Manish
Dixit & Ors Vs. State of Rajasthan [2000] INSC 521 (18 October 2000)
K.T.Thomas,
S.N.Variava THOMAS, J.
L.I.T.J
A jeweller of Jaipur (Gulshan Makhija) was murdered on his way back home from
his jewellery mart. He was abducted by two persons who intercepted the Gypsy
(Jeep) driven by him on the night of 23.2.1994 with bags of jewellery kept in
the vehicle. The abductors came on a motorcycle and took the jeweller to some
distance where he was shot dead. The assailants decamped with a big booty
consisting of valuable jewellery. There was one more person in the gypsy - a
family friend by name Michael Hens (a German national who had a short sojourn
at Jaipur as a tourist). He was jostled out of the gypsy before they abducted
the deceased.
Five
persons were arraigned by the police for the said abduction and murder. But the
trial court convicted only two among them for the aforesaid offences (A1 Sharad
Dhakar and A2 Manish Dixit), and the other three were acquitted.
The
High Court confirmed the said conviction only as against A2 Manish Dixit, and
the offence against A1 Sharad Dhakar was found to be limited to Section 411 of
the Indian Penal Code.
More
details of the occurrence are these: Gulshan Makhijas family was running the jewellery
shop called Star of India at Ashoka Hotel building, Jaipur. He used to be in
the shop everyday till it was closed in the night. On 23.2.1994 he called his
mother over phone and told her that one guest would also be with him for dinner
and that both would reach home soon. But the unfortunate mother could never see
his son alive thereafter. Gulshan Makhija and his German friend together set
out from his shop in a brand new gypsy on the night after closing his shop. He
carried with him a bulk of jewellery including gold, silver and valuable
stones. As they reached Janpath at Shyam Nagar (near Bansal Hospital) the jeep was blocked by the two persons who rode on a
motorcycle. One of them dragged Michael Hens out of the jeep and then pointed a
revolver at him. He then pushed the jeweller off the driving seat and himself
occupied that seat and drove the jeep keeping the dump-founded deceased on the
side seat. The jeep disappeared from the sight of the sole eye-witness and the
jeep was followed by the other assailant on the motorcycle.
The
German tourist (Michael Hens) somehow managed to reach the house of the
deceased and divulged to the inmates thereof in his broken English of what
happened. The brothers of the deceased took Michael Hens to the police station
(Sodala at Jaipur) and lodged a complaint which became the basis of the FIR for
offences under Section 365 and 379 of the Penal Code.
On the
next morning an anonymous phone call reached the officer-in-charge of Sodala
police station that a white coloured gypsy was lying abandoned at Dayal Nagar
Extension (near Gopalpur Bypass). Police then rushed to that place and found
the vehicle lying on a side road. Dead body of Gulshan Makhija was seen in the
vehicle with head injuries.
Police
noticed two bags of ornaments strewn on the road near the vehicle and some
other bags of ornaments were lying inside.
On
8.3.1994 police received a phone call at Idhayakapuri police station that an attache
was lying abandoned near Dhuleshwar Bagh Colony. The police traced out the spot
and found the attache and a bag also which contained nearly forty-two kgs. of
ornaments, besides some documents relating to Gulshan Makhija. Police lifted
the fingerprints noticed on the attache and the bag.
On
14.3.1994 A1 Sharad Dhakar was arrested by the police. On the strength of
information elicited from him police recovered some ornaments from a buried
condition on the floor of Universal Automobile Garage. A motorcycle (RJM 6373)
was also recovered pursuant to the information collected from the same accused.
After Sharad
Dhakar was apprehended police was in search of Manish Dixit (A2) but he was
absconding even after proceedings were taken against him under sections 82 and
83 of the Code of Criminal Procedure (for short the Code).
As he
was not traced out despite such steps he was published as a proclaimed
offender. However, in July 1994 police got sleuth information that he was
moving around in Delhi, and they made close watch to
locate him. On 12.7.1994 they got some indication that he could be found at Alka
Hotel in Connaught
Place, New Delhi. The investigating officer made a
sudden raid at that place and caught him. A revolver (.455 bore bawale mark-4,
bearing No.93255) was recovered from his person along with some live cartridges.
