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2012 DIGILAW 2162 (RAJ)

Jagdish v. State of Rajasthan Thro’ P. P.

2012-11-02

BELA M.TRIVEDI, DALIP SINGH

body2012
JUDGMENT 1. - Both the appeals, arising out of the same judgment and order dated 30.1.06 passed by the Addl. District & Sessions Judge, (Fast Track), Hindaun City, District Karauli (hereinafter referred to as 'the trial court') in Sessions Case No. 49/04 (27/04), were heard together and are being disposed of by this common judgment. 2. The trial court has convicted the appellants-accused of both the appeals for the offence under Section 302 read with Section 34 of IPC and directed to undergo life imprisonment and to pay fine of Rs. 5,000/-, each and in default thereof to undergo further rigorous imprisonment for six months.Factual Matrix 3. Briefly stated, the case of the prosecution before the trial court was that a report came to be lodged by the complainant Girraj S/o Thandiram on 30th September, 2003 at about 7.45 A.M. that on 29.9.03 at about 10 A.M. his brother Dhansi had gone to his field for harvesting the crop of 'Bajra'; that he was being followed by his wife Sushila and one Jagdish S/o Mulyaram Meena; that the said Jagdish and Sushila started quarreling with and beating his brother Dhansi; that the said Dhansi therefore went back to his house, however the said Jagdish and Sushila also followed him to his house and again started quarreling with the said Dhansi; and then caused his death by throttling using a scarf. It was also alleged in the said report that at the time of incident, Shri Pyarelal S/o Thandi Ram Meena, Smt. Swarupi W/o Girraj and other persons were present, who had tried to save the said Dhansi, however the said Jagdish showed 'Katta', to them and threatened them that if anybody disclosed his name or name of Sushila, he would kill him. On the basis of the said report, an FIR being No. 375/03 was registered at the Police Station Todabhim, District Karauli on 30.9.03, against both the accused Jagdish and Sushila for the offence under Section 302 of IPC. 4. The Investigating Officer, after completing the investigation, initially filed the charge-sheet against the appellant-accused Sushila only, for the offence under Section 302, and subsequently filed supplementary charge-sheet against the appellant-accused Jagdish for the offence under Section 302 read with Section 34 of IPC in the Court of Civil Judge (JD) & Judicial Magistrate, First Class, who committed the case to the Court of Sessions at Hindaun City. The trial court, after framing the charge against both the accused, proceeded further with the trial, during which the prosecution to prove its case examined as many as 16 witnesses and produced documentary evidence from Ex. P.1 to Ex. P.18. The statements of the appellants were recorded under Section 313 of Cr.P.C., wherein they denied the allegations levelled against them and further stated that they were falsely implicated in the case. The appellant-accused Sushila examined herself as DW 1 in support of her defence and also produced the documentary evidence Ex. D.1-D.4/A. The trial court after appreciating the evidence on record and hearing the learned counsels for the parties convicted both the accused for the offence under Section 302 read with Section 34 of IPC, and sentenced them to undergo the imprisonment as stated hereinabove. Being aggrieved by the said judgment and order of the trial court, the appellant Jagdish had preferred the appeal being No. 213/06 and the appellant-accused Sushila had preferred the appeal being No. 423/06.Submissions: 5. Mr. J.K. Yogi, learned counsel appearing for the appellant-accused Jagdish and Mr. O.P. Pareek learned counsel appearing for the appellant-accused Sushila made their respective submissions assailing the impugned judgment and order passed by the trial court. According to the learned counsels for the appellants, though the witness Pyarelal claimed himself to be an eyewitness, there were number of circumstances to show that he was not present at the time of the commission of alleged incident. They further submitted that the entire conduct of the witness Pyarelal after the alleged incident was not free from suspicion inasmuch as he did not call the police nor went to the police station for lodging the report and he waited for his brothers to come from Delhi for lodging the report. According to the learned counsels, if Pyarelal was present at the time of alleged incident, he would have certainly tried to rescue his brother Dhansi, who was being killed by the accused, however he silently watched the commission of the alleged incident by the accused. Such abnormal conduct of Pyarelal established that Pyarelal was not disclosing the correct facts before the court. Such abnormal conduct of Pyarelal established that Pyarelal was not disclosing the correct facts before the court. The learned counsel appearing for the appellant-accused Sushila, further taking the court to the contradictions appearing in the versions of the said eye-witness Pyarelal before the police and before the court submitted that the said witness could not be believed as an eye-witness, and that if his testimony was discarded, the entire case of prosecution then would rest on the circumstantial evidence. He, further relying upon the Inquest Panchnama and on the evidence of the accused Sushila, submitted that there being white powder found on the lips of the deceased, the possibility of Dhansi having committed suicide, as stated by the accused Sushila, could not be ruled out. 6. The learned counsels for the accused also submitted that though there were rumors going on in the village about the illicit relationships between the accused Jagdish and the accused Sushila, as transpiring from the evidence adduced by the prosecution, the deceased Dhansi, the husband of the accused Sushila was also aware about the said alleged relationship and still both of them were staying together and, therefore there was no reason for the accused to kill the said deceased Dhansi. They further submitted that though motive is an important element in commission of the offence, conviction could not be based on the proof of motive alone. Relying