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PETITIONER: RAM CHANDER

       Vs.

RESPONDENT: STATE OF HARYANA

DATE OF JUDGMENT25/02/1981

BENCH: REDDY, O. CHINNAPPA (J) BENCH: REDDY, O. CHINNAPPA (J) ISLAM, BAHARUL (J)

CITATION:  1981 AIR 1036            1981 SCR  (3)  12  1981 SCC  (3) 191        1981 SCALE  (1)428

ACT:      Role of  a Judge  trying  a  criminal  case  explained- Evidence Act,  section 165  read with  section 172(2) of the Code of  Criminal Procedure,  whether a  Judge in a criminal case may  put any question to the witness and if so what are its limitations-Evidence Act, section 11, scope of.

HEADNOTE:      The appellant  Ram Chander  and Mange were tried by the learned Additional  Sessions Judge,  Jind, for the murder of Dunni. Both  were convicted  under  section  302  read  with section 34  Indian Penal  Code and sentenced to imprisonment for life.  On appeal  the High  Court  acquitted  Mange  but confirmed the  conviction and  sentence of  Ram Chander.  In appeal by special leave it was contended that the conviction and sentence  were vitiated  as the  principle of fair trial was  abandoned   by  the  Sessions  Judge  who  rebuked  the witnesses and  threatened them  with prosecution for perjury and based his conviction on such extorted evidence.      Allowing the appeal, the Court ^      HELD: 1:  1. 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. The  Court has wide powers  and must  actively participate  in the trial to elicit the  truth and  to protect the weak and the innocent. 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".   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,  coerce, confuse, intimidate 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,

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conspire with the young, flatter and old." [14 B, F, D; 15E- F]      Sessions Judge, Nellore v. Intna Ramana Reddy and Anr., I.L.R. 1972 AP 683, approved.      Jones v.  National Coal  Board, [1957]  2 All E.R. 155, quoted with approval.      1: 2.  In the  instant case,  the questions  put by the learned Sessions Judge, particularly the threats held out to the witnesses  that if  they changed  their statements  they would involve  themselves in  prosecution for  perjury  were certainly  intimidating,   coming  as   they  did  from  the presiding judge. In an effort to compel 13 the witnesses  to speak  what he  thought must be truth, the learned Sessions  Judge, very  wrongly, firmly  rebuked them and virtually threatened them with prosecutions for perjury. He left  his seat  and entered  the ring.  The principle  of "fair trial" was abandoned. [19 F-H]      2.  The   Evidence  Act  contains  detailed  provisions dealing with  statements of  persons who cannot be called as witnesses and former statements of persons who are called as witnesses. These provisions would appear to become redundant if the evidence of a witness is to be tested and accepted or rejected with  reference to  the former statement of another witness on the ground that such former statement renders the evidence highly  probable or  improbable. Even assuming that under certain  circumstances it  is permissible  to use  the first information  report under the first part of section 11 there is  in the  present case  no question  of invoking the first part  of section  11, which  is inapplicable since the first information  report is  now not  sought to  be used as being inconsistent  with the prosecution case. Nor can first information report  be used  by resort to the second part of section 11. [20 H-21 A; 20 F-G]      Ram Kumar  Pande v. The State of Madhya Pradesh, [1975] 3 S.C.R. 519 @ 522, discussed.

JUDGMENT:      CRIMINAL  APPELLATE   JURISDICTION:   Criminal   Appeal No.390/75.      Appeal by  special leave  from the  Judgment and  Order dated 2.7.1975  of Punjab & Haryana High Court in Cr. A. No. 1554/74.      Kapil Sibal,  Subhash Sharma  and Ravindra Bana for the Appellant.      K.G. Bhagat and R. N. Poddar for the Respondent.      The Judgment of the Court was delivered by      CHINNAPPA REDDY,  J. What  is the  true role of a judge trying a  criminal case ? Is he to assume the true role of a referee in a football match or an umpire in a cricket match, occasionally answering,  as Pollock  and  Maitland(1)  point out, the  question ’How is that’, or, is he to, in the words of Lord  Kenning ’drop  the mantle of a judge and assume the role of  an advocate  ?(2) 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. 14

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    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 element 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.           "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." (1)      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 over-awed 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 15      not only  that witnesses  will be unable to present the      evidence 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"(1) In  Jones  v.  National  Coal  Board  Lord  Justice  Denning observed:           "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 over  looked 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

