Challenge against conviction under section 302 IPC
1) The appellant convicted by the Additional Sessions Judge/Special Judge, Anti-Corruption U.P (East) Dehradun in ST 166/1992 under Section 302 of the Indian Penal Code, 1860 (hereinafter referred to as “IPC”) for life imprisonment, as confirmed by the Division Bench of the High Court of Uttarakhand at Nainital in Criminal Appeal No. 888 of 2001 seeks acquittal.
3) The deceased, Gajendra Singh went to a picnic along with two friends, Suresh (PW-2) and Sunil Mandal (PW-3) at about 11 a.m. on the fateful day – 21.06.1992. On their return, they were intercepted by the appellant riding on a motorcycle. The appellant by uttering the words “Today I shall pay all your dues”, attacked the deceased Gajendra Singh with a knife inflicting two fatal blows on the chest and stomach respectively. The motive of the attack appears to be the failure of the appellant in completing the work for which the deceased gave a sum of Rs.500/-.
4) PW-2 and PW-3 took the deceased, who was bleeding profusely on a tempo whose driver has not been examined, to the hospital in which PW-5 was working. After admitting the deceased in the hospital, PW-2 went to the house of the deceased by travelling, which took him 15 minutes, and passed on the information of attack on deceased, to his father, PW-1. On examination, PW-5 found that the deceased was in a serious condition and, therefore, merely gave first aid and referred the deceased to a hospital in Dehradun. After reaching the hospital, PW-1 made an enquiry with the deceased who gave a dying declaration narrating the incident. PW-5 did not speak about the presence of any of the witnesses except the fact that the deceased was admitted by PW-3 and, therefore, did not refer to the said dying declaration given to PW-1. PW-1 dictated the complaint to one Mr. Inder Singh (not examined) and went to the police station situated just opposite to the hospital. Prior to the aforesaid action on the part of PW-1, PW-5 has made an entry in the emergency medical register which was subsequently filled up by another person named Dr. B.V. Sharma (not examined). Dr. B.V. Sharma sent report immediately to the police station.
General diary did not specify the offence
5) Before PW-1 could reach the police station, the report from the hospital had reached and, therefore, investigation was triggered. However, neither First Information Report (FIR) had been registered nor noting had been made in the general diary. In fact, the available noting on the general diary did not disclose any offence committed on 21.06.1992, as per the statement of PW13, who produced the same before the court.
Deceased was taken to the nearby hospital at dehradun
6) PW-2 and PW-3 took the deceased to the nearby hospital at Dehradun as per the version of PW-1 and PW-2, while PW-3 said it was himself and PW-1 who undertook the said exercise. As per the version of PW-8, the doctor who attended the deceased at the Dehradun hospital, the deceased was brought to the hospital by his brother Mr. Bhupender Singh (not examined).
Investigation started, accused was arrested, knife (weapon) was recovered from open place
7) PW-11 took up the investigation. He went to the place of occurrence, drew the sketch and prepared the site plan. While returning, he was informed by PW-7, another brother of the deceased that he received information that the appellant was trying to escape to Dehradun. PW-6, who heard about the occurrence, went to the place of occurrence out of curiosity. The appellant was found and arrested at about 50-60 yards from the place of occurrence by PW-11 in the presence of PW-6, PW-7 and one Mr. Sanjeev Saini (not examined). The knife that was said to have been used for committing the offence was recovered from an open place at about 50 steps near the place of occurrence. No arrest memo has been prepared though an entry was made in the general diary. Recovery memo was signed by PW-6 and PW-7 alone.
P.W-9 police officer though having different jurisdiction has prepared the inquest report
8) The post-mortem was conducted by PW-4, Dr. Jaideep Dutta, which indicated two major injuries, in tune with the case of the prosecution. PW-9, being the police officer of a different jurisdiction, prepared the inquest report, presumably on the ground that the ultimate death happened there, as the second hospital was situated within his jurisdiction.
FIR was sent to court through post after 2 weeks
9) After the initial investigation by PW-11, PW-12 took over the further investigation, but did not take adequate care to check and verify the earlier statements given by the witnesses. Some of the witnesses have been examined at the earliest while the others like PW-2, PW-6 and PW-7 were examined 2 weeks thereafter. The FIR was curiously sent by post and, therefore, reached the jurisdictional magistrate days thereafter.
