GAJOOversusSTATE OF UTTARAKHAND

                    [2012] 7 S.C.R. 1033


                            GAJOO                                   A
                               v.
                 STATE OF UTTARAKHAND
             (Criminal Appeal No. 1856 of 2009)
                   SEPTEMBER 13, 2012
                                                                    B
    [SWATANTER KUMAR AND FAKKIR MOHAMED
            IBRAHIM KALIFULLA, JJ.]

     Penal Code, 1860 - s.302 - Murder -Appellant and one
other accused - Conviction of appellant - Challenge to - Held:      C
Not tenable - The injuries on the victim evidently were inflicted
by appellant holding a 'Daranti' in one hand and holding the
neck of the victim-widow with the other hand - It was the
pressing of her neck and body to the earth by both the
accused who were of much greater strength than the victim,          D
that resulted in her death - Recovery of the 'Daranti' and a
'blood stained pyjama' was duly established - The recoveries
having been proved and the case of the prosecution being
duly supported by two eye-witnesses, PW2 and PW3 and two
witnesses, PW4 and PW5 who were present immediately after           E
the occurrence, proved the case of prosecution beyond any
reasonable doubt - Conviction of appellant accordingly
sustained.

     Criminal Trial - Defect in investigation - Effect of - Held:
A defective investigation, unless it affects the very root of the   F
prosecution case and is prejudicial to the accused, should not
be an aspect of material consideration by the Court - In the
instant murder case, there was omission on the part of the
investigating officer PW-6 as he did not obtain serologist
report in respect of two Exhibits- the alleged weapon of offence    G
(Daranti) and the blood stained pyjama - Though, on facts,
such omission on the part of PW6 did not give any advantage
to the accused-appellant, the definite lapse cannot be
overlooked - Director General of Police directed to take
                              1033                                  H
    1034   SUPREME COURT REPORTS             [2012) 7 S.C.R.


A disciplinary action against PW6.

       Evidence - Witness - Related witness - Appreciation of

        Evidence - Variation between medical evidence and
    ocular evidence - Appreciation of
B
       The prosecution case was that 'T', a widow, was
  murdered by her brother-in-law (appellant) and elder son.
  It was alleged that at night when PW2 and 3 were
  returning back to their home after attending a
c 'Satyanarain Katha', they heard moaning sounds near the
  house of 'T'; that PWs 2 and 3 were carrying torches, and
  in the light thereof, they saw appellant hitting 'T with a
  Daranti, Ext. 2 while her elder son was holding her down.
  The trial court convicted appellant under Section 302 IPC
0 and  sentenced him to life imprisonment. The conviction
  and sentence was affirmed by the High Court. The other
  accused (the elder son of 'T' had died in the meanwhile).

       In the instant appeal, the appellant challenged his
  conviction on various grounds, viz. 1) that PW4 (the
E younger son of 'T') had not completely supported the
  case of the prosecution; 2) that PW2 and PW3, the so-
  called eye-witnesses, were not genuine and were related
  to PW1 (the uncle of PW4) and their presence at the place
  of occurrence was doubtful; 3) that there were clear and
F material contradictions between the medical and oral
  evidence i.e. the post-mortem report (Ext. Ka-10) and
  statements of PW2 and PW3 and even the cause of death
  was not clear and 4) that the 'Daranti' and blood stained
  pyjama, which were recovered, were not sent for FSL
G examination and no serological report was obtained.

        Dismissing the appeal, the Court

       HELD: 1. In cross-examination, PW4 made certain
  statements which no doubt, did not support the case of
H the prosecution. He stated that he had not given the
        GAJOO v. STATE OF UTTARAKHAND                  1035


names of the murderers to his uncle, PW1. However, the         A
statement of PW4 has to be read collectively along with
the statement of PW1, PW2 and PW3. PW4 was a minor,
when he saw his mother dead. His statement was
recorded more than two and a half years after the date
of occurrence. It cannot be said that there are any            B
serious contradictions or untruthfulness in the statement
of this witness. Even if his statement has to be evaluated
as it is on record, he had stated the facts that when he
returned after attending the Satyanarain Katha, he saw
his mother lying dead and thereafter he went and               c
informed his uncle, PW1, who subsequently lodged the
report with the police the next morning and in view of the
statement of PW2 and PW3, the accused were arrested.
One fails to understand as to what advantage the
accused intends to draw from this statement of PW4. It
                                                               0
was not the case of the prosecution that PW4 was an eye-
witness or had seen the accused persons murdering his
mother. The trial court had recorded that in view of the
death of his mother as well as the co-accused, his elder
brother, PW4 might not have stated certain facts correctly
before the Court. This Court does not see any reason for       E
making such a remark in the judgment. [Para 10] (1043-
B-F]

