2000 Supreme(SC) 1411

2000(6) Supreme 172
SUPREME COURT OF INDIA
(From Calcutta High Court)
K.T. Thomas & R.P. Sethi, JJ.
State of West Bengal -Appellant
versus
Mir Mohammad Omar & Ors. etc. etc. -Respondents
Criminal Appeal Nos. 785 of 1991
With
(Criminal Appeal Nos. 786, 787, 788, 789/91 and 638-645/2000)
Decided on 29-8-2000
Counsel for the Parties :
For the Appearing Parties : K.T.S. Tulsi, P.S. Misra, Sr. Advocates, Dilip Sinha, T.C. Sharma, Vijay Kumar Shukla, (D. Mohanti, J.R. Das) for M/s. Sinha and Das) Advocates, (Rajesh) Advocate (NP), Farock M. Rajak, Mrs. Swarupa Reddy, Vishnu Sharma, S. Chandra Shekar, Upendra Misra, H.K. Puri, Rajesh Srivastava, Ms. Anindita Gupta, Ujjwal Banerjee, S.K. Puri, Advocates.

IMPORTANT POINTS
1. The function of the criminal courts should not be wasted in picking out the lapses in investigation and by expressing unsavoury criticism against investigating officers. If offenders are acquitted only on account of flaws or defects in investigation, the cause of criminal justice becomes the victim. Effort should be made by courts to see that criminal justice is salvaged despite such defects in investigation; the Court need make such deprecatory remarks only when it is absolutely necessary in a particular case.
2. The pristine rule that the burden of proof is on the prosecution to prove the guilt of the accused should not be taken as a fossilised doctrine as though it admits no process of intelligent reasoning.
3. Even if the murder did not take place, the offence would be complete if the abduction was completed with the said objective. Conversely, if there was no such objective when the abduction was perpetrated, but later the abductors murdered the victim, Section 364 IPC would not be attracted, though in such a case the court may have to consider whether the offence of culpable homicide (amounting to or not amounting to murder) was committed.

Headnote:(i) Indian Penal Code, 1860-Section 364-Abduction in order to murder-Condition precedent to attract provisions of section-Abduction must be proved to be for murder-Even if murder did not take place, offence would be complete if abduction was complete-Intention at the time of abduction is crucial.

       Even if the murder did not take place, the offence would be complete if the abduction was completed with the said objective. Conversely, if there was no such objective when the abduction was perpetrated, but later the abductors murdered the victim, Section 364 IPC would not be attracted, though in such a case the court may have to consider whether the offence of culpable homicide (amounting to or not amounting to murder) was committed. (Para 13)

       In the instant case, if the words attributed to the abductors can be believed we have no doubt that the abduction was done for the purpose of finishing him off. Knowing this position well, Sri P.S. Misra, learned Senior Counsel made a frontal criticism on the aforesaid evidence and contended that it is easy for interested witnesses to put such words in the mouth of the accused in order to aggravate the dimension of the offence. No doubt, witnesses can do so. But the question here is whether the aforesaid version of those witnesses was a concoction to embroil the abductors into the cobweb of a serious offence like Section 364 IPC. The reliability of that part of the evidence can be tested from different angles. First is, even in the FIR PW-5 had quoted those words as spoken to by A-1. It must be noted that when FIR was given PW-5 had no reason to believe that Mahesh was not alive. If Mahesh had come back alive it is doubtful whether police would have seriously followed up the FIR. Next is, the temper which the assailants exhibited in the house of the deceased s sister (when she was the sole inmate present therein), is broadly indicative of the truculence of the intruders that they went there with some definite purpose. Mahesh was once caught by them on that night itself by PW-4 and then he was badly handled by them. If their intention was only to inflict some blows on the victim they would have stopped with what they did to him at that stage. But when Mahesh struggled and extricated himself from their clutches and escaped to another place at Giri Babu Lane these accused did not stop and they persisted in prowling for their prey and succeeded in tracing him out from that different area and hauled him out violently. Such repeated chase for Mahesh could, in all probabilities, be for his blood. Thus, all the broad features of this case eloquently support the version of the witnesses to conclude that the words attributed to the accused were really uttered by them. For the aforesaid reasons, we have no difficulty to conclude that all the accused abducted Mahesh in order to murder him. (Paras 14 to 16)

       (ii) Evidence-Post mortem report -Report of Senior doctor v. Report of Junior doctor-Observation of junior creating doubt about identity of deceased-Senior doctor s opinion must prevail. (Paras 17 to 21)

       (iii) Criminal Trial-Courts duty-Mere omission to put a particular question by prosecutor-Not enough for Court to reach a wrong conclusion. (Para 23)

       (iv) Code of Criminal Procedure, 1973-Section 313-Examination of accused-Failure to put question on particular aspect-Legal effect of-Shirt allegedly belonging to deceased recovered from accused-Seriological test revealed blood-Trial Judge did not put any question under Section 313 about the circumstances-Feature on shirt cannot be used as a circumstances against accused. (Para 28)

       (v) Criminal Trial-Burden of proof-Pristine rule that burden of proof is on prosecution should not be taken as a fossilised doctrine as though it admits no process of intelligent reasoning-Doctrine of presumption is not alien to above rule-Evidence Act, 1872-Section 114.

