While not leaving even an iota of doubt to linger or languish in the minds of anyone, the Supreme Court in a most learned, laudable, landmark, logical and latest judgment titled Shailesh Kumar vs State of UP (now State of Uttarakhand) in Criminal Appeal No(s) 684 of 2012 and cited in Neutral Citation No.: 2024 INSC 143 in the exercise of its criminal appellate jurisdiction that was pronounced most recently on February 26, 2024 has minced just no words to hold in no uncertain terms that an accused has a right to cross-examine a police officer as to the recording made in the case diary whenever the police officer used to refresh his memory.

While adding more clarity, we need to note that it was also made clear that similarly, in a case where the court uses a case diary for the purpose of contradicting a police officer, then an accused is entitled to peruse the said statement so recorded which is relevant and cross-examine the police officer on that count. It was also made absolutely clear by the top court that although the accused or his agents have no right to seek production of the case diaries as per Section 172(3) of the Code of Criminal Procedure, whenever the police officer uses it to refresh his memory, the accused will get a right to access it for the purpose of cross-examination.

This was held so by the Apex Court while deciding a criminal appeal that had been filed against the concurrent judgments of the Trial Courts and the High Court convicting the appellants for the offence of murder. The Apex Court thus finally overturned the conviction as it was found to be based on weak grounds as the evidence on record was not confidence inspiring.

At the very outset, this brief, brilliant, bold and balanced judgment authored by Hon’ble Mr Justice MM Sundresh for a Bench of the Apex Court comprising of himself and Hon’ble Mr Justice SVN Bhatti sets the ball in motion by first and foremost putting forth in para 1 that:
The appellant convicted by the Additional Sessions Judge/Special Judge, Anti-Corruption U.P (East) Dehradun in ST 166/1992 under Section 302 of the Indian Penal Code, 1860 (hereinafter referred to as IPC) for life imprisonment, as confirmed by the Division Bench of the High Court of Uttarakhand at Nainital in Criminal Appeal No. 888 of 2001 seeks acquittal.

BRIEF FACTS
To put things in perspective, the Bench envisages in para 3 that:
The deceased, Gajendra Singh went to a picnic along with two friends, Suresh (PW-2) and Sunil Mandal (PW-3) at about 11 a.m. on the fateful day – 21.06.1992. On their return, they were intercepted by the appellant riding on a motorcycle. The appellant by uttering the words Today I shall pay all your dues, attacked the deceased Gajendra Singh with a knife inflicting two fatal blows on the chest and stomach respectively. The motive of the attack appears to be the failure of the appellant in completing the work for which the deceased gave a sum of Rs.500/-.

While continuing in the same vein, the Bench then discloses in para 4 that, PW-2 and PW-3 took the deceased, who was bleeding profusely on a tempo whose driver has not been examined, to the hospital in which PW-5 was working. After admitting the deceased in the hospital, PW-2 went to the house of the deceased by travelling, which took him 15 minutes, and passed on the information of attack on deceased, to his father, PW-1. On examination, PW-5 found that the deceased was in a serious condition and, therefore, merely gave first aid and referred the deceased to a hospital in Dehradun.

After reaching the hospital, PW-1 made an enquiry with the deceased who gave a dying declaration narrating the incident. PW-5 did not speak about the presence of any of the witnesses except the fact that the deceased was admitted by PW-3 and, therefore, did not refer to the said dying declaration given to PW-1. PW-1 dictated the complaint to one Mr. Inder Singh (not examined) and went to the police station situated just opposite to the hospital. Prior to the aforesaid action on the part of PW-1, PW-5 has made an entry in the emergency medical register which was subsequently filled up by another person named Dr. B.V. Sharma (not examined). Dr. B.V. Sharma sent report immediately to the police station.

Further, the Bench reveals in para 5 that:
Before PW-1 could reach the police station, the report from the hospital had reached and, therefore, investigation was triggered. However, neither First Information Report (FIR) had been registered nor noting had been made in the general diary. In fact, the available noting on the general diary did not disclose any offence committed on 21.06.1992, as per the statement of PW13, who produced the same before the court.

As we see, the Bench then points out in para 6 that:
PW-2 and PW-3 took the deceased to the nearby hospital at Dehradun as per the version of PW-1 and PW-2, while PW-3 said it was himself and PW-1 who undertook the said exercise. As per the version of PW-8, the doctor who attended the deceased at the Dehradun hospital, the deceased was brought to the hospital by his brother Mr. Bhupender Singh (not examined).

As it turned out, the Bench enunciates in para 7 that:
PW-11 took up the investigation. He went to the place of occurrence, drew the sketch and prepared the site plan. While returning, he was informed by PW-7, another brother of the deceased that he received information that the appellant was trying to escape to Dehradun. PW-6, who heard about the occurrence, went to the place of occurrence out of curiosity. The appellant was found and arrested at about 50-60 yards from the place of occurrence by PW-11 in the presence of PW-6, PW-7 and one Mr. Sanjeev Saini (not examined). The knife that was said to have been used for committing the offence was recovered from an open place at about 50 steps near the place of occurrence. No arrest memo has been prepared though an entry was made in the general diary. Recovery memo was signed by PW-6 and PW-7 alone.

Simply put, the Bench states in para 8 that:
The post-mortem was conducted by PW-4, Dr. Jaideep Dutta, which indicated two major injuries, in tune with the case of the prosecution. PW-9, being the police officer of a different jurisdiction, prepared the inquest report, presumably on the ground that the ultimate death happened there, as the second hospital was situated within his jurisdiction.

