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PETITIONER: STATE OF RAJASTHAN

       Vs.

RESPONDENT: ANI @ HANIF AND OTHERS

DATE OF JUDGMENT:       13/01/1997

BENCH: A.S. ANAND, K.T. THOMAS

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T      THOMAS J.      It was  a  jinxed  bus  journey  for  Phool  Chand  and Dwarkalal as  both of them were murdered by armed assailants and also  for Badri Las (PW-3) who too was travelling in the same bus.  However, Badri  Las survived  despite being badly mangled by  the assailants.  The case  was registered on his complaint and the present six respondents were challenged by the police  for various  offences. Sessions  Court convicted them under Section 302, 307 and 236 read with Section 149 of the Indian Penal Code besides other lesser offences relating to unlawful assembly. But High Court of Rajasthan, on appeal by the  respondents, acquitted  them  all.  This  appeal  by special leave  has been  filed by  the  State  of  Rajasthan challenging the said order of acquittal.      The  double   murder  happened   around  8.00  a.m.  on 23.12.1983 at  Simalia (Kota District). Prosecution case is, shortly, this: Badrilal (PW3) along with brother Phool Chand and Dwarkalal  were travelling  in a  bus for  reaching  the court where  they had  to appear  as accused  in a case. His uncle Gopal  (PW18) was  also travelling with them. When the bus reached  Simalia some passengers went out for tea break. Respondents variously  armed with  swords and  hatchets etc. boarder the  bus at that stop and unleashed a blitz on Phool Chand, Dwarkalal and Badrilal with the weapons. They dragged Phool Chand  and Dwarkalal  out of  the bus and continued to shower blows  on them. As the victims became motionless they turned to  Badri Lal and dragged him also out of the bus and showered him  with blows.  Respondents left  the place  when Badri Lal  became motionless. Phool Chand and Dwarkalal died at the  spot, but since Badri Lal was not destined to die he was escorted  to the  hospital where  his life  was saved by prompt medical attention.      DIG of  Kota region  Shri Shankar  Sharan was  going by that way  in a  car with  a constable  Ram Kumar (PW-11). As they reached  the spot  where the  incident took  place they heard from the people of a blurred account of what happened. So the  IDG made  arrangements for  immediate ambulancing of Badrilal to  the hospital.  He sent  a wireless  message  to Sultanpur Police  Station and  pursuant to  it the SHO PW-22

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(Aasu Sing)  reached the  spot. He recorded the statement of PW-25 at  9.25 A.M. which was used for preparing FIR in this case.      Respondents were  arrested on 26.12.1983 and the police recovered  incriminating   articles  on   the  strength   of informations elicited from them.      Dr. Shivachandra Misra (PW-9) who conducted the autopsy on the  dead bodies  of the  two deceased  has described the injuries found  on them.  Among the  injuries perforation on the carotid artery on both the deceased became the cause for their instantaneous death. Dr. Chander Mohan Srivastava (PW- 13) examined Badri Lal on the same day and found six incised injuries besides some fractures.      There is  no dispute  that Phool Chand and Dwarkalal as also Badri  Las (PW-3) were subjected to a violent attack at the bus  stop of Samalia on the morning hours on 23.12.1983. Respondents only  disputed about  their involvement  in  the incident. So  the crucial  question which  High Court had to consider was  whether appellants  were  the  assailants  who launched attack  on the deceased and injured. Learned Judges found that  it was  not possible  to attach  credence to the testimony of  Gopal (PW-18)  and  Badrilal  (PW-3).  Learned counsel who argued for the State of Rajasthan contended that the said  finding was  the result of misreading the evidence and a  consequence  of  over-looking  the  testimony  of  an important witness Ram Kumar (PW-11).      PW-3 (Badri  Lal) has  stated in  his evidence that all the six  respondents went  to the  bus armed with swords and hatchets and he mentioned the different roles played by each respondent  in   this  gory   incident.  But  in  the  first information statement  he  named  first  respondent  Hanifa, third respondent  Gani Mohd., fifth respondent Abdul Kayam @ Babu and  sixth respondent  Guddu @ Guddi, and not the names of second  respondent (Abdul  Salim) and  fourth  respondent (Ishak Mohd.)  though he  said that  there  were  two  other assailants also  whose names  he did  not know.  He was  not subjected to  any test  identification parade and therefore, we do not have the advantage of Badri Lal’s earliest version identifying second and fourth respondent.      The motive alleged by PW-3 (Badri Lal) for this planned onslaught was  the murder  of Hameed - the eldest brother of the respondents.  It is  not disputed  that Phool  Chand and Dwarka Lal  (the deceased) and Badri Lal were the accused in that murder case.      The High  Court, having  found that presence of PW-3 at the place  of occurrence  has been indisputably established, sidelined his  testimony with  a sweeping  remark that it is "full     of     contradictions,     inconsistencies     and improbabilities". Learned  Judges  did  not  cite  a  single material from PW-3’s narration of the occurrence as proof of inconsistency. Of  course it is pointed from the evidence of PW-3  that   appellants  had   covered   their   faces   and subsequently PW-3  has corrected  it when  the court  put  a question on  that aspect.  In the  deposition  of  PW-3  the following questions  and answers  have been recorded as part of cross-examination: Question: The correct thing is that those assaulters covered           their faces and hence you could not recognise who           had beaten whom? Answer:   This is correct that the persons who came with the           intention of killing had covered their faces. The trial Judge then put a question as this: Question: Once you  have stated that the accused persons had           covered their  faces and then you have stated that           they were  not covering  their faces. Which is the