There was correction in the date in the General Diary but the Trial court put the blame on the accused as if he maneuvered with somebody
10) During the course of trial, the prosecution examined 13 witnesses. In the questioning made under Section 313 of the Code of Criminal Procedure, 1973 (hereinafter referred to as “CrPC”), the appellant clearly denied all the charges levelled against him. On a request made on behalf of the appellant, the general diary was summoned and perused by the trial court. This was done as a question was raised on the story propounded by the prosecution which goes to the date and time of the occurrence. On perusal, the trial court found out that there were certain interpolations with specific reference to the dates and certain pages were missing and jumbled. While giving a finding that the noting of the date as 22.06.1992 and thereafter striking it off to 21.06.1992 as a clerical mistake, the trial court went on to put the blame on the appellant that he maneuvered to do so in connivance with somebody, though the said correction could only help the case of the prosecution.
Trial court accepted the dying declaration despite P.W5 has clearly stated no one was present
11) While convicting the appellant, the trial court placed heavy reliance upon the evidence of PW-1 to PW-3. The discrepancies qua the emergency medical register and amongst the statements of PW-1, PW-2 and PW-3 were brushed aside as minor and natural or ignorable discrepancies due to the passage of time. Much reliance has been placed on the recovery of the two-wheeler, though not mentioned in the site plan. The delay in recording the statement of the witnesses were also taken lightly. The so-called dying declaration 5 given before PW-1 was accepted, despite a clear statement made by PW-5 that none was present during the stay of the deceased with him till he was sent to the other hospital.
Discussion: Investigation and the Role of Investigating Officer
17) An investigation of a crime is a lawful search of men and materials relevant in reconstructing and recreating the circumstances of an offence said to have been committed. With the evidence in possession, an Investigating Officer shall travel back in time and, therefore tick off the time zone to reach the exact time and date of the occurrence of the incident under investigation. The goal of investigation is to determine the truth which would help the Investigating Officer to form a correct opinion on the culpability of the named accused or suspect. Once such an opinion is formed on a fair assessment of the evidence collected in the investigation, the role of the court comes into play when the evidence i.e. oral, documentary, circumstantial, scientific, electronic, etc. is presented for and on behalf of the prosecution. In its journey towards determining the truth, a court shall play an active role while acknowledging the respective roles meant to be played by the prosecution and the defence. During the entire play, the rules of evidence ought to be honoured, sprinkled with the element of fairness through due procedure. Adequate opportunities would have to be given to challenge every assumption. Administration of criminal justice lies in determining the guilt of the accused beyond reasonable doubt. The power of the State to prosecute an accused commences with investigation, collection of evidence and presentation before the Court for acceptance.
Duty of the investigating agency, the prosecution and the defence counsel towards the case
18) The investigating agency, the prosecutor and the defence are expected to lend ample assistance to the court in order to decipher the truth. As the investigating agency is supposed to investigate a crime, its primary duty is to find out the plausible offender through the materials collected. It may or may not be possible for the said agency to collect every material, but it has to form its opinion with the available material. There is no need for such an agency to fix someone as an accused at any cost. It is ultimately for the court to decide who the culprit is. [Arvind Kumar @ Nemichand & Ors. v. State of Rajasthan, (2021) 11 SCR 237 – paras. 41 – 45]
19) Common Cause and Others v. Union of India, (2015) 6 SCC 332,
“31. There is a very high degree of responsibility placed on an investigating agency to ensure that an innocent person is not subjected to a criminal trial. This responsibility is coupled with an equally high degree of ethical rectitude required of an investigating officer or an investigating agency to ensure that the investigations are carried out without any bias and are conducted in all fairness not only to the accused person but also to the victim of any crime, whether the victim is an individual or the State.”
Case Diary
What is inside the case diary?
20) A case diary is maintained by an Investigating Officer during his investigation for the purpose of entering the day-to-day proceedings of the investigation. While doing so, the Investigating Officer should mandatorily record the necessary particulars gathered in the course of investigation with the relevant date, time and place. Under sub-section (1-A) and (1-B) of Section 172 of CrPC, the Investigating Officer has to mention, in his case diary, the statement of witnesses recorded during investigation with due pagination. Sub-section (1-A) and (1-B) were inserted by Act 5 of 2009 with effect from 31/12/2009. The object of these sub-sections is to facilitate a fair investigation since a statement made under Section 161 of CrPC is not expected to be signed as mandated by Section 162 of CrPC. To highlight the importance of adhering to the requirements of these sub-sections, we rely upon the Law Commission of India’s One Hundred and Fifty Fourth Report (154th) on Code of Criminal Procedure, 1973, Chapter IX,
“7. After giving our earnest consideration and in view of the fact that there is unanimity in respect of the need for making substantial changes in the law, we propose that there should be changes on the following lines : …The signature of the witness on the statement thus recorded need not be obtained. But, if the witness so examined desires a copy of such statement so recorded shall be handed over to him under acknowledgement. To reflect the shift in emphasis, a corresponding amendment to Section 172 should also be made to the effect that the Investigating Officer maintaining the case diary should mention about the statement of the circumstances thus ascertained, and also attach to the diary for each day, copies of the statement of facts thus recorded under Section 161 CrPC. Neither the accused nor his agent shall be entitled to call for such diaries which can be put to a limited use as provided under Section 172 CrPC. Under the existing provisions of the Code, the preparation of the earliest record of the statement of witness is left in the hands of Investigating Officer and as the mode of recording as provided in section 162 does not ensure the accuracy of the record (It is well known that many good cases are spoiled by insidious incorrect entries at the instance of the accused and it is also well known that many innocent persons are sent up along with the guilty at the instance of informant’s party),…” (emphasis supplied)
Investigating officer is duty bound to do due recording in his diary
22) While it is the responsibility and duty of the Investigating Officer to make a due recording in his case diary, there is no corresponding right under subsection (3) of Section 172 of CrPC for accused to seek production of such diaries, or to peruse them, except in a case where they are used by a police officer maintaining them to refresh his memory, or in a case where the court uses them for the purpose of contradicting the police officer. In such a case, the provision of Section 145 or Section 161, as the case may be, of the Evidence Act, shall apply.
