Kuldip Singh, J.@mdashBy this single judgment, we will dispose of CRA No. D-914-DB of 2012 and CRA No. D-915-DB of 2012, filed by Chamkaur Singh and State of Punjab respectively against the judgment and dated 28.4.2012, passed by learned Additional Sessions Judge, Patiala, vide which accused Amritbir Singh was acquitted of the charges framed against him u/s 302 IPC and Section 25 of the Arms Act. We will also dispose of Crl. Misc. Application No. 46788 of 2012 (in CRA No. D-915-DB of 2012) filed by the State of Punjab under Sections 311 and 391 Cr.P.C. for summoning of witnesses and leading additional evidence in this appeal. Chamkaur Singh, who is the real brother of Jaswinder Kaur (deceased) and maternal uncle of Amritbir Singh (accused) has filed Crl. Misc. Application No. 52009 of 2012 (in CRA No. D-914-DB of 2012) u/s 391 Cr.P.C. for leading additional evidence.
2. Accused Amritbir Singh, aged about 25 years, is alleged to have committed the murder of his grandfather Hamir Singh, father Iqbal Singh, mother Jaswinder Kaur and sister Gurmanvir Kaur on 12.8.2010 between 7:00 to 8:00 AM in his House No. 173, Preet Vihar, Nabha, District Patiala.
3. The case was registered on the statement of Bhagwan Singh, who is the husband of sister of Iqbal Singh (deceased father of the accused), wherein he has stated that he is resident of village Raipur, P.S. Amargarh, District Sangrur. On 12.8.2010, he had received a message about the killing of the said four family members by some unknown person.
4. The police conducted the investigation. There was no eye witness to the occurrence. There were two witnesses, namely, Lal Chand (PW5) and Piara Singh (PW4), before whom the accused is alleged to have made extra judicial confession. During interrogation, accused also got recovered 12 bore gun, cash and jewellery from the water tank constructed on the roof of his house, which were stated to be missing from his house. The accused also got recovered 32 bore revolver used in the crime alongwith live cartridges.
5. At the very outset, the learned Additional Advocate General for the State has pointed out that in this case the Investigating Officer (I.O.) colluded with the accused and deliberately did not collect the material evidence. Some evidence, which was collected, was kept away from the Court. Accused was able to influence the witnesses. Bhagwan Singh (complainant) also turned hostile on some material facts. Lal Chand and Piara Singh, the witnesses before whom the accused is alleged to have made extra judicial confession, also turned hostile. Harinder Kumar Sharma, Naib Tehsildar-cum-Executive Magistrate also turned hostile on some facts. It has been argued that the application of the State under Sections 311 and 391 Cr.P.C. should be decided first. The learned Additional Advocate General has pointed out following glaring drawbacks in the investigation and the prosecution of the case during trial:-
(i) Chamkaur Singh, witness of the inquest report was given up by the APP on the application of Bhagwan Singh (complainant), who had already turned hostile.
(ii) Fingerprint report regarding the fact that the fingerprints of accused were found on the rod recovered from the spot was not placed on judicial file by the I.O. The copy of the same has been attached with the application.
(iii) Two bullets recovered from the dead bodies of Hamir Singh and Jaswinder Kaur were sent to Forensic Science Laboratory (FSL), but the report of FSL was not placed on judicial file by the I.O. deliberately to help the accused.
(iv) It has also come in the investigation that 32 bore revolver used in the crime alongwith six live cartridges and another live cartridge were recovered from the running canal at the instance of accused by a team of divers headed by Sadiq Ansari and consisting of Ram Khan, Om Parkash Chauhan, Sayeed Khan, Sham Kumar, Rashib Ansari, Chillu Kumar, Rajesh Kumar and Ramesh Kumar. The diving operation was conducted on 13, 14 and 15.8.2010. The said divers were also important witnesses to state about the recovery at the instance of accused. But they were even not cited as witness by I.O. and consequently not examined.
(v) The photography and videography of recovery operation of the divers was done where accused was also present and pointed to the place of recovery, but the I.O. deliberately did not produce the photography and videography of the said operation on the judicial file, nor photographer Sanjeev Kumar and videographer Jasbir Singh were cited as witness. Even their statements u/s 161 Cr.P.C. were not recorded. This was also done to help the accused.
