2024 INSC 143 REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO(s). 684 OF 2012

SHAILESH KUMAR … APPELLANT(S)

VERSUS

STATE OF U.P. (NOW STATE

OF UTTARAKHAND) … RESPONDENT(S)

JUDGMENT

M. M. Sundresh, J.

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.

2. Heard learned counsel Mr. D.P Singh appearing for the appellant and the

learned counsel Mr. Saurabh Trivedi appearing for the respondent. We have

perused the entire records placed before us, and taken due note of the

Signature Not Verified synopsis notes submitted.

Digitally signed by
ASHA SUNDRIYAL
Date: 2024.02.26
17:19:46 IST
Reason:

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 BRIEF FACTS

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

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 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.

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 PW-

13, who produced the same before the court.

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).

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

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 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.

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.

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.

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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.

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

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 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.

12.The High Court concurred with the decision of the trial court by placing

reliance upon the post-mortem report and the testimony of PW-1 to PW-3.

SUBMISSION OF THE APPELLANT

13.Learned counsel for the appellant submitted that the evidence of PW-1 ought

not to have been accepted by both the courts. The report from the hospital

had reached the police station much before. The person to whom PW-1

dictated the complaint has not been examined. There is no material for

motive and the testimony of PW-1 is contrary to the one given by PW-3,

PW-5 and PW-8. Similarly, the presence of PW-2 is extremely doubtful as

his evidence was recorded weeks thereafter. He was also not found to be

present by PW-3 in the second hospital, though PW-3 deposed otherwise.

Therefore, evidence of PW-2 also ought to have been eschewed. His

statement that it is PW-1 and himself who took the deceased to the second

hospital is found to be incorrect in view of the testimony of PW-8. The

courts below ought to have placed adequate reliance upon the evidence of

PW-5 and PW-8, the doctors, who were admittedly working in the hospital at

the relevant point of time. The fact that the FIR was not registered
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 immediately after the information was received clearly indicates that it was

ante-dated. This contention is also strengthened by the inquest report

prepared by the police officer of a different police station i.e. by PW-9.

14.Learned counsel vehemently contended that the trial court has committed

grave error in not noting the fact that no time, date and adequate particulars

were mentioned in the case diary. The object and rationale behind Section

172 of CrPC coupled with Sections 145, 161 and 165 of the Indian Evidence

Act, 1872 (hereinafter referred to as “Evidence Act”) have been clearly

overlooked by both the courts. The motive has not been proved as witnesses

have not spoken about it in their statements under Section 161 of CrPC. It is

a case of completely botched up investigation and, therefore, the appellant

deserves acquittal.

SUBMISSION OF THE RESPONDENT

15.Learned counsel for the State placed substantial reliance upon the recovery

of the vehicle. It is stated that admittedly the vehicle belonged to the father

of the appellant. That is the reason why an application was filed seeking its

custody, which came to be allowed. Both the courts have rightly held that

the discrepancies are bound to happen in view of the passage of time from

the date of incident till the deposition is recorded in the Court. PW-2 and

PW-3 did not have any ulterior motive or reason to implicate the appellant.
7
 PW-3’s statement has been recorded at the earliest. There is nothing wrong

in the inquest report submitted by PW-9. As there is no perversity,

appreciation by both the courts of the evidence available on record for

coming to their conclusion does not warrant any interference.

DISCUSSION

16. Before considering the factual submissions of both sides, we shall first deal

with the position of law which is relevant for deciding the appeal.

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

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 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.

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,

“Fair, Defective, Colourable Investigation

40. An Investigating Officer being a public servant is expected to

conduct the investigation fairly. While doing so, he is expected to look
for materials available for coming to a correct conclusion. He is
concerned with the offense as against an offender. It is the offense that
he investigates. Whenever a homicide happens, an investigating officer is
9
 expected to cover all the aspects and, in the process, shall always keep in
mind as to whether the offence would come under Section 299 IPC sans
Section 300 IPC. In other words, it is his primary duty to satisfy that a case
would fall under culpable homicide not amounting to murder and then a
murder. When there are adequate materials available, he shall not be
overzealous in preparing a case for an offense punishable under Section
302 IPC. We believe that a pliable change is required in the mind of the
Investigating Officer. After all, such an officer is an officer of the court
also and his duty is to find out the truth and help the court in coming
to the correct conclusion. He does not know sides, either of the victim
or the accused but shall only be guided by law and be an epitome of
fairness in his investigation.