heavily upon the copy of the Rojnamacha Report Ex. D.4/A, they submitted that as per the said document, the said Pyarelal alongwith Shiv Narain had gone to the Todabhim Police Station at 9.30 P.M. on 29.9.03 and informed the police that his brother Dhansi was either murdered or had committed suicide by consuming poison, which document corroborated the evidence given by the accused Sushila on oath that her husband Dhansi had committed suicide by consuming poison. They also submitted that except the witness Pyarelal other witnesses examined by the prosecution, who had reached to the spot immediately after the incident, had turned hostile and the said Pyarelal being an interested person, the conviction cannot be sustained on his evidence alone when the number of contradictions were appearing in his evidence. In short, the learned counsels for the appellants-accused urged that the prosecution having not proved its case beyond reasonable doubt, the benefit of doubt be given to the appellants by acquitting them from the charges levelled against them. In short, the learned counsels for the appellants-accused urged that the prosecution having not proved its case beyond reasonable doubt, the benefit of doubt be given to the appellants by acquitting them from the charges levelled against them. 7. The learned Public Prosecutor Ms. Rekha Madnani, however vehemently submitted that there is no reason to disbelieve the witness Pyarelal, who was an eyewitness and whose testimony is corroborated by the medical evidence, more particularly, the postmortem report Ex. P/17, and the note contained in the letter Ex. P/16 in which it has been opined that the cause of death of the deceased was "asphyxia due to throttling". According to the learned Public Prosecutor, the evidence of the accused Sushila that the deceased had committed suicide was not believable, as she herself had contradicted her own statement recorded under Section 313 of Cr.P.C. and even otherwise the defence that the deceased had committed suicide was not being corroborated by any evidence on record. She further submitted that the accused Sushila and Jagdish had an illicit relationship, which was the reason to murder Dhansi, who was the husband of Sushila. According to her, apart from the evidence of prosecution, the accused Sushila in her evidence had admitted about such talks being going on in the village. Placing reliance upon the decision of the Apex Court in case of Sheo Shankar Singh v. State of Jharkhand & Anr. (2011) 3 SCC 654 , she submitted that if the motive is proved, it lends support to the prosecution version, and in the instant case the proved motive behind causing the murder of the deceased was the illicit relationship between the two accused. 8. She further submitted that a false story of the deceased having committed suicide was sought to be made out by the accused in their statements recorded under Section 313 of Cr.P.C. and in the evidence of the accused Sushila, and that as per the settled legal position, false explanation given by the accused in the further statement recorded under Section 313 of Cr.P.C. could be used against the accused and could also be used as a missing link in the case put forth by the prosecution. 9. Ms. Madnani also vehemently submitted that in the instant case, the Investigating Officer Mr. 9. Ms. Madnani also vehemently submitted that in the instant case, the Investigating Officer Mr. Kamlesh Choudhary examined as PW 9 had played very suspicious role and had tried to misdirect the entire investigation to support the accused. According to her, the said Investigating Officer had manipulated the record of the investigation and tampered with the evidence in order to create a doubt that the deceased had committed suicide and he was not murdered by the accused. According to her, any lapses and defects or omissions in the investigation cannot justify the rejection of the case of prosecution and even otherwise considering the totality of circumstances, the prosecution had proved the case against both the accused beyond reasonable doubt before the trial court. Relying upon the various decisions of the Apex Court, she submitted that the investigation carried out by the Investigation Officer Mr. Chaudhary was dishonest and partial one, and therefore serious view be taken against him. She has relied upon the decisions of the Apex Court in the case of Abu Thakir & Ors. v. State of Tamil Nadu (2010) 5 SCC 91 , Sunder Singh v. State of Uttaranchal (2010) 10 SCC 611 , Mohd. Imran Khan v. State Government (NCT of Delhi) (2011) 10 SCC 192 and Maqbool @ Zubir @ Shahnawaz v. State of Andhra Pradesh (2010) 8 SCC 359 , in support of her submissions.Evidence: 10. In the instant case, the appellant-accused Sushila happened to be the wife and the accused Jagdish happened to be a distant relative of the deceased Dhansi. Out of the witnesses examined by the prosecution, PW 2 Pyarelal, PW 3 Girraj Prasad and PW 4 Babulal were the brothers of the deceased Dhansi. The PW 5 Smt. Swarupi was the sister of accused Sushila and PW 6 Sheo Narayan was the uncle of the accused Jagdish. The PW 9 Kamlesh Choudhary, was the SHO, Todabhim Police Station at the relevant time and also the Investigating Officer of the case, who had prepared the papers of investigation and filed the charge-sheet against the accused Sushila, however the supplementary charge-sheet against the accused Jagdish was submitted by the PW 16 Ramchander Singh. PW 1 Budha Ram was one of the witnesses of the document called Crime Details Form and the site plan (Ex. P.1). The PW 15 Dr. PW 1 Budha Ram was one of the witnesses of the document called Crime Details Form and the site plan (Ex. P.1). The PW 15 Dr. Meghraj Meena was one of the members of the Medical Board who had carried out the postmortem of the deceased Dhansi and signed the postmortem report Ex. P.17 and the note contained in the letter Ex. P/16. After the completion of the evidence of the prosecution, the statements of both the accused were recorded by the trial court under Section 313 of Cr.P.C. in which the accused Sushila had stated that she was falsely implicated in the case. The accused Jagdish had also denied the allegations levelled against him, and further stated in his statement under Section 313 of Cr.P.C. that wife of Dhansi (i.e. Sushila)happened to be his Aunty and he did not have any illicit relationship with her. He had further stated that he had not committed the murder of Dhansi and that on the date of incident he was at the village Khedi, where he had heard that Dhansi had committed suicide consuming poison as he had land disputes going on with his brothers. The accused Sushila also examined herself as the Defence Witness to deny the allegations levelled against her and stated that her husband had committed suicide by consuming poison. 