(vi) Harinder Kumar Sharma, Naib Tehsildar-cum-Executive Magistrate, who had witnessed the recovery, also turned hostile regarding some of the facts. However, when a Special Investigation Team (SIT) was constituted by the DIG after acquittal of the accused in the present case, he had filed an affidavit that he was under threat and pressure. Therefore, his testimony is not voluntary. He needs to be re-examined.
(vii) Chamkaur Singh (witness), who was given up as won over at the instance of Bhagwan Singh (complainant), who himself turned hostile, also needs to be examined. He has also filed an affidavit in this regard.
6. It has been argued that it was found that when after the judgment was pronounced and the SIT enquired into the matter, it came to the light that the I.O. Inspector Harbhajan Singh now DSP had accepted huge bribe and FIR No. 65 dated 25.5.2012 under Sections 217, 218 and 7/8/9/13(d) of the Prevention of Corruption Act has been registered against him at Police Station Kotwali, Nabha. The case is under investigation. It was also found that the other witnesses had also taken bribe during investigation and trial. Therefore, the I.O., who was bribed, did not carry out the proper investigation and deliberately did not examine some material witnesses during investigation nor cited them as witnesses. The material scientific, forensic and fingerprint evidence was also not produced on file, which could determine as to who has committed the crime. The FSL report regarding two bullets recovered from the dead bodies of Hamir Singh and Jaswinder Kaur was also not brought on file. The photographer and videographer were also not cited as witnesses. The witness Harinder Kumar Sharma, Naib Tehsildar-cum-Executive Magistrate was pressurized to deny some material facts.
7. After going through the file, we are shocked at the way the investigation was done. As pointed out above by the learned Additional Advocate General for the State, the scientific evidence, as cited above, was deliberately not brought on the record to help the accused. Some important witnesses like the divers were not even examined during the investigation nor cited as witnesses. They were to prove the recovery of weapon used in the crime at the instance of the accused.
8. The learned counsel for the accused, on the other hand, has argued that SIT could not be formed after the decision of the case as there is no provision for investigation after the judgment is finally pronounced. It has been further argued that the prosecution was vigilant and even during trial, they filed two applications u/s 311 Cr.P.C. on 20.12.2010 and 26.11.2011, which were allowed and Dr. Baljit Kaur, Radiologist, HC Nazar Singh and Constable Inder Singh were summoned and examined as witnesses. Sufficient opportunity was given to the prosecution. The iron rod recovered in this case was sent to FSL. Therefore, a fair trial was done and no additional evidence should be allowed. It has been further argued that additional evidence should not be allowed except in very exceptional cases. For this purpose, reliance has been placed on two judgments of Apex Court titled as
15. The investigating officials and the prosecutors involved in presenting this case, have miserably failed in discharging their duties. They have been instrumental in denying to serve the cause of justice. The misery of the family of the victim Gomi has remained unredressed. The perpetrators of a horrendous crime, involving extremely ruthless and savage treatment to the victim, have remained unpunished. A heartless and merciless criminal, who has committed an extremely heinous crime, has gone scot-free. He must be walking around in Ahmedabad, or some other city/town in India, with his head held high. A criminal on the move. Fearless and fearsome. Fearless now, because he could not be administered the punishment, he ought to have suffered. And fearsome, on account of his having remained unaffected by the brutal crime committed by him. His actions now, know of no barriers. He could be expected to act in an unfathomable savage manner, uncomprehendable to a sane mind.
16. As we discharge our responsibility in deciding the instant criminal appeal, we proceed to apply principles of law, and draw inferences. For, that is our job. We are trained, not to be swayed by mercy or compassion. We are trained to adjudicate without taking sides, and without being mindful of the consequences. We are required to adjudicate on the basis of well drawn parameters. We have done all that. Despite thereof, we feel crestfallen, heartbroken and sorrowful. We could not serve the cause of justice, to an innocent child. We could not even serve the cause of justice, to her immediate family. The members of the family of Gomi must never have stopped cursing themselves, for not adequately protecting their child from a prowler, who had snatched an opportunity to brutalize her, during their lapse in attentiveness. And if the prosecution version about motive is correct, the crime was committed for a mere consideration of Rs. 1,000/-.
