Delhi High Court

Sarvesh Kumar vs The State (Govt. Of Nct Of Delhi) on 31 March, 2016

*            IN THE HIGH COURT OF DELHI AT NEW DELHI


+                     CRIMINAL APPEAL NO. 226/2000


                                      Reserved on: 26th November, 2015
%                                 Date of Decision: 31st March, 2016


        SARVESH KUMAR                               ....Appellant
                Through Mr. Aditya Vikram, Mr. Harsh Prabhakar and
                Mr. Anirudh Tanwar, Advocates.

                                         Versus

        THE STATE (GOVT. OF NCT OF DELHI)         ...Respondent
                 Through Ms. Aashaa Tiwari, APP along with Inspector
                 Ramesh Kumar, P.S. S.P. Badli.


        CORAM:
        HON'BLE MR. JUSTICE SANJIV KHANNA
        HON'BLE MR. JUSTICE R.K. GAUBA

SANJIV KHANNA, J.

The present appeal leaves a sense of disquiet and concern for we

perceive there was an attempt to withhold exculpatory evidence and

hide discontinuity in the prosecution version. The triteness was latent

in the written records in the form of the police case diary, and is

enmeshed in some of the answers given by the author, i.e., the

Investigating Officer ASI Manchand. Unfortunately, this concavity

and latency could not be decripted at the first stage.

2. We would accept the prosecution case that the deceased Raju had

died an unnatural death as a result of burn injuries as is clear from the

MLC, marked Exhibit PW-10/A, recorded at the Jai Prakash Narayan

Hospital on 14th April, 1997 at 1.30 P.M. The post-mortem report by

Dr A.P.Singh, dated 19th April, 1997, marked Exhibit PW-11/A,

records that Raju had died four days after admission on 18th April,

1997 at 7.20 A.M. The cause of death was septicaemia consequent

upon infected burn injuries. The injuries were ante-mortem in nature,

and inflicted about 4 days back. Injury Nos. 1 & 2 were caused by a

blunt object, and Injury No.3 was caused by burns due to fire. Scalp

hair were duly sealed and sent for FSL examination to confirm

presence of kerosene oil.

3. The primary question, which has to be answered is whether the

injuries were self inflicted, or were perpetrated by the appellant-

Sarvesh with his co-predators namely Pappu, Vinod, Rajender and

Raju, who had allegedly poured kerosene oil on Raju and set him

ablaze near the railway crossing next to the house of Sarvesh. The

said Pappu, Vinod, Rajender and Raju have not been arrested and

declared as proclaimed offenders. The judgment under challenge

dated 20th November, 1999 convicts the present appellant-Sarvesh

under Section 302 read with Section 34 of the Indian Penal Code,

1860 (IPC, for short). The order on sentence dated 22 nd November,

1999 sentences Sarvesh to undergo life imprisonment, pay fine of

Rs.500/- and in default undergo rigorous imprisonment for one

month. Benefit of Section 428 of the Code of Criminal Procedure,

1973 would apply.

