organs pale

Thorax

Heart was pale & chambers contained blood.  Vessels  contained  blood.    All  other  organs  were pale.

Abdomen

Stomach  &  its  contents  congested  and  contained ricy food materials.   Large intestine  etc – pale & empty.   Other organs were pale.

Organs of generation etc – pale.   Uterus was 3  months pregnancy.

More details

Injuries were ante mortem.

Visaras also preserved for forensic and clinical  analysis through FSL, Guwahati.

(1) Stomach and its contents.

(2) Part  of  heart,  lung,  liver,  spleen,  kidney  and rib.

Opinion

As  the  actual  cause  of  death  could  not  be  ascertained the visceras preserved for forensic  & chemical analysis to FSL, Guwahati.

Ext. 1 is the Report, Ext. 1(1) is my signature.

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Bruises and swollen face being congested may  be due to some physical assault.   Black spots  detected  by  the  Executive  Magistrate  at  the  time  of  preparing  his  inquest  report  corresponds to bruises on the lower abdomen  as described by my in my p.m. report.

XXXXXXXXXXXXXXX

I  was  not  present  at  the  time  of  holding  inquest by the Magistrate.

Bruise  resembles  to  black  spot.    Normally  after death, no black spot is noticed on a dead  person.   Black spots may be caused due to  poisoning or suffocation.

Bruise may be caused due to dashing against  piece of bamboo, bamboo fencing etc.

Pale I  mean bloodless and it  may happen in  normal death also.

Definite cause of death could not be detected.

Symptoms  as  described  above  may  happen  due to epilepsy.”

13. As is evident from the statement of PW1, the deceased  

was three months pregnant.  He specifically made a note of the  

fact that her neck was swollen,  her face was congested and  

swollen and there were multiple bruises on her lower abdomen.  

According to this witness, the actual cause of death could not  

be ascertained, but he stated that the presence of bruises on  

the  body  of  the  deceased  and  her  face  being  swollen  and  

congested may be due to some physical assault.   In his cross- 9

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examination, he stated that the black spots may be caused due  

to poisoning or suffocation and also that symptoms described  

above may also occur due to epilepsy.     

14. Certainly, the doctor did not give a concrete opinion as to  

the cause of death.   The report of the chemical analyst and the  

report of the Forensic Science Laboratory were not placed on  

record  so  that  the  Court  could  at  least  come  to  a  definite  

conclusion on the basis of scientific analysis.   FSL Report was  

not  sent,  no  report  was  obtained  and,  in  fact  according  to  

PW11, the viscera could not be examined by the laboratory as  

it  was not sent in time.   It  is evident that the investigation  

conducted  by  the  Investigating  Officer,  PW11  and  the  post  

mortem examination by the doctor  was improper in  its  very  

nature.    Thus,  the remarks made by the Trial  Court  in  this  

behalf are fully justified.

15. Reverting to the evidence, the post mortem report, Ext. 1  

clearly corroborates the statement of five witnesses, PW3, PW4,  

PW5, PW6 and PW7 and there is no reason for the Court to cast  

a doubt upon their statement.     All these witnesses are related  

to the deceased.    Merely because they are all relatives of the  

deceased will not by itself cause any prejudice to the case of  

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the prosecution.   In such events, it is not the outsiders who  

would  come  to  the  rescue  and  would  stand  by  the  

victim/deceased and their family, but it is the members of their  

family who would go to witness such an unfortunate incident.

16. An interested witness is the one who is desirous of falsely  

implicating  the  accused  with  an  intention  of  ensuring  their  

conviction.   Merely  being  a  relative  would  not  make  the  

statement of such witness equivalent to that of an interested  

witness.    The statement of a related witness can safely be  

relied upon by the Court, as long as it is trustworthy, truthful  

and duly corroborated by other prosecution evidence.   At this  

stage, we may refer to the judgment of this Court in the case of  

Gajoo v. State of Uttarakhand  [JT 2012 (9) SC 10], where the  

Court  while  referring  to  various  previous  judgments  of  this  

Court, held as under:-

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  Dalip  Singh  v.  State  of  Punjab [(1954  SCR  145],  while rejecting the argument that witnesses  who are close-relatives of  the victim should  not be relied upon, the Court held as under:-

“26.  A  witness  is  normally  to  be  considered  independent  unless  he  or  

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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.”