41. There is a subtle difference between a defective investigation, and

one brought forth by a calculated and deliberate action or inaction. A
defective investigation per se would not enure to the benefit of the
accused, unless it goes into the root of the very case of the prosecution
being fundamental in nature. While dealing with a defective
investigation, a court of law is expected to sift the evidence available
and find out the truth on the principle that every case involves a
journey towards truth. There shall not be any pedantic approach
either by the prosecution or by the court as a case involves an element
of law rather than morality.

xxx xxx xxx

44. We would only reiterate the aforesaid principle qua a fair investigation
through the following judgment of Kumar v. State, (2018) 7 SCC 536:

“27. The action of investigating authority in pursuing the case in

the manner in which they have done must be rebuked. The High
Court on this aspect, correctly notices that the police authorities
have botched up the arrest for reasons best known to them.
Although we are aware of the ratio laid down in Parbhu v. King
Emperor [Parbhu v. King Emperor, AIR 1944 PC 73], wherein the
Court had ruled that irregularity and illegality of arrest would not
affect the culpability of the offence if the same is proved by cogent
evidence, yet in this case at hand, such irregularity should be
shown deference as the investigating authorities are responsible for
suppression of facts.

28. The criminal justice must be above reproach. It is

irrelevant whether the falsity lie in the statement of witnesses
or the guilt of the accused. The investigative authority has a
responsibility to investigate in a fair manner and elicit truth. At
the cost of repetition, I must remind the authorities concerned
to take up the investigation in a neutral manner, without

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 having regard to the ultimate result. In this case at hand, we
cannot close our eyes to what has happened; regardless of guilt or
the asserted persuasiveness of the evidence, the aspect wherein the
police has actively connived to suppress the facts, cannot be
ignored or overlooked.”

45. A fair investigation would become a colourable one when there

involves a suppression. Suppressing the motive, injuries and other
existing factors which will have the effect of modifying or altering the
charge would amount to a perfunctory investigation and, therefore,
become a false narrative. If the courts find that the foundation of the
prosecution case is false and would not conform to the doctrine of
fairness as against a conscious suppression, then the very case of the
prosecution falls to the ground unless there are unimpeachable
evidence to come to a conclusion for awarding a punishment on a
different charge.”

(emphasis supplied)

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

Section 172 of CrPC

“172. Diary of proceedings in investigation.—(1) Every police officer

making an investigation under this Chapter shall day by day enter his
proceedings in the investigation in a dairy, setting forth the time at which
the information reached him, the time at which he began and closed his
investigation, the place or places visited by him, and a statement of the
circumstances ascertained through his investigation.

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 (1-A) The statements of witnesses recorded during the course of
investigation under section 161 shall be inserted in the case diary.

(1-B) The diary referred to in sub-section (1) shall be a volume and duly
paginated.

(2) Any Criminal Court may send for the police diaries of a case under
inquiry or trial in such Court, and may use such diaries, not as evidence in
the case, but to aid it in such inquiry or trial.

(3) Neither the accused nor his agents shall be entitled to call for such
diaries, nor shall he or they be entitled to see them merely because they are
referred to by the Court; but, if they are used by the police officer who
made them to refresh his memory, or if the Court uses them for the purpose
of contradicting such police officer, the provisions of section 161 or
section 145, as the case may be, of the Indian Evidence Act, 1872 (1 of
1872), shall apply.”

Section 145 of the Evidence Act

“145. Cross-examination as to previous statements in writing.—A

witness may be cross-examined as to previous statements made by him in
writing or reduced into writing, and relevant to matters in question, without
such writing being shown to him, or being proved; but, if it is intended to
contradict him by the writing, his attention must, before the writing can be
proved, be called to those parts of it which are to be used for the purpose of
contradicting him.”

Section 161 of the Evidence Act

“161. Right of adverse party as to writing used to refresh memory.—

Any writing referred to under the provisions of the two last preceding
sections must be produced and shown to the adverse party if he requires it;
such party may, if he pleases, cross-examine the witness thereupon.”