     2. There are no material or other contradictions in the
statements of the four witnesses. PW2 is stated to be          F
related to PW1, who in turn is related to the deceased.
Also, PW3 is related to the deceased. However, once, the
presence of PW2 and PW3 is shown to be natural, then
to doubt their statement would not be a correct approach
in law. It cannot be said that the statement of the            G
witnesses cannot be relied upon, they being relatives and
interested witnesses of the deceased and other
witnesses. It has unequivocally come on record through
various witnesses, including PW4, that there was a
'Satyanarayan Katha' which was attended by various             H
    1036   SUPREME COURT REPORTS               [2012] 7 S.C.R.


A villagers. It was on their way back at midnight when PW2
  and PW3 had seen the occurrence in dark with the help
  of the torches that they were carrying. The mere fact that
  PW2 happens to be related to PW1 and to the deceased,
  would not result in doubting the statement of these
B witnesses which otherwise have credence, are reliable
  and are duly corroborated by other evidence. In cases
  such as the present one, it is only the members of the
  family who come forward to depose. Once it is
  established that their depositions do not suffer from
C material contradictions, are trustworthy and in
  consonance with the above-stated principles, the Courts
  would not be justified in overlooking such valuable piece
  of evidence. [Paras 10 and 15] [1043-F-H; 1045-F-H; 1046-
    A]
D        Dalip Singh v. State of Punjab (1954) SCR 145; State
    of A.P. v. S. Rayappa and Others (2006) 4 SCC 512: 2006
    (2) SCR 200; State of Uttar Pradesh v. Kishanpal and Others
    (2008) 16 SCC 73: 2008 (11) SCR 1048 and Darya Singh
    & Ors. v. State of Punjab AIR 1965 SC 328: 1964 (7) SCR
E 397 - relied on.
       3. The defence plea that there was contradiction
  between the ocular and medical evidence - that
  according to PW2 and PW3, the deceased was killed by
F the use of Daranti that the accused-appellant was
  carrying, while according to the medical evidence,the
  death resulted from asphyxia, is based upon misreading
  of the evidence. In the facts and circumstances of the
  case, there is no variation between the medical evidence
  and the ocular evidence, and once they are conjointly
G read, it does not falsify either the statement of the
  witnesses, PW2 and PW3 or the Post-Mortem Report, Ext.
  Ka-10. In fact, both of them must be read as
  complimentary to each other. The injuries evidently were
  inflicted by accused appellant holding Daranti in one
H hand and holding the neck of the deceased with the other
        GAJOO v. STATE OF UTTARAKHAND                  1037


hand. It was the pressing of her neck and body to the          A
earth by both the accused of much greater strength than
the deceased, that resulted in her death. Even if for the
sake of argument it is assumed that there is some
variation, still, it would be so immaterial and
inconsequential that it would not give any benefit to the      B
accused. It is a settled principle by a series of decisions
of this Court that while appreciating the variation
between the medical evidence and ocular evidence,
primacy is given to the oral evidence of the witnesses.
[Paras 16, 17 and 18] [1046-B-C; 1046-F; 1047-A-B]             c
     Kapildeo Manda/ and Ors. v. State of Bihar (2008) 16
SCC 99: 2007 (12) SCR 668; State of UP. v. Krishan Gopa/
(1998) 4 SCC 302 and Bhajan Lal@ Harbhajan Singh & Ors.
v. State of Haryana (2011) 7 SCC 421: 2011 (7) SCR 1 -
relied on.                                                     D

     4.1. The further plea of the defence that no serologist
report was obtained in relation to the Daranti, Ext. 2 and
blood stained pyjama, Ext. Ka 5, and therefore, the
prosecution case should fail, also cannot be accepted.         E
No doubt both these exhibits were not sent to the
laboratory for obtaining serologist report, but the
absence thereof per se would not give any advantage to
the accused. This is merely a defect in investigation. A
defective investigation, unless affects the very root of the
                                                               F
prosecution case and ·is prejudicial to the accused,
should not be an aspect of material consideration by the
court. PW5 has duly proved the recovery of Daranti, Ext.
2 and the blood stained pyjama; Ext. Ka 5 and has duly
stood the test of cross-examination in court. Both these
articles were recovered by the investigating officer PW6       G
and the recoveries have been duly established before the
court. The recoveries having been proved and the case
of the prosecution being duly supported by two eye-
witnesses, PW2 and PW3 and two witnesses, PW4 and
PW5 who were present immediately after the occurrence,         H
    1038     SUPREME COURT REPORTS                [2012] 7 S.C.R.


