Delhi High Court

Ashok Kumar vs State on 14 July, 2014

IN THE HIGH COURT OF DELHI AT NEW DELHI


                                       Reserved on: 02nd May, 2014
%                                  Date of Decision: 14th July, 2014

+              CRIMINAL APPEAL No.480/2010


ASHOK KUMAR                                             ..... Appellants
                                  Through:   Mr.S.B.Dandapani, Advocate.

                                  versus
STATE                                                 ..... Respondent
                                  Through:   Mr.Sanjay Lao, APP for the
                                             State.
                                             SI Birender Singh.


+                       CRIMINAL APPEAL No.783/2010


CHANDER SHEKHAR @ SHEKHAR                   ..... Appellant
            Through: Mr.V.P. Singh Charak, Advocate.


                         versus


THE STATE OF THE NCT OF DELHI               ..... Respondent
              Through: Mr.Sanjay Lao, APP for the State.
                       SI Birender Singh.



        CORAM:
        HON'BLE MR. JUSTICE P.K. BHASIN
        HON'BLE MR. JUSTICE VED PRAKASH VAISH



CRL.A. Nos. 480/2010 & 783/2010                                    Page 1 of 24
                          JUDGMENT

VED PRAKASH VAISH, J:

1. The appellants have assailed judgment dated 20.02.2010 passed

by learned Additional District and Sessions Judge, New Delhi (02),

Patiala House Courts, New Delhi in case FIR No.284/04, PS C.R. Park

whereby the appellants were convicted for the offences under Sections

302/392/411/34 IPC and order on sentence dated 25.02.2010 whereby

they were sentenced to undergo rigorous imprisonment for life with a

fine of Rs.2,000/- each and in case of default of payment of fine, to

further undergo simple imprisonment for a period of three months

under Sections 302/34 IPC and to undergo rigorous imprisonment for

five years and to pay fine of Rs.2,000/- each, in default of payment of

fine, to further undergo simple imprisonment for a period of three

months under Section 392 IPC. Both the substantive sentences were

ordered to run concurrently.

2. Briefly stated, the case of prosecution is that one Kajormal who

was working as a Guard/Chowkidar with Mr. Gautam Mitra, Advocate

at premises No. S-183, GK-II, Second Floor, New Delhi was allegedly

murdered by the appellant, Chander Shekhar Yadav @ Shekhar, who

was working as peon with Mr. Gautam Mitra and his accomplice

Ashok Kumar on 15.10.2004. The motive of killing was that on

12.10.2004, deceased informed Chander Shekhar Yadav that a lot of

money belonging to their employer was lying in the house. On

15.10.2004, he along with Ashok Kumar armed with a knife went to

House No.S-183, GK-II, Second Floor and asked Kajormal to hand

over the keys. Kajormal started making noise. Upon this, he was

stabbed by Ashok Kumar on pelvic region, who fell down. The keys

were taken out of his pocket and the appellant, Ashok Kumar cut the

neck of Kajormal, who died. The money was taken away by them.

On 29.10.2004, both the appellants were arrested and stolen amount

was recovered. After completion of investigation, charge-sheet for the

offences under Sections 302/392/411/34 IPC was filed. After

recording prosecution evidence, statement of the appellants under

Section 313 Cr.P.C. were recorded. The appellants examined Avadh

Bihari Yadav (DW-1) and Dev Kala Devi (DW-2) as defence

witnesses. After considering the submissions made by counsel for the

appellants and the statements of prosecution witnesses as well as

defence evidence, trial Court convicted both the appellants vide

impugned order dated 20.02.2010 and sentenced vide order dated

25.02.2010.

3. Feeling aggrieved by the said judgment dated 20.02.2010 and

order on sentence dated 25.02.2010, the appellants have preferred the

present appeal.