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

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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)

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21. In furtherance of the above suggestion, the Law Commission of India

accordingly provided a draft amendment to Section 172 of CrPC for the

consideration of the Parliament,

“… On the above mentioned lines, the relevant Sections can be amended as
follows:
xxxx
172(1) Every police officer making an investigation under this chapter shall
day by day enter his proceedings in the investigation in a diary, setting
forth the time at which the information reached him, the time at which he
began and closed his investigation, the place or places visited by him and a
statement if the circumstances ascertained through his investigation; and
also attach to the diary for each day copies of statement of facts, if any,
recorded under Section 161 in respect of the person or persons whose
examination was completed that day.
(2) Any criminal Court may send for the police diaries of a case under
inquiry or trial in such court, and may use such diaries, not as evidence in
the case, but to aid it in such inquiry or trial.
(3) Neither the accused nor his agents shall be entitled to call for such
diaries, nor shall he or they be entitled to see them merely because they are
referred (to) by this Court.”

(emphasis supplied)

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 sub-

section (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.

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23.Law is quite settled that an improper maintenance of a case diary by the

Investigating Officer will not enure 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,

“5. Under Section 172 CrPC read with Rule 164 of Bihar Police
Manual dealing with the investigation, an Investigating Officer
investigating a crime is under obligation to record all the day-to-day
proceedings and information in his case diary, and also record the time
at which the information was received and the place visited by him,

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 besides the preparation of site plan and other documents. The
Investigating Officer is also required to send bloodstained clothes and
earth seized from the place of occurrence for chemical examination.
Failure on the part of the Investigating Officer to comply with the
provisions of Section 172 CrPC is a serious lapse on his part resulting
in diminishing the value and credibility of his investigation. In this case
the Investigating Officer neither entered the time of recording of the
statements of the witnesses in the diary nor did he send the bloodstained
clothes and earth seized from the place of occurrence for examination by a
serologist. The High Court also adversely commented upon the lapses on
the part of the Investigating Officer in not complying with the provisions of
the Code of Criminal Procedure. We, therefore, take it that, in fact, there
was serious lapse on the part of the Investigation Officer in not
observing the mandate of Section 172 CrPC while investigating the
case which has given rise to this appeal. But the question that arises for
consideration is, has any prejudice been caused to the accused in the
trial by non-observance of rules by the Investigating Officer? The
evidence on record before the Sessions Court and the appellate court does
not show that due to the lapses on the part of the Investigating Officer in
not sending the bloodstained clothes and earth seized from the place of
occurrence for chemical examination and further not noting down the time
of recording the statement of the witnesses in the diary has resulted in any
prejudice to the defence of the accused. In the present case, the place of
occurrence and the identity of the deceased are not disputed. Further, the
testimony of the eyewitnesses which is consistent and does not suffer from
infirmity, was believed by both the courts below. Once the eyewitnesses
are believed and the courts come to the conclusion that the testimony
of the eyewitnesses is trustworthy, the lapse on the part of the
Investigating Officer in not observing the provisions of Section 172
CrPC unless some prejudice is shown to have been caused to the
accused, will not affect the finding of guilt recorded by the Court.
Neither before the High Court nor before this Court, it was pointed out in
what manner the accused were prejudiced by non-observance of the
provisions of Section 172 CrPC and the rules framed in this regard. We are,
therefore, of opinion that judgments of the courts below do not suffer on
account of omission on the part of the Investigating Officer in not sending
the earth seized from the place of occurrence for chemical examination or
in not entering the time of recording of the statements of witnesses in the
diary.”

(emphasis supplied)
25. Manoj and Others v. State of Madhya Pradesh, (2023) 2 SCC 353,
16
 “203. The scheme of the CrPC under Chapter XII (Information to Police
and Powers to Investigate) is clear — the police have the power to
investigate freely and fairly; in the course of which, it is mandatory to
maintain a diary where the day-to-day proceedings are to be recorded with
specific mention of time of events, places visited, departure and reporting
back, statements recorded, etc. While the criminal court is empowered to
summon these diaries under Section 172(2) for the purpose of inquiry or
trial (and not as evidence), Section 173(3) makes it clear that the accused
cannot claim any right to peruse them, unless the police themselves, rely on
it (to refresh their memory) or if the court uses it for contradicting the
testimony of the police officers. [Mukund Lal v. Union of India, 1989 Supp
(1) SCC 622 : 1989 SCC (Cri) 606; Malkiat Singh v. State of Punjab,
(1991) 4 SCC 341 : 1991 SCC (Cri) 976]

204. In Manu Sharma [Manu Sharma v. State (NCT of Delhi), (2010) 6

SCC 1 : (2010) 2 SCC (Cri) 1385] , in the context of police diaries, this
Court noted that “[t]he purpose and the object seems to be quite clear that
there should be fairness in investigation, transparency and a record should
be maintained to ensure a proper investigation”. This object is rendered
entirely meaningless if the police fail to maintain the police diary
accurately. Failure to meticulously note down the steps taken during
investigation, and the resulting lack of transparency, undermines the
accused's right to fair investigation; it is up to the trial court that must
take an active role in scrutinising the record extensively, rather than
accept the prosecution side willingly, so as to bare such hidden or
concealed actions taken during the course of investigation. [ Role of the
courts in a criminal trial has been discussed in Zahira Habibulla H. Sheikh
v. State of Gujarat, (2004) 4 SCC 158 : 2004 SCC (Cri) 999.]”