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 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  

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witness.  A close relative who is a very natural  witness  cannot  be  termed  as  interested  witness. 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 some other reasons.”

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 SCC 73]}  

In the case of Darya Singh & Ors. v. State of   Punjab [AIR 1965 SC 328], the Court held as  under:-

“6....On principle,  however,  it is difficult to accept the 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.”

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  

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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  the  above-stated principles, the Court would not  be justified in overlooking such valuable piece  of evidence.

17. In light of the above principles and the evidence noticed  

supra, we have no doubt in our mind that the statements of  

PWs  were  reliable  and  trustworthy,  as  they  were  fully  

corroborated  by  other  prosecution,  documentary  and  ocular  

evidence.   The learned counsel  appearing for  the appellants  

contended that there are material variations and contradictions  

in the statement of PW3 and PW6 respectively with regard to  

the  time  of  incident  as  well  as  death  of  the  deceased.  

Therefore, neither these witnesses can be relied upon nor can  

prosecution be said to have proved its case beyond reasonable  

doubt.    Such a submission can only be noticed to be rejected.  

18. PW3 had  mentioned  that  she  came to  know about  the  

death of her daughter at about 9.30 p.m., however, according  

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to PW6, it was about 8 or 9 o’clock when she was informed of  

the death of her sister. This would hardly be a contradiction.  It  

is a plausible fact that there could be some variations in the  

statements of witnesses with respect to a particular incident.  

Thus,  in  the facts  and circumstances of  the present  case,  a  

mere variation in time is not a material contradiction.   It was  

the uncle of the deceased, PW7, who had been informed by the  

co-accused,  the  brother-in-law of  the  deceased,  firstly  about  

the sickness of the deceased and then about her death.   

19. Every variation or immaterial contradiction cannot provide  

advantage to the accused.   In the facts and circumstances of  

the present case, variation of 45 minutes or an hour in giving  

the time of incident will not be considered fatal.  It is a settled  

principle of law that while appreciating the evidence, the Court  

must  examine the evidence in  its  entirety  upon reading the  

statement of a witness as a whole, and if the Court finds the  

statement to be truthful and worthy of credence, then every  

variation or  discrepancy particularly  which is  immaterial  and  

does not affect the root of the case of the prosecution case  

would be of no consequences. Reference in this regard can be  

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made to State represented by Inspector of Police v. Saravanan   

and Anr. [(2008) 17 SCC 587].    

20. Next,  it  was  contended  that  PW8  and  PW9  had  not  

supported  the  case  of  the  prosecution  and,  therefore,  the  

accused should be entitled to benefit of doubt.  PW8 had stated  

that just before the sunset, the deceased fell down while she  

was fetching water from the river.  She got up and ran like a  

mad man.  According to him, the deceased was caught by evil  

spirits and was an epileptic.  PW9, narrated that he heard cries  

while he was working in the paddy field and when he went to  

the house of the accused, he saw the deceased struggling for  

life.  He met the mother-in-law of the deceased and stated that  

none else was present there.  According to him, the deceased  

died of epilepsy.

21. We may notice that both these witnesses are neighbours  

of the accused and the same has also been confirmed by them.  

They affirmed the  death of  the deceased but  gave different  

versions as to the place and the manner in which she died.  The  

statements of such witnesses would hardly carry any weight in  

face  of  statements  of  PW3 to  PW7.   The possibility  of  their  

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turning  hostile  by  virtue  of  them  being  neighbours  of  the  

accused cannot be ruled out.

