DEFECTIVE INVESTIGATION

1. DEFECTIVE INVESTIGATION Prof. S P SRIVASTAVA National Judicial Academy

2. Amitbhai Anilchandra Shah v. CBI, (2013) 6 SCC 348 An investigator is the kingpin of criminal justice delivery system.

3. Nirmal Singh Kahlon vs State Of Punjab & Ors (2009) 1 SCC 441 • An accused is entitled to a Fair Investigation. • Fair investigation and fair trial are concomitant to preservation of fundamental right of an accused under Article 21 of the Constitution of India. • A victim of a crime, is equally entitled to a fair investigation.

4. The term `investigation' has been defined in Section 2(h) of the Code to include all the proceedings under the Code for collection of evidence conducted by a police officer or by any person (other than a Magistrate) who is authorized by a Magistrate in this behalf.

5. R.P. Kapur Vs. State of Punjab AIR 1960 SC 866 • The Investigating Officer "is not to bolster up a prosecution case with such evidence as may enable the court to record conviction but to bring out the real unvarnished truth. • The entire emphasis on a fair investigation has to be to bring out the truth of the case before the court of competent jurisdiction •  Investigating agencies are guardians of the liberty of innocent citizens. Therefore, a heavy responsibility devolves on them of seeing that innocent persons are not charged on an irresponsible and false implication.

6. State of Bihar Vs. P.P. Sharma AIR 1991 SC 1260 • "Investigation is a delicate painstaking and dextrous process. Ethical conduct is absolutely essential for investigative professionalism. • The investigator must be alive to the mandate of Article 21 and is not empowered to trample upon the personal liberty arbitrarily..... An Investigating Officer who is not sensitive to the constitutional mandates may be prone to trample upon the personal liberty of a person when he is actuated by mala fides.“ • High responsibility lies upon the investigating agency not to conduct an investigation in tainted and unfair manner. The investigation should not prima facie be indicative of a biased mind and every effort should be made to bring the guilty to law.

7. Babubhai vs State Of Gujarat (2010) 12 SCC 254 • Fair investigation is part of constitutional guarantee under Article 20 and 21 of the Constitution and it is minimum requirement of Rule Of Law. • Investigation must be fair, transparent and judicious and free from objectionable features like bias, ulterior motive or other similar infirmities . • It is the duty of the Investigating Officer to conduct the investigation avoiding any kind of mischief and harassment to any of the accused.  • The Investigating Officer should be fair and conscious so as to rule out any possibility of fabrication of evidence and his impartial conduct must dispel any suspicion as to its genuineness. 

8. Causes and effect of Defective Investigation •  Defective or improper investigation may result from the acts of omission and/or commission, deliberate or otherwise, of the Investigating Officer or other material witnesses, who are obliged to perform certain duties in discharge of their functions •  Defective investigation per se cannot be a ground to declare the innocence of an accused.

9. Vinay Tyagi vs Irshad Ali @ Deepak (2013) (5) SCC 762 • ‘Fair and Proper Investigation’ in criminal jurisprudence has twin purpose. • Firstly, the investigation must be unbiased, honest, just and in accordance with law. • Secondly, the entire emphasis on a fair investigation has to be to bring out the truth of the case before the court of competent jurisdiction

10. CBI vs Rajesh Gandhi(1996) 11 SCC 253 • No one can insist that an offence be investigated by a particular agency. • An aggrieved person can only claim that the alleged offence be investigated fairly and properly. • Accused has no right with reference to the manner of investigation

11. Union of India vs. Prakash P. Hinduja 2003 (6) SCC 195 • Thus the legal position is absolutely clear and also settled by judicial authorities that the Court would not interfere with the investigation or during the course of investigation which would mean from the time of the lodging of the First Information Report till the submission of the report by the officer in charge of police station in court under Section 173(2) Cr.P.C., this field being exclusively reserved for the investigating agency.

12. Zahira Habibullah Sheikh vs State 2004(3) Supreme 210 • In the case of a defective investigation the Court has to be circumspect in evaluating the evidence and may have to adopt an active and analytical role to ensure that truth is found by having recourse to Section 311 or at a later stage also resorting to Section 391 instead of throwing hands in the air in despair. • If the investigation was faulty, it was not the fault of the victims or the witnesses.  • Those who are responsible for protecting life and properties and ensuring that investigation is fair and proper seem to have shown no real anxiety. Large number of people had lost their lives. Whether the accused persons were really assailants or not could have been established by a fair and impartial investigation.

13. Manu Sharma Vs. State (NCT of Delhi) (2010) 6 SCC 1 • In our jurisprudence an accused is presumed to be innocent till proved guilty, the alleged accused is entitled to fairness and true investigation and fair trial and the prosecution is expected to play balanced role in the trial of a crime. The investigation should be judicious, fair, transparent and expeditious to ensure compliance with the basic rule of law.