4. The prosecution case as per the charge sheet and as accepted by the

trial court is primarily predicated on the dying declaration of Raju,

marked Exhibit PW-1/B, implicating Sarvesh and the proclaimed

offenders. For the sake of completeness, we would like to reproduce

the dying declaration in entirety, which was recorded by ASI Man

Chand (PW-9), the Investigating Officer on 14th April, 1997 and

became the fulcrum of the FIR No. 292/1997, Police Station Samai

Pur Badli. Raju subsequently expired after about 4 days on 18th

April, 1997. In the four days, his statement was not recorded by the

Sub-Divisional Magistrate. ASI Man Chand (PW-9) has stated that

he had requested the Sub-Divisional Magistrate to record Raju‟s

statement, but his request was orally rejected, an assertion rather

ambiguous and debatable. It is strange, that PW-9 did not make the

request in writing, knowing the sensitivity of the matter in light of its

peculiar facts, as noticed and elucidated below. A rough English

translation of the dying declaration marked Exhibit PW1/B statedly

recorded by ASI Man Chand (PW-9), would read:-

"I am residing at the address given above. I am a meat- seller at Azadpur Mandi. My marriage to Shobha d/o Ranjeet Singh two years back was organized by my brother Ram Kishan s/o Dhaniram. Shobha was previously married. On April 11, 1997, I and my wife had quarrelled as Shobha‟s brother, Raju would come to my house again and again. I packed my articles and left. Today, I had gone with my brother Pammi and our (employee) Chotu to my brother-in-law‟s house near the railway phatak, where Shobha was residing. Shobha and her brother asked me whether I had come to take Shobha. Shobha refused to return with me and had stated that I had died for her and she had died for me. I left the place and went outside, while my brother had stayed inside. When I was on the street outside, Sarvesh and Pappu came and met me. Pappu caught hold of me. Then, Sarvesh‟s brothers Vinod, Rajender and Raju caught me and threw kerosene oil on me and set me ablaze. I ran and screamed and my brother, Pammi, took me to the hospital. The kerosene oil was in a plastic bag. My wife has two children from her previous husband who are residing with her."

5. Before we advert to our reasons for doubting truthfulness of the

dying declaration, as probably an incorrect version given by the

deceased out of spite and anger on being spurned and rejected by one

Shobha, sister of Sarvesh and wife of Rajender, we would like to

refer to the testimonies of Shanti (PW-3), Santu (PW-4) and Pammi

(PW-8). Shanti (PW-3), mother of deceased Raju, has testified that

Raju had married Shobha about two years before the occurrence.

They were earlier residing at Khajoori and thereafter had shifted to

Gopalpur. PW-3 had admitted to disputes and differences between

the couple, and that resultantly Shobha had left with another boy for

her village. Raju had also told her about his quarrels with Pappu and

Raju, brothers of Shobha. (For convenience and to avoid confusion,

Raju, brother of Shobha, shall be hereafter referred to as Raju-II).

There was a dispute over money matters between Raju and Pappu,

Raju-II and Shobha. To settle the dispute, Chotu and Pammi along

with the deceased Raju had gone to the house of Sarvesh. PW-3 had

subsequently learnt from Chotu that Raju had suffered burns and was

admitted in a hospital. Noticeably, Shanti (PW-3) did not depose and

state that Chotu had seen the occurrence and had identified Sarvesh

as one of the perpetrators. In her cross- examination, on being

specifically asked, PW-3 had responded that Chotu had simply told

her that Raju had suffered burns. Shanti (PW-3) is, therefore, not an

eye witness to the occurrence, but has deposed about the muddled

relationship shared by Shobha and her family with the deceased Raju,

and the disputes inter-se. In her cross-examination, Shanti (PW-3)

has accepted that the deceased Raju used to beat Shobha, for she had

concealed her previous marriage and that she was a mother of three

children. PW-3 professed having spoken to the deceased Raju at 6

P.M. on April 14, 1997. At that time, Raju was in his senses,

although he was in pain and crying. On enquiry, Raju had informed

her that while Chotu and Pammi were made to sit at the house of

Sarvesh, he was burnt by Pappu, Sarvesh, Vinod, Rajender and Raju-

II. Doctors were present, when the police had interrogated and asked

Raju. The doctor also signed the dying declaration. (In fact, the dying

declaration has not been signed by any doctor). Raju was served

liquor before the incident, but PW-3 had not stated this fact to the

police when her statement was recorded. At a later point in her

cross-examination, PW-3 denied that Raju had consumed liquor

before visiting Shobha‟s house. PW-3 also denied that deceased

Raju had beaten Shobha and then, out of anger, poured kerosene oil

on himself and had set himself ablaze.

6. Santu @ Chotu who had alongwith the deceased gone to the house of

Sarvesh has deposed as PW-4. PW-4 has also accepted that the

relationship between Shobha and Raju had soured for there were

frequent quarrels between the two regarding money. Shobha was sent

to her village in Aligarh. Shobha had then taken some articles and

money alongwith her. She returned after 10-15 days. At the time of

occurrence, Shobha was staying with her brothers. As per PW-4,

Raju, Pammi (PW-8) and PW-4 had been called to the house of

Sarvesh on April 13, 1997. At that time, Raju had taken with him, the

mangal sutra, ear tops and anklets, which he had earlier given to

Shobha. On 14th April, 1997, at about 11 A.M., once again Santu

(PW-4), Pammi (PW-8) and Raju had gone to the house of Sarvesh.

There, Shobha alongwith Sarvesh, and others namely Pappu, Raju II,

Vinod and Rajender (proclaimed offender(s)) were present. Shobha

had brought water for Pammi and Raju, but Raju had refused to drink

water. Quarrel ensued. Raju and PW-4 had thereupon gone to a

barber shop and then had stood near the railway crossing No. 8 at

Samai Pur Badli. Sarvesh and four others, namely, Pappu, Raju-II,

Rajender and Vinod (all proclaimed offenders) had surrounded Raju.