A   have proved the case of the prosecution beyond any
    reasonable doubt. The defect in the investigation or
    omission on the part of the investigating officer, cannot
    prove to be of any advantage to the accused. [Paras 19,
    21) [1047-0-G; 1053-C-D]
B
       4.2. However, the definite lapse on the part of the
  investigating officer cannot be overlooked by the Court.
  The Director General of Police, Uttarakhand, is directed
  to take disciplinary action against Sub-Inspector, PW6,
  whether he is in service or has since retired, for serious
C lapse in conducting investigation. [Paras 21, 22) [1053-E-
  F]

       Dayal Singh and Others. v. State of Uttarancha/ 2012 (7)
    SCALE 165 - relied on.
D
                         Case Law Reference:
        (1954) SCR 145               relied on           Para 11
        2006 (2) SCR 200             relied on           Para 12
E       2008 (11) SCR 1048           relied on           Para 13
        1964 (7) SCR 397             relied on           Para 14
        2007 (12) SCR 668            relied on           Para 18

F          (1998) 4 sec 302          relied on           Para 18
        2011 (7) SCR 1               relied on           Para 18
        2012 (7) SCALE 165           relied on           Para 20
      CRIMINAL AP PELLATE JURISDICTION : Criminal Appeal
G No. 1856 of 2009.

        From the Judgment & Order dated 07 .04.2008 of the High
    Court of Uttarakhand at Nainital in Criminal Appeal No. 757 -ef
    2001.
H
         GAJOO v. STATE OF UTTARAKHAND                     1039


     S. Janani, Sunando Raha, Deepak Goel for the Appellant.        A

    Neelam Singh, Jatinder Kumar Bhatia for the Respondent.

    The Judgment of the Court was delivered by

     SWATANTER KUMAR, J. 1. The present appeal is                   B
directed against the judgment of the High Court of Uttarakhand
at Nainital dated 7th April, 2008 passed in Criminal Appeal No.
757 of 2001.

     2. We may notice the facts giving rise to the present appeal   C
which in any case fall within a narrow compass. One Smt.
Taradevi, the deceased was married to one Gajaram. From this
marriage, she had two children namely Rampal and Guddu
(PW4). After the unfortunate death of her husband Gajaram, she
used to live with her younger son Guddu. The elder son Rampal
                                                                    0
was married and had been living separately with his family
though in the same village. Gajoo, the accused/appellant, is the
brother-in-law of deceased Taradevi i.e. her husband's younger
brother. He was also staying separate, though near the house
of Taradevi. After the demise of her husband, there were some
disputes regarding the division of property between the             E
deceased, on the one hand, and her elder son, Rampa! and
brother-in-law, Gajoo on the other. The dispute was related to
the agricultural land. It is stated that Gajoo and Rampal both
did not want to give any land to Taradevi.
                                                                    F
      3. On the night of 1st July, 1987, a 'Satyanarayan Katha'
had been organised by Chetu Ram at his house in the village
Kotda Kalyanpur. A number of residents of the village had gone
to attend the Katha. PW2, Asharam and PW3, Kewalram along
with other people were returning bac!< to their homes at            G
midnight. On their way back both PW2 and PW3 heard
moaning sounds when they reached near the house of
Taradevi. PW2 and PW3 were carrying their torches and in the
light of the torches they saw that accused Gajoo was armed
                                                                    H
    1040    SUPREME COURT REPORTS                [2012] 7 S.C.R.


