# DAYAL SINGH & ORS v. STATE OF UTTARANCHAL

- **Citation:** [2012] 10 S.C.R. 157
- **Court:** Supreme Court of India
- **Decided:** 2012-08-03
- **Case number:** Criminal Appeal No. 529 of 2010
- **Bench:** Swatanter Kumar, Fakkir Mohamed Ibrahim Kalifulla
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/dayal-singh-ors-v-state-of-uttaranchal-27940
- **Pages:** 47

## Headnote

A
B
Cnminal Trial - Defective/imprope·r investigation -
Dereliction of duty and acts of omission - By PW6, the
C
Investigating officer (SI) and PW3, the government medical
officer, who prepared the post mortem report - Held: In the
case at hand where one person had died allegedly due to
sustained lathi blows, the report prepared by PW3 was a
deliberate attempt to disguise the investigation - PW3 created
D
a serious doubt as to the very cause of death of the deceased
- If PW3 was not able to record a finding with regard to the
cause of death, he was expected to record some reason in
support thereof, particularly when it was not a case of death
by administering poison - PW3 not only breached the
E
requirement of adherence to professional standards but also
became instrumental in preparing a document which, ex facie,
was incorrect and stood falsified by the unimpeachable
evidence of eye witnesses placed by the prosecution on
record - PW3's report was also in conflict with the statement
F
of PW6 and the inquest report prepared by him - Similarly,
PW6 also failed in performing his duty in accordance with law
- Firstly, for not recording the reasons given by PW3 for non- ·
mentioning of injuries on the post mortem report, which had
appeared satisfactory to him - Secondly, for not sending to
G
the FSL the viscera and other samples collected from the
body of the deceased by PW3 who allegedly handed over the
same to the police, and their disappearance - There was clear
callousness and irresponsibility on the part of PWs 3 and 6
157
H
158
SUPREME COURT REPORTS
[2012] 10 S.C.R.
A - The lapses on their part were a deliberate attempt to prepare
reports and documents in a designedly defective manner to
misdirect the investigation to favour the accused - Directions
issued to authorities concerned to take disciplinary or other
action against PW3 and PW6, irrespective of the fact whether
B they were in service or had since retired - Penal Code, 1860
- s.302 rlw s.34 and s.323 rlw s.34.
Criminal Trial - Defective/improper investigation - Effect
of - Held: Merely because in the murder trial in issue, the
Investigating Officer (PW3) and the Government Medical
C Officer (PW6) failed to perform their duties in accordance with
the requirements of law, and there was some defect in the
investigation, it will not be to the benefit of the accusedappel/ants to the extent that they would be entitled to an order
of acquittal on this ground - Despite acts of default/omission
D on the part of PWs 3 and 6, the prosecution proved its case
beyond reasonable doubt - The lower courts rightly ignored
the deliberate lapses of PWs 3 and 6 -
The consistent
statement of the eye-witnesses which were fully supported and
corroborated by other witnesses, and the investigation of the
E crime, including recovery of lathis, inquest report, recovery of
the pagri of one of the accused from the place of occurrence,
immediate lodging of FIR and the deceased succumbing to
his injuries within a very short time, established the case of
F
the prosecution beyond reasonable doubt.
Criminal Trial - Investigation - Professional standards
- Held: Police officers and doctors, by their profession, are
required to maintain duty decorum of high standards.
Criminal Trial - Fair trial - Duty of the Court - Held: The
G Courts do not merely discharge the function to ensure that no
innocent man is punished, but also that a guilty man does
not escape - Both are public duties of the judge - During the
course of the trial, the Presiding Judge is expected to work
objectively and in a correct perspective -
Where the
H
DAYAL SINGH & ORS. v. STATE OF UTTARANCHAL 159
prosecution attempts to misdirect the trial on the basis of a
A
perfunctory or designedly defective investigation, the Court is
to be deeply cautious and ensure that despite such an
attempt, the determinative process is not sub-served.
Penal Code, 1860 - s. 302 rlw s. 34 - Four persons armed
with lath is went to the fields of the deceased -

## Text

_Characters 0–39,817 of 92,148. This is a partial read: ask again with offset=39817 for what follows._

[2012] 10 S.C.R. 157
DAYAL SINGH & ORS.
v.
STATE OF UTTARANCHAL
(Criminal Appeal No. 529 of 2010)
AUGUST 3, 2012
[SWATANTER KUMAR AND FAKKIR MOHAMED
IBRAHIM KALIFULLA, JJ.]
A
B
Cnminal Trial - Defective/imprope·r investigation -
Dereliction of duty and acts of omission - By PW6, the
C
Investigating officer (SI) and PW3, the government medical
officer, who prepared the post mortem report - Held: In the
case at hand where one person had died allegedly due to
sustained lathi blows, the report prepared by PW3 was a
deliberate attempt to disguise the investigation - PW3 created
D
a serious doubt as to the very cause of death of the deceased
- If PW3 was not able to record a finding with regard to the
cause of death, he was expected to record some reason in
support thereof, particularly when it was not a case of death
by administering poison - PW3 not only breached the
E
requirement of adherence to professional standards but also
became instrumental in preparing a document which, ex facie,
was incorrect and stood falsified by the unimpeachable
evidence of eye witnesses placed by the prosecution on
record - PW3's report was also in conflict with the statement
F
of PW6 and the inquest report prepared by him - Similarly,
PW6 also failed in performing his duty in accordance with law
- Firstly, for not recording the reasons given by PW3 for non- ·
mentioning of injuries on the post mortem report, which had
appeared satisfactory to him - Secondly, for not sending to
G
the FSL the viscera and other samples collected from the
body of the deceased by PW3 who allegedly handed over the
same to the police, and their disappearance - There was clear
callousness and irresponsibility on the part of PWs 3 and 6
157
H
158
SUPREME COURT REPORTS
[2012] 10 S.C.R.
