Telangana High Court

Sri Mahenderkar Amarnath vs The State Of Telangana on 5 July, 2021

Bench: K.Lakshman

 IN THE HIGH COURT FOR THE STATE OF TELANGANA
                 AT: HYDERABAD
                     CORAM:
        * THE HON'BLE SRI JUSTICE K. LAKSHMAN


                 + WRIT PETITION No.12913 OF 2020
                   ALONG WITH I.A. No.2 OF 2020

% Delivered on: 05-07-2021
Between:
# Mr.Mahenderkar Amarnath                                             .. Petitioner
                                            Vs.
$ The State of Telangana, rep.by its Principal
  Secretary, Home Department, Hyd. & others                         .. Respondents

! For Petitioner : Mr. Palle Sriharinath,

^ For Respondent Nos.1 to 3 : Learned Govt. Pleader for Home

For Respondent Nos.4 to 7 : Mr. V. Ravi Kiran Rao, learned senior counsel representing Mr. Sridhar Lonkala, learned counsel

< Gist :

> Head Note :

? Cases Referred :

1. 2020 (11) SCALE 185

2. 2014 Crl.L.J. 4078 (SC)

3. 2014 Crl.L.J. 1875 (SC)

4. AIR 1962 SC 439

5. (1981) 3 SCC 635

6. 2012 Crl.L.J. 3877 (SC)

7. 2012 Crl.L.J. 3877 (SC)

8. 2011 Crl.L.J. 2172 (SC)

9. 2015 Crl.L.J. 2041 (SC)

10. 2011 Crl.L.J. 2673 (SC)

11. 2014 Crl.L.J. 3697 (SC)

12. (1976) 3 SCC 618

13. 1958 AIR 22

14. M.Cr.C. No.30972/2019, decided on 29.07.2019

15. (1990) 3 SCC 45

16. (2010) 14 SCC 444

17. (2012) 4 SCC 722

18. Criminal Appeal Nos.872-873 of 2020, decided on 17.12.2020

19. (2011) 1 SCC (Cri.) 33

20. (2016) 4 SCC 160

21. (2019) 17 SCC 1

22. 2020 SCC OnLine AP 964 KL,J W.P. No.12913 of 2020

HON'BLE SRI JUSTICE K. LAKSHMAN

WRIT PETITION No.12913 OF 2020 ALONG WITH I.A. No.2 OF 2020 COMMON ORDER:

This Writ Petition is filed to declare the action of respondent

Nos.2 and 3 in not conducting investigation in a fair and transparent

manner by considering the dying declaration in Crime No.63 of 2016

pending on the file of Shankarampet (A) Police Station, Medak

District as illegal, and for a consequential direction to respondent No.3

to investigate the said crime, arrest respondent Nos.4 to 7 and file

charge sheet / final report against them.

2. Heard Mr. Palle Sriharinath, learned counsel for the

petitioner, Mr. V. Ravi Kiran Rao, learned Senior Counsel,

representing Mr. Sridhar Lonkala, learned counsel for respondent

Nos.4 to 7 and learned Government Pleader for Home appearing on

behalf of respondent Nos.1 to 3.

3. FACTS:

(i) The petitioner herein has lodged a complaint on

13.05.2016 with respondent No.3 complaining the

suspicious death of his brother - Mahenderkar

Pandarinath, who received severe burn injuries and fall

on the road side;

KL,J W.P. No.12913 of 2020

(ii) on receipt of the said complaint, respondent No.3 has

registered a case in Crime No.63 of 2015 under Section -

174 of Cr.P.C.;

(iii) during the course of investigation, on 25.03.2017,

respondent No.3 has obtained dying declaration of the

deceased recorded by XIV Additional Chief Metropolitan

Magistrate (for trial of Communal Disturbances),

Nampally, Hyderabad;

(iv) thereafter, considering the said dying declaration,

respondent No.3 has altered the section of law from

Section - 174 of Cr.P.C. to Section - 302 read with 34 of

IPC and also filed an alteration memo to that effect;

(v) despite altering the section of law from Section - 174

Cr.P.C. to Section 302 read with 34 of IPC basing on the

dying declaration, respondent No.3 has not conducted

fair investigation and he has not apprehended respondent

Nos.4 to 7 herein and others who involved in the said

offence;

(vi) in the dying declaration, names of respondent Nos.4 to 7

were specifically mentioned by the deceased and the role

played by them in commission of offence;

(vii) respondent No.3 has blatantly ignored the said dying

declaration;

KL,J W.P. No.12913 of 2020

(viii) the petitioner herein has submitted representations to

respondent No.2, dated 30.05.2016 and 20.06.2016 with

a request to instruct respondent No.3 to conduct and

complete investigation in a fair and transparent manner;

(ix) respondent No.2 has instructed respondent No.3 to

complete investigation and submit report by 15.06.2020;

(x) even then, respondent No.3 has not conducted and

completed the investigation in fair and transparent

manner, and on the other hand, he is trying to help

respondent Nos.4 to 7 by conveniently ignoring the dying

declaration recorded by the Magistrate which is a crucial

piece of evidence; and

(xi) therefore, the present writ petition.

4. Order, dated 21.08.2020:

In this writ petition, this Court vide order dated 21.08.2020,

observing that tardiness adopted by the respondent authorities in

conducting investigation, taking necessary action in the crime,

directed respondent No.2 to look into the matter, place before the

Court instructions / counter to indicate as to why respondent No.3

authority has not taken any action kept pending the investigation for

such a long time and also as to why respondent No.3 authority should

not be divested of the power to investigate into the above crime

registered and to transfer to another investigating authority or agency.

KL,J W.P. No.12913 of 2020

5. CONTENTS OF COUNTER AND ADDL.COUNTER OF RESPONDENT No.2:

Respondent No.2 has filed counter on 26.09.2020 stating that

they have already sought expert's opinion and waiting for the same. It

is further stated that there is variation from the statements of the

complainant, eye-witnesses and other circumstantial witnesses. There

is doubt in the mind of Investigating Agency that dying declaration

was not voluntary and was not made by free will of the deceased and

it was made at the best of others. As such, the police are waiting for

FSL report. In the counter, Section - 32 (1) of the Indian Evidence

Act and certain judgments have also referred to.

6. RELIEF SOUGHT IN I.A. No.2 OF 2020:

In view of the same, the petitioner herein has filed I.A. No.2 of

2020 seeking a direction to entrust the investigation to CBCID or

neighbouring District Sub-Divisional Police Officer to conduct

impartial and fair investigation in Crime No.63 of 2016 on the ground

that the Investigating Officer is trying to discard the dying declaration

which is a crucial piece of evidence, and according to the petitioner,

the Investigating officer is not having such power. Reliance was also

placed on the principle laid down by the Hon'ble Supreme Court in

Neetu Kumar Nagaich v. The State of Rajasthan1.

