Pawan @ Diggi vs State
2014 Latest Caselaw 449 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI
                                       Judgment delivered on: January 24, 2014
+      CRL.A. 1297/2010

Pawan @ Diggi                                                ..... Appellant
                              Through:      Mr. R.D.Rana, Advocate

                              versus
STATE                                                          ..... Respondent
                              Through:      Ms. Richa Kapoor, Additional
                                            Public Prosecutor for the State
                              AND

+      CRL.A.1322/2010

Pawan @ Diggi                                                ..... Appellant
                              Through:      Mr. R.D.Rana, Advocate

                              versus
STATE                                                          ..... Respondent
                              Through:      Ms. Richa Kapoor, Additional
                                            Public Prosecutor for the State

       CORAM:
       HON'BLE MR. JUSTICE KAILASH GAMBHIR
       HON'BLE MS. JUSTICE SUNITA GUPTA
                         JUDGMENT

KAILASH GAMBHIR, J

1. By this common judgment we propose to decide two criminal

appeals preferred by the same appellant, Pawan @ Diggi challenging the

common judgment dated 9th August, 2010 and order on sentence dated

12thAugust, 2010 passed by the learned Additional District Judge.

2. Crl.A. No. 1297/2010 has been preferred by the appellant to

challenge the impugned judgment whereby the appellant has been held

guilty for committing an offence punishable under Section 392 read with

Section 34 Indian Penal Code (hereinafter referred to as IPC) and Section

302 IPC read with Section 34 IPC in FIR No. 167/05 and sentenced to

imprisonment for life together with payment of fine of Rs. 5,000/- and in

default of payment of fine to further undergo simple imprisonment for a

period of 5 months under Section 302/34 IPC and rigorous imprisonment

for a period of 5 years together with a fine of Rs. 2,000/- and in default of

the same to further undergo simple imprisonment for a period of two

months under Section 392/34 IPC.

3. Challenge in criminal appeal No. 1322/2010 is the same common

judgment but concerning FIR No. 174/05 whereby the appellant has been

held guilty for committing an offence punishable under Sections 186/353

IPC and 25 Arms Act and was sentenced to undergo rigorous

imprisonment for a period of three months under section 186; rigorous

imprisonment for a period of two years under Section 353 IPC; rigorous

imprisonment for a period of two years together with a fine of Rs. 1,000/-

under Section 25, Arms Act.

4. The case of the prosecution so far FIR No. 167/2005 is concerned

is that on the intervening night of 3-4th March, 2005 SI Aditya Ranjan

(PW18) was in-charge of Police Post, Madan Pur, Khadhar who was

acting as a checking officer on night duty. When he was on patrolling,

some passer-by informed him, on the Kalandikunj road, a truck driver

was beaten by 5-6 persons on the same road near Sarita Vihar Flyover.

PW-18 sent information to PCR which was near the post and also

informed SI Hari Prakash, who was on emergency duty, on telephone.

5. SI, Hari Prakash (PW14) on receipt of information from SI Aditya

Ranjan (PW-18), immediately went to a place near Sarita Vihar Flyover

along with Ct. Rajbir where he found PCR van in which injured and

another boy namely, Naresh were sitting. He sent the injured along with

Ct. Rajbir to AIIMS Hospital. Thereafter PW-18 himself went to the spot

at Kalandikunj Road where he found truck No. HR 38G 4745. No other

person was available at the spot. Meanwhile, Ct. Hari Prakash (PW-14)

reached at the spot with DD No.29A and went to AIIMS Hospital and

collected MLC of injured, Sanjay. He sought permission from the doctor

to record the statement of injured, however the deceased was declared

unfit for statement. Then he recorded the statement of Naresh (PW-15),

the helper of the deceased, wherein he deposed that he was working as a

cleaner in the truck No. HR 38G 4745. The truck started from Nagpur

about three days back and was being driven by driver Sanjay, deceased.

At about 2 a.m. after paying toll tax at Badar Pur the truck proceeded

further. One Maruti car came in front of the truck and 3-4 boys boarded

the truck and started beating him and the driver. They drove the truck

near Sarita Vihar Flyover. The driver was having money around

Rs.7,000/-8,000/- in a black rexene bag which also contained documents

of truck, the accused persons snatched the alleged rexene bag from the

deceased and took it away. Thereafter they inflicted knife blows on the

driver and ran away in the same Maruti car. He also stated that he can

identify the boys who had snatched money and inflicted knife blows on

the person of the driver. After making endorsement on the statement,

rukka was sent to Police Station for registration of case, on the basis of

which FIR No.167/2005 was registered by HC Uday Singh (PW13).

Further investigation was handed over to SI Tikaram (PW21) who

reached the spot, prepared site plan, called the crime team, got the scene

of crime photographed, seized steel glass having blood stain, seat cover

of the conductor seat, seat cover of the back side of the driving seat

having blood stains.

6. The injured Sanjay had expired and his post-mortem was

conducted by the post-mortem Doctor of AIIMS hospital, Delhi. The

post-mortem Doctor handed over the viscera box and the blood sample of

the deceased in a gauze to constable, Kamal Raj, (PW-6), who handed

over the same to the investigating officer, SI Tika Ram. The dead body of

the deceased was identified by his brother,Pradeep and PW-4, Prithvi

Chand. The appellant in this case was apprehended from a place near

Badar Pur after information was received by PW-19, SI, Suresh Sharma,

that a person involved in the alleged incident would be coming near

Railway line NTPC for proceeding towards Gautam Puri. A raiding team

was constituted to apprehend the accused and when the police reached

near the police booth, Muslim Camp, Mohan Cooperative at about 6.00

p.m., two boys were found coming near the Railway line towards Mohan

Cooperative and the accused Pawan @ Diggi was identified by the

complainant, Naresh (PW15) and when Pawan @ Diggi was asked to

stop, he took out a country made revolver and pointed it towards the

police party and said "ruk jao nahi to goli mar dunga" (stop otherwise I

will shoot). The accused, however, was over powered as Constable, Daya

Ram who hit the accused with danda on his hand and as a result, the

country made revolver fell down from his hand and he was apprehended.

