GAJOO versus STATE OF UTTARAKHAND

Citation: [2012] 7 S.C.R. 1033 · Decided: 13-09-2012 · Supreme Court of India · Bench: SWATANTER KUMAR · Disposal: Dismissed

Cited by 1 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

[2012] 7 S.C.R. 1033 
GAJOO 
v. 
STATE OF UTTARAKHAND 
(Criminal Appeal No. 1856 of 2009) 
SEPTEMBER 13, 2012 
[SWATANTER KUMAR AND FAKKIR MOHAMED 
IBRAHIM KALIFULLA, JJ.] 
A 
B 
Penal Code, 1860 - s.302 - Murder -Appellant and one 
other accused - Conviction of appellant - Challenge to - Held: 
C 
Not tenable - The injuries on the victim evidently were inflicted 
by appellant holding a 'Daranti' in one hand and holding the 
neck of the victim-widow with the other hand - It was the 
pressing of her neck and body to the earth by both the 
accused who were of much greater strength than the victim, 
D 
that resulted in her death - Recovery of the 'Daranti' and a 
'blood stained pyjama' was duly established - The recoveries 
having been proved and the case of the prosecution being 
duly supported by two eye-witnesses, PW2 and PW3 and two 
witnesses, PW4 and PW5 who were present immediately after E 
the occurrence, proved the case of prosecution beyond any 
reasonable doubt - Conviction of appellant accordingly 
sustained. 
Criminal Trial - Defect in investigation - Effect of - Held: 
A defective investigation, unless it affects the very root of the 
prosecution case and is prejudicial to the accused, should not 
F 
be an aspect of material consideration by the Court - In the 
instant murder case, there was omission on the part of the 
investigating officer PW-6 as he did not obtain serologist 
report in respect of two Exhibits- the alleged weapon of offence 
G 
(Daranti) and the blood stained pyjama - Though, on facts, 
such omission on the part of PW6 did not give any advantage 
to the accused-appellant, the definite lapse cannot be 
overlooked - Director General of Police directed to take 
1033 
H 
1034 
SUPREME COURT REPORTS 
[2012) 7 S.C.R. 
A disciplinary action against PW6. 
B 
Evidence - Witness - Related witness - Appreciation of 
Evidence - Variation between medical evidence and 
ocular evidence - Appreciation of 
The prosecution case was that 'T', a widow, was 
murdered by her brother-in-law (appellant) and elder son. 
It was alleged that at night when PW2 and 3 were 
returning back to their home after attending a 
c 'Satyanarain Katha', they heard moaning sounds near the 
house of 'T'; that PWs 2 and 3 were carrying torches, and 
in the light thereof, they saw appellant hitting 'T with a 
Daranti, Ext. 2 while her elder son was holding her down. 
The trial court convicted appellant under Section 302 IPC 
0 and sentenced him to life imprisonment. The conviction 
and sentence was affirmed by the High Court. The other 
accused (the elder son of 'T' had died in the meanwhile). 
In the instant appeal, the appellant challenged his 
conviction on various grounds, viz. 1) that PW4 (the 
E younger son of 'T') had not completely supported the 
case of the prosecution; 2) that PW2 and PW3, the so-
called eye-witnesses, were not genuine and were related 
to PW1 (the uncle of PW4) and their presence at the place 
of occurrence was doubtful; 3) that there were clear and 
F material contradictions between the medical and oral 
evidence i.e. the post-mortem report (Ext. Ka-10) and 
statements of PW2 and PW3 and even the cause of death 
was not clear and 4) that the 'Daranti' and blood stained 
pyjama, which were recovered, were not sent for FSL 
G examination and no serological report was obtained. 
Dismissing the appeal, the Court 
HELD: 1. In cross-examination, PW4 made certain 
statements which no doubt, did not support the case of 
H the prosecution. He stated that he had not given the 
GAJOO v. STATE OF UTTARAKHAND 
1035 
names of the murderers to his uncle, PW1. However, the 
A 
statement of PW4 has to be read collectively along with 
the statement of PW1, PW2 and PW3. PW4 was a minor, 
when he saw his mother dead. His statement was 
recorded more than two and a half years after the date 
of occurrence. It cannot be said that there are any 
B 
serious contradictions or untruthfulness in the statement 
of this witness. Even if his statement has to be evaluated 
as it is on record, he had stated the facts that when he 
returned after attending the Satyanarain Katha, he saw 
his mother lying dead and thereafter he went and c 
informed his uncle, PW1, who subsequently lodged the 
report with the police the next morning and in view of the 
statement of PW2 and PW3, the accused were arrested. 
One fails to understand as to what advantage the 
accused intends to draw from this statement of PW4. It 0 
was not the case of the pr

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