In a major development, we saw how the Apex Court as recently as on May 4, 2023 in a most reasonable, robust, remarkable and recent judgment titled Dinesh Kumar vs The State of Haryana in Criminal Appeal No. 530 of 2022 and cited in 2023 LiveLaw (SC) 395 that was pronounced in the exercise of its criminal appellate jurisdiction has set aside the conviction of a murder accused on the ground that the evidence of last seen on which the conviction was based failed to make a complete chain of circumstantial evidence.

It must be noted that while allowing the appeal, the Apex Court also did not lag behind in reminding most rationally the Trial Judges of their bounden duty to participate in the trial quite effectively in a bid to elicit the truth rather than being content with just watching the proceedings like a mute spectator. We ought to note that in this regard, the Court rightly referred to Section 165 of the Indian Evidence Act, which empowers the Trial Judge to put questions during the trial. It cannot be denied that putting questions is after all the real purpose to reach to the truth of the matter.

At the very outset, this learned, landmark, latest and laudable judgment authored by Hon’ble Mr Justice Sudhanshu Dhulia for a Bench of the Apex Court comprising of himself and Hon’ble Mr Justice Sanjay Kumar sets the ball in motion by first and foremost putting forth in para 1 that:
The appellant, and one Mange Ram, were convicted in Sessions Trial No. 47 of 2000, for offences under Sections 302/364/392/394/201 read with Section 34 of Indian Penal Code (‘IPC’), by the learned Additional Sessions Judge, Jagadhri, Haryana. They were awarded life sentence under Section 302 IPC, and lesser sentence on the remaining convictions, vide order dated 11.07.2003.

The two then filed separate appeals before the Punjab and Haryana High Court. During the pendency of his appeal the coaccused Mange Ram passed away on 24.10.2004, and his appeal stood abated vide order dated 11.05.2017. The appeal of the present appellant was dismissed and the conviction and sentence of the trial court was upheld by the High Court, vide its order dated 31.05.2017. His SLP before this Court was given leave on 28.03.2022. We have heard at length, the learned senior counsel Mr. A. Sirajudeen for the appellant and Mr. Dinesh Chander Yadav, learned Additional Advocate General for the State of Haryana.

In short, it is stated in para 2 that:
The case of the prosecution is entirely based on circumstantial evidence. The ‘evidence’ of last seen and the discoveries made from the information given by the appellant.

To put things in perspective, while having a cursory look at only the key facts, the Bench then envisages in para 3 that:
The deceased Gurmail Singh was a resident of village Dhimo, District, Yamuna Nagar, Haryana. On the morning of 08.05.2000, he left his village on his tractor, for the nearby village of ‘Dadupur’, (which is at a distance of 15-20 kilometers). In Dadupur he was to meet his sister and his brother-in-law.

He was with his sister and brother-in-law between 2.00 P.M. to 5.30 P.M. on 08.05.2000 and according to his brother-in-law (PW-1) he left their house at about 5.30 P.M. on 08.05.2000. Gurmail Singh never returned to his village. Meanwhile, Harbans Singh, the brother of the deceased (the two brothers were staying together with their families in village Dhimo), goes to village Dadupur on 11.05.2000 i.e. after 3 days, to enquire from his sister about the whereabouts of their brother, when he is told that the deceased had left their house on 08.05.2000 itself at about 5.30 P.M.!

Harbans Singh then lodges the F.I.R. at P.S. Buria, District Yamuna Nagar (Haryana) at 4.00 p.m on 11.05.2000. He states in the F.I.R. that Gurmail Singh is his brother, and the two live together as a joint family in village Dhimo. Then he narrates how his brother left his village in the morning on 08.05.2000 on his tractor to meet their sister, but has since not returned. He states that while he was searching for his brother, he met his neighbor Karanjit Singh, at the petrol pump of village Dadupur, who informed him that he had seen Gurmail Singh on his tractor on 08.05.2000 at around 7.00 pm with Mange Ram and Dinesh (the two accused), who were residents of nearby villages.

He promptly went to those villages to find out about the whereabout of these two persons, when he was informed that they were missing since 08.05.2000. He then states in his F.I.R. that these two persons Mange Ram and Dinesh are known to be vagabonds and they have kidnapped his brother in order to rob him of his tractor. A case was then registered by Police on 11.05.2000 under Section 364 IPC. The body of the deceased was recovered next day i.e. on 12.05.2000, at 1.30 P.M. from a canal. The inquest was conducted the same day and the body was sent for postmortem. The post-mortem was conducted at about 4:15 P.M. on 12.05.2000 by Dr. Sumesh Garg (PW-4) and Dr. Ashok Kumar Sharma at Civil Hospital. Jagadhri.

The body was found to be swollen with the skin peeling off from many places. Rigor mortis was found to be present in all four limbs of the deceased, but was absent in the neck. Ultimately the cause of death was asphyxia due to strangulation which was antemortem in nature. Rigor mortis disappears late in bodies which are immersed in cold water. In the case at hand, the body of the deceased was recovered from a canal, and therefore the possibility that rigor mortis would still remain in the body cannot be entirely ruled out, but this has nowhere been explained.