After his arrest and pursuant to his disclosure statement a black colour

bag of the deceased containing some documents, pertaining to the truck,

were recovered at the instance of the accused from the bushes on the side

of the road proceeding from Kalindi Kunj to Madan Pur, Khadhar. This

bag was of Samsonite make and the truck No. HR 38G 4745 was written

on it with paint. Pointing out memo of the place of recovery and the

seizure memo of the black bag was prepared by the IO. The appellant in

this case was charged for the offence under sections 397/392/302 read

with Section 34 IPC. To prove its case the prosecution in all examined 23

witnesses. The statement of the accused was recorded under Section 313

Cr.P.C. wherein he pleaded innocence and his false implication. The

accused had also submitted his statement in writing under Section 313

Cr.P.C. to explain the circumstances as to how he was arrested and

produced before the SHO.

7. Since, the accused assaulted the police party, causing obstruction in

the discharge of public duty, SI Suresh Sharma sent the rukka for

registration of the FIR under Sections 186/353/307 IPC and Sections

25/27 of Arms Act. On the basis of this rukka, FIR No.174/05 was

registered against the appellant. The site plan was prepared by ASI, Tej

Ram who was assigned the investigation. The country made revolver was

seized after making a rough sketch of the same. The disclosure statement

of the accused was recorded, which was handed over to Investigating

Officer of the case in FIR No.167/05, PS Badar Pur.The sanction under

Sec. 39 of Arms Act was obtained by the IO. The complaint under Sec.

195 Cr.P.C. was also filed in the court and after completing the

investigation, charge sheet was filed.

8. In this case the prosecution examined in all 13 witnesses. The

statement of the accused was recorded under Section 313 Cr.P.C. and he

took the same defence of false implication in the case. In defence, the

accused examined only one defence witness to prove that he was not

apprehended from the place near Railway Line, NTPC.

9. On behalf of the appellant arguments were addressed by Mr. R.D.

Rana, Advocate and the State was represented through Ms.Richa Kapoor,

learned APP for the State. Mr. Rana, counsel for the appellant, with all

vehemence submitted that the appellant has been falsely implicated in

both the cases and false implication of the appellant would be apparent if

the Court closely examines the entire trail of investigation in both the

FIRs. The contention raised by the counsel for the appellant was that for

no good reason complainant, Naresh was kept confined under the police

custody for two days merely for identifying the accused. Counsel for the

appellant further argued that the appellant has been facing criminal

prosecution in many petty cases of pick pocketing and chain snatching

and the police with a view to take a benefit of resolving this murder case

of a truck driver- Sanjay, falsely fixed the appellant in this case. Counsel

for the appellant further submitted that the falsity of the prosecution case

as against the appellant would also be apparent from the fact that after the

apprehension of the accused, the prosecution did not make any effort,

even worth the salt, to arrest the other accused persons who were alleged

to be in the company of the appellant at the time of the incident. Counsel

for the appellant also argued that even as per own case of the prosecution,

it was not the appellant who had inflicted the stab injuries on the person

of the deceased, yet the police failed to make any effort to apprehend the

actual perpetrator of the crime. Counsel further argued that the police

neither bothered to enquire from the appellant, the particulars of

registration of Maruti car in which all the assailants were travelling on the

intervening night nor the appellant was asked to disclose the address of

other assailants who were accompanying him in the car at the time of

commission of the crime. Counsel for the appellant further argued that the

police officials of PS Badar Pur have an old enmity against the appellant,

as the appellant had been raising voice against the highhandedness of

police officials of police station Badar Pur and Kotla Mubarak Pur for

falsely implicating him in various criminal cases and therefore in order to

wreck the vengeance and to teach the appellant a lesson, the police

officials falsely implicated the appellant in the murder case of deceased,

Sanjay. Counsel for the appellant also argued that the police with a view

to falsely implicate the appellant, had shown a recovery of a black bag

through the appellant, which was kept by the police at the time of seizure

of truck. Counsel for the appellant also argued that no public witness was

asked to join the police at the time of alleged recovery of bag at the

instance of the appellant.

10. So far as the conviction of the appellant in FIR No.174/2005 is

concerned, the counsel for the appellant also argued that the entire

version of the police, receiving a secret information regarding two

persons involved in the said incident of robbery and murder of driver-

Sanjay at Sarita Vihar and the constitution of raiding party by the

concerned SHO to apprehend them and then the appellant being identified

by the complainant, Naresh and the accused taking out a katta from his

right dub to threat the police and then ultimately the police arresting the

appellant after hitting him with a stick resulting intofall down of katta, is

a story coined by the police officials so as to show the arrest of the

appellant as genuine and legal. The actual facts as per the counsel for the

appellant which led to the arrest of the appellant were that on the date of

his apprehension, he was coming back from village, Charela, Noida along

with his mother-in-law Smt. Saroj (DW1) and when he was getting down

from the bus at Ali Gaon Bus Stand, he was caught hold by three police

officials who were accompanied by one police informer with the name,

Vinod. Counsel for the appellant further submitted that the appellant was

brought to the Police Station-Badar Pur, and was confronted to the

complainant, who was already sitting there. On being confronted to the

complainant to recognize if the appellant was the accused, complainant

said that he might be one of the accused persons. Thereafter, the

appellant was taken to another room where a person namely Sanjay was

present. After some time, the accused was severely beaten by the police

official namely Daya Ram, causing serious injuries on his right hand.

Counsel for the appellant also submitted that the appellant was taken to

the hospital and then again he was brought back to the police station after

his treatment and signatures of the appellant were forcefully taken by the

police on certain papers despite his inability in appending his signatures.

Counsel for the appellant also submitted that after his arrest, the police

also planted a katta so as to show its recovery through the appellant.

