DHANAJ SINGH @ SHERA AND ORS.versusSTATE OF PUNJAB

A                    DHANAJ SINGH @ SHERA AND ORS.
                                          v.
                                STATE OF PUNJAB
                                                                                     -
                                 f\1ARCH 10, 2004

B             [DORAIS WAMY RAJU AND ARIJIT PASAYA T, JJ.]


         Criminal Procedure Code, 1973:

          Section 157-Investigation-Procedure for-Defective investigation-
C   Effect on prosecution's case-Held: Even if the investigation was defective,
    that pales into insignificance where ocular testimony was found credible and
    cogent-In the case of defective investigation Court should be circumspect in
    evaluating the evidence-Therefore, accused should not be acquitted solely on
    account of defective investigation-Constitution of India, Article 136.
D         Evidence Act, 1872:

         Section 45-0pinion of Experts-Blood stained earth not sent for
    chemical examination-Weapon of assault and pellets also not sent for ballistic
    examination-Effect on prosecution's case-Held: Not fatal-Criminal Trial.
E         According to the prosecution, the appellants-accused with fire arms
    reach.ed the spot of occurrence and threatened that they would teach a
    lesson to the complainant party for committing the murder of their
    relations. The appellants chased the deceased and fired three shots killing
    him. After the appellants departed, one of the complainants, PW-3, was
F   left at the spot to guard the dead body. The other complainant, PW-2,
    reported the matter to the police. But the police charge-sheeted the
    complainants, suspecting them to be the murderers but they were
    subsequently acquitted by the trial court. In the meantime, PW-2 filed a
    complaint before the Chief Judicial Magistrate alleging that the
    Investigating Officer (IO) had made out a case as ifthe complainants were
G   the murderers in order to shield the appellants. Ultimately, the trial court
    convicted the appellants and the High Court upheld the conviction. The
    High Court found overall disturbing features as to how the IO had made
    out a new case to save the accused persons and implicate the complainant
    party. Hence the appeal.
H                                       938
               DHANAJ SINGH@ SHERA v. ST ATE OF PUNJAB                    939
      On behalf of the appellant, it was contended that the police after          A
thorough investigation had concluded that it was the complainant party
which caused the death of the deceased; that the pellets, wads and
cartridges were not recovered from the spot; that the weapons of assault
were not sent for ballistic examination; that the blood stained earth was
not sent for chemical examination; that many persons who could have
thrown light on the incident had not been exam:.1e<J; and that the evidence       B
of PWs. 2 and 3 being that of highly interested and inimical persons should
have been discarded.

      Dismissing the appeal, the Court

      HELD: 1.1. In the case of a defective investigation the Court has to        C
be circumspect in evaluating the evidence. But it would not be right in
acquitting an accused person solely on account of the defect; to do so would
tantamount to playing into the hands of the investigating officer if the
investigation is designedly defective. (942-E-F]
                                                                                  D
      Karan Singh v. State of MP., (1995) 5 SCC 518, Paras Yadav v. State
of Bihar, [1999) 2 SCC 126 and Ram Bihari Yadav v. State of Bihar, (1998)
4 sec 517' relied on.

     1.2. Even if the investigation is defective that pales into insignificance
when ocular testimony is found credible and cogent. [943-C)                       E
     Amar Singh v. Ba/winder Singh, [2003) 2 SCC 518, relied on.

     2. Both the trial Court and the High Court have analysed the
evidence of PWs. 2 and 3 with due care and caution keeping in view the
correct legal principles and have found the accused persons guilty. Hence         F
there is no scope for interference under Article 136 of the Constitution.
                                                                [943-D-E)

     CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 941
of 2003.
                                                                                  G
     From the Judgment and Order dated 28.1.2003 of the Punjab and
Haryana High Court in Crl. A. No. 633-DB of 2000.

     A.T.M. Ranganujam, B.S. Jain for Shankar Diwate for the Appellants.

     Bimal Roy Jad. Ms. Sunita Pandit, A.P.S. Deol, Manjit Dalal and Kamal        H
    940                     SUPREME COURT REPORTS                   [2004] 2 S.C.R.