       The pristine rule that the burden of proof is on the prosecution to prove the guilt of the accused should not be taken as a fossilised doctrine as though it admits no process of intelligent reasoning. The doctrine of presumption is not alien to the above rule, nor would it impair the temper of the rule. On the other hand, if the traditional rule relating to burden of proof of the prosecution is allowed to be wrapped in pedantic coverage the offenders in serious offences would be the major beneficiaries, and the society would be the casualty. (Para 31)

       Presumption of fact is an inference as to the existence of one fact from the existence of some other facts, unless the truth of such inference is disapproved. Presumption of fact is a rule in law of evidence that a fact otherwise doubtful may be inferred from certain other proved facts. When inferring the existence of a fact from other set of proved facts, the court exercises a process of reasoning and reach a logical conclusion as the most probable position. The above principle has gained legislative recognition in India when Section 114 is incorporated in the Evidence Act. It empowers the court to presume the existence of any fact which it thinks likely to have happened. In that process court shall have regard to the common course of natural events, human conduct etc. in relation to the facts of the case. (Para 33)

       (vi) Evidence Act, 1872-Section 106-Section not intended to relieve prosecution of its burden to prove guilt-Section would apply to cases where prosecution has succeeded in proving facts from which reasonable inference can be drawn regarding existence of certain facts.

       The section is not intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt. But the Section would apply to cases where the prosecution has succeeded in proving facts from which a reasonable inference can be drawn regarding the existence of certain other facts, unless the accused by virtue of his special knowledge regarding such facts, failed to offer any explanation which might drive the court to draw a different inference. (Para 37)

       Where deceased was seen abducted by the accused persons proclaiming he would be finished and within few hours his dead body was found in an hospital.

       Held that the facts which prosecution proved including the proclaimed intention of the accused, when considered in the light of the proximity of time within which the victim sustained fatal injuries and the proximity of the place within which the dead body was found are enough to draw an inference that victim s death was caused by the same abductors. If any deviation from the aforesaid course would have been factually correct only the abductors would know about it, because such deviation would have been especially within their knowledge. As they refused to state such facts the inference would stand undisturbed. (Para 39)

       (vii) Criminal trial-Function of trial Court-Should not be wasted in picking out lapses in investigation and expressing unsavoury criticism against investigating officers-Effort should be made by Courts to see that criminal justice is salvaged despite such defects in investigation-Deprecatory remarks could be made only when it is absolutely necessary.

       Castigation of investigation unfortunately seems to be a regular practice when the trial Courts acquit accused in criminal cases. In our perception it is almost impossible to come across a single case wherein the investigation was conducted completely flawless or absolutely foolproof. The function of the criminal courts should not be wasted in picking out the lapses in investigation and by expressing unsavoury criticism against investigating officers. If offenders are acquitted only on account of flaws or defects in investigation, the cause of criminal justice becomes the victim. Effort should be made by courts to see that criminal justice is salvaged despite such defects in investigation. Courts should bear in mind the time constraints of the police officers in the present system, the ill-equipped machinery they have to cope with, and the traditional apathy of respectable persons to come forward for giving evidence in criminal cases which are realities the police force have to confront with while conducting investigation in almost every case. Before an investigating officer is imputed with castigating remarks the courts should not overlook the fact that usually such an officer is not heard in respect of such remarks made against them. In our view the Court need make such deprecatory remarks only when it is absolutely necessary in a particular case, and that too by keeping in mind the broad realities indicated above. (Para 41)

       (viii) Criminal Procedure Code, 1973-Appeal for enhancement of sentence-Offence under Sections 364 and 302 r/w Section 34 IPC-Conviction by trial Court under Section 364 r/w 34 imposing sentence of 10 years R.I.-High Court reducing sentence to one accused already undergone while dismissing appeal of State against acquittal of offence under Section 302-High Court committed error-Clear evidence and circumstances-Conviction and sentence under Section 364 restored-Accused further convicted under Section 302 IPC for life. (Para 43)