SAHABUDDIN & ANR.versusSTATE OF ASSAM

                     [2012] 13 S.C.R. 1067


                     SAHABUDDIN & ANR.                                 A
                                 v.
                      STATE OF ASSAM
              (Criminal Appeal No. 629 of 2010)
                     DECEMBER 13, 2012
                                                                       B
 [SWATANTER KUMAR AND GYAN SUDHA MISRA, JJ.]

        Penal Code, 1860 - s. ·302134 - Murder - Of a woman -
  By her husband and. his brother - Circumstantial evidence -
. Deceased refusing to go to her matrimonial home before the C
  incident - Her death caused in the matrimonial house -
  Various injuries on the person of the deceased - Witnesses
  to the injuries - Post mortem report and inquest report
  corroborating the prosecution case - Defence taking plea of
  alibi - Conviction by trial court and High Court - On appeal, D
  held: The prosecution has established various circumstances
  which complete the chain of events pointing towards the guilt
  of the accused - The statements of PWs were reliable and
  trustworthy, as they fully corroborated other documentary and
  ocular evidence - The contradiction in the evidence of PWs E
  not material - The evidence of hostile witnesses would not
  carry any weight in the face of evidence of PWs 3 to 7 - Plea
  of alibi a falsehood - Conviction upheld.

      Criminal Trial - If the plea of alibi is disbelieved and there
 is absence of explanation uls. 313 Cr.P.C., Court is entitled         F
 to draw adverse inference against the accused - Code of
 Criminal Procedure, 1973 - s. 313.

      Investigation - Conduct of Investigating Officer to
 misdirect the evidence and to withhold the material evidence          G
 from the Court - Doctor who conducted postmortem, made
 his evidence totally vague, uncertain and indefinite -
 Direction to State to take disciplinary action against the
 officers.
                                1067                                   H
    1068   SUPREME COURT REPORTS            [2012] 13 S.C.R.


A      Appellant-accused alongwith another accused (his
  brother) was prosecuted for having killed his wife. The
  prosecution case was that a couple of months prior to
  the date of the incident, when the deceased had come to
  her parents' house, she expressed her unwillingness to
B go back to her husband's house apprehending that her
  husband and brother-in-law would kill her. However, she
  came to her husband's house. On the day of the incident,
  brother-in-law of the deceased informed PW7 (uncle of
  the deceased) that the deceased died after falling down
c in the kitchen. PW7 informed this to PW3 (mother of the
  deceased). PW3 suspecting that it was not a natural
  death, lodged an FIR. During trial, PWs 8 and 9 (the
  neighbours of the accused) turned hostile. The accused
  took the plea of alibi and in its support, produced three
  witnesses. Trial court, disbelieving the defence case,
0
  convicted both the accused u/s. 302/34 IPC. Trial Court
  also observed that the Medical Officer, who had
  conducted post mortem, needed to be censured as his
  report was found to be perfunctory in nature. High Court
E confirmed the judgment of trial court.
       In appeal to this Court, appellants contended that the
  prosecution did not establish the case beyond
  reasonable doubt; that PWs 3 to PW7 were not reliable
  as they were Interested witnesses by the virtue of being
F related to the deceased; that the statements of PWs were
  contradictory and that PWs 8 and 9 being hostile were
  not reliable.
       Dismissing the appeal, the Court
G      HELD: 1.1 This is a case of circumstantial evidence,
  as there is no eye- witness to the occurrence which has
  been produced by the prosecution. The prosecution has
  been able to establish various circumstances which
  complete the chain of events and such chain of events
H undoubtedly point towards the guilt of the accused
      SAHABUDDIN & ANR. v. STATE OF ASSAM                1069

  persons. These circumstances are: the victim coming to         A
  her parental home and declining to go back to her
  matrimonial home, she being persuaded to go to her
  matrimonial home by her parents and within a few days
  thereafter, she dies at her in-laws place. Further that she
  had various injuries on her lower abdomen and that her         B
  neck and face were congested and swollen. The post
  mortem report completely corroborates the statements of
  PWs. The inquest report, also fully substantiates the
  case of the prosecution. Besides this, PW3 had
  categorically stated that her daughter was not suffering       c
. from epilepsy or any other disease and that she died as
  a result of torture inflicted on her by the accused persons.
  [Paras 10 and 22] [1076-E; 1084-B-E]
      1.2 The post mortem report, clearly corroborates the
 statement of five witnesses, PW3, PW4, PWS, PW6 and D
 PW7 and there is no reason for the Court to cast a doubt
 upon their statement. All these witnesses are related to
 the deceased. Merely because they are all relatives of the
 deceased, will not by itself cause any prejudice to the
 case of the prosecution. In such events, it is not the E
 outsiders who would come to the rescue and would
 stand by the victim/deceased and their family, but it is the
 members of their family who would go to witness such
 an unfortunate incident. An interested witness is the one
 who is desirous of falsely implicating the accused with F
 an intention of ensuring their conviction. Merely being a
 relative would not make the statement of such witness
 equivalent to that of an interested witness.             The
 statement of a related witness can safely be relied upon
 by the Court, as long as it is trustworthy, truthful and duly G
 corroborated by other prosecution evidence. The
 statements of PWs were reliable and trustworthy, as they
 were fully corroborated by other prosecution,
 documentary and ocular evidence. [Paras 15, 16 and 17]
 [1 079-F-H; 1080-A-C; 1082-F]
                                                               H
    1070    SUPREME COURT REPORTS            [2012] 13 S.C.R.