4. Learned counsel for the appellants contended that there is a

contradiction as to who gave the information of the incident to the

police, Nishit Khanna (PW-1) or K. Sukumaran (PW-7). As per Nishit

Khanna (PW-1), the police reached at the spot at 4.30 p.m. or 5.00 p.m.

whereas Constable Man Singh (PW-12) joined the investigation at

about 5.00 p.m. At the place of incident, landline phone was available,

but no call was made by the complainant from the said phone. He

reached the police station and lodged a complaint, this creates a doubt

as to why he did not use the available phone.

5. The counsel for the appellants also submitted that there is a

major contradiction about the presence of K. Sukumaran (PW-7) at the

spot. As per testimony of Nishit Khanna (PW-1) he had seen K.

Sukumaran (PW-7) at the spot,before the incident, coming out of the

house. So, it is highly impossible that he had not seen the dead body

of Kajormal inside the house. The Investigating Officer had made no

effort to investigate that K. Sukumaran (PW-7) as an accused despite

the fact that his behavior was highly abnormal. As per K. Sukumaran

(PW-7), police recorded the statement of one Sardarji and Bhatia, but

their statements are not on police record. The Investigating Agency

never made the labourers, Om Prakash and Ram Prakash prosecution

witnesses, despite their having witnessed the discovery of the dead

body.

6. Learned counsel for the appellants further contended that the

whole case of the prosecution survives around the alleged recovery of

Rs.25,75,500/- from appellant Chander Shekhar and Rs.8,83,600/-

from Ashok Kumar and the trial Court had erroneously held that since

the amount is huge, this point towards guilt of the accused/appellants.

Whereas, K. Sukumaran (PW-7) was the real perpetrator of the crime

and he could have easily appeased the police officials to falsely

implicate the appellants in the crime. Man Singh (PW-6) has identified

the appellants in the Court, however, his testimony shows that he had

admitted that he has extremely poor eyesight and perhaps could not

have seen the appellants in the company of the deceased. The

appellants were arrested after 13 days of the incident. However, the

weapon that was recovered from the spot on 15.10.2004 was not at the

instance of the appellants. Also it did not have any finger impression

to link the appellants with the crime. The recovery of the money from

the possession of the appellants is doubtful. The presence of the SHO

at the spot is also doubtful.

7. The counsel for the appellants also submitted that the manner of

arrest of the appellants is also doubtful. As per SI Arun Kumar Verma

(PW-19), he arrested the appellants from the bus stop without any

photograph. No witness was examined at the spot despite the area

being thickly populated. No exact place has been told from where the

appellants were arrested. No TIP was conducted. The case property

was not sealed at the spot.

8. It was lastly contended by counsel for the appellants that

Khurshid Ahmed (PW-9) has not supported the case of prosecution

despite the cross-examination conducted by learned APP for the State.

The entire case of prosecution is based on circumstantial evidence and

the chain of events are incomplete.

9. Per contra, learned APP for the State urged that minor

contradictions cannot be taken into consideration unless and until such

contradictions are grave in nature. Non-compliance of certain

investigative formalities can at best be a case of faulty investigation

and it would not be just to acquit the appellants on that basis. Learned

APP for the State submitted that the TIP was not required and

otherwise also, it is not at all a substantive piece of evidence. It was

further contended that the recovery of huge amount of approximately

Rs.35 lakhs has been recovered in pursuance to the disclosure

statement of the appellants. The planting of such a huge amount,

cannot be believed by any stretch of imagination. Non-lifting of finger

prints cannot be of any advantage to the appellants.

10. Learned APP for the State also submitted that non-joining of

public witness at the time of recovery is not fatal to the prosecution

case. The Investigating Officer had made his best efforts to join the

public witnesses at the time of recovery. Man Singh (PW-6) is a poor

and an uneducated person. His testimony cannot be disbelieved as he

is an uninterested and independent person.

11. We have bestowed our thoughtful consideration to the

submissions made by learned counsel for the appellants and learned

APP for the State and carefully perused the material placed on record.

