2000(4) Crimes 171 (SC)
Supreme Court of India
(From Rajashtan High Court)
K.T. Thomas & S.N. Variava, JJ.
Manish Dixit & Ors. —Appellants
versus
State of Rajasthan —Respondent
Criminal Appeal No. 779 of 1998
With
Devender K. Sharma —Appellant
versus
State of Rajasthan —Respondent
Criminal Appeal No. 645 of 1999
With
State of Rajasthan —Appellant
versus
Sharad Dhakar @ Bantu & Anr. — Respondents
Criminal Appeal Nos. 679-680 of 1999
Decided on 18-10-2000
Counsel for the Parties :
For the Appearing Parties : U.R. Lalit, Sushil Kumar, Sr. Advocates, Uday Umesh Lalit Sushil K. Jain, Yatendra Sharma, A. Misra, Prashant Kumar, A.P. Dhamija, Manish Singhvi, Ms. Sandhya Goswami, K.S. Bhati, Sajeeb Kumar, Ritish Aggarwal, Advocates.

Important points
1. Before passing remarks or strictures by criminal court against witness he must be given opportunity of being heard particularly when such remark could ensure serious consequences on future career of person concerned.
2. Merely on ground that there were inconsistencies and contraditions during cross-examination of officer who conducted test identification parade diparaging remarks against him would not be justified; it would be duty of P.P. to re-examine such a witness to clear incongru­ities and further Court could also invoke its power under Section 165 of Evidence Act.

Headnote:(i) Criminal trial—Evidence—Sole eye-witness a foreign tourist—He ­already left country before trial start­ed—Sole eye-witness not exam­ined—Prosecutor should have been allowed to go back only on an under­taking that he would return to India for giving evidence—Lack of alacrity shown by State agency depreciated. (Para 11)

       (ii) Evidence Act, 1872—Section 6—Facts forming part of same trans­action—Relevance of—Abduction and murder—Solitary eye-witness, a foreign tourist who narrated incident to relatives of deceased—Soli­tary eye-witness left India before trial started —Not examined as witness—Statement of witness to relatives of deceased sought to be placed as evidence under Section 6—Rightly rejected by High Court. (Para 12)

       (iii) Indian Penal Code, 1860—Section 302—Murder—Conviction on basis of circumstantial evidence—Legality of—Abduction and murder—Circumstances that accused stayed in hotel in pseudonymous name, absconded from scene soon after alleged co-accused was appre­hended, subsequent arrest in another State and revolver taken from his person, ballistic expert found bullet recovered from body of deceased could only have been fired from revolver recovered and recovery of ornaments, which were in possession of deceased, on basis of statement of accused—All circumstances proved leading to guilt of accused—Conviction upheld. (Paras 13 to 34)

       (iv) Criminal Procedure Code, 1973—Section 165—Search and sei­zure—Revolver seized at a raid in hotel from accused—Offence commit­ted in Rajasthan State—Accused absconding in a Delhi Hotel—Absence of independent witness affixed signature to seizure statement—Not fatal to use document during trial against accused.

       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 the 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. (Para 22)

       (v) Indian Penal Code, 1860—Sections 302, 364 r/w 120—Murder convic­tion on basis of circumstantial evidence—Charge of abduction to loot jewellery and murder—A blood stain on motorcycle seized pursuant to information from accused—Blood group same as that of deceased’s—No other circumstances except recovery of some jewellery belonging to deceased—Circumstance relating to blood stain could not lead to inference that accused was also involved—Conviction rightly set aside by High Court—Acquittal of charge under Section 302 and 364 justi­fied—Conviction under Section 411 as recorded by High Court correct. (Paras 10 and 35)

       (vi) Indian Evidence Act, 1872—Section 34—Entries in books of accounts—Relevance of—Murder case—Accused allegedly stayed in a hotel in psecudonmous name—Hand writing expert’s evidence name writ­ten in hotel register was by hand of accused—Absence of explanation from accused why he concealed his identity to hotel people and wrote pseudonymous name in register—Entry in register relevant to prove circumstance of involvement of accused in murder.

       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. (Para 16)

       (vii) Code of Criminal Procedure, 1973—Sections 165 and 166(3)—Search—Offence committed in Rajasthan State—Accused abscond­ing and residing in a hotel at Delhi—Raid by Rajasthan Police—Raid­ing officer giving information to higher officer of area where raid was conducted who agreed to inform police officers at their own level—No grievance that copy of search had not been forwarded—Search could not be said to be not in conformity with Sections 165 and 166.

       It is evident from sub-section (3) that it permits an investigating officer belonging to one police station to search any plea 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. (Para 24)

       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 conformity either with Section 165 or Section 166 of the Code. (Paras 25 & 26)

       (viii) Criminal trial—Disparaging remarks by Court against witness—Executive Magistrate conducted test identification parade—During cross examination his evidence containing inconsisten­cies or contradictions—In cross-examination when asked about seal impres­sions found on packets which contained jewelleries his answer that he did not compare impression with any other seal—On question whether he had recorded fact truely in seizure memo answer that “it might have been correctly recorded in that memo or I may not be able to recol­lect”—Trial Court making castigating observations recommending appro­priate action by Government against him so as to see that no officer makes such a false report or gives false evidence—High Court refusing to expunge remark—Remarks unwarranted—Trial Court and High Court should have avoided making unsavory comments entailing serious implication on his career—It was duty of Public Prosecutor to re-examine so as to ex­plain incongruities fell from mouth of witness during cross-examina­tion—Court also should have invoked its powers under Section 165 Evidence Act—Opportunity ought to have been given before passing strictures—Disparaging remarks ordered to be expunged.

       Held : 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 un-understandable 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. (Para 39)

       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. (Para 40)

       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. (Para 42)

       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. (Para 43)

       Result : Order accordingly.