A        Gajoo v. State of Uttarakhand JT 2012 (9) SC 10; State
    of A.P. V. S.Rayappa and Ors. (2006) 4 sec 512- relied on.
      1.3 Every variation or immaterial contradiction cannot
  provide advantage to the accused. In the instant case,
  PW3 had mentioned that she came to know about the
B death of her daughter at about 9.30 p.m., however,
  according to PW6, it was about 8 or 9 O'clock when she
  was informed of the death of her sister. This would hardly
  be a contradiction. In the facts and circumstances of the
  present case, variation of 45 minutes or an hour in giving
C the time of incident will not be considered fatal. It is a -
  settled principle of law that while appreciating the
  evidence, the Court must examine the evidence in its
  entirety upon reading the statement of a witness as a
  whole, and if the Court finds the statement to be truthful
D and worthy of credence, then every variation or
  discrepancy particularly which is immaterial and does not
  affect the root of the case of the prosecution case would
  be of no consequences. [Paras 18 and 19) [1082-H; 1083-
  A, C-E]
E       State represented by Inspector of Police v. Saravanan
    and Anr. (2008) 17 sec 587: 2008 (14) SCR 405 - relied
    on.
       1.4 PW8 and PW9 are neighbours of the accused.
F They affirmed the death of the deceased but gave different
  versions as to the place and the manner in which she
  died. The statements of such witnesses would hardly
  carry any weight in the face of the statements of PW3 to
  PW7. The possibility of their turning hostile by virtue of
G them being neighbours of the accused cannot be ruled
  out. [Para 21) [1083-H; 1084-A-B]
      1.5 The deceased died in the house of the appellants
  and therefore, it was expected of the appellants to furnish
  some explanation in their statement under Section 313
H CrPC as to the exact cause of her death. Except barely
      SAHABUDDIN & ANR. v. STATE OF ASSAM               1071


taking the plea of alibi, accused persons chose not to         A
bring the truth before the Court i.e. the circumstances
leading to the death of the deceased. [Para 23] [1084-G-
H; 1085-A]
       1.6 There is no merit in the plea of alibi as it is just
  an excuse which has been put forward by the accused B
  persons to escape the liability in law. There is a
  complete contradiction in the material facts of the
  statement of DW1, DW2 and DW3. According to the
  statements of DWs none of the family members were
· present on the spot, is strange in the light of the fact that C
  the deceased was so ill that she died after a short while
  due to her illness. If none of the accused, whom these
  witnesses knew were present, then it is not only doubtful
  but even surprising as to how they came in contact with
  the deceased at the relevant time. The falsity of the D
  evidence of the defence is writ large in the present case. I
  The conduct of the accused was unnatural and the
  statement of these witnesses untrustworthy. The plea of
  alibi is nothing but a falsehood. [Para 24] [1085-B-E]
      1.7 Once, the Court disbelieves the plea of alibi and    E
 the accused does not give any ~xplanation in his
 statement under Section 313 CrPC, the Court is entitled
 to draw adverse inference against the accused. [Para 25]
 1085-F]
     Jitender Kumar v. State of Haryana (2012) 6 SCC 204       F
- relied on.
     2.1 The Investigating Officer has conducted
 investigation in a suspicious manner and did not even
 care to send the viscera to the laboratory for its            G
 appropriate examination. PW11 has stated that viscera
 could not be examined by the laboratory as it was not
 sent in time. There is a deliberate attempt on the part of
 the Investigating Officer to misdirect the evidence and to
 withhold the material evidence from the Court. [Para 27)      H
 [1085-F]
    1072    SUPREME COURT REPORTS             [2012) 13 S.C.R.


A       2.2 PW1, the doctor who conducted the post mortem
   of the corpse of the deceased was expected to
   categorically state the cause of death in which he
   miserably failed. He is a doctor who is expected to
   perform a specialized job. He made his evidence totally
 B vague, uncertain and indefinite. Given the expertise and
   knowledge possessed by a doctor PW1, was expected
   to state the cause of death with certainty or the most
   probable cause of death in the least. The doctor has also
   failed to discharge his professional obligations in terms
_c of the professional standards expected of him. He has
   attempted to misdirect the evidence before the Court and
   has intentionally made it so vague that in place of aiding
   the ends of justice, he has attempted to help the accused.
   [Paras 28 and 29] [1087-B-D, F]
D      2.3 The competent authority ought to have taken
  some action on the basis of the observations made by
  the trial court in its judgment under appeal. The Director
  General of Police, and Director General of Health
  Services, of the State are directed to take disciplinary
E action against PW1 and PW11, whether they are in service
  or have since retired. If not in service, action shall be
  taken against them for deduction/stoppage of pension In
  accordance with the service rules. The plea of limitation,
  If any, under the relevant rules would not operate, as the
F departmental inquiry shall be conducted in furtherance
  to the order of this Court. [Paras 26 and 31] [1086-G;
  1092-E·F]
        Gajoo v. State of Uttarakhand JT 2012 (9) SC 10- relied
G on.
                       Case Law Reference:
        JT 2012 (9) SC 10         Relied on        Paras 16
                                                   and 30
H       2008 (14) SCR 405         Relled on         Para 19
         SAHABUDDIN & ANR. v. STATE OF ASSAM                 1073


        c2012) s sec 204             Relied on         Para 25        A
        CRIMINAL AP PELLATE JURISDICTION : Criminal Appeal
    No. 629 of 2010.