11. Ms. Richa Kapoor, learned Additional Public Prosecutor for the

State strongly refuted the contentions raised by the counsel for the

appellant. Learned APP submitted that there can be no reason to

disbelieve the independent testimony of Naresh (PW-15) whose presence

at the time of incident cannot be doubted. Learned APP further argued

that PW-15 was working as a cleaner in the truck and therefore, he was a

natural witness in whose presence the incident had taken place and

neither the defence has been able to attribute any motive against this

witness nor could it rebut his testimony and therefore the conviction of

the appellant in FIR No. 167/2010 was based entirely on the sole

testimony of PW-15. Learned Additional Public Prosecutor also argued

that the evidence of PW-15 is also corroborated by the recovery of the

black rexene bag during the disclosure statement of the accused and this

is the same bag which contained the stolen money of Rs.7-8,000/- besides

various other papers of truck. Learned APP further argued that the said

black bag had peculiar characteristics as the same carried the truck

number with white paint thereon. Learned APP also argued that the

recovery of black bag at the instance of the accused is clearly admissible

under Section 27 of the Indian Evidence Act. Learned APP further argued

that the testimony of PW-15 was also corroborated by other witnesses

including Rajesh Kapoor (PW-22) who proved on record the ownership

of the truck in question and also the employment of complainant, Naresh

(PW-15) as a cleaner and the fact that both of them were on duty on the

intervening night of 3rd-4th March, 2005. Based on these submissions,

learned APP submitted that no perversity or illegality can be found in the

impugned judgment and order on sentence passed by the learned trial

court in FIR No. 174/2005.

12. Supporting the said common judgment of the learned trial court, in

convicting the appellant in FIR No.174/2005 under Section 25, Arms Act

and Section 186/353 IPC and the sentence order dated 12.08.2010,

learned APP submitted that the appellant is a habitual offender and after

receiving a secret information about the accused, the raiding team was

constituted by the SHO so as to apprehend him from the disclosed spot.

Learned APP also submitted that the appellant was identified by Naresh

(PW-15) who was accompanying the raiding team and despite the fact

that he resisted his arrest by taking out a country made revolver, he was

timely overpowered by Constable - Daya Ram, who hit the stick on his

right hand, as a result of which the country made revolver fell from his

hand. Learned APP also argued that the said country made revolver was

seized by the police and after his arrest the said black bag was recovered

from him during his disclosure statement. Learned APP thus submitted

that the accused had obstructed government servants in discharge of their

public duties to apprehend the accused and therefore the accused has been

rightly convicted for committing an offence punishable under Sections

183/353 and under Section 25 of theArms Act.

13. Based on the aforesaid submissions, learned Additional Public

Prosecutor submitted that the findings given by the learned trial court are

cogent, correct and based on the correct appreciation of the evidence led

by the prosecution and the defence and the present appeals filed by the

appellants deserve outright dismissal.

14. We have heard learned Counsel for the parties at considerable

length and given our thoughtful consideration to the arguments advanced

by them. We have also perused the Trial Court records.

15. The criminal trial is meant for doing justice to all i.e. the accused,

the victim of the crime and the society. The conviction and acquittal of

any accused in a crime to a very large extent is dependent on the

investigation. The investigating team discharges a very onerous public

duty to carry out the investigation in every crime which they are expected

to perform with all sincerity, honesty, dedication, leaving no scope for

loop holes or gaps, before filing the charge sheet for the commencement

of trial. The duty of the investigating team is not merely to bolster a

prosecution case with such evidence as may enable the court to record the

conviction but to bring out the real unvarnished truth. Under Section 2 (h)

of Cr.P.C, investigation has been defined as "investigation includes all the

proceedings under this Code for the collection of evidence conducted by a

police officer or by any person (other than a Magistrate) who is authorised by

a Magistrate in this behalf". This definition given in the criminal procedure

code is inclusive and non-exhaustive. In the matter of H.N. Rishbud

and Inder Singh vs. State of Delhi, reported in 1955 AIR 196, the

Hon'ble Supreme Court of India exhaustively laid down the procedure of

investigation as follows:-

"When information of the commission of a cognizable offence is received or such commission is suspected, the appropriate police officer has the authority to enter on the investigation of the same (unless it appears to him that there is no sufficient ground). But where the information relates to a non- cognizable offence, he shall not investigate it without the order of a competent Magistrate. Thus it may be seen that according to the scheme of the Code, investigation is a normal preliminary to an accused being put up for trial for a cognizable offence (except when the Magistrate takes cognizance other-wise than on a police report in which case he has the power under section 202 of the Code to order investigation if he thinks fit). Therefore, it is clear that when the Legislature made the offences in the Act cognizable, prior investigation by the appropriate police officer was contemplated as the normal preliminary to the trial in respect of such offences under the Act. In order to ascertain the scope of and the reason for requiring such investigation to be conducted by an officer of high rank (except when otherwise permitted by a Magistrate), it is useful to consider what "investigation" under the Code comprises. Investigation usually starts on information relating to the commission of an offence given to an officer in charge of a police station and recorded under section 154 of the Code. If from information so received or otherwise, the officer in charge of the police station has reason to suspect the commission of an offence, he or some other subordinate officer deputed by him, has to proceed to the spot to investigate the facts and circumstances of the case and if necessary to take measures for the discovery and arrest of the offender. Thus investigation primarily consists in the ascertainment of the facts and circumstances of the case. By definition, it includes "all the proceedings under the Code for the collection of evidence conducted by a police officer". For the above purposes, the investigating officer is given the power to require before himself the attendance of any person appearing to be acquainted with the circumstances of the case. He has also the authority to examine such person orally either by himself or by a duly authorised deputy. The officer examining any person in the course of investigation may reduce his statement into writing and such writing is available, in the trial that may follow, for use in the manner provided in this behalf in section 162. Under section 155 the officer in charge of a police station has the power of making a search in any place for the seizure of anything believed to be -necessary for the purpose of the investigation. The search has to be conducted by such officer in person. A subordinate officer may be deputed by him for the purpose only for reasons to be recorded in writing if he is unable to conduct the search in person and there is no other competent officer available. The investigating officer has also the power to arrest the person or persons suspected of the commission of the offence under section 54 of the Code. A police officer making an investigation is enjoined to enter his proceedings in a diary from day-to-day. Where such investigation cannot be completed within the period of 24 hours and the accused is in custody he is enjoined also to send a copy of the entries in the diary to the Magistrate concerned. It is important to notice that where the investigation is conducted not by the