A with a Daranti, Ext. 2 with which he was hitting the deceased
  and accused Rampa! had held her down, in the Aangan
  (courtyard) of her house. On being challenged, both these
  witnesses were threatened by Gajoo stating that they should
  go away from there. These two witnesses are stated to have
B neither raised any alarm nor disclosed the incident to anyone.
  The next morning, information of the incident was given by PW4
  to his maternal uncle Bhadu Ram, who was examined as PW1.
  Upon receiving information, the matter was reported by PW1
  to the police in the morning of 2nd July, 1987. PW1 had lodged
c the written report vide Ext. Ka-1 at Police Station, Sahaspur at
  about 10.30 in the morning. On the basis of Ext. Ka-1, the FIR,
  a Check Report, Ext. Ka-16, was prepared. Sub-Inspector
  Brahma Singh, PW6 started investigation in the matter. He
  reached the place of incident and did Panchayatnama of the
D corpse of Taradevi. After performing autopsy on the body of the
  deceased, vide Ext. Ka-6, he noticed that there were wounds
  on the corpse and prepared a Report Ext. Ka-8. Then he sent
  the body for post-mortem examination to Dehradun. Blood
  stained soil, Ext-3 and plain soil samples, Ext-4 were collected
  from the spot, and a site plan, Ext. Ka-12 was prepared. Dr.
E U.K. Chopra of Doon Hospital on 3rd July, ·1987 prepared the
  Post-Mortem Report, Ext. Ka-10 and found the following injuries
  on the body of the deceased;

        "(i) Incised wound 4 cm x Yi cm muscle deep, 1 cm below
F       the chin.

        (ii) Incised wound 5 cm x 1 cm muscle deep, 2 cm below
        injury No. 1.

        (iii) Three abraded contusions in the middle of the neck,
G       sizes 1.5 cm x 1 cm; 2 cm x 1cm;1.5 cm x 1 cm.

        (iv) Abrasion 3 cm x 2 cm on the back of the left elbow.

        (v) Abrasion 3 cm x 2 cm on the back of the shoulder.
H
         GAJOO v. STATE OF UTTARAKHAND                       1041
             [SWATANTER KUMAR, J.]

    (vi) Abrasion 4 cm x 3 cm on the back of the right lumber         A
    region."

     4. Dr. Chopra in his report Ext. Ka-10 also recorded the
following findings:

    "On internal examination, under injury No. (iii) sub              B
    cutaneous tissue in the middle of the neck found
    congested. Hyoid bone found fractured. The larynx and
    trachea were found congested. Both lungs were found
    congested."
                                                                      c
     5. PW2 and PW3 who were examined as eye-witnesses
have fully supported the case of the prosecution. As already
noticed, according to them, when they were on their way back
from the house of Chetu Ram after taking part in 'Satyanarain
Katha', they heard the cries of deceased, Taradevi. When they         o
reached near the house of Taradevi, in the light of torches that
they were carrying, they saw that Gajoo and Rampal were
throttling her in the Aangan (courtyard) of her house and Gajoo
was holding Daranti, Ext. 2 in his hands. When they tried to
intervene, they were threatened. PW5, Gudru has proved                E
recovery of Ext. 2 which was used in the crime and recovery
memo, Ext. Ka-11 was prepared. After the death of his mother,
PW4, Guddu, minor son of the deceased had gone to his
uncle's house to inform him about his mother's death and
thereafter, his uncle lodged the report to the police. He stated
                                                                      F
that he too had gone to attend the Katha at the house of Chetu
Ram and in the morning, when he returned, he saw his mother
dead. He partly supported the case of prosecution as he
affirmed that there was a dispute with regard to the land
between his mother and uncle Gajoo, but stated that he did not
know as to who had killed his mother. Investigation Officer,          G
PW6, in the witness box narrated the entire case of the
prosecution and the investigation conducted by him.

     6. The Investigating Officer filed the report before the Court
in terms of Section 172(3) of the Criminal Procedure Code,            H
    1042   SUPREME COURT REPORTS                  [2012] 7 S.C.R.


A charging the accused/appellant Gajoo and Rampal, both under
  Section 302 Indian Penal Code, 1860 (for short 'IPC'). They
  faced trial before the Court of Sessions Judge and were
  convicted for the offence under Section 302 IPC vide judgment
  dated 2nd July, 1990. The trial court awarded life imprisonment
B to the accused Gajoo, as the accused Rampal had died during
  the pendency of the appeal.

       7. Aggrieved by the judgment of the trial court, the accused
  preferred an appeal before the High Court which came to be
C dismissed vide judgment dated 7th April, 2008. The High Court
  confirmed both the judgment of conviction and order of
  sentence passed by the trial court, giving rise to the present
  appeal.

        8. While impugning the judgment under appeal and praying
D for an order of acquittal, the learned counsel appearing for the
  appellant has primarily and with some emphasis contended
  that;

        1. PW2 and PW3, the so-called eye-witnesses, are not
        genuine and are related to PW1. Their presence at the
E
        place of occurrence is doubtful.