        From the Judgment & Order dated 27.11.2008 of the High
    Court of Gauhati at Assam in Criminal No. 91 of 2005.             B

        Nagendra Kumar Sahoo for the Appellants.

        Navnit Kumar, Corporate Law Group for the Respondent.

        The Judgment of the Court was delivered by                    c
          SWATANTER KUMAR, J. 1. It is the case of the
    prosecution that the accused Sahabuddin was married to one
    Sajna Begum, the deceased on 17th May, 2001, and they were
    staying together. She was three months' pregnant. During her      D
    last visit to her parental home, she wailed and was not willing
I
    to go back to her husband's house, stating that her husband
    and her brother-in-law would kill her if their demands of dowry
    were not met. However, the wish of her parents prevailed and
    she was sent back to her matrimonial home. After lapse of         E
    barely a couple of months i.e. on 9th September, 2001,
    approximately four months after her marriage, at about 10 p.m.,
    one Sarifuddin, the elder brother-in-law of Sajna Begum,
    informed her uncle, Taibur Rahman, PW7 that she fell down in
    the kitchen due to dizziness. Ten minutes later, Sarifuddin
                                                                      F
    came back and informed them that Sajana Begum fell down
    and froth was coming out of her mouth and thereafter she died.
    PW7 informed the mother of the deceased, Abejan Bibi, PW3,
    about the death of her daughter, Sajna Begum. When they
    reached the place of occurrence, they saw that their daughter
    was lying dead. Suspecting that it was not a natural death and    G
    that there had been some foul play on the part of the accused
    persons i.e. the husband and the brother-in-law of the
    deceased, PW3, lodged an FIR.

        2. The FIR, Ext. 3, was registered under Section 304(B)       H
    1074    SUPREME COURT REPORTS               [2012] 13 S.C.R.


A of the Indian Penal Code, 1860 (for short "IPC"). However, the
  Court of competent jurisdiction on the basis of the police report
  and upon hearing both the parties found that a prima facie case
  under Section 302/34 IPC was made out against the accused
  Sahabuddin and Sarifuddin. They were charged with the same
B offence and the case was put 10 trial. The Investigating Officer,
  Someshwar Baro, PW11, took over the investigation, examined
  a number of witnesses and seized the dead body from the
  place in question. The body of the deceased was subjected
  to post mortem. On 10th September, 2001, Dr. Swapan
c Kumar Sen, PW1 in the post mortem report, Ext. 1 stated that
  injuries on the body of the deceased were ante-mortem and
  that there were multiple bruises on the lower abdomen. Also,
  the neck was swollen and face was congested and swollen.
  Although, the cause of death could not be ascertained, the
  visceras were preserved to be sent to the Forensic Science
0
  Laboratory, Guwahati, for forensic and chemical analysis.
  PW2, an Executive Magistrate, who had conducted inquest on
  the body of the deceased noticed that the hands of the
  deceased were close fisted and saliva was coming out of her
E mouth along with a little quantity of foam. Black spots were
  found on her belly and some spots were also noticed on her
  back. Ext. 2 is the inquest report.

       3. The mother of the deceased, Abejan Bibi, PW3 was
  another material witness and according to her, assault marks
F could be seen all over the body of the deceased and that her
  neck was swollen. PW3 also stated that she saw black marks
  on the left side of the abdomen of her deceased daughter.
  Thus, on being suspicious that her daughter had been killed,
  PW3 lodged the FIR. PW4 who had accompanied PW3,
G stated PW3 to be her aunt and the statement of PW 4 was quite
  similar to that of PW3. PW7, Taibur Rahman was the uncle of
  the deceased, Sajna Begum who had first been informed of
  her demise by her brother in law, Sarifuddin.

        4. However, PW8 and PW9 were the prosecution
H
     SAHABUDDIN & ANR. v. STATE OF ASSAM                    1075
           [SWATANTER KUMAR, J.]

witnesses who did not fully support the case of the prosecution A
and were thus declared hostile by the prosecution. Both these
witnesses were the neighbours of the accused persons.
Accused in their statements under Section 313 of the Code of
Criminal Procedure (for short "the CrPC") denied all the
allegations and opted to lead defence. The accused persons 8
had examined as many as three witnesses, who were primarily .
produced to establish the plea of alibi, affirming that the
accused were not present in the house, when the incident took
place.