Raju asked him, i.e., Santu (PW-4), to call Pammi (PW-8) from

Sarvesh‟s house. PW-4 went to call Pammi and had returned with

Pammi at about 12 noon. He had then seen Raju burning. He was

surrounded by Sarvesh and his „co-associates‟ (the reference is

probably to Pappu, Raju-II, Rajender and Vinod). Raju had told PW

-4 and PW-8 that he had been burnt by the five, who had poured

kerosene oil on him and alighted a match stick. Pammi (PW-8)

threw water on Raju to extinguish the fire and had informed the

police, who had taken Raju to the Irwin Hospital. In his cross-

examination, Santu (PW-4) has accepted that Shobha and Raju would

quarrel frequently, abuse each other and even had physical fights.

PW-4 has accepted that Shobha would threaten and tell Raju that she

would implicate him by consuming poison. On being questioned

about the barber shop, PW-4 had stated that it was located about 100-

150 paces from the house of Sarvesh, while the railway crossing was

100-150 yards away. PW-4 professed that Pappu was carrying a

polythene bag of ½ /2 kg capacity with Kerosene oil, but he had not

seen any match box. Noticeably, Santu (PW-4) does not state and

profess that he had seen Sarvesh and others throwing Kerosene oil on

Raju and alighting him. His examination and affirmation is

predicated on what was stated and told to him by Raju. As per PW-

4‟s version, he had not seen the actual occurrence. He implicates

Sarvesh and four others by pre and post occurrence presence and

conduct.

7. Pammi (PW-8) has also deposed about the happenings on 14th April,

1997. He, alongwith Raju and Santosh (PW-4), had reached the

house of the appellant Sarvesh, where Raju and Shobha had fought.

Therafter, Raju went outside the house and had reached the railway

crossing, while Pammi (PW-8) remained inside and Santosh had

gone to call Raju. According to PW-8, Santosh i.e., Santu (PW-4)

had immediately cried out, that Raju had been caught by four persons

at the railway crossing. This witness has referred to four and not five

persons. A lady had come to PW-8 and stated that someone was on

fire. Pammi (PW-8) went outside and tried to extinguish the fire. He

had called the police. At the hospital, Raju had told PW-8 that Rajesh

and Rajender had set him on fire and had mentioned two other

names, which PW-8 did not remember. In his cross examination,

PW-8 had accepted that Neelam, sister-in-law of Shobha, aunt of

Shobha, and Pappu were present at the house of Sarvesh. After Raju

and Shobha had an altercation, PW-8 has accepted that Raju had

proceeded outside with Chotu. After about half an hour, both of

them had returned and thereafter the couple had quarrelled once

again over money. Raju, to placate Shobha, had told her that she

could bring her children with her, but Shobha refused and was

adamant. Thereupon, Raju in anger, had left the house with Chotu.

The said incident had taken place outside the jhuggi of Sarvesh.

Pammi (PW-8), on cross-examination by the public prosecutor,

claimed that his brother, (i.e., Raju) had told him in the hospital that

he was set on fire by Raju-II, Pappu, Rajender, Vinod (all proclaimed

offenders) and Sarvesh. In the same breath, Pammi (PW-8), brother

of the deceased Raju, in his cross examination by the prosecutor had

asserted that Sarvesh was innocent. For the sake of clarity, we would

like to reproduce the exact version given by Pammi (PW-8), when he

was cross-examined by the Prosecutor:-

"....My brother Raju told me that he was set to fire by Rajender, Vinod, Pappu, Raju and Sarvesh after pouring kerosene oil. Hand of Raju had been burnt. My mother was also present at time of dying declaration, with Shobha. Site plan was prepared at my pointing out by police, on 18/4/97. In my opinion accused Sarvesh is innocent."

