Ram Chander Vs. State of Haryana
 INSC 47 (25 February 1981)
REDDY, O. CHINNAPPA (J) REDDY, O. CHINNAPPA
(J) ISLAM, BAHARUL (J)
CITATION: 1981 AIR 1036 1981 SCR (3) 12 1981
SCC (3) 191 1981 SCALE (1)428
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.
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, 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,  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,  3
S.C.R. 519 @ 522, discussed.
CRIMINAL APPELLATE JURISDICTION: Criminal
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
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 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 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 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 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
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
"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, 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
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
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 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.