JUDGMENT 1. (Oral) - This criminal appeal has been filed by three accused-appellants namely Ishwar, Sunil and Dharm Singh, assailing the judgment and order dated 26.10.2005 passed by Additional District and Sessions Judge, Khetri, District Jhunjhunu (for short 'the trial court') whereby the accused-appellants have been convicted for the offences punishable under Sections 302/34 or 302 and 341 IPC. Accused-appellants Ishwar and Sunil, convicted under Section 302/34 IPC, have been sentenced to life imprisonment with fine of Rs. 1,000/-, in default whereof, they would have to further undergo rigorous imprisonment of one year. Similarly, accused-appellant Dharm Singh, convicted under Section 302 IPC, has also been sentenced to life imprisonment with fine of Rs. 1,000/-, in default whereof, he would have to further undergo rigorous imprisonment of one year. Each of the accused-appellants, convicted under Section 341 IPC, has been sentenced to one month's simple imprisonment. 2. Factual matrix of the case is that one Jyani Devi (RW.2) submitted a written report (Exhibit P-17) to S.H.O., Police Station Buhana in Village Kalva at 5.30 P.M. on 14.09.2004 stating therein that while she was standing in front of her house at about 3.00-3.30 P.M., she saw that certain people were beating her brothers namely Hawa Singh and Krishan, in front of the house of Ishwar. Ishwar S/o. Nanadram, Sunil S/o Ishwar, Shubh Ram S/o. Nanadram, daughter of Ishwar, wife of Ishwar Sumitra and Dharm Singh Jat and several other males and females were amongst those, who were beating her two brothers. These people were causing injuries to Hawa Singh and Krishan by Jelly, Kulhada, Lathi and Barchi etc. Her brothers sustained injuries which led to their death. Ishwar and Sunil dragged them into the house of Ishwar. Their dead bodies were still lying in the house of Ishwar. 3. On receipt of the aforesaid written report (Exhibit P-17), a regular FIR No. 232/2004 (Exhibit P-18) was chalked out for offences under Sections 147, 148. 149, 341 and 302 IPC. Accused were arrested and after investigation, the police filed challan against six persons. The trial court framed charges against the accused persons under Sections 120B, 147/148, 341, 302 or 302/149 IPC. The accused denied the charges and claimed trial. The prosecution produced 15 witnesses and exhibited 38 documents. Thereafter, the accused were examined under section 313 Cr.P.C. wherein they pleaded innocence. In defence, they examined three witnesses and produced 33 documents. The trial court framed charges against the accused persons under Sections 120B, 147/148, 341, 302 or 302/149 IPC. The accused denied the charges and claimed trial. The prosecution produced 15 witnesses and exhibited 38 documents. Thereafter, the accused were examined under section 313 Cr.P.C. wherein they pleaded innocence. In defence, they examined three witnesses and produced 33 documents. The trial court, on conclusion of the trial, vide judgment and order dated 26.10.2005 acquitted the co-accused namely Shubh Ram, Smt. Sumitra and Smt. Krishna, but convicted and sentenced the accused-appellants in the manner indicated above. 4. Mr. Gajanand Yadav, learned counsel for the accused-appellants argued that written report (Exhibit P-17) was not actual first report because in this case, Raj Kumar Sharma (PW.12) was the first Investigating Officer and he, in his cross-examination before the trial court, categorically admitted that Rajesh (PW.5) had come to police station in a pickup van and informed him that Sunil Kumar, Ishwar Singh etc. were beating his brothers Hawa Singh and Krishan Kumar. Similarly, another brother of the deceased, Ashok Kumar (RW.1) stated that he along with his elder brother Rajesh (RW.5) went to police station immediately after the incident and informed the police. He, in fact, offered to submit a written report, but the police did not accept the same. It is argued that information given by the aforesaid two witnesses must have definitely been entered in the Rojnamcha or the written report submitted by Ashok Kumar (P.W.1) must have been entered in the records of the police station. None of the aforesaid documents was produced by the prosecution and, therefore, written report (Exhibit P-17) submitted by Jyani Devi (RW.2) was hit by Section 162 Cr.P.C. and the investigation conducted on the basis of that written report by the Investigating Officer is vitiated. 5. It is argued that no independent witness has been produced by the prosecution. Jyani Devi (P.W.2) in her statement before the trial court has stated that incident was witnessed by several other independent persons but none of them has been produced by the prosecution to prove its case. Apart from Ashok Kumar (RW.1), Rajesh (P.W.5), brothers of the deceased, Jyani Devi (P.W.2), sister of the deceased, three more eye witnesses namely Bhati Devi (P.W.6), Suman (P.W.7) and Prathvi Pal Singh (RW.8) are all closely related to the deceased. Apart from Ashok Kumar (RW.1), Rajesh (P.W.5), brothers of the deceased, Jyani Devi (P.W.2), sister of the deceased, three more eye witnesses namely Bhati Devi (P.W.6), Suman (P.W.7) and Prathvi Pal Singh (RW.8) are all closely related to the deceased. While Bhati Devi (RW.6) happens to be mother of the deceased; Suman (P.W.7) is wife of Rajesh (PW.5) and Prathvi Pal Singh (RW.8) is brother-in-law of the deceased, i.e. husband of Jyani Devi (PW.2). All these are planted witnesses. In fact, none of them has witnessed the incident. As per own showing of the prosecution, the incident had taken place in two parts. In first part, deceased were allegedly subjected to severe beating and in second part, they were dragged into the house of Ishwar where they were allegedly beaten to death. None of the witness claims to have entered the house of accused Ishwar and it was impossible for them to witness the incident. 