A - The lapses on their part were a deliberate attempt to prepare
reports and documents in a designedly defective manner to
misdirect the investigation to favour the accused - Directions
issued to authorities concerned to take disciplinary or other
action against PW3 and PW6, irrespective of the fact whether
B they were in service or had since retired - Penal Code, 1860
- s.302 rlw s.34 and s.323 rlw s.34.
Criminal Trial - Defective/improper investigation - Effect
of - Held: Merely because in the murder trial in issue, the
Investigating Officer (PW3) and the Government Medical
C Officer (PW6) failed to perform their duties in accordance with
the requirements of law, and there was some defect in the
investigation, it will not be to the benefit of the accusedappel/ants to the extent that they would be entitled to an order
of acquittal on this ground - Despite acts of default/omission
D on the part of PWs 3 and 6, the prosecution proved its case
beyond reasonable doubt - The lower courts rightly ignored
the deliberate lapses of PWs 3 and 6 -
The consistent
statement of the eye-witnesses which were fully supported and
corroborated by other witnesses, and the investigation of the
E crime, including recovery of lathis, inquest report, recovery of
the pagri of one of the accused from the place of occurrence,
immediate lodging of FIR and the deceased succumbing to
his injuries within a very short time, established the case of
F
the prosecution beyond reasonable doubt.
Criminal Trial - Investigation - Professional standards
- Held: Police officers and doctors, by their profession, are
required to maintain duty decorum of high standards.
Criminal Trial - Fair trial - Duty of the Court - Held: The
G Courts do not merely discharge the function to ensure that no
innocent man is punished, but also that a guilty man does
not escape - Both are public duties of the judge - During the
course of the trial, the Presiding Judge is expected to work
objectively and in a correct perspective -
Where the
H
DAYAL SINGH & ORS. v. STATE OF UTTARANCHAL 159
prosecution attempts to misdirect the trial on the basis of a
A
perfunctory or designedly defective investigation, the Court is
to be deeply cautious and ensure that despite such an
attempt, the determinative process is not sub-served.
Penal Code, 1860 - s. 302 rlw s. 34 - Four persons armed
with lath is went to the fields of the deceased - They first hurled
8
abuses at him and without any provocation started assaulting
him with the lathis they were carrying - Despite efforts to stop
them by the wife and son of the deceased, they did not stop
and assaulted them also - Thereupon, they kept on assaulting
the deceased until he feJI down dead on the ground -
C
Conviction of accused-appellants uls.302 - Justification of -
Held: Justified - Three injuries were noticed on the body of
the deceased including a protuberant injury on the head,
which presumably resulted in his death -
The accused
persons had gone together armed with lathis with a common
D
intention to kill the deceased and they brought their intention
into effect by simultaneously assaulting the deceased - They
had no provocation - Thus, the intention to kill is apparent -
It is not a case which would squarely fall under Part JI of s.304.
Evidence - Medical evidence - Contradictions between
medical and ocular evidence - Effect - Held: It is not that
every minor variation or inconsistency would tilt the balance
E
of justice in favour the accused - But where contradictions and
variations are of a serious nature, which apparently or F
impliedly are destructive of the substantive case sought to be
proved by the prosecution, they may provide an advantage
to the accused - Where the eye witness account is found
credible and trustworthy, medical opinion pointing to
alternative possibilities may not be accepted as conclusive.
Evidence - Expert evidence -
Value of - Held: The
Courts, normally, look at expert evidence with a greater sense
of acceptability, but are not absolutely guided by the report
of the experts, especially if such reports are perfunctory,
G
H
160
SUPREME COURT REPORTS
[2012] 10 S.C.R.
A unsustainable and are the result of a deliberate attempt to
misdirect the prosecution - The expert witness is expected
to put before the Court all materials inclusive of the data which
induced him to come to the conclusion and enlighten the
court on the technical aspect of the case by examining the
8 terms of science, so that the court, although not an expert,
may form its own judgment on those materials after giving due
regard to the expert's opinion, because once the expert
opinion is accepted, it is not the opinion of the expert but that
of the Court - The Court is expected to analyse the report,
C read it in conjunction with the other evidence on record and
then form its final opinion as to whether such report is worthy
of reliance or not.
Witnesses - Interested witness - Testimony of - Held:
An eye-witness version cannot be discarded by the Court
D merely on the ground that such eye-witness happened to be
a relation or friend of the deceased - Where the presence of
the eye-witnesses is proved to be natural and their statements
are nothing but truthful disclosure of actual facts leading to
the occurrence and the occurrence itself, it will not be
E permissible for the Court to discard the statements of such
related or friendly witness.