On the
strength of information elicited from him the investigating team recovered
three Kgs. of silver ornaments from the basement of the house of Rahul Sharma
(A4).
The
said arrest was followed by the arrest of three more accused who were arraigned
as A3 to A5. After completing the investigation police charge-sheeted the case
against all of them, Sharad Dhakar (A1) and Manish Dixit (A2) for the main
offences. The trial court acquitted the last three accused and convicted A1 Sharad
Dhakar and A2 Manish Dixit of the offences under Sections 302, 364 read with
120B and also Section 34 of the IPC and sentenced them to imprisonment for life
on the main count and to lesser term for the other counts. Both the convicted
persons preferred separate appeals before the High Court of Rajasthan. The
State filed an appeal against acquittal of the three accused. Subsequently,
PW30 Devender Sharma, a Tehsildar filed a petition in the High Court for
expunging certain observations made against him by the trial judge in respect
of the evidence given by him. All these were heard together and a Division
Bench of the High Court confirmed the conviction and sentence passed on A2
Manish Dixit and dismissed his appeal. As for A1 Sharad Dhakar the Division
Bench found that he could only be convicted under Section 411 of the IPC and
hence he was acquitted under Sections 302 & 364 read with 120 IPC. The
appeal filed by the State and the appeal filed by PW30 were dismissed. Hence
these appeals by Special Leave, one by A2 Manish Dixit and the other by the
State against the acquittal of A1 of the offences under Sections 302 and 364
read with 120B IPC and the third by PW3 Devender Sharma against the adverse
observations made against him.
When
the case was charge sheeted by the investigating officer this was not a case
based on circumstantial evidence as Michael Hens was cited as the solitary
eye-witness. But he was not examined by the prosecution for which we did not
get any satisfactory explanation at the outset. But Shri Sushil Kumar Jain,
learned counsel for the State of Rajasthan, submitted to us under instructions
that prosecution could not examine that German tourist as he had already left
the country before the trial started. We feel that he should have been allowed
to go back only on an undertaking that he would return to India for giving
evidence in this case, he being the solitary eye witness.
Why
the prosecution and the State did not adopt such a precautionary measure is not
explained to us satisfactorily.
This
lapse rendered the prosecution to transform this case to one of circumstantial
evidence alone. In this context we may point out that even the High Court had
observed that it was a sensational case pertaining to the robbery and murder
for which various teams of police officers were constituted. The lack of
alacrity shown by the State agency in a case which High Court described as
sensational deserves only reprobation from us.
To
obviate the said difficulty the Public Prosecutor in the trial court made a
futile attempt to render the statement made by Michael Hens to the inmates of Gulshan
Makhija as evidence falling within the purview of Section 6 of the Evidence
Act. That attempt gained success at the trial stage as the Sessions Judge
approved the contention.
But
the Division Bench of the High Court has very rightly repudiated such a
contention. As the counsel for the State did not make even an attempt to render
such statement admissible in evidence, we are relieved of the task to deal with
that statement.
While
dealing with the case against A2 Manish Dixit we noticed that the following
circumstances were projected against him and were found established by the
prosecution:
(1) On
24.2.1994 he stayed at hotel Sanjay (Jaipur) in the pseudonymous name Ramesh Chander
Sharma. (2) He absconded from the scene soon after A1 was apprehended. (3) On
12.7.1994 he was arrested at Connaught Place,
New Delhi and the revolver (described above)
was taken from his person (4) When PW-41 the ballistic expert examined the
bullet recovered from the head of deceased Gulshan Makhija and the revolver
together he found that the said bullet could only have been fired from the said
revolver. (5) On 18.7.1994 the investigating officers recovered three bags of
ornaments from the basement of the house of A4, pursuant to the information
elicited from Manish Dixit. (Those ornaments were in the possession of the
deceased at the time of his abduction).