11. Now, on considering the submissions made by the learned counsels for the parties and considering the evidence on record, three broad questions arise for determination before this court. Firstly, whether the prosecution had proved beyond reasonable doubt that the deceased Dhansi had died due to the throttling, and he had not committed suicide. Secondly, whether the prosecution had proved beyond reasonable doubt that the appellants-accused had committed the said murder. And thirdly, whether the Investigating Officer Mr. Kamlesh Choudhary had tried to misdirect and misguide the investigating by tampering with the evidence, with a view to help the accused.Medical Evidence: Whether Murder Or Suicide: 12. So far as the medical evidence with regard to the cause of death of deceased is concerned, the external injuries and the cause of death indicated in the Postmortem Report (Ex.P.17) interalia read as under:- "Wounds position, size, nature : Diffused swelling around the neck. Bruises position, size, nature : Abrasion on the medial aspect of Rt. Foot 5cm x 0.5cm size. Laryax & Tracheao : Laryax & Tracheao fractured. Bruises position, size, nature : Abrasion on the medial aspect of Rt. Foot 5cm x 0.5cm size. Laryax & Tracheao : Laryax & Tracheao fractured. Mouth pharynx and Oesophagus: Blocking from Ear, Nose and Mouth. Abresion on the medial aspect of Rt. Foot 5cm x 0.5cm size. : Larynax, Trachaeo and Hyoid bone fractured. Remarks By Medical Officer : In our opinion the cause of death is asphyxia due to throttling or by unknown poison. Final opinion given after F.S.L. Report of visceras. Note:- All injuries are anti-mortem in nature. 13. The FSL Report of Visaras (Ex. P.14) reads as under:- "//Result of Examination// On chemical examination, portions of viscera (1-5) from two packets marked 'A' and 'B' respectively gave negative tests for metallic poisons, ethyl and methyl alcohol, cyanide, alkaloids, barbiturates, tranquillizers and insecticides. 14. The final opinion of the Medical Board, who carried out the postmortem of the deceased, has been noted in the letter (Ex.P.16) which reads as under:- After seen the F.S.L. Report of Shri Dhansi S/o Shri Thandi Ram Meena R/o Sadpura, Thana-Toda Bhim, in our opinion the cause of death is asphyxia due to throttling. 15. The prosecution had examined PW 15 Dr. Meghraj Meena who was one of the doctors of the Medical Board who had conducted the postmortem of the deceased Dhansi. In his evidence before the court, he had specifically reiterated the injuries mentioned in the postmortem report as also the cause of death, and further stated that the said injuries were sufficient to cause death of the deceased in ordinary course of nature. He had explained that the final opinion was reserved till the receipt of the FSL Report, as some white powder was seen on the face of the deceased and since the police had recommended to call for the opinion of FSL with regard to the possibility of the deceased having died of poison. According to him, after receiving the report from FSL, final opinion was given in the letter (Ex. P.16) that the cause of death was asphyxia due to throttling. The said doctor was cross-examined at length, however he had adhered to the opinion given by him along with the other penal doctors and denied the possibility that the deceased had died because of consumption of poison. In the light of this medical evidence let us examine the evidence of other witnesses examined by the prosecution. The said doctor was cross-examined at length, however he had adhered to the opinion given by him along with the other penal doctors and denied the possibility that the deceased had died because of consumption of poison. In the light of this medical evidence let us examine the evidence of other witnesses examined by the prosecution. 16. As per the case of prosecution, the witness Pyarelal, who happened to be the brother of the deceased, the witness Swarupi, who happened to be the wife of the complainant Girraj, and other persons had seen the accused Jagdish having throttled the deceased with the scarf and the accused Sushila having helped the said Jagdish in throttling the deceased. Though the witness Pyarelal (PW 2) had fully supported the case of the prosecution and the witness Girraj Prasad (PW 3) had corroborated the contents of his complaint (Ex. D.5), the witness Swarupi, who happened to be the wife of Girraj and sister of the accused Sushila had turned hostile. Similarly, Sheo Narayan (PW 6) had also not supported the case of the prosecution. Hence, the entire case of prosecution hinged on the evidence of the witness Pyarelal, Girraj Prasad and Babulal, who were the brothers of the deceased Jagdish. Though the said witnesses being the brothers of the deceased could be said to be interested witnesses, there is nothing on record to suggest that the versions of the said witnesses were not reliable, and that their evidence should be discarded in toto. It cannot be gainsaid that if the testimony of the interested witnesses is found to be reliable and trustworthy, the conviction could be based on such evidence. 