     5. Disbelieving the defence put forth by the accused, the       C
Trial Court held both the accused guilty of the offence
punishable under Section 302 read with Section 34 IPC and
having found them guilty, awarded them life imprisonment and
a fine of Rs. 5000/- and in default to undergo simple
imprisonment for six months.                                         D

     6. At this stage, we may also notice that the Trial Court had
observed that PW1, Dr. Swapan Kumar Sen, the medical
officer needs to be censured as his report, was found to be
perfunctory in nature.                                               E
      7. Challenging the legality and correctness of the judgment
of the Trial Court, the accused persons preferred an appeal
before the High Court. The High Court vide its judgment dated
27th November, 2008 dismissed the appeal, confirming the
finding of guilt and order of sentence passed by the Trial Court,    F
giving rise to the filing of the present appeal.

     8. The learned counsel appearing for the appellants has
raised the following contentions while impugning the judgment
under appeal:-                                                       G
      1.    The story of the prosecution is improbable and
            prosecution has not been able to establish its case
            beyond reasonable doubt.

                                                                     H
    1076        SUPREME COURT REPORTS             [2012] 13 S.C.R.


A          2.    PW3 to PW7 are all interested witnesses. By virtue
                 of them being the relatives of the deceased, these
                 witnesses wanted to falsely implicate the accused
                 persons. Hence, their statements cannot be relied
                 upon and in any case, there are contradictions in
B                the statements of these witnesses. Thus, the
                 accused is entitled to the benefit of doubt.

           3.    PW8 and PW9 did not support the case of the
                 prosecution. The Court should have returned a
                 finding in favour of the accused by appreciating the
c                statements of DW1 , DW2 and DW3, in its correct
                 perspective and examining them in light of the
                 statements of the PW8 and PW9.

         9. We are unable to find any merit in the contentions raised
o   on behalf of the appellants, which we propose to discuss
    together as the Court has to refer to the same evidence for
    appreciation of the contentions raised on behalf of both the
    appellants. Thus, it will be appropriate to discuss the pleas
    together.
E        10. This is a case of circumstantial evidence as there is
    no eye witness to the occurrence which has been produced by
    the prosecution.

       11. Let us examine the various circumstances by which the
F prosecution has attempted to establish the guilt of the accused
  beyond reasonable doubt. PW3 is the mother of the deceased
  who had been informed by PW7, the uncle of the deceased
  about her death. PW5 and PW7 are the uncles of the
  deceased. PW4 is the cousin sister and PW6 is the sister of
G the deceased. These persons had accompanied PW3 to the
  house of the accused, when they got the news of death of the
  deceased.

         12. It has been specifically stated by these witnesses that
    there were marks on the body of the deceased, her neck was
H
                                                                 '
     SAHABUDDIN & ANR. v. STATE OF ASSAM                     1077
           [SWATANTER KUMAR, J.)                                      f
congested and swollen and so was the face. The statement              A
of these witnesses and particularly of PW3, finds due
corroboration with the post mortem report prepared by PW1
and, therefore, it will be useful to' refer to the entire statement
of this witness.
                                                                      8
     "On 10/9/2001 I was at Karimganj Civil hospital as Senior
     M & H.O. On that day at 3-30 p.m. I held post mortem
     examination on the dead body of Sajna Begum aged 18
     years, a female Muslim, from Durlabpur under Patharkandi
     P .S. on police requisition, being identified by Head            C
     Constable Rabindra Deb and Md. Khairuddin, a relation
     of the deceased and found as :-

                        External Appearance

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

                      Cranium & Spinal Canal                          E

                           All organs pale

                                Thorax

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

    Abdomen

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

    Organs of generation etc - pale.       Uterus was 3 months
    pregnancy.
                                                                      H
    1078   SUPREME COURT REPORTS                 [2012] 13 S.C.R.


A                             More details

       Injuries were ante mortem.

              Visaras also preserved for forensic and clinical
              analysis through FSL, Guwahati.
B
       (1) Stomach and its contents.

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

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

       Ext. 1 is the Report, Ext. 1(1) is my signature.
D
       Bruises and swollen face being congested may be due to
       some physical assault. Black spots detected by the
       Executive Magistrate at the time of preparing his inquest
       report corresponds to bruises on the lower abdomen as
E      described by my in my p.m. report.

       xxxxxxxxxxxxxxx
       I was not present at the time of holding inquest by the
       Magistrate.
F
       Bruise resembles to black spot. Normally after death, no
       black spot is noticed on a dead person. Black spots may
       be caused due to poisoning or suffocation.

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

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

H      Definite cause of death could not be detected.
     SAHABUDDIN & ANR. v. STATE OF ASSAM                   1079
           [SWATANTER KUMAR, J.]

     Symptoms as described above may happen due to                  A
     epilepsy."

     13. As is evident from the statement of PW1, the deceased
was three months pregnant. He specifically made a note of the
fact that her neck was swollen, her face was congested and
                                                                    B
swollen and there were multiple bruises on her lower abdomen.
According to this witness, the actual cause of death could not
be ascertained, but he stated that the presence of bruises on
the body of the deceased and her face being swollen and
congested may be due to some physical assault. In his cross-        C
examination, he stated that the black spots may be caused due
to poisoning or suffocation and also that symptoms described
above may also occur due to epilepsy.