If
those circumstances were established by the prosecution there is little scope
to contend that its cumulative result would be different from the guilt of
Manish Dixit in the involvement of the murder of Gulshan Makhija. The sessions
court and the High Court have concurrently held that those circumstances were
well established by the prosecution with reliable evidence.
The
first circumstance was proved with the help of two items of evidence. One is
the Register of hotel Sanjay in which there is an entry made on 24.2.1994 that
a person who styled himself as Ramesh Chander Sharma had stayed in the hotel.
Second is the evidence of the hand-writing expert who said that the hand which
wrote the said entry was that of Manish Dixit. Evidence of those two items has
been accepted by the two courts. But Sri U.R. Lalit, learned Senior Counsel who
argued for Manish Dixit contended that the said entry by itself is of no avail
on the language of Section 34 of the Evidence Act.
True
Section 34 contains the rider that such statement shall not alone be sufficient
evidence to charge any person with liability. In the first place the provision
deals only with books of accounts. It primarily pertains to pecuniary
transactions. The expression books of accounts means books in which merchants,
traders or businessmen generally keep their accounts i.e. statements of debits
and credits or receipts and payments. A register kept at the counter of a hotel
need not contain any statement of account. So until it is shown that such
register also pertained to the pecuniary transactions involving the customers
of the hotel the same cannot be treated as a book of accounts. In the second
place, even if it is assumed that a register kept in a hotel can be treated as
a book of accounts, the entry therein cannot become the sole premise to charge
a person with liability. The entry found in the register kept at Sanjay Hotel
can only show a circumstance that A.2 (Manish Dixit) has written in it the name
Rakesh Chander Sharma as the person who occupied particular room in the hotel
on 24.2.1994. Why did A.2 write such a name in the register on the said date
which was the immediately following date of the murder of Gulshan Makhija. He
only knows why he wrote a different name. In the absence of any explanation
from him it is open to the court to draw an inference that A.2 (Manish Dixit)
had some reasons to conceal his identity to the hotel people and hence he wrote
a pseudonymous name in the register.
Regarding
the circumstance that Manish Dixit absconded from the scene it is contended
that absconding by itself need not necessarily lead to the inference of
culpable mind against the absconder. Learned counsel submitted that Manish Dixit
was reporting to the police till 6.3.1994 and hence he could not be treated as
an absconder at all. In this context it has to be pointed out that the
disappearance of A.2 (Manish Dixit) from the locality was contemporaneous with
the apprehension of A.1 (Sharad Dhaker). Even after resorting to legal measures
to trace out A.2 (Manish Dixit) he remained underground until he was caught
unawares. In the aforesaid broad features the absconding of A.2 (Manish Dixit)
cannot be side-stepped as an innocuous circumstance.
Of
course absconding by itself has no decisive implication, nevertheless it has
utility to form a link to concatenate the full chain.
On the
evidence pertaining to the recovery of the revolver from the person of A.2
(Manish Dixit) on 12.7.1994 Shri U.R. Lalit made a two-pronged attack. First is
that the very recovery is illegal as it was done in violation of the legal
requirements. Second is that the revolver produced in court as recovered from
A.2 (Manish Dixit) was in fact found lying in the Gypsy on 24.2.1994.
Before
dealing with the said argument we may point out that there is no dispute that
the said revolver is the very same revolver used by the assailant (whoever
would have been he) for killing Gulshan Makhija. This premise remains
unassailable in view of the unimpeachable evidence given by the ballistic
expert PW-41 (DR. P.S. Manocha) who testified that the bullet recovered from
the head of the deceased was closely examined and found to have been fired from
Exhibit W-1 revolver itself. Of course Shri U.R.
Lalit
made a bid through the written arguments submitted, to contend that the said
opinion of the ballistic expert cannot become conclusive evidence to show that
the said bullet could only have been fired from the said revolver. He also made
an attempt to show that the bullet forwarded to the expert need not have been
the same as recovered from the head of the deceased.