·A Mohan Gupta for the Respondent.
          The Judgment of the Court was delivered by

          ARIJIT PASA YAT, J. There are some unusual cases when the
    complainant himself is treated as an accused and made to suffer a trial. The
B   present appeal is a case of that nature. But the persons against whom he made
    accusations subsequently faced trial, and are the accused so for as the present
    appeal is concerned. The appellants have been convicted for offence punishable
    under Section 302 read with Section 34 of the Indian Penal Cod,e. 1860 (in
    short the "IPC") and sentenced to undergo imprisonment for life and a fine
C   of Rs. 1000 with default stipulation. The conviction made and the sentence
    imposed by the Additional District and Sessions Judge, Bhatinda were
    continued by the impugned judgment by a Division Bench of the Punjab and
    Haryana High Court.

          The prosecution version as unfolded during trial is as follows:
D          The present three appellants along with Jagrup Singh and Nachhattar
    Singh faced trial for alleged commission of murder of one Sukhmander Singh
    (hereinafter referred to as the "deceased"). The five accused persons including
    two who had been acquitted i.e. Jagrup Singh Nachhattar Singh were charge
    sheeted for allegedly hatching a conspiracy for committing the murder of
E   deceased Sukhmander Singh, thereby committing the offence punishable under
    Section 120B IPC, and in furtherance of their common intention caused the
    death of deceased with fire anus and thereby committing offence punishable
    under Section 302 read with Section 34 IPC. The first infonuation report was
     lodged on 21.10.1995 by Sukhdev Singh (PW-2) stating that while he and his
    nephew Bikramjit Singh@ Butta Singh (PW-3) and the deceased had gone
F   to plough the land, suddenly the accused persons anned with fire anus reached
    the spot of occurrence and raised "lalkara" that they would teach a lesson to
    the complainant party for committing the murder of their relations. All the
    three appellants chased the deceased and fired three shots. The complainant
    (PW-2) and Bikramjit Singh (PW-3) ran away towards village. After
G   committing the murder the accused persons went towards the village with
    their weapons. After they departed, PWs 2 and 3 went to the spot of the
    occurrence to ascertain the fate of the deceased and found that he had already
    died. Leaving PW-3 to guard the dead body, PW-2 reported the matter to his
    brother Ranjit Singh, the Sarpanch. While he and Ranjit Singh were proceeding
    to the police station, on the way they found police party headed by Mukhtiar
H   Singh (PW-6) and reported the matter to him. The occurrence took place
       DHANAJ SINGH @SHERA v. STATE OF PUNJAB [PASA YAT, .I.]               941

around 11.00 a.m. and the first information report was recorded at 4.30 P.M.        A
and was sent to the Area magistrate at a distance of about 20 KMs from the
police station and was received by him at 8.40 p.m. It was indicated that the
motive of the crime was certain killings where the deceased and family
members of PWs 2 and 3 were involved and with a view to take revenge the
murder took place. Investigation started in the line as reflected in the FIR, but   B
strangely the police took a view and proceeded as if ?W~ :2 and 3 were the
murderers and had falsely implicated the accused persons. Accordingly they
challaned them for trial, but they were acquitted. In the meantime, a complaint
was filed by Sukhdev Singh (PW-2) in the Court of Chief Judicial Magistrate,
Bhatinda alleging that investigating officer had yielded to political pressure
and had made out a case as if the complainant was the murderer. The trial           C
Court considering the evidence on record, found the accused persons guilty.
The High Court by the impugned Judgmen,t upheld the conviction and found
several disturbing features as to how IO had made out a new case to save the
accused persons and implicate the complainant party.

       In support of the appeal, learned senior counsel submitted that both the     D
trial Court and the High Court have lost sight of the actual scenario, and have
erroneously come to hold the accused persons guilty. On the highly tainted
evidence of PWs 2 and 3 the conviction should not have been done. When
the police after thorough investigation had concluded that it was the
complainant party which caused the death of the deceased Dr. S.K. Rajkumar          E
(PW- I) had stated that pellets were recovered; but they were not sent for test
by ballistic expert. Weapons were stated to have been recovered pursuant to
the information given in tenns of Section 27 of the Indian Evidence Act,
1872 (in short the "Evidence Act"). That is really of no consequence because
the discovery statement does not show any incriminating statement. It only
says that the guns can be found at some place. The complaint is bald and            F
even the relevant details have not been given, though in evidence it has been
stated as to the type of gun that was used, both the trial Court and the High
Court have noted that they were not sent for chemical test. Many persons
who could have thrown light on the incident have not been examined. No
footprints were found. The pellets, wads and cartridges were not recovered          G
fonn the spot. Merely because the FIR was lodged very promptly, the trial
Court and the High Court should not have tenned a highly exaggerated and
manipulated version to be truthful. The ballistic examination should have
been done to find out whether the guns allegedly produced were in fact used.
Failure of PW-6 to even smell the guns to find out whether they were
recently used provides the foundation for doubt. As the blood stained earth         H
    942                      SUPREME COURT REPORTS                    [2004) 2 S.C.R.