6. It is argued that written report (Exhibit P-17) was submitted by Jyani Devi (RW.2) to SHO, P.S. Buhana at 5.30 PM. on 14.09.2004 in Village Kalva, wherein at its back, the police has drawn the proceedings, in which it has been mentioned that on enquiry from her, she told that her 'bhabhis', Smt. Savita and Suman Devi had also seen the incident. While Smt. Savita has not been produced, statement of Suman (P.W.7) under Section 161 Cr.P.C. (Exhibit D-6) was recorded by the police highly belatedly on 02.12.2004, i.e. after 21/2 months after the incident wherein she has made lots of improvements by asserting that on hearing hue and cry of the deceased, they went to the house of Ishwar Singh wherein she named 11 accused and alleged that there were 10 more and attributed specific roles to several accused including the accused-appellants. She claimed that on hearing hue and cry, all the aforementioned witnesses rushed to the house of Ishwar Singh and saw the incident. Suman (RW.7), in her cross examination, has admitted that her statement was recorded by the police 21/2 months after the incident and in between the police came to their village several times and she was also available in the village. Suman (RW.7), in her cross examination, has admitted that her statement was recorded by the police 21/2 months after the incident and in between the police came to their village several times and she was also available in the village. This witness, in cross examination before the trial court, admitted that there are two turns in the way leading from their house to the place of incident and that the incident, which took place at the house of Ishwar Singh, could not be seen from outside their house. In fact, Investigating Officer, Raj Kumar Sharma (P.W.12), in his cross examination, has stated that distance between the two places were approximately 100 meters and there are few turns from the house of the complainant to the house of accused Ishwar Singh, but voices can be heard from one place to another. This fact is also borne out from the site plan (Exhibit P-19). Bhati Devi (RW.6), mother of the deceased also admitted in her cross-examination that there are two turns between the two houses. 7. Mr. Gajanand Yadav, learned counsel for the accused-appellant further argued that examination-in-chief of Raj Kumar Sharma, Investigating Officer (RW.12) was concluded on 24.09.2005, but his cross-examination was deferred because the seized article of the case were not available in the trial court. But thereafter, cross-examination of this witness resumed on 26.09.2005, but the articles were never produced. None of the articles, therefore, can be relied in support of the conviction of the accused-appellants. Alleged motive attributed to the accused-appellants by Bhati Devi (P.W.6) was that for murder of one Hukmi Chand, her two sons Krishna and Ishwar were made members of the accused party, but that motive could hardly be a reason to connect the accused appellants with the crime because that incident admittedly took place more than eight years before the present incident. When a suggestion was given to her as to whether she could see any incident from distance of more than 50 steps, she denied. She stated that her vision is good but it cannot be possible for her to see the incident from such distance. When a suggestion was given to her as to whether she could see any incident from distance of more than 50 steps, she denied. She stated that her vision is good but it cannot be possible for her to see the incident from such distance. Bhati Devi (P.W.6) has rather proved that Ashok Kumar (RW.1) was not present at the place of occurrence and he had gone to agricultural field and in cross examination, when she was confronted with her police statement recorded under Section 161 Cr.P.C. on 15.09.2004 (Exhibit D-4), wherein she stated that after the incident, information of the incident was sent to Ashok Kumar (RW.1), who was at that time in agricultural field and he came rushing from there, she failed to give any satisfactory explanation for such a contradiction. Ashok Kumar (P.W.1), therefore, cannot be considered as eye witnesses. 8. Similarly, Rajesh (RW.5) failed to give any satisfactory explanation for the statement given to police under Section 161 Cr.P.C. (Exhibit D-7) that after the incident, his younger brother Ashok Kumar rushed to him at Buhana and informed that named accused have beaten their brothers Hawa Singh and Krishna Kumar. This also proves that Rajesh was not present at the time of incident and was not an eye witness of the incident. It is argued that all the witnesses have made lot of improvements from stage to stage in their version. Police statement of Jyani Devi (P.W.2) was recorded on as many as three occasions. But only in her first statement (Exhibit D-2) recorded on 14.09.2004, she maintained the same version which was given by her in the written report (Exhibit P-17) and improved upon that version in later two statements. Jyani Devi (RW.2) has given the names of only Savita and Suman as eye witnesses on being questioned by the police at the time of submission of written report. Prathvi Pal Singh (RW.8), husband of Jyani Devi (P.W.2) is also a planted witnesses because statement of Jyani Devi does not show his presence either in written report or in her police statements recorded under Section 161 Cr.P.C. Police statement of Prathvi Pal Singh (RW.8) was recorded as late as on 03.10.2004. There is no explanation for such a delay. Prathvi Pal Singh (RW.8), husband of Jyani Devi (P.W.2) is also a planted witnesses because statement of Jyani Devi does not show his presence either in written report or in her police statements recorded under Section 161 Cr.P.C. Police statement of Prathvi Pal Singh (RW.8) was recorded as late as on 03.10.2004. There is no explanation for such a delay. Besides, Ashok Kumar (RW.1), who is also attesting witness of all the memos of seizure and site plan, which were prepared immediately after the incident on 14.09.2004, was throughout available to the police, but his statement under Section 161 Cr.P.C. was recorded by the police highly belatedly on 03.10.2004. 