We are
not disposed to countenance the said far-fetched contention at this late stage
particularly in view of the concurrent finding arrived at by the two courts on
the said factual issue. That apart, even the alternative contention of the defence
is that the revolver was collected from the scene of occurrence itself. Hence
it is an idle exercise to delineate the contention that a different revolver
might have been examined by the expert. Moreover, it is unnecessary to repeat
the reasons propounded by the expert to reach that conclusion because the trial
court and High Court have dealt with them in great detail.
If the
said revolver was found in the possession of A.2 (Manish Dixit) its forceful
legal implication against@@
JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ him regarding his
involvement in the murder of Gulshan@@ JJJ Makhija cannot be gainsaid. Knowing
the extent of its implication learned counsel focussed his attack on that very
circumstance itself. At any rate, we are bound to deal with the arguments focussed
on the said circumstance, for, the said circumstance has a decisive effect. If
the argument addressed by the learned counsel on that score gets acceptance the
benefit of it would help the accused in a great measure.
According
to the learned senior counsel, recovery of the revolver was in violation of
Sections 165 and 166(3) of the Code. Regarding Section 165 it is admitted that
for the search conducted at Alka Hotel, Connaught Place, New
Delhi, no independent
witness of the locality was called despite the fact that it is a very populous
area of the metropolis.
True
no independent witness has affixed signature on Ext.
P.80 -
Seizure Memo. The police officer said that they made an effort to secure at
least two persons from Connaught
Place but none was
willing to be a witness. It is no surprise that any of the traders of Connaught
Place would be unwilling to offer his service as a witness to any police action
if he knew that he would have to bear all the sufferings thereafter, to give
evidence in a criminal court, more so, when that court would be at a far off
place in a different State altogether. City people are quite conscious of such
consequences and they would normally be wary to signify to such witnessing. The
evidence of the police officer that nobody was willing to stand as a witness in
Ext.P-80 cannot, therefore, be spurned down as improbable.
Section
166 of the Code deals with searches made outside the limits of the police
station concerned.
Sub-section
(1) thereof enables the officer in charge of one police station to require the
services of the officer in charge of another police station. It is optional on
the former to do so. Sub-section (2) enjoins a duty on the latter to conduct
the search on being so requisitioned by the former. Sub-section (3) and (4) are
relevant as PW-35 (Umed singh) and PW-41 (DR. P.S. MANOCHA) (Himmat Singh)
(both investigating officers from Jaipur) opted to conduct the search for A2
((Manish Dixit) at Delhi, by themselves.
Those
two sub-sections read thus:
(3)
Whenever there is reason to believe that the delay occasioned by requiring an
officer in charge of another police station to cause a search to be made under
sub- section (1) might result in evidence of the commission of an offence being
concealed or destroyed, it shall be lawful for an officer in charge of a police
station or a police officer making any investigation under this Chapter to
search, or cause to be searched, any place in the limits of another police
station in accordance with the provisions of section 165, as if such place were
within the limits of his own police station.
(4)
Any officer conducting a search under sub-section (3) shall forthwith send
notice of the search to the officer in charge of the police station within the
limits of which such place is situate, and shall also send with such notice a
copy of the list (if any) prepared under section 100, and shall also send to
the nearest Magistrate empowered to take cognizance of the offence, copies of
the records referred to in sub- sections (1) and (3) of section 165.
It is
evident from sub-section (3) that it permits an investigating officer belonging
to one police station to search any place falling within the limits of another
police station in certain exigencies. One such exigency is when there is
possibility of delay in requisitioning the services of police personnel of
another police station and such delay could defeat the very purpose of the
search, then the investigating officer can proceed to that other place and
conduct the raid or search by himself. However, when he does so he is obliged
to conform to certain requirements as prescribed in sub-section (4). One is
that he shall inform the officer in charge of the other police station and send
him a copy of the list prepared by him in the search.
Second
is that he should send the copies of the search documents to the nearest
magistrate who has the competence to take cognizance of the offence.
What
is the basis of the argument that the aforesaid requirements have not been
complied with in respect of the search made by the investigating officers at Alka
Hotel in Connaught
Place, New Delhi? PW-37 (Sanjay Aksetriya) the
Circle Officer of the police station under whose leadership the raid was
conducted at Alka Hotel has said in cross-examination that he had given the
information to the higher officer of the area who agreed to inform the police
officers of Delhi at their own level. There can be no
grievance that a copy of the search has not been forwarded to the court
concerned.