7. CONTENTS OF COUNTER OF RESPONDENT Nos.4 to 7:

A counter was filed by respondent Nos.4 to 7 opposing the said

I.A. No.2 of 2020 and the writ petition. It is stated that the

. 2020 (11) SCALE 185 KL,J W.P. No.12913 of 2020

Investigating Officer has already recorded the statements of witnesses,

obtained expert's opinion and considering the same, completed the

investigation and filed final report treating it as 'suicidal death by

burns'. If the petitioner is having any grievance, he has to file protest

petition and take recourse under the provisions of the Code of

Criminal Procedure. Instead of doing so, he has filed the said I.A.

seeking a direction to entrust the investigation either to CBCID or

neighbouring District Sub-Divisional Police Officer which is

impermissible.

8. CONTENTIONS OF THE PETITONER:

i) Mr. Palle Sriharinath, learned counsel for the petitioner,

would submit that respondent No.3 has registered a case in Crime

No.63 of 2016 on the complaint lodged by him under Section - 174 of

Cr.P.C. After obtaining dying declaration, respondent No.3 has

altered section of law from Section 174 of Cr.P.C. to Section - 302

read with 34 of IPC. Despite the dying declaration, a crucial piece of

evidence, wherein the deceased has specifically referred to the names

of respondent Nos.4 to 7 and the role played by them in the

commission of offence, respondent No.3 did not conduct fair and

transparent investigation, on the other hand, he tried to discard the

dying declaration, a crucial piece of evidence and did not record the

statements of the important / material witnesses, filed the final report

stating that it is a 'suicidal death by burns'.

KL,J W.P. No.12913 of 2020

ii) Learned counsel has referred to the contentions of

respondent No.2 in the counter and the additional counter affidavit

wherein it is categorically mentioned that there is variation from the

statements of the complainant, eye-witnesses and other circumstantial

witnesses and, therefore, there is doubt in the mind of Investigating

Agency that the dying declaration was not voluntary and made by free

will of the deceased and it was at the behest of others. They are also

waiting for FSL report. They have referred to Section 32 (1) of the

Indian Evidence Act and the principle laid down by the Hon'ble

Supreme Court in various judgments.

iii) In the additional counter affidavit, it is also mentioned that

the Investigating Officer has sought some clarification from the

Medical Officer as extracted in the tabular form therein. The

Investigating Officer played the Video and Audio Compact Disks

(CDs). The deceased was said to be a 'psychopath'. As per the

statements of eye-witnesses (LWs.2 to 4), it is clear that the deceased

himself poured kerosene and set ablaze raising slogans against the

village Sarpanch. After extracting the gist of the statements of

witnesses, the Investigating Officer came to the conclusion that the

circumstances are in contradiction to the dying declaration.

Therefore, according to respondent No.2, dying declaration of the

deceased cannot be believed as it appears that it was given by the

deceased at the behest of the complainant, who intend to implicate the

alleged accused persons in criminal case to take vengeance as they are KL,J W.P. No.12913 of 2020

his rivals in village politics. Therefore, after obtaining permission

from the competent authority, the Investigating Officer has referred

the case as 'suicidal death by burns'. Therefore, according to the

learned counsel for the petitioner, the Investigating Officer is not

having power to discard the dying declaration and come to the

conclusion that it is not reliable. The Investigating Officer is also not

having power to suspect the dying declaration, which is a crucial piece

of evidence and the Hon'ble Supreme Court in catena of decisions

categorically held that the genuinety or otherwise of dying declaration

can be tested by the trial Court during trial. It is further held that

conviction can be recorded on the sole testimony of dying declaration.

Ignoring the same, the Investigating Officer without having power

discarded the said dying declaration and filed the final report treating

it as 'suicidal death by burns'. Therefore, according to the learned

counsel for the petitioner, the said action of respondent Nos.2 and 3 is

arbitrary, illegal and in violation of the provisions of Cr.P.C. and the

principle laid down by the Apex Court.

9. CONTENTIONS OF OFFICIAL RESPONDENTS:

On the other hand, learned Government Pleader for Home,

referring to the counter and additional counter affidavit filed by

respondent No.2 pursuant to the directions of this Court dated

21.08.2020, would submit that the Investigating Officer has recorded

the statements of seventeen (17) witnesses. He has also collected

certified copy of dying declaration. Thereafter, the Investigating KL,J W.P. No.12913 of 2020

Officer has altered the section of law from Section - 174 of Cr.P.C. to

Section - 302 read with 34 of IPC. He has also obtained FSL report

and also clarification from the Medical Officer. On the analysis of the

statements of the witnesses and the FSL report, the Investigating

Officer got suspicion on the dying declaration. There is variation

from the statements of the complainant, eye-witnesses and other

circumstantial witnesses. There is doubt in the mind of the

Investigating Officer that the dying declaration was not voluntary and

made by free will of the deceased and it was made at the behest of

others. Therefore, the Investigating Officer has referred the case as

'suicidal death by burns'. Therefore, according to learned

Government Pleader, the Investigating Officer has conducted the

investigation in a fair and transparent manner and there is no error in

it.

Mr. V. Ravi Kiran Rao, learned senior counsel representing Mr.

Sridhar Lonkala, learned counsel for respondentNos.4 to 7, would

submit that the Investigation Officer, on consideration of the

statements of witnesses, FSL Report and the dying declaration, filed

final report treating it as 'suicidal death by burns'. It is a final report

under Section 173 of Cr.P.C. The Investigating Officer has already

served notice on the petitioner and, therefore, if the petitioner is

having any grievance, he has to take recourse under the Code of

Criminal Procedure by filing a protest petition or appropriate KL,J W.P. No.12913 of 2020

application before the Magistrate seeking a direction to the

Investigating Officer to conduct proper investigation. Whereas, in the

present case, the petitioner without adopting such recourse filed the

present writ petition and, therefore, the same is not maintainable and it

has to be dismissed.

11. In view of the above rival submissions, the points that arise

for consideration by this Court are:

(i) Whether the Investigating Officer is having power to discard the dying declaration during the course of investigation on the ground that it is not reliable? and

(ii) Whether there are any grounds to order for further investigation by CBCID in Crime No.63 of 2016?

12. POINT No.1:

LEGAL POSITION:

i) Section - 32 of the Indian Evidence Act deals with 'cases in

which statement of relevant fact by person who is dead or cannot be

found, etc ., is relevant, and sub-section (1) deals with such statements

relating to cause of death, and as per which, when the statement is

made by a person as to the cause of his death, or as to any of the

circumstances of the transaction which resulted in his death, in cases

in which the cause of that person's death comes into question. Such

statements are relevant whether the person who made them was or

was not, at the time when they were made, under expectation of death, KL,J W.P. No.12913 of 2020

and whatever may be the nature of the proceeding in which the cause

of his death comes into question.

ii) The statement made by the deceased person will be treated

as an evidence and admissible in a Court of law. The reason behind

the same can be followed by a latin maxim Nemo Mariturus

Presumuntur Mentri which means that 'man will not meet his maker

with lying on his mouth'. "Statement written or verbal of relevant

facts made by a person, who is dead". "It is a statement of a person

died explaining the circumstances of his death". "It is the fact that

dying man can never lie or truth sits on the lips of dying man". Thus,"

a man about to die, does not lie". Therefore, the dying declaration is

admissible and considered as evidence in Court and it is a crucial

piece of evidence.

iii) The procedure to record dying declaration etc., are

specifically mentioned in Section - 32 of the Indian Evidence Act.

