Supreme Court Of Failure To Secure Conviction In Criminal Case

A. Romen Kumar Singh *

Supreme Court of India, photographed about 170 metres from the main building outside the perimeter wall
Pix - Wikipedia/Legaleagle86

"A fair and proper investigation is always conducive to the ends of justice and for establishing the rule of law and maintaining proper balance in law and order. There are very vital issues in a democratic set up which must be taken care of by the Courts".

1. The Constitution of India which is cornucopia of all the laws provides that right to speedy investigation and fair trial is integral part of very soul of Article 21 of the Constitution. [(2014) 1 SCC 280; (2013) 8 SCC 368].

The Supreme Court in Azija Begum V. State of Maharshtra, (2012) 3 SCC 126 held that every citizen of this country has a right to get his or her complaint properly investigated – Legal framework of investigation provided under the law can not be made selectively available only to some persons and denied to others. To do justice is not only to accused but also to society represented by prosecution. The Supreme Court in Daya Singh V. State of U.P., (2012) 8 SCC 263 held that aim of fair and speedy is to ensure not only that no innocent person is punished but also that guilty persons do not escape.

In another landmark judgment the Supreme Court in Babuhai V. State of Gujarat, (2010) 12 SCC 254 held that investigation must be fair, transparent and judicious. Tainted and biased investigation and consequent prejudice and harassment to any party can not be permitted to continue.

2. PRODIGIOUS INVESTIGATIONAL ABILITY BRINGS PUBLIC CLOSER TO POLICE.

Speedy and fair investigation by police which is the legal capacity of sovereignty is to uphold the dignity of the rule of law which is the core issue of the Constitution of India. If the police fails to perform its duties, the rule of law is under threat. If the rule of law is in danger, no civilised society can survive in the democracy.

Defective investigation and total lack of professional knowledge erodes the credibility of police and public has no faith in the system of investigation carried out by the police. It is well perceived jurisprudence that only the prodigious investigational ability brings the public closer to police but in the recent past there is no accountability of the police and prosecutor to gain conviction. In a recent landmark judgment as decided on 07-01-2014 the Supreme Court issued certain directions to the State Governments of the country as a mechanism to secure conviction in criminal case.

3. EVERY ACQUITTAL IS A FAILURE OF JUSTICE DELIVERY SYSTEM IN SERVING CAUSE OF JUSTICE-ERRING OFFICER MUST SUFFER THE CONSEQUENCES OF HIS LAPSE.

State of Gujarat V. Kishanbhai, 2014 (1) SCALE 177.

Brief of the case.

A complaint was lodged at Navrangpura Police Station, Ahmedabad, alleging the kidnapping/abduction of six year old girl child Gomi daughter of Keshanbhai Mahabhai Solanki and Laliben on 27-02-2003 at around 6.00 P.M. by the accused Kishanbhai, S/o. Valabhai Vanabhai Marawadi. It was alleged that the accused had enticed Gomi with a "gola" (crushed ice, with sweet flavoured syrup), and there upon had taken her to JIVI's FIELD, where he raped her. He had murdered her by inflicting injuries on her head and other parts of the body with bricks. In order to steal the "JHANJRIS"(anklets) worn by her, he had chopped off her feet just above her anklets. The aforesaid complaint was lodged, after the body of the deceased Gomi was found from Jivi's field, at the instance of the accused Kishanbhai. On the receipt of the above complainant, the first information report came to be registered at Navrangpur Police Station, Ahmedabad.

Trial Court convicted the accused for offences u/s.363, 369, 376, 344, 302 and 201 IPC and sentenced him to death – on Appeal High Court acquitted accused by giving him benefit of doubt by pointing out lacunae/deficiencies during the course of investigation and prosecution such as, Jeweller to whom the alleged anklets of the deceased was pledged by the accused was not examined as a prosecution witness, Doctor who had examined the deceased was not produced by the prosecution before the Trial court, Report/Certificate given by the medical officer relating to medical examination of the accused was not produced by the prosecution, the witness who had allegedly seen the accused with the victim girl was not produced, delay of seven hours in registration of complaint.

Whether acquittal of accused-respondent as recorded by the High Court was sustainable. The Supreme Court held "YES. Disposing the Appeal the Supreme Court held at page .206 para.20.

Every acquittal should be understood as a failure of justice delivery system, in serving the cause of justice. Likewise, every acquittal should ordinarily lead to inference, that an innocent person was wrongfully prosecuted. It is, therefore, essential that every state should put in place a procedural mechanism, which would ensure that the cause of justice is served, which would simultaneously ensure the safeguard of interest of those who are innocent. In furtherance of the above purpose, it is considered essential to direct the Home Department of every State, to examine all orders of acquittal and to record reasons for the failure of each prosecution case.

STANDING COMMITTEE OF SENIOR OFFICERS OF POLICE & PROSECUTION DEPARTMENTS.

A standing committee of senior officers of the police and prosecution departments, should be vested with aforesaid responsibility. The consideration at the hands of the above committee, should be utilized for crystallising mistakes committed during investigation, and/or prosecution or both.

TO INCORPRATE IN TRAINING PROGRAMMES.

The Home Department of every State will incorporate in its existing training programme for junior investigation/prosecution officials course content drawn from the above consideration. The same should also constitute course content of refresher training programmes, for senior investigation/prosecution officials.