     14. Certainly, the doctor did not give a concrete opinion
as to the cause of death. The report of the chemical analyst        D
and the report of the Forensic Science Laboratory were not
placed on record so that the Court could at least come to a
definite conclusion on the basis of scientific analysis. FSL
Report was not sent, no report was obtained and, in fact
according to PW11, the viscera could not be examined by the         E
laboratory as it was not sent in time. It is evident that the
investigation conducted by the Investigating Officer, PW11 and
the post mortem examination by the doctor was improper in its
very nature. Thus, the remarks made by the Trial Court in this
behalf are fully justified.                                         F

      15. Reverting to the evidence, the post mortem report, Ext.
1 clearly corroborates the statement of five witnesses, PW3,
PW4, PW5, PW6 and PW7 and there is no reason for the Court
to cast a doubt upon their statement.        All these witnesses
are related to the deceased.       Merely because they are all      G
relatives of the deceased will not by itself cause any prejudice
to the case of the prosecution. In such events, it is not the
outsiders who would come to the rescue and would stand by
the victim/deceased and their family, but it is the members of
                                                                    H
    1080     SUPREME COURT REPORTS                 [2012] 13 S.C.R.


A their family who would go to witness such an unfortunate
  incident.

        16. An interested witness is the one who is desirous of
  falsely implicating the accused with an intention of ensuring their
  conviction. Merely being a relative would not make the
8
  statement of such witness equivalent to that of an interested
  witness. The statement of a related witness can safely be
  relied upon by the Court, as long as it is trustworthy, truthful and
  duly corroborated by other prosecution evidence. At this stage,
  we may refer to the judgment of this Court in the case of Gajoo
C v. State of Uttarakhand [JT 2012 (9) SC 10], where the Court
  while referring to various previous judgments of this Court, held
  as under:-

        We are not impressed with this argument. The
D       appreciation of evidence of such related witnesses has
        been discussed by this Court in its various judgments. In
        the case of Dalip Singh v. State of Punjab [(1954 SCR
        145], while rejecting the argument that witnesses who are
        close-relatives of the victim should not be relied upon, the
E       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
F               against the accused, to wish to implicate him
                falsely. Ordinarily, a close relative would be the last
                to screen the real culprit and falsely implicate an
                innocent person. It is true, when feelings run high
                and there is personal cause for enmity, that there
G               is a tendency to drag in an innocent person against
                whom a witness has a grudge along with the guilty,
                but foundation must be laid for such a criticism and
                the mere fact of relationship far from being a
                foundation is often a sure guarantee of truth.
H               However, we are not attempting any sweeping
SAHABUDDIN & ANR. v. STATE OF ASSAM                          1081
      [SWATANTER KUMAR, J.]
       generalisation. Each case must be judged on its                A
       own facts. Our observations are only made to
       combat what is so often put forward in cases before
       us as a general rule of prudence. There is no such
       general rule. Each case must be limited to and be
       governed by its own facts."                                    B

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             C
especially in criminal cases and the cases for that reason
itself are dragged for years and years. The Court aiso
stated the principle that, "by now, it is a well-established
principle of law that testimony of a witness otherwise
inspiring confidence cannot be discarded on the ground
that he being a relation of the deceased is an interested             D
witness. A close relative who is a very natural witness
cannot be termed as interested witness. The term
interested postulates that the person concerned must have
some direct interest in seeing the accused person being
convicted somehow or the other either because of                      E
animosity or some other reasons."

This Court has also taken the view that related witness
does not necessarily mean or is equivalent to an interested
witness. A witness may be called interested only when                 F
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.
Kishanpa/ and Others [(2008) 16 SCC 73]}
In the case of Darya Singh & Ors. v. State of Punjab [AIR             G
1965 SC 328], the Court held as under:-
       "6 .... 0n principle, however, it is difficult to accept the
       plea that if a witness is shown to be a relative of
       the deceased and it is also shown that he shared               H
    1082    SUPREME COURT REPORTS                [2012] 13 S.C.R.


A              the hostility of the victim towards the assailant, his
               evidence can never be accepted unless it is
               corroborated on material particulars."

        Once, the presence of PW2 and PW3 is shown to be
        natural, then to doubt their statement would not be a correct
8
        approach in law. It has unequivocally come on record
        through various witnesses including PW4 that there was
        a 'Satyanarayan Katha' at the house of Chetu Ram which
        was attended by various villagers. It was on their way back
        at midnight when PW2 and PW3 had seen the occurrence
c       in dark with the help of the torches that they were carrying.
        The mere fact that PW2 happens to be related to PW1 and
        to the deceased, would not result in doubting the statement
        of these witnesses which otherwise have credence, are
        reliable and are duly corroborated by other evidence. In
D       such cases, it is only the members of the family who come
        forward to depose. Once it is established that their
        depositions do not suffer from material contradictions, are
        trustworthy and in consonance with the above-stated
        principles, the Court would not be justified in overlooking
E       such valuable piece of evidence.

