Supreme Court of India
DAYAL SINGH & ORS.versusSTATE OF UTTARANCHAL
- Citation
- 2012 INSC 317
- Decided
- 3 August 2012
- Disposal
- Dismissed
- Bench
- SWATANTER KUMAR
Holding
Defective or negligent investigation by the police and medical officer does not defeat a conviction when the prosecution's case, supported by credible eye‑witness testimony, is proved beyond reasonable doubt; thus the convictions under Sections 302 r/w 34 and 323 r/w 34 IPC stand.
Summary
The appellants were convicted for the murder of Pyara Singh, who died after being assaulted with lathis by four accused. The trial hinged on the testimony of three eye‑witnesses, including the victim's son and wife, while the post‑mortem report prepared by the government medical officer (PW3) claimed no injuries and failed to state a cause of death. The Supreme Court examined whether the alleged dereliction of duty by the investigating officer (PW6) and the medical officer, which resulted in a defective investigation, could invalidate the conviction. It held that despite the officers' misconduct, the eye‑witness accounts and other corroborative evidence proved the case beyond reasonable doubt. Consequently, the Court dismissed the appeal, upheld the convictions under Sections 302 r/w 34 and 323 r/w 34 IPC, and ordered disciplinary action against the errant officials.
Issues considered
- How should evidence be evaluated when the investigating agency or key witnesses commit acts of omission or commission, resulting in a defective investigation?
- What directions should courts issue in cases of deliberate dereliction of duty by police officers or medical officers?
- What is the effect of a conflict between eye‑witness testimony and expert medical evidence on the prosecution's case?
- Whether the offence falls under Section 302 r/w 34 IPC or should be reduced to Section 304 Part II IPC.
Legislation cited
- Code of Criminal Procedure, 1973s. 313
- Contempt of Courts Act, 1971
- Indian Penal Code, 1860s. 302 r/w 34, s. 323 r/w 34
Subjects
murdercommon intentiondereliction of dutydefective investigationexpert evidenceeye‑witness testimonydisciplinary actionIPC 302IPC 34fair trial
Judgment
[2012] 10 S.C.R. 157
DAYAL SINGH & ORS. A
v.
STATE OF UTTARANCHAL
(Criminal Appeal No. 529 of 2010)
AUGUST 3, 2012
B
[SWATANTER KUMAR AND FAKKIR MOHAMED
IBRAHIM KALIFULLA, JJ.]
Cnminal Trial - Defective/imprope·r investigation -
Dereliction of duty and acts of omission - By PW6, the C
Investigating officer (SI) and PW3, the government medical
officer, who prepared the post mortem report - Held: In the
case at hand where one person had died allegedly due to
sustained lathi blows, the report prepared by PW3 was a
deliberate attempt to disguise the investigation - PW3 created D
a serious doubt as to the very cause of death of the deceased
- If PW3 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 was not a case of death
by administering poison - PW3 not only breached the E
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 - PW3's report was also in conflict with the statement F
of PW6 and the inquest report prepared by him - Similarly,
PW6 also failed in performing his duty in accordance with law
- Firstly, for not recording the reasons given by PW3 for non- ·
mentioning of injuries on the post mortem report, which had
appeared satisfactory to him - Secondly, for not sending to G
the FSL the viscera and other samples collected from the
body of the deceased by PW3 who allegedly handed over the
same to the police, and their disappearance - There was clear
callousness and irresponsibility on the part of PWs 3 and 6
157 H
158 SUPREME COURT REPORTS [2012] 10 S.C.R.
A - The lapses on their part were a deliberate attempt to prepare
reports and documents in a designedly defective manner to
misdirect the investigation to favour the accused - Directions
issued to authorities concerned to take disciplinary or other
action against PW3 and PW6, irrespective of the fact whether
B they were in service or had since retired - Penal Code, 1860
- s.302 rlw s.34 and s.323 rlw s.34.