        2. With the motive of grabbing the entire land, PW1 has
        falsely implicated both the accused.

F       3. There are clear and material contradictions between the
        medical and oral evidence i.e. Ext. Ka-10 and stater:nents
        of PW2 and PW3, and even the cause of death is not
        clear, which essentially must go to the benefit of the
        accused.
G       4. The Daranti and blood stained pyjama which were
        recovered, were not sent for FSL examination and no
        serological report was obtained.

      9. In support of his contention, the learned counsel for the
H appellant had laid a lot of emphasis on the statement of PW4.
        GAJOO v. STATE OF UTTARAKHAND                     1043
            [SWATANTER KUMAR, J.]

According to him, PW4 had not completely stated the case of        A
the prosecution, and therefore, the accused was entitled to
acquittal.

      10. In the cross-examination, PW4 has made certain
statements which no doubt, do not support the case of the          B
prosecution. He stated that he had not given the names of the
murderers to his uncle. The statement of PW4 has to be read
collectively along with the statement of PW1, PW2 and PW3.
PW4 was a minor, when he saw his mother dead in the year
1987. His statement was recorded on 22nd January, 1990 i.e.        C
more than two and a half years after the date of occurrence.
We are unable to see any serious contradictions or
untruthfulness in the statement of this witness. Even if his
statement has to be evaluated as it is on record, he had stated
the facts that when he returned from the house of Chetu Ram
after attending the Katha, he saw his mother lying dead and        D
thereafter he went and informed his uncle who subsequently
lodged the report with the police the next morning and in view
of the statement of PW2 and PW3, the accused were arrested.
We fail to understand as to what advantage the accused
intends to draw from this statement of PW4. It was not the case    E
of the prosecution that PW4 was an eye-witness or had seen
the accused persons murdering his mother. The trial court, on
that behalf had recorded that in view of the death of his mother
as well as the co-accused, his elder brother, Rampa!, he might
not have stated certain facts correctly before the Court. We do    F
not see any reason for making such a remark in the judgment.
There are no material or other contradictions in the statements
of these four witnesses. PW2 is stated to be related to PW1
who in turn is related to the deceased. Also, PW3 is related to
the deceased. Thus, according to the submission on behalf of       G
the accused all of them become interested witnesses who have
attempted to falsely implicate the appellant. The statement of
these witnesses, therefore, cannot be relied upon, they being
relatives and interested witnesses of the deceased and other
witnesses.                                                         H
    1044    SUPREME COURT REPORTS                  [2012] 7 S.C.R.


A      11. We are not impressed with this argument. The
  appreciation of evidence of such related witnesses has been
  discussed by this Court in its various judgments. In the case of
  Da/ip Singh v. State of Punjab [(1954 SCR 145], while
  rejecting the argument that witnesses who are close-relatives
B of the victim should not be relied upon, the Court held as under:-

        "26. A witness is normally to be considered independent
        unless he or she springs from sources which are likely to
        be tainted and that usually means unless the witness has
        cause, such as enmity against the accused, to wish to
c       implicate him falsely. Ordinarily, a close relative would be
        the last to screen the real culprit and falsely implicate an
        innocent person. It is true, when feelings run high and there
        is personal cause for enmity, that there is a tendency to
        drag in an innocent person against whom a witness has a
D       grudge along with the guilty, but foundation must be laid
        for such a criticism and the mere fact of relationship far
        from being a foundation is often a sure guarantee of truth.
        However, we are not attempting any sweeping
        generalisation. Each case must be judged on its own facts.
E       Our observations are only made to combat what is so often
        put forward in cases before us as a general rule of
        prudence. There is no such general rule. Each case must
        be limited to and be governed by its own facts."

F       12. Similar view was taken by this Court in the case of
  State of A.P. v. S. Rayappa and Others [(2006) 4 SCC 512].
  The court observed that it is now almost a fashion that public
  is reluctant to appear and depose before the court, especially
  in criminal cases and the cases for that reason itself are
  dragged for years and years. The Court also stated the principle
G that, "by now, it is a well-established principle of law that
  testimony of a witness otherwise inspiring confidence cannot
  be discarded on the ground that he being a relation of the
  deceased is an interested witness. A close relative who is a
  very natural witness cannot be termed as interested witness.
H
        GAJOO v. STATE OF UTTARAKHAND                            1045
            [SWATANTER KUMAR, J.]