       17. In light of the above principles and the evidence noticed
  supra, we have no doubt in our mind that the statements of PWs
  were reliable and trustworthy, as they were fully corroborated
F by other prosecution, documentary and ocular evidence. The
  learned counsel appearing for the appellants contended that
  there are material variations and contradictions in the statement
  of PW3 and PW6 respectively with regard to the time of
  incident as well as death of the deceased. Therefore, neither
G these witnesses can be relied upon nor can prosecution be
  said to have proved its case beyond reasonable doubt. Such
  a submission can only be noticed to be rejected.

      18. PW3 had mentioned that she came to know about the
  death of her daughter at about 9.30 p.m., however, according
H to PW6, it was about 8 or 9 o'clock when she was informed of
      SAHABUDDIN & ANR. v. STATE OF ASSAM                      1083
            [SWATANTER KUMAR, J.]

the death of her sister. This would hardly be a contradiction. It       A
is a plausible fact that there could be some variations in the
statements of witnesses with respect to a particular incident.
Thus, in the facts and circumstances of the present case, a
mere variation in time is not a material contradiction. It was
the uncle of the deceased, PW7, who had been informed by                B
the co-accused, the brother-in-law of the deceased, firstly about
the sickness of the deceased and then about her death.

       19. Every variation or immaterial contradiction cannot
 provide advantage to the accused.                In the facts and
 circumstances of the present case, variation of 45 minutes or          C
·an hour in giving the time of incident will not be considered fatal.
 It is a settled principle of law that while appreciating the
 evidence, the Court must examine the evidence in its entirety
 upon reading the statement of a witness as a whole, and if the
 Court finds the statement to be truthful and worthy of credence,       D
 then every variation or discrepancy particularly which is
 immaterial and does not affect the root of the case of the
 prosecution case would be of no consequences. Reference in
 this regard can be made to State represented by Inspector of
 Police v. Saravanan and Anr. [(2008) 17 SCC 587].                      E

       20. Next, it was contended that PW8 and PW9 had not
supported the case of the prosecution and, therefore, the
accused should be entitled to benefit of doubt. PW8 had
stated that just before the sunset, the deceased fell down while        F
she was fetching water from the river. She got up and ran like
a mad man. According to him, the deceased was caught by
evil spirits and was an epileptic. PW9, narrated that he heard
cries while he was working in the paddy field and when he went
to the house of the accused, he saw the deceased struggling
for life. He met the mother-in-law of the deceased and stated           G
that none else was present there. According to him, the
deceased died of epilepsy.

    21. We may notice that both these witnesses are .
neighbours of the accused and the same has also been H
   1084     SUPREME COURT REPORTS               [2012] 13 S.C.R.


A confirmed by them. They affirmed the death of the deceased
  but gave different versions as to the place and the manner in
  which she died. The statements of such witnesses would hardly
  carry any weight in face of statements of PW3 to PW7. The
  possibility of their turning hostile by virtue of them being
B neighbours of the accused cannot be ruled out.

       22. The prosecution has been able to establish various
  circumstances which complete the chain of events and such
  chain of events undoubtedly point towards the guilt of the
  accused persons. These circumstances are; the victim coming
C to her parental home and declining to go back to her
  matrimonial home, she being persuaded to go to her
  matrimonial home by her parents and within a few days
  thereafter, she dies at her in laws place. Further that she had
  various injuries on her lower abdomen and that her neck and
D face were congested and swollen.        The post mortem report
  completely corroborates the statements of PWs. Ext. 2, the
  inquest report, also fully substantiates the case of the
  prosecution. Besides this, PW3 had categorically stated that
  her daughter was not suffering from epilepsy or any other
E disease and that she died as a result of torture inflicted on her
  by the accused persons. In the cross-examination, two
  suggestions were put forth to her, one that the deceased died
  of epilepsy and secondly, that supernatural powers had seized
  her and that she could not be cured by Imam and thus, died,
F both of which were denied by her. In any case, this contradiction
  in the stand taken by the defence itself point towards the
  untruthfulness and falsity of the defence.
       23. If she was sick, as affirmed by her in laws, then why
  was she not taken to any doctor or a hospital by the accused
G persons. She admittedly did not die of any heart attack or
  haemorrhage. She died in the house of the appellants and
  therefore, it was expected of the appellants to furnish some
  explanation in their statement under Section 313 CrPC as to
  the exact cause of her death. Unfortunately, except barely
H
     SAHABUDDIN & ANR. v. STATE OF ASSAM                     1085
           [SWATANTER KUMAR, J.]

taking the plea of alibi, accused persons chose not to bring the     A
truth before the Court i.e. the circumstances leading to the
death of the deceased.
      24. The plea of alibi was taken by the appellants and was
sought to be proved by the statement of defence witnesses,
                                                                     8
DW1, DW2 and DW3 respectively. These witnesses have
rightly been disbelieved by the Trial Court as well as by the
High Court. We also find no merit in the plea of alibi as it is
just an excuse which has been put forward by the accused
persons to escape the liability in law. There is a complete
contradiction in the material facts of the statement of DW1,         C
DW2 and DW3. According to the statements of DWs that
none of the family members were present on the spot is strange
in light of the fact that the deceased was so ill that she died
after a short while due to her illness. If none of the accused,
whom these witnesses knew were present, then it is not only          D
doubtful but even surprising as to how they came in contact with
the deceased at the relevant time. The falsity of the evidence
of the defence is writ large in the present case. For these
reasons, we find the conduct of the accused unnatural and the
statement of these witnesses untrustworthy. The plea of alibi        E
is nothing but a falsehood.