Criminal Trial - Defective/improper investigation - Effect
of - Held: Merely because in the murder trial in issue, the
Investigating Officer (PW3) and the Government Medical
C Officer (PW6) failed to perform their duties in accordance with
the requirements of law, and there was some defect in the
investigation, it will not be to the benefit of the accused-
appel/ants to the extent that they would be entitled to an order
of acquittal on this ground - Despite acts of default/omission
D on the part of PWs 3 and 6, the prosecution proved its case
beyond reasonable doubt - The lower courts rightly ignored
the deliberate lapses of PWs 3 and 6 - The consistent
statement of the eye-witnesses which were fully supported and
corroborated by other witnesses, and the investigation of the
E 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, established the case of
the prosecution beyond reasonable doubt.
F
Criminal Trial - Investigation - Professional standards
- Held: Police officers and doctors, by their profession, are
required to maintain duty decorum of high standards.
Criminal Trial - Fair trial - Duty of the Court - Held: The
G 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 Presiding Judge is expected to work
objectively and in a correct perspective - Where the
H
DAYAL SINGH & ORS. v. STATE OF UTTARANCHAL 159
prosecution attempts to misdirect the trial on the basis of a A
perfunctory or designedly defective investigation, the Court is
to be deeply cautious and ensure that despite such an
attempt, the determinative process is not sub-served.
Penal Code, 1860 - s. 302 rlw s. 34 - Four persons armed
8
with lath is went to the fields of the deceased - They first hurled
abuses at him and without any provocation started assaulting
him with the lathis they were carrying - Despite efforts to stop
them by the wife and son of the deceased, they did not stop
and assaulted them also - Thereupon, they kept on assaulting
the deceased until he feJI down dead on the ground - C
Conviction of accused-appellants uls.302 - Justification of -
Held: Justified - Three injuries were noticed on the body of
the deceased including a protuberant injury on the head,
which presumably resulted in his death - The accused
persons had gone together armed with lathis with a common D
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 JI of s.304.
E
Evidence - Medical evidence - Contradictions between
medical and ocular evidence - Effect - Held: It is not that
every minor variation or inconsistency would tilt the balance
of justice in favour the accused - But where contradictions and
variations are of a serious nature, which apparently or F
impliedly are destructive of the substantive case sought to be
proved by the prosecution, they may provide an advantage
to the accused - Where the eye witness account is found
credible and trustworthy, medical opinion pointing to
alternative possibilities may not be accepted as conclusive.
G
Evidence - Expert evidence - Value of - Held: The
Courts, normally, look at expert evidence with a greater sense
of acceptability, but are not absolutely guided by the report
of the experts, especially if such reports are perfunctory,
H
160 SUPREME COURT REPORTS [2012] 10 S.C.R.
A unsustainable and are the result of a deliberate attempt to
misdirect the prosecution - 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
8 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 expert but that
of the Court - The Court is expected to analyse the report,
C 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.
Witnesses - Interested witness - Testimony of - Held:
An eye-witness version cannot be discarded by the Court
D merely on the ground that such eye-witness happened to be
a relation or friend of the deceased - 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
E permissible for the Court to discard the statements of such
related or friendly witness.
Words and Phrases - "dereliction of duty" and
"misconduct" - Difference between - Explained - Held:
Dereliction of duty or carelessness is an abuse of discretion
F 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
G primarily an abuse of discretion - Service Law.
The prosecution case was that the four accused-
appellants armed with lathis went to the fields of the
deceased 'P', hurled abuses at him and thereafter started
H assaulting him with the lathis they were carrying and that
DAYAL SINGH & ORS. v. STATE OF UTTARANCHAL 161
· when the son and wife of 'P' (PW2 and PW4 respectively) A
intervened to protect 'P', they too were assaulted with the
Jathis. It was alleged that PWS and one other person saw
the occurrence and when they challenged the accused-
appellants, the latter ran away. 'P' died on the spot while
PW2 and PW4 received injuries. B
The trial court ignored the pu"rported acts of default
and omission by PW3 (the government medical officer
who conducted post-mortem) and PW6 (the Investigating
Officer- SI) and the apparent conflict in the eye-witness C
version of the evidence and the medical evidence, and
convicted the appellants under Section 302 r/w Section
34 IPC as well as under Section 323 r/w Section 34 IPC
by placing reliance upon the evidence of the prosecution
eye-witnesses and other corroborative evidence. The
conviction was confirmed by the High Court. D
In the instant appeal, the following questions arose
for consideration- (1) Where acts of omission and
commission, deliberate or otherwise, are committed by
the investigating agency or other significant witnesses E
instrumental in proving the offence, what approach, in
appreciation of evidence, should be adopted; (2)
Depending upon the answer to the above, what
directions should be issued by the courts of competent
jurisdiction and (3) Whenever there is some conflict in the F
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.