Words and Phrases -
"dereliction of duty" and
"misconduct" - Difference between - Explained - Held:
Dereliction of duty or carelessness is an abuse of discretion
F under a definite law and misconduct is a violation of indefinite
law - Misconduct is a forbidden act whereas dereliction of duty
is the forbidden quality of an act and is necessarily indefinite
- One is a transgression of some established and definite rule
of action, with least element of discretion, while the other is
G primarily an abuse of discretion - Service Law.
The prosecution case was that the four accusedappellants armed with lathis went to the fields of the
deceased 'P', hurled abuses at him and thereafter started
H assaulting him with the lathis they were carrying and that
DAYAL SINGH & ORS. v. STATE OF UTTARANCHAL 161
· when the son and wife of 'P' (PW2 and PW4 respectively)
A
intervened to protect 'P', they too were assaulted with the
Jathis. It was alleged that PWS and one other person saw
the occurrence and when they challenged the accusedappellants, the latter ran away. 'P' died on the spot while
PW2 and PW4 received injuries.
B
The trial court ignored the pu"rported acts of default
and omission by PW3 (the government medical officer
who conducted post-mortem) and PW6 (the Investigating
Officer- SI) and the apparent conflict in the eye-witness
C
version of the evidence and the medical evidence, and
convicted the appellants under Section 302 r/w Section
34 IPC as well as under Section 323 r/w Section 34 IPC
by placing reliance upon the evidence of the prosecution
eye-witnesses and other corroborative evidence. The
conviction was confirmed by the High Court.
D
In the instant appeal, the following questions arose
for consideration- (1) Where acts of omission and
commission, deliberate or otherwise, are committed by
the investigating agency or other significant witnesses
E
instrumental in proving the offence, what approach, in
appreciation of evidence, should be adopted; (2)
Depending upon the answer to the above, what
directions should be issued by the courts of competent
jurisdiction and (3) Whenever there is some conflict in the
F
eye~witness version of events and the medical evidence,
what effect will it have on the case of the prosecution and
what would be the manner in which the Court should
appreciate such evidence.
Dismissing the appeal both on merits and also on the
G
quantum of sentence, the Court
HELD:1.1. In the instant case, there were three eyewitnesses to the occurrence. Out of them, two were
injured witnesses, namely PW2 and PW4. PW2 is the son
H
162
SUPREME COURT REPORTS
[2012] 10 S.C.R.
A of the deceased 'P' and PW4 is the wife. Presence of
these two witnesses at the place of occurrence is normal
and natural. The presence of PW2, PW4 and PW5 cannot
be doubted. The statement made by them in the Court is
natural, reliable and does not suffer from any serious
B contradictions. Once the presence of eye-witnesses
cannot be doubted and it has been established that their
statement is reliable, there is no reason for the Court to
not rely upon the statement of such eye witnesses in
accepting the case of the prosecution. The accused
c persons had come with pre-meditated mind, together
with common intention, to assault the deceased and all
of them kept on assaulting the deceased till the time he
fell on the ground and became breathless. [Para 9] [180A-B, E-G]
D
1.2. An eye-witness version cannot be discarded by
the Court merely on the ground that such eye-witness
happened to be a relation or friend of the deceased. The
concept of interested witness essentially must carry with
it the element of unfairness and undue intention to falsely
E implicate the accused. It is only when these elements are
present, and statement of the witness is unworthy of
credence that the Court would examine the possibility of
discarding such statements. But Where the presence of
the eye-witnesses is proved to be natural and their
F statements are nothing but truthful disclosure of actual
facts leading to the occurrence and the occurrence itself,
it will not be permissible for the Co\lrt to discard the
statements of such related or friendly witness. [Para 10]
[180-H; 181-A-C]
G
1.3. The plea that in the face of the expert medical
evidence that no external or internal injuries were found
on the body of the deceased, the statement of the eyewitnesses cannot be believed and tbe accused persons
are entitled to acquittal, is liable to be rejected. No doubt
H the post mortem report (Exhibit Ka-4) and the statement
DAYAL SINGH & ORS. v. STATE OF UTIARANCHAL 163
of PW3 does show/reflect that he had not noticed any
A
injuries upon the person of the deceased externally or
even after opening him up internally, but the fact of the
matter is that the father of PW2 had died. How he suffered
death is explained by three witnesses, PW2, PW4 and
PW5, respectively. Besides this, the statement of the
B
investigating officer, PWS, also clearly shows that the
body of the deceased contained three apparent injuries.
He recorded in his investigative proceedings that the
accused had died of these injuries and was found lying
dead at the place of occurrence. It is not only the c
statement of PW-6, but also the Panchas in whose
presence the body was recovered, who have endorsed
this fact. The course of events as recorded in the
investigation points more towards the correctness of the
case of the prosecution than otherwise. [Para 12] [1830
B-F]
1.4. Merely because PW3 and PW6 have failed to
perform their duties in accordance with the requirements
of law, and there has been some defect in the
investigation, it will not be to the benefit of the accused
E
persons to the extent that they would be entitled to an
order of acquittal on this ground. [Para 13] [183-H; 184A-B]
Dhamidhar v. State of Uttar Pradesh (2010) 7 SCC 759:
F
2010 (8) SCR 173; Mano Dutt & Anr. v. State of UP (2012
(3) SCALE 219; Satbir Singh & Ors. v. State of UttarPradesh
(2009) 13 SCC 790: 2009 (3) SCR 406 and C. Muniappan
v. State of Tamil Nadu AIR 2010 SC 3718 : (2010) 9 sec
567: 2010 (10 ) SCR 262 - relied on.