9. While Rajesh Kumar (P.W.5), in his cross-examination, has stated that he and his brother, Ashok Kumar (RW.1) did not give any report at police station, but Ashok Kumar (P.W.1) has asserted that he had given written report to the police. In fact, Ashok Kumar (RW.1) has stated that when he and his brother Rajesh went to the police station immediately after the incident, the police came to their residence and also prepared written report and obtained signature of their sister Jyani Devi (RW.2), in which all the accused were named whereas this witness claimed that he gave report to S.H.O. Police Station, Buhana, in which he named all the accused. All the eye witnesses have named 10 to 12 persons and have made allegation of dragging the deceased in injured condition from the way to the house of Ishwar Singh against them whereas originally they blamed it only at two accused. Number of accused initially was up to 12, but challan was filed against only 6 accused persons and the trial court had acquitted three accused. 10. Learned counsel for the appellants submitted that accused Dharm Singh is a PTI in a Government School. He is a Government servant and his house is in Buhana and he does not reside in village Kalva. He has been falsely implicated in the case. He has been made accused at the instance of local MLA Sunder Lal and Circle Officer, Kashiram. Dharam Singh had filed a criminal complaint against both of them, which resulted in compromise, but they still entertained malice against Dharam Singh. He has been falsely implicated in the case. He has been made accused at the instance of local MLA Sunder Lal and Circle Officer, Kashiram. Dharam Singh had filed a criminal complaint against both of them, which resulted in compromise, but they still entertained malice against Dharam Singh. This is evident from the fact that recovery memo Kulhadi (Exhibit P-33), in which recovery has been shown at the instance of accused Dharm Singh from the house of Ishwar Singh, where he does not stay. Learned counsel for the appellants in this connection referred to information furnished by accused Dharm Singh under Section 27 of the Indian Evidence Act for recovery of Kulhadi (Exhibit P-30) and submitted that accused Dharm Singh was arrested on 15.09.2004 at 6.10 PM. vide arrest memo (Exhibit P-13) whereas aforesaid Exhibit P-30 was actually prepared on 14.09.2004, but to fill up this lacuna, digit 4' of 14' was made as 6' by over writing and thus information under Section 27 of the Indian Evidence Act has been shown to be received from accused Dharm Singh on 16.09.2004. Blood stained Kulhadi is shown to have handle of two feet only. It is alleged that the accused Dharm Singh inflicted head injuries to both the deceased by using this Kulhadi having short handle of two feet. If at all it was so, his cloths would have definitely received blood stains, particularly when cloths of other two accused namely Ishwar and Sunil received blood stains. There were no blood stains on the cloths of the accused Dharm Singh. Besides, recovery memo of iron pipe (Exhibit P-29) shown at the instance of accused Sunil clearly indicates that it was not just a iron pipe, but at one end of the pipe it was fitted with iron blade and it was also containing blood stains and, therefore, injuries on the head of the deceased, especially keeping in view their length must have been inflicted by this weapon. Therefore, recovery of Kulhadi (Exhibit P-33) has been falsely shown at the instance of accused Dharm Singh and the Kulhadi was got dipped into the blood at the instance of the Circle Officer Kashiram, who was biased against accused Dharm Singh. 11. Therefore, recovery of Kulhadi (Exhibit P-33) has been falsely shown at the instance of accused Dharm Singh and the Kulhadi was got dipped into the blood at the instance of the Circle Officer Kashiram, who was biased against accused Dharm Singh. 11. Learned counsel argued that false implication of accused Dharm Singh is also evident from the defence evidence of Shishram (D.W.1), who has stated that Dharm Singh had come to his village Papda on 14.09.2004 to attend 'savamani', a religious feast, hosted by him. He reached their house at 4-5 in the evening of 13.09.2004 and stayed in the night to attend the 'jagran' and also remained present on the day of 14.09.2004 up to 5.00-6.00 P.M. Invitation Card of 'savamani' and 'jagran' is Exhibit D-8, which was given to accused Dharm Singh. D.W.2, Chouth Mai has also proved presence of accused Dharm Singh at Village Papda to attend 'jagran' on 13.09.2004 and thereafter to attend 'savamani' on the day of 14.09.2004. Exhibit D-9 is the certificate issued by the Head Master of the school to the effect that Dharm Singh had worked as PTI in the Government school at Papda from 10.04.1981 to 12.11.1983 and his conduct was satisfactory. Exhibit D-10 is the certificate issued by Head Master of Government School at Village Kalakhari for working of accused Dharm Singh from 06.09.1986 to 15.11.1987; Exhibit D-11 is the certificate issued by Block Elementary Education Officer, Buhana for his working from 31.07.1998 to 09.04.2002 and Exhibit D-12 is the certificate issued by the Head Master of the Government School at Lala Mandi for his working from 10.04.2002 to 11.09.2003. Exhibit D-13 and Exhibit D-14 are the electricity bills of his house at Buhana of the months of July, 2003 and September, 2005 issued by Ajmer Vidyut Vitran Nigam Limited. Telephone bill issued in his name at Buhana is Exhibit D-15. All these documents clearly show that Dharm Singh was permanently residing in Buhana and not in Village Kalva. Therefore, he has been falsely implicated only for the reason that he had earlier lodged a criminal complaint against both Sundar Lal and Kashiram. Telephone bill issued in his name at Buhana is Exhibit D-15. All these documents clearly show that Dharm Singh was permanently residing in Buhana and not in Village Kalva. Therefore, he has been falsely implicated only for the reason that he had earlier lodged a criminal complaint against both Sundar Lal and Kashiram. Copy of the criminal complaint, in which both Sundar Lal and Kashiram were made accused for offence under Sections 147, 323, 342, 362 and 120-B IPC has been produced as Exhibit D-19 and his statement before the Court alleging that C.I. and Sunder Lal both subjected him to severe beating is Exhibit D-20. Exhibit D-25 is the certified copy of the order sheets of the said case which ultimately ended in compromise on 