The burden to prove dying declaration lies on the prosecution.

Prosecution is put to strict proof of dying declaration. If the Court is

satisfied that the dying declaration is true and voluntary, it can basis

conviction on it without corroboration. Court can reject suspicious

dying declaration in criminal cases. In one of the judgments, the

Hon'ble Supreme Court categorically held that it is not proper for trial

Courts to look for loopholes in dying declarations. An incomplete

dying declaration is also admissible. A dying person does not lie.

Although there is neither a rule of law, nor of prudence that the dying KL,J W.P. No.12913 of 2020

declaration cannot be acted upon without corroboration, the Court

must satisfy itself that the said dying declaration is true and voluntary

and only then could it be the sole basis for conviction without

corroboration.

iv) In Umakant v. State of Chhattisgarh2, the Apex Court

held that though a dying declaration is not recorded in the Court in the

presence of accused nor it is put to strict proof of cross-examination

by the accused, still it is admitted in evidence against the general rule

that hearsay evidence is not admissible in evidence. The dying

declaration does not even require any corroboration as long as it

inspires confidence in the mind of the Court and that it is free from

any form of tutoring. At the same time, dying declaration has to be

judged and appreciated in the light of surrounding circumstances. The

whole point in giving lot of credence and importance to the piece of

dying declaration, deviating from the rule of evidence is that such

declaration is made by the victim when he/she is on the verge of

death.

v) In Bhagwan Tukaram Dange v. State of Maharashtra3,

the Apex Court held that dying declaration is a statement made by a

dying person as to the injuries culminated in his death or the

circumstances under which the injuries were inflicted.

. 2014 Crl.L.J. 4078 (SC)

. 2014 Crl.L.J. 1875 (SC) KL,J W.P. No.12913 of 2020

vi) In Harbans Singh v. State of Punjab4, the Apex Court

held that it is neither a rule of law nor of prudence that a dying

declaration requires to be corroborated by other evidence before a

conviction can be based thereon.

vii) In State of Uttar Pradesh v. Suresh alias Chhavan5, the

Apex Court held that minor incoherence in the statement with regard

to the facts and circumstances would not be sufficient ground for not

relying upon statement which was otherwise found to be genuine.

Hence, as a rule of prudence, there is no requirement as to

corroboration of dying declaration before it is acted upon.

viii) In M. Sarvana alias K.D. Saravana v. State of

Karnataka6, the Apex Court held that the dying declaration is the last

statement made by a person at a stage when he in serious

apprehension of his death and expects no chances of his survival. At

such time, it is expected that a person will speak the truth and only the

truth. Normally in such situations the courts attach the intrinsic value

of truthfulness to such statement. Once such statement has been made

voluntarily, it is reliable and is not an attempt by the deceased to cover

up the truth or falsely implicate a person, then the courts can safely

rely on such dying declaration and it can form the basis of conviction.

More so, where the version given by the deceased as dying declaration

is supported and corroborated by other prosecution evidence, there is

. AIR 1962 SC 439

. (1981) 3 SCC 635

. 2012 Crl.L.J. 3877 (SC) KL,J W.P. No.12913 of 2020

no reason for the courts to doubt the truthfulness of such dying

declaration.

ix) In Bhajju alias Karan Singh v. State of M.P.7, the Apex

Court held that declaration is admissible in evidence and the

admissibility is founded on the principle of necessity. A dying

declaration, if found reliable, can form the basis of a conviction.

x) In State of M.P. v. Vishweshwar Kol8, the Apex Court held

that a dying declaration cannot be analyzed as if it were a statute and it

was only if the Court was to find that the injured was not in a fit

condition to make a statement or the possibility that it was tutored or

motivated or the story given was completely unacceptable could be

some of the reasons for discarding it.

xi) In Vijay Pal v. State (GNCT) of Delhi9, the Apex Court

held that if the dying declaration is absolutely credible and nothing is

brought on record that the deceased was in such a condition, he or she

could not have made a dying declaration to a witness, there is no

justification to discard the same.

xii) In Waikhom Yaima Singh v. State of Manipur10, the

Apex Court held that there can be no dispute that dying declaration

can be the sole basis for conviction, however, such a dying declaration

has to be proved to be wholly reliable, voluntary, and truthful and

. 2012 Crl.L.J. 3877 (SC)

. 2011 Crl.L.J. 2172 (SC)

. 2015 Crl.L.J. 2041 (SC)

. 2011 Crl.L.J. 2673 (SC) KL,J W.P. No.12913 of 2020

further that the maker thereof must be in a fit medical condition to

make it. The oral dying declaration is a weak kind of evidence, where

the exact words uttered by the deceased are not available, particularly

because of the failure of memory of the witnesses who are said to

have heard it.

xiii) In Balbir v. Vazir11, the Apex Court held that an oral

dying declaration can form basis of conviction if the deponent is in a

fit condition to make the declaration and if it is found to be truthful.

The courts as a matter of prudence look for corroboration to oral dying

declaration.

xiv) In K. Ramachandra Reddy v. Public Prosecutor12, the

Apex Court held that the evidentiary value of dying declaration made

by the deceased:

"There is no doubt that the dying declaration is admissible in court under section 32(1) of the Indian Evidence Act, and there is no compulsion while making of dying declaration to take an oath, but the truth of the statement can be determined by the cross-examination. The court has to ascertain necessary measures to check the sanctity of the statement made by the deceased. As in India law, it was presumed that the man who is going to die, not meet his maker with a lie on his lips this is because, when the person is at his bed end all the desire and greed of person come to an end so probably there is no motive to lie. After that, the

. 2014 Crl.L.J. 3697 (SC)

. (1976) 3 SCC 618 KL,J W.P. No.12913 of 2020

court must be satisfied with the condition that the deceased must be in a fit state of mind while making the statement. After all the measures assured by the court and satisfied that the statement is made voluntarily and true then it will be sufficient to accept the statement to finding conviction even without the corroboration."

xv) In Khushal Rao v. State of Bombay13, the Apex Court

laid down the following principles relating to dying declaration:

"(i) There is no absolute rule of law that a dying declaration cannot be the sole basis of conviction unless corroborated. A true & voluntary declaration needs no corroboration.

(ii) A dying declaration is not a weaker kind of evidence than any other piece of evidence;

(iii) Each case must be determined on its own facts keeping in view the circumstances in which the dying declaration was made.

(iv) A dying declaration stands on the same footing as other pieces of evidence & has to be judged in the light of surrounding circumstances & with reference to the principle governing the weight of evidence.