14. Photograph of the appellant were shown to witnesses and he was paraded before them. • Identification of accused in court was of no avail to the prosecution as it was not preceded by TI parade. • Identification by photographs was illegal and of no consequence. • Alleged FIR by ShyanMunshi PW2 was not an FIR but a signed statement to IO and hence hit by section 162 of Cr PC • Ballistic Experts concurred that empty cartridges had been fired from two different weapons and their Report supported the statement-in-chief of ShyanMunshi PW-2  •  PW-1’s name was not in the list of invitees, his statement was recorded quite belatedly which shows that he was not present in the party and he was planted by the prosecution.

15. Dhanaj Singh @ Shera vs State  2004 SCC (Cri) 851. • Deceased was attacked and murdered by accused persons when he was ploughing his field with complaint and his nephew. • Incident occurred at 11.00am • FIR on same day at 4.30 pm • Motive was old enmity. • Police charge sheeted complainant who was acquitted after trial. • Case against accused person proceeded on complaint filed by complainant.

16. Evidence of pw1 and pw2 was highly tainted and conviction could not be based on it. • Pellets recovered from the body of deceased were not sent to ballistic experts for reports. • Pellets, wads and cartridges were not recovered from the spot. • No foot prints were found. • Guns allegedly used were not sent for ballistic examination. • Blood stained earth was not sent for chemical examination. • Police had found that complaint was guilty of murder. • Recovery of gun was of no avail as it was not sent to ballistic expert for report.

17. In the case of a defective investigation the Court has to be circumspect in evaluating the evidence. But it would not be right in acquitting an accused person solely on account of the defect; to do so would tantamount to playing into the hands of the investigating officer if the investigation is designedly defective. • Even if the investigation is defective, in view of the legal principles set out above, that pales into insignificance when ocular testimony is found credible and cogent.  • Effect of non-examination of weapons of assault or the pellets etc. in the background of defective investigation is of no significance as there is no crack in the evidence of the vital witnesses. 

18. Amar Singh vs Balwinder Singh 2003 (2) SCC 518 • Incident took place at 7.00 p.m. on 23.5.1987 but the FIR was recorded at 9.20 p.m. on 24.5.1987 • Delay of 26 hours in sending the Special Report. • Details about the occurrence were not mentioned in the inquest report.

19. Police Inspector, did not take into possession the wire gauze of the window of the Baithak of Gurdial Singh from where A-1 is alleged to have fired his gun. • the investigating officer did not send the fire arms and the empties recovered from the spot for comparison to the Forensic Science Laboratory • in the Daily Diary Register (DDR), the names of the witnesses, weapons of offence and the place of occurrence were not mentioned.

20. In the case of a defective investigation the Court has to be circumspect in evaluating the evidence. But it would not be right in acquitting an accused person solely on account of the defect; to do so would tantamount to playing into the hands of the investigating officer if the investigation is designedly defective. • It would have been certainly better if the fire arms were sent to the forensic test laboratory for comparison. But the report of the ballistic expert would be in the nature of an expert opinion without any conclusiveness attached to it.

21. Ram Bihari Yadav vs State Of Bihar 1998 (4) SCC 517 • Prosecution has to prove the case against the accused in the manner stated by it and that any act or omission on the part of the prosecution giving rise to any reasonable doubt would go in favour of the accused. • The story of the prosecution will have to be examined de hors such omissions and contaminated conduct of the officials otherwise the mischief which was deliberately done would be perpetuated and justice would be denied to the complainant party and this would obviously shake the confidence of the people not merely in the law enforcing agency but also in the administration of justice.

22. Paras Yadav And Ors vs State Of Bihar 1999 (2) SCC 126 • Deceased stated before the witnesses and the Police Sub-Inspector that he was surrounded by Tulsi, Satan, Munshi and Paras and thereafter Paras stabbed him on abdomen. • Investigating Officer or the Doctor did not record dying declaration of the deceased. The Doctor was also not examined to establish that the deceased was conscious and in a fit condition to make the statement.

23. Karnel Singh vs The State Of M.P 1995 SCC (5) 518 • A lady laborer was raped by accused. • The two independent witnesses were not examined, whom she narrated the incident soon after the occurance. • Recovery of Chaddhi with semen stains of accused was not proved. continued..

24. We have very carefully scrutinized the evidence having regard to the fact that (PW6) the investigation officer had not taken the care expected of him. He did not record the statements of the two witnesses nor did he refer to the attachment of the `Chaddi' in his oral evidence. That was a very vital piece of evidence to which little or no attention was paid. If the seizure of that article was properly proved, the article with semen stains would have lent strong corroboration to the evidence of the prosecutrix. There is no doubt that the investigation was casual and defective.

