2008 Supreme(SC) 1356

2008(6) Supreme 619
SUPREME COURT OF INDIA
S.B. Sinha and Harjit Singh Bedi, JJ.
Bachan Singh & Anr. — Appellants
versus
State of Bihar — Respondent
Criminal Appeal No. 1176/2004
Decided on : 11-09-08

Important Point
Section 172 (2) of Code of Criminal Procedure lays down that a criminal court can send for the police diaries of a case under trial in such court, and may use such diaries, not as evidence of the case, but to aid it in such inquiry or trial.

Headnote:Indian Penal Code, 1860 – Sections 147, 148, 149, 302, 307 and 325 r/w Section 25(a) of Arms Act – Code of Criminal Procedure, 1973 – Section 172(2) – Prosecution of accused persons, 13 in number for causing death of two persons of complainant party and injuries to several others with the help of deadly weapons like guns, spears, pharsas and lathis etc. – Trial Court relying on statements of prosecution witnesses PW5, PW4 , PW6, PW7 and PW8 held that case stood proved against nine of thirteen accused and accordingly convicted them – Appeal – High Court in appeal, while acquitting “ B” of all charges, dismissed appeals filed by other accused persons – Appeals thereagainst – Plea that trial court had adopted an extra ordinary procedure inasmuch as it had looked into case diary to find corroboration for prosecution evidence as investigating officer had not cared to record statements of the prosecution witness and that this procedure was unknown to law and therefore unacceptable-A bare perusal of Section 172 (2) of Code of Criminal Procedure reveals that a criminal court can send for the police diaries of a case under trial in such court, and may use such diaries, not as evidence of the case, but to aid it in such inquiry or trial- The facts of the case revealed that I.O. could not be examined, as in the meanwhile he had migrated to Pakistan and had died there and it is in this situation that trial Judge feeling handicapped on account of non-examination of the I.O. though witnesses had been confronted with their previous statements had a look into the case diary as an additional factor to test the veracity of the witnesses – Evidence on record showed that prosecution witnesses had been confronted with their previous statements – Even if it was assumed that trial Court was not justified in looking into the case diary, it could not be said to be prejudicial to the accused in peculiar facts of the case. (Para 7)

       Indian Penal Code, 1860 – Sections 147, 148, 149, 302, 307 and 325 r/w Section 25(a) of Arms Act – Prosecution of accused persons, 13 in number for causing death of two persons of complainant party and injuries to several others with the help of deadly weapons like guns, spears, pharsas and lathis etc. – Trial Court relying on statements of prosecution witnesses PW5, PW4 , PW6, PW7 and PW8 held that case stood proved against nine of thirteen accused and accordingly convicted them – Appeal – High Court in appeal, while acquitting “B” of all charges, dismissed appeals filed by other accused persons – Appeals thereagainst – Plea that genesis of occurrence was uncertain and as both sides appeared to have come prepared and determined to fight, injuries had been suffered by members of both groups on this account-Deposition of PW5, first informant, that 5 or 6 days before occurrence, C’s crop had been burnt on which a complaint had been lodged against her sons-in-law (the deceased), her son and her husband and that “C” had threatened her sons-in-law that they would be beaten- It was apparent from her evidence that a free fight between the parties had taken place during the course of which several shots had been fired resulting in three deaths from both groups – The stand taken by PW5 was supported on material points by other prosecution witnesses – Both the parties appeared to be itching for a fight and had collected their relatives and supporters from far and between to augment their strength – Hence held that both groups must share equal responsibility for this incident – Appeals disposed of. (Paras 9 to 11)

       Facts of the Case :

       1.Accused persons, 13 in number were prosecuted herein in the instant case for causing death of two persons of complainant party and injuries to several others with the help of deadly weapons like , guns, spears, pharsas and lathis etc. Trial Court relying on statements of prosecution witnesses PW5, PW4 , PW6, PW7 and PW8 held that case stood proved against nine of thirteen accused and accordingly convicted them. High Court in appeal, while acquitting “ B” of all charges, dismissed appeals filed by other accused persons.

       2.Present appeals have been filed by some of the accused persons against said order of HighCourt.

       Findings of the Court :

       Appellant’s case that trial court had adopted an extra ordinary procedure inasmuch as it had looked into case diary to find corroboration for prosecution evidence as investigating officer had not cared to record statements of the prosecution witness and that this procedure was unknown to law and therefore unacceptable. A bare perusal of Section 172 (2) of Code of Criminal Procedure reveals that a criminal court can send for the police diaries of a case under trial in such court, and may use such diaries, not as evidence of the case, but to aid it in such inquiry or trial. The facts of the case revealed that I.O. could not be examined, as in the meanwhile he had migrated to Pakistan and had died there and it is in this situation that trial Judge feeling handicapped on account of non- examination of the I.O. though witnesses had been confronted with their previous statements had a look into the case diary as an additional factor to test the veracity of the witnesses. Evidence on record showed that prosecution witnesses had been confronted with their previous statements .Even if it was assumed that trial Court was not justified in looking into the case diary, it could not be said to be prejudicial to the accused in peculiar facts of the case. Again since both the parties appeared to be itching for a fight and had collected their relatives and supporters from far and between to augment their strength. Hence held that both groups must share equal responsibility for this incident.

       Result : Appeals disposed of.