G
2.1.The Investigating Officer, as well as. the doctor
who are dealing with the investigation of a criminal case,
are obliged to act in accordance with the police manual
and the known canons of medical practice, respectively.
They are both obliged to be diligent, truthful and fair in
H
164
SUPREME COURT REPORTS
[2012] 10 S.C.R.
A their approach and investigation. A default or breach of
duty, intentionally or otherwise, can sometimes prove
fatal to the case of the prosecution. An Investigating
Officer is completely responsible and answerable for the
manner and methodology adopted in completing his
B investigation. Where the default and omission is .so
flagrant that it speaks volumes of a deliberate act or such
irresponsible attitude of investigation, no court can afford
to overlook it, whether it did or did not cause prejudice
to the case of the prosecution. It is possible that despite
c such default/omission, the prosecution may still prove its
case beyond reasonable doubt and the court can so
return its finding. But, at the same time, the default and
omission would have a reasonable chance of defeating
the case of the prosecution in some events and the guilty
0 could go scot-free. [Para 16] [185-B-E]
2.2. The present case is a glaring example of
irresponsible investigation. It, in fact, smacks of
intentional mischief to misdirect the investigation as well
as to withhold material evidence from the Court. It cannot
E be considered a case of bona fide or unintentional
omission or commission. It is not a case of faulty
investigation simplicitor but is an investigation coloured
with motivation or an attempt to ensure that the suspect
F
can go scot free. [Para 17] [186-A-B]
2.3. PW3 certainly did not act with the requisite
professionalism. He even failed to truthfully record the
post mortem report, Exhibit Ka-4. His report is
contradictory to the evidence of the three eye-witnesses
G who stood the test of cross-examination and gave the
eye-version of the occurrence. It is also in conflict with
the statement of PW6 as well as the inquest report (Exhibit
Ka-6) prepared by him where he had noticed that there
were three injuries on the body of the deceased. It is clear
H that the post mortem report is silent and PW3 did not even
I
DAYAL SINGH & ORS. v. STATE OF UTIARANCHAL 165
notice the cause of death. If he was not able to record a A
finding with regard to the cause of death, he was
expected to record some reason in support thereof,
particularly when it was not a case of death by
administering poison. Similarly, the Investigating Officer
has also failed in performing his duty in accordance with
B
law. Firstly, for not recording the reasons given by PW3
for non-mentioning of injuries on the post mortem report,
Exhibit Ka-4, which had appeared satisfactory to him.
Secondly, for not sending to the FSL the viscera and
other samples collected from the body of the deceased c
by PW3 who allegedly handed over the same to the
police, and their disappearance. There is clear
callousness and irresponsibility on their part and
deliberate attempt to misdirect the investigation to favour
the accused. This results in shifting of avoidable burden
0
and exercise of higher degree of caution and care on the
courts. [Paras 19, 20, 21) [188-F-H; 189-A-D]
2.5. Dereliction of duty or carelessness is an abuse
of discretion uoder a definite law and misconduct is a
violation of indefinite law. Misconduct is a forbidden act
E
whereas dereliction of duty is the forbidden quality of an
act and is necessarily indefinite. One is a transgression
of some established and definite rule of action, with least
element of discretion, while the other is primarily an
abuse of discretion. [Para 21) [189-D-E]
F
2.6. The police service is a disciplined service and it
requires maintenance of strict discipline. The
consequences of these defaults should normally be
attributable to negligence. Police officers and doctors, by
G
their profession, are required to maintain duty decorum
of high standards. The standards of investigation and the
prestige of the profession are dependent upon the action
of such specialized persons. The police manual and even
the provisions of the CrPC require the investigation to be
H
166
SUPREME COURT REPORTS
(2012] 10 S.C.R.
