'Investigating Officer Must Not Create Evidence' : Supreme Court Upholds Acquittal After Finding Witnesses Were 'Set Up'

Observing that the role of an investigating officer is to collect evidence, not to create it, the Supreme Court has acquitted a woman convicted in a double murder case after finding that the investigating agency had "set up" witnesses to create evidence and failed to explain what prompted it to record their statements during the investigation.

A bench of Justice Manoj Misra and Justice Vijay Bishnoi heard the case, where, among other materials, the prosecution sought to establish the guilt of the accused based on the testimonies of a taxi driver and a hotel staff member, who were found to be created witnesses, as the investigation neither explained why, when, and under what circumstances their testimonies were recorded, nor did the said witnesses possess any incriminating material against the accused that would have prompted them to approach the police.

The case arose from the murder of a woman (D-1) and her son (D-2) at their residence in Diur, Himachal Pradesh, in 2011. The Respondent- accused, was the stepdaughter of D-1 and stepsister of D-2.

The prosecution alleged that the accused had travelled from Chamba to Diur on the night of the incident and was responsible for the murders. Its case substantially relied upon the testimony of PW-4, a taxi driver, who allegedly transported the accused, and PW-18, a hotel employee, who allegedly saw her staying at a hotel in Chamba. According to the prosecution, the accused commuted between Chamba and Diur (the place of incident) with the help of the taxi driver on the night of the alleged incident, and after returning to Chamba from Diur, she stayed in a hotel, where the hotel worker witnessed a bleeding injury on the accused's hand, all to establish a chain of circumstances showing that the accused committed the offence.

The prosecution also relied upon the recovery of keys and a mobile phone, the presence of the accused's blood/DNA in a deceased's room, and other circumstantial evidence to connect her with the crime. The accused denied the allegations. The prosecution alleged a motive relating to the deceased person's property.

The Trial Court had convicted the accused for the offence of murder. The High Court, in an appeal filed by the accused, overturned the conviction, leading the State of Himachal Pradesh to appeal against the acquittal before the Supreme Court.

Affirming the High Court's decision of acquittal, the judgment authored by Justice Misra specifically questioned the failure of the investigating officer to explain why, when, and under what circumstances the testimonies of the said witnesses were recorded. In essence, the Court found the taxi driver and hotel worker to be created witnesses (not natural witnesses), to create evidence that was otherwise neither available to the investigating officer nor possessed by the created witnesses themselves.

“It is well settled that the role of the investigating officer is to collect evidence and not to create one. Where there is no occasion for the investigating officer to record statement of a person, or for that person to impart information to the police, yet, the police proceeds to record his statement without narrating the circumstance in which it was considered necessary to record his statement, a serious doubt arises as to whether that witness has been set up to create evidence.”, the Court observed.

The Court emphasised that an Investigating Officer is required to collect evidence emerging during investigation and cannot manufacture a chain of circumstances by introducing witnesses without explaining the circumstances necessitating their examination.

“Ordinarily an investigating officer collects evidence from witnesses who are either present at the scene of crime or are likely to be aware of the crime and have information about it. Evidence may also be collected from persons who, by virtue of their relationship with the victim or the named accused, are likely to have relevant information. Investigation may also reach out to those who may be in contact with the victim, or the known accused, based on Call Detail Record (CDR) of the mobile of the victim or the suspects. Likewise, information may be collected on the basis of information received through disclosure statement suffered by the accused. However, where a person is not even aware that the information which he is possessed of is incriminating against some person, there is no likelihood of that person reporting that information to the police. In such circumstances, what propels the investigating officer to record his statement becomes important, and failure to disclose the reason may dent the credibility of that witness as it may reasonably be inferred that the said witness is one who has been set up.”, the Court said.

The Court explained that an Investigating Officer may legitimately record the statement of another person after receiving information from an earlier witness indicating that such person may possess relevant information. However, where there is no apparent reason for recording a particular person's statement and the witness himself had no reason to approach the police, the circumstances surrounding the recording of the statement assume significance.

“…an investigating officer may pick up clues from any statement recorded during investigation to record statement of another. Such an exercise is completely bona fide. For example, if after recording statement of A, the investigating officer comes to know that B may have knowledge of something relevant, he would be justified in recording statement of B. But if the investigating officer straightway records statement of B, and there is no palpable reason for him to believe that B is possessed of relevant information, and B has no reason to impart information on his own to the investigating officer, a suspicion would arise whether the exercise of recording statement of B is undertaken just to create evidence. Lack of explanation in that regard may dent the credibility of B.”, the Court explained.

Refusing to read the created witness's testimony into evidence, the Court noted that travelling in a taxi or staying in a hotel, by itself, was not an incriminating circumstance that would ordinarily prompt a person to approach the police. Further, the hotel worker's testimony that he saw the accused on the night of the incident, as she was staying in the hotel, also paled into insignificance as the witness failed to furnish the guest list/visitor entry to corroborate his piece of testimony.

“In the present case, PW-20 i.e., the investigating officer ducks the question and feigns ignorance as to when he recorded the statement of PW-4 and PW-18 during investigation. Further, there is no explanation as to what prompted him to record statements of PW-4 and PW-18 during investigation. Importantly, PW-20 does not state that in her disclosure statement the accused had disclosed about travelling by Taxi from Chamba to Diur and back or about her stay at the hotel. PW-20 only states that the accused in her disclosure had stated that she could get the keys and mobile recovered. Thus, statements of PW-4 and PW-18 appear to have been recorded only to create evidence…Possibility of PW-4 on his own going to the police and getting his statement recorded is remote because travelling in a taxi, or staying in a hotel, by itself is not an incriminating circumstance as to disturb a person and prompt him to report it to the police. Therefore, what prompted the investigating officer to record statements of PW-4 and PW-18 assumes importance, and lack of disclosure/ explanation in that regard, in our view, is sufficient to consider them as witnesses set up to create evidence for constituting a chain of circumstances.”, the Court observed.

Apart from the creation of evidence by the police, other relevant factors such as DNA evidence mismatch, incomplete chain of circumstantial evidence, etc. also proved fatal to the prosecution's case.

As a result, the appeal was dismissed, and the acquittal was upheld.

Appearance:

For Appellant(s) : Mr. Vikrant Narayan Vasudeva, AOR Mr. Rohit Lochav, Adv. Mr. Arindam Gupta, Adv.

For Respondent(s) :Ms. Sangeeta Kumar, AOR Ms. Vidushi Garg, Adv.