17. Much reliance has been placed by the prosecution on the evidence of Pyarelal, who had stated that on the date of incident at about 10.00 A.M. some altercation had taken place between the accused Sushila and Jagdish with Dhansi in their field and thereafter the said Dhansi had come to him (i.e. Pyarelal) and told him that Jagdish had threatened him of dire consequences. He further stated that thereafter when Dhansi went to his house, Sushila and Jagdish also followed him, and thereafter Sushila fastened a scarf on the neck of Dhansi; that when Dhansi fell down on the floor, Jagdish sat down on his chest and throttled the said Dhansi till he died. He further stated that thereafter when Dhansi went to his house, Sushila and Jagdish also followed him, and thereafter Sushila fastened a scarf on the neck of Dhansi; that when Dhansi fell down on the floor, Jagdish sat down on his chest and throttled the said Dhansi till he died. According to him, he had seen this incident at the distance of about 20-25 feet, and after murdering Dhansi, Jagdish and Sushila had run away from the place of incident. He had stated that Swarupi and Moolia had also seen the incident, and that thereafter he had called his brothers from Delhi and the next day morning his brothers Girraj and Babulal had come to the village, to whom he had told about the incident; that thereafter his brother Girraj had gone to the police station for lodging the complaint. In the cross-examination by the defence, he reiterated that Sushila had caught hold of the scarf, which was fastened around the neck of the deceased Dhansi and Jagdish sitting on the chest of the deceased had throttled the said Dhansi till he died. He had admitted that he had not informed the police about the incident and that he waited till his brothers came from Delhi. He had denied the suggestion that he wanted to marry Sushila but Sushila was not ready to marry him and, therefore he had falsely implicated Sushila. 18. The PW 3 Girraj Prasad also in his evidence stated that after he and his brother Babu came from Delhi, he was told by his brother Pyarelal that Dhansi was killed by Jagdish and Sushila by throttling his neck and, therefore he had gone to lodge the complaint before the Police Station Todabhim (Ex. P.5). The PW 4 Babulal also had stated in his evidence that his brother Pyarelal and Swarupi had told him that Jagdish and Sushila had killed his brother Dhansi by throttling and thereafter his brother Girraj had lodged the complaint with the Police Station. Nothing material had turned out from the cross-examination of the said witnesses, which would support the defence of the accused. 19. Nothing material had turned out from the cross-examination of the said witnesses, which would support the defence of the accused. 19. Though it was sought to be submitted by the learned counsels for the appellants that the version of the witness Pyarelal was not reliable, this court does not find any cogent reason to disbelieve his version, more particularly when the same gets corroboration from the medical and other evidence on record. As held by the Apex Court in case of Sumesh Lal v. State of Bihar AIR 2002 SC 968 , minor discrepancies in the evidence of the eye-witness cannot be a ground to discard his evidence, otherwise acceptable. 20. At this stage, the evidence of the accused Sushila is also very relevant. She had stated in her defence that the son of her sister Swarupi had come to call both of them in the field and thereafter both of them had gone home, where she saw her husband lying dead; that thereafter she sent somebody to call her brother-in-law Pyarelal and on his coming, she had sent him to lodge the report to the Police Station; that on the same day evening the police had come to her house and had taken away the dead body of her husband; that the dead body was kept at the Todabhim Police Station for the whole night and on the next day morning the dead body was brought back to her village. She had further stated that on the next day of incident, her brother-in-law Pyarelal had told her that he wanted to marry her and that when she refused, the said Pyarelal gave false complaint against her. In the cross-examination by the Public Prosecutor, she had stated that she was told by Pyarelal to marry him on the same day evening when Dhansi expired and thereafter the police had come and took away the dead body. She admitted that when the police came in the evening, Pyarelal had not given any complaint against her, and that the complaint was lodged by Girraj after he came from Delhi. She had also alleged in her evidence that she was sold out against her wishes by the said Pyarelal to one Vijay Singh. She admitted that when the police came in the evening, Pyarelal had not given any complaint against her, and that the complaint was lodged by Girraj after he came from Delhi. She had also alleged in her evidence that she was sold out against her wishes by the said Pyarelal to one Vijay Singh. Of course, she had thereafter admitted that neither she nor her parents had objected when Pyarelal had sold her out to Vijay Singh, nor she had lodged any complaint against Pyarelal or his brothers. She had also admitted that she had not told anyone about the threat given by Pyarelal that he would falsely implicate her if she did not marry him, and that the said allegation was made by her for the first time in the court. She denied that she and Jagdish had murdered her husband Dhansi by throttling, and further stated that he had committed suicide. 21. It is significant to note that the accused has a right to remain silent, however when the accused chooses to give evidence on oath, he/she would be a competent witness and his/her evidence is required to be appreciated in the light of the other evidence adduced by the prosecution. It is also well settled legal position that the purpose of recording statement under Section 313 of Cr.P.C. is to afford opportunity to the accused to explain about the incriminating evidence brought by the prosecution on record, and that a false explanation given by the accused could be used against him/her. 22. In view of the above discussed medical evidence and the evidence of the witnesses examined by the prosecution, it clearly emerges that the deceased Dhansi was throttled by the accused Jagdish and Sushila using the Swapi (scarf) in his own house, when he returned from the field. It also emerges that the defence put forth by the accused Sushila that her husband had committed suicide was not proved by her either through her own evidence or any other evidence including the medical evidence. The eye-witness Pyarelal had fully corroborated the case of prosecution. The