Prejudice has to show by the accused for the improper maintenance of a case diary by the I.O
23) Law is quite settled that an improper maintenance of a case diary by the Investigating Officer will not ensure to the benefit of the accused. Prejudice has to be shown and proved by the accused despite non-compliance of Section 172 of CrPC in a given case. However, this does not take away the mandatory duty of the police officer to maintain it properly. As the court is the guardian of truth, it is the duty of the Investigating Officer to satisfy the court when it seeks to contradict him. The right of the accused is, therefore, very restrictive and limited. Bhagwant Singh v. Commissioner of Police, (1983) 3 SCC 344,
“17. The other inference which disturbs us is that the entries in the police case diary (set forth in the annexure to the counter-affidavit on the record) do not appear to have been entered with the scrupulous completeness and efficiency which the law requires of such a document. The haphazard maintenance of a document of that status not only does no credit to those responsible for maintaining it but defeats the very purpose for which it is required to be maintained. We think it to be of the utmost importance that the entries in a police case diary should be made with promptness, in sufficient detail, mentioning all significant facts, in careful chronological order and with complete objectivity.”
(emphasis supplied)
24) Baleshwar Mandal v. State of Bihar, (1997) 7 SCC 219 [para.5]
25) Manoj and Others v. State of Madhya Pradesh, (2023) 2 SCC 353 [paras. 203, 204]
Accused right of contradicting I.O based on case diary arises automatically if I.O refreshed his memory
26) When a police officer uses case diary for refreshing his memory, an accused automatically gets a right to peruse that part of the prior statement as recorded in the police officer’s diary by taking recourse to Section 145 or Section 161, as the case may be, of the Evidence Act.
The accused has a right to cross-examine police officer as per section 145 Evidence Act whenever the police officer uses it to refresh his memory
27) Section 172(3) of CrPC makes a specific reference to Section 145 and Section 161 of the Evidence Act. Therefore, whenever a case is made out either under Section 145 or under Section 161 of the Evidence Act, the benefit conferred thereunder along with the benefit of Section 172(3) of CrPC has to be extended to an accused. Thus, the accused has a right to cross-examine a police officer as to the recording made in the case diary whenever the police officer uses it to refresh his memory. Though Section 161 of the Evidence Act does not restrict itself to a case of refreshing memory by perusing a case diary alone, there is no exclusion for doing so. Similarly, in a case where the court uses a case diary for the purpose of contradicting a police officer, then an accused is entitled to peruse the said statement so recorded which is relevant, and cross-examine the police officer on that count. What is relevant in such a case is the process of using it for the purpose of contradiction and not the conclusion. To make the position clear, though Section 145 read with Section 161 of the Evidence Act deals with the right of a party including an accused, such a right is limited and restrictive when it is applied to Section 172 of CrPC. Suffice it is to state, that the said right cannot be declined when the author of a case diary uses it to refresh his memory or the court uses it for the purpose of contradiction. Therefore, we have no hesitation in holding that Section 145 and Section 161 of the Evidence Act on the one hand and Section 172(3) of CrPC on the other are to be read in consonance with each other, subject to the limited right conferred under sub-section (3) of Section 172 of CrPC. Balakram v. State of Uttarakhand and Others, (2017) 7 SCC 668 (paras. 9, 10, 11, 12, 13)
First Information Report vis-a-vis Case Diary
28) The mandate of Section 154 of CrPC implies that every information disclosing commission of a cognizable offence shall be entered in a book to be kept by the officer in charge of the police station in such form as the State Government may prescribe. In Lalita Kumari v. Government of Uttar Pradesh & Others, (2014) 2 SCC 1, the Constitution Bench of this Court while answering the question as to whether the information disclosing commission of a cognizable offence shall first be entered into the General Diary or in a book kept by the Officer in charge of Police Station which in common parlance is referred as First Information Report has critically analyzed the interplay between Section 154 of CrPC and Section 44 of the Police Act, 1861. This Court also had occasion to analyze the legislative history of CrPC 1861, CrPC 1973 and the Police Act 1861 to answer the aforesaid question, whereby it was held that an Information disclosing commission of a cognizable offence shall first be entered in a book kept by the officer in charge of police station and not in the General Diary. Therefore, it is amply clear that a General Diary entry cannot precede the registration of FIR, except in cases where preliminary inquiry is needed. While an FIR is to be registered on an information disclosing the commission of a cognizable offence, so also a recording is thereafter required to be made in the case diary. Lalita Kumari (Supra paras. 57 to 95),