A   was not sent for chemical examination. The situs of assaults has not been
    established. The guns were also not sent for ballistic examination. Such
    examination would have provided authenticity of the fire arms purported to
    have been used. The evidence of PW2 and 3 being that of highly interested
    and inimical persons shoulp have been discarded.

B          In reply, learned counsel for the State submitted that faulty investigation
    cannot be a ground to affect the credibility of the eye-witnesses. It is a fairly
    settled position in law that when witnesses are branded as partisan or inimical,
    their evidence has to be analysed with care and scrutiny. That has been done
    in the present case and both the trial Court and the High Court have found
C   the evidence to be credible. Even ifthe investigation was faulty, both the trial
    Court and the High Court have acted only in the permissible way i.e. to
    weigh the evidence carefully and come to an independent conclusion. As
    rightly noted by the High Court, the investigation seems to be slip shod. The
    highly improbable stand that the complainant and his relatives killed the
    decea~ed who was their close relative can hardly be accepted with even a
D   pinch of salt. Though the deceased and the complainant had criminal track
    records that per be will not affect the evidence of witnesses if it is otherwise
    credible and cogent. Both the trial Court and the High Court after analysing
    the evidence found i_t to be credible, cogent and trustworthy. The plea that the
    primary duty to investigate the evidence is that of the police and when the
E   police has given clean chit, that should prima facia be accepted is clearly
    without substance.

          In the case of a defective investigation the Court has to be circumspect
    in evaluating the evidence. But it would not be right in acquitting an accused
    person solely on account of the defect; to do so would tantamount to playing
p   into the hands of the investigating officer if the investigation is designedly
    defective. (See Karnel Singh v. State of MP., [I 995) 5 SCC 518).

          In Paras Yadav and Ors. v. State of Bihar, [1999] 2 SCC 126 it was
    held that if the lapse or omission is committed by the investigating agency
    or because of negligence the prosecution evidence is required to be examined ·
G   dehors such omissions to find out whether the said evidence is reliable or not.
    The contaminated conduct of officials should not stand on the way of
    evaluating the evidence by the courts; otherwise the designed mischief would
    be perpetuated and justice would be denied to the complainant party.

          As was observed in Ram Bihari Yadav v. State of Bihar and Ors.,
H [ 1998] 4 sec 517 if primacy is given to such designed or negligent
              DHANA.I SINGH l<j) SHERA v. STA TE OF PUNJAB IPASA YAT. J.J          943

     investigation, to the omission or lapses by perfunctory investigation to the          A
     omission or lapses by perfunctory investigation or omissions, the faith and
     confidence of the people would be shaken not only in the Law enforcing
     agency but also in the administration of justice. The view was again re-
     iterated in Amar Singh v. Ba/winder Singh and Ors., [2003] 2 SCC 518. As
     noted in Amar Singh's case (supra) it would have been certainly better if the         B
     fire arms were sent to the forensic test laboratory for comparison. But the
     report of the ballistic expert would be in the nature of an expert opinion
     without any conclusiveness attached to it When the direct testimony of the
     eye-witnesses corroborated by the medical evidence fully establishes the


--   prosecution version failure or omission or negligence on part of the IO cannot
     affect credibility of the prosecution version.                                        C
            The stand of the appellants relate essentially to acceptability of evidence.
     Even if the investigation is defective,' in view of the legal principles set out
     above, that pales into insignificance when ocular testimony is found credible
     and cogent Further effect of non-examination of weapons of assault or the
     pellets etc. in the ba~kground of defective investigation have been considered        D
     in Amar Singh's case (supra). In the case at hand, no crack in the evidence
     of the vital witnesses can be noticed.

           Both the trial Court and the high Court have analysed the evidence of
     PWs 2 and 3 with due care and caution keeping in view the correct legal
     principles and have found accused persons guilty. We find no scope for                E
     interference with the conclusions so arrived in an appeal under Article 136
     of the Constitution of India. The appeal is dismissed.

     V.S.S.                                                        Appeal dismissed. :