| Headnote |
Code of Criminal Procedure, 1973 – Goal of investigation and the role of investigating officer: Held: 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 – 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. [Para 17] Code of Criminal Procedure, 1973 – Evidence Act, 1872 – Maintenance of case diary u/s. 172 CrPC and application of s. 145 and s. 161 of the Evidence Act – S.172 CrPC and ss. 145 & 161 of the Evidence Act are to be read in consonance with each other subject to the limited right conferred under sub-section (3) of s.172 of CrPC: Held: 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 s.172 of CrPC, the Investigating Officer has to mention, in his case diary, the statement of witnesses recorded during investigation with due pagination – The object of these sub-sections is to facilitate a fair investigation since a statement made u/s. 161 of CrPC is not expected to be signed as mandated by s.162 of CrPC – 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 s.145 or s.161, as the case may be, of the Evidence Act – S.172(3) of CrPC makes a specific reference to s.145 and s.161 of the Evidence Act – Therefore, whenever a case is made out either u/s.145 or u/s. 161 of the Evidence Act, the benefit conferred thereunder along with the benefit of s.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 s.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 s.145 r/w. s.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 s.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, there is no hesitation in holding that s.145 and s.161 of the Evidence Act on the one hand and s.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 s.172 of CrPC. [Paras 20, 26, 27] Code of Criminal Procedure, 1973 – First Information Report vis-a-vis Case Diary: Held: In Lalita Kumari v. Government of Uttar Pradesh & Others, the Supreme Court 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 – 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. [Para 28] Evidence Act, 1872 – s. 165 – Judge’s power to put questions or order production: Held: S.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. [Para 29] Penal Code, 1860 – s. 302 – Prosecution case that victim deceased went to picnic along with PW-2 and PW-3 – On their return, they were intercepted by appellant with a knife, who inflicted two fatal blows on the chest and stomach of the victim – Prosecution sought 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 convicted appellant u/s. 302 IPC and sentenced him to imprisonment for life – High Court confirmed the conviction – Propriety: Held: The victim-deceased was first examined by the PW-5 (who was working in the hospital) – The presence of PW-1 (father of deceased) before PW-5 is extremely doubtful – His presence was not spoken to at all by PW-5 – The evidence of PW-1 is quite unnatural as he has neither spoken about the motive in his statement recorded u/s. 161 of CrPC, nor about the so-called dying declaration which was not even witnessed by PW-5 – PW-5 has clearly stated that the deceased was in a very serious condition, blood was oozing out and, therefore, he could not give adequate treatment – The deceased was immediately referred to the second hospital – The testimony of PW-1 is also contradictory to PW-3 and PW-8 (doctor who examined deceased in the second hospital) – Similarly, evidences of PW-2 and PW-3 cannot be relied upon, PW-2 admittedly was not examined by PW-11 (investigating officer) for over 2 weeks, for which no explanation was given – This witness also stated that he was not the friend of the deceased, therefore, his presence at the place of occurrence creates a serious doubt as to how he happened to accompany the deceased to the picnic spot – PW-3, though accompanied the deceased, was not present thereafter, as deposed by PW-5 and did not admit the deceased to the second hospital as deposed by PW-8 – The prosecution has not chosen to examine the driver of the vehicle i.e the tempo in which the deceased was taken to the hospital – There is no explanation as to how PW-9-another police officer from different jurisdiction authored the inquest report – Also, it is totally unbelievable for PW-6 to reach the place of occurrence out of inquisitiveness – The arrest of the accused at the instance of PW-7 is yet another instance of the prosecution trying to make out a case – It is incomprehensible that the appellant would be present at the place of the occurrence when he is attempting to flee – Similar logic goes to the recovery of the knife, it was found in an open place – On perusal of the case diary, it was found various corrections had been made, while some pages were even missing – A clear attempt is made to correct the dates – 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 u/s. 172(3) of CrPC r/w. s. 145 or s.161, as the case may be, of the Evidence Act – These aspects as discussed were not looked into in a proper perspective – Thus, the appellant has made out a case for acquittal. [Paras 32-39] |