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    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" (Sec. 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 old’.      Let us  now take a look at the facts of the case before us.  Ram  Chander  and  Mange  were  tried  by  the  learned Additional Sessions  Judge, Jind,  for the  murder of Dunni. Both were  convicted under Sec. 302 read with Sec. 34 Indian Penal Code and sentenced to imprisonment for life. On appeal the High  Court acquitted Mange but confirmed the conviction of Ram  Chander. The  prosecution case  was that on February 14, 1974,  at about  11 a.m.  Dunni was  proceeding from his field towards the village, Sucha Khera and was 16 passing near  the field of Ram Chander and Mange when he was attacked by  them with  Jatus (wooden pegs fixed to a cart). They inflicted  several injuries  on Dunni. Mewa (P.W.9) who was working in his field tried to rescue Ram Chander. He was given a  lathi blow on his head. On hearing the alarm raised by Dunni,  Hari Chand  (P.W.8) and Jiwana (P.W.2) and others came there  and witnessed the occurrence. The assailants ran away. Jiwana  the Lambardar  proceeded  to  the  village  to inform the  relatives of Dunni. On the way he met Dhan Singh (P.W.  10),  and  told  him  about  the  occurrence.  Jiwana thereafter went  to the Police Station at Narwana and lodged the First  Information Report  at about  5.15 p.m.  The  Sub Inspector of Police went to the village. He held the inquest and sent  the dead  body for  post  mortem  examination.  He looked for  Mewa and  Hari Chand.  Both  of  them  were  not available in the village. A constable was sent to fetch them from Sucha  Khera. Neither  of them  was brought that night. Next morning  he was able to examine Mewa but Hari Chand was not to  be found.  Hari Chand  was finally examined on 16th. The Doctor who conducted the autopsy found thirteen injuries on the  body of  Dunni. There  were fractures  of  the  left partial, frontal  and  occipital  bones.  According  to  the Doctor that  was due  to "compression of brain with multiple fractures of  skull". On  February 15, 1974, at about 4 P.M. the Doctor also examined Mewa and found on the right side of his head an abrasion 1" x 1/4".      In support  of its  case the prosecution examined P.Ws. 2, 8  and 9  as eye witnesses to the occurrence. P.W. 10 was examined to  speak to  the information  alleged to have been given to  him by  P.Ws. 2  and 8  that the deceased had been beaten by  the two  accused persons.  P.W. 2 did not support the prosecution  case and  was declared hostile. P.Ws. 8 and 9,  the   remaining  eyewitnesses  seemingly  supported  the prosecution case  in varying  degrees in the examination-in- chief, but  they made  some damaging  admissions  in  cross- examination. P.W. 9 even in examination-in-chief stated that Mange was  not armed  with any  weapon though he was present alongwith Ram  Chander. The learned Sessions Judge convicted both Ram Chander and Mange but having regard to the evidence

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of P.W.  9 the  High Court acquitted Mange and confirmed the conviction of Ram Chander.      It was  argued by Shri Kapil Sibal, learned Counsel for the appellant that in view of the several statements made by P.Ws. 8  and 9  in their  cross examination,  their evidence should not have been 17 accepted by the Courts below. Shri Sibal also submitted that the accused  did not  have  a  fair  trial  as  the  learned Sessions  Judge   particularly  assumed   the  role   of   a Prosecutor.      Hari Chand,  P.W. 8  said in  his  examination-in-chief that when  he was working in his field he heard a noise from the side  of the field of Mange. He and Jiwana (P.W. 2) went in that  direction. From  a distance  they saw Mange and Ram Chander giving  blows to Dunni with dandas. By the time they went near,  Ram Chander  and Mange  ran away. They saw Mange tying a  piece of  cloth round  the head of Dunni. Dunni was bleeding and  was hardly  able to  breathe. They went to the village to  inform the  people about  the occurrence. On the way they  met P.W.  10 and told him about Dunni. having been beaten by  the two  accused. Later that day he went to Sucha Khera for official work. The police examined him on 16.2.74. We have already referred to the circumstance that he was not available for examination by the Police on 14th and 15th. He sought to  explain his  absence from  the village by stating that he  went to Sucha Khera in connection with his official work. In  cross-examination he  admitted  that  he  did  not mention this  fact in  the Roznamcha  (daily diary). He also admitted that  the village  Sucha Khera  was not  within his jurisdiction.  He  further  admitted  that  the  notice  for serving which  he went  to Sucha  Khera was  with regard  to water shoot  No. 14750  at  Sucha  Khera.  In  answer  to  a question whether  he only  saw the  accused running  away or doing something  else, he  categorically stated  that he did not see  those persons  causing injuries  but only  saw them running away.  Thereupon the Sessions Judge told him that in his examination-in-chief  he had said that he had seen Mange and Ram  Chander  causing  injuries  and  that  if  he  made inconsistent statements  on  material  points  he  could  be prosecuted for  perjury. The  Sessions Judge has made a note to this  effect in  the deposition  itself. In  answer to  a further question  P.W. 8  stated that when they were running away their  backs were  towards him. The Sessions Judge once again repeated  the warning  which he had given earlier. The Sessions note  with regard  to the  first warning  is in the following words:           "The witness  has been  explained right  here  his      statement which has gone on record and he has been told      that in  examination-in-chief he  has said  that he had      seen Mange  and Ram  Chander causing  injuries. He  had      also been informed that 18      a person  can be  prosecuted for perjury if on material      points in-consistent statements are made."      The second  warning which  was  given  by  the  learned Sessions Judge  has been  recorded by  the learned  Sessions Judge in the following words:           "As was  pointed out  to you yesterday also, it is      once more  pointed out  to you  that in examination-in-      chief yesterday,  you clearly  stated before  the Court      that you  saw Ram Chander and Mange causing injuries to      Dunni. Later  on in  cross-examination by Shri Shamsher      Singh you said that you saw the accused persons running      away.  You   have  already   been  warned   about   the