A conducted in a particular manner and method which
stands clearly violated in the present case. PW3 not only
breached the requirement of adherence to professional
standards but also became instrumental in preparing a
document which, ex facie, was incorrect and stood
B falsified by the unimpeachable evidence of eye witnesses
placed by the prosecution on record. [Para 21) [189-F-H;
190-A-B]
2.7. In a criminal case, the fate of proceedings cannot
always be left entirely in the hands of the parties. Crime
C is a public wrong, in breach and violation of public rights
and duties, which affects the community as a whole and
is harmful to the society in general. [Para 24) [191-F-G]
2.8. Where our criminal justice system provides
D safeguards of fair trial and innocent till proven guilty to
an accused, there it also contemplates that a criminal trial
is meant for doing justice to all, the accused, the society
and a fair chance to prove to the prosecution. Then alone
can law and order be maintained. The Courts do not
E merely discharge the function to ensure that no innocent
man is punished, but also that a guilty man does not
escape. Both are public duties of the judge. During the
course of the trial, the Presiding Judge is expected to
work objectively and in a correct perspective. Where the
F prosecution attempts to misdirect the trial on the basis
of a perfunctory or designedly defective investigation,
there the Court is to be deeply cautious and ensure that
despite such an attempt, the determinative process is not
sub-served. For truly attaining this object of a 'fair trial',
G the Court should leave no stone unturned to do justice
and protect the interest of the society as well. [Para 28)
[193-G-H; 194-A-B]
State of Punjab & Ors. v. Ram Singh Ex. Constable
(1992) 4 SCC 54: 1992 (3) SCR 634; Ram Bihari Yadav and
H Others v. State of Bihar & Ors. (1995) 6 SCC 31: 1995 (3)
DAYAL SINGH & ORS. v. STATE OF UTTARANCHA~ 167
Suppl. SCR 197; Sathi Prasad v. The State of UP. (1972) 3
A
SCC 613; Dhanaj Singh @ Shera & Ors. v. State of Punjab
(2004) 3 SCC 654: 2004 (2) SCR 938; Paras Yadav v. State
of Bihar AIR 1999 SC 644: 1999 (1) SCR 55; Zahira
Habibullah Sheikh & Anr. v. St.ate of Gujarat & Ors. (2006) 3
SCC 374: 2006 (2) SCR 494; National Human Rights
B
Commission v. State of Gujarat (2009) 6 SCC 767: 2009 (7)
SCR 236; State of Karnataka v. K. Yarappa Reddy 2000 SCC
(Crl.) 61; Ram Bali v. State of Uttar Pradesh (2004) 10 SCC
598: 2004 (1) Suppl. SCR 195 and Kamel Singh v. State of
M.P. (1995) 5 sec 518: 1995 (2) Suppl. SCR 629 - relied c
on.
3.1. The possibility of some variations in the exhibits,
medical and ocular evidence cannot be ruled out. But it
is not that every minor variation or inconsistency would
tilt the balance of justice in favour the accused. Of course,
D
where contradictions and variations are of a serious
nature, which apparently or impliedly are destructive of
the substantive case sought to be proved by the
prosecution, they may provide an advantage to the
accused. The Courts, normally, look at expert evidence
E
with a greater sense of acceptability, but it is equally true
that the courts are not absolutely guided by the report of
the experts, especially if such reports are perfunctory,
unsustainable and are the result of a deliberate attempt
to misdirect the prosecution. [Para 29] [194-C-E]
F
3.2. Where the eye witness account is found credible
and trustworthy, medical opinion pointing to alternative
possibilities may not be accepted as conclusive. The
expert witness is expected to put before the Court all
materials inclusive of the data which induced him to G
come to the conclusion and enlighten the court on the
technical aspect of the case by examining the terms of
science, so that the court, although not an expert, may
form its own judgment on those materials after giving due
H
regard to the expert's opinion, because once the expert
168
SUPREME COURT REPORTS
[2012] 10 S.C.R.
A opinion is accepted, it is not the opinion of the medical
officer but that of the Court. The purpose of an expert
opinion is primarily to assist the Court in arriving at a final
conclusion. Such report is not binding upon the Court.
The Court is expected to analyse the report,. read it in
8 conjunction with the other evidence on record and then
form its final opinion as to whether such report is-worthy
of reliance or not. [Paras 30, 34] [194-G-H; 195-A-B; 198F-G]
3.3. The skill and experience of an expert is the ethos
C of his opinion, which itself should be reasoned and
convincing. Not to say that no other view would be
possible, but if the view of the expert has to find due
weightage in the mind of the Court, it has to be well
authored and convincing. PW3 was expected t prepare
D the post mortem report with appropriate reasoning and
not leave everything to the imagination of the Court. He
created a serious doubt as to the very cause of death of
the deceased. His report apparently shows an absence
of skill and experience and was, in fact, a deliberate
E attempt to disguise the investigation. [Para 33] [198-D-F]
3.4. A complete contradiction or inconsistency
between the medical evidence and the. ocular evidence
on the one hand and the statement of the prosecution
F witnesses between themselves on the other, may result
in seriously denting the case of the prosecution in its
entirety but not otherwise. [Para 34] [199-C-D]
Kamaljit Singh v. State ()f Punjab 2004 Cri.LJ 28 and
Madan Gopal Kakad v. Naval Dubey & Anr. (1992) 2 SCR
G 921: (1992) 3 sec 204: 1992 (2) SCR 921 - relied on.
Forensic Science in Criminal Investigation & Trial (Fourth
Edition) by B.R. Sharma and 'The New Wigmore A Treatise
on Evidence - Expert Evidence' (2004 Edition) by David H.
H Kaye - referred to.