      25. Once, the Court disbelieves the plea of alibi and the
accused does not give any explanation in his statement under
Section 313 CrPC, the Court is entitled to draw adverse              F
inference against the accused. At this stage, we may refer to
the judgment of this Court in the case of Jitender Kumar v. State
of Haryana ((2012) 6 SCC 204], where the Court while
disbelieving the plea of alibi had drawn an adverse inference
and said that this fact would support the case of the prosecution.   G
    "51. The accused in the present appeal had also taken the
    plea of alibi in addition to the defence that they were living
    in a village far away from the place of occurrence. This
    plea of alibi was found to be without any substance by the
    Trial Court and was further concurrently found to be without     H
    1086    SUPREME COURT REPORTS                [2012] 13 S.C.R.


A       any merit by the High Court also. In order to establish the
        plea of alibi these accused had examined various
        witnesses. Some documents had also been adduced to
        show that the accused Pawan Kumar and Sunil Kumar had
        gone to New Subzi Mandi near the booth of DW-1 and
B       they had taken mushroom for sale and had paid the
        charges to the market committee, etc. Referring to all
        these documents, the trial court held that none of these
        documents reflected the presence of either of these
        accused at that place. On the contrary the entire plea of
c       alibi falls to the ground in view of the statements of PW-
        10 and PW-11. The statements of these witnesses have
        been accepted by the Courts below and also the fact that
        they have no reason to falsely implicate the accused
        persons. Once, PW-10 and PW-11 are believed and their
        statements are found to be trustworthy, as rightly dealt with
D
        by the Courts below, then the plea of abili raised by the
        accused loses its significance.            The burden of
        establishing the plea of alibi lay upon the appellants and
        the appellants have failed to bring on record any such
        evidence which would, even by reasonable probability,
E       establish their plea of alibi. The plea of alibi in fact is
        required to be proved with certainty so as to completely
        exclude the possibility of the presence of the accused at
        the place of occurrence and in the house which was the
        home of their relatives. {Ref. Shaikh Sattar v. State of
F       Maharashtra [(2010) 8 SCC 430]}." •
       26. For the reasons afore-stated, we find no merit in the
  contentions raised on behalf of the appellants. Before we part
  with this file, we cannot help but to observe that the competent
G authority ought to have taken some action on the basis of the
  observations made by the Trial Court in its judgment under
  appeal.

         27. The Investigating Officer has conducted investigation
    in a suspicious manner and did not even care to send the
H
       SAHABUDDIN & ANR. v. STATE OF ASSAM                   1087
             [SWATANTER KUMAR, J.]

 viscera to the laboratory for its appropriate examination. As       A
 already noticed, in his statement, PW11 has stated that viscera
 could not be examined by the laboratory as it was not sent in
 time. There is a deliberate attempt on the part of the
 Investigating Officer to misdirect the evidence and to withhold
 the material evidence from the Court.                               B

       28. Similarly, PW1, the doctor who conducted the post
 mortem of the corpse of the deceased was expected to
 categorically state the cause of death in which he miserably
 failed. He is a doctor who is expected to perform a specialized     C
 job. His evidence is of great concern and is normally relied
 upon by the Courts. For reasons best known to him, he made
 his evidence totally vague, uncertain and indefinite. Given the
 expertise and knowledge possessed by a doctor PW1, was
 expected to state the cause of death with certainty or the most
 probable cause of death in the least. According to PW1 , the        D
 black spots noticed on the deceased may be because of
 poisoning or it could be because of suffocation, although he
 also mentioned in his report that the symptoms described
 above may occur due to epilepsy. It is not possible to imagine
 that there would be no distinction whatsoever, if such injuries     E
 were inflicted by assault or suffocation or be the result of an
 epileptic attack.

       29. In our considered view, the doctor has also failed to
  discharge his professional obligations in terms of the             F
  professional standards expected of him. He has attempted
  to misdirect the evidence before the Court and has intentionally
- made it so vague that in place of aiding the ends of justice, he
  has attempted to help the accused.

      30. In our considered view, action should be taken against     G
 both these witnesses. Before we pass any direction in this
 regard, we may refer to the judgment of this Court in Gajoo
 (supra), where the Court had directed an action against such
 kind of evidence and witnesses;
                                                                     H
    1088   SUPREME COURT REPORTS                 [2012] 13 S.C.R.


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

              "22. Now, we may advert to the duty of the Court in
              such cases. In the case of Sathi Prasad v. The
              State of U.P. [(1972) 3 SCC 613], this Court stated
              that it is well settled that if the police records
c             become suspect and investigation perfunctory, it
              becomes the duty of the Court to see if the
              evidence given in Court should be relied upon and
              such lapses ignored. Noticing the possibility of
              investigation being designedly defective, this Court
D             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
E             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."