The above responsibility for preparing training programme for officials, should be vested in the same committee of senior officers referred to above judgments like the one in hand (depicting more than 10 glaring lapses in the investigation/prosecution of the case), and similar other judgments, may also be added to the training programmes.

COURSE CONTENT SHOULD BE REVIEWED ANNUALLY.

The course content will be reviewed by the above committee annually, on the basis of fresh inputs, including emerging scientific tools of investigation, judgments of courts, and on the basis of experiences gained by the standing committee while examining failures, in unsuccessful prosecution of cases.

TRAINING PROGRAMME SHOULD BE PUT IN PLACE WITHIN SIX MONTHS.

We further direct, that the above training programme be put in place within 6 months. This would ensure that those persons who handle sensitive matters concerning investigation/prosecution are fully trained to handle the same. Thereupon, if any lapses are committed by them, they would not be able to feign innocence, when they are made liable to suffer departmental action, for their lapses.

IN THE CASE OF ACQUITTAL THE INVESTIGATING OFFICER AND PROSECUTING OFFICIALS RESPONSIBLE MUST BE IDENTIFIED.

Para.21. – On the culmination of a criminal case in acquittal, the concerned investigation/prosecuting officials responsible for such acquittal must necessarily be identified. A finding needs to be recorded in each case, whether the lapse was innocent or blameworthy.

EACH ERRING OFFICER MUST SUFFER CONSEQUENCES OF HIS LAPSE.

Each erring officer must suffer consequences of his lapse by appropriate departmental action, whenever called for. Taking into consideration the seriousness of the matter, the concerned officer may be with drawn from investigative responsibilities, permanently or temporarily, depending purely on his culpability.

STATE GOVERNMENT TO FORMULATE A PROCEDURE FOR TAKING ACTION AGAINST ERRING OFFICERS.

We also feel compelled to require the adoption of some indispensable measures, which may reduce the malady suffered by parties on both sides of criminal litigation. Accordingly, we direct, the Home Department of every State Government, to formulate a procedure for taking action against all erring investigation/prosecution officials/officers. All such erring officials/officers identified as responsible for failure of a prosecution, on account of sheer negligence or because of culpable lapses, must suffer departmental action.

The above mechanism formulated would infuse seriousness in the performance of investigation and prosecuting duties, and would ensure that investigation and prosecution are purposeful and decisive. The instant direction shall also be given effect within 6 months.

4. In view of the judgment of the Supreme Court it is legally imperative on the part of State Government to constitute the standing committee within 6 month s with effect from 07-01-2014 to put the mechanism in place to infuse seriousness in the performance of investigation and prosecuting duties and would ensure that investigation and prosecution are purposeful and decisive.

5. DNA TEST REPORT IN CONFLICT WITH THE PRESUMPTION OF CONCLUSIVE PROOF OF LEGITIMACY OF THE CHILD UNDER SECTION 112 OF EVIDENCE ACT – DNA REPORT SHALL PREVAIL.

Nandlal Wasudeo Badwaik V. Lata Nandlal Badwaik.
2014(1) SCALE 99.

DNA test report in conflict with the presumption of conclusive proof of legitimacy of the child u/s. 112 of the Evidence
– Court can not compel the husband to bear fatherhood of a child, when the scientific report prove to the contrary
– Respondent – Wife filed an application u/s. 125 of Cr.P.C. claiming maintenance for herself and her daughter alleging that she started living with her husband from 20-06-1996 and stayed with him for about two years and during the period got pregnant
– Marriage between appellant husband and respondent
– wife was solemnized on 30-06-1990
– Appellant-husband alleged that assertion of wife that she stayed with him since 20-06-1996 was false and he denied that respondent 2 was his daughter
– According to appellant-husband, after 1991, he had no physical relationship with his wife
– Magistrate granted maintenance to wife and also to the daughter
– Revision filed against the order was dismissed – DNA Test reported that "appellant was excluded to be the biological father of Respondet 2."
– Marriage between the parties had not been dissolved but the wife had left the matrimonial home
– None of the courts below had given any finding with regard to plea of the husband that he had or had not any access to his wife at the time when the child could have been begotten
– Respondent No.2 was born during the continuance of a valid marriage
– Whether the DNA test would be sufficient to hold that the appellant was not the biological father of Respondent No.2
– Held
– YES. Para. 17
– We may remember that section 112 of the Evidence Act was enacted at a time when the modern scientific advancement and DNA test were not even in contemplation of the Legislature. The result of DNA test is said to be scientifically accurate. Although section 112 raises a presumption of conclusive proof on satisfication of the condition enumerated therein but the same is rebuttable. The presumption may afford legitimate means of arriving at an affirmative legal conclusion.

While the truth or fact is known, in our opinion there is no need or room for any presumption. Where there is evidence to the contrary the presumption is rebuttable and must yield to proof. Interest of justice is best served by ascertaining the truth and the Court should be furnished with the best available science and may not be left to bank upon presumptions, unless science has no answer to the facts in issue. In our opinion, when there is a conflict between a conclusive proof envisaged under law and a proof based on scientific advancement accepted by the world community to be correct, the latter must prevail over the former.

6. The lesson drawn from the above judgment is that the modern scientific advancement can prevail over the presumption of conclusive proof under the law which shows that well equipped Forensic science laboratory is one of the only mechanisms to improve the efficiency and credibility of the police investigation.