officer in charge of the police station but by a subordinate officer (by virtue of one or other of the provisions enabling him to depute such subordinate officer for any of the steps in the investigation) such subordinate officer is to report the result of the investigation to the officer in charge of the police station. If, upon the completion of the investigation it appears to the officer in charge of the police station that there is no sufficient evidence or reasonable ground, he may decide to release the suspected accused, if in custody, on his executing a bond. If, however, it appears to him that there is sufficient evidence or reasonable ground, to place the accused on trial, he is to take the necessary steps therefore under section 170 of the Code. In either case, on the completion of the investigation he has to submit a report to the Magistrate under section 173 of the Code in the prescribed form furnishing various details. Thus, under the Code investigation consists generally of the following steps:(1) Proceeding to the spot, (2) Ascertainment of the facts and circumstances of the case, (3) Discovery and arrest of the suspected offender, (4) Collection of evidence relating to the commission of the offence which may consist of (a) the examination of various persons (including the accused) and the reduction of their statements into writing, if the officer thinks fit,

(b) the search of places of seizure of things considered necessary for the investigation and to be produced at the trial, and (5) Formation of the opinion as to whether on the material collected there is a case to place the accused before a Magistrate for trial and if so taking the necessary steps for the same by the filing of a charge-sheet under section 173."

16. In the matter of Sidhartha Vashisht @ Manu Sharma vs. State

(NCT of Delhi) reported in AIR2010SC2352, the Hon'ble Supreme Court

laid down the concept of fair investigation and fair trial as follows:

"In the Indian Criminal jurisprudence, the accused is placed in a somewhat advantageous position than under different jurisprudence of some of the countries in the world. The criminal justice administration system in India places human rights and dignity for human life at a much higher pedestal. In our jurisprudence an accused is presumed to be innocent till proved guilty, the alleged accused is entitled to fairness and true investigation and fair trial and the prosecution is expected to play balanced role in the trial of a crime. The investigation should be judicious, fair, transparent and expeditious to ensure compliance to the basic rule of law. These are the fundamental canons of our criminal jurisprudence and they are quite in conformity with the constitutional mandate contained in Articles 20 and 21 of the Constitution of India. A person is entitled to be tried according to the law in force at the time of commission of offence. A person could not be punished for the same offence twice and most significantly cannot be

compelled to be a witness against himself and he cannot be deprived of his personal liberty except according to the procedure established by law. The law in relation to investigation of offences and rights of an accused, in our country, has developed with the passage of time. On the one hand, power is vested in the investigating officer to conduct the investigation freely and transparently. Even the Courts do not normally have the right to interfere in the investigation. It exclusively falls in the domain of the investigating agency. In exceptional cases the High Courts have monitored the investigation but again within a very limited scope. There, on the other a duty is cast upon the prosecutor to ensure that rights of an accused are not infringed and he gets a fair chance to put forward his defence so as to ensure that a guilty does not go scot free while an innocent is not punished. Even in the might of the State the rights of an accused cannot be undermined, he must be tried in consonance with the provisions of the constitutional mandate. The cumulative effect of this constitutional philosophy is that both the Courts and the investigating agency should operate in their own independent fields while ensuring adherence to basic rule of law. It is not only the responsibility of the investigating agency but as well that of the Courts to ensure that investigation is fair and does not in any way hamper the freedom of an individual except in accordance with law. Equally enforceable canon of criminal law is that the high responsibility lies upon the investigating agency not to conduct an investigation in tainted and unfair manner. The investigation should not prima facie be indicative of bias mind and every effort should be made to bring the guilty to law as nobody stands above law de hors his position and influence in the society. In the case of Kashmeri Dev v. Delhi Administration and Anrs. [JT 1988 (2) SC 293] it has been held that the record of investigation should not show that efforts are being made to protect and shield the guilty even where they are police officers and are alleged to have committed a barbaric offence/crime. The Courts have even declined to accept the report submitted by the investigating officer where it is glaringly unfair and offends basic canons of criminal investigation and jurisprudence. Contra veritatem lex nunquam a liquid permittit: implies a duty on the Court to accept and accord its approval only to a report which is result of faithful and fruitful investigation. The Court is not to accept the report which is contra legem but to conduct judicious and fair investigation and submit a report in accordance with Section 173 of the Code which places a burden and obligation on the State Administration. The aim of criminal justice is two- fold. Severely punishing and really or sufficiently preventing the crime. Both these objects can be achieved only by fair investigation into the commission of crime, sincerely proving the case of the prosecution before the Court and the guilty is punished in accordance with law."

17. In the matter of Jamuna Chaudhary and others vs. State of

Bihar,AIR 1974 SC 1822, the Apex Court ascribed the role of the

investigating officer to bring out the real unvarnished truth for the courts

to reach a right conclusion. Relevant para of the said judgment is referred

to as under:-

"The duty of the Investigating Officers is not merely to bolster up a prosecution case with such evidence as may enable the Court to record a conviction but to bring out the real unvarnished truth. It is apparent that the prosecution witnesses had tried to omit altogether any reference to at least the injuries of the appellant Ramanandan because there was a cross case in which such an admission could have been made use of to support the prosecution in that case. Dukhharan, however, made a very feeble and obviously untruthful attempt to account for the injuries of Ramanandan by saying that he had snatched a pharsa from one of the members of the crowd and had started swinging it around. He could not, however, state whether any one was injured by it. He even stated that he did not recognise the man from whom he had snatched the pharsa. Although he said that he knew Ramanandan from his childhood, he could not say whether all his fingers were present on the day of occurrence. It was apparent that he was trying to conceal some occurrence over the Shikmi land that morning in which the fingers of Ramanandan were chopped off. He admitted that there was a dispute between Raghubir, Jamuna, and Rajdhari which had lasted 2 1/2 to 3 years over the Shikmi land. In fact, this dispute was given as the only cause of the incident set up by the prosecution."