witnesses Girraj and Babu had also proved the contents of the complaint (Ex. P.5). The eye-witness Pyarelal had fully corroborated the case of prosecution. The witnesses Girraj and Babu had also proved the contents of the complaint (Ex. P.5). Though the accused had tried to create a defence that the said Pyarelal had falsely implicated the accused Sushila as he wanted to marry her, such a defence gets defeated from the evidence of Sushila herself when she stated in her evidence that the said Pyarelal had not given any complaint to the police when the police came in the evening on the date of incident. Though it is very doubtful that the police had come to the place of offence in the evening hours on the date of incident, she herself had admitted that when the police came, Pyarelal did not give any complaint falsely implicating her. Further, when according to her, if her husband had committed suicide, then in that case also there was no question of Pyarelal falsely implicating her in the case. Thus, considering the entire evidence of the accused Sushila and her statement under Section 313 Cr.P.C. it transpires that she had given false explanation and come out with false defence to create a cloud of doubts that her husband had committed suicide.Suspicious Role Of The Investigating Officer: 23. At this juncture, it is also relevant to deal with the evidence of the Investigating Officer, Mr. Kamlesh Choudhary (PW 9), who was the SHO at Police Station, Todabhim on 29.9.03. His conduct as the Investigating Officer of the case has been seriously assailed by the prosecution itself. He had stated interalia in his evidence that on 29.9.03 at about 9.30 P.M., one Pyarelal and one Sheo Narain Meena from village Sadpura had come to him and stated that the dead body of Dhansi was lying in his house and that either somebody had killed him or he had consumed poison; that when he (SHO) asked them to give report, they said that they were illiterate and did not know how to write the report; that thereafter on 30.9.03 at about 7.45 A.M., one Girraj S/o Dhansi Ram gave the report, which was on record at Ex. P.5. The said Investigating Officer thereafter stated about investigation carried out by him. P.5. The said Investigating Officer thereafter stated about investigation carried out by him. In his cross-examination he stated that on 29.9.03 at about 9.30 P.M. he had gone to the village of the deceased, where he had seen the dead body, however nobody had given any written or oral report to him. He had further stated that on 29.9.03 itself he had taken the custody of the dead body and also made entry in the Rojnamacha (General Diary Entry) which was numbered as 1095, however he had not made the said Entry as part of the record of his case diary or the papers of investigation. It further appears that the deposition of the said Investigation Officer was completed on 3.11.04, and thereafter he was recalled at the instance of the accused on 8.12.05 after the trial was over and the statements of both the accused under Section 313 of Cr.P.C. were recorded, and he was further cross-examined. During the course of his further cross-examination, he produced the copy of the Rojnamacha Entry No. 1095 at Ex. D-4/A. According to him, after making the said entry, he had immediately gone to the place of the scene of offence. In his further cross-examination by the learned Public Prosecutor he had admitted that the said Rojnamacha Entry was not made part of the papers of charge-sheet. Of course, he denied that the said entry was subsequently concocted after the receipt of the postmortem report, to help the accused Sushila. 24. From the said evidence of the Investigating Officer (PW9), Mr. Kamlesh Choudhary, it clearly appears that in the examination-in-chief he did not state anything about the Rojnamacha Entry (Ex. D-4/A). He also did not state that on 29.9.03 itself he had gone to the village of the deceased. On the contrary he had stated that after receiving the report of Mr. Girraj S/o Dhansi Ram on 30.9.03 at about 7.45 A.M., he had registered the FIR being No. 375/03 for the offence under Section 302 of IPC and thereafter he prepared the Inquest Panchnama at the Government Hospital, Todabhim and carried out further investigation. If he had made Entry No. 1095 in the Rojnamacha Report at Ex. D-4/A at 9.30 P.M. on 29.9.03, he would not have missed to state such an important fact in his examination-in-chief. If he had made Entry No. 1095 in the Rojnamacha Report at Ex. D-4/A at 9.30 P.M. on 29.9.03, he would not have missed to state such an important fact in his examination-in-chief. It was only during his cross-examination by the defence counsel, he stated that such an entry was made in his Rojnamacha Report. Till his cross-examination was over, no attempt was made either by the defence counsel or by the Investigating Officer himself to place the copy of such report on record and it was only after the examination of all the witnesses of prosecution was over and the statements of both the accused under Section 313 of Cr.P.C. were recorded, he was sought to be recalled for further examination at the instance of the accused on 8.12.05 i.e. after about one year of his cross-examination, and then he was re-examined. During his re-examination, he had produced the copy of the said so-called entry made in the Rojnamacha (Ex. D-4/A). 25. Though in the so-called Entry of Rojnamacha (Ex. D-4/A) it was mentioned that Pyarelal and Sheo Narayan had informed to the said SHO Mr. Kamlesh Choudhary about the incident in question at about 9.30 P.M. on 29.9.03, neither the said Pyarelal, who was examined as PW 2, nor the said Sheo Narayan, who was examined as PW 6 had stated in their respective evidence that they had gone to the Todabhim Police Station to inform the said SHO Mr. Kamlesh Choudhary. Even during the cross-examination of both the said witnesses, no such suggestion with regard to the said report was put to the said witnesses. Under the circumstances as rightly submitted by the learned Public Prosecutor, the genuineness of the said entry in the Rojnamacha (Ex. D.4/A) created serious doubts and that the possibility of concocting such entry subsequently at the instance of the said Investigating Officer Mr. Kamlesh Choudhary with a view to help the accused, could not be denied. 