(v) A dying declaration which has been recorded by a competent Magistrate in the proper manner, that is to say, in the form of questions and answers, &, as far as practicable in the words of the maker of the declaration stands on a much higher footing than a dying declaration which depends upon oral testimony which may suffer

. 1958 AIR 22 KL,J W.P. No.12913 of 2020

from all the infirmities of human memory & human character."

xvi) There are many circumstances in which the statement

made by the dying person is not admissible in a court of law. The said

conditions are:

(i) If there is no question for consideration about the cause

of death of the deceased. For example, if a person in his

declaration state anything which is not remote or having

a connection with the cause of death than the statement

is not relevant and hence not be admissible;

(ii) the declarant must be competent to give a dying

declaration, if the declaration is made by the child then

the statement will not be admissible in court as it was

observed by the High Court of Madhya Pradesh in

Amar Singh v. State of M.P.14 that without the proof of

mental fitness and physical fitness the statement would

not be considered reliable;

(iii) the statement which is inconsistent has no value and can

not be considered as evidentiary in nature;

. M.Cr.C. No.30972/2019, decided on 29.07.2019 KL,J W.P. No.12913 of 2020

(iv) the statement made by the deceased should be free from

any influential pressure and should be made

spontaneous;

(v) It is perfectly allowed to the court if they reject any

untrue statement which contradicting in nature;

(vi) if the statement is incomplete in the sense which means it

can not answer the relevant questions which are

necessary to found guilty, and on the counterpart,

statement deliver nothing so it will not be deemed to

consider;

(vii) doctor's opinion and the medical certificate should with

the statement and support that the deceased is capable of

understanding what statement he makes; and

(viii) If the statement is not according to the prosecution. In

this regard, the following points should be taken into

consideration by the apex court;

xvii) Further, while making the statement deceased must be in

fit mind of the state. Should be recorded by the magistrate or by a

police officer and person in a case when deceased was so precarious.

A dying declaration should be recorded in question-answer form and

written in words of the persons exactly who gives the statement.

Dying declaration due to compulsion or pressure not be relied upon

whereas dying declaration free from any biased relied upon. As it was KL,J W.P. No.12913 of 2020

held in the case of Krishna Lal v. Jagun Nath15 that the wife was

burnt by the husbands-in-law and in her dying declaration she held

that she was not burnt by her husband's-in-law and she was believed.

xviii) In Chirra Shivraj v. State of A.P16, the Apex Court held

that a mechanical approach in relying upon a dying declaration just

because it is there is extremely dangerous. The court has to examine a

dying declaration scrupulously with a microscopic eye to find out

whether the dying declaration is voluntary, truthful, made in a

conscious state of mind and without being influenced by other persons

and where these ingredients are satisfied, the Court expressed the view

that it cannot be said that on the sole basis of a dying declaration, the

order of conviction could not be passed.

xix) In Govindaraju @ Govinda v. State of Sriramapuram

P.S.17, the Apex Court held as under:

"23. Now, we come to the second submission raised on behalf of the appellant that the material witness has not been examined and the reliance cannot be placed upon the sole testimony of the police witness (eye-witness). It is a settled proposition of law of evidence that it is not the number of witnesses that matters but it is the substance. It is also not necessary to examine a large number of witnesses if the prosecution can bring home the guilt of the accused even with a limited number of witnesses. In the case of Lallu

. (1990) 3 SCC 45,

. (2010) 14 SCC 444

. (2012) 4 SCC 722 KL,J W.P. No.12913 of 2020

Manjhi and Anr. vs. State of Jharkhand (2003) 2 SCC 401, this Court had classified the oral testimony of the witnesses into three categories:-

a. Wholly reliable;

b. Wholly unreliable; and c. Neither wholly reliable nor wholly unreliable.

12. In the third category of witnesses, the Court has to be cautious and see if the statement of such witness is corroborated, either by the other witnesses or by other documentary or expert evidence."

xx) The above mentioned authoritative principle of law laid

down by the Apex Court, dying declaration is admissible in evidence.

It is a crucial piece of evidence. It is an exception to hear-say

evidence. Oral dying declaration is also admissible in evidence. If the

dying declaration is absolutely credible and nothing is brought on

record that the deceased was in such a condition, he or she could not

have made a dying declaration to a witness there is no justification to

discard the same. Thus, the genuineness, reliability, credibility or

otherwise has to be decided by the trial Court. As stated above,

burden of proof and relevancy of the dying declaration always lies on

the prosecution. It is put to strict proof. It is for the trial Court to

discard or disbelieve the dying declaration on the analysis of the entire

evidence available on record including oral and documentary. The

trial Court will analyze the reliability of dying declaration and its

admissibility basing on the depositions of witnesses. Therefore,

according to this Court, Investigating Officer is not having power to KL,J W.P. No.12913 of 2020

come to a conclusion that dying declaration is not reliable or genuine.

The Investigating Officer is not having power to suspect the dying

declaration and he cannot analyze the statements of witnesses and

come to a conclusion that it was recorded in suspicious manner and on

tutoring by others.

13. FINDING OF THE COURT:

i) In view of the above said discussion and the law laid down

by the Apex Court, coming to the case on hand, as already stated

above, during the course of investigation, respondent No.3 has

collected the dying declaration on 25.03.2017 and altered section of

law from Section - 174 of Cr.P.C. to Section 302 read with 34 of IPC.

Thereafter, he has recorded statements of 17 witnesses including the

petitioner herein as LW.1, LWs.2 to 4, eye-witnesses, LWs.5 and 6,

father and younger sister of deceased, LW.7, a circumstantial witness.

ii) In the final report, it is specifically mentioned that LW.1, the

petitioner herein narrated the contents of FIR in toto. He has

specifically stated in his statement recorded under Section - 161 of

Cr.P.C. that he has suspicion on the death of his brother and he has

corroborated the contents of complaint.

iii) LW.2, an eye-witness and a tea-stall owner, stated that he

found one person coming on to the road from back side of his hotel

carrying a plastic can and went on to the road and started shouting and

also shouted as "Sarpanch Jangam Sreenu down, down", and saying

so, he poured kerosene on his body and lit fire himself.

KL,J W.P. No.12913 of 2020

iv) LWs.3 and 4, eye-witnesses and also running tea stalls

nearby the tea stall of LW.1. They corroborated the version of LW.2

in their statements.

v) LWs.5 and 6, father and younger sister of the deceased,

corroborated the version of LW.1 and specifically stated that they

have suspicion about the death of the deceased.

vi) LW.10 deposed that he along with deceased tried for

contract job in Electrical Sub-Station in outskirts of Jambikunta

village as operator through village Sarpanch, Sri Jangam Srinivas. In

the said process, he got the contract operator job in the said sub-

station and since then, the deceased bore grudge against him and also

threatened him with dire consequences.

vii) LW.11 deposed that on 11.05.2016 he along with deceased

and Laxman went to attend the marriage of Santosh and on the way

they met with Vamshi and Prabhanjan and all of them consumed

whisky and then left to attend the Baraath (marriage procession) of

Santosh, and in the said procession, the deceased and respondent No.6

left the place. Later the deceased came on CSI Church road and

started abusing others and abused the Sarpanch Jangam Srinivas and

respondent no.5 questioned him as to why he was abusing the

Sarpanch and as the nuisance was going on, the petitioner was

informed, who came there and took the deceased from the procession

place.

