ION Criminal Appeal No39075
Appeal by special leave from the Judgment and Order dated 271975 of Punjab  Haryana High Court in Cr A No 155474
Kapil Sibal Subhash Sharma and Ravindra Bana for the Appellant
KG Bhagat and R N Poddar for the Respondent
The Judgment of the Court was delivered by CHINNAPPA REDDY J
What is the true role of a judge trying a criminal case  Is he to assume the true role of a referee in a football match or an umpire in a cricket match occasionally answering as Pollock and Maitland1 point out the question How is that  or is he to in the words of Lord Kenning drop the mantle of a judge and assume the role of an advocate 2 Is he to be a spectator or a participant at the trial  Is passivity or activity to mark his attitude  If he desires to question any of the witnesses how far can he go  Can he put on the gloves and have a go  at the witness who he suspects is lying or is he to be soft and suave  These are some of the questions which we are compelled to ask ourselves in this appeal on account of the manner in which the judge who tried the case put questions to some of the witnesses
14 The adversary system of trial being what it is there is an unfortunate tendency for a judge presiding over a trial to assume the role of a referee or an umpire and to allow the trial to develop into a contest between the prosecution and the defence with the inevitable distortions flowing from combative and competitive element entering the trial procedure
If a criminal court is to be an effective instrument in dispensing justice the presiding judge must cease to be a spectator and a mere recording machine
He must become a participant in the trial by evincing intelligent active interest by putting questions to witnesses in order to ascertain the truth
As one of us had occasion to say in the past 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 1 With such wide powers the Court must actively participate in the