26. It is also significant to note that in the FIR (Ex. P.6) registered as No. 375/03 by the said Investigating Officer Mr. Choudhary, he had mentioned that occurrence of the offence was at 10 A.M. on 29.9.03, information received at the Police Station was at 7.45 A.M. on 30.3.09, and the General Diary reference (Rojnamacha) Entry number 1107 was made at 7.45 A.M. on 30.9.03. P.6) registered as No. 375/03 by the said Investigating Officer Mr. Choudhary, he had mentioned that occurrence of the offence was at 10 A.M. on 29.9.03, information received at the Police Station was at 7.45 A.M. on 30.3.09, and the General Diary reference (Rojnamacha) Entry number 1107 was made at 7.45 A.M. on 30.9.03. Further, in the prescribed form prepared under Section 174 Cr.P.C. (Ex. P.2), the time and date of reaching to the scene of offence was mentioned by the Investigating Officer as 10.15 A.M. on 30.3.09. The time mentioned in the Inquest Panchnama (Ex. P.3) was 8.30 A.M. on 30.9.03. The said Investigating Officer Mr. Chaudhary had admitted his signatures as the proceedings recorded in the said papers of investigation in his examination in chief. Thus, his statements made in his cross-examination and re-examination were totally inconsistent with his statements in examination in chief and also inconsistent with the papers of investigation produced in the court. From such evidence on record, we are constrained to observe that the Investigating Officer had not only carried out partial and dishonest investigation, but had also taken the trial court for a ride by making inconsistent and false statements on oath during the course of his evidence before the court. 27. At this stage, it is also significant to note that though the Swapi (scarf) with blood stains was recovered from the dead body of said Dhansi, which was allegedly used by the accused to cause death of Dhansi by throttling, as mentioned in the Crime Details Form (Ex. P.1), Inquest Panchnama (Ex.P.2), Memo of Delivery of Dead Body (Ex. P.3) and Seizure Memo of the Swapi (Ex. P.4), the said Investigating Officer did not send the said Swapi to the FSL for examination. Further, the said Investigating Officer also insisted for calling for the FSL opinion as to whether the deceased had died due to consumption of poison, though in the opinion of the Medical Board who conducted the postmortem had opined that the cause of death was asphyxia due to throttling. As stated earlier, even as per the final opinion given by the doctors of Medical Board, after the receipt of FSL report, the cause of death was asphyxia due to throttling only. Thus, considering the totality of circumstances and the evidence on record, it clearly emerges that the Investigating Officer Mr. As stated earlier, even as per the final opinion given by the doctors of Medical Board, after the receipt of FSL report, the cause of death was asphyxia due to throttling only. Thus, considering the totality of circumstances and the evidence on record, it clearly emerges that the Investigating Officer Mr. Kamlesh Choudhary had carried out unfair, partial and dishonest investigation, and had deliberately tried to misdirect the entire investigation with a view to help the accused to create a cloud of doubts that the deceased had committed suicide and he was not murdered. As observed earlier, he had also concealed the true facts of investigation carried out by him and made inconsistent statements on oath during the course of his deposition, which were also contrary to the papers of investigation prepared by him. Such a conduct on the part of the Investigating Officer Mr. Chaudhary deserves to be seriously viewed for which necessary directions shall be given hereinafter.Defects/deficiency In Investigation-Whether Fatal: 28. However, as held by Apex Court in catena of decisions, criminal justice should not be made casually for wrongs committed by the Investigating Officers. The Investigating Officer is supposed to investigate the case fairly and impartially to avoid any kind of mischief or harassment to either of the parties, much less he should carry out the investigation with an ulterior motive to help the accused. It is also axiomatic to say that the lapses and defects or deficiencies found in the investigation cannot justify rejection of the case of prosecution, giving unfair advantage to the accused. In case of State of Karnataka v. K. Yarappa Reddy (1999) 8 SCC 715 , the Apex Court while dealing with the similar issue observed as under:- It is well-nigh settled that even if the investigation is illegal or even suspicious the rest of the evidence must be scrutinised independently of the impact of it. Otherwise the criminal trial will plummet to the level of the investigating officers ruling the roost. The courts must have predominance and pre-eminence in criminal trials over the action taken by investigating officers. Criminal justice should not be made a casualty for the wrongs committed by the investigating officers in the case. Otherwise the criminal trial will plummet to the level of the investigating officers ruling the roost. The courts must have predominance and pre-eminence in criminal trials over the action taken by investigating officers. Criminal justice should not be made a casualty for the wrongs committed by the investigating officers in the case. In other words, if the court is convinced that the testimony of a witness to the occurrence is true the court is free to act on it albeit the investigating officer's suspicious role in the case. Role - Powers Of Trial Court: 29. In the instant case, it also appears that the trial court while conducting the trial had acted as an evidence recording machine. It would not be out of place to mention that though wide powers have been conferred upon the Presiding Judge of the trial court under Section 165 of the Evidence Act, 1872 to put questions and order for production of any documents in order to discover or to obtain proper proof of relevant facts, the said powers are not being exercised by the Judges. The relevant part of Section 165 of the Evidence Act reads as under:- Judge's power to put questions or order production.