The term interested postulates that the person concerned must             A
have some direct interest in seeing the accused person being
convicted somehow or the other either because of animosity
or for some other reasons."

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

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

           "6 .... 0n principle, however, it is difficult to accept the   o
    plea that if a witness is shown to be a relative of the
    deceased and it is also shown that he shared the hostility
    of the victim towards the assailant, his evidence can never
    be accepted unless it is corroborated on material
    particulars."
                                                                          E
      15. Once, the presence of PW2 and PW3 is shown to be
natural, then to doubt their statement would not be a correct
approach in law. It has unequivocally come on record through
various witnesses, including PW4, that there was a
'Satyanarayan Katha' at the house of Chetu Ram which was                  F
attended by various villagers. It was on their way back at
midnight when PW2 and PW3 had seen the occurrence in dark
with the help of the torches that they were carrying. The mere
fact that PW2 happens to be related to PW1 and to the
deceased, would not result in doubting the statement of these             G
witnesses which otherwise have credence, are reliable and are
duly corroborated by other evidence. In such cases, it is only
the members of the family who come forward to depose. Once
it is established that their depositions do not suffer from
material contradictions, are trustworthy and in consonance with           H
    1046     SUPREME COURT REPORTS                   (2012] 7 S.C.R.


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

        16. Coming to the next submission on behalf of the
  accused that there is contradiction between the ocular and
  medical evidence, it is contended that according to PW2 and
8
  PW3, the deceased was killed by use the of Daranti that the
  accused/appellant Gajoo was carrying, while according to the
  medical evidence, the death resulted from asphyxia. This
  argument is based upon misreading of the evidence. PW2 and
C PW3 had seen in the dark i.e. in the limited light of the torches
  that they were carrying, that Rampal was holding the deceased
  while Gajoo was inflicting injuries on her body with the help of
  Daranti. As per the Post Mortem Report, Ext. Ka-10, two
  injuries have been noticed under the chin which are; incised
  wound 4 cm x % cm muscle deep, incised wound 5 cm x 1 cm
D muscle deep and the second injury is just below the first injury.
  Injury No. (iii) recorded in the post mortem report is very
  material. According to the docto1, there were three abraded
  contusions of different sizes, in the middle of the neck. The
  doctor has specifically recorded that both lungs were
E congested, the larynx and trachea were found congested and
  the expert judgment of the doctor based on these factors was
  that death occurred due to asphyxia because of strangulation.

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

         18. We have also noticed that there is no variation between
    the medical evidence and the ocular evidence, and once they
    are co-jointly read, it does not falsify either the statement of the
    witnesses, PW2 and PW3 or the Post-Mortem Report, Ext. Ka-
H
         GAJOO v. STATE OF UTTARAKHAND                      1047
             [SWATANTER KUMAR, J.]

10. In fact, both of them must be read as complimentary to each      A
other. Even if for the sake of argument we assume that there
is some variation, still, it would be so immaterial and
inconsequential that it would not give any benefit to the accused.
It is a settled principle by a series of decisions of this Court
that while appreciating the variation between the medical            B
evidence and ocular evidence, primacy is given to the oral
evidence of the witnesses. Reference can be made to the
judgments of this Court in the case of Kapildeo Manda/ and
Ors. v. State of Bihar [(2008) 16 SCC 99], State of UP. v.
Krishan Gopa/ [(1998) 4 SCC 302], Bhajan Lal@ Harbhajan              c
Singh & Ors. v. State of Haryana [(2011) 7 SCC 421].

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

     20. In regard to the defective investigation, this Court in
the case of Dayal Singh and Others. v. State of Uttaranchal          H
    1048    SUPREME COURT REPORTS                  [2012] 7 S.C.R.


A   [2012 (7) SCALE 165] while dealing with the cases of
    omissions and commissions by th~ investigating officer, and
    duty of the Court in such cases held as under:-

        "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.
B
        [(1972) 3 SCC 613], this Court stated that it is well settled
        that if the police records become suspect and investigation
        perfunctory, it becomes the duty of the Court to see if the
        evidence given in Court should be relied upon and such
        lapses ignored. Noticing the possibility of investigation
c       being designedly defective, this Court in the case of
        Dhanaj Singh@ Shera & Ors. v. State of Punjab [(2004)
        3 sec 654], held, "in the case of a defective investigation
        the Court has to be circumspect in evaluating the evidence.
        But it would not be right in acquitting an accused person
D       solely on account of the defect; to do so would tantamount
        to playing into the hands of the investigating officer if the
        investigation is designedly defective."