12. The case of prosecution is purely based on circumstantial

evidence and there is no eye-witness to the alleged incident and in the

present case, there is no direct evidence of the crime. The prosecution

case hinges on circumstantial evidence. It is an accepted principle of

law that even in cases where no direct evidence is available in the

shape of eye-witness etc., a conviction can be based on circumstantial

evidence alone. However, it is well to remember that in cases where

the evidence is of a circumstantial nature, the circumstances from

which the conclusion of the guilt is to be drawn, should in the first

instance be fully established and all the facts so established should be

consistent only with the hypothesis of the guilt of the accused. The

circumstances should be of a conclusive nature and tendency and they

should be such as to exclude every hypothesis except the one propose

to be proved. In other words, there must be a chain of evidence so far

complete as not to leave any reasonable ground for a conclusion

consistent with the innocence of the accused and it must show that

within all human probability, the act must have been done by the

accused. The law regarding circumstantial evidence is no longer res

integra and five golden principles enunciated by the Hon‟ble Supreme

Court of India in Sharad Birdhichand Sarda vs. State of

Maharashtra, (1984) 4 SCC 116, clearly lays down law in this

regard. The Hon‟ble Supreme Court held :-

"153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:

(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. It may be noted here that this Court indicated that the circumstances concerned "must or should" and not "may be" established. There is not only a grammatical but a legal distinction between "may be proved" and "must be or should be proved" as was held by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra [(1973) 2 SCC 793 : 1973 SCC (Cri) 1033 : 1973 Crl LJ 1783] where

the observations were made: [SCC para 19, p. 807: SCC (Cri) p. 1047] "Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between „may be‟ and „must be‟ is long and divides vague conjectures from sure conclusions."

(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendency, (4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused."

13. Thus, in the light of the authoritative pronouncement of the

Hon‟ble Supreme Court over task whilst down to examine the various

circumstances pointed out by the prosecution and to see whether the

chain of circumstances so complete as to prove the guilt of the

appellants beyond doubt. We shall deal with these circumstances one

by one.