- The Judge may, in order to discover or to obtain proper proof of relevant facts, ask any question he pleases, in any form, at any time, of any witness, or of the parties, about any fact relevant or irrelevant; and may order the production of any document or thing; and neither the parties nor their agents shall be entitled to make any objection to any such question or order, nor, without the leave of the Court, to cross-examine any witness upon any answer given in reply to any such question. 30. The Apex Court in case of Ram Chander v. State of Haryana, AIR 1981 SC 1036 , has made very apt observations in this regard as under:- 2. The adversary system of trial being what it is, there is an unfortunate tendency for a judge presiding over a trial to assume the role of a referee or an umpire and to allow the trial to develop into a contest between the prosecution and the defence with the inevitable distortions flowing from combative and competitive element entering the trial procedure. If a criminal court is to be an effective instrument in dispensing justice, the presiding judge must cease to be a spectator and a mere recording machine. He must become a participant in the trial by evincing intelligent active interest by putting questions to witnesses in order to ascertain the truth. As one of us had occasion to say in the past. Every criminal trial is a voyage of discovery in which truth is the quest. It is the duty of a presiding Judge to explore every avenue open to him in order to discover the truth and to advance the cause of justice. For that purpose he is expressly invested by section 165 of the Evidence Act with the right to put questions to witnesses. Indeed the right given to a Judge is so wide that he may 'ask any question he pleases, in any form, at any time, of any witness, or of the parties about any fact, relevant or irrelevant. Section 172(2) of the Code of Criminal Procedure enables the Court to send for the police diaries in a case and use them to aid it in the trial. The record of the proceedings of the committing Magistrate may also be perused by the Sessions Judge to further aid him in the trial. 3. With such wide powers, the Court must actively participate in the trial to elicit the truth and to protect the weak and the innocent. It must, of course, not assume the role of a prosecutor in putting questions. 31. It has also been held by the Apex Court in the latest decision in case of Mohd. Hussain v. State (Govt. of NCT of Delhi), (2012) 2 SCC 584 , as under in para 54:- The learned Judge in seisin of the trial forgot that he has an overriding duty to maintain public confidence in the administration of justice, often referred to a duty to vindicate and uphold the majesty of law. He failed to realise that for an effective instrument in dispensing justice he must cease to be a spectator and a recording machine but a participant in the trial evincing intelligence and active interest so as to elicit all relevant materials necessary for reaching the correct conclusion, to find out the truth and administer justice with fairness and impartiality both to the parties and to the community itself. 32. 32. The above stated legal position assumes relevance in the instant case as the trial court while recording the evidence of the Investigating Officer had failed to participate in the trial and acted like an evidence recording machine, permitting the Investigating Officer to make statements on oath inconsistent and contrary to the record of the case. If the criminal court is to be an effective instrument in dispensing justice, it is expected to take active interest and elicit all relevant materials necessary for reaching to the correct conclusion to find out the truth.Motive: 33. Now coming back to the substratum of the case of the prosecution that the accused Sushila and Jagdish had an illicit relationship and, therefore both of them had murdered the deceased Dhansi, who happened to be the husband of accused Sushila, the evidence of the prosecution and the defence shall have to be revisited, as proof of motive would be one of the important aspects to be taken into consideration by the courts for coming to the final conclusion in such cases. So far as motive is concerned, the settled legal position has been reiterated by the Apex Court in case of Sheo Shankar Singh v. State of Jharkhand (2011) 3 SCC 654 , in which it has been observed in para 15 as under:- 15. The legal position regarding proof of motive as an essential requirement for bringing home the guilt of the accused is fairly well settled by a long line of decisions of this Court. These decisions have made a clear distinction between cases where prosecution relies upon circumstantial evidence on the one hand and those where it relies upon the testimony of eye witnesses on the other. In the former category of cases proof of motive is given the importance it deserves, for proof of a motive itself constitutes a link in the chain of circumstances upon which the prosecution may rely. Proof of motive, however, recedes into the background in cases where the prosecution relies upon an eyewitness account of the occurrence. That is because if the court upon a proper appraisal of the deposition of the eyewitnesses comes to the conclusion that the version given by them is credible, absence of evidence to prove the motive is rendered inconsequential. Proof of motive, however, recedes into the background in cases where the prosecution relies upon an eyewitness account of the occurrence. That is because if the court upon a proper appraisal of the deposition of the eyewitnesses comes to the conclusion that the version given by them is credible, absence of evidence to prove the motive is rendered inconsequential. Conversely even if prosecution succeeds in establishing a strong motive for the commission of the offence, but the evidence of the eyewitnesses is found unreliable or unworthy of credit, existence of a motive does not by itself provide a safe basis for convicting the accused. That does not, however, mean that proof of motive even in a case which rests on an eye-witness account does not lend strength to the prosecution case or fortify the court in its ultimate conclusion. Proof of motive in such a situation certainly helps the prosecution and supports the eyewitnesses. See Shivaji Genu Mohite v. The State of Maharashtra, (1973) 3 SCC 219 , Hari Shanker v. State of U.P. (1996) 9 SCC 40 and State of Uttar Pradesh v. Kishanpal and Ors. (2008) 16 SCC 73 . 