(emphasis supplied)
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.

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
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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

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right conferred under sub-section (3) of Section 172 of CrPC. Balakram v.

State of Uttarakhand and Others, (2017) 7 SCC 668,

“9. The aforementioned provisions are to be read conjointly and

homogenously. It is evident from sub-section (2) of Section 172 CrPC,
that the trial court has unfettered power to call for and examine the
entries in the police diaries maintained by the investigating officer.
This is a very important safeguard. The legislature has reposed
complete trust in the Court which is conducting the inquiry or the
trial. If there is any inconsistency or contradiction arising in the
evidence, the Court can use the entries made in the diaries for the
purposes of contradicting the police officer as provided in sub-section
(3) of Section 172 CrPC. It cannot be denied that the Court trying the
case is the best guardian of interest of justice. Under sub-section (2) the
criminal court may send for diaries and may use them not as evidence, but
to aid it in an inquiry or trial. The information which the Court may get
from the entries in such diaries usually will be utilised as foundation
for questions to be put to the police witness and the court may, if
necessary in its discretion use the entries to contradict the police
officer, who made them. But the entries in the police diary are neither
substantive nor corroborative evidence, and that they cannot be used
against any other witness than against the police officer that too for the
limited extent indicated above.

10. Coming to the use of police diary by the accused, sub-section (3) of
Section 172 clearly lays down that neither the accused nor his agents shall
be entitled to call for such diaries nor he or they may be entitled to see
them merely because they are referred to by the Court. But, in case the
police officer uses the entries in the diaries to refresh his memory or if
the Court uses them for the purpose of contradicting such police
officer, then the provisions of Sections 145 and 161, as the case may be,
of the Evidence Act would apply. Section 145 of the Evidence Act
provides for cross-examination of a witness as to the previous
statements made by him in writing or reduced into writing and if it
was intended to contradict him in writing, his attention must be called
to those portions which are to be used for the purpose of contradiction.
Section 161 deals with the adverse party's right as to the writing used
to refresh memory. It can, therefore, be seen that, the right of the
accused to cross-examine the police officer with reference to the entries
in the police diary is very much limited in extent and even that limited
scope arises only when the Court uses the entries to contradict the
police officer or when the police officer uses it for refreshing his
memory.
19
 11. In other words, in case if the Court does not use such entries for the
purpose of contradicting the police officer or if the police officer does
not use the same for refreshing his memory, then the question of the
accused getting any right to use entries even to that limited extent does
not arise. The accused persons cannot force the police officer to refresh
his memory during his examination in the Court by referring to the
entries in the police diary.

12. Section 145 of the Evidence Act consists of two limbs. It is provided in
the first limb of Section 145 that a witness may be cross-examined as to the
previous statements made by him without such writing being shown to him.
But the second limb provides that, if it is intended to contradict him by the
writing, his attention must before writing can be proved, be called to those
parts of it which are to be used for the purpose of contradicting him.
Sections 155(3) and 145 of the Evidence Act deal with the different aspects
of the same matter and should, therefore, be read together.

13. Be that as it may, as mentioned supra, right of the accused to cross-

examine the police officer with reference to the entries in the police
diary is very much limited in extent and even that limited scope arises
only when the Court uses such entries to contradict the police officer
or when the police officer uses it for refreshing his memory and that
again is subject to the provisions of Sections 145 and 161 of the
Evidence Act. Thus, a witness may be cross-examined as to his
previous statements made by him as contemplated under Section 145
of the Evidence Act if such previous statements are brought on record,
in accordance with law, before the Court and if the contingencies as
contemplated under Section 172(3) CrPC are fulfilled. Section 145 of
the Evidence Act does not either extend or control the provisions of
Section 172 CrPC. We may hasten to add here itself that there is no
scope in Section 172 CrPC to enable the Court, the prosecution or the
accused to use the police diary for the purpose of contradicting any
witness other than the police officer who made it.”