05.01.2002, but Sundar Lal and Kashi Ram still had a grudge against the accused Dharm Singh and wanted to avenge the filing of the aforesaid complaint. Learned counsel for the accused-appellants, therefore, argued that the trial court was not justified in rejecting the plea of alibi set up by the Dharam Singh only because he did not produce himself as witness under Section 315 Cr.P.C. 12. Mr. V.S. Godara, learned Public Prosecutor has opposed the appeal and argued that trial court has rightly convicted the accused-appellants because their guilt has been proved beyond reasonable doubt by the evidence on record. There are six eye-witnesses to the incident, who have fully supported case of the prosecution. Written report (Exhibit P-17) was submitted to the police by Jyani Devi (RW.2) within two hours of the incident. Even if all the eye witnesses were not named in the written report (Exhibit P-17) or in the police proceedings drawn on its back by the police, the testimony of other witnesses cannot be discarded because their presence on the scene of occurrence was quite natural. Mere fact that they happen to be related to deceased does not make their testimony tainted or liable to be rejected. Evidence of any neighbour could not come on record because at the time of incident, the neighbours were so frightened that all of them went inside their houses. Even if some of them had witnessed the incident, no one came forward to give evidence to support the prosecution case because they were frightened and having fear for their lives. Evidence of any neighbour could not come on record because at the time of incident, the neighbours were so frightened that all of them went inside their houses. Even if some of them had witnessed the incident, no one came forward to give evidence to support the prosecution case because they were frightened and having fear for their lives. In such a scenario, none, except the relatives would come forward to depose the truth. Learned Public Prosecutor has taken the Court through the statements of eye-witnesses namely Ashok Kumar (P.W.1), Jyani Devi (P.W.2), Rajesh (RW.5), Bhati Devi (RW.6), Suman (P.W.7) and Prathvi Pal Singh (P.W.8), which we shall deal at the appropriate place. 13. Learned Public Prosecutor also submitted that the trial court has already acquitted all other accused, whose roles were not proved by specific and direct evidence and rightly convicted only three accused namely Ishwar, Sunil and Dharm Singh. Their conviction has been made on the basis of direct evidence of the eye witnesses as also on the basis of recoveries made at the instance of each one of them. Stand of the defence before the trial court that it was a blind murder has rightly been rejected by the learned trial court. There is no reason for not believing testimony of Jyani Devi (P.W.2) which was the first version as she in her statement recorded by the police on the very day of the incident, has named all the accused-appellants. She also stated to the police that her Bhabhi Suman has also witnessed the incident. Suman happens to be wife of Rajesh (P.W.5) and she was in the state of shock and therefore, even if her statement was recorded by the police with some delay, that would not diminish the evidentiary value of her testimony because her name as eye witness was furnished to the police at first available opportunity by Jyani Devi (RW.2). Blood stained cloths of accused Ishwar and Sunil were seized vide Exhibit P-15 and Exhibit P-16 and sent to FSL. On examination by Forensic Science Laboratory (Exhibit P-37), the cloths were found to contain human blood of A Group, which has been proved to be the blood group of the deceased. Blood stained cloths of accused Ishwar and Sunil were seized vide Exhibit P-15 and Exhibit P-16 and sent to FSL. On examination by Forensic Science Laboratory (Exhibit P-37), the cloths were found to contain human blood of A Group, which has been proved to be the blood group of the deceased. Similarly, lathi was recovered at the instance oi accused Ishwar; Kulhadi recovered at the instance of accused Dharm Singh was also found to contain human blood of A Group, which also matched with the blood group of the deceased. Therefore, learned Public Prosecutor supported the judgment of the learned trial court and prayed that appeal of the accused-appellants be dismissed. 14. We have given our thoughtful and anxious considerations to the rival submissions and scanned the material on record. 15. At the outset, we must begin with observing that we are not inclined to uphold the contention of learned counsel for the accused-appellants that prosecution case should be thrown overboard only because no independent witness has been produced or has come forward to support the prosecution case. In a small village, if two young persons are murdered in broad day light in such a gruesome manner, it is natural tendency of common man of the society not to come forward to give evidence. In such scenario, it is difficult to find independent witnesses. Therefore, this alone cannot be a reason to hold the all the witnesses, whom the prosecution in the present case has produced, are planted witnesses and they actually did not see the incident taking place. And even if Ashok Kumar (P.W.1) and Rajesh (RW.5), who went to the police station when this occurrence was still taking place and informed the police about the incident and the police immediately rushed to the village where the incident took place, the written report submitted to police (Exhibit P-17) cannot be rejected because it is this report on which entire case depends and on the basis of which investigation started. 