8. We would at this stage notice, and evaluate the pertinent

contradictions emerging from the testimony of the said witnesses,

including Pammi (PW-8), brother of Raju. Pammi (PW-8) did not

state that Raju and Santu (PW-4) visited the barber shop or that Santu

(PW-4) had returned to Sarvesh's house to tell PW-8 that Raju had

been cornered or surrounded and that he should come with him to

save Raju. As per Pammi (PW-8), Santu (PW-4) was throughout with

Raju and therefore an eye-witness, but Santu (PW-4) states that he

had seen Raju being surrounded, but he was not present when Raju

was set ablaze. PW-8, on the first occasion, claimed that Raju had

stated that Rajesh and one Rajender had set him on fire. In the cross-

examination by the Public Prosecutor, PW-8 clarified that two other

persons were named by Raju, but PW-8 did not remember their

names. On further cross-examination by the Public Prosecutor, PW-8

reiterated that Raju had left the house in anger, accompanied by PW-

4. The hesitation and oscillation of PW-8 to name Sarvesh is

apparent and perceptible. Initially, PW-8 had named only Rajender,

husband of Shobha and one Rajesh, who was not charge-sheeted, but

he had accepted that Raju had named others. Later, during cross-

examination by the Public Prosecutor, PW-8 named all five,

including Sarvesh, but then, almost in the same breath, stated that in

his opinion Sarvesh was innocent.

9. Santu (PW-4) also does not state that he had seen deceased Raju

being covered in kerosene oil or being set ablaze by the five

perpetrators, including Sarvesh. He instead claims that he had seen

Raju being surrounded by the five and, thereafter, saw Raju in

flames. PW-4 had seen kerosene oil in a plastic bag being carried by

Pappu (proclaimed offender).

10. This brings us to the testimony of ASI Man Chand (PW-9), who has

referred to the MLC of the deceased, marked Exhibit PW-10/A, and

the statement of the deceased marked Exhibit PW-1/B. The MLC

records the patient's version that five persons poured kerosene oil on

him and set him on fire near the railway crossing. PW-9 has referred

to the statement of Raju which became the FIR, Exhibit PW-1/C.

PW-9 avers that Raju was declared fit for statement and thereafter

Exhibit PW-1/B was recorded. The mother and brother of Raju were

present when Exhibit PW-1/B was being recorded. Importantly, in

his cross-examination, ASI Man Chand (PW-9) has accepted that

while he was making inquiries at the place of occurrence, Sarvesh

had appeared before him and had identified himself. Sarvesh had

stated to PW-9 that he was working as a labourer with the contractor

at the time of occurrence. In other words, Sarvesh was not present at

his residence and place of occurrence at the relevant time. The

relevant portion of PW-9‟s cross examination reads:-

"............Accused told me that he was doing labour work with contractor. I can‟t say whether Sarvesh was working in PWD department. I can‟t say whether accused was doing his duty at the time of incident............."

11. Sarvesh in his statement under Section 313 Cr.P.C. had specifically

asserted that he was on official duty in the MCD Department at

Shalimar Bagh at the time of occurrence and was not present at the

place of occurrence. He denied having surrounded Raju. Sarvesh has

averred that his attendance was duly recorded in the muster roll of the

said date. At that time, J.E. Kaptan Singh of MCD was his duty

officer.

12. The said Kaptan Singh (DW-1), has deposed that he was a Junior

Engineer with MCD and had reached the site on 14th April, 1997 at

about 10.30/11 A.M. Sarvesh was working there. DW-1 affirmed that

the duty hours were from 9 A.M. to 5 P.M. DW-1 had produced the

attendance register marked Exhibit DW-1/A, to show that Sarvesh

was on duty. In his cross-examination, DW-1 accepted that Sarvesh

was a daily wager. DW-1 had remained at the spot for 15/20 minutes

and had then left, and he did not return. DW-1 could not confirm

whether Sarvesh had left the spot after his departure. This witness

confirms that Sarvesh was not present at his house at about 10.30-

11AM on 14th April, 1997, as he had seen him at the site.

13. Rajesh (DW-2), a co-worker with Sarvesh, affirms that in April,

1997, they were working for Kaptan Singh (DW-1). DW-2 could not

affirm if Sarvesh was with them till 5 P.M., but he did state that he

and Sarvesh had left the house at about 8 A.M that morning. Sanjay

(DW-3) confirms that Sarvesh had come to work on 14th April, 1997

and had marked his presence at about 11.30 A.M. with other workers.

The railway crossing No. 8 was at a distance of 2-3 kilometers from

the place where DW-3 was working.

14. We have referred to the deposition of ASI Man Chand (PW-9)

wherein he has accepted that Sarvesh had himself appeared and

identified himself. Sarvesh had then stated that at the time of

occurrence, he was working with the contractor. However, this fact

was not verified by PW-9. Therefore, PW-9 could not state whether,

on April 14, 1997, Sarvesh was on duty at the time of the incident.