(emphasis supplied)

First Information Report vis-a-vis Case Diary

Section 154 of CrPC

20
 “154. Information in cognizable cases.—(1) Every information relating to
the commission of a cognizable offence, if given orally to an officer in
charge of a police station, shall be reduced to writing by him or under his
direction, and be read over to the informant; and every such information,
whether given in writing or reduced to writing as aforesaid, shall be signed
by the person giving it, and the substance thereof shall be entered in a book
to be kept by such officer in such form as the State Government may
prescribe in this behalf…”

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),

21
 “57. It is contented by the learned ASG appearing for the State of
Chhattisgarh that the recording of first information under Section 154
in the “book” is subsequent to the entry in the General Diary/Station
Diary/Daily Diary, which is maintained in the police station.
Therefore, according to the learned ASG, first information is a
document at the earliest in the General Diary, then if any preliminary
inquiry is needed the police officer may conduct the same and
thereafter the information will be registered as FIR. This
interpretation is wholly unfounded. The first information report is in
fact the “information” that is received first in point of time, which is
either given in writing or is reduced to writing. It is not the
“substance” of it, which is to be entered in the diary prescribed by the
State Government. The term “General Diary” (also called as “Station
Diary” or “Daily Diary” in some States) is maintained not under
Section 154 of the Code but under the provisions of Section 44 of the
Police Act, 1861 in the States to which it applies, or under the
respective provisions of the Police Act(s) applicable to a State or under
the Police Manual of a State, as the case may be.

58. Section 44 of the Police Act, 1861 is reproduced below:

“44.Police officers to keep diary.—It shall be the duty of every
officer in charge of a police station to keep a General Diary in such
form as shall, from time to time, be prescribed by the State
Government and to record therein all complaints and charges
preferred, the names of all persons arrested, the names of the
complainants, the offences charged against them, the weapons or
property that shall have been taken from their possession or
otherwise, and the names of the witnesses who shall have been
examined.
The Magistrate of the district shall be at liberty to call for and
inspect such diary.”

59. It is pertinent to note that during the year 1861, when the aforesaid
Police Act, 1861 was passed, the Code of Criminal Procedure, 1861 was
also passed. Section 139 of that Code dealt with registration of FIR and
this section has also referred to the word “diary”, as can be seen from the
language of this section, as reproduced below:
“139.Complaint, etc., to be in writing.—Every complaint or
information preferred to an officer in charge of a police station,
shall be reduced into writing, and the substance thereof shall be

22
 entered in a diary to be kept by such officer, in such form as shall
be prescribed by the local Government.”
(emphasis supplied)
Thus, the Police Act, 1861 and the Code of Criminal Procedure, 1861,
both of which were passed in the same year, used the same word
“diary”.

60. However, in the year 1872, a new Code came to be passed which was
called the Code of Criminal Procedure, 1872. Section 112 of the Code
dealt with the issue of registration of FIR and is reproduced below:
“112.Complaint to police to be in writing.—Every complaint
preferred to an officer in charge of a police station shall be reduced
into writing, and shall be signed, sealed, or marked by the person
making it, and the substance thereof shall be entered in a book to
be kept by such officer in the form prescribed by the local
Government.”
It is, thus, clear that in the Code of Criminal Procedure, 1872, a
departure was made and the word “book” was used in place of
“diary”. The word “book” clearly referred to the FIR book to be
maintained under the Code for the registration of FIRs.

61. The question that whether the FIR is to be recorded in the FIR book or
in the General Diary, is no more res integra. This issue has already been
decided authoritatively by this Court.

62. In Madhu Bala v. Suresh Kumar [Madhu Bala v. Suresh Kumar,

(1997) 8 SCC 476 : 1998 SCC (Cri) 111] , this Court has held that FIR
must be registered in the FIR register which shall be a book consisting
of 200 pages. It is true that the substance of the information is also to
be mentioned in the Daily Diary (or the General Diary). But, the basic
requirement is to register the FIR in the FIR book or register. Even
in Bhajan Lal [State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC
335 : 1992 SCC (Cri) 426] , this Court held that FIR has to be entered
in a book in a form which is commonly called the first information
report.

63. It is thus clear that registration of FIR is to be done in a book

called FIR book or FIR register. Of course, in addition, the gist of the
23
 FIR or the substance of the FIR may also be mentioned
simultaneously in the General Diary as mandated in the respective
Police Act or Rules, as the case may be, under the relevant State
provisions.

