The Supreme Court while highlighting the duties of a judge in a criminal trial has set aside an order of conviction for murder by the Additional Sessions Judge, Jagadhri, Haryana, which was even upheld by the Punjab and Haryana High Court.

“…The duty of the presiding judge of a criminal trial is not to watch the proceedings as a spectator or a recording machine but he has to participate in the trial “by evincing intelligent active interest by putting questions to witnesses in order to ascertain the truth”, said a bench of Justice Sudhanshu Dhulia and Justice Sanjay Kumar.

Noting the observation of the Trial Judge in the impugned order, the bench further held “…We are afraid that by pointing out the weakness in the cross examination of the defense the presiding judge indirectly admits to the weakness in the trial itself. We say this for the reasons that under Section 165 of the Act, a trial judge has tremendous powers to “ask any question he pleases, in any form, at any time, of any witness, or of the parties about any fact relevant or irrelevant”. It is in fact the duty of the Trial Judge to do so if it is felt that some important and crucial question was left from being asked from a witness. The purpose of the trial is after all to reach to the truth of the matter…”.

In the present factual matrix, the two accused were convicted for an alleged murder, with the motive to steal deceased’s tractor. The appellants were convicted by the Sessions Trial for offences under Sections 302, 364, 392, 394,201 read with Section 34 of IPC.

The case of the prosecution was squarely based on two circumstantial evidences, which further became the grounds for conviction, viz.:

-disclosure given in the police custody and the discovery on its basis and;

-evidence of last seen.

Holding that in a case of circumstantial evidence, motive too is of significance, the Court held, “…As far as motive is concerned, the prosecution case is that the two accused killed the deceased only to steal his tractor. The deceased in this case was a 42­year­old well­ built man of 6 feet 2 inches in height (Post Mortem report dated 12.05.2000). The prosecution case is that the deceased was kidnapped and murdered by the two accused, for his tractor which they had robbed from the deceased, after putting him to death. Now this tractor the accused had in any case abandoned, and did nothing to recover it till one of them was caught on 12.05.2000. In short, the ‘motive’ is not very convincing”.

Disclosure given in the police custody:

The bench further rejected the first evidence that formed the basis of conviction, it opined,

“…If the disclosure has been made by the accused to the police while he was in their custody and such a disclosure leads to discovery of a fact then that discovery is liable to be read as evidence against the accused in terms of Section 27 of the Act. All the same, the distinguishing feature of such a discovery must be that such a disclosure must lead to the discovery of a “distinct fact”. The recovery of the stolen tractor, the place where the murder was committed and the place where body was thrown in the canal were facts which were already in the knowledge of the police, since it is the case of the prosecution that the co­accused Mange Ram, who was arrested by the police 2 days preceding the arrest of the present appellant, had earlier led to the same discoveries on 12th, 13th & 14th of May, 2000. So, this disclosure and discovery made thereafter cannot be read against the present appellant. There cannot be a “discovery” of an already discovered fact!”.

Evidence of last seen:

While relying on a catena of judgments, the bench cited Malleshappa v. State of Karnataka, and stated that the last seen theory is not an “irrevocable conclusion” by itself, it is necessary for the prosecution to bring to foray something additional to establish a link. However, “in the present case when there is no close proximity between circumstances of last seen together and the approximate time of eath, the evidenve of last seen becomes weak”, the bench noted further.

On the same point, the Court thus stated, “The trial court as well as the High Court have lost sight of the vital aspect of the matter. Both the Courts have relied on Section 106 of the Act and have held that since the accused was last seen with the deceased and he has not been able to give any reasonable explanation of his presence with the deceased in his statement under Section 313 of the Cr.P.C., it has to be read against the accused and therefore it has to be counted as an additional link in the chain of circumstantial evidence. In present case in the findings of the trial court and High Court this appears to be the most important aspect which weighed with the trial court as well as the High Court in establishing the guilt of the accused. We are, however, afraid this is a complete misreading of Section 106 of the Act.

Therefore holding that the prosecution was not able to prove its case beyond reasonable doubt, the bench then while setting aside the order of the High Court, directed the appellants in jail to be released forthwith.

“…In our considered view, in the present case the prosecution has not been able to prove its case beyond reasonable doubt. The evidence of last seen, only leads upto a point and no further. It fails to link it further to make a complete chain. All we have here is the evidence of last seen, which as we have seen looses much of its weight under the circumstances of the case, due to the long duration of time between last seen and the possible time of death. What we can call as discovery here under Section 27 of the Act, is the discovery of ‘Parna’ and watch of the deceased. This evidence in itself is not sufficient to fix guilt on the appellant…”, the bench held.

Accordingly, the Court allowed the appeal.

Cause Title: Dinesh Kumar v. The State of Haryana

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