Case Note & Summary
The Supreme Court dealt with two criminal appeals by special leave arising from the conviction of five appellants by the Civil and Sessions Judge of Moradabad for offences under Sections 147, 148, 302, 307, 323 and 452 read with Section 149 of the Indian Penal Code. The first appellant was convicted under Section 302 IPC for the murder of Sriram by shooting him with a gun on 12-12-1969 at about 1 p.m., and sentenced to death. The other four appellants were convicted under Section 302 read with Section 149 IPC and sentenced to life imprisonment. The High Court of Allahabad accepted the death reference and dismissed the appeals, confirming the sentences. The appellants challenged the conviction claiming false implication due to enmity and the defence produced Gokul DW1 who stated that a party from Naurangabad had attacked the deceased and injured persons. The trial court rejected the defence version and accepted the prosecution eyewitnesses, including two injured persons. The Supreme Court observed that while the trial court had the advantage of seeing witnesses, there were at least two features which could provide serious grounds for suspecting the prosecution version. The first feature was the post-mortem report concerning the stomach contents and the alleged time of murder, which had not been discussed by the High Court. The Court held that the trial court could and should have put questions to the doctor and the High Court could take further expert medical evidence under Sections 540 and 428 CrPC. The second feature involved a witness who was said to be an eyewitness but was not examined by the prosecution and was examined as a court witness. His police statement said he was not an eyewitness, whereas some prosecution witnesses stated he was present. The Court held that the witness ought to have been confronted with his previous police statement and that the High Court had merely observed that he supported the prosecution without considering the significance of his presence. On the legal question, the Supreme Court held that Section 162 CrPC does not impair the special powers of the court under Section 165 of the Evidence Act. The prohibition under Section 162 CrPC is meant to prevent unfair use by parties, particularly the prosecution, and should be confined to use by parties only. The court's power to question witnesses under Section 165 Evidence Act remains available to secure the ends of justice. The Court also approved the decision in Emperor v. Lal Mian, AIR 1943 Cal 521. In conclusion, the Court found that the High Court's appreciation was perfunctory and that the material questions had not been properly considered. Accordingly, the appeals were allowed in part, the conviction and sentences were set aside, and the cases were remitted to the High Court for fresh disposal in accordance with law.
Headnote
A) Criminal Procedure - Use of Police Statements by Court - Section 162 CrPC Does Not Bar Court's Power Under Section 165 Evidence Act - Code of Criminal Procedure, 1898, Section 162; Indian Evidence Act, 1872, Section 165 - The question arose whether the court could use a police statement of a witness for confronting him or clarifying facts; the Supreme Court held that the prohibition in Section 162 CrPC, though wide, must be construed narrowly and harmonized with Section 165 Evidence Act so that the court's special powers to question witnesses to secure ends of justice remain intact; Held that Section 162 CrPC does not impair the special powers of the court under Section 165 Evidence Act (Paras Not mentioned). B) Criminal Procedure - Additional Evidence in Appeal - High Court's Duty to Take Further Medical Evidence - Code of Criminal Procedure, 1898, Sections 428 and 540 - In a death sentence case, the High Court failed to discuss material questions regarding stomach contents and time of death; the Supreme Court held that the trial court could and should have put questions to the doctor and the High Court could take further expert medical evidence under Sections 540 and 428 CrPC; Held that the High Court's failure to do so vitiated its appreciation, requiring remand (Paras Not mentioned). C) Criminal Trial - Appreciation of Eyewitness Testimony - Court Witness and Confrontation with Police Statement - Code of Criminal Procedure, 1898, Section 162; Indian Evidence Act, 1872, Section 165 - A prosecution-not-examined witness was examined as a court witness; his police statement said he was not an eyewitness, while prosecution witnesses said he was present; the Supreme Court held the trial court should have confronted him with his prior police statement and the High Court erred in simply observing he supported prosecution without discussing his presence; Held that the evidence of such witnesses must be appraised critically, otherwise conviction unsafe (Paras Not mentioned). D) Criminal Appeal - Death Sentence Cases - Standard of Scrutiny - Indian Penal Code, 1860, Section 302 - The High Court's confirmation was based on concurrent findings but it did not evaluate material inconsistencies; the Supreme Court held that in death sentence cases a closer and more critical scrutiny and fuller discussion of evidence is expected; Held that the appeals were allowed in part and cases remitted to the High Court for fresh disposal (Paras Not mentioned).
Issue of Consideration
Whether Section 162 CrPC prohibited the court from using statements made by witnesses to the police during investigation while exercising its power under Section 165 Evidence Act; whether the High Court adequately considered material evidence including post-mortem report inconsistencies regarding stomach contents and time of murder and whether further medical evidence should have been called under Sections 428 and 540 CrPC; whether the trial court should have confronted the court witness with his previous police statement and whether the High Court properly appreciated eyewitness testimony.
Final Decision
Appeals allowed in part; convictions and sentences set aside; cases remitted to the High Court for fresh disposal in accordance with law after considering the material points and taking further evidence if necessary.
Law Points
- Section 162 CrPC does not impair the special powers of the court under Section 165 Evidence Act
- prohibition under Section 162 CrPC confined to use by parties
- court can put any question to witness to secure ends of justice
- death sentence cases require critical scrutiny
- High Court can take further evidence under Sections 428 and 540 CrPC
- court witness should be confronted with previous police statement