Quite intriguingly, the Bench notes in para 9 that:
After the initial investigation by PW-11, PW-12 took over the further investigation, but did not take adequate care to check and verify the earlier statements given by the witnesses. Some of the witnesses have been examined at the earliest while the others like PW-2, PW-6 and PW-7 were examined 2 weeks thereafter. The FIR was curiously sent by post and, therefore, reached the jurisdictional magistrate days thereafter.

Furthermore, the Bench specifies in para 10 that:
During the course of trial, the prosecution examined 13 witnesses. In the questioning made under Section 313 of the Code of Criminal Procedure, 1973 (hereinafter referred to as CrPC), the appellant clearly denied all the charges levelled against him. On a request made on behalf of the appellant, the general diary was summoned and perused by the trial court.

This was done as a question was raised on the story propounded by the prosecution which goes to the date and time of the occurrence. On perusal, the trial court found out that there were certain interpolations with specific reference to the dates and certain pages were missing and jumbled. While giving a finding that the noting of the date as 22.06.1992 and thereafter striking it off to 21.06.1992 as a clerical mistake, the trial court went on to put the blame on the appellant that he manoeuvered to do so in connivance with somebody, though the said correction could only help the case of the prosecution.

What’s more, the Bench observes in para 11 that:
While convicting the appellant, the trial court placed heavy reliance upon the evidence of PW-1 to PW-3. The discrepancies qua the emergency medical register and amongst the statements of PW-1, PW-2 and PW-3 were brushed aside as minor and natural or ignorable discrepancies due to the passage of time. Much reliance has been placed on the recovery of the two-wheeler, though not mentioned in the site plan. The delay in recording the statement of the witnesses were also taken lightly. The so-called dying declaration given before PW-1 was accepted, despite a clear statement made by PW-5 that none was present during the stay of the deceased with him till he was sent to the other hospital.

Still more, the Bench notes in para 12 that:
The High Court concurred with the decision of the trial court by placing reliance upon the post-mortem report and the testimony of PW-1 to PW-3.

Quite rightly, the Bench points out in para 26 that:
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.

Briefly stated and quite significantly, the Bench propounds in para 27 that, Section 172(3) of CrPC makes a specific reference to Section 145 and Section 161 of the Evidence Act. Therefore, whenever a case is made out either under Section 145 or under Section 161 of the Evidence Act, the benefit conferred thereunder along with the benefit of Section 172(3) of CrPC has to be extended to an accused. Thus, the accused has a right to cross-examine a police officer as to the recording made in the case diary whenever the police officer uses it to refresh his memory.

Though Section 161 of the Evidence Act does not restrict itself to a case of refreshing memory by perusing a case diary alone, there is no exclusion for doing so. Similarly, in a case where the court uses a case diary for the purpose of contradicting a police officer, then an accused is entitled to peruse the said statement so recorded which is relevant, and cross-examine the police officer on that count. What is relevant in such a case is the process of using it for the purpose of contradiction and not the conclusion. To make the position clear, though Section 145 read with Section 161 of the Evidence Act deals with the right of a party including an accused, such a right is limited and restrictive when it is applied to Section 172 of CrPC.

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. Therefore, we have no hesitation in holding that Section 145 and Section 161 of the Evidence Act on the one hand and Section 172(3) of CrPC on the other are to be read in consonance with each other, subject to the limited right conferred under sub-section (3) of Section 172 of CrPC. Balakram v. State of Uttarakhand and Others, (2017) 7 SCC 668.

In brief, it is also rightly stated in para 28 while citing the relevant case law that:
Ram Chander v. State of Haryana, (1981) 3 SCC 191,

3…. The court, the prosecution and the defence must work as a team whose goal is justice, a team whose captain is the judge. The Judge, ‘like the conductor of a choir, must, by force of personality, induce his team to work in harmony; subdue the raucous, encourage the timid, conspire with the young, flatter and (sic the) old’. Justice O. Chinnappa Reddy.

Most significantly, the Bench propounded in para 38 that:
From the aforesaid discussion, we have no doubt that the date, time and place of occurrence could have been different. The 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. 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 evidence of PW-13 clearly shows that no date, time and proper recording have been made in the case diary.

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.

Most forthrightly, the Bench mandates in para 39 that:
On a perusal of the impugned judgment and that of the trial court in convicting the appellant, we find that the aspects discussed by us have not been looked into in a proper perspective. The appellant has certainly made out a case for acquittal. Accordingly, the conviction rendered by the High Court, confirming that of the trial court stands set aside. The appellant is acquitted of all the charges.

Finally, the Bench concludes by holding in para 40 that:
The appeal is allowed. The appellant was granted bail vide Order of this Court dated 06.04.2015. Hence, bail bonds stand discharged.

To conclude, we thus see that the Apex Court has made it indubitably clear that when police officers use case diary to refresh their memory, the accused also gets the right to rely on case diary to cross examine the police officer on that count. No doubt, this right which the accused acquires definitely cannot be arbitrarily denied to him. Very rightly so!

Sanjeev Sirohi, Advocate,
s/o Col (Retd) BPS Sirohi, A 82, Defence Enclave,
Sardhana Road, Kankerkhera, Meerut - 250001, Uttar Pradesh