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    consequences of  inconsistent replies.  Without fear or      favour tell  the Court,  which of the two statements is      correct and  whether you  saw  Mange  and  Ram  Chander      causing injuries to Dunni or not."      To this  question the  answer of  the witness  was that when he  was at  some distance  he saw them causing injuries but by  the time  he went  near they  had run  away. P. W. 9 stated even  in his chief examination that when he saw Mange and Ram  Chander, they  were running  in  the  direction  of Denuda. Ram  Chander had  a danda.  Mange was  empty handed. They started  beating a  person who  was coming  from Denuda side. He tried to rescue, the person. He was given a blow on his head  with a  stick. He  felt giddy and sat down. He did not know  what happened  afterwards because  he was  feeling faint. He came to his senses when Lambardar and Patwari came there. Then  he went  to his  village. He  stated in  cross- examination that  on 15th   he  was called by the Police and taken to  the field  and from  the field  he  was  taken  to Narwana where  he was  kept in the Police Station upto 16th. He was  allowed to  go away after his statement was recorded by the  Magistrate under  S. 164  Cr. Procedure Code. Jiwana was also  there at  that time. When he was asked whether the statement which  he made  to the  Magistrate was tutored his reply was "Yes, the statement was told". Later again he said "I gave the statement as told by the police." He stated that he was  not beaten  but only  threatened. He  further stated that the  day before  he  gave  evidence  in  Court  he  was threatened by  the Police  that  if  he  did  not  give  the statement he  would himself  be involved  in a case. He also said that  he wanted to say whatever he actually saw but the police did  not agree  and said that he must give the entire statement as  mentioned by  them. During  the course  of the cross-examination of 19 the witness  the learned Sessions Judge made two notes which may be extracted here. The first note runs:           "This time  the witness  says that the police said      that  the   police  will   make  a  case  against  him.      Previously the  witness was  not prepared to go to that      extent. I  wonder whether  the witness  understands the      difference between  two things  namely that  the Police      will make  a case  against him and between this that if      he changed  his statement  he will involve himself in a      case. The  matter  to  be  appreciated  at  appropriate      stage. The second note is as follows:           "I  will   examine  the   witness  through   Court      questions as  to which  part of the statement he admits      to be  correct without  fear of the police. The learned      defence counsel  may proceed  further to  build up  his      defence."      Thereafter the  learned Sessions Judge himself put some questions to  the witness.  The witness said that he did not tell the  Magistrate that  he was making the statement under the pressure  of the Police. The learned Sessions Judge then put him  the following  question: "You  have said  that even before me  you are  making a statement under the pressure of the police.  Please state  whether you mean it. and you were giving the  statement under  pressure of  the  police."  The answer was  that "I  am giving  the statement  freely."  The learned Sessions  Judge put  him a few more questions one of which was  whether he  was honestly  stating that  Mange was bare headed  and  Ram  Chander  had  a  dunda.  The  witness answered that he said so honestly.      The  questions  put  by  the  learned  Sessions  Judge,