18. After a challan is filed, if the Court is of the opinion that the

evidence on record is sufficient to proceed against the accused, then the

Court shall take the cognizance and vice-versa. After the Court has taken

cognizance and the charges are framed against the accused, the journey of

trial commences. The sole object of every trial is to conduct a fair trial in

search of a ultimate truth viz whether the accused is an actual perpetrator

of the crime or is an innocent person. To find out the ultimate truth in a

criminal case, the court is not dependent merely on the evidence placed

on record by the police. The effect of any criminal proceedings cannot

always be left entirely in the hands of the parties as ultimately, it is the

duty of the court to leave no stone unturned to bring out the truth for

doing complete justice between the parties and to protect the interest of

the society as well. Dealing with the concept of fair trial in relation to any

criminal proceedings, the Apex Court in the case of Zahira Habibullah

Sheikh (5) and Anr. v. State of Gujarat and Ors. reported in 2006 (3)

SCC 374 held as under:-

"The complex pattern of life which is never static requires a fresher outlook and a timely and vigorous moulding of old precepts to some new conditions, ideas and ideals. If the court acts contrary to the role it is expected to play, it will be destruction of the fundamental edifice on which the justice delivery system stands. People for whose benefit the courts exist shall start doubting the efficacy of the system. Justice must be rooted in confidence; and confidence is destroyed when right-minded people go away thinking:`The Judge was biased.' (Per Lord Denning, M.R. in Metropolitan Properties Co. Ltd. v. Lannon, All ER p. 310 A.) The perception may be wrong about the Judge's bias, but the Judge concerned must be careful to see that no such impression gains ground. Judges like Caesar's wife should be above suspicion (Per Bowen, L.J. in Leeson v. General Council of Medical Education.). It was significantly said that law, to be just and fair has to be seen devoid of flaw. It has to keep the promise to justice and it cannot stay petrified and sit nonchalantly. The law should not be seen to sit by limply, while those who defy it go free and those who seek its protection lose hope (see Jennison v. Baker). Increasingly, people are believing as observed by Salmon quoted by Diogenes Laertius in Lives of the Philosophers, Laws are like spiders' webs: if some light or powerless thing falls into them, it is caught, but a bigger one can break through and get away Jonathan Swift, in his Essay on the Faculties of the Mind said in similar lines: Laws are like cobwebs, which may catch small flies, but let wasps and hornets break through. Right from the inception of the judicial system it has been accepted that discovery, vindication and establishment of truth are the main purposes underlying the existence of the courts of justice. The operative principles for a fair trial permeate the common law in both civil and criminal contexts. Application of these principles involves a delicate judicial balancing of competing interests in a criminal trial: the interests of the accused and the public and to a great extent that of the victim have to be weighed not

losing sight of the public interest involved in the prosecution of persons who commit offences."

19. Describing that a criminal trial is not like a fairy tale, the Hon'ble

Apex Court in State of Punjab vs. Jagbir Singh & Others, reported in

AIR 1973 SC 2407 has held as under:-

"A criminal trial is not like a fairy tale wherein one in free to give flight to one's imagination and phantasy. It concerns itself with the question as to whether the accused arraigned at the trial is guilty of the crime with which he is charged. Crime is an event in real life and is the product of interplay of different human emotions. In arriving at the conclusion about the guilt of the accused charged with the commission of a crime, the court has to judge the evidence by the yardstick of probabilities, its intrinsic worth and the animus of witnesses. Every case in the final analysis would have to depend upon its own facts. Although the benefit of every reasonable doubt should be given to the accused, the courts should not at the same time reject evidence which is ex facie trustworthy on grounds which are fanciful or in the nature of conjectures."

20. Laying emphasis for the courts to adopt rational, realistic and

genuine approach for administering justice in a criminal trial, the Apex

Court in the case of State of Himachal Pradesh vs. Lekh Raj &

Anr.,reported in (2000) 1 SCC 247, in the following para held as under:-

"The criminal trial cannot be equated with a mock scene from a stunt film. The legal trial is conducted to ascertain the guilt of innocence of the accused arraigned. In arriving at a conclusion about the truth, the Courts are required to adopt rational approach and judge the evidence by its intrinsic worth and the animus of the witnesses. The hyper technicalities or figment of imagination should not be allowed to divest the court of its responsibility of sifting and weighing the evidence to arrive at the conclusion regarding the existence or otherwise of a particular circumstances keeping in view the peculiar facts of each case, the social position of the victim and the accused, the larger interests of the society particularly the law and order problem and degrading values of life inherent in the prevalent system. The realities of life have to be kept in mind while appreciating the evidence for arriving at the truth. The courts are not obliged to make efforts either to give latitude to the prosecution or

loosely construe the law in favour of the accused. The traditional dogmatic hyper technical approach has to be replaced by rational, realistic and genuine approach for administering justice in a criminal trial. Criminal Jurisprudence cannot be considered to be a Utopian though but have to be considered as part and parcel of the human civilisation and the realities of life. The courts cannot ignore the erosion in values of life which is a common feature of the present system. Such erosions cannot be given a bonus in favour of those who are guilty of polluting society and the mankind."