64. The General Diary is a record of all important transactions/events

taking place in a police station, including departure and arrival of police
staff, handing over or taking over of charge, arrest of a person, details of
law and order duties, visit of senior officers, etc. It is in this context that
gist or substance of each FIR being registered in the police station is also
mentioned in the General Diary since registration of FIR also happens to
be a very important event in the police station. Since General Diary is a
record that is maintained chronologically on day-to-day basis (on each
day, starting with new number 1), the General Diary entry reference is also
mentioned simultaneously in the FIR book, while FIR number is
mentioned in the General Diary entry since both of these are prepared
simultaneously.

65. It is relevant to point out that FIR book is maintained with its number
given on an annual basis. This means that each FIR has a unique annual
number given to it. This is on similar lines as the case numbers given in
courts. Due to this reason, it is possible to keep a strict control and
track over the registration of FIRs by the supervisory police officers
and by the courts, wherever necessary. Copy of each FIR is sent to the
superior officers and to the Judicial Magistrate concerned.

66. On the other hand, General Diary contains a huge number of other
details of the proceedings of each day. Copy of General Diary is not sent
to the Judicial Magistrate having jurisdiction over the police station,
though its copy is sent to a superior police officer. Thus, it is not possible
to keep strict control of each and every FIR recorded in the General
Diary by the superior police officers and/or the court in view of
enormous amount of other details mentioned therein and the numbers
changing every day.

67. The signature of the complainant is obtained in the FIR book as

and when the complaint is given to the police station. On the other
hand, there is no such requirement of obtaining signature of the
complainant in the General Diary. Moreover, at times, the complaint
given may consist of large number of pages, in which case it is only the
gist of the complaint which is to be recorded in the General Diary and
24
 not the full complaint. This does not fit in with the suggestion that
what is recorded in the General Diary should be considered to be the
fulfilment/compliance with the requirement of Section 154 of
registration of FIR. In fact, the usual practice is to record the
complete complaint in the FIR book (or annex it with the FIR form)
but record only about one or two paragraphs (gist of the information)
in the General Diary.

xxx xxx xxx

70. If at all, there is any inconsistency in the provisions of Section 154

of the Code and Section 44 of the Police Act, 1861, with regard to the
fact as to whether the FIR is to be registered in the FIR book or in the
General Diary, the provisions of Section 154 of the Code will prevail
and the provisions of Section 44 of the Police Act, 1861 (or similar
provisions of the respective corresponding Police Act or Rules in other
respective States) shall be void to the extent of the repugnancy. Thus,
FIR is to be recorded in the FIR book, as mandated under Section 154
of the Code, and it is not correct to state that information will be first
recorded in the General Diary and only after preliminary inquiry, if
required, the information will be registered as FIR.

xxx xxx xxx

72. It is thus unequivocally clear that registration of FIR is mandatory

and also that it is to be recorded in the FIR book by giving a unique
annual number to each FIR to enable strict tracking of each and every
registered FIR by the superior police officers as well as by the
competent court to which copies of each FIR are required to be sent.

xxx xxx xxx

97. The Code contemplates two kinds of FIRs : the duly signed FIR under
Section 154(1) is by the informant to the officer concerned at the police
station. The second kind of FIR could be which is registered by the police
itself on any information received or other than by way of an informant
[Section 157(1)] and even this information has to be duly recorded and the
copy should be sent to the Magistrate forthwith. The registration of FIR
25
 either on the basis of the information furnished by the informant
under Section 154(1) of the Code or otherwise under Section 157(1) of
the Code is obligatory. The obligation to register FIR has inherent
advantages:
97.1. (a) It is the first step to “access to justice” for a victim.
97.2. (b) It upholds the “rule of law” inasmuch as the ordinary person
brings forth the commission of a cognizable crime in the knowledge of the
State.
97.3. (c) It also facilitates swift investigation and sometimes even
prevention of the crime. In both cases, it only effectuates the regime of
law.
97.4. (d) It leads to less manipulation in criminal cases and lessens
incidents of “antedated” FIR or deliberately delayed FIR.”

(emphasis supplied)

Ram Chander v. State of Haryana, (1981) 3 SCC 191,

“3…. The court, the prosecution and the defence must work as a team
whose goal is justice, a team whose captain is the judge. The Judge,
‘like the conductor of a choir, must, by force of personality, induce his
team to work in harmony; subdue the raucous, encourage the timid,
conspire with the young, flatter and (sic the) old’.”