22. The  prosecution  has  been  able  to  establish  various  

circumstances which complete the chain of  events and such  

chain  of  events  undoubtedly  point  towards  the  guilt  of  the  

accused persons.   These circumstances are; the victim coming  

to  her  parental  home  and  declining  to  go  back  to  her  

matrimonial  home,  she  being  persuaded  to  go  to  her  

matrimonial  home  by  her  parents  and  within  a  few  days  

thereafter, she dies at her in laws place. Further that she had  

various injuries on her lower abdomen and that her neck and  

face were congested and swollen.     The post mortem report  

completely corroborates the statements of PWs.   Ext. 2, the  

inquest  report,  also  fully  substantiates  the  case  of  the  

prosecution.  Besides this,  PW3 had categorically stated that  

her  daughter  was  not  suffering  from  epilepsy  or  any  other  

disease and that she died as a result of torture inflicted on her  

by  the  accused  persons.    In  the  cross-examination,  two  

suggestions were put forth to her, one that the deceased died  

of epilepsy and secondly, that supernatural powers had seized  

her and that she could not be cured by Imam and thus, died,  

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both  of  which  were  denied  by  her.   In  any  case,  this  

contradiction  in  the  stand  taken  by  the  defence  itself  point  

towards the untruthfulness and falsity of the defence.

23. If she was sick, as affirmed by her in laws, then why was  

she  not  taken  to  any  doctor  or  a  hospital  by  the  accused  

persons.   She admittedly did not die of any heart attack or  

haemorrhage.   She died in the house of the appellants and  

therefore,  it  was expected of the appellants to furnish some  

explanation in their statement under Section 313 CrPC as to the  

exact cause of her death.  Unfortunately, except barely taking  

the plea of alibi, accused persons chose not to bring the truth  

before the Court i.e. the circumstances leading to the death of  

the deceased.  

24. The plea  of  alibi was  taken by  the  appellants  and was  

sought to be proved by the statement of defence witnesses,  

DW1,  DW2  and  DW3  respectively.    These  witnesses  have  

rightly been disbelieved by the Trial  Court as well  as by the  

High Court.  We also find no merit in the plea of alibi as it is just  

an excuse which has been put forward by the accused persons  

to  escape  the    liability  in  law.    There  is  a  complete  

contradiction in  the material  facts  of  the statement of  DW1,  

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DW2 and DW3.   According to the statements of DWs that none  

of the family members were present on the spot is strange in  

light of the fact that the deceased was so ill that she died after  

a short while due to her illness.    If none of the accused, whom  

these witnesses knew were present, then it is not only doubtful  

but even surprising as to how they came in contact with the  

deceased at the relevant time.   The falsity of the evidence of  

the defence is writ large in the present case. For these reasons,  

we  find  the  conduct  of  the  accused  unnatural  and  the  

statement of these witnesses untrustworthy.    The plea of alibi  

is nothing but a falsehood.

25. Once,  the  Court  disbelieves  the  plea  of  alibi and  the  

accused does not give any explanation in his statement under  

Section  313  CrPC,  the  Court  is  entitled  to  draw  adverse  

inference against the accused.  At this stage, we may refer to  

the judgment  of  this  Court  in  the case of  Jitender  Kumar  v.   

State of Haryana  [(2012) 6 SCC 204], where the Court while  

disbelieving the plea of alibi had drawn an adverse inference  

and  said  that  this  fact  would  support  the  case  of  the  

prosecution.

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“51. The accused in  the present  appeal  had  also taken the plea of  alibi  in addition to the  defence that they were living in a village far  away from the place of occurrence.   This plea  of alibi was found to be without any substance  by the Trial Court and was further concurrently  found  to  be  without  any  merit  by  the  High  Court also.   In order to establish the plea of  alibi  these  accused  had  examined  various  witnesses.   Some  documents  had  also  been  adduced  to  show  that  the  accused  Pawan  Kumar and Sunil Kumar had gone to New Subzi  Mandi near the booth of DW-1  and they had  taken  mushroom  for  sale  and  had  paid  the  charges  to  the  market  committee,  etc.  Referring  to  all  these  documents,  the  trial  court  held  that  none  of  these  documents  reflected  the  presence  of  either  of  these  accused at  that  place.   On the  contrary  the  entire plea of alibi falls to the ground in view of  the  statements  of  PW-10  and  PW-11.    The  statements  of  these  witnesses  have  been  accepted by the Courts below and also the fact  that they have no reason to falsely implicate  the accused persons.  Once, PW-10 and PW-11  are believed and their statements are found to  be  trustworthy,  as  rightly  dealt  with  by  the  Courts below, then the plea of  abili raised by  the accused loses its significance.   The burden  of establishing the plea of  alibi  lay upon the  appellants  and the  appellants  have failed  to  bring  on  record  any  such  evidence  which  would,  even  by  reasonable  probability,  establish their plea of alibi.   The plea of alibi in  fact is required to be proved with certainty so  as to completely exclude the possibility of the  presence  of  the  accused  at  the  place  of  occurrence  and  in  the  house  which  was  the  home of their relatives.   {Ref. Shaikh Sattar v.  State of Maharashtra [(2010) 8 SCC 430]}.”