Dismissing the appeal both on merits and also on the G
quantum of sentence, the Court
HELD:1.1. In the instant case, there were three eye-
witnesses to the occurrence. Out of them, two were
injured witnesses, namely PW2 and PW4. PW2 is the son H
162 SUPREME COURT REPORTS [2012] 10 S.C.R.
A of the deceased 'P' and PW4 is the wife. Presence of
these two witnesses at the place of occurrence is normal
and natural. 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
B 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
c 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. [Para 9] [180-
A-B, E-G]
D 1.2. 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
E 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
F statements are nothing but truthful disclosure of actual
facts leading to the occurrence and the occurrence itself,
it will not be permissible for the Co\lrt to discard the
statements of such related or friendly witness. [Para 10]
[180-H; 181-A-C]
G
1.3. The plea that in the face of the expert medical
evidence that no external or internal injuries were found
on the body of the deceased, the statement of the eye-
witnesses cannot be believed and tbe accused persons
are entitled to acquittal, is liable to be rejected. No doubt
H the post mortem report (Exhibit Ka-4) and the statement
DAYAL SINGH & ORS. v. STATE OF UTIARANCHAL 163
of PW3 does show/reflect that he had not noticed any A
injuries upon the person of the deceased externally or
even after opening him up internally, but the fact of the
matter is that the father of PW2 had died. How he suffered
death is explained by three witnesses, PW2, PW4 and
PW5, respectively. Besides this, the statement of the B
investigating officer, PWS, 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 c
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. [Para 12] [183- 0
B-F]
1.4. 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 E
persons to the extent that they would be entitled to an
order of acquittal on this ground. [Para 13] [183-H; 184-
A-B]
Dhamidhar v. State of Uttar Pradesh (2010) 7 SCC 759: F
2010 (8) SCR 173; Mano Dutt & Anr. v. State of UP (2012
(3) SCALE 219; Satbir Singh & Ors. v. State of UttarPradesh
(2009) 13 SCC 790: 2009 (3) SCR 406 and C. Muniappan
v. State of Tamil Nadu AIR 2010 SC 3718 : (2010) 9 sec
567: 2010 (10 ) SCR 262 - relied on. G
2.1.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 H
164 SUPREME COURT REPORTS [2012] 10 S.C.R.
A 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
B 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
c 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
0 could go scot-free. [Para 16] [185-B-E]
2.2. 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
E 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. [Para 17] [186-A-B]
F
2.3. PW3 certainly did not act with the requisite
professionalism. He even failed to truthfully record the
post mortem report, Exhibit Ka-4. His report is
contradictory to the evidence of the three eye-witnesses
G 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
H that the post mortem report is silent and PW3 did not even
I
DAYAL SINGH & ORS. v. STATE OF UTIARANCHAL 165
notice the cause of death. If he was not able to record a A
finding with regard to the cause of death, he was
expected to record some reason in support thereof,
particularly when it was not a case of death by
administering poison. Similarly, the Investigating Officer
has also failed in performing his duty in accordance with B
law. Firstly, for not recording the reasons given by PW3
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 c
by PW3 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. This results in shifting of avoidable burden 0
and exercise of higher degree of caution and care on the
courts. [Paras 19, 20, 21) [188-F-H; 189-A-D]