This admission and accepted position has left us intrigued and

perplexed. We are hesitant in accepting PW-9's version that he had

not tried to ascertain the true facts and cross-check/verify the version

given by Sarvesh. The version of Santu (PW-4) that he had seen five

persons, including Sarvesh, suddenly appearing at the railway

crossing, is also confusing and inexplicable for Rajender was a

resident of Aligarh, and Vinod is his brother. In the police file

written by ASI Man Chand on April 14, 1997, from 2.40 P.M.

onwards, are equally puzzling and truculent as to the true and correct

portrayal. These contemporaneous recordings could point and reflect

that the assertion by Sarvesh could be correct and in fact, the truth.

After recording the dying declaration which was converted into the

FIR, ASI Man Chand (PW-9) had spoken to Pammi (PW-8) and his

statement under Section 161 Cr.P.C. was recorded. On reaching the

place of occurrence, PW-9 had met Constable Suresh Kumar (PW-5).

PW-9 had then spoken to persons present at the spot and had met one

Vinod, wife of Gulab Singh, who had joined the investigation. Vinod

had stated that, at about 2.30 P.M., she was washing clothes in front

of her house and nobody was present on the street. She had seen that

one person had come from the side of the railway crossing, and had

set himself ablaze in front of Sarvesh‟s house. Once the fire engulfed

him, he started shouting "I am burnt I am burnt (jal gaya, jal gaya)".

Thereupon, several persons had gathered at the spot. Vinod had learnt

that this person, who had set himself on fire, was the brother-in-law

of Sarvesh and husband of Shobha. Brother of the said person had

poured a bucket of water to extinguish the fire. Neelam, Shobha,

Pappu and other ladies had arrived at the spot. Some persons had

rushed to the police station and others had made a call at No. 100.

Neelam had wrapped a blanket around the injured and he was then

taken to the hospital in the PCR (van). Shobha, the brother of the

person injured, and a third boy had accompanied him.

15. PW-9 had also interrogated Neelam, wife of Sarvesh Kumar about

the occurrence. She had informed that Shobha was married to

Rajender, resident of Aligarh. About two years back, she had left

Rajender for a boy called Raju whom she married and the two had

lived in a rented accommodation. On 11th April, 1997, Shobha had

come to Sarvesh's house and had complained that Raju would beat

her. She left Raju and had started residing with her mother.

Thereafter, Shobha had started residing with them. Raju would visit

them as he wanted that Shobha should return, but Shobha had

refused. Raju on the second occasion had fought with Shobha. At that

time, Raju was drunk. Raju had made Shobha remove her mangal

sutra, ear rings, nose pin and pajeb, as she had refused to go with

Raju. To chide Shobha, Raju had proclaimed that she had died for

him, and was henceforth, a widow. Neelam had tried to pacify the

couple but was unsuccessful. Raju had left the place with the mangal

sutra and other articles. In the evening, she had informed Sarvesh,

her husband, about this incident. Sarvesh had then stated that if Raju

would return, she should ask Shobha to go with him and give Rs.51/-

for Raju, and a suit for Shobha. In the morning, her husband Sarvesh

had left for duty at about 11.30 A.M. Neelam, Shobha and Pappu

were at home when Raju, his brother Pammi and another boy had

come. Shobha had served water but Raju had objected and did not

even allow Pammi to drink water. Shobha had then taunted Raju, as

to why he had come back when he had earlier proclaimed that

Shobha had died for him. Both of them quarrelled. Raju then left and

went outside. Pammi had stayed back to speak to Shobha and to

request her to return to Raju. Shobha protested and had stated that

Raju used to drink and beat her. Neelam had coaxed Shobha to go

back and live with Raju. Shobha had proceeded to take bath and in

the meanwhile, Neelam got busy. Neelam thereafter heard that

someone had set himself ablaze. Neelam, Pammi and Shobha ran

outside along with Pappu. They saw one person was on fire outside

their house. He was shouting. Pammi had poured a bucket of water

and Neelam had put a blanket around him. The said person was

Raju. Thereafter she, i.e., (Neelam), Pappu and Shobha ran to the

police station and lodged a report. A police vehicle arrived at the spot

and Shobha, Pammi and the third boy who was with them, took Raju

to the hospital. Neelam‟s husband Sarvesh returned from duty at

about 6 P.M. and was then informed about the said occurrence.