Recovery from at the behest of the appellants

14. SI Arun Kumar Verma (PW-19) has stated that on 29.10.2004,

he along with Inspector Vimal Kumar, SI Raj Kumar, ASI Ajay Tyagi

and two other constables had gone to Jaitpur extension, Badarpur in

search of the appellants, Chander Shekhar and Ashok Kumar in their

houses, but they could not be found. When they reached G Block,

Jaitpur Extension, two boys i.e. the appellants were trying to run away

on seeing them. They apprehended and interrogated them. The

appellants told them their names as Chander Shekhar and Ashok

Kumar. They were arrested vide arrest memo Ex.PW19/C and

Ex.PW19/D respectively and their personal search was conducted

vide memo Ex.PW19/E and Ex.PW19/F respectively. The appellant,

Chander Shekhar was holding blue-green coloured handbag which

contained two shirts of cream and sky blue colour and currency notes

totaling to Rs.25,75,500/-. The bags and the shirts were taken into

possession vide seizure memo Ex.PW19/G and currency notes vide

memo Ex.PW19/H. The appellant, Ashok Kumar, was holding a blue

coloured suit case make Godrej. On checking, it was found to contain

a shirt, shirt piece and a pant piece along with currency notes of

Rs.8,83,600/- which were seized vide memo Ex.PW19/K and

Ex.PW19/L respectively. Thereafter, both the appellants were

brought to the police station and were interrogated and they made

their disclosure statements were recorded as Ex.PW19/M and

Ex.PW19/N respectively. Both the appellants pointed out the place of

occurrence. On 02.11.2004, he along with Inspector Vimal Kumar, SI

Raj Kumar and two other constables went to the house of the

appellants. Blood stained clothes of both the appellants were

recovered from their respective houses at their instance and they stated

that they were wearing those clothes on the date of incident. Blood

stained clothes of both the appellants were converted into separate

parcels with the help of white cloth and sealed with the seal of AV and

were taken into possession vide seizure memo Ex.PW19/Q and

Ex.PW19/R respectively. In his cross-examination, he has stated that

on 29.10.2004, they had asked the residents of nearby houses and

passerby to join the investigation, but none joined them. The

Investigating Officer did not give them any written notice for not

joining the investigation as they were not willing to tell their names

and addresses as they expressed their difficulty to join them. He has

further stated that on 02.11.2004, no public witness could be joined as

they were not willing to become the witnesses. Though several

persons had collected from the neighbourhood, but no one agreed to

become the witness and the Investigating Officer did not go to the

neighbouring houses to join them as witness. The same stand was

taken by Inspector Vimal Kumar (PW-20) who reiterated the same

averments in his testimony and during his cross-examination.

15. A perusal of the testimony of these two witnesses shows that

the seizure and arrest of the appellants was a sudden event. At that

time, there could have been no chances of joining the independent

witnesses. Otherwise also, both SI Arun Kumar Verma (PW-19) and

Inspector Vimal Kumar (PW-20) have stated in their cross-

examination that they made efforts to join independent witnesses on

both the dates i.e. 29.10.2004 and 02.11.2004. However, none of the

witnesses were ready to join the investigation. Under these

circumstances, the conduct of the Investigating Officer could not be

said to be blemished in any manner. It is a matter of common

experience that independent witnesses, shun joining, a search or

seizure with a view to avoid wrath and its displeasure of the accused ,

as also the complications, which may arise later on, on account of

their appearance in the Court, from time to time, for their evidence. It

has also become the general tendency of the people to criticize the

Police and the Courts, for their failures, but when an occasion arises,

to seek their assistance, at the time of search or seizure of a

contraband, or detection of crime, they show their disinterest. The

mere fact that no independent witness could be joined, on account of

the aforesaid reasons, in itself, could not be said to be sufficient to

disbelieve and distrust the evidence of the prosecution witnesses.

16. It has been contended on behalf of the appellants that the

appellants are falsely implicated in the present case by the

Investigating Officer as well as K. Sukumaran (PW-7) and the

recovered amount was falsely planted on them. This argument does

not find favour with us. The appellants have neither produced any

evidence nor have shown any reason for such an apprehension and in

the failure of any reason to support their beliefs, in our opinion, such

an argument is grossly baseless allegation.

17. As we have observed above that the evidence of search or

seizure made by the police will not be vitiated solely for the reason

that the same was not supported by any independent witness. So also

it is a settled law that the statement of investigating authorities cannot

be sunned merely because they are police officials. In State, Govt. of

NCT of Delhi vs. Sunil & Anr., 2007 (1) Scale 692, the Hon‟ble

Supreme Court has observed as under:-

"Hence it is a fallacious impression that when recovery is effected pursuant to any statement made by the accused the document prepared by the Investigating Officer contemporaneous with such recovery must necessarily be attested by independent witnesses. Of course, if any such statement leads to recovery of any article it is open to the Investigating Officer to take the signature of any person present at that time, on the document prepared for such recovery. But if no witness was present or if no person had agreed to affix his signature on the document, it is difficult to lay down, as a proposition of law, that the document so prepared by the police officer must be treated as tainted

and the recovery evidence unreliable. The court has to consider the evidence of the Investigating Officer who deposed to the fact of recovery based on the statement elicited from the accused on its own worth."

18. The civilized people are generally insensitive when a crime is

committed, even in their presence and they withdraw both from the

victim‟s side and from the side of vigilante. They keep themselves

away from the Courts unless it is inevitable. In these circumstances,

merely non-joining of the independent witness, when the evidence of

prosecution witness is cogent and no reason is shown on their part to

falsely implicate the appellants, no doubt is cast on the prosecution

case.

Recovery from the scene of crime

19. K. Sukumaran (PW-7) has stated in his testimony that after he

and Khanna saw Kajormal lying in a pool of blood in toilet, they went

to police and informed about the murder. The police came to the spot

and inspected the scene of occurrence. He also stated that he could

identify railway ticket booking forms along with railway tickets which

he had given to the accused, Chander Shekhar which were exhibited

as Ex.PW7/A to C. The railway reservation tickets which had been

given for cancellation to accused Chander Shekhar were exhibited as

Ex.PW7/D to 7/E and these documents were found lying on a dining

table which was in the drawing room near the kitchen.