DAYAL SINGH & ORS. v. STATE OF UTTARANCHAL 169
4.1. In the case at hand, the trial court has rightly
A
ignored the deliberate lapses of the investigating officer
as well as the p"ost mortem report prepared by PW3. The
consistent statement of the eye-witnesses which were
fully supported and corroborated by other witnesses,
and the investigation of the crime, including recovery of B
lathis, inquest report, recovery of the pagri of one of the
accused from the place of occurrence, immediate
lodging of FIR and the deceased succumbing to his
injuries within a very short time, establish the case of the
prosecution beyond reasonable doubt. These lapses on c
the part of PW3 and PW6 are a deliberate attempt on their
part to prepare reports and documents in a designedly
defective manner which would have prejudiced the case
of the prosecution and resulted in the acquittal of the
accused, but for the correct approach of the trial court
0
to do justice and ensure that the guilty did not go scotfree. The evidence of the eye-witness which was reliable
and worthy of credence has justifiably been relied upon
by the court. [Para 35) [199-E-H]
4.2. Despite clear observations of the trial court, no
E
action has been taken by the Director General, Medical
Health, Uttar Pradesh. There is no justification for these
lapses on the part of the higher authority. Thus, it is a fit
case where this Court should issue notice to show cause
why action in accordance with the provisions of the
F
Contempt of Courts Act, 1971 be not initiated against him
and he be not directed to conduct an enquiry personally
and pass appropriate orders involving PW3 and if found
guilty, to impose punishment upon him including
deduction of pension. This direction was passed when
G
PW3 was in service. His retirement, therefore, will be
inconsequential to the imposing of punishment and the
limitation of period indicated in the service regulations
would not apply in face of the order of this Court.
Similarly, the Director General of Police UP/Uttarakhand
H
170
SUPREME COURT REPORTS
[2012] 10 S.C.R.
A also be issued notice to take appropriate action in
accordance with the service rules against PW6, SI,
irrespective of the fact whether he is in service or has
since retired. If retired, then authorities should take action
for withdrawal or partial deduction in the pension, and in
B accordance with law. [Paras 36, 37) [200-A-E]
5.1. From a cumulative appreciation of the evidence,
it is clear that in the case herein four persons armed with
lathis had gone to the fields of the deceased. They first
hurled abuses at him and without any provocation started
C assaulting him with the dang (lathi) that they were carrying.
Despite efforts to stop them by the the wife and son of
the deceased, PW4 and PW2, they did not stop assaulting
him and assaulted both these witnesses also. Thereupon,
they kept on assaulting the deceased until he fell down
D dead on the ground. Three injuries were noticed by the
Police on the body of the deceased including a
protuberant injury on the head, which the Court is only
left to presume has resulted in his death. In the absence
of an authentic and correct post-mortem report (Exhibit
E Ka-4), the truthfulness of the prosecution eye-witnesses
cannot be doubted. In addition thereto, the stand taken
by the a~cused that they had suffered injuries was a false
defence. Firstly, according to the doctor, CW2, it was
injuries of a firearm, while even according to the defence,
F the deceased or his son were not carrying any gun at the
time of occurrence. Secondly, they did not choose to
pursue their report with the police at the time of
investigation or even when the trial was on before the
Trial Court. The accused persons had gone to·gether
G armed with lathis with a common intention to kill the
deceased and they brought their intention into effect by
simultaneously assaulting the deceased. They had no
provocation. Thus, the intention to kill is apparent. It is
not a case which would squarely fall under Part II of
1-l Section 304 IPC. Thus, the cumulative effect of
DAYAL SINGH & ORS. v. STATE OF UTTARANCHAL 171
appreciation of evidence is that there is no merit in the A
present appeal. [Para 38] [200-G-H; 201-A-E]
5.2. The Director Generals, Health Services of UP/
Uttarakhand are hereby issued notice under the
provisions of the Contempt of Courts Act, 1971 as to why 8
appropriate action be not initiated against them for not
complying with the directions contained in the judgment
of the Trial Court. The above-said officials are hereby
directed to take disciplinary action against PW3, whether
he is in service or has since retired, for deliberate C
dereliction of duty, preparing a report which ex facie was
incorrect and was in conflict with the inquest report
(Exhibits Ka-6 and Ka-7) and statement of PW6. The bar
on limitation, if any, under the Rules will not come into
play because they were directed by the order of the trial 0
Court to do so. The action even for stoppage/reduction
in pension can appropriately be taken by the said
authorities against PW3. Director Generals of Police UP/
Uttarakhand are hereby directed to initiate, and
expeditiously complete, disciplinary proceedings against
PW6, SI whether he is in service or has since retired, for E
the acts of omission and commission, deliberate
dereliction of duty in not mentioning reasons for nondisclosure of cause of death as explained by the doctor,
not sending the viscera to the FSL and for conducting
the investigation of this case in a most callous and
F
irresponsible manner. The question of limitation, if any,
under the Rules, would not apply as it is by direction of
the Court that such enquiry shall be conducted. It is held,
declared and directed that it shall be appropriate exercise
of jurisdiction as well as ensuring just and fair G
investigation and trial that courts return a specific finding
in such cases, upon recording of reasons as to
deliberate dereliction of duty, designedly defective
investigation, intentional acts of omission and
commission prejudicial to the case of the prosecution, in
H
172
SUPREME COURT REPORTS
[2012] 10 S.C.R.