On the
aforesaid reasons we do not find any merit in the contention that the search
made at Alka Hotel was not in@@
JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ conformity either with
Section 165 or Section 166 of the Code.
The
other contention is that a revolver was found in the Gypsy on 24.2.1994 and if
that was with the police the recovery of revolver from A2 at Alka Hotel on
12.7.1994 could only have been the result of a planting of the firearm at the
hotel. The basis for the said contention is the testimony of PW-4 (Bhanwar Lal),
PW-6 (Rajendra Kumar), PW-9 (Vijay Kumar) and PW-19 (Lala Ram Yadav).
It is
unnecessary to deal with the evidence of PW-4 and PW-9 as Public Prosecutor had
treated them as hostile on the ground that they tried to help the accused by
stating so. PW-19 is not of much use because all that he said, that too in
cross- examination, was that he had seen one revolver type object lying on the
front side. He then added that it was not fully visible to him.
But
the evidence of PW-6 (Rajendra Kumar) cannot be bypassed as the other three
witnesses because even in chief examination itself that witness has said like
this: There I saw one Gypsy being parked in which the items of gold and silver
were lying and below the foot rest of the steering of the rear seat a pistol of
iron colour was lying and that was seized by the police.
Shri
U.R. Lalit, learned senior counsel, who argued for Manish Dixit contended that
the aforesaid evidence of PW-6 is binding on the prosecution particularly
because the Public Prosecutor did not declare him hostile and no effort was
made by him to show what the witness said was untrue.
Shri Sushil
Kumar Jain, in answer to that argument, submitted that the mere lapse on the
part of the Public Prosecutor for not declaring PW-6 as hostile should not be
taken as a conscious admission made by the said Prosecutor that what the
witness said on that score was true. Shri Sushil Kumar Jain highlighted two
aspects in order to ignore the above evidence of PW-6. First is that the said
witness was not an attestor nor a witness in Ext.P.18 Memo which was prepared
relating to the Gypsy. Second is that PW-6 was not cited nor examined to say
anything about the Gypsy or its seizure. According to the learned counsel, PW-6
had overshot by saying something which was not the point for which he was cited
by the prosecution and it was a lapse on the part of the Public Prosecutor who
perhaps would have inadvertently missed hearing the witness stating that fact.
We may
look at this aspect from a broader angle. On 24.2.1994 a team of Rajasthan
Police found a Gypsy lying on the roadside and they prepared Ext.P.18 Memo. If
any firearm was then lying in the Gypsy why should the police suppress that
fact in the document which they prepared contemporaneously? It should be
remembered that there was a number of police officers and a number of persons
looking on. In such a situation the police would most certainly have mentioned
in Ext.P.18 if there was any firearm lying in the Gypsy because it is not that
easy to suppress such a vital material. That apart, it is too much to assume
that the police concealed that crucial weapon in Ext.P.18 with the far sighted
object of using that weapon for planting it elsewhere five months later for a
concocted and fake recovery. If actually a firearm was found lying in the Gypsy
on 24.2.1994, it is inconceivable that the police would not have taken it into
custody and forwarded it to the Forensic Science Laboratory to check up whether
it was the same firearm which the assailant could have used for murdering the
deceased. In this context we may note that Ext.P.18 which was prepared on
24.2.1994 relating to the Gypsy was promptly forwarded to the court.
All
the above broad features cannot be allowed to submerge to the bottom and a
concurrent finding made by the two courts on that aspect be thrown overboard
merely because of an uninvited oral vibration made by PW-6. The least which can
be commented on the Public Prosecutor who examined that witness, for not making
any attempt to probe into that answer is that it smacks of irresponsibility in
conducting the prosecution if he was an experienced Public Prosecutor.
The
next circumstance is the recovery of quite a large number of ornaments on the
strength of the statement made by Manish Dixit to the investigating officer.