34. It is significant to note that the prosecution in order to prove the motive of the accused to kill Dhansi had relied upon the evidence of the witnesses examined by the prosecution as well as on the evidence of the accused Sushila herself. The witnesses in their respective evidence had stated that there were talks going on in the village that the accused Sushila had an illicit relationship with the accused Jagdish, who happened to the distant relative of the deceased. It had also been established by the prosecution that there was a big difference in the age of the deceased and the accused Sushila inasmuch as the deceased was aged about 50 years, whereas the accused Sushila was hardly 26 years old, and the accused Jagdish was 27 years old. Even the accused Sushila in her evidence before the court had admitted that the people in the village were talking about her illicit relationship with the accused Jagdish, however she had further stated that such rumors were not true. Even the accused Sushila in her evidence before the court had admitted that the people in the village were talking about her illicit relationship with the accused Jagdish, however she had further stated that such rumors were not true. Thus considering the proved facts and circumstances of the case, we find substance in the submission of the learned Public Prosecutor that the prosecution had also been able to prove the motive of the accused to commit the murder of the deceased. As per the settled legal position stated above, the proof of motive does not remain as essential in case when the prosecution relies upon the testimony of eyewitness, as would be essential when the prosecution relies upon the circumstantial evidence, however, the proof of motive even in a case which rests on the evidence of eye-witnesses would certainly lend strength to the case of prosecution and fortify the court in its ultimate conclusion.Conclusion: 35. In the instant case the prosecution had established by adducing the cogent and reliable evidence that the cause of death of deceased Dhansi was asphyxia due to throttling and that he had not committed suicide. The prosecution had also proved beyond reasonable doubt that the accused Sushila and Jagdish had caused death of said Dhansi by throttling using the scarf (swapi) and that the said accused had tried to misdirect the investigation with the help of the Investigating Officer Mr. Kamlesh Choudhary to show that the deceased had committed suicide. The trial court has rightly appreciated the evidence on record to hold both the accused guilty of the alleged offence and the learned counsels for the appellants have failed to point out any illegality or perversity in the said judgment of conviction and sentence passed by the trial court. In that view of the matter, this court is of the opinion that the appeals being devoid of merits deserve to be dismissed.Directions: 36. Before parting, it is required to be noted that since this court has found that the Investigating Officer Mr. In that view of the matter, this court is of the opinion that the appeals being devoid of merits deserve to be dismissed.Directions: 36. Before parting, it is required to be noted that since this court has found that the Investigating Officer Mr. Kamlesh Choudhary had not carried out the investigation in a fair and impartial manner, rather had tried to misdirect the investigation by tampering with the evidence with a view to help the accused, and had taken the trial court for a ride, necessary action deserves to be taken against him by the Director General of Police, Rajasthan in accordance with law, as was sought to be done by the Apex Court in case of Maqbool v. State of Andhra Pradesh (2010) 8 SCC 359 . Accordingly we direct the Director General of Police, Rajasthan to take necessary action against the said Investigating Officer Mr. Kamlesh Choudhary in accordance with law and report to this court. 37. Further in order to prevent any manipulation or tampering with the public documents and papers of investigation at the subsequent stage, at the instance of the Investigating Officers, it is directed that in all cases, the concerned Investigating Officers shall produce a certified copy of the case diary in sealed cover along with the papers of charge-sheet as and when the charge-sheet is filed in the court. The Director General of Police, Rajasthan shall accordingly issue necessary instructions to all the concerned police stations in this regard. The courts in which the charge-sheets are filed shall also see to it that such a copy of case diary in sealed cover is filed by the Investigating Officer alongwith the papers of charge-sheet, and shall also put its endorsement in that regard. 38. The Director General of Police, Rajasthan shall file compliance report before this court as regards the action taken against the Investigating Officer Mr. Choudhary, and as regards the issuance of necessary instructions as directed herein above, within three months from the date of this order. 39. The office is directed to circulate copy of this order to all subordinate courts and also send a copy of this order to the Director General of Police, Rajasthan forthwith. The office is also directed to send a copy of this order to the concerned Investigating Officer Mr. 39. The office is directed to circulate copy of this order to all subordinate courts and also send a copy of this order to the Director General of Police, Rajasthan forthwith. The office is also directed to send a copy of this order to the concerned Investigating Officer Mr. Kamlesh Choudhary, at the address of his posting or residence, through the office of Director General of Police, Rajasthan. 40. The office is also directed to put up the matter before this court on 1.2.2013 for necessary compliance report. 41. With the aforesaid directions, both the appeals are dismissed.Appeal dismissed. *******