F                                             (Emphasis supplied)
       23. Dealing with the cases of omission and commission,
       the Court in the case of Paras Yadav v. State of Bihar [AIR
       1999 SC 644], enunciated the principle, in conformity with
       the previous judgments, that if the lapse or omission is
G      committed by the investigating agency, negligently or
       otherwise, the prosecution evidence is required to be
       examined de hors such omissions to find out whether the
       said evidence is reliable or not. The contaminated conduct
       of officials should not stand in the way of evaluating the
H      evidence by the courts, otherwise the designed mischief
SAHABUDDIN & ANR. v. STATE OF ASSAM                    1089
      [SWATANTER KUMAR, J.]
would be perpetuated and justice would be denied to the         A
complainant party. In the case of Zahira Habibullah
Sheikh & Anr. Vs. State of Gujarat & Ors. [(2006) 3 SCC
374], the Court noticed the importance of the role of
witnesses in a criminal trial. The importance and primacy
of the quality of trial process can be observed from the        B
words of Bentham, who states that witnesses are the eyes
and ears of justice. The Court issued a caution that in such
situations, there is a greater responsibility of the court on
the one hand and on the other the courts must seriously
deal with persons who are involved in creating designed         c
investigation. The Court held that legislative measures to
emphasize prohibition against tampering with witness,
victim or informant have become the imminent and
inevitable need of the day. Conducts which illegitimately
affect the presentation of evidence in proceedings before
                                                                0
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 contrarv. 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)
                                                                F
24. With the passage of time, the law also developed and
the dictum of the Court emphasized that in a criminal case,
the fate of proceedings cannot always be left entirely in the
hands of the parties. Crime is a public wrong, in breach
and violation of public rights and duties, which affects the    G
community as a whole and is harmful to the society in
general.

27. In Ram Bali v. State of Uttar Pradesh [(2004) 10 SCC
598], the judgment in Kamel Singh v. State of M.P. [(1995)      H
    1090   SUPREME COURT REPORTS                 (2012] 13 S.C.R.


A      5 SCC 518] was reiterated and this Court had observed
       that 'in case of defective investigation the court has to be
       circumspect while evaluating the evidence. But it would not
       be right in acquitting an accused person solely on account
       of the defect; to do so would tantamount to playing into the
B      hands of the investigation officer if the investigation is
       designedly defective'.

       28. Where our criminal justice system provides safeguards
       of fair trial and innocent till proven guilty to an accused,
       there it also contemplates that a criminal trial is meant for
c      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
D      are public duties of the judge. During the course of the
       trial, the learned Presiding Judge is expected to work
       objectively and in a correct perspective. Where the
       prosecution attempts to misdirect the trial on the basis of
       a perfunctory or designedly defective investigation, there
E      the Court is to be deeply cautious and ensure that despite
       such an attempt, the determinative process is not sub-
       served. For truly attaining this object of a 'fair trial', the
       Court should leave no stone unturned to do justice and
       protect the interest of the society as well.
F
       29. This brings us to an ancillary issue as to how the Court
       would appreciate the evidence in such cases. The
       possibility of some variations in the exhibits, medical and
       ocular evidence cannot be ruled out. But it is not that every
       minor variation or inconsistency would tilt the balance of
G
       justice in favour the accused. Of course, where
       contradictions and variations are of a serious nature, which
       apparently or impliedly are destructive of the substantive
       case sought to be proved by the prosecution, they may
       provide an advantage to the accused. The Courts,
H
SAHABUDDIN & ANR. v. STATE OF ASSAM                      1091
      [SWATANTER KUMAR, J.]
normally, look at expert evidence with a greater sense of         A
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        B
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        c
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              D
possibilities may not be accepted as conclusive. The
expert witness is expected to put before the Court all
materials inclusive of the data which induced him to come
to the conclusion and enlighten the court on the technical
aspect of the case by examining the terms of science, so          E
that the court, although not an expert, may form its own
judgment on those materials after giving due regard to the
expert's opinion, because once the expert opinion is
accepted, it is not the opinion of the medical officer but
that of the Court. {Plz. See Madan Gopa/ Kakad v. Naval           F
Dubey & Anr. ((1992) 2 SCR 921: (1992) 3 SCC 204)}."
''The present case, when examined in light of the above
principles, makes it clear that the defect in the investigation
or omission on the part of the investigation officer cannot       G
prove to be of any advantage to the accused. No doubt
the investigating officer ought to have obtained serologist's
report both in respect of Ext. 2 and Ext. 5 and matched it
with the blood group of the deceased. This is a definite
lapse on the part of the investigating officer which cannot       H
    1092     SUPREME COURT REPORTS                 [2012] 13 S.C.R.


A       be overlooked by the Court, despite the fact that it finds
        no merit in the contention of the accused.

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

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

        31. In view of the above settled position of law, we hereby
  direct the Director General of Police, State of Assam and
  Director General of Health Services, State of Assam to take
  disciplinary action against PW1 and PW11, whether they are
E in service or have since retired. If not in service, action shall
  be taken against them for deduction/stoppage of pension in
  accordance with the service rules. However, the plea of
  limitation, if any under the relevant rules would not operate, as
  the departmental inquiry shall be conducted in furtherance to
F the order of this Court.

         32. The appeal is dismissed, however with the above
    directions.
    K.K.T.                                       Appeal dismissed.