16. The Supreme Court in Dayal Singh and ors. v. State of Uttaranchal, AIR 2012 SC 3046 observed that the Investigating Officer as well as the doctor, who are dealing with the investigation of a criminal case are required to act in accordance with the police manual and the known canons of medical practise respectively. They are both obliged to be diligent, truthful and fair in their approach and investigation. They are both obliged to be diligent, truthful and fair in their approach and investigation. A default or breach of duty, intentionally or otherwise, can some times prove fatal to the case of the prosecution. An Investigating Officer is completely responsible and answerable for the manner and methodology adopted in completing his investigation. Whether the default and omission is so flagrant that it speaks volumes of a deliberate act or such irresponsible attitude of investigation, no court can afford to overlook it, whether it did or did not cause prejudice to the case of the prosecution. It is possible that despite such default/omission, the prosecution may still prove its case beyond reasonable doubt and the court can also return its finding. The Supreme Court in Ram Bihari Yadav and others v. State of Bihar and others, 1995(6) SCC 31 has noticed that if primacy is given to such designed or negligent investigation, no court can afford to overlook it, whether it did or did not cause prejudice to the case of the prosecution. It is possible that despite such default/omission, the prosecution may still prove its case beyond reasonable doubt and the court can also return its finding. The Supreme Court in Ram Bihari Yadav and others v. State of Bihar and others, 1995(6) SCC 31 has noticed that if primacy is given to such designed or negligent investigation, to the omission or lapses by perfunctory investigation or omissions, the faith and confidence of the people would be shaken not only in the law enforcement agency, but also in the administration of justice. In the case of Sathi Prasad v. The State of U.P., 1972(3) SCC 613 , the Supreme Court held that 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. Noticing the possibility of investigation being designedly defective, the Supreme Court in Dhanaj Singh alias Shera and others v. State of Punjab, 2004(1) WLC (SC) Cri. 767 : 2004(3) SCC 654 held that in the case of a defective investigation, the Court has to be circumspect in evaluating the evidence. Noticing the possibility of investigation being designedly defective, the Supreme Court in Dhanaj Singh alias Shera and others v. State of Punjab, 2004(1) WLC (SC) Cri. 767 : 2004(3) SCC 654 held that 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. 17. In Paras Yadav v. State of Bihar, AIR 1999 SC 644 , the Supreme Court enunciated the principle, in conformity with the previous judgments, that if the lapse or omission is committed by the investigating agency, negligently or otherwise, the prosecution evidence is required to be examined dehors such omissions to find out whether the said evidence is reliable or not. The contaminated conduct of officials should not stand in the way of evaluating the evidence by the courts, otherwise the designed mischief would be perpetuated and justice would be denied to the complainant party. In the case of Zahira Habibullah Sheikh and another v. State of Gujarat and others, 2006(1) WLC (SC) Cri. 509 : 2006(3) SCC 374 , the Supreme Court noticed the importance of the role of witnesses in a criminal trial. The importance and primacy of the Bentham, who states that witnesses are the eyes and ears of justice. The Court issued a caution that in such situations, there is a greater responsibility of the Court on the one hand and on the other the courts must seriously deal with persons, who are involved in creating designed investigation. The Supreme Court held that efforts should be to ensure fair trial where the accused and the prosecution both get a fair deal. Public interest in proper administration of justice must be given as much importance if not more, as the interest of the individual accused. The courts have a vital role to play. In Human Rights Commission v. State of Gujarat, 2009(6) SCC 767 , it was held by their Lordships that the concept of fair trial entails familiar triangulation of interests of the accused, the victim and the society and it is the community that acts through the State and prosecuting agencies. The courts have a vital role to play. In Human Rights Commission v. State of Gujarat, 2009(6) SCC 767 , it was held by their Lordships that the concept of fair trial entails familiar triangulation of interests of the accused, the victim and the society and it is the community that acts through the State and prosecuting agencies. 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 by becoming a participant in the trial evincing intelligence, active interest and 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 it serves. 18. In the case of State of Karnataka v. K. Yarappa Reddy, AIR 2000 SC 185 , while dealing with the question of effective investigation as to whether any manipulation in the station house diary by the Investigating Officer could be put against the prosecution case, the Supreme Court held that if the other evidence, on scrutiny, is found credible and acceptable, the court should not be influenced by the machinations demonstrated by the Investigating Officer in conducting investigation or in preparing the records so unscrupulously. It can be a guiding principle that as investigation is not the solitary area for conclusion of the Court in the case cannot be allowed to depend solely on the probity of investigation. 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. The Court must have predominance and pre-eminence in criminal trials over the action taken by the investigation officers. Criminal Justice should not be made a casualty for the wrongs committed by the investigating officers in the case. In Ram Bali v. state of U.P., 2004(2) WLC (SC) Cri. 137 : 2004(10) SCC 598 , the Supreme Court observed that in case of defective investigation, the court has to be circumspect while evaluating the evidence. But it would not be right in acquitting an accused person solely on account of the defect and if done so, would tantamount to playing into the hands of the investigating officer, if the investigation is designedly defective. But it would not be right in acquitting an accused person solely on account of the defect and if done so, would tantamount to playing into the hands of the investigating officer, if the investigation is designedly defective. As regards discrepancies between ocular and medical evidence, it was held by the Supreme Court in the case of Kamaljit Singh v. State of Punjab, 2004 Cri.L.J. 28 that minor variations between medical evidence and ocular evidence do not take away the primacy of the latter. Unless medical evidence in its terms goes so far as to completely rule out all possibilities whatsoever of injuries taking place in the manner stated by the eye witnesses, the testimony of the eye witnesses cannot be thrown out. The Supreme Court in Madan Gopal Kakad v. Naval Dubey and anr., 1992(3) SCC 204 held that where the eye witness account is found credible and trustworthy, medical opinion pointing to alternative possibilities may not be accepted as conclusive. 