25. In cases of defective investigation the court has to be circumspect in evaluating the evidence but it would not be right in acquitting an accused person solely on account of the defect; to do so would tantamount to playing into the hands of the investigating officer if the investigation is designedly defective. Any investigating officer, in fairness to the prosecutrix as well as the accused, would have recorded the statements of the two witnesses and would have drawn up a proper seizure-memo in regard to the `Chaddi'.

26. C. Muniappanvs State Of Tamil Nadu (2010) 9 SCC 567 • The case of the prosecution had been inherently improbable • The inquest reports were not consistent with the charge-sheets. • Identification on 22.2.2000 had been concluded within a short span of 2 hours and 25 minutes. Eighteen witnesses were there, having three rounds each. Therefore, one round was completed in three minutes, i.e., the Test Identification Parade was conducted in full haste and thus, could not be treated to be a proper identification.

27. The occurrence was so ugly and awful that the I.Os. had conducted the investigation under great anxiety and tension. The seizure memos were also prepared in the same state of affairs. Therefore, when the investigation had been conducted in such a charged atmosphere, some irregularities were bound to occur. • There may be highly defective investigation in a case. However, it is to be examined as to whether there is any lapse by the I.O. and whether due to such lapse any benefit should be given to the accused.

28. Where there has been negligence on the part of the investigating agency or omissions, etc. which resulted in defective investigation, there is a legal obligation on the part of the court to examine the prosecution evidence de hors such lapses, carefully, to find out whether the said evidence is reliable or not and to what extent it is reliable and as to whether such lapses affected the object of finding out the truth. Therefore, the investigation is not the solitary area for judicial scrutiny in a criminal trial. The conclusion of the trial in the case cannot be allowed to depend solely on the probity of investigation.

29. Dayal Singh & Ors vs State Of Uttaranchal (2012) 8 SCC 263 • IO noted three injuries on the body of deceased and noted in inquest report that death was caused because of these injuries. • In post mortem report doctor did not find any external or internal injury. • Viscera was preserved and handed over to police but never sent to FSL continued

30. The presence of PW2, PW4 and PW5 at the place of occurrence was in the normal course of business and cannot be doubted. Their statements are reliable, cogent and consistent with the story of the prosecution. Merely because PW3 (Doctor) and PW6 (IO) have failed to perform their duties in accordance with the requirements of law, and there has been some defect in the investigation, it will not be to the benefit of the accused persons to the extent that they would be entitled to an order of acquittal on this ground. Continued..

31. Now, we may advert to the duty of the Court in such cases. it is well settled that if the police records become suspect and investigation perfunctory, it becomes the duty of the Court to see if the evidence given in Court should be relied upon and such lapses ignored. If the investigation is designedly defective, the Court has to be circumspect in evaluating the evidence. But it would not be right in acquitting an accused person solely on account of the defect; to do so would tantamount to playing into the hands of the investigating officer if the investigation is designedly defective.”

32. Rajiv Singh vs State of Bihar2015(13) SCALE901. • The couple was returning after honey moon trip to Patna by Capital Express train. • The husband woke up at 5 am to find that her wife was not there. He searched her in the compartment, came up to Patna and ultimately lodged Fir at GRP Mokamah u/s 365 IPC suspecting kidnapping. • Dead body of unidentified lady was recovered in Azad Nagar near railway track. • DNA Test confirmed that the dead body was that of the wife of accused husband Archana. • Viscera test revealed that she was poisoned. continued..

33. DNA report was proved by Dr. Shyam Bahadur Upadhyay (PW10), Director In-charge, FSL, Patna. Significantly, though in terms of Section 293 Cr.P.C. the report being one from the government scientific expert, the same could have been per se used as evidence in the trial, the prosecution had voluntarily offered this witness to prove the same. • The report did not disclose any scientific data on which the conclusion was based. • samples were not analyzed at the laboratory of FSL, Patna but had been forwarded to a private laboratory i.e. Lab India. • PW 10 was not an expert in DNA test nor the test was conducted in his presence. • A technician had gone with the sample to the private lab and supervise the testing.Technician was not examined by prosecution. • The samples were not accompanied by the authentication card for DNA test as was necessary. • Blood samples of parents were directly sent to FSL>

34. Sakiri Vasu v. State of Uttar Pradesh [(2008) 2 SCC 409] • Section 156 (3) states: Any Magistrate empowered under Section 190 may order such an investigation as abovementioned (investigation by the officer in charge of the Police Station. • Section 156(3) provides: Check by the Magistrate on the police performing its duties. In case the Magistrate finds that the police has not done its duty of investigating the case at all, or has not done it satisfactorily, he can issue a direction to the police to do the investigation properly, and can monitor the same.

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