Although the exact time when the deceased died has not come out but the prosecution case is that he was murdered by the accused (Dinesh Kumar and Mange Ram) on 08.05.2000 itself. If this is so, then the rigor mortis has remained in the body for about 90 hours, which is unusual. Moreover, the prosecution has not explained this factor, and the defense has definitely not questioned Dr. Sumesh Garg (PW4) on this aspect.

But considering the importance of this aspect this question should have been put to the prosecution and particularly to the doctor who had done the post mortem. If not by the defense then this question ought to have been put to the witness by the Court under the powers vested with the Court under Section 165 of the Indian Evidence Act, 1872 (for short ‘Act’).

Briefly stated, the Bench states in para 8 that:
As we can see the case of the prosecution rests on two circumstantial evidences: (A) The disclosure given in the police custody and the discovery on its basis and (B) The evidence of last seen in the form of PW10. In a case of circumstantial evidence, motive too is of significance. 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 42-year-old 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. The disclosure made by the appellant while in police custody, which led to certain discoveries, such as the place where the stolen tractor was abandoned, the place where the alleged crime was committed and the place where body was thrown in the canal, and also the discovery of ‘Parna’, burnt hair, wrist watch, and currency notes of Rs.250/.

While elaborating on this and on Section 27 of the Evidence Act, the Bench in this same para 8 further states that:
The above provision shows that discovery should be of a distinct fact, the fact which has been discovered by disclosure of the one in police custody. All the same, these facts were already in the knowledge of the police in the earlier discovery made by the coaccused Mange Ram. The coaccused Mange Ram was arrested on 12.05.2000 and had led to these discoveries on 12th, 13th & 14th May. The present appellant was arrested on May 14, 2000, and the alleged discoveries made by him were later in time. The discoveries which were made on the pointing out of coaccused Mange Ram cannot be read against the present appellant.

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! What remains is the discovery of currency notes, wrist watch, ‘Parna’ and hair.

The forensic report of hair only says that it belongs to ‘human’. The currency notes cannot be really identified with the deceased. What remains is the watch and the ‘Parna’, which has been identified with the deceased.

In brief, while pooh-poohing the judgment of the Trial Court, the Bench then most significantly minces just no words to hold in para 11 that:
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. The powers of a presiding judge in a criminal trial and his duty to get to the truth of the matter have been laid down in a seminal judgment of this Court authored by Justice O Chinnappa Reddy, which is Ram Chander v. State of Haryana 1981 AIR SC 1036. Justice O. Chinnappa Reddy in the said judgment refers to his earlier Judgment Sessions Judge, Nellore v. Intha Ramana Reddy, ILR 1972 AP 683; 1972 Cri LJ 1485 given by him as a Judge of the Andhra Pradesh High Court, where it was said:

Every criminal trial is a voyage of discovery in which truth is the quest. It is the duty of a presiding judge to explore every avenue open to him in order to discover the truth and to advance the cause of justice. For that purpose he is expressly invested by Section 165 of the Evidence Act with the right to put questions to witnesses. Indeed the right given to a judge is so wide that he may ask any question he pleases, in any form, at any time, of any witness, or of the parties about any fact, relevant or irrelevant. Section 172(2) of the Code of Criminal Procedure enables the court to send for the police diaries in a case and use them to aid it in the trial. The record of the proceedings of the Committing Magistrate may also be perused by the Sessions Judge to further aid him in the trial.

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. In our considered opinion the prosecution has failed to establish important links in this case which is so vital in a case of circumstantial evidence. Rigor mortis present in the body after 90 hours is unusual, though possible under certain circumstances. It was the duty of the prosecution to explain it. The defence too failed to question it and the Court remained silent.

Equally significant is what is then laid down in para 15 that:
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.

In a case where there is no direct eye witness to the crime, the prosecution has to build its case on the circumstantial evidence. It is a very heavy burden cast on the prosecution. The chain of circumstances collected by the prosecution must complete the chain, which should point to only one conclusion which is that it is the accused who had committed the crime, and none else. Each evidence which completes the chain of evidences must stand on firm grounds. In our considered opinion, the evidence placed by the prosecution in this case does not pass muster the standard required in a case of circumstantial evidence.

Finally, the Bench then concludes by holding in para 16 that:
This appeal therefore succeeds. The orders of the trial court and the High Court dated 11.03.2007 and 31.05.2017, respectively are hereby set aside. Appellant is in jail shall now be released forthwith unless his presence is required in any other case.

All told, the Apex Court while setting aside the conviction in murder case has very rightly held that Trial Judge shouldn’t be a mute spectator. It has also very rightly held that Trial Judge has duty to ask questions which it must ask freely. It thus merits no reiteration that the Trial Judges must definitely pay heed to what the Apex Court has held in this leading case so very clearly, cogently and convincingly!

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