21. In State of Karnataka vs. Yarappa Reddy,2000 SCC (Cri) 61, the

view taken by the Apex Court was that the court must have predominance

and pre-eminence in a criminal trial over the action taken by the

investigating officer and criminal justice should not be made causality for

the wrongs committed by the investigating officers in the case. The

relevant para of said judgment is reproduced as under:-

"19. But can the above finding (that the station house diary is not genuine) have any inevitable bearing on the other evidence in this case? If the other evidence, on scrutiny, is found credible and acceptable, should the Court be influenced by the machinations demonstrated by the Investigating Officer in conducting investigation or in preparing the records so unscrupulously? It can be a guiding principle that as investigation is not the solitary area for judicial scrutiny in a criminal trial, the conclusion of the Court in the case cannot be allowed to depend solely on the probity of investigation. It is well-nigh settled that even if the investigation is illegal or even suspicious the rest of the evidence must be scrutinised independently of the impact of it. Otherwise the criminal trial will plummet to the level of the investigating officers ruling the roost. The court must have predominance and pre-eminence in criminal trials over the action taken by the investigation officers. Criminal Justice should not be made a casualty for the wrongs committed by the investigating officers in the case. In other words, if the court is convinced that the testimony of a witness to the occurrence is true the court is free to act on it albeit the investigating officer's suspicious role in the case."

22. This appellant is not a new face in the criminal world as per the list

of the criminal cases in which he was found involved as per one of the

Status Report filed on record by the State. The status report dated

21.07.2013 disclose that the appellant was involved in as many as 30

cases and out of these he stands discharged in 18 cases; acquitted in 3

cases; convicted in 5 cases (which includes these two cases also) and has

compromised in 3 cases while one case is still pending. Nine of such

cases pertains to police station Badar Pur where these two FIRs were also

lodged. We have also been apprised that this appellant was arrested in

FIR No.619/2004 dated 11.12.04 under Section 379/511 IPC registered

with Kotla Mubarakpur Police Station and in this FIR, his disclosure

statement led to his arrest in 18 other cases of same nature. He was

acquitted by the Court of Sh. Rajinder Singh, Metropolitan Magistrate,

vide order 13-1-12 in FIR No.619/2004, while he stood discharged on

14.12.2004 in all other 18 cases which were registered against him based

on his disclosure statement in case No.619/2004. The alleged

involvement of appellant in such high number of criminal cases registered

against him with the same police station makes it quite apparent that the

appellant was not a stranger to the area SHO and the concerned police

officials of Police Station, Badar Pur. It is more often seen that in such

kind of cases of chain snatching, robbery, etc., the same person is made

accused again and again. This is possible when either the same accused is

committing such kind of offences repeatedly whether within the

jurisdiction of the same police station or in the adjoining areas but it is

equally possible that the police falsely implicate such an accused with the

help of one or the other evidence to bring an easy resolution to such cases

without the police taking the trouble of making any efforts in tracing the

real culprit of the crime.

23. On a deeper and closer examination of the prosecution evidence,

we are distressed to find that the present case is a clear example of false

implication of the appellant in both the FIRs i.e. FIR No. 167/2005

registered against him under Sections 392, 397, 34 IPC and FIR No.

174/2005 registered against him under Sections186, 353, 307 IPC.

24. It is not a case of faulty or imperfect investigation simplicitor but is

a case wherein investigation is coloured with a clear intent of the police

to falsely fix the accused in the said cases. The learned trial court has

based the conviction in FIR No. 167/2005 by giving due credence to the

testimony of eyewitness, Naresh (PW-15). In his very first statement PW-

15 stated that he could identify all the accused persons who had

committed the said crime. The testimony of Naresh (PW-15) got

corroborated with the discovery of a black rexene bag at the instance of

the accused. As per PW-15, this bag contained Indian currency of

Rs.7,000 -8,000/- and some documents of truck which were stolen by the

accused persons after carrying out the murder of the driver - Sanjay. The

black bag also had one unique feature i.e. it carried the truck number

thereon with white paint.

25. The learned trial court verily believed the testimony of PW-15

being the eyewitness of crime and did not accept the argument of the

defence that the said witness (PW-15) was a planted witness and held that

if it was so, then PW-15 could have assigned the accused, main role of

stabbing the deceased, Sanjay. Learned trial court also took a view that in

his examination PW-15 truthfully stated that the accused person neither

caused any injury to the deceased Sanjay nor did he give any beating to

him. The learned trial court also held that the presence of PW-15 at the

time of the incident was further proved by the deposition of Rajesh

Kapoor (PW-22) who had deposed that Naresh (PW-15) was working as

a cleaner on the truck, owned by his mother and on 4th March 2005 the

deceased Sanjay and PW-15 were on duty on the same very truck, which

was going from Nagpur to Delhi. The learned trial court also took a view

that PW-4 had no reason to name the accused falsely in the present case

as he did not know the accused from beforehand there was no occasion

for him to falsely identify him in the said case. The learned trial court

further found the said witness (PW-15) has been truthful as he identified

only the present accused after he had seen two boys reaching the

disclosed spot as per the secret information received by the police.

26. The above reasoning given by the learned trial court cannot be

faulted with, if we remain on surface and do not dwell deep to carefully

and closely examine each and every evidence placed on record by the

prosecution. It is trite to say that in every case the court is required to

take into account the overall circumstances of the case with a practical,

pragmatic and reasonable approach and examine whether the prosecution

has succeeded in deriving home the guilt of the accused or not.

27. Adverting back to the facts of the present case, undeniably, the

murder of driver - Sanjay had taken place on the intervening night of 3/4

March, 2005. As per the prosecution PW-15, Naresh being the cleaner of

the truck was present in the truck at the time of the alleged incident and

had not only witnessed the crime but was also beaten by the accused

persons. In the present case the accused was apprehended on the basis of

statement as well as the identification made by this witness only. It will

therefore be worthwhile to examine the truthfulness of the evidence of

this witness. Although there can be no dispute with the settled legal

position that a solitary evidence of an eye witness, if found reliable and

credible, can by itself form the basis of conviction of an accused person,

but it is equally true that if the conviction of any accused person is merely

based on the testimony of an eye witness, which is surrounded by many

suspicious circumstances and does not inspire the confidence, then it

would be a complete travesty of justice. The courts therefore have to be

more careful when examining evidence of such a solitary witness,

however, much will depend upon the facts and circumstances of each

case and no general principle can be laid down as to under what

circumstances, the uncorroborated testimony of a sole witness can itself

form the basis of conviction of an accused person.