A breach of professional standards and investigative
requirements of law, during the course of the
investigation by the investigating agency, expert
witnesses and even the witnesses cited by the
prosecution. Further, the Courts would be fully justified
8 in directing the disciplinary authorities to take
appropriate disciplinary or other action in accordance
with law, whether such officer, expert or employee
witness, is in service or has since retired. [Para 39] [201F-H; 202-A-H; 203-A-B]
c
D
E
F
G
H
Case Law Reference:
2010 (8) SCR 173
(2012 (3) SCALE 219
2009 (3) SCR 406
2010 (10) SCR 262
1992 (3) SCR 634
relied on
relied on
relied on
relied on
relied on
1995 (3) Suppl. SCR 197 relied on
(1972) 3 sec 613
relied on
2004 (2) SCR 938
relied on
1999 (1) SCR 55
2006 (2) SCR 494
2009 (7) SCR 236
2000 sec (Crl.) 61
relied on
relied on
relied on
relied on
2004 (1) Suppl. SCR 195 relied on
1995 (2) Suppl. SCR 629 relied on
2004 Cri.LJ 28
1992 (2) SCR 921
relied on
relied on
Para 9
Para 11
Para 11
Para 13
Para 21
Para 21
Para 22
Para 22
Para 23
Para 23
Para 25
Para 26
Para 27
Para 27
Para 29
Para 30
DAYAL SINGH & ORS. v. STATE OF UTTARANCHAL 173
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
A
No. 529 of 2010.
From the Judgment & Order dated 17.3.2008 of the High
Court of Judicature of Uttarakhand at Nainital in Crl. Appeal No.
2050 of 2001 (Old No. 1324 of 1990.
B
Vineet Dhanda, Puneet Dhanda, J.P. Dhanda, Raj Rani
Dhanda for the Appellants.
Ratnakar Dash, Rajeev Dubey, Kamlendra Mishra, Jatinder
Kumar Bhatia, Ajai K. Bhatia for the Respondent.
c
The Judgment & Order of the Court was delivered by
SWATANTER KUMAR, J. 1. Settled canons of criminal
jurisprudence when applied in their correct perspective, give
rise to the following questions for consideration of the Court in
D
the present appeal:
(a)
Where acts of omission and commission,
deliberate or otherwise, are committed by the
investigating agency or other significant witnesses
E
instrumental in proving the offence, what approach,
in appreciation of evidence, should be adopted?
(b)
Depending upon the answer to the above, what
directions should be issued by the courts of
F
competent jurisdiction?
(c)
Whenever there is some conflict in the eye-witness
version of events and the medical evidence, what
effect will it have on the case of the prosecution and
what would be the manner in which the Court should
G
appreciate such evidence?
2. The facts giving rise to the questions in the present
appeal are that the fields of Gurumukh Singh and Dayal Singh
were adjoining in the village Salwati within the limits of Police
H
174
SUPREME COURT REPORTS
[2012] 10 S.C.R.
A Station Sittarganj, district Udham Singh Nagar. These fields
were separated by a mend (boundary mound). On 8th
December, 1985, Gurumukh Singh, the complainant, who was
examined as PW2, along with his father Pyara Singh, had gone
to their fields. At about 12 noon, Smt. Balwant Kaur, PW4, wife
B of Pyara Singh came to the fields to give meals to Pyara Singh
and their son Gurumukh Singh. At about 12.45 p.m, the accused
persons, namely, Dayal Singh, Budh Singh & Resham Singh
(both sons of Dayal Singh) and Pahalwan Singh came to the
fields wielding lathis and started hurling abuses. They asked
c Pyara Singh and Gurumukh Singh as to why they were placing
earth on their mend, upon which they answered that mend was
a joint property belonging to both the parties. Without any
provocation, all the accused persons started attacking Pyara
Singh with lathis. Gurumukh Singh, PW2, at that time, was at
D a little distance from his father and Smt. Balwant Kaur, PW4,
was nearby. On seeing the occurrence, they raised an alarm
and went to rescue Pyara Singh. The accused, however, inflicted
lathi injuries on both PW2 and PW4. In the meanwhile, Satnam
Singh, who was ploughing his fields, which were quite close to
the fields of the parties and Uttam Singh (PW5) who was
E coming to his village from another village, saw the occurrence.
These two persons even challenged the accused persons upon
which the accused persons ran away from the place of
occurrence. Pyara Singh, who had been attacked by all the
accused persons with lathis fell down and succumbed to his
F injuries on the spot. Few villagers also came to the spot.
According to the prosecution, pagri (Ex.1) of one of the
accused, Budh Singh, had fallen on the spot which was
subsequently taken into custody by the Police. Gurumukh Singh,
PW2, left the dead body of his deceased father in the custody
G of the villagers and went to the police station where he got the
report, Exhibit Ka-3, scribed by Kashmir Singh in relation to the
occurrence. The report was lodged at about 2.15 p.m. on 8th
December, 1986 by PW2 in presence of SI Kartar Singh, PW6.
FIR (Exhibit Ka-4A) was registered and the investigating
H machinery was put into motion. The two injured witnesses,
DAYAL SINGH & ORS. v. STATE OF UTTARANCHAL 175
[SWATANTER KUMAR, J.]
namely, PW2 and PW4 were examined by Dr. P.C. Pande,
A
PW1, the medical officer at the Public Health Centre, Sittarganj
on the date of occurrence. At 4.00 p.m., the doctor examined
PW2 and noticed the following injuries on the person of the
injured witness vide Injury Report, Ex. Ka-1.