Section 165 Evidence Act
29) Section 165 of the Evidence Act speaks of the power of the court to put questions and order production of documents in the course of trial. This is a general and omnibus power given to the court when in search of the truth. Such a power is to be exercised against any witness before it, both in a civil as well as a criminal case. The object is to discover adequate proof of a relevant fact and, therefore, for that purpose, the Judge is authorised and empowered to ask any question of his choice. When such a power is exercised by the court, there is no corresponding right that can be extended to a party to cross-examine any witness on an answer given in reply to a question put forth by it, except with its leave. Emphasizing upon the importance of Section 165 of the Evidence Act, Sir James Stephen while presenting the report of the Select Committee, at the time of passing of the Evidence Act observed,
“It is absolutely necessary that the judge should not only hear what is put before him by others, but that he should ascertain by his own inquiries how the facts actually stand. In order to do this, it will frequently be necessary for him to go into matters which are not themselves relevant to the matters in issue, but may lead to something that is, and it is in order to arm judges with express authority to do this that section 165, which has been so much objected to, has been framed”. “A judge or Magistrate in India frequently has to perform duties which in England would be performed by Police Officer or attorneys. He has to sift out the truth for himself as well as he can, and with little assistance of a professional kind. Section 165 is intended to arm the judge with the most extensive power possible for the purpose of getting at the truth. The effect of this section is that, in order to get to the bottom of the matter before the count, he will be able to look at and enquire into every fact whatever.”
On facts
31) We have given our consideration to the circumstances, motive, role of the accused and the volition of the prosecution to bring home the guilt of the appellant primarily in the form of: (a) Dying Declaration, (b) Eye witnesses, (c) Recovery and (d) Alleged arrest of the appellant nearer to the scene of the offence.
Trial court placed onus on the accused with respect of corrections made in the case diary along with missing pages
38) From the aforesaid discussion, we have no doubt that the date, time and place of occurrence could have been different. The trial court strangely placed the onus on the appellant even with respect to the corrections made in the case diary along with the missing pages. On perusal of the case diary, we find that at several places such corrections have been made, while some pages were even missing. A clear attempt is made to correct the dates. Such corrections actually were put against the appellant while they indeed helped the case of the prosecution. The finding of the trial court in this regard is neither logical nor reasonable. Even on the question of motive, there is absolutely no material as witnesses did not speak about the same in their statements recorded under Section 161 of CrPC. Mere recovery of a motorcycle per se will not prove the case of the prosecution especially when it has not been proved as to how it was recovered. The evidence of PW-13 clearly shows that no date, time and proper recording have been made in the case diary. When the trial court perused the case diary for the purpose of contradicting the statement of a police officer, it ought not to have fixed the onus on the appellant. It has failed to discharge its duty enshrined under Section 172(3) of CrPC read with Section 145 or Section 161, as the case may be, of the Evidence Act. To be noted, it was brought on a request made by the appellant and the court was using it for the purpose of contradiction.
Acquitted the accused
39. On a perusal of the impugned judgment and that of the trial court in convicting the appellant, we find that the aspects discussed by us have not been looked into in a proper perspective. The appellant has certainly made out a case for acquittal. Accordingly, the conviction rendered by the High 34 Court, confirming that of the trial court stands set aside. The appellant is acquitted of all the charges.
Party
SHAILESH KUMAR … APPELLANT(S) VERSUS STATE OF U.P. (NOW STATE OF UTTARAKHAND) … RESPONDENT(S) – CRIMINAL APPEAL NO(s). 684 OF 2012 – 2024 INSC 143 – FEBRUARY 26, 2024
https://webapi.sci.gov.in/supremecourt/2011/4846/4846_2011_14_1501_50794_FinalOrder_26-Feb-2024.pdf
Shailesh kumar vs. State of U.P4846_2011_14_1501_50794_FinalOrder_26-Feb-2024
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