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particularly the  threats held  out to the witnesses that if they changed  their statements they would involve themselves in prosecutions  for perjury  were  certainly  intimidating, coming as  they did  from the  presiding judge.  The learned Sessions Judge  appeared  to  have  become  irate  that  the witnesses were  not sticking  to the statements made by them under sections  161 and  164 and  were probably giving false evidence before  him. In  an effort  to compel them to speak what he  thought must  be the  truth, the  learned  Sessions Judge, very wrongly, in our opinion, firmly rebuked them and virtually threatened  them with prosecutions for perjury. He left his  seat  and  entered  the  ring,  we  may  say.  The principle  of   ’fair  trial’  was  abandoned.  We  find  it impossible to  justify the  attitude adopted by the Sessions Judge and we also find it 20 impossible to  accept any  portion of the evidence of P.Ws 8 and 9, the two alleged eye witnesses.      Shri Bhagat  very ingeniously  argued that the evidence of P.Ws  8 and 9 could yet be acted upon to the extent their evidence was  substantiated by  the first information report given by  P.W.2. When  we pointed  out that neither PW 8 nor PW9 was  the author  of the  first information  report  and, therefore, the report could not be used to corroborate their evidence, Shri  Bhagat suggested  that we  could  do  so  by invoking the  provisions of  Section 11 of the Evidence Act. He relied  upon the  following observations of Beg J. in Ram Kumar Pande v. The State of Madhya Pradesh: (1)           "No doubt, an F.I.R. is a previous statement which      can, strictly  speaking, be only used to corroborate or      contradict the  maker of  it. But, in this case, it had      been made by the father of the murdered boy to whom all      the important  facts of  the occurrence, so far as they      were known  up to 9.15 p.m. on 23-3-1970, were bound to      have been  communicated. If  his daughters had seen the      appellant inflicting  a blow  of Harbinder  Singh,  the      father would  certainly have mentioned it in the F.I.R.      We  think  that  omissions  of  such  important  facts,      affecting the  probabilities, of the case, are relevant      under Section  11 of  the Evidence  Act in  judging the      veracity of the prosecution case".      Beg, J,  apparently had the first part of Section 11 in mind and  thought that  the presence of the daughters at the scene was  inconsistent with  the failure  of the  father to refer to  their presence  in the  first  information  report having regard  to the  circumstances under  which the report must have  been  made.  Even  assuming  that  under  certain circumstances it is permissible to use the first information report under  the first  part of  Section 11 (we say nothing about the  correctness of the view), there is in the present case no  question of  invoking the first part of Section 11, which is  inapplicable since the first information report is now not  sought to  be used  as being  inconsistent with the prosecution case. Nor do we think that the first information report can  be used  by resort to the second part of section 11, The  Evidence Act  contains detailed  provisions dealing with statements of persons who cannot be called as witnesses and  former   statements  of   persons  who  are  called  as witnesses. These 21 provisions would  appear to become redundant if the evidence of a  witness is  to be tested and accepted or rejected with reference to the former statement of another witness, on the ground that  such  former  statement  renders  the  evidence highly probable  or improbable.  We can do no better than to

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refer to  Stephen, the  framer of  the Section who said: "It may possibly  be  argued  that  the  effect  of  the  second paragraph of  Section 11  would be  to admit  proof of  such facts as  these (viz.  statements as to facts by persons not called as  witness; transactions  similar to but unconnected with the  facts in  issue; opinions  formed by persons as to facts in  issue or relevant facts). It may, for instance, be said: A  (not called as a witness) was heard to declare that he had  seen B  commit a  crime. This  makes highly probable that B did commit that crime. Therefore A’s declaration is a relevant fact under Section 11 this was not the intention of the section as is shown by the elaborate provision contained in the  following part  of Chapter 11 (Sections 31 to 39) as the particular  classes of statements, which are regarded as relevant facts  either because the circumstances under which they are  made invest  them with  importance, or  because no better evidence  can be  got. The  sort of  facts which  the section was  intended to  include  are  facts  which  either exclude or  imply more  or less  distinctly the existence of the facts  sought to be proved". We, therefore, do not think that section  11 may  be invoked in the present case, in the manner suggested  by the  learned counsel.  In the result we accept the appeal, set aside the conviction and sentence and direct the appellant to be set at liberty forthwith. V.D.K.                                       Appeal allowed. 22