9. On the other hand, learned Additional Advocate General for the State has relied upon the celebrated authority of the Apex Court in
36. The principles of rule of law and due process are closely linked with human rights protection. Such rights can be protected effectively when a citizen has recourse to the Courts of law. It has to be unmistakably understood that a trial which is primarily aimed at ascertaining the truth has to be fair to all concerned. There can be no analytical, all comprehensive or exhaustive definition of the concept of a fair trial, and it may have to be determined in seemingly infinite variety of actual situations with the ultimate object in mind viz. whether something that was done or said either before or at the trial deprived the quality of fairness to a degree where a miscarriage of justice has resulted. It will not be correct to say that it is only the accused who must be fairly dealt with. That would be turning a Nelson''s eye to the needs of the society at large and the victims or their family members and relatives. Each one has an inbuilt right to be dealt with fairly in a criminal trial. Denial of a fair trial is as much injustice to the accused as is to the victim and the society. Fair trial obviously would mean a trial before an impartial Judge, a fair prosecutor and atmosphere of judicial calm. Fair trial means a trial in which bias or prejudice for or against the accused, the witnesses, or the cause which is being tried is eliminated. If the witnesses get threatened or are forced to give false evidence that also would not result in a fair trial. The failure to hear material witnesses is certainly denial of fair trial.
37. to 45. xxx xxx xxx xxx xxx xxx
46. Ultimately, as noted above, ad nauseam the duty of the Court is to arrive at the truth and subserve the ends of justice. Section 311 of the Code does not confer any party any right to examine, cross-examine and re-examine any witness. This is a power given to the Court not to be merely exercised at the bidding of any one party/person but the powers conferred and discretion vested are to prevent any irretrievable or immeasurable damage to the cause of society, public interest and miscarriage of justice. Recourse may be had by Courts to power under this section only for the purpose of discovering relevant facts or obtaining proper proof of such facts as are necessary to arrive at a just decision in the case.
47. to 51. xxx xxx xxx xxx xxx xxx
52. Whether a retrial u/s 386 or taking up of additional evidence u/s 391 is the proper procedure will depend on the facts and circumstances of each case for which no straight-jacket formula of universal and invariable application can be formulated.
53. In the ultimate analysis whether it is a case covered by Section 386 or Section 391 of the Code the underlying object which the Court must keep in view is the very reasons for which the Courts exist i.e. to find out the truth and dispense justice impartially and ensure also that the very process of Courts are not employed or utilized in a manner which give room to unfairness or lend themselves to be used as instruments of oppression and injustice.
54. to 63. xxx xxx xxx xxx xxx xxx
64. It is no doubt true that the accused persons have been acquitted by the trial Court and the acquittal has been upheld, but if the acquittal is unmerited and based on tainted evidence, tailored investigation, unprincipled prosecutor and perfunctory trial and evidence of threatened/terrorized witnesses, it is no acquittal in the eye of law and no sanctity or credibility can be attached and given to the so-called findings. It seems to be nothing but a travesty of truth, fraud on legal process and the resultant decisions of Courts-coram non judis and non est. There is, therefore, every justification to call for interference in these appeals.
10. The Apex Court ordered the re-investigation and re-trial on the following grounds:-
(1) Dishonest and faulty investigation.
(2) Trial held in perfunctory manner - Large number of PWs turning hostile and resiled.
(3) Star witnesses threatened.
(4) Prosecuting Agency not acted in requisite manner - Public Prosecutor rather acted as defence counsel.
(5) Large number of PWs not examined for one reason or the other - Even injured witness not examined.
(6) Some of the PWs examined who were relation to witness.
11. The relevant provision in this regard also needs to be re-examined. Section 391 Cr.P.C. provides as under:-
391. Appellate Court may take further evidence or direct it to be taken.-
(1) In dealing with any appeal under this Chapter, the Appellate Court, if it thinks additional evidence to be necessary, shall record its reasons and may either take such evidence itself, or direct it to be taken by a Magistrate, or when the Appellate Court is a High Court, by a Court of Session or a Magistrate.
(2) When the additional evidence is taken by the Court of Session or the Magistrate, it or he shall certify such evidence to the Appellate Court, and such Court shall thereupon proceed to dispose of the appeal.
