The importance of fair and effective investigations, disclosure of evidence, and the accused's right to a fair defense in criminal cases.

SANJIV KHANNA, J.

1. The present appeal leaves a sense of disquiet and concern for we perceive there was an attempt to withhold exculpatory evidence and hide discontinuity in the prosecution version. The triteness was latent in the written records in the form of the police case diary, and is enmeshed in some of the answers given by the author, i.e., the Investigating Officer ASI Manchand. Unfortunately, this concavity and latency could not be decripted at the first stage.

2. We would accept the prosecution case that the deceased Raju had died an unnatural death as a result of burn injuries as is clear from the MLC, marked Exhibit PW-10/A, recorded at the Jai Prakash Narayan Hospital on 14th April, 1997 at 1.30 P.M. The post-mortem report by Dr A.P. Singh, dated 19th April, 1997, marked Exhibit PW-11/A, records that Raju had died four days after admission on 18th April, 1997 at 7.20 A.M. The cause of death was septicaemia consequent upon infected burn injuries. The injuries were ante-mortem in nature, and inflicted about 4 days back. Injury Nos. 1 & 2 were caused by a blunt object, and Injury No.3 was caused by burns due to fire. Scalp hair were duly sealed and sent for FSL examination to confirm presence of kerosene oil.

3. The primary question, which has to be answered is whether the injuries were self inflicted, or were perpetrated by the appellant-Sarvesh with his co-predators namely Pappu, Vinod, Rajender and Raju, who had allegedly poured kerosene oil on Raju and set him ablaze near the railway crossing next to the house of Sarvesh. The said Pappu, Vinod, Rajender and Raju have not been arrested and declared as proclaimed offenders. The judgment under challenge dated 20th November, 1999 convicts the present appellant-Sarvesh under Section 302 read with Section 34 of the Indian Penal Code, 1860 (IPC, for short). The order on sentence dated 22nd November, 1999 sentences Sarvesh to undergo life imprisonment, pay fine of Rs.500/- and in default undergo rigorous imprisonment for one month. Benefit of Section 428 of the Code of Criminal Procedure, 1973 would apply.

4. The prosecution case as per the charge sheet and as accepted by the trial court is primarily predicated on the dying declaration of Raju, marked Exhibit PW-1/B, implicating Sarvesh and the proclaimed offenders. For the sake of completeness, we would like to reproduce the dying declaration in entirety, which was recorded by ASI Man Chand (PW-9), the Investigating Officer on 14th April, 1997 and became the fulcrum of the FIR No. 292/1997, Police Station Samai Pur Badli. Raju subsequently expired after about 4 days on 18th April, 1997. In the four days, his statement was not recorded by the Sub-Divisional Magistrate. ASI Man Chand (PW-9) has stated that he had requested the Sub-Divisional Magistrate to record Raju’s statement, but his request was orally rejected, an assertion rather ambiguous and debatable. It is strange, that PW-9 did not make the request in writing, knowing the sensitivity of the matter in light of its peculiar facts, as noticed and elucidated below. A rough English translation of the dying declaration marked Exhibit PW1/B statedly recorded by ASI Man Chand (PW-9), would read:-

“I am residing at the address given above. I am a meat-seller at Azadpur Mandi. My marriage to Shobha d/o Ranjeet Singh two years back was organized by my brother Ram Kishan s/o Dhaniram. Shobha was previously married. On April 11, 1997, I and my wife had quarrelled as Shobha’s brother, Raju would come to my house again and again. I packed my articles and left. Today, I had gone with my brother Pammi and our (employee) Chotu to my brother-in-law’s house near the railway phatak, where Shobha was residing. Shobha and her brother asked me whether I had come to take Shobha. Shobha refused to return with me and had stated that I had died for her and she had died for me. I left the place and went outside, while my brother had stayed inside. When I was on the street outsi