        23. Dealing with the cases of omission and commission,
E       the Court in the case of Paras Yadav v. State of Bihar [AIR
        1999 SC 644], enunciated the principle, in conformity with
        the previous judgments, that if the lapse or omission is
        committed by the investigating agency, negligently or
        otherwise, the prosecution evidence is required to be
F       examined de hors such omissions to find out whether the
        said evidence is reliable or not. The contaminated conduct
        of officials should not stand in the way of evaluating the
        evidence by the courts, otherwise the designed mischief
        would be perpetuated and justice would be denied to the
        complainant party. In the case of Zahira Habibul/ah Sheikh
G
        & Anr. Vs. State of Gujarat & Ors. [(2006) 3 SCC 374],
        the Court noticed the importance of the role of witnesses
        in a criminal trial. The importance and primacy of the
        quality of trial process can be observed from the words of
        Bentham, who states that witnesses are the eyes and ears
H
    GAJOO v. STATE OF UTTARAKHAND                         1049
        [SWATANTER KUMAR, J.]

of justice. The Court issued a caution that in such                A
situations, there is a greater responsibility of the court on
the one hand and on the other the courts must seriously
deal with persons who are involved in creating designed
investigation. The Court held that legislative !Tleasures to
emphasize prohibition against tampering with witness,              B
victim or informant have become the imminent and
inevitable need of the day. Conducts which illegitimately
affect the presentation of evidence in proceedings before
the Courts have to be seriously and sternly dealt with. There
should not be any undue anxiety to only protect the interest       c
of the accused. That would be unfair, as noted above, to
the needs of the society. On the contrary, efforts should be
to ensure fair trial where the accused and the prosecution
both get a fair deal. Public interest in proper administration
of justice must be given as much importance if not more.
                                                                   D
as the interest of the individual accused. The courts have
a vital role to play. (Emphasis supplied)

24. With the passage of time, the law also developed and
the dictum of the Court emphasized that in a criminal case,
the fate of proceedings cannot always be left entirely in the      E
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.
                                                                   F
25. Reiterating the above principle, this Court in the case
of National Human Rights Commission v. State of
Gujarat [(2009) 6 SCC 767], held as under:

       "The concept of fair trial entails familiar triangulation
       of interests of the accused, the victim and the             G
       society and it is the community that acts through the
       State and prosecuting agencies. Interest of society
       is not to be treated completely with disdain and as
       persona non grata. The courts have always been
       considered to have an overriding duty to maintain           H
    1050   SUPREME COURT REPORTS                     [2012] 7 S.C.R.


A             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
B             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
c             by becoming a participant in the trial evincing
               intelligence, active interest and elicit all relevant
              materials necessary for reaching the correct
              conclusion, to find out the truth, and administer
              justice with fairness and impartiality both to the
              parties and to the community it serves. The courts
D
              administering criminal justice cannot turn a blind
              eye to vexatious or oppressive conduct that has
              occurred in relation to proceedings, even if a fair
              trial is still possible, except at the risk of undermining
              the fair name and standing of the judges as impartial
E
               and independent adjudicators."

       26. In the case of State of Kamataka v. K. Yarappa Reddy
       [2000  sec   (Crl.) 61], this Court occasioned to consider
       the similar question of defective investigation as to whether
F      any manipulation in the station house diary by the
       Investigating Officer could be put against the prosecution
       case. This Court, in Paragraph 19, held as follows:

              "19. But can the above finding (that the station
              house diary is not genuine) have any inevitable
G
              bearing on thP. other evidence in this case? If the
              other evidence, on scrutiny, is found credible and ,
              acceptable, should the Court be influenced by the
              machinations demonstrated by the Investigating
              Officer in conducting investigation or in preparing
H             the records so unscrupulously? It can be a guiding
    GAJOO v. STATE OF UTTARAKHAND                         1051
        [SWATANTER KUMAR, J.]

       principle that as investigation is not the solitary area    A
       for judicial scrutiny in a criminal trial, the conclusion
       of the Court in the case cannot be allowed to
       depend solely on the probity of investigation. It is
       well-nigh settled that even if the investigation is
       illegal or even suspicious the rest of the evidence         B
       must be scrutinised independently of the impact of
       it. Otherwise the criminal trial will plummet to the
       level of the investigating officers ruling the roost.
       The court must have predominance and pre-
       eminence in criminal trials over the action taken by        c
       the investigation officers. Criminal Justice should
       not be made a casualty for the wrongs committed
       by the investigating officers in the case. In other
       words, if the court is convinced that the testimony
       of a witness to the occurrence is true the court is         0
       free to act on it albeit the investigating 0fficer's
       suspicious role in the case."