2.5. Dereliction of duty or carelessness is an abuse
of discretion uoder a definite law and misconduct is a
violation of indefinite law. Misconduct is a forbidden act E
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. [Para 21) [189-D-E] F
2.6. 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 G
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 H
166 SUPREME COURT REPORTS (2012] 10 S.C.R.
A conducted in a particular manner and method which
stands clearly violated in the present case. PW3 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
B falsified by the unimpeachable evidence of eye witnesses
placed by the prosecution on record. [Para 21) [189-F-H;
190-A-B]
2.7. In a criminal case, the fate of proceedings cannot
always be left entirely in the hands of the parties. Crime
C 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. [Para 24) [191-F-G]
2.8. Where our criminal justice system provides
D 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
E 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 Presiding Judge is expected to
work objectively and in a correct perspective. Where the
F 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',
G the Court should leave no stone unturned to do justice
and protect the interest of the society as well. [Para 28)
[193-G-H; 194-A-B]
State of Punjab & Ors. v. Ram Singh Ex. Constable
(1992) 4 SCC 54: 1992 (3) SCR 634; Ram Bihari Yadav and
H Others v. State of Bihar & Ors. (1995) 6 SCC 31: 1995 (3)
DAYAL SINGH & ORS. v. STATE OF UTTARANCHA~ 167
Suppl. SCR 197; Sathi Prasad v. The State of UP. (1972) 3 A
SCC 613; Dhanaj Singh @ Shera & Ors. v. State of Punjab
(2004) 3 SCC 654: 2004 (2) SCR 938; Paras Yadav v. State
of Bihar AIR 1999 SC 644: 1999 (1) SCR 55; Zahira
Habibullah Sheikh & Anr. v. St.ate of Gujarat & Ors. (2006) 3
SCC 374: 2006 (2) SCR 494; National Human Rights B
Commission v. State of Gujarat (2009) 6 SCC 767: 2009 (7)
SCR 236; State of Karnataka v. K. Yarappa Reddy 2000 SCC
(Crl.) 61; Ram Bali v. State of Uttar Pradesh (2004) 10 SCC
598: 2004 (1) Suppl. SCR 195 and Kamel Singh v. State of
M.P. (1995) 5 sec 518: 1995 (2) Suppl. SCR 629 - relied c
on.
3.1. 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, D
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 E
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. [Para 29] [194-C-E] F
3.2. 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 G
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 H
regard to the expert's opinion, because once the expert
168 SUPREME COURT REPORTS [2012] 10 S.C.R.
A opinion is accepted, it is not the opinion of the medical
officer but that of the Court. 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
8 conjunction with the other evidence on record and then
form its final opinion as to whether such report is-worthy
of reliance or not. [Paras 30, 34] [194-G-H; 195-A-B; 198-
F-G]
3.3. The skill and experience of an expert is the ethos
C 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. PW3 was expected t prepare
D 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
E attempt to disguise the investigation. [Para 33] [198-D-F]
3.4. A complete contradiction or inconsistency
between the medical evidence and the. ocular evidence
on the one hand and the statement of the prosecution
F witnesses between themselves on the other, may result
in seriously denting the case of the prosecution in its
entirety but not otherwise. [Para 34] [199-C-D]
Kamaljit Singh v. State ()f Punjab 2004 Cri.LJ 28 and
Madan Gopal Kakad v. Naval Dubey & Anr. (1992) 2 SCR
G 921: (1992) 3 sec 204: 1992 (2) SCR 921 - relied on.
Forensic Science in Criminal Investigation & Trial (Fourth
Edition) by B.R. Sharma and 'The New Wigmore A Treatise
on Evidence - Expert Evidence' (2004 Edition) by David H.
H Kaye - referred to.
DAYAL SINGH & ORS. v. STATE OF UTTARANCHAL 169
4.1. In the case at hand, the trial court has rightly A
ignored the deliberate lapses of the investigating officer
as well as the p"ost mortem report prepared by PW3. 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 B
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
a
injuries within very short time, establish the case of the
prosecution beyond reasonable doubt. These lapses on c
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 0
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. [Para 35) [199-E-H]
4.2. Despite clear observations of the trial court, no E
action has been taken by the Director General, Medical
Health, Uttar Pradesh. There is no 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 F
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 PW3 and if found
guilty, to impose punishment upon him including
deduction of pension. This direction was passed when G
PW3 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.