Justice O. Chinnappa Reddy

Section 165 of the Evidence Act
“165. Judge's power to put questions or order production.—The Judge
may, in order to discover or to obtain proper proof of relevant facts, ask
any question he pleases, in any form, at any time, of any witness, or of the
parties, about any fact relevant or irrelevant; and may order the production
of any document or thing; and neither the parties nor their agents shall be
entitled to make any objection to any such question or order, nor, without
the leave of the Court, to cross-examine any witness upon any answer
given in reply to any such question:

Provided that the judgment must be based upon facts declared by this Act
to be relevant, and duly proved:

Provided also that this section shall not authorize any Judge to compel any
witness to answer any question, or to produce any document which such
witness would be entitled to refuse to answer or produce under sections
26
 121 to 131, both inclusive, if the question were asked or the document
were called for by the adverse party; nor shall the Judge ask any question
which it would be improper for any other person to ask under section 148
or 149; nor shall he dispense with primary evidence of any document,
except in the cases hereinbefore excepted.”

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
27
 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.”
(emphasis supplied)

30. Ram Chander v. State of Haryana, (1981) 3 SCC 191,

“O. CHINNAPPA REDDY, J.— What is the true role of a judge trying a
criminal case? Is he to assume the role of a referee in a football match
or an umpire in a cricket match, occasionally answering, as Pollock
and Maitland [ Pollock and Maitland : The History of English Law]
point out, the question ‘How is that’, or, is he to, in the words of Lord
Denning ‘drop the mantle of a judge and assume the robe of an
advocate'? [Jones v. National Coal Board, (1957) 2 All ER 155 : (1957)
2 WLR 760] Is he to be a spectator or a participant at the trial? Is
passivity or activity to mark his attitude? If he desires to question any
of the witnesses, how far can he go? Can he put on the gloves and
‘have a go’ at the witness who he suspects is lying or is he to be soft
and suave? These are some of the questions which we are compelled to
ask ourselves in this appeal on account of the manner in which the
Judge who tried the case put questions to some of the witnesses.

2. The adversary system of trial being what it is, there is an

unfortunate tendency for a judge presiding over a trial to assume the
role of a referee or an umpire and to allow the trial to develop into a
contest between the prosecution and the defence with the inevitable
distortions flowing from combative and competitive elements entering
the trial procedure. 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. He must become a participant in the
trial by evincing intelligent active interest by putting questions to
witnesses in order to ascertain the truth. As one of us had occasion to
say in the past:

28
 Every criminal trial is a voyage of discovery in which truth is the
quest. It is the duty of a presiding Judge to explore every avenue
open to him in order to discover the truth and to advance the
cause of justice. For that purpose he is expressly invested by
Section 165 of the Evidence Act with the right to put questions to
witnesses. Indeed the right given to a Judge is so wide that he
may, ask any question he pleases, in any form, at any time, of any
witness, or of the parties about any fact, relevant or irrelevant.
Section 172(2) of the Code of Criminal Procedure enables the
court to send for the police-diaries in a case and use them to aid it
in the trial. The record of the proceedings of the Committing
Magistrate may also be perused by the Sessions Judge to further
aid him in the trial. [Sessions Judge, Nellore v. Intha Ramana Reddy
ILR 1972 AP 683 : 1972 Cri LJ 1485]

3. With such wide powers, the court must actively participate in the
trial to elicit the truth and to protect the weak and the innocent. It
must, of course, not assume the role of a prosecutor in putting
questions. The functions of the counsel, particularly those of the Public
Prosecutor, are not to be usurped by the judge, by descending into the
arena, as it were. Any questions put by the judge must be so as not to
frighten, coerce, confuse or intimidate the witnesses. The danger inherent
in a judge adopting a much too stern an attitude towards witnesses has
been explained by Lord Justice Birkett:

People accustomed to the procedure of the court are likely to be

overawed or frightened, or confused, or distressed when under the
ordeal of prolonged questioning from the presiding judge. Moreover,
when the questioning takes on a sarcastic or ironic tone as it is apt to
do, or when it takes on a hostile note as is sometimes almost
inevitable, the danger is not only that witnesses will be unable to
present the evidence as they may wish, but the parties may begin to
think, quite wrongly it may be, that the judge is not holding the
scales of justice quite eventually. [ Extracted by Lord Denning in
supra f.n. 2]

In Jones v. National Coal Board [Jones v. National Coal Board, (1957) 2

All ER 155 : (1957) 2 WLR 760] Lord Justice Denning observed:

29
 The Judge's part in all this is to hearken to the evidence, only himself
asking questions of witnesses when it is necessary to clear up any
point that has been overlooked or left obscure; to see that the
advocates behave themselves seemly and keep to the rules laid down
by law; to exclude irrelevancies and discourage repetition; to make
sure by wise intervention that he follows the points that the
advocates are making and can assess their worth; and at the end to
make up his mind where the truth lies. If he goes beyond this, he
drops the mantle of the Judge and assumes the role of an advocate;
and the change does not become him well.