16. The police diary also records that ASI Man Chand (PW-9) had made

enquiries about Sarvesh and that one person present at the spot came

forth and identified himself as Sarvesh. PW-9 had interrogated him

and made enquiries. The case file mentions the detailed version

given by Sarvesh. We are not referring to it for it is inadmissible as

per the bar of Section 25 of the Indian Evidence Act, 1872. We are

also conscious and aware that the said versions of Vinod and Neelam

are not "evidence", for the two have not deposed and made

statements on oath, and their versions have not been tested. One

option was to record their testimonies as additional witnesses in

exercise of power under Section 391 of the Code. However, in the

facts of the present case, keeping in view the time gap and also the

uncertainty and doubt flowing from the testimonies of Pammi (PW-

8) and the Investigating Officer ASI Man Chand (PW-9), and to

some extent of Shanti (PW-4), we do not feel it would be appropriate

and correct to follow and take this recourse. Failure and lapses in

police investigation can fall in two categories. Irregularities and

failure in the given facts proved and established could be

insignificant and immaterial. These are cases where the evidence on

record is credible and trustworthy. The Court can rely and base its

judgment and findings without compelling hesitation or doubt. The

second category, would be cases where lapses and faults are

significant and material for in the given facts, they dent and negate

the prosecution version or the evidence on record. These failures

prevent and obstruct the court from pronouncing a fair and just

decision. (See C.Muniappan v State of Tamil Nadu (2010) 9 SCC

567, Ganga Singh v State of M.P. (2013) 7 SCC 278 and Surajit

Sarkar v State of West Bengal (2013) 2 SCC 146). The present case

falls in the second category, for the police investigation, had raised

doubts as to the truthfulness of the dying declaration made by Raju.

ASI Man Chand (PW-9)‟s failure and lapse in investigation, affects

the credibility of the prosecution case. In the present case,

prosecution should have ascertained and led evidence to rule out

Sarvesh‟s absence at the place of work. Vinod‟s version, which was

at variance with the dying declaration, did require consideration and

due verification, to rule out possibility of an innocent person being

implicated. The Supreme Court in Sidhartha Vashisht alias Manu

Sharma versus State (NCT of Delhi), (2010) 6 SCC 1 has elucidated

on the role of the Public Prosecutor and his duty of disclosure under

Section 24 of the Code to observe that the prosecution must be

couched in fairness, not only to the Court and to investigating

agency, but to the accused as well (we would, however, record that

the Public Prosecutor in this Court has been fair). If an accused is

entitled to legitimate benefit, it should not be scuttled or concealed

even if the defence counsel had overlooked it. Reference was made

to Shiv Kumar versus Hukam Chand, (1999) 7 SCC 467, Hitendra

Vishnu Thakur versus State of Maharashtra, (1994) 4 SCC 602 and

Zahira Habibulla H. Sheikh versus State of Gujarat, (2004) 4 SCC

158. In Manu Sharma (supra), and it has been observed:-

"199. It is not only the responsibility of the investigating agency but as well as 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 the 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 a biased mind and every effort should be made to bring the guilty to law as nobody stands above law dehors his position and influence in the society.

200. In Kashmeri Devi v. Delhi Admn. [1988 Supp SCC 482 : 1988 SCC (Cri) 864 : 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 the criminal investigation and jurisprudence. Contra veritatem lex nunquam aliquid permittit: implies a duty on the court to accept and accord its approval only to a report which is the result of faithful and fruitful investigation. The Court is not to accept the report which is contra legembut (sic) 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.

201. Historically but consistently the view of this Court has been that an investigation must be fair and effective, must proceed in proper direction in consonance with the ingredients of the offence and not in haphazard manner. In some cases besides investigation being effective the accused may have to prove miscarriage of justice but once it is shown the accused would be entitled to definite benefit in accordance with law. The investigation should be conducted in a manner so as to draw a just balance between citizen's right under Articles 19 and 21 and expansive power of the police to make investigation. These well-established principles have been stated by this Court in Sasi Thomas v. State [(2006) 12 SCC 421 : (2007) 2 SCC (Cri) 72] , State (Inspector of Police) v. Surya Sankaram Karri [(2006) 7 SCC 172 : (2006) 3 SCC (Cri) 225] and T.T. Antony v. State of Kerala [(2001) 6 SCC 181 : 2001 SCC (Cri) 1048] .