KL,J W.P. No.12913 of 2020

viii) LW.12 stated that the deceased removed his shirt and

roaming on the road here and there and abusing others saying that

none attended the death of his mother and none calling him to attend

the functions. Upon which, Mr. Naveen went to the deceased and

convinced him, but the deceased slapped him. As he did not clam, the

same was informed to the petitioner, who came and took the deceased

on his scooter.

ix) In the final report, it is also specifically mentioned that his

investigation concluded that as per the statements of eye witnesses,

the deceased himself poured kerosene and set ablaze and there is no

any iota of reliable evidence to say that the alleged accused persons

claimed the life of deceased. The dying declaration of the deceased

cannot be believed as 'it appears' that it was given by the deceased at

the behest of the complainant who intend to implicate the alleged

accused persons in the criminal case to take vengeance as they are his

rivals in village politics. The eye witness Boggula Ramesh, LW.2

stated that when he came to open his hotel as usual, he found one

person coming on to the road carrying a plastic can from back side of

hotel and poured kerosene and set ablaze himself, but none present at

the time. The other two eye witnesses, LWs.3 and 4 also deposed the

same version. Therefore, permission of competent authority has been

obtained vide proceedings dated 18.10.2020 and referred the case as

'suicidal death by burns'.

KL,J W.P. No.12913 of 2020

x) As stated above, pursuant to the order dated 21.08.2020,

respondent No.2, IPS Officer, Superintendent of Police, Medak

District, filed counter on 26.09.2020 stating about the complaint given

by the petitioner and registration of rime by respondent No.3 etc. It is

also specifically mentioned about recording of statements by the

Investigating Officer. In paragraph No.5 of the counter, respondent

No.2 has stated that newspapers also reported that it is a suicidal

death. The complainant came to the police on 26.06.2016 and handed

over two Compact Disks (CDs) i.e., audio stating that while going to

Hospital, he recorded the statement of his brother in Ambulance and

other C.D. was recorded while he was undergoing treatment in the

hospital. Then, the Sub-Inspector of Police re-examined the

complainant and recorded his detailed statement and also conducted

seizure panchanama of two CDs handed over by the complainant in

the presence of mediators.

xi) It is also specifically mentioned about obtaining of dying

declaration and alteration memo. The dying declaration was also

extracted in paragraph No.7 of the counter, which is as follows:

"One Bharat who is right hand to Sarpanch beat me and abused saying die. On the same night, when I was going to Tea, Aswin, Sajan, Sreenu (Sarpanch) and others waylaid me, abused me and poured kerosene oil on me and set ablaze me, while I made hue and cry, neighbours shifted me to the Hospital."

KL,J W.P. No.12913 of 2020

xii) It is also specifically mentioned about the translation of

CDs with the help of Sri Sagar Patel, LW.18. It is also mentioned that

during the course of investigation, the Investigating Officer sent a

Questionnaire to the Medical Officer, who conducted post-mortem

examination of the deceased at Gandhi Hospital, Secunderabad,

requesting to clarify on certain points. Such points are also

specifically mentioned. Referring to the same, in paragraph No.10 of

the counter, respondent No.2 has stated that the police are waiting for

expert's opinion. There is variation from the statements of

complainant, eye witnesses and other circumstantial witnesses. There

is doubt in the mind of Investigating Agency that dying declaration

was not voluntarily made by free will and it was at the behest of

others. As such, the Police are waiting for FSL report. She has

referred to Section - 32 (1) of the Indian Evidence Act and also the

principle laid down by the Apex Court. The expert's opinion says

that 95% burns with no other simple or grievous injuries, the

possibility of suicidal death is only probability, homicidal death can

be ruled out to the best of her knowledge and belief.

xiii) In the additional counter affidavit, respondent No.2 has

mentioned the clarifications sought by the Investigating Officer vide

his letter dated 15.02.2017 and the clarifications given by the Medical

Officer vide his letter dated 17.02.2017, the same are relevant for the

purpose of present case which are extracted herein below:

KL,J W.P. No.12913 of 2020

Clarification sought by Clarification given by Medical Sl.No.

SI/Investigating Officer Officer In this particular case of 95% burns with no other injuries as already The injuries mentioned in issued in the Post-Mortem Report, PME report over the dead the Burns are due to flammable 1 body may be caused liquid / kerosene as they are mixed poured kerosene himself or flame burn injuries. As there are no poured by others? defence injuries over the body, the point of kerosene poured by others in this case can be ruled out.

Any other injuries found No other injuries were noted over 2 on the dead body? the body.

In this particular case of 95% burns As per the burn injuries, it with no other grievous injuries, the 3 may be Suicidal Death or possibility of suicidal death is only Homicidal Death? the probability. Homicidal death can be ruled out.

xiv) In paragraph No.4 of the additional counter, it is

specifically mentioned that Circle Inspector of Police, who has taken

charge of Alladurg Circle, has re-examined and recorded the

statements of Boggula Ramesh, Namshagari Narsimulu, Md. Sajid,

and Neerudi Bagaia (LWs-2 to 4 & 8). The said witnesses deposed

the same version what they deposed before the former SHO.

Surprisingly, in paragraph No.5, respondent No.2 has mentioned as

under:

"In the early hours of 12-05-2016, the deceased came out from the house, reached near the house of Sarpanch Jangam Srinivas and thereafter went onto the road carrying flammable liquid / kerosene in the plastic can, raising slogans against village Sarpanch Jangam Srinivas and set himself ablaze as the deceased was said to be a psychopath...."

xv) Respondent No.2 has also mentioned the gist of the

statements of witnesses. It is mentioned that there is strong animosity

between the deceased, his brother (LW.1) parents and Sarpanch KL,J W.P. No.12913 of 2020

Jangam Srinivas (respondent No.7) of the village as the Sarpanch

assured them to provide a job to the deceased in Jambikunta Electrical

Sub-Station, but it could not be materialized, as stated by Arun Kumar

(LW.12) who got contract job. On that night, prior to the incident, a

clash took place between the deceased and Ashwin and Sajan and

others (respondent Nos.4 to 7for indecent behaviour and dancing in

drunken condition by the deceased in the marriage process of their

common friend viz., Santhosh.

xvi) The circumstances which contradict the dying declaration

were also specifically mentioned in paragraph No.5 of the additional

counter affidavit.

xvii) In paragraph No.6 of the additional counter affidavit,

respondent No.2 has specifically mentioned about the local politics,

groups and rivalry and that local MLA is supporting respondent Nos.4

to 7 herein. By referring to the same, respondent No.2 in paragraph

No.7 further mentioned that the dying declaration of the deceased

cannot be believed as "it appears" that the dying declaration was

given by the deceased at the behest of the complainant who intend to

implicate the alleged accused persons in the criminal case to take

vengeance as they are his rivals in village politics.