20. Nishit Khanna (PW-1) has also stated in his testimony that from

a table which was kept next to the kitchen wall, two railway tickets

and three other papers of reservation and cancellation were seized vide

memo Ex.PW1/L and driving licence and other one PAN card and

some other papers were seized vide memo Ex.PW1/M.

21. To the same effect, SI Arun Kumar Verma (PW-19) has stated

that a table was lying near the kitchen in the drawing room of the flat

having two railway tickets and three railway reservation cancellation

forms. Those tickets and forms were taken into possession vide memo

Ex.PW1/L. On the same table, driving licence, PAN card and some

visiting cards of Chander Shekhar and three other visiting cards were

also lying, which were seized vide memo Ex.PW1/M. The same stand

was reiterated by Inspector Vimal Kumar (PW-20).

22. The appellant, Chander Shekhar has failed to give any

explanation of the aforesaid documents and also failed to explain as to

how his driving licence and PAN card were found lying at the place of

incident. Section 106 of the Indian Evidence Act, 1872 places the

onus of proving the fact especially within the knowledge of any

person, the burden of proving that fact is upon that person. As we

have observed that the appellant, Chander Shekhar has neither denied

nor provided any explanation about the receipt of such documents at

the place of incident. Their presence at the place of incident cannot be

denied.

23. The presence of the appellants at the crime scene is also verified

from the statement of Man Singh (PW-6) who has stated that he was

working as a cobbler for last about 12 years on the footpath in front of

S-183, GK-II, New Delhi. On 15.10.2004 at about 8.30 a.m., when he

was sweeping the place of his work, he saw Kajormal coming with a

milk packet in his hand and two boys were also with him. He further

stated that he neither know the name of the said two boys nor could he

identified them. However, in his cross-examination by learned APP

for the State, he has identified accused Chander Shekhar as the same

boy who was with Kajormal on that day along with one more boy and

had taken tea at the shop of Khurshid Ahmad (PW-9). However, he

has failed to identify Ashok Kumar who was with Chander Shekhar

on that day along with the deceased. In his cross-examination, on

behalf of the appellants, he has denied that he had identified the

accused, Chander Shekhar at the instance of APP for the State and

stated that he had seen the accused once in the Court and secondly in

Greater Kailash, Delhi.

24. Learned counsel for the appellants contended that the testimony

of Man Singh (PW-6) is not worthy of credit as he could not tell the

exact date as to when he had lastly seen the appellant. However, in

our opinion, his evidence cannot b completely wiped out just because

the witness is unable to remember the exact date and time or the exact

sequence of happening of events. Man Singh (PW-6) is a poor man

and is indulged in his daily pursuit and earning for his basic

sustenance and engrossment. His non recalling of the exact time and

date of happening of event cannot be taken against him.

Motive

25. It is a settled law that in case of circumstantial evidence, motive

assumes great significance and importance, for the reason that the

absence of motive would put the court on its guard and cause it to

scrutinize each piece of evidence very closely in order to ensure that

suspicion, emotion or conjecture do not take the place of proof.

However, the evidence regarding the existence of motive which

operates in the mind of an assassin is very often and not within the

reach of others. The said motive may not even be known to the victim

of the crime. The motive may be known to the assassin and no one

else may know what gave birth to such evil thought in the mind of the

assassin. In a case of circumstantial evidence, the evidence indicating

the guilt of the accused becomes untrustworthy and unreliable,

because most often it is only the perpetrator of the crime alone, who

has knowledge of the circumstances that prompted him to adopt a

certain course of action, leading to the commission of the crime.