       27. In Ram Bali v. State of Uttar Pradesh [(2004)
10 SCC 598], the judgment in Kamel Singh v. State of
M.P. ((1995) 5 SCC 518] was reiterated and this Court              E
had observed that 'in case of defective investigation the
court has to be circumspect while evaluating the evidence.
But it would not be right in acquitting an accused person
solely on account of the defect; to do so would tantamount
to playing into the hands of the investigation officer if the      F
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      G
doing justice to all, the accused, the society and a fair
chance to prove to the prosecution. Then alone can law
and order be maintained. The Courts do not merely
discharge the function to ensure that no innocent man is
punished, but also that a guilty man does not escape. Both
are public duties of the judge. During the course of the trial,    H
    1052   SUPREME COURT REPORTS                   [2012] 7 S.C.R.


A      the learned Presiding Judge is expected to work
       objectively and in a correct perspective. Where the
       prosecution attempts to misdirect the trial on the basis of
       a perfunctory or designedly defective investigation, there
       the Court is to be deeply cautious and ensure that despite
8      such an attempt, the determinative process is not sub-
       served. For truly attaining this object of a 'fair trial', the
       Court should leave no stone unturned to do justice and
       protect the interest of the society as well.

       29. This brings us to an ancillary issue as to how the Court
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
D      contradictions and variations are of a serious nature, which
       apparently or impliedly are destructive of the substantive
       case sought to be proved by the prosecution, they may
       provide an advantage to the accused. The Courts,
       normally, look at expert evidence with a greater sense of
E      acceptability, but it is equally true that the courts are not
       absolutely guided by the report of the experts, especially
       if such reports are perfunctory, unsustainable and are the
       result of a deliberate attempt to misdirect the prosecution.
       In Kamaljit Singh v. State of Punjab [2004 Cri.LJ 28], the
F      Court, while dealing with discrepancies between ocular
       and medical evidence, held, "It is trite law that minor
       variations between medical evidence and ocular evidence
       do not take away the primacy of the latter. Unless medical
       evidence in its term goes so far as to completely rule out
G      all possibilities whatsoever of injuries taking place in the
       manner stated by the eyewitnesses, the testimony of the
       eyewitnesses cannot be thrown out."

       30. Where the eye witness account is found credible and
       trustworthy, medical opinion pointing to alternative
H
         GAJOO v. STATE OF UTTARAKHAND                        1053
             [SWATANTER KUMAR, J.]

     possibilities may not be accepted as conclusive. The              A
     expert witness is expected to put before the Court all
     materials inclusive of the data which induced him to come
     to the conclusion and enlighten the court on the technical
     aspect of the case by examining the terms of science, so
     that the court, although not an expert, may form its own          B
     judgment on those materials after giving due regard to the
     expert's opinion, because once the expert opinion is
     accepted, it is not the opinion of the medical officer but
     that of the Court. {Plz. See Madan Gopal Kakad v. Naval
     Dubey & Anr. [(1992) 2 SCR 921: (1992) 3 SCC 204]}."              c
     21. The present case, when examined in light of the above
principles, makes it clear that the defect in the investigation or
omission on the part of the investigating officer, cannot prove
to be of any advantage to the accused. No doubt the
investigating officer ought to have obtained serologist's report       D
both in respect of Ext. 2 and Ext. 5 and matched it with the blood
group of the deceased. This is a definite lapse on the part of
the investigating officer which cannot be overlooked by the
Court, despite the fact that it finds no merit in the contention of
the accused.                                                           E

    22. For the reasons afore-recorded, we dismiss this
appeal being without any merit. However, we direct the Director
General of Police, Uttarakhand, to take disciplinary action
against Sub-Inspector, Brahma Singh, PW6, whether he is in             F
service or has since retired, for such serious lapse in
conducting investigation.

      23. The Director General of Police shall take a disciplinary
action against the said officer and if he has since retired, the
action shall be taken with regard to deduction/stoppage of his         G
pension in accordance with the service rules. The ground of
limitation, if stated in the relevant rules, will not operate as the
inquiry is being conducted under the direction of this Court.

B.B.B.                                        Appeal dismissed.        H