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26. For  the  reasons  afore-stated,  we  find  no  merit  in  the  

contentions raised on behalf of the appellants.    Before we part  

with this file, we cannot help but to observe that the competent  

authority ought to have taken some action on the basis of the  

observations  made by  the  Trial  Court  in  its  judgment  under  

appeal.

27. The Investigating Officer has conducted investigation in a  

suspicious manner and did not even care to send the viscera to  

the  laboratory  for  its  appropriate  examination.  As  already  

noticed, in his statement, PW11 has stated that viscera could  

not be examined by the laboratory as it was not sent in time.  

There is a deliberate attempt on the part of the Investigating  

Officer to misdirect the evidence and to withhold the material  

evidence from the Court.

28. Similarly,  PW1,  the  doctor  who  conducted  the  post  

mortem  of  the  corpse  of  the  deceased  was  expected  to  

categorically state the cause of death in which he miserably  

failed.   He is a doctor who is expected to perform a specialized  

job.   His evidence is of great concern and is normally relied  

upon by the Courts.   For reasons best known to him, he made  

his evidence totally vague, uncertain and indefinite.   Given the  

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expertise  and  knowledge  possessed  by  a  doctor  PW1,  was  

expected to state the cause of death with certainty or the most  

probable cause of death in the least.  According to PW1, the  

black  spots  noticed  on  the  deceased  may  be  because  of  

poisoning or it  could be because of  suffocation,  although he  

also  mentioned  in  his  report  that  the  symptoms  described  

above may occur due to epilepsy. It is not possible to imagine  

that there would be no distinction whatsoever, if such injuries  

were inflicted by assault or suffocation or be the result of an  

epileptic attack.

29. In  our  considered  view,  the  doctor  has  also  failed  to  

discharge  his  professional  obligations  in  terms  of  the  

professional standards expected of him.   He has attempted to  

misdirect the evidence before the Court and has intentionally  

made it so vague that in place of aiding the ends of justice, he  

has attempted to help the accused.

30. In  our  considered  view,  action  should  be  taken  against  

both these witnesses.    Before we pass any direction in this  

regard, we may refer to the judgment of this Court in  Gajoo  

(supra), where the Court had directed an action against such  

kind of evidence and witnesses;

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“In regard to the defective investigation, this Court in  the  case  of  Dayal  Singh  and  Others.  v.  State  of   Uttaranchal [Criminal Appeal 529 of 2010, decided on  3rd August,  2012]   while  dealing  with  the  cases  of  omissions  and  commissions  by  the  investigating  officer, and duty of the Court in such cases held as  under:-

“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.”

(Emphasis supplied)

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  

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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.  

27. In  Ram  Bali  v.  State  of  Uttar  Pradesh  [(2004)  10 SCC 598],  the judgment  in  Karnel  

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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  

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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]}.”

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“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  investigation  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.

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.

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.”

31. In view of the above settled position of law, we hereby  

direct  the  Director  General  of  Police,  State  of  Assam  and  

Director  General  of  Health  Services,  State  of  Assam to  take  

disciplinary action against PW1 and PW11, whether they are in  

service or have since retired.  If not in service, action shall be  

taken  against  them  for  deduction/stoppage  of  pension  in  

accordance  with  the  service  rules.    However,  the  plea  of  

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limitation, if any under the relevant rules would not operate, as  

the departmental inquiry shall be conducted in furtherance to  

the order of this Court.

32. The  appeal  is  dismissed,  however  with  the  above  

directions.   

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

………...….…………......................J.                           (Gyan Sudha Misra)

New Delhi, December 13, 2012  

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