xviii) It is also relevant to note that the principle relied upon by

respondent No.2 in the counter affidavit as well as additional counter

affidavit is the principle laid down by the Apex Court while KL,J W.P. No.12913 of 2020

examining convictions recorded against the accused by the trial Courts

relying on dying declaration. Whereas, in the present case, the matter

is at crime stage and Investigating Officer has to conduct fair and

transparent investigation in accordance with the procedure laid down

under the Criminal Procedure Code. Therefore, the Investigating

Officer and respondent No.2 cannot rely upon the said principle of the

Hon'ble Supreme Court while examining the correctness of the

judgments convicting accused therein relying on the dying

declaration. It is also relevant to note that in the said judgments, it is

specifically mentioned that the Court (trial Court), in no uncertain

terms, held that it cannot be laid down as an absolute rule of law that

dying declaration cannot form the sole basis of conviction unless it is

corroborated by other evidence. The dying declaration, if found

reliable, could form the basis of conviction. Suspicious circumstances

and reliability of dying declaration has to be considered by the trial

Court not by the Investigating Officer. Evidentiary value of dying

declaration was also recorded by the Apex Court in Khushal Rao13.

Therefore, the judgments referred to by respondent No.2 in the

counter and additional counter and also learned Government Pleader

for Home during the course of arguments and the principle therein are

not applicable to the facts of the case on hand.

xix) It is also relevant to note that in the final report dated

18.10.2020 and in the counter filed by respondent No.2 on

26.09.2020, there is mention that the deceased was "PSYCHOPATH".

KL,J W.P. No.12913 of 2020

A perusal of the statements of witnesses recorded by the Investigating

Officer, none of the witnesses spoke that the deceased was

'psychopath'. But, respondent No.2 in the additional counter affidavit

filed on 19.02.2021 mentioned that that the deceased was

'psychopath'. There is no basis for the said statement. It is not

mentioned by respondent No.2 that on what basis she came to a

conclusion that the deceased was 'psychopath'. There is no mention

in the final report and counter filed by respondent No.2 that the

deceased was 'psychopath'. All of a sudden, respondent No.2 in her

additional counter affidavit stated that the deceased was 'psychopath',

which is not expected from respondent No.2, IPS Officer,

Superintendent of Police of a District. Thus, respondent No.3 -

Investigating Officer has not conducted investigation in fair and

transparent manner in Crime No.63 of 2016 pending on the file of

Shankarampet (A) Police Station. This Court vide order dated

21.08.2020, directed respondent No.2 to look into the matter and place

written instructions etc., respondent No.2 without looking into the

entire evidence and the manner in which respondent No.3 has

conducted investigation, filed counter affidavit and additional counter

affidavit which are contrary to each other. There is no basis for the

said statements of respondent No.2 in both the counter affidavit and

additional counter affidavit. At the cost of repetition, as stated above,

there is no basis for the contention of respondent No.2 that the

deceased was psychopath. There is no basis for the contention of

respondent No.2 with regard to reliability of dying declaration.

KL,J W.P. No.12913 of 2020

Respondent No.2 did not mention specifically as to on what ground

and on what basis respondent No.3 came to the conclusion that there

was suspicion with regard to the dying declaration which is in fact the

duty of trial Court. Therefore, according to this Court, the

Investigating Officer has not conducted investigation in Crime No.63

of 2016 in a fair and transparent manner. Despite a specific direction

by this Court on 21.08.2020, respondent No.2 being a responsible

officer, an IAS Cadre, did not look into the matter and did not

supervise the investigation properly. Though respondent No.2 has

stated that there are disputes between two groups in the same village,

respondent No.2 did not supervise and instruct the Investigating

Officer to conduct investigation in fair and transparent manner.

Therefore, according to this Court, respondent Nos.2 and 3 failed to

conduct investigation in a fair and transparent manner in Crime No.63

of 2016.

xx) At the cost of repetition, as stated above, the Investigating

Officer is not having power to suspect the dying declaration and give a

finding with regard to its reliability and admissibility. The

Investigating Officer is also not having power to discard the dying

declaration, which is a crucial piece of evidence. Accordingly, point

No.1 is answered.

14. POINT No.2:

i) As stated above, the petitioner herein filed I.A. No.2 of 2020

seeking a direction to entrust investigation either CBCID or KL,J W.P. No.12913 of 2020

neighbouring District, Sub-Divisional Police Officer to conduct

impartial and fair investigation in Crime No.63 of 2016. As discussed

supra, the Investigating Officer has not conducted investigation in fair

and transparent manner in the said crime, and respondent No.2 did not

supervise the same. In view of the same, the contentions of the

learned Government Pleader for Home and Mr. V. Ravi Kiran Rao,

learned senior counsel appearing on behalf of respondent Nos.4 to 7,

that the petitioner has to file either protest petition or an application

before the Magistrate seeking the said relief.

ii) As discussed above, there are serious deficiencies in

conducting the investigation. The Investigating Officer has not

examined the relevant witnesses and he has not considered the real

cause of the death of deceased. The manner in which he sought

clarification from the Medical Officer would reveal the said fact. The

Investigating Officer sought clarification from the Medical Officer

with regard to the injuries mentioned in PME Report over dead body

may be caused poured kerosene himself or poured by others.

According to this Court, the said clarification sought by the

Investigating Officer from the Medical Officer, who conducted post-

mortem examination report, can give nature of injuries and cause of

death. But, according to this Court, he cannot give any information as

to 'who poured kerosene'. The Investigating Officer has also sought

clarification from the Medical Officer that as per the burn injuries, it

may be suicidal death or homicidal death, and as discussed supra, the KL,J W.P. No.12913 of 2020

said issue cannot be decided by the Medical Officer. His duty is only

to conduct post-mortem examination for the purpose of giving opinion

with regard to the cause of death of deceased. Thus, there are lapses

in conducting investigation.

iii) In Dr. Naresh Kumar Mangla v. Smt. Aniota Agarwal18,

the Apex Court referring to the principle laid down in

Arnab Goswami v. Union of India [2020 AIR SC 2386) and in

Vinay Tyagi v. Irshad Ali [ (2013) 5 SCC 765] had an occasion to

deal with entrustment of investigation to other Agency including CBI.

The Apex Court held as under:

"At this stage, we may also state another well- settled canon of criminal jurisprudence that the superior courts have the jurisdiction under Section 482 of the Code or even Article 226 of the Constitution of India to direct 'further investigation', 'fresh' or 'de novo' and even 'reinvestigation'. 'Fresh', 'de novo', and 'reinvestigation' are synonymous expressions and their result in law would be the same. The superior courts are even vested with the power of transferring investigation from one agency to another, provided the ends of justice so demand such action. Of course, it is also a settled principle that this power has to be exercised by the superior courts very sparingly and with great circumspection."