Therefore, if the evidence on record suggest sufficient/necessary

motive to commit a crime, it may be conceived that the accused has

committed the same. A similar view was taken by the Hon‟ble

Supreme Court in Munish Mubar vs. State of Haryana, (2012) 10

SCC 464.

26. In the instant case, K. Sukumaran (PW-7) has stated that on

12.10.2004, one Suresh Marwah gave Rs.40 lakhs to him stating that

Mr. Gautam Mitra had sent this money for him. Accordingly, he took

that amount and telephoned to Mr. Gautam Mitra and asked him as to

what has to be done with the said money. Gautam Mitra told him that

he should give that amount to Kajormal (deceased), to keep it in safe

custody. He along with Chander Shekhar went to S-183, GK-II in his

car and handed over the amount of Rs.40 lakhs to Kajormal.

Kajormal with the help of Chander Shekhar (appellant) kept that

amount of Rs.40 lakhs in the room upstairs on terrace. He also stated

that on the date of incident when he searched for the said amount, it

was not found and the door of that room where money was kept was

found open. Later on, SI Arun Kumar Verma

(PW-19) and Inspector Vimal Kumar (PW-20) got recovered a sum of

Rs.25,75,500/- and Rs.8,83,600/- from the appellants on 29.10.2004.

The same clearly establishes the motive of the said crime was to rob

Rs.40 lakhs kept at S-183, GK-II in the process of which, the deceased

was killed. The appellant Chander Shekhar knew that the amount of

Rs.40 lakhs was kept by Kajormal (deceased) on the terrace.

Conduct of the appellants

27. K. Sukumaran (PW-7) has stated that on 13.10.2004, he gave

Rs.3000/- to get cancelled two tickets and to get booked two fresh

tickets to go to Kerala. Chander Shekhar left for Hazrat Nizamuddin

Railway Station, but did not turn up. Later on, the said documents

were recovered from the scene of crime. SI Arun Kumar Verma (PW-

19) stated that on 29.10.2004, he along with Inspector Vimal Kumar,

SI Raj Kumar, ASI Ajay Tyagi and two other constables had gone to

Jaitpur Extension in search of the appellants in their houses, but they

could not be found. When they reached G Block, Jaitpur, they saw

two boys i.e. the appellants who started running away on seeing them.

The same stand was reiterated by Inspector Vimal Kumar (PW-20).

The conduct of the appellants, thus, is relevant under Section 8 of the

Indian Evidence Act, 1872 which has a bearing on the fact that the

money robbed was in their possession at that time, which was later

recovered. The appellant, Chander Shekhar never resumed his office

and was apprehended only on 29.10.2004. The conduct of a person

concerned in a crime would become relevant if his conduct is related

with the incident. To record a conduct to be relevant, it must be

closely connected with the incident concerned. If the Court considers

some conduct to be relevant, then the conduct must help the Court in

arriving at a conclusion in the controversy. However, a conduct too

become relevant under Section 8 of the Act, need not become

simultaneous or spontaneous, that is to say, with that very incident. It

may become subsequent or previous to the main fact in issue.

28. The Apex Court in Shyamal Ghosh vs. State of West Bengal,

(2012) 7 SCC 646, has observed:-

"60. As we are discussing the conduct of the prosecution witnesses, it is important for the Court to notice the conduct of the accused also. The accused persons were absconding immediately after the date of the occurrence and could not be arrested despite various raids by the police authorities. The investigating officer had to go to different places i.e. Sodhpur and Delhi to arrest the accused persons. It is true that merely being away from his residence having an apprehension of being apprehended by the police is not a very unnatural conduct of an accused, so as to be looked upon as absconding per se where the court would draw an adverse inference. Paramjeet Singh v. State of Uttarakhand [(2010) 10 SCC 439 : (2011) 1 SCC (Cri) 98] is the judgment relied upon by the learned counsel appearing for the appellant. But we cannot overlook the fact

that the present case is not a case where the accused were innocent and had a reasonable excuse for being away from their normal place of residence. In fact, they had left the village and were not available for days together. Absconding in such a manner and for such a long period is a relevant consideration.