202. In Nirmal Singh Kahlon v. State of Punjab [(2009) 1 SCC 441 : (2009) 1 SCC (Cri) 523] this Court specifically stated that a concept of fair investigation and fair trial are concomitant to preservation of the fundamental right of the accused under Article 21 of the Constitution of India. We have referred to this concept of judicious and fair investigation as the right of the accused to fair defence emerges from this concept itself. The accused is not subjected to harassment, his right to defence is not unduly hampered and what he is entitled to receive in accordance with law is not denied to him contrary to law.

203. It is pertinent to note here that one of the established canons of just, fair and transparent investigation is the right of defence of an accused. An accused may be entitled to ask for certain documents during the course of enquiry/trial by the court. Let us examine the extent of this right of an accused in light of the statutory provisions and the manner in which the law has developed under the criminal jurisprudence. To understand this concept in its right perspective we must notice the scheme under the provisions of Sections 170 to 173 of the Criminal Procedure Code. All these provisions fall under Chapter XII of the Code which deals with information to the police and their powers to investigate."

17. The Supreme Court in Manu Sharma (supra) also referred to

Sections 170 and 172 of the Code to observe that it was mandatory to

maintain a diary under the Chapter where the investigating officer

had to enter day-to-day proceedings in the investigation carried out

and mention time of events, his departure, returning back and closing

of the investigation. The place/places he had visited and the

statements recorded. The criminal court is empowered under sub-

section (2) to Section 172 to send for the diaries and they can be used

in the court not as evidence but to aid any such inquiry or trial. Sub-

section (3) thus stipulates that the accused and his agents are not

entitled to call for such diaries or see them, but where a police officer

uses them to refresh his memory or the court uses them for the

purpose of contradicting the police officer, then Section 161 or

Section 145 of the Evidence Act would apply. On the importance of

police diaries, it was observed:-

"214. Usefully, reference can also be made to the judgment of this Court in Shamshul Kanwar v. State of U.P. [(1995) 4 SCC 430 : 1995 SCC (Cri) 753 : AIR 1995 SC 1748] wherein this Court while issuing direction for requiring the State to make a general hearing in terms of Section 172 of the Code clearly stated that it was mandatory for the police officer-in- charge to maintain the diary in terms of the said provision and there is jurisdiction in the Criminal Code to call such diaries and make use of them not as evidence but only to aid such inquiry or trial. It is generally confined to utilise the information therein as foundation for the question put to the witnesses, particularly, to the police witnesses where the police officer has used the entries to refresh his memory or if the court uses them for the purpose of contradicting such police officer then provisions of Sections 161 or 145, would be applicable. The right of the accused to cross-examine the police officer with reference to the entries in the general diary is very much limited in extent and even that limited scope arises only when the court uses the entries for the aforestated purposes. The investigating officer has a right to refresh his memories and can refer to the general diary. The court has power to summon the case diary in exercise of its powers and for the purposes stated. The accused is vested with the power of making use of the statements recorded during investigation for the purposes of contradiction and copies thereof the accused is entitled to see in terms of Section 207 of the Code. (See State of Kerala v. Babu [(1999) 4 SCC 621: 1999 SCC

(Cri) 611] and State of Karnataka v. K. Yarappa Reddy [(1999) 8 SCC 715 : 2000 SCC (Cri) 61] .)

215. As is evident from the consistently stated principles of law that right of the accused in relation to the police file and the general diary is a very limited one and is controlled by the provisions aforereferred to. But still the accused has been provided with definite rights under the provisions of the Code and the constitutional mandate to face the charge against him by a fair investigation and trial. Fairness in both these actions essentially needs to be adhered to."

18. It is, therefore apparent, right from the beginning, that there was a

second version that Sarvesh was not present at the place of

occurrence and had gone for work. Sarvesh had not absconded and in

the evening had introduced himself when ASI Man Chand had asked

if Sarvesh was present. Noticeably, the PCR van driver, Head

Constable Kanahiya Lal, who had taken deceased Raju to the hospital

has not been examined. His name figures in the MLC marked

Exhibit PW-10/A, as a person who had brought the deceased Raju to

the hospital.

19. In view of the aforesaid, we have no hesitation in recording our

finding that the case against Sarvesh is not proven beyond reasonable

doubt and is instead, rather weak. His presence at the spot is contra