. Criminal Appeal Nos.872-873 of 2020, decided on 17.12.2020 KL,J W.P. No.12913 of 2020

The Apex Court further held as under:

"The court held that wherever a charge-sheet has been submitted to the court, even this Court would not ordinarily reopen the investigation especially by entrusting it to (2013) 5 SCC 762 PART D a specialized agency. However, in a proper case, when the Court feels that the investigation by the police has not been in the proper perspective and that in order to do complete justice, where the facts of the case demand that the investigation be handed over to a specialized agency, a superior court is not bereft of the authority to do so. (Disha v. State of Gujarat [(2011) 13 SCC 337: (2012) 2 SCC (Cri) 628] and Rubabbuddin Sheikh v. State of Gujarat [(2010) 2 SCC 200: (2010) 2 SCC (Cri) 1006]) In Pooja Pal vs Union of India16, a two judge Bench of this Court, speaking through Justice Amitava Roy, observed that there was no embargo on this Court to transfer an investigation to the CBI after submission of the charge-sheet in the following terms-

"79. The precedential ordainment against absolute prohibition for assignment of investigation to any impartial agency like CBI, submission of the charge-sheet by the normal investigating agency in law notwithstanding, albeit in an exceptional fact situation warranting such initiative, in order to secure a fair, honest and complete investigation and to consolidate the confidence of the victim(s) and the public in general in the justice administering mechanism, is thus unquestionably absolute and hallowed by time. Such a measure, however, can by no means be a KL,J W.P. No.12913 of 2020

matter of course or routine but has to be essentially adopted in order to live up to and effectuate the salutary objective of guaranteeing an independent and upright mechanism of justice dispensation without fear or favour, by treating all alike....."

81. The judicially propounded propositions on the aspects of essentiality and justifiability for assignment of further investigation or reinvestigation to an independent investigating agency like CBI, whether or not the probe into a criminal offence by the local/State Police is pending or (2016) 3 SCC 135 PART D completed, irrespective of as well, the pendency of the resultant trial have concretised over the years, applicability whereof, however, is contingent on the factual setting involved and the desideratum for vigilant, sensitised and even-handed justice to the parties.

83....... Though a court's satisfaction of want of proper, fair, impartial and effective investigation eroding its credence and reliability is the precondition for a direction for further investigation or reinvestigation, submission of the charge- sheet ipso facto or the pendency of the trial can by no means be a prohibitive impediment. The contextual facts and the attendant circumstances have to be singularly evaluated and analysed to decide the needfulness of further investigation or reinvestigation to unravel the truth and mete out justice to the parties." Similarly, in Dharam Pal vs State of Haryana17, a two judge Bench of this Court, speaking through Justice Dipak Mishra (as the learned Chief Justice then was), upheld the KL,J W.P. No.12913 of 2020

power of this Court to transfer an investigation to the CBI, irrespective of the stage of the trial. It held:

"24. Be it noted here that the constitutional courts can direct for further investigation or investigation by some other investigating agency. The purpose is, there has to be a fair investigation and a fair trial. The fair trial may be quite difficult unless there is a fair investigation. We are absolutely conscious that direction for further investigation by another agency has to be very sparingly issued but the facts depicted in this case compel us to exercise the said power. We are disposed to think that purpose of justice commands that the cause of the victim, the husband of the deceased, deserves to be answered so that miscarriage of justice is avoided.

Therefore, in this case the stage of the case cannot be the governing factor."

The Apex Court also further held as under:

"25. ....If a grave suspicion arises with regard to the investigation, should a constitutional court close its hands and accept the proposition that as the trial has commenced, the (2016) 4 SCC 160 PART D matter is beyond it? That is the "tour de force" of the prosecution and if we allow ourselves to say so it has become "idée fixe" but in our view the imperium of the constitutional courts cannot be stifled or smothered by bon mot or polemic...." 23 Having regard to the circumstances which have emerged on the record, KL,J W.P. No.12913 of 2020

which have been adverted to in the earlier part of the judgment, we are of the view that it is necessary to entrust a further investigation of the case to the CBI in exercise of the powers of this Court under Article 142 of the Constitution. The conduct of the investigating authorities from the stage of arriving at the scene of occurrence to the filing of the charge-sheet do not inspire confidence in the robustness of the process. A perusal of the charge-sheet evinces a perfunctory rendition of the investigating authorities‟ duty by a bare reference to the facts and the presumption under Section 304B of the IPC when the death occurs within seven years of the marriage. The stance taken by the Deputy Superintendent of Police in the Counter Affidavit, filed a few days after forwarding the charge-sheet, travels beyond the scope of the investigation recorded in the charge-sheet with respect to the veracity of the suicide note, medical examination of injuries and the past miscarriages of the deceased. Critical facts of the money trail between the deceased, her father (the informant), and the accused; and the call history of A2, the informant and the deceased are unexplored. No attempt at custodial interrogation of the applicants was made between the issuance of non-bailable warrants on 9 September 2020 and interim protection from arrest by the High Court granted on 22 September 2020. As noted above, upon questioning during the hearing, the Counsel for the State answered that PART E no investigation on the allegation of murder had been conducted. It would indeed be a travesty if this Court were to ignore the glaring deficiencies in the investigation conducted so far, irrespective of the stage of the KL,J W.P. No.12913 of 2020

proceedings or the nature of the question before this Court. The status of the accused as propertied and wealthy persons of influence in Agra and the conduct of the investigation thus far diminishes this Court's faith in directing a further investigation by the same authorities. The cause of justice would not be served if the Court were to confine the scope of its examination to the wisdom of granting anticipatory bail and ignore the possibility of a trial being concluded on the basis of a deficient investigation at best or a biased one at worst."

With the above said findings, the Apex Court in exercise of its powers

under Article - 142 of the Constitution of India, to do complete justice,

entrusted the investigation to CBI.

iv) In Babubhai v. State of Gujarat19, the Apex Court

referring to its earlier judgments in K. Chandrasekhar v. State of

Kerala [(1998) 5 SCC 223]; Ramachandran v. R. Udhayakumar

[(2008) 5 SCC 413]; Nirmal Singh Kahlon (supra); Mithabhai

Pashabhai Patel v. State of Gujarat [(2009) 6 SCC 332]; and

Kishan Lal v. Dharmendra Bafna [(2009) 7 SCC 685] held as

under:

30. where the court comes to the conclusion that there was a serious irregularity in the investigation that had taken place, the court may direct a further investigation under Section 173(8) Cr.P.C., even transferring the investigation to an independent

. (2011) 1 SCC (Cri.) 33 KL,J W.P. No.12913 of 2020

agency, rather than directing a re-investigation.

"Direction of a re-investigation, however, being forbidden in law, no superior court would ordinarily issue such a direction."

31. Unless an extra ordinary case of gross abuse of power is made out by those in charge of the investigation, the court should be quite loathe to interfere with the investigation, a field of activity reserved for the police and the executive. Thus, in case of a mala fide exercise of power by a police officer the court may interfere. (vide: S.N. Sharma Vs. Bipen Kumar Tiwari & Ors. AIR 1970 SC

786).

