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Synopsis

The Supreme Court has said when a police officer uses case diary for refreshing his memory, an accused automatically gets a right to peruse that part of the prior statement as recorded in the police officer’s diary by taking recourse to Section 145 or Section 161, as the case may be, of the Evidence Act.

A bench of Justices M M Sundresh and S V N Bhatti said while it is the responsibility and duty of the Investigating Officer to make a due recording in his case diary, there is no corresponding right under subsection (3) of Section 172 of CrPC for accused to seek production of such diaries, or to peruse them, except in a case where they are used by a police officer maintaining them to refresh his memory, or in a case where the court uses them for the purpose of contradicting the police officer. 

In such a case, the provision of Section 145 or Section 161, as the case may be, of the Evidence Act, shall apply, the court said.

"Law is quite settled that an improper maintenance of a case diary by the Investigating Officer will not enure to the benefit of the accused. Prejudice has to be shown and proved by the accused despite non-compliance of Section 172 of CrPC in a given case. However, this does not take away the.mandatory duty of the police officer to maintain it properly. As the court is the guardian of truth, it is the duty of the Investigating Officer to satisfy the court when it seeks to contradict him. The right of the accused is, therefore, very restrictive and limited," the bench said.

The bench pointed out suffice, it is to state, that the said right cannot be declined when the author of a case diary uses it to refresh his memory or the court uses it for the purpose of contradiction.

The court here was dealing with an appeal filed by Shailesh Kumar challenging his conviction and sentence of life term in a murder by the trial court of Dehradun and the Uttarakhand High Court.

Kumar's counsel contended the trial court has committed grave error in not noting the fact that no time, date and adequate particulars were mentioned in the case diary. The object and rationale behind Section.172 of CrPC coupled with Sections 145, 161 and 165 of the Indian Evidence Act, 1872 have been clearly overlooked by both the courts. The motive has not been proved as witnesses have not spoken about it in their statements under Section 161 of CrPC. It is a case of completely botched up investigation and, therefore, the appellant deserves acquittal, the counsel said.

Going by the statement of witnesses and other materials, the court found no doubt that the date, time and place of occurrence could have been different. 

The bench said trial court strangely placed the onus on the appellant even with respect to the corrections made in the case diary along with the missing pages. 

"On perusal of the case diary, we find that at several places such corrections have been made, while some pages were even missing. A clear attempt is made to correct the dates. Such corrections actually were put against the appellant while they indeed helped the case of the prosecution. The finding of the trial court in this regard is neither logical nor reasonable," the bench said. 

 

Even on the question of motive, there is absolutely no material as witnesses did not speak about the same in their statements recorded under Section 161 of CrPC. Mere recovery of a motorcycle per se will not prove the case of the prosecution especially when it has not been proved as to how it was recovered, the bench added.

 

"When the trial court perused the case diary for the purpose of contradicting the statement of a police officer, it ought not to have fixed the onus on the appellant. It has failed to discharge its duty enshrined under Section 172(3) of CrPC read with Section 145 or Section 161, as the case may be, of the Evidence Act. To be noted, it was brought on a request made by the appellant and the court was using it for the purpose of contradiction," the bench said.

 

The court gave its consideration to the circumstances, motive, role of the accused and the volition of the prosecution to bring home the guilt of the appellant primarily in the form of dying declaration, eye witnesses, recovery and alleged arrest of the appellant nearer to the scene of the offence. It noted the presence of prosecution witnesses was extremely doubtful and their evidence was quite unnatural.

 

According to the prosecution, deceased Gajendra Singh went to a picnic along with two friends, Suresh and Sunil Mandal at about 11 am on June 21, 1992. On their return, they were intercepted by the appellant riding on a motorcycle. The appellant allegedly attacked him with a knife inflicting two fatal blows on the chest and stomach respectively.

 

The court said as the investigating agency is supposed to investigate a crime, its primary duty is to find out the plausible offender through the materials collected. It may or may not be possible for the said agency to collect every material, but it has to form its opinion with the available material. There is no need for such an agency to fix someone as an accused at any cost. It is ultimately for the court to decide who the culprit is.

 

The court pointed out administration of criminal justice lies in determining the guilt of the accused beyond reasonable doubt.

 

The court acquitted the appellant of all the charges.