That statement attributed to the accused is convincingly clear that it was he
who concealed such ornaments in the house of a co-accused. The only argument
raised by Shri U.R. Lalit on that aspect is that the police had already
conducted the search of the premises of that co-accused immediately after his
arrest. There was a long interval between that earlier search and the recovery effected
by the police on the strength of the statement made by Manish Dixit. Very
probably Manish Dixit would have chosen such a place to conceal the ornaments
on a thinking that the said place is safer than other places as the possibility
of a second search at the same place would be too remote.
We
are, therefore, not persuaded to interfere with the conviction passed on A2 for
the offence found against him.@@
JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ About A.1 (Sharad Dhakar)
the proved circumstances are too scanty for coming to the conclusion that he
too was involved in the abduction and murder of Gulshan Makhija.
Shri Sushil
Kumar Jain relied on the circumstance that a blood stain was noted by the
Forensic Sciences Laboratory on the motorcycle seized by the police pursuant to
the information received from A.1 (Sharad Dhakar) during his interrogation. The
said blood stain was found to be of O group. (The blood group of the deceased
was also O). We would assume that the said circumstance has been established by
the prosecution, but that is not decisive enough to point to the involvement of
that accused in the murder of the deceased. If there were other circumstances,
apart from the recovery of some jewellery belonging to the deceased from the
possession of this accused, perhaps the aforesaid circumstance (relating to the
blood stain found on the motorcycle) would have lent support to an inference
against him. As it is, we find it difficult to reverse the order of acquittal
passed in favour of A.1 (Sharad Dhakar) in respect of the major counts of
offences. Appeal filed by the State against A.1 (Sharad Dhakar) is only to be
dismissed.
This
takes us to the appeal filed by one Devendra Kumar Sharma (who was examined in
this case as prosecution witness PW.30) complaining of the observations made
against him by the trial court as well as the High Court.
When
he was examined in court he was holding the post of Sub-Registrar, Jaipur. On
9.6.1994 he was holding the post of Tehsildar, Jaipur. (Perhaps in that
capacity he was ex-officio Executive Magistrate also). His services were
requisitioned by the Investigating Officer for conducting the test identification
of jewelleries recovered in this case. When he was examined as prosecution
witness for speaking to the said test identification, the Public Prosecutor
during the examination-in-chief elicited a few facts from him pertaining to
those aspects and the documents prepared in connection therewith were marked
through him.
When
he was cross- examined he was asked about the seal impressions found on the
packets which contained the recovered jewelleries. He answered that he did not
compare the impression with any other seal. He was then confronted with the
memo of seizure (Ext.P.28) and he was asked whether he had recorded the fact
therein truly. He answered thus:
It
might have been correctly recorded in that memo or I may not be able to
recollect. After the cross- examination was over the Public Prosecutor did not
put a single question in re-examination. This was either because he did not
find any need to elicit any explanation from the witness or because the Public
Prosecutor was inattentive to the implications regarding the answers elicited
by the cross-examiner from that witness.
But
the trial court came down very harshly against the said witness and made the
following castigating observations against him in the judgment:
The
statement of such a responsible officer like Tehsildar opposing the Ferd made
by him shows either ex.P-20, 21 and 28 were written wrong or he has made wrong
statement before the Court. In any circumstances, this action is highly unexpectable
from the responsible officer of such status. Therefore, I would like to bring
to the notice of the State Government that in this regard appropriate action
should be taken against him, so that any officer does not make such a false
report or does not give false evidence in the Court.
When
PW-30 noticed the disparaging remarks made against him he moved the High Court
under section 482 of the Code to have those remarks expunged. But the Division
Bench of the High Court, after dealing with the evidence given by the witness
pointed out that even after refreshing his memory the witness did not reconcile
with the inconsistencies in his statement with the contents of the documents
prepared by him. The Division Bench thereupon made the following observations:
It is
needless to mention that the role of persons who conducted test identification
parade is very important.