28. PW-15 - in his very first statement, based on which the

rukka(Ex.PW-15/A) was recorded,disclosed that on the fateful night,

truck was driven by deceased, Sanjay and at about 2 a.m. when the truck

proceeded ahead after depositing the toll tax at Badar Pur Border, one

small Maruti car stopped adjacent to the truck and 3-4 persons from the

car, entered the truck and started beating him and the deceased, Sanjay.

He further deposed that when the truck reached near Sarita Vihar,

flyover, the accused persons took out Rs.7-8,000/- and some documents

pertaining to the truck from the black coloured rexene bag and inflicted

stab injuries at the feet and back of deceased Sanjay and ran away in the

same car. He further said that the accused persons, who snatched away

the money and inflicted the stab injuries to the driver, could be identified

by him on being confronted. This first statement of Naresh (PW-15)

nowhere refers the name of accused 'Diggi' and the same was introduced

by this witness only in the supplementary statement, recorded by the

police. In the supplementary statement, this witness made an

improvement in the facts stated by him earlier and told that when accused

persons were leaving, he heard one of the accused stating that "Diggi

abhi kaam nahi hua". Thereafter the police, on the basis of this

information given by PW-15, apprehended one of the accused person and

the most interesting fact is that the police is able to apprehend only the

accused whose name was stated by PW-15 i.e. Pawan @ Diggi, by

making improvement, and none else, whereas as per the case of

prosecution, there were five accused persons in total. It is also pertinent to

mention here that, during the examination in chief, again this witness

blatantly failed to depose any fact such as he heard one of the accused

taking name of appellant "Diggi". Apart from the statement of this

witness there is no other evidence on record to prove that the appellant

was one of the accused person in the alleged incident. In the light of these

facts and circumstances two questions which are posed before us are,

firstly how come PW-15 failed to state the fact that he heard one of the

accused saying, in his first statement and second that how come the

police was able to apprehend only the accused whose name was taken by

PW-15, only in his supplementary statement, and none others. In these

circumstances we suspect a foul play on the part of police officials to

falsely implicate the accused person.

29. Further in his first statement, PW-15 nowhere stated that the boys

had taken away the black rexene bag but the statement only refers to the

driver being robbed of Rs.7/8,000/- and the documents pertaining to the

truck. Therefore, it becomes quite evident that black coloured rexene bag

remained in the truck while the boys had taken away the money and other

documents. Thus a question arises that when the bag remained in the

truck itself, then how come its recovery was done at the instance of the

accused person. Further the recovery of this bag at the instance of

accused during his disclosure statement also does not inspire confidence

for many reasons like, there was neither any independent witness to the

recovery of this bag nor any efforts were shown to have been made by the

police to join some independent witness to the recovery of black bag. The

recovery of the said bag also became doubtful as signatures of the

complainant - Naresh were not obtained on the Seizure Memo (Ex.PW-

10/D) although as per the deposition of PW-1 -Constable Jawahar Singh

as well as PW-15, Naresh himself was present at the time of recovery of

the said bag. The presence of complainant -Naresh at the time of recovery

of the bag also becomes doubtful as PW-24, Inspector R.S. Dhaiya and

PW-17, Constable Daya Ram in their respective depositions nowhere

mentioned about the presence of the complainant - Naresh. The recovery

also cannot be believed as the said rexene bag was neither confronted to

the PW-15, Naresh nor to PW-22 and these two witnesses could only

confirm the genuineness and authenticity of the black coloured rexene

bag which was lying in the truck. The cumulative effect of all these

serious lapses on the part of the investigating agency and the prosecution

impels us to disbelieve the story of the prosecution with regard to the

recovery of the said black rexene bag during the disclosure statement of

the accused.

30. Apart from all these lapses stated above there are many other

suspicious circumstances which makes it amply clear that the way the

investigation had proceeded in the matter, the false implication of the

appellant in both the cases can be visibly seen. How we have reach to

such a conclusion can be established from the following unanswered

questions:-

a) For what reasons PW-15, who was the convict and injured witness,

was detained in the Police Station for two days?

b) Why the police made no efforts to obtain the exact particulars of

the Maruti Car including its ownership etc. although as per the

evidence of PW-15, and disclosure statement of accused, all the

assailants were travelling in a Maruti Car?

c) Why police also failed to ascertain the detailed particulars of other

assailants who were alleged to be accompanying the accused

Pawan @ 'Diggi' although they were specifically named in the

disclosure statement of this accused?

d) Why no efforts were not made by the police to arrest the other

assailants including the main assailant who had inflicted stab

wounds on the person of the deceased although they were

specifically named by the appellant, Pawan @ Diggi in his

disclosure statement?

e) Why PW-15,Naresh was not medically examined although as per

his own evidence, he was also beaten by the assailants and he had

received minor injuries?

f) Why no public witness was joined by the police at the time of

arrest of the accused and also at the time of alleged recovery of

black coloured rexene bag and nor any such efforts were shown to

have been made by the police?

g) Why the police did not conduct the TIP Proceedings after having

come to know that a person with the name of 'Diggi' was found

involved in the said incidence. The TIP proceedings could be easily

conducted after carrying out the arrest of Pawan @ 'Diggi' with

whom the SHO and other police officials of Police Station Badar

Pur were quite familiar?

31. All these unanswered questions clearly show a foul play on the part

of the police officials, who even failed to adhere to the very basics and

were perhaps overzealous in solving the case just by roping in the present

accused who as per the police is a hardened criminal of the area. We are

also not prepared to accept the prosecution story that after having

received a secret information police team along with PW-15, Naresh

apprehended the present accused after being identified by PW-15. We are

also not ready to digest that the appellant has taken out a Katta from his

pocket and constable, Daya Ram overpowered him by hitting him with a

stick, which resulted in falling down of katta. Rather, the defence version

appears to us to be more realistic and plausible, which is also supported

by the testimony of DW-1, mother in law of the appellant recorded during

the course of the trial of another FIR No. 174/2005.