61. Even if we assume that absconding by itself may not be a positive circumstance consistent only with the hypothesis of guilt of the accused because it is not unknown that even innocent persons may run away for fear of being falsely involved in criminal cases, but in the present case, in view of the circumstances which we have discussed in this judgment and which have been established by the prosecution, it is clear that absconding of the accused not only goes with the hypothesis of guilt of the accused but also points a definite finger towards them."

Defects in investigation

29. Learned counsel for the appellants, at various stages of

investigation, are also not material in our opinion so as to affect the

prosecution case. The appellants cannot take advantage of faulty

investigation, if the guilt is made out from the other circumstances and

statement of the witnesses as a whole.

30. It is settled law that for certain defects in investigation, the

accused cannot be acquitted. In Hema vs. State, thr. Inspector of

Police, Madras, (2013) 10 SCC 192, the view taken by in C.

Muniappan and Ors. vs. State of Tamil Nadu, (2010) 9 SCC 567

was reiterated. The Hon‟ble Supreme Court of India observed as

under:-

"55. There may be highly defective investigation in a case. However, it is to be examined as to whether there is any lapse by the IO and whether due to such lapse any benefit should be given to the accused. The law on this issue is well settled that the defect in the investigation by itself cannot be a ground for acquittal. If primacy is given to such designed or negligent investigations or to the omissions or lapses by perfunctory investigation, the faith and confidence of the people in the criminal justice administration would be eroded. Where there has been negligence on the part of the investigating agency or omissions, etc. which resulted in defective investigation, there is a legal obligation on the part of the court to examine the prosecution evidence dehors such lapses, carefully, to find out whether the said evidence is reliable or not and to what extent it is reliable and as to whether such lapses affected the object of finding out the truth. Therefore, the investigation is not the solitary area for judicial scrutiny in a criminal trial. The conclusion of the trial in the case cannot be allowed to depend solely on the probity of investigation."

31. In the case of defective investigation, the Court has to be

circumspect in evaluating the evidence. But it would not be right in

acquitting an accused person solely on account of the defect.

Otherwise, it would tantamount to playing into the hands of the

investigating officer if the investigation is designedly defective.

Other circumstances

32. The post mortem of the deceased was carried out by Dr.M.G.

Jayan, Senior Resident (PW-15). He exhibited his report as

Ex.PW15/A. In his report, he has observed the following injuries:-

"1. Incised wound over anterior aspect of neck just below the larynx with clean reddened edges adherent with blood of size 10 x 6 cm (Right end measuring 8 cm from Right masdoid and left end measuring 7 cm left masdoid) exposing S/C tissue, muscles jungular v severed trachea, right common carotid A associated with tailing on left side.

2. Another horizontally superficial placed incised wound involving subcutaneous tissue of size 2 x 1 cm, 2 cm vertically above the left end of the first wound with clean reddened edges.

3. Two horizontally placed stab wounds on right buttock (being 2 cm apart) of sizes 2.5 x 1 cm with clean reddened edges and acute angles and of depth 4.5 cm with s/c tissue and muscles being divided superior and medially."

33. A perusal of the post mortem report dated 23.12.2004 clearly

shows that the cause of death was due to injury No.1 caused by sharp

edged weapon which was opined as sufficient in the ordinary course of

nature to cause death.

34. A perusal of CFSL report dated 30.03.2005, which is

Ex.PW21/A and CFSL report (Biology Division) dated 30.03.2005,

which is Ex.PW21/B further showed that blood group i.e. „B‟ group of

the deceased was found on „Ex.1‟ jeans pant and „Ex.5‟ yellowish

blood stained gauze, recovered from the scene of crime, matched with

the clothes recovered at the behest of the appellants, that is „Ex.6a‟

banian, „Ex.9a‟ T-shirt, „Ex.9b‟ jeans pant and „Ex.10b‟ pant,

indicating that the appellants were present and had committed the