He is
expected to take all necessary precautions while conducting test parade. He is
also required to depose correctly before the court of law and not to
deliberately make vague, confusing, inconsistent and contradictory statements
against the contents of the documents prepared and order passed by him. The
observations made by the learned trial judge do not amount to abuse of process
of law. We therefore, do not find any valid and sufficient reason to expunge
the impugned observation/remarks made by the trial court against him. Hence
this Cr.Misc. Petition filed under s.482 Cr.P.C. deserve to be dismissed.
In our
opinion, both the trial court and the High Court should have avoided making
such unsavory comments against a witness in such a manner as to entail serious
implications on his career, merely because the answers which were extracted
from him through cross questions contained contradictions or inconsistencies.
It should have been remembered that PW-30 (Devendra Kumar Sharma) was cited by
the prosecution and the chief examination was conducted by a Public Prosecutor.
Once the witness was cross-examined the Public Prosecutor had an opportunity
under law to put such questions as were necessary for explanation of matters
referred to in cross-examination. It is ununderstandable to us why the Public
Prosecutor did not put a single question at re-examination stage, at least for
the purpose of giving him opportunity to explain such incongruities which fell
from his mouth during cross-examination.
If the
trial court felt that some of the answers given by that witness during
cross-examination were so inconsistent or contradictory and that such answers
per se required judicial castigation the court also had a duty to invoke its
powers envisaged in Section 165 of the Evidence Act. The width of the powers of
the court to put questions is almost plenary and no party can possibly raise an
objection thereto. This can be discerned from the language employed in the first
limb of the section. It reads thus:
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.
This
Court has indicated the very wide dimension of the powers of the court under
section 165 of the Evidence Act in State of Rajasthan vs. Ani {1997 (6) SCC 162}. We extract the following observations which
would amplify the position:
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 crosses 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.
In the
present case when the Public Prosecutor failed to utilize the opportunity
afforded by law to ask PW-30 (Devendra Kumar Sharma) such questions as are
necessary for explanation of the matters referred to in cross-examination, and
when the trial judge also failed to invoke the plenary powers to put such
questions as he should have put regarding the answers given in
cross-examination it was unfair, and we may say uncharitable to a witness to
shower him with judicial reprobations in the judgment. Such disparaging remarks
and the direction to initiate departmental action against him could have very
serious impact on his official career.
Even
those apart, this Court has repeatedly cautioned that before any castigating
remarks are made by the court against any person, particularly when such
remarks could ensue serious consequences on the future career of the person
concerned he should have been given an opportunity of being heard in the matter
in respect of the proposed remarks or strictures. Such an opportunity is the
basic requirement, for, otherwise the offending remarks would be in violation
of the principles of natural justice. In this case such an opportunity was not
given to PW-30 (Devendra Kumar Sharma). [(State of U.P. vs. Mohd. Naim {1964 (2) SCR 363}, Ch. Jage Ram vs.
Hans Raj Midha {1972 (1) SCC 181}, R.K. Lakshmanan vs. A.K. Srinivasan {1975(2)
SCC 466}, Niranjan Patnaik vs. Sashibhusan Kar {1986 (2) SCC 569}, State of
Karnataka vs. Registrar General {2000 (5) Scale 504}].
It is
apposite in this context to extract the following observations made by this
Court in Dr. Dilip Kumar Deka v. State of Assam {1996(6) SCC 234}:
We are
surprised to find that in spite of the above catena of decisions of this Court,
the learned Judge did not, before making the remarks, give any opportunity to
the appellants, who were admittedly not parties to the revision petition to
defend themselves. It cannot be gainsaid that the nature of remarks the learned
Judge has made, has cast a serious aspersion on the appellants affecting their
character and reputation and may, ultimately affect their career also.
Condemnation of the appellants without giving them an opportunity of being
heard was complete negation of the fundamental principle of natural justice.
We
therefore unhesitatingly allow the appeal filed by PW-30 (Devendra Kumar
Sharma) and order expunction of all the disparaging remarks made against him by
the trial judge as well the High Court in the judgments impugned before us.
The
direction to proceed against him departmentally would also stand deleted.
The
appeals are disposed of accordingly.
Back