Similarly, the Director General of Police UP/Uttarakhand H
170 SUPREME COURT REPORTS [2012] 10 S.C.R.
A also be issued notice to take appropriate action in
accordance with the service rules against PW6, SI,
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
B accordance with law. [Paras 36, 37) [200-A-E]
5.1. From a cumulative appreciation of the evidence,
it is clear that in the case herein four persons armed with
lathis had gone to the fields of the deceased. They first
hurled abuses at him and without any provocation started
C 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
D 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
E Ka-4), the truthfulness of the prosecution eye-witnesses
cannot be doubted. In addition thereto, the stand taken
by the a~cused 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,
F 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 to·gether
G 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
1-l Section 304 IPC. Thus, the cumulative effect of
DAYAL SINGH & ORS. v. STATE OF UTTARANCHAL 171
appreciation of evidence is that there is no merit in the A
present appeal. [Para 38] [200-G-H; 201-A-E]
5.2. 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 8
appropriate action be not initiated against them for not
complying with the directions contained in the judgment
of the Trial Court. The above-said officials are hereby
directed to take disciplinary action against PW3, whether
he is in service or has since retired, for deliberate C
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 of the trial
Court to do so. The action even for stoppage/reduction 0
in pension can appropriately be taken by the said
authorities against PW3. Director Generals of Police UP/
Uttarakhand are hereby directed to initiate, and
expeditiously complete, disciplinary proceedings against
PW6, SI whether he is in service or has since retired, for E
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 F
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. It is held,
declared and directed that it shall be appropriate exercise
of jurisdiction as well as ensuring just and fair G
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 H
172 SUPREME COURT REPORTS [2012] 10 S.C.R.
A 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
8 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. [Para 39] [201-
F-H; 202-A-H; 203-A-B]
c Case Law Reference:
2010 (8) SCR 173 relied on Para 9
(2012 (3) SCALE 219 relied on Para 11
D 2009 (3) SCR 406 relied on Para 11
2010 (10) SCR 262 relied on Para 13
1992 (3) SCR 634 relied on Para 21
E 1995 (3) Suppl. SCR 197 relied on Para 21
(1972) 3 sec 613 relied on Para 22
2004 (2) SCR 938 relied on Para 22
1999 (1) SCR 55 relied on Para 23
F
2006 (2) SCR 494 relied on Para 23
2009 (7) SCR 236 relied on Para 25
2000 sec (Crl.) 61 relied on Para 26
G 2004 (1) Suppl. SCR 195 relied on Para 27
1995 (2) Suppl. SCR 629 relied on Para 27
2004 Cri.LJ 28 relied on Para 29
H 1992 (2) SCR 921 relied on Para 30
DAYAL SINGH & ORS. v. STATE OF UTTARANCHAL 173
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal A
No. 529 of 2010.
From the Judgment & Order dated 17.3.2008 of the High
Court of Judicature of Uttarakhand at Nainital in Crl. Appeal No.
2050 of 2001 (Old No. 1324 of 1990. B
Vineet Dhanda, Puneet Dhanda, J.P. Dhanda, Raj Rani
Dhanda for the Appellants.
Ratnakar Dash, Rajeev Dubey, Kamlendra Mishra, Jatinder
Kumar Bhatia, Ajai K. Bhatia for the Respondent. c
The Judgment & Order of the Court was delivered by
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 D
the present appeal:
(a) Where acts of omission and commission,
deliberate or otherwise, are committed by the
investigating agency or other significant witnesses E
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? F
(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 G
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 H
174 SUPREME COURT REPORTS [2012] 10 S.C.R.
A 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
B 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
c 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
D 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
E 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
F 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
G 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, 1986 by PW2 in presence of SI Kartar Singh, PW6.
FIR (Exhibit Ka-4A) was registered and the investigating
H machinery was put into motion. The two injured witnesses,
DAYAL SINGH & ORS. v. STATE OF UTTARANCHAL 175
[SWATANTER KUMAR, J.]
namely, PW2 and PW4 were examined by Dr. P.C. Pande, A
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.
B
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 C
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.
D
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. E
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:
F
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 G
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.
H
176 SUPREME COURT REPORTS [2012] 10 S.C.R.
A 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."
B
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. r±_e found the dead body
of Pyara Singh lying in the fields. In thQ presence of panchas,
C 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
D 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 ChandrapalSingh, PW7. Dr. C.N.
Tewari, PW3, medical officer in the Civil Hospital, Haldwani,
performed the post mortem upon the body of the deceased and
E 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 C)f 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
F 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.
G Jar No.1 sample preservative saline water.
Jar No.2 Pieces of stomach
Jar No.3 Pieces of liver, spleen and kidney.
H Death occurred about one day back.
DAYAL SINGH & ORS. v. STATE OF UTTARANCHAL 177
[SWATANTER KUMAR, J.]