(3) The accused or his pleader shall have the right to be present when the additional evidence is taken.
(4) The taking of evidence under this section shall be subject to the provisions of Chapter XXIII, as if it were an inquiry.
12. The present case is an appeal against acquittal. The powers of the appellate Court in such cases are laid down in Section 386 of Criminal Procedure Code, 1973, which read as under:-
386. Powers of the Appellate Court.-After perusing such record and hearing the appellant or his pleader, if he appears, and the Public Prosecutor, if he appears, and in case of an appeal u/s 377 or section 378, the accused, if he appears, the Appellate Court may, if it considers that there is no sufficient ground for interfering, dismiss the appeal, or may--
(a) in an appeal from an order of acquittal, reverse such order and direct that further inquiry be made, or that the accused be re-tried or committed for trial, as the case may be, or find him guilty and pass sentence on him according to law;
(b) to (e) xxx xxx xxx xxx xxx
13. Therefore, in exceptional cases and to achieve the ends of justice, the Court can allow additional evidence or order re-trial either wholly or partly. We are of the view that in the present case, the investigation was faulty. A criminal case has been registered against the I.O. for accepting huge bribe from the accused to favour him. Some of the material witnesses were not examined during investigation. The material scientific evidence was kept away from the Court and some of the witnesses were either improperly given up or resiled after threat from the accused. In such circumstances, we are of the firm view that this is an exceptional case where such a power should be exercised. We refrain from making any comment on the evidence, evidentiary value of any of the witnesses or documentary or scientific evidence as the same may influence the trial Court in one or the other way.
14. We are of the view that when a serious case results in acquittal, the police is at liberty to hold an inquiry into the circumstances and find out the lapses on the part of the Investigating Officer. It is not an investigation, but an internal inquiry of the departmental nature. Internal departmental inquiry to find out the lapses in investigation leading to the acquittal of the accused is always permissible. Therefore, the said fact, which came to the notice of the team, which was called Special Investigation Team, though, it was holding an inquiry into the circumstances leading to the acquittal of the accused, can always be brought to the notice of appellate Court. Since faulty investigation, lapses on the part of the investigating officer and prosecution were there, therefore, the mere fact that two applications u/s 311 Cr.P.C. were allowed, does not mean that further additional evidence should be declined.
15. Keeping in view the foregoing discussion, the impugned judgment of acquittal dated 28.4.2012, passed by learned Additional Sessions Judge, Patiala, is set aside. Consequently, both the appeals stand allowed. The application of the State i.e. CRM No. 46788 of 2012 (in CRA No. D-915-DB of 2012) to produce on file the scientific evidence in the shape of fingerprint report, FSL report, the examination of team of divers, whose names are mentioned above, the production of photographs and video of recovery operation, the examination of Sanjeev Kumar, Photographer, Jasbir Singh, Videographer, re-examination of Harinder Kumar Sharma, Naib Tehsildar-cum-Executive Magistrate and Chamkaur Singh (PWs) is allowed. It is also left open to the trial Court to allow any other additional evidence, if it finds that same is necessary for the ends of justice. CRM No. 52009 of 2012, filed by Chamkaur Singh is also accordingly disposed of.
16. On the request of the State, the accused is directed to surrender his passport immediately, so that he may not flee the country. The State shall also be at liberty to take steps to alert the airport authorities to prevent the escape of the accused from country.
17. On behalf of State, it is requested that accused be ordered to be taken into custody, which is opposed by the learned counsel for the accused, who has stated that accused was acquitted by the trial Court. We refrain from passing any such order on bail matter and leave it to the trial Court to pass appropriate order as it deems fit in the circumstances of the case.
18. Keeping in view the fact that the Presiding Officer, who decided the case, has since been transferred and keeping in view the nature of the case, the case is remanded back to the Court of learned Sessions Judge, Patiala, who shall himself try the case and record the additional evidence, as discussed above, and thereafter proceed to record the statement of accused u/s 313 Cr.P.C. and then afford an opportunity to the accused to lead defence and thereafter, the case be decided afresh after considering the entire evidence and hearing both the parties. The case is ordered to be decided expeditiously.
19. The original file be sent to the Court of learned Sessions Judge, Patiala, forthwith.