19. We must, therefore, hold that for minor deviations and contradictions or inconsistencies in the statements of the witnesses, whole case of the prosecution cannot be discarded or disbelieved. We shall now proceed to evaluate prosecution evidence to find out whether conviction of the accused could really be sustained on such evidence. 20. Raj Kumar Sharma (P.W.12), first Investigating Officer has in the opening of his statement stated that when he reached at the place of incident, Jyani Devi (P.W.2) submitted to him written report (Exhibit P-17), which he immediately sent to police station with Ramesh Kumar Constable. Written report (Exhibit P-17) contains signatures of Ramesh Kumar at G to H place and that of Mahipal Singh, Head Constable at I to J place. The police proceedings at the back of the report has been drawn by M.P. Singh, Head Constable and on that basis regular FIR No. 232/2004 was registered at the police station (Exhibit P-18). He prepared the site plan of the place of incident (Exhibit P-19) and panchayatnama of dead body of deceased Hawa Singh (Exhibit P-1) and panchayatnama of dead body of deceased Krishan Kumar (Exhibit P-2). He took blood soaked soil vide Exhibit P-3 and Exhibit P-4 and sealed both of them and put mark 'A' and 'C' on them respectively. Exhibit P-5 and Exhibit P-6 are also seizure memo of blood soaked soil. He took blood soaked soil vide Exhibit P-3 and Exhibit P-4 and sealed both of them and put mark 'A' and 'C' on them respectively. Exhibit P-5 and Exhibit P-6 are also seizure memo of blood soaked soil. Four samples of controlled soil were seized vide Exhibit P-7 to Exhibit P-10 and all of them were sealed. These samples of soil were so containing H, F, D and B marks on the memos. He recorded the statements of Bhati Devi (PW.6), Jyani Devi (P.W.2) and Rajesh (P.W.5) under Section 161 Cr.P.C. He arrested the accused. During investigation, he seized the blood stained cloths of the accused Ishwar vide Exhibit P-15 at 6.10 P.M. on 15.09.2004 and blood stained cloths of accused Sunil vide Exhibit P-16 on 15.09.2004, which were sealed. Blood soaked cloths belonging to deceased Hawa Singh were seized by Exhibit P-23 on 15.09.2004 and of deceased Krishna Kumar were seized vide Exhibit P-24 on 15.09.204, which were both sealed. Both dead bodies were subjected to post mortem. Accused Ishwar gave information under Section 27 of the Indian Evidence Act on 16.09.2004 at 1.00 P.M. vide Exhibit 28 for recovery of blood stained lathi, which was recovered on 17.09.2004 vide Exhibit P-31. Accused Sunil gave information under Section 27 of the Indian Evidence Act vide Exhibit P-29 on 16.09.2004 at 1.30 PM. for recovery of blood stained iron pipe which was recovered vide Exhibit P-32 on 17.09.2004. Similarly, Dharm Singh gave information under Section 27 of the Indian Evidence Act vide Exhibit P-30 on 16.09.2004 at 2.00 P.M. for recovery of blood stained Kulhadi, which was recovered vide Exhibit P-33 on 17.09.2004. All these weapons were sealed in the presence of Motwir witnesses Rampat, Constable and Jagdish, Head Constable and marks of seal were also indicated thereon. Site Plans of the places of such recoveries were made vide Exhibit P-34, P-35 and P-36 respectively. 21. In cross examination, Raj Kumar Sharma (P.W.12) has stated that distance of Village Kalva from village Buhana was only 5 Kms and he reached at Village Kalva at 3.25 PM. He found Jyani Devi (PW.2), Rajesh (P.W.5) and Bhati Devi (P.W.6) at the place of incident. 21. In cross examination, Raj Kumar Sharma (P.W.12) has stated that distance of Village Kalva from village Buhana was only 5 Kms and he reached at Village Kalva at 3.25 PM. He found Jyani Devi (PW.2), Rajesh (P.W.5) and Bhati Devi (P.W.6) at the place of incident. It is then that Jyani Devi (PW.2) submitted to him written report upon which Ramesh Kumar, Constable was sent to register the FIR on the basis of the written report, who left at 5.30 P.M. and returned back at 6.15 P.M. after all the formalities. He (this witness) then prepared all the memos and stayed there up to 8.00 P.M. He has also stated that distance between the place of incident and the house of complainant was merely 100 meters and although, both the houses were not directly visible, but the noises could be heard. This witness further stated that he made investigation into the claim of the accused Dharm Singh that he was not present at Village Kalva at the time of incident. Rather his investigation proved that Dharm Singh was also present at the time of incident. His investigation did not prove his presence at Village Papda at the house of Shish Ram (D.W.1). He arrested this accused on 15.09.2014 in between 6.00 PM. to 6.10 P.M. from Village Kalva and by the time the information were given by the accused under Section 27 of the Evidence Act on 16.09.2004, it was already dark, therefore, he recovered weapons on the following day, i.e. 17.09.2004. In response to specific question with regard to accused Dharm Singh, this witness in cross-examination stated that on the basis of information furnished by Dharm Singh, blood stained Kulhadi was recovered from the house of Ishwar Singh. 22. We are not inclined to uphold the contention of learned counsel for the accused-appellants that there was discrepancy in the information given by the Dharam Singh under Section 27 of the Evidence Act (Exhibit P-30) because in that information 14th September' by overwriting was made as 16th September' and the recovery was actually made on 17.09.2004. 