PW-2
B
"1.
Lacerated wound of 5 cm X 1 cm and 1 cm in
depth. Margins were lacerated. Red fresh blood
was present over wound. Wound was caused by
hard and blunt object. Wound was at the junction of
C
left parietal and occipital bone 7 cm from upper
part of left ear caused by blunt object. Advised Xray. Skull A.P. and lateral and the injury was kept
under observation.
2.
Contusion of 6 cm X 2.5 cm on left side of body 3
cm above the left ilic crest. Simple in nature caused
by hard and blunt object."
According to the Doctor, the injuries were caused by hard
and blunt object and they were fresh in duration.
On 8.12.1985 at 7.30 p.m. Dr. P.C. Pande (PW1)
examined the injuries of Smt. Balwant Kaur PW4 and found the
following injuries on her person vide injury report Ex.Ka.2:
PW-4
1.
Contusion 6 cm X 3 cm on left shoulder caused by
hard and blunt object.
D
E
F
2.
Contusion of 5 cm X 2 cm on lateral side of middle
G
of left upper arm. Bluish red in colour caused by
hard and blunt object.
3.
Contusion of 4 cm X 2 cm on left parietal bone 6
cm from left ear caused by hard and blunt object.
H
176
SUPREME COURT REPORTS
[2012] 10 S.C.R.
A
According to Dr. Pande, these injuries were caused by
B
hard and blunt object and the duration was within 12 hours and
the nature of the injuries was simple. According to Dr. Pande
the injuries of both these injured persons could have been
received on 8.12.1985 at 12.45 p.m. by lathi."
3. As noted above, according to Dr. Pande, the injuries
were caused by a hard and blunt object and duration was within
12 hours. Thereafter, SI Kartar Singh, PW6, proceeded to the
place of occurrence in village Salwati. r±_e found the dead body
of Pyara Singh lying in the fields. In thQ presence of panchas,
C including Balwant Singh, PW8, he noticed that there were three
injuries on the person of the deceased, Pyara Singh and
prepared Inquest Report vide Ex. Ka-6 recording his opinion
that the deceased died on account of the injuries found on his
body. After preparing the site plan, Ext. Ka-10, he also wrote
D a letter to the Superintendent, Civil Hospital, Haldwani for post
mortem, being Exhibit Ka-9. The dead body was taken to the
said hospital by Constable ChandrapalSingh, PW7. Dr. C.N.
Tewari, PW3, medical officer in the Civil Hospital, Haldwani,
performed the post mortem upon the body of the deceased and
E did not find any ante-mortem or post-mortem injuries on the
dead body. On internal examination, he did not find any injuries
and could not ascertain the cause C)f death. Further, he
preserved the viscera and gave the post-mortem report, Exhibit
Ka-4. After noticing that there was no injury or abnormality found
F upon external and internal examination of the dead body, the
doctor in his report recorded as under:
"Viscera in sealed jars handed over to the accompanying
Constables.
G
Jar No.1 sample preservative saline water.
Jar No.2 Pieces of stomach
Jar No.3 Pieces of liver, spleen and kidney.
H
Death occurred about one day back.
DAYAL SINGH & ORS. v. STATE OF UTTARANCHAL 177
[SWATANTER KUMAR, J.]
Cause of death could not be ascertained. Hence, viscera
A
preserved."
4. It appears from the record that the deceased's viscera,
which allegedly was handed over by doctor to the police, was
either never sent to the Forensic Science Laboratory (for short,
8
the 'FSL') for chemical examination, or if sent, the report thereof
was neither called for nor proved before the Court. In fact, this
has been left to the imagination of the Court.
5. The accused persons, at about 5.45 p.m. on the same
day, lodged a written report at the same Police Station, which
C
was received by Head Constable lnder Singh, who prepared
the check report Exhibit C-1 and made appropriate entry. The
case was registered under Section 307 of the Indian Penal
Code, 1860 (IPC) against PW2, Gurumukh Singh. Dayal Singh
was arrested in furtherance of the FIR, Exhibit Ka-4A. He was
D
also sent for medical examination and was examined by Dr.
K.P.S. Chauhan, CW2. After examining the said accused at
about 7.45 p.m., the doctor found two injuries on his person and
prepared the report (Exhibit C-4). According to Dr. Chauhan,
the injuries on the person of the accused could have been
E
received by a firearm object and injuries were fresh within six
hours.
6. The investigating officer completed the investigation and
filed charge sheet (Exhibit Ka-11) against the accused persons
on 15th January, 1986. It may be noticed that in furtherance to
Exhibit C-2, neither any case was registered nor any chargesheet was presented before the Court of competent jurisdiction.
The accused also took no steps to prove that report in Court.
They also di.d not file any private complaint.
7. Considering the ocular and other evidence produced by
the prosecution, the learned Trial Court vide its judgment of
conviction and order of sentence, both dated 29th June, 1990,
found the accused persons guilty of offences under Section 302
read with Section 34 IPC as well as under Section 323 read
F
G
H
178
SUPREME COURT REPORTS
[2012] 10 S.C.R.
A with Section 34 IPC.