We may go further than Lord Denning and say that it is the duty of a
judge to discover the truth and for that purpose he may “ask any
question, in any form, at any time, of any witness, or of the parties,
about any fact, relevant or irrelevant” (Section 165 Evidence Act). But
this he must do, without unduly trespassing upon the functions of the
Public Prosecutor and the defence Counsel, without any hint of
partisanship and without appearing to frighten or bully witnesses. He
must take the prosecution and the defence with him. The court, the
prosecution and the defence must work as a team whose goal is justice,
a team whose captain is the judge. The Judge, ‘like the conductor of a
choir, must, by force of personality, induce his team to work in
harmony; subdue the raucous, encourage the timid, conspire with the
young, flatter and (sic the) old’.”
(emphasis supplied)

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.
32.The presence of PW-1 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

30
 has neither spoken about the motive in his statement recorded under Section

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. There was no necessity for PW-1 to dictate the complaint to one

Mr. Inder Singh who curiously has not been examined by the prosecution.

In any case, there was no need for PW-11 to wait for PW-1 to come to him

for registration of FIR, which he was mandated to do so, as soon as he

received the report from the hospital. The testimony of PW-1 is also

contradictory to PW-3 and PW-8.

33. On the similar line, we do not wish to rely upon the evidence of PW-2 and

PW-3. PW-2 admittedly was not examined by PW-11 for over 2 weeks, for

which no explanation is forthcoming. This witness also states that he was

not a friend of the deceased and, 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. On the contrary, the evidence of

PW-3 is that it is PW-1 and himself who admitted the deceased.

Furthermore, even his presence thereafter was not noticed by PW-5.

31
34.Though we rely upon the evidence of PW-5 to a certain extent, the

emergency medical register was not completely filled up by him. Nobody

knows the reason as to why he partially filled up the register and the

remaining part was filled by Dr. B.V. Sharma, who was not examined by the

prosecution. By placing reliance upon his testimony partly, we would only

come to the conclusion that his evidence goes against the prosecution

version on two counts, namely, the presence of any other witness and the

condition of the deceased.

35.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. Even PW-5 has

stated that the blood was oozing out from the body of the deceased. This is

another contradiction in the statement of PW-2 and PW-3 in this regard.

PW-8 in his evidence has stated that the deceased was brought by another

brother of the deceased. Even this witness has not been examined for the

reason known to the prosecution.

36.PW-9 is an important witness being a police officer hailing from a different

jurisdiction. It is very curious to know that he was the author of the inquest

report after the investigation was taken up by PW-11. Despite this being very

strange, no plausible explanation was forthcoming from him. Though PW-11

was trying to say that at times due to the instructions from the higher

officers, it is done so, when an offence is committed an Investigating Officer

32
 is duty bound to take up the investigation and complete it. After taking up

the investigation he thereafter cannot delegate it, except for justifiable

reasons. This lends credence to the case projected by the defence that the

interpolations and missing pages in the case diary clearly indicate that the

FIR was ante-dated. Perhaps that is the reason why the FIR reached the

jurisdictional magistrate belatedly and also the examination of the witnesses

including PW-2 under section 161 of CrPC was done days after the

occurrence.
37.PW-6 and PW-7 are not natural witnesses. It is totally unbelievable for PW-6

to reach the place of occurrence out of inquisitiveness. There is no need for

him to be in that very place. 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. If PW-11 is stated to have made an inspection and drawn the

sketch, he would have very well found the knife at a nearby place. It is

nobody’s case that it was hidden, on the contrary, it was found in an open

place.
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

33
 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.
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.

40. The appeal is allowed. The appellant was granted bail vide Order of this

Court dated 06.04.2015. Hence, bail bonds stand discharged.

…………………………..J.
(M. M. SUNDRESH)

..………………………..J.
(S.V.N. BHATTI )

NEW DELHI;
FEBRUARY 26, 2024

35