Cause of death could not be ascertained. Hence, viscera A
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, 8
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 C
was received by Head Constable lnder 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 D
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 E
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
F
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 di.d not file any private complaint.
G
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 H
178 SUPREME COURT REPORTS [2012] 10 S.C.R.
A 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:
B "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
c 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
D 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
E 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
F 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
G 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
H they all had shared the common intention by engaging in
DAYAL SINGH & ORS. v. STATE OF UTTARANCHAL 179
[SWATANTER KUMAR, J.]
that criminal enterprise for which they had come fully A
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 B
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 c
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 D
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 E
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 1.P .C. for F
committed offence punishable under Section 323/34 l.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 G
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. H
180 SUPREME COURT REPORTS [2012] 10 S.C.R.
A 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
B 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.
c They .were putting earth on the mend which was objected to
by the accused persons who had come there with /athis 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
0
abuses upon Pyara Singh and his son, and assaulted the
deceased with /athis. 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
E 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
F has been established that their statement is r~liable, 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
G 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
H that such eye-witness happened to be a r~ion or friend of the
DAYAL SINGH & ORS. v. STATE OF UTTARANCHAL 181
[SWATANTER KUMAR, J.]
deceased. The concept of interested witness essentially must A
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- B
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 Dhamidhar v. State of Uttar c
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. D
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 E
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 F
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 G
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
H
182 SUPREME COURT REPORTS [2012] 10 S.C.R.
A 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
8
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
c 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
D 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
E 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
F 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."
G 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].
H 12. With some vehemence, it has then been contended on
DAYAL SINGH & ORS. v. STATE OF UTTARANCHAL 183
[SWATANTER KUMAR, J.]
behalf of the appellant that the post mortem report and the A
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 B
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
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 PWS, respectively. Besides this, the D
statement of the investigating officer, PW6, also clearly shows
that the body of the deceased contained three apparent injuries.
~e recorded in his investigative proceedings that the accused
!!;id died of these injuries and was found lying dead at the place
qf occurrence. It is not only the statement of PW-6, but also the E
~nchas 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 F
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.
G
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 H
184 SUPREME COURT REPORTS [2012] 10 S.C.R.
A 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
B C. Muniappan v. State of Tamil Nadu {AIR 2010 SC 3718 :
(201 O) g sec 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
C 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
D 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
E defective investigation.
(ii) Whether such default and/or acts of omission and
commission have adversely affected the case of the
prosecution.
F (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
G
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
H Courts would have to examine the prosecution evidence in its
DAYAL SINGH & ORS. v. STATE OF UTTARANCHAL 185
[SWATANTER KUMAR, J.)
entirety, especially when a specific reference to the defective A
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 8
to act in accordance with the police m~nual 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 C
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 D
of the prosecution. It is possible that despite such defaulU
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 E
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 F
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 G
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.
H
186 SUPREME COURT REPORTS [2012] 10 S.C.R.
A 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
B 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
c 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,
PW?, who, in turn, stated that the viscera had been
deposited in the Police Station Malkhana. In the
D 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?
E
(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
F 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
G
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
H he did not find any external or internal injuries even
DAYAL SINGH & ORS. v. STATE OF UTTARANCHAL 187
[SWATANTER KUMAR, J.]
after performing the post mortem on the body of the A
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, B
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 (latht) by four
persons simultaneously. In any case, the doctor
gave no cause for. death of the deceased and c
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 D
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:
E
"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 F
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 G
· 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 H
188 SUPREME COURT REPORTS [2012] 10 S.C.R.
A 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
B 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 UP. be informed in this
regard for taking necessary action and for eradicating
such practices in future."
c (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.
D 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
E 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
F 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
G 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
H when it is conceded before us by the learned counsel for the
DAYAL SINGH & ORS. v. STATE OF UTTARANCHAL 189
[SWATANTER KUMAR, J.]
parties, including the counsel for Dr. C.N. Tewari that it was A
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-
B
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 C
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. D
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 E
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 F
where the term occurs, regard being given to the scope of the
statute and the public purpose it seeks to serve. The poliGe
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 G
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 H
190 SUPREME COURT REPORTS [2012] 10 S.C.R.
A 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
B 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
c 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 UP. [(1972)
D 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
E 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
F 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
G 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
H
DAYAL SINGH & ORS. v. STATE OF UTTARANCHAL 191
[SWATANTER KUMAR, J.]