32. In Kashmeri Devi Vs. Delhi Administration & Anr. AIR 1988 SC 1323, this Court held that where the investigation has not been conducted in a proper and objective manner it may be necessary for the court to order for fresh investigation with the help of an independent agency for the ends of justice so that real truth may be revealed. In the said case, this court transferred the investigation to the CBI, after coming to the conclusion that investigation conducted earlier was not fair.

33. The above referred to judgments of this Court make it clear that scheme of investigation, particularly, Section 173(8) Cr.P.C. provides for further investigation and not of re- investigation. Therefore, if the Court, comes to the conclusion that the investigation has been done in a manner with an object of helping a party, the court may direct for further investigation and ordinarily not for re-investigation. The expression ordinarily means normally and it is used where there can be KL,J W.P. No.12913 of 2020

an exception. It means in the large majority of cases but not invariably. "Ordinarily" excludes "extra-ordinary" or "special circumstances". (vide: Kailash Chandra v. Union of India (AIR 1961 SC 1346); Eicher Tractors Ltd., Haryana v.

Commissioner of Customs, Bombay (AIR 2001 SC 196); and State of A.P. v. Sarma Rao (AIR 2007 SC 137).

Thus, it is evident that in exceptional circumstances, the court in order to prevent the miscarriage of criminal justice, if considers necessary, it may direct for investigation de novo wherein the case presents exceptional circumstances.

The Apex Court further held that the scheme of investigation,

particularly, Section 173 (8) of Cr.P.C. provides for further

investigation and not of re-investigation, and on consideration of facts

of the said case, it was held that it is evident that in exceptional

circumstances, the Court in order to prevent miscarriage of criminal

justice, if considers necessary, it may direct for investigation de novo

wherein the case presents exceptional circumstances.

v) In Dharam Pal v. State of Haryana20 it was noticed that

power of the constitutional Court to order fresh or de novo

investigation could also be exercised after commencement of the trial

and the examination of some witnesses could not be an impediment

and observed as follows:

. (2016) 4 SCC 160 KL,J W.P. No.12913 of 2020

"25. ....The power to order fresh, de novo or reinvestigation being vested with the constitutional courts, the commencement of a trial and examination of some witnesses cannot be an absolute impediment for exercising the said constitutional power which is meant to ensure a fair and just investigation. ...... It is the bounden duty of a court of law to uphold the truth and truth means absence of deceit, absence of fraud and in a criminal investigation a real and fair investigation, not an investigation that reveals itself as a sham one. It is not acceptable. It has to be kept uppermost in mind that impartial and truthful investigation is imperative. ...."

vi) Referring to the above said principle, a Three-Judge Bench

of the Apex Court in Neetu Kumar Nagaich1 held that where the

constitutional Court is satisfied that the investigation has not been

conducted in a proper and objective manner, fresh investigation with

the help of an independent agency can be considered to secure the

ends of justice so that the truth is revealed. The power may also be

exercised if the court comes to the conclusion that the investigation

has been done in a manner to help someone escape the clutches of the

law.

vii) In Vinubhai Haribhai Malaviya v. State of Gujarat21,

the Apex Court held that

"5. Separate criminal revision applications were filed before the Sessions Court, Surat, being

. (2019) 17 SCC 1 KL,J W.P. No.12913 of 2020

Revision Application Nos. 376 and 346 of 2011, insofar as the dismissal by the learned Magistrate of further investigation and the order rejecting registration of the FIR were concerned. Both these revision applications were decided by the learned Second Additional Sessions Judge, Surat by a common order dated 10.01.2012. By this order, the learned Second Additional Sessions Judge went into details of facts that were alleged in the application under Section 173(8) and found that a case had been made out for further investigation. Accordingly, he held:

"As per the above referred discussion, it can be seen that no effective investigation or discussions have been carried out in all these respect during in the course of the investigation of said offence and further, it is very noteworthy here that matters for which the prayers are made in these Revision Applications, all these matters are pertaining to the complaint of this case. Hence, it is very much necessary that for the purpose of carrying out a detailed and full investigation of this complaint, all these matters should also be investigated. But for the said purpose, it is not necessary that a separate complaint be registered and thereafter its investigation be carried out. But by covering this investigation also in the complaint of the present matter, if it is found out in such investigation that any offence was committed, then appropriate criminal proceedings can be initiated against such person."

KL,J W.P. No.12913 of 2020

viii) In Mekala Madhusudhan Reddy v. Director General of

Police22, a learned Single Judge of High Court of Andhra Pradesh held

as under:

"In view of the law, to avoid unreasonable delay by ordering further investigation without any reasonable cause is violative of Article 21 of the Constitution of India. In the present case, further investigation to be conducted is only to decide the complicity of the persons who are not arrayed as accused before this Court i.e. the three persons who are shown as Accused Nos. 7 to 10 in the counter filed by Deputy Superintendent of Police, C.I.D, Kurnool, based on certain allegations made by the defacto complainant. Investigating Agency did not file any report against the other three persons proposed to be arrayed as accused as there was no material. Moreover, the defacto complainant maintained silence for all these four years and suddenly lodged representation now. It is not known to whom the representation was submitted. However, that is the basis for the present situation. As discussed above, further investigation is only in connection with the report filed under Section 173 (2) to (6) Cr.P.C. and Section 173 (8) Cr.P.C. which permits filing of further report/reports and it must pertain to report but not for adding additional accused. The only course open to the Investigating Agency to add additional accused and try them before the Sessions Court is to follow the procedure contemplated under Section 319 Cr.P.C. But, circumventing the procedure provided under Code of Criminal Procedure, the Director General

. 2020 SCC OnLine AP 964 KL,J W.P. No.12913 of 2020

of Police entrusted further investigation to Additional Director General of Police, C.I.D, A.P to investigate into the complicity of the persons who are not arrayed before this Court which is unsustainable under law even by exercising power under Section 173(8) Cr.P.C."

ix) In view of the same, as discussed above, in the present case,

the Investigating Officer has not conducted investigation in fair and

transparent manner. There are serious deficiencies in conducting the

investigation. At the cost of repetition, it is relevant to note that this

Court vide order dated 21.08.2020 directed respondent No.2 to look

into the matter. But, unfortunately, respondent No.2 did not supervise

the investigation and allowed the Investigating officer to conduct and

conclude the investigation in an unfair and non-transparent manner.

In fact, respondent No.2 herself is not clear with the legal position

with regard to dying declaration. Therefore, it is a fit case to order for

fresh investigation / de novo investigation, by any Agency, like

CBCID. Accordingly, point No.2 is answered.

15. Accordingly, the present Writ Petition and I.A. No.2 of

2020 are allowed. The action of respondent Nos.2 and 3 in not

conducting the investigation in a fair and transparent manner by

considering the dying declaration in Crime No.63 of 2016 of

Shankarampet (A) Police Station, Medak District, is declared as

illegal and contrary to the principle laid down by the Apex Court in

the judgments referred supra. Consequently, investigation in Crime KL,J W.P. No.12913 of 2020

No.63 of 2016 of Shankarampet (A) Police Station, Medak District is