32. "Mankind has shifted from the state of nature towards a civilized

society and it is no longer the physical opinion of the majority that takes

away the liberty of a citizen by convicting him and making him suffer a

sentence of imprisonment. Award of punishment following conviction at

a trial in a system wedded to the rule of law is the outcome of cool

deliberations in the Court-room after adequate hearing is afforded to the

parties, accusations are brought against the accused, the prosecuted is

given an opportunity of meeting the accusations by establishing his

innocence. It is the outcome of cool deliberations and the screening of the

material by the informed man i.e. the Judge that leads to determination of

the lis." This observation made by Hon'ble Supreme Court in the matter

of Lehna vs. State of Haryana reported in (2002) 3 SCC 76, is of utmost

importance while appreciating the role of each and every one who is

involved in the process of dispensing justice. It should always be

remembered that the duty of the investigating officers is not merely to

augment a prosecution case with such evidence as may enable the court to

record a conviction but to bring out the real unvarnished truth. The

investigating officers should always conduct themselves in a most fair,

transparent and judicious manner. This objective can be achieved only

when the investigating officers are competent, and have an expertise in

the field and they perform their duties with utmost honesty and dedication

in carrying out fair and impartial investigation, uninfluenced by any

extraneous factors including the factor of bringing an easy solution to any

crime by false implication of an innocent person. In the administration of

criminal justice system investigation plays a very vital and crucial role. In

criminal jurisprudence an accused is presumed to be innocent till proved

guilty and the accused is entitled to unbiased and impartial investigation

and fair trial and the prosecution is expected to play balanced role in the

trial of a crime. The investigation should be judicious, fair, transparent

and expeditious to ensure compliance to the basic rule of law. These are

the fundamental canons of our criminal jurisprudence and they are quite

in conformity with the constitutional mandate contained in Articles 20

and 21 of the Constitution of India (Sidhartha Vashisht @ Manu vs.

State (supra). Protection of the society is the first responsibility of the

police and the laws, procedures and police practices must be such as to

ensure that no guilty person shall escape the clutches of law and no

innocent shall ever be harassed. The concept of reasonable and fair trial

would be one in which the accused as well as the victim or the aggrieved

person gets complete justice. Before accusing an innocent person of the

commission of a grave crime, it is essential to conduct an honest, sincere

and dispassionate investigation.

33. Recently in the matter of State of Gujrat vs. Kishanbhai Etc. being

Criminal Appeal No. 1485 of 2008 decided on 07.01.2014, the Hon'ble

Supreme Court while taking note of matters where an innocent man is

falsely implicated by police to face the ordeal of trial, held as under:

"Every time there is an acquittal, the consequences are just the same, as have been noticed hereinabove. The purpose of justice has not been achieved. There is also another side to be taken into consideration. We have declared the accused-respondent innocent, by upholding the order of the High Court, giving him the benefit of doubt. He may be truly innocent, or he may have succeeded because of the lapses committed by the investigating/prosecuting teams. If he has escaped, despite being guilty, the investigating and the prosecution agencies must be deemed to have seriously messed it all up. And if the accused was wrongfully prosecuted, his suffering is unfathomable. Here also, the investigating and prosecuting agencies are blameworthy. It is therefore necessary, not to overlook even the hardship suffered by the accused, first during the trial of the case, and then at the appellate stages. An innocent person does not deserve to suffer the turmoil of a long drawn litigation, spanning over a decade, or more. The expenses incurred by an accused in his defence can dry up all his financial resources - ancestral or personal. Criminal litigation could also ordinarily involve financial borrowings. An accused can be expected to be under a financial debt, by the time his ordeal is over."

34. In the present case also we find that the appellant is an innocent

man, who has been falsely implicated as an accused in the said two

criminal cases. The manner in which the investigation was carried out by

the police clearly suggests a foul play on the part of police officials by

implicating the appellant in FIR No. 167/2005, to find an easy way of

solving a murder case, without putting any serious effort to apprehend the

other culprits. The registration of the second FIR No.174/2005 was with a

view to give legitimacy to the arrest of the appellant. Otherwise, it sounds

totally illogical that police would constitute a team comprising of six

officials to arrest this appellant, Pawan @ Diggi, who is already a

familiar face with the local police, due to his involvement in many other

criminal cases. False implication of any person that too at the instance of

the police without their being incriminating evidence to support the same

has to be viewed very seriously against the police officials involved in

such a murky process and a false implication even of a person who may

be an accused of committing some other offences, stands on the same

footings. We are not suggesting here that the police cannot commit

mistakes or there cannot be any bona fide reasons behind the wrongful

prosecution of any person, but where the facts by itself brazenly suggests

presence of no such incriminating evidence and yet a person is made an

offender to suffer turmoil and agony, of undergoing arrest, facing

criminal prosecution and then finally getting convicted, it amounts to

serious invasion and trampling of his rights as guaranteed to him under

Article 21 of the Constitution of India.

35. In the light of the above observations, we are constrained to direct

the Police Commissioner to take appropriate disciplinary action against

the delinquent police officials, who were involved in the investigation of

the crime in the said two FIRs and pending disciplinary enquiry against

the main IO in the said two FIRs, no investigation involving any major

crime be entrusted to him and, if any, investigation into any major crime

is already with the said IO then the same shall be personally monitored by

the concerned DCP of the district.

36. In the light of the facts and circumstances stated above, the appeals

filed by the appellant are allowed and the impugned judgment and order

on sentence dated 9th August, 2010 and 12th August, 2010, respectively,

passed by the learned Additional District Judge are hereby set aside.

Consequently, the appellant in both the appeals being Criminal appeal

No. 1297/2010 and Criminal appeal No. 1322/2010, stands acquitted.

37. Appellant is in judicial custody. Let he be released forthwith, if not

required in any other case.

38. A copy of this order be sent to Jail Superintendant for compliance.

KAILASH GAMBHIR, J.

SUNITA GUPTA, J.

JANUARY 24, 2014 v/pkb