the way of evaluating the evidence by the courts, otherwise the A
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 sec 374], the Court noticed the importance of the role of
witnesses in a criminal trial. The importance and primacy of the B
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 c
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
0
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 E
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 F
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. G
25. Reiterating the above principle, this Court in the case
of National Human Rights Commission v. State of Gujarat
[(2009) 6 sec 767], held as under:
''The concept of fair trial entails familiar triangulation of H
192 SUPREME COURT REPORTS [2012] 10 S.C.R.
A interests of the accused, the victim and the society and it
is the community that acts through the State and
prosecuting agen~ies. 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
B 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
c 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
D
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
E 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."
F 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,
G 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
H
DAYAL SINGH & ORS. v. STATE OF UTTARANCHAL 193
[SWATANTER KUMAR, J.]
influenced by the machinations demonstrated by the A
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 B
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 c
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 0
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 Kamel Singh v. State of M.P. [(1995) 5 E
sec 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 F
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 G
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
H
194 SUPREME COURT REPORTS [2012) 10 S.C.R.
A 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
perf(Jnctory or designedly defective investigation, there the
Court is to be deeply cautious and ensure that despite such
B 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
C 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
D 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
E 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
F 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,
G 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
H expected to put before the Court all materials inclusive of the
DAYAL SINGH & ORS. v. STATE OF UTTARANCHAL 195
[SWATANTER KUMAR, J.]
data which induced him to come to the conclusion and enlighten A
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 B
of the Court. {Plz. See Madan Gopal Kakad v. Naval Dubey
& Anr. [(1992) 2 SCR 921 : (1992) 3 sec 204]}.
31. Profitably, reference to the value of an expert in the eye
of law can be assimilated as follows:
c
"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 D
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 E
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 F
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 G
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 H
196 SUPREME COURT REPORTS [2012] 10 S.C.R.
A 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
B 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]
C 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 qf credentials and testify regarding
D 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
E 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
F 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
G 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:
H
DAYAL SINGH & ORS. v. STATE OF UTTARANCHAL 197
[SWATANTER KUMAR, J.]
"The district court opinion reveals that one pharmacologist A
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" B
that "relied upon epidemiological, clinical and animal
studies, as well as plaintiffs 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 c
testimony. It asserted that the other experts "similarly base
their testimony upon a careful review of medical literature
concerning Danocrine and pulmonary hypertension, and
plaintiffs medical records and medical history."
The court of appeals elaborated on the testimony of two D
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 E
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 F
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. G
..." 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
H
198 SUPREME COURT REPORTS [2012] 10 S.C.R.
A progesterone ... that ... taken together, likely caused a
dysfunction of the endothelium leading to PPH."
In sum, plaintiffs 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
B
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
c 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
D 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
E 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,
F 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
G 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
H both the opinions may be well reasoned. In such case, the Co:.irt
DAYAL SINGH & ORS. v. STATE OF UTIARANCHAL 199
[SWATANTER KUMAR, J.]
has to critically examine the basis, reasoning, approach and A
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. B
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 c
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 D
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 E
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 F
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 G
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. H
200 SUPREME COURT REPORTS [2012] 10 S.C.R.
A 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
B 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
punishme'nt upon him including deduction of pension.
C Admittedly, this direction was passed when Or. 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.
D 37. Similarly, the Director General of Police U-P/
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
E 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
F 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
G 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
H
DAYAL SINGH & ORS. v. STATE OF UTTARANCHAL 201
[SWATANTER KUMAR, J.]
assaulting the deceased until he fell down dead on the ground. A
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 B
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, c
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 D
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
o'f appreciation of evidence, as afore-discussed, is that we find
no merit in the present appeal.
E
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. F
(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 G
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, H
202 SUPREME COURT REPORTS [2012] 10 S.C.R.
A 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,
B 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.
c 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
D 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
E 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.
F
(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
G
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
H
DAYAL SINGH & ORS. v. STATE OF UTTARANCHAL 203
investigating agency, expert witnesses and even the A
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, B
is in service or has since retired.
40. The appeal is accordingly dismissed.
B.B.B. Appeal dismissed.
c
ORDER
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 D
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.
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