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         correct statement out of those two? Answer:   Nizam met  me on the way and his face was covered.           But the  persons who  boarded the  bus  had  never           covered their face.      Learned Judges of the High Court have observed that the said explanation  offered by  PW-3 is not believable at all. When the  trial judge  noticed that  PW-3 Badri Lal was in a bit of  confusion during cross-examination he put a question to get the confusion clarified. If the witness has corrected an error slipped out of his tongue there is no justification terming  his   evidence  as   "not   at   all   believable", particularly since the High Court has found that presence of PW-3 at  the scene of occurrence during the relevant time is indisputable.      Shri Sushil  Kumar, learned  senior counsel  criticised the manner  in which  the trial  Judge had put the question. Counsel  submitted   that  when   the   cross-examiner   has successfully elicited  a pivotal  answer from  PW-3  it  was improper for  the court  to have  interjected to  upset  the trend.      We  are  unable  to  appreciate  the  above  criticism. Section  165   of  the   Evidence  Act   confers  vast   and unrestricted powers  on the trial court to put "any question he pleases,  in any form, at any time, of any witness, or of the parties, about any fact relevant or irrelevant" in order to discover  relevant facts.  The said section was framed by lavishly studding  it with  the word  "any" which could only have been  inspired by  the  legislative  intent  to  confer unbridled power on the trial court to use the power whenever he deems  it necessary  to elicit  truth. Even  if any  such question  crossed   into  irrelevancy  the  same  would  not transgress beyond  the contours of powers of the court. This is clear  from the words "relevant or irrelevant" in Section 165. Neither of the parties has any right to raise objection to any such question.      Reticence may  be good  in many  circumstances,  but  a judge remaining mute during trial is not an ideal situation. A taciturn  Judge may  be the  model caricatured  in  public mind. But  there is  nothing wrong in his becoming active or dynamic during  trial so that criminal justice being the end could be  achieved. Criminal trial should not turn out to be a bout  or combat  between two  rival sides  with the  judge performing the role only of a spectator or even an umpire to pronounce finally  who won  the race. A judge is expected to actively  participate   in  the   trial,  elicit   necessary materials from  witnesses at  the appropriates context which the feels  necessary for  reaching the  correct  conclusion. There is  nothing which  inhibits his power to put questions to the  witnesses, either during chief examination or cross- examination or  even during  re-examination to elicit truth. The corollary  of it  is that if a judge felt that a witness has committed an error or a slip it is the duty of the judge to ascertain whether it was so, for, to err is human and the chances of erring may accelerate under stress of nervousness during cross-examination.  Criminal justice  is  not  to  be founded on erroneous answers spelled out by witnesses during evidence collecting  process. It  is a  useful exercise  for trial judge to remain active and alert so that errors can be minimised.      In  this   context  it   is  apposite   to  quote   the observations of  Chinnappa Reddy,  J. in Ram Chander vs. The State of Haryana (AIR 1981 SC 1036):      "The  adversary   system  of  trial      being  what  is  is,  there  is  an      unfortunate tendency  for  a  judge