22. We are not inclined to uphold the contention of learned counsel for the accused-appellants that there was discrepancy in the information given by the Dharam Singh under Section 27 of the Evidence Act (Exhibit P-30) because in that information 14th September' by overwriting was made as 16th September' and the recovery was actually made on 17.09.2004. This is because 14.09.2004, in any case could not be taken as the date of receiving information from the accused Dharam Singh, as his arrest itself was made on 15.09.2004 at 6.10 P.M. and this explains why the information was received vide Exhibit P-30 on 16.09.2004 and recovery of Kulhadi was made pursuant to that information on 17.09.2004 vide Exhibit P-33. This argument even otherwise may not be available to the defence because despite opportunity, no such specific question with regard to alleged interpolation of date was put to the Investigating Officer, Raj Kumar Sharma (P.W.12). 23. Evidence has proved that Packet marked 'K' containing sealed blood stained lathi recovered at the instance of accused Ishwar was found positive for the presence of human blood of A Group. Packet marked 'L' containing blood stained iron pipe recovered at the instance of accused Sunil was also sent to FSL and was found positive for the presence of human blood of A Group. Similarly, Packet marked 'M' containing blood stained Kulhadi recovered at the instance of Dharm Singh was found to be positive for presence of human blood of A Group, which is evident from FSL Report (Exhibit P-37). Shirt, Vest and Pant of deceased Hawa Singh in Packet 'Ka' and Vest and Pant of deceased Krishna Kumar in Packet 'Kha' were found containing human blood of A Group. Moreover, Shirt and Pyjama of accused Ishwar Singh recovered vide Exhibit P-15 and sent to FSL in Packet having mark 'I' was found to contain human blood. While human blood on the Shirt of accused Ishwar was not found sufficient to defect the blood group, but on Pyjama of Ishwar, human blood of A Group was found. Similarly, sealed Packet having mark 'J' containing Vest T-shirt and lower of track suit of the accused Sunil were found positive for the presence of human blood. While human blood on the Shirt of accused Ishwar was not found sufficient to defect the blood group, but on Pyjama of Ishwar, human blood of A Group was found. Similarly, sealed Packet having mark 'J' containing Vest T-shirt and lower of track suit of the accused Sunil were found positive for the presence of human blood. Though, the blood was not found sufficient for test on Vest and T-shirt to detect the blood group, but, lower of track suit of accused Sunil was found to contain human blood of A Group. All these recoveries, thus conclusively, link the accused-appellants with the crime and rather scientifically prove their presence at the scene of occurrence. 24. Learned counsel for the appellants has sought to argue that none of the six eye witnesses cited by the prosecution was present at the scene of occurrence and they could not have seen the incident because house of the complainant party was situated at a certain distance from the house of accused Ishwar and that the lane leading to that house had two turns/curves, but when we examine the statement of Raj Kumar Sharma (PW.12), Investigating Officer, we find that he has categorically stated that distance between two houses was hardly 100 meters and that hue and cry from one place to another could be easily heard. It is, therefore, quite natural that the deceased were subjected to severe beatings at the hands of accused and on hearing hue and cry, members of their family would certainly rush to place of incident to save them. Since there were two turns between the house of the accused and that of the complainant and the witnesses could not see the incident, Raj Kumar Sharma (PW.12) has clearly stated that distance of the two houses was hardly 100 meters and sound could be heard from one place to another. In this situation, Jyani Devi (P.W.2) has stated that when she was standing outside her house, she heard hue and cry of her brothers. She told that her brothers Rajesh (P.W.5) and Ashok Kumar (P.W.1) and 'bhabhis' Savita and Suman (P.W.7) and mother Bhati Devi (P.W.6). They rushed to the place of incident and saw the accused beating the deceased Hawa Singh and krishna Kumar. This witness stated that while Sunil Kumar inflicted five blows on the head of the deceased Krishan Kumar. She told that her brothers Rajesh (P.W.5) and Ashok Kumar (P.W.1) and 'bhabhis' Savita and Suman (P.W.7) and mother Bhati Devi (P.W.6). They rushed to the place of incident and saw the accused beating the deceased Hawa Singh and krishna Kumar. This witness stated that while Sunil Kumar inflicted five blows on the head of the deceased Krishan Kumar. Although, this witness appears to have somewhat exaggerated number of accused in her Court statement, but nevertheless, from written report (Exhibit P-17), it is seen that therein she named all the three accused namely Ishwar, Sunil and Dharm Singh, whose guilt has eventually been found proved beyond reasonable doubt by the trial court. In that report, this witness has also named Subh Ram, daughter of Ishwar Singh, wife of Ishwar Singh, but the learned trial court has not found the case proved against them beyond reasonable doubt. In the written report (Exhibit P-17), this witness has alleged that all the accused were subjecting Hawa Singh and Krishan Kumar to beatings with the use of Jenny, Kulhadi and Barchi etc. and then Ishwar and Sunil dragged them inside the house of Ishwar. To this extent, version of this witness has throughout remained consistent, till her statement was recorded by the trial court. This witness was subjected to extensive cross-examination with reference to her first police statement (Exhibit D-2), which was recorded on the very day of incident, i.e. 14.09.2004, therefore, we ignore her supplementary statement recorded under Section 161 Cr.P.C. (Exhibit D-3) and upon matching her testimony before the Court therewith we find that this witness named Ishwar, Sunil and Dharm Singh apart from Shubh Ram, daughter of Ishwar and his wife and also that it were Ishwar and Sunil, who had dragged the dead bodies of the deceased inside the house of Ishwar. Later of these three accused namely Shubh Ram, Smt. Sumitra and Smt. Krishna were acquitted by the trial court. 25. Later of these three accused namely Shubh Ram, Smt. Sumitra and Smt. Krishna were acquitted by the trial court. 25. Contention that if the accused Dharm Singh was not the one, who dragged dead bodies of deceased inside the house of Ishwar and had he done so, it could be possible that cloths of Dharm Singh would have also got blood stains, also cannot be accepted because he was arrested on 15.09.2004, and not on the day of incident, therefore, absence of blood stains on his cloths may not be the solitary factor to discard the testimony of eye witnesses and recovery of blood stained Kulhadi at his instance, which has been found to contain human blood of A Group. 26. Even if we ignore the testimony of Ashok (P.W.1), Rajesh (RW.5) and Prathvi Pal Singh (RW.8), who according to the defence were not present, we find the presence of Bhati Devi (P.W.6) and Suman (P.W.7) in their houses and their rushing to the place of occurrence was quite natural, which was barely 100 meters away from their houses on hearing hue and cry of the deceased was quite natural. Bhati Devi (RW.6) was only 55 years of the age and the incident had taken place at about 3.00 P.M. in the afternoon and therefore, she could have clearly seen the incident from the distance of 50 meters. It cannot be said that her vision was so weak so as to identify as to who were beating her sons. She has rather stated that house of Ishwar was 50-20 steps away from their house and she has proved the presence of Ishwar, Sunil and Dharm Singh, whose involvement in the crime has been sufficiently corroborated by recoveries of blood stained weapons and cloths, all of which were containing human blood and mostly of A Group, which matched with blood group of the deceased. 27. Similarly the defence has contended that Jyani Devi (P.W.2), in response to the enquiry by the police on the very day of incident when she submitted written report (Exhibit P-17), informed that her two 'bhabhis' Savita and Suman (P.W.7) had also seen the incident. When Savita has not been produced, police statement of Suman (P.W.7) was recorded with delay, which failure has rightly been ignored by trial court because that by itself cannot be a reason to completely ignore her testimony. When Savita has not been produced, police statement of Suman (P.W.7) was recorded with delay, which failure has rightly been ignored by trial court because that by itself cannot be a reason to completely ignore her testimony. Her presence at the place of occurrence was quite natural and cannot be doubted. Ignoring the excess number of accused in her statement whose role has not been found to be proved by the trial court beyond reasonable doubt, this witness has also named Ishwar, Sunil and Dharm Singh with specific roles. She has also stated that while there were several persons present watching the incident, but no one came forward for help. In cross examination, she had denied the suggestion that she reached at the place of occurrence after reaching of her 'Nanad' and mother-in-law, albeit they went there together. With regard to distance between the place of incident and the house of complainant, her natural response was that distance was equal to the distance between the Court Room and its main gate. 28. As regards plea of alibi set up by the accused Dharm Singh, we would only cite judgment of the Supreme Court delivered in the case of Jitender Kumar v. State of Haryana, 2012(6) SCC 204 wherein it has been held that burden of proving plea of alibi only lay upon the accused. If the appellant-accused fails to bring on record any such evidence which would, even by reasonable probability, establish their plea of alibi, such plea cannot be accepted. Plea of alibi, in fact, is required to be proved with certainty so as to completely exclude the possibility of the presence of the accused at the place of occurrence and in the house which was the home of their relatives. In this case, the Supreme Court also observed that merely witnesses are related to the deceased they cannot be stated to be planted witnesses and they are natural and reliable witnesses and their testimony can be safely relied to convict the accused, particularly when it is corroborated by expert evidence on record. 29. In this case, the Supreme Court also observed that merely witnesses are related to the deceased they cannot be stated to be planted witnesses and they are natural and reliable witnesses and their testimony can be safely relied to convict the accused, particularly when it is corroborated by expert evidence on record. 29. In the present case accused Dharm Singh has although made an attempt to prove that he was present away at Village Papda where he was once posted as Physical Instructor from 10.04.1981 to 12.11.1983 in the remote parts, i.e. more than 21 years ago before the date of incident and that he attended 'jagran' in the house of Shishram (D.W.1) in the night of 13.09.2004 and stayed there for attending 'savamani' on the day of 14.09.2004 up to 5.00-6.00 PM. Secondly, he has placed on record electricity bills and telephone bills of his residence to show that he stays at Buhana and not in Village Kalva. Distance between Buhana and Village Kalva is hardly 5 kms and, therefore, his presence at Village Kalva cannot be impossible. Accused Dharm Singh happens to be real brother of accused Ishwar, who has been convicted and uncle of Sunil, who has also been convicted apart from brother Shubh Ram, who has been acquitted. Therefore, presence of accused Dharm Singh at Village Papda, in the light of evidence otherwise available on record, cannot be held to be proved merely because two defence witnesses namely Shishram (D.W.1) and Chouthmal (D.W.2) have deposed so, whose testimony stand on a very sketchy ground and does not inspire any confidence. 30. In view of above discussion, we do not find any merit in this appeal which is accordingly dismissed. Judgment and order dated 26.10.2005 passed by the trial court is upheld.Appeal dismissed. *******