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    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."      We respectfully concur with the aforesaid observations. We find  no wrong  in the  trial court  interjecting  during cross-examination of  PW-3 with  a  view  to  ascertain  the correct position.      Another  reason   advanced  by   the  High   Court  for jettisoning the  evidence of  PW-3 -  Badri Lal - is that he did not  concur with  the  police  version  that  the  First Information Statement  was recorded  at 9.55  A.M. True PW-3 said that  his statement  was recorded  by the police during evening.  Learned  counsel  who  argued  for  the  State  of Rajasthan submitted  that PW-3  (Badri Lal)  would have lost his sense of time in the agony of excruciating pain suffered by him  on account  of serious injuries sustained. We are of the  view   that  the  discrepancy  regarding  the  time  of recording First  Information Statement, on the facts of this case, is  not  enough  to  castigate  the  testimony  of  an important eye  witness, whose presence at the spot cannot in any way  be doubted.  The  maximum  consequence  which  such discrepancy may  visit, on  the facts  of this case, is that the  First   Information  Statement   cannot  be   used   to corroborate the evidence of the maker of it.      In this  context we may refer to the testimony of PW-18 Gopal. That  witness had  identified the  appellants as  the assailants in  the incident  in a test identification parade conducted by a Judicial Magistrate of 1st Class (PW-12). But the High  Court did  not accept  his evidence  for the  main reason that  his name  was absent  in the  First Information Statement and further that the appellants after arrest, were paraded openly  which would  have impaired  the value of the test identification parade considerably.      PW-18 -  Gopal is  none other  than the  uncle of Phool Chand and  was staying with his nephew and he stated that on the date of occurrence he too accompanied his nephew who was proceeding to  appear in  the court for the case. PW-18 said that when  the incident  started he  tried  to  protect  the injured by  catching hold  on one of the weapons used by the assailants and  that resulted  in an injury on his palm. Dr. Shivchandra Misra  (PW-9) had  examined PW-18  on 24-12-1983 and found  a skin deep incised wound of 1x1/18 inches on his left thumb. Learned Sessions Judge found the evidence of PW- 18 quite believable.      We are  of the  view that  the evidence  of PW-18 Gopal should never have been rejected merely because Badri Lal did not  name  him  in  the  First  Information  Statement.  The condition of  the maker  of the  First Information Statement should have  been borne  in mind  -  whether  he  was  in  a position to  reproduce the  vivid details  of the occurrence

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including making reference to all the persons who would have witnessed the  occurrence. Similarly  the defence contention that accused  were openly  paraded  by  the  police  is  not supported by any reliable material on evidence.      We  cannot   overlook  the   evidence  of  yet  another important witness  in this  case - PW-11 - Ram Kumar. He was the staff  officer on duty attached to the DIG of Police. He reached the  place of  occurrence along  with the  DIG  soon after the  occurrence as  they were proceeding to some other place on  this route.  They saw  the two  deceased  and  the injured (PW-3)  lying near  the bus  and got an account from the people  crowded there  as to  what had  happened.  After sending a  wireless message to Kota Central Control Room the DIG and  PW-11 proceeded  towards Bhonsa Village and found a bullock-cart  on   the  way   in  which   respondents   were travelling. As they were armed with swords and hatchets, DIG advisedly chose  for re-inforcement  of police personnel for nabbing the  armed men  and hence  they went  to the nearest police station  and with  a posse  of  police  proceeded  to village Bhonsa.  But unfortunately  during this interval the assailants escaped. This is the substance of the evidence of PW-11.      No doubt  there is  scope for criticism that if the DIG had been  more discreet  he could  have succeeded in nabbing the miscreants  on the  same day.  But that  is a  different matter altogether. The fact remains that DIG and PW-11 could see the  armed persons  and PW-11 identified the respondents in this  case as those armed persons. Unfortunately the High Court has overlooked this very important piece of evidence.      About the  evidence  relating  to  recovery  of  blood- stained  swords,   hatchets  and   shoes  pursuant   to  the information elicited  from the  respondents after the arrest the High Court observed that the same could be used only for corroborative purpose.  However,  the  High  Court  did  not dissent  from   the  trial   court’s  view   regarding   its reliability.      In the  light of the above reasoning we have absolutely no doubt  that PW-3  (Badrilal) has correctly identified A-1 the first  respondent - Hanif, 3rd respondent Gani Mohammed, 5th respondent  Abdul Duayum @ Babu and 6th respondent Guddu @ Guddi,  whose names  he mentioned in the First Information Statement. However,  we find  weight for  the contention  of learned counsel  that PW-3’s  evidence is  not sufficient to establish the  case against  second and  fourth  respondents (Abdul Salim  and Ishaq  Mohammad) who were not named by him in the  First Information  Statement. Police did not involve PW-3 in  the test  identification parade. We are, therefore, persuaded to  give  benefit  of  the  said  doubt  to  those respondents.      Resultantly, we set aside the order of acquittal passed by the  High Court  as for  first respondent  -  Hanif,  3rd respondent -  Gani Mohammad, 5th respondent - Abdul Duayum @ Babu and  6th respondent  - Gaddu @ Guddi are concerned. The conviction and  sentence passed  by the  sessions  court  on those  respondents   are  hereby  restored.  We  direct  the Sessions Judge,  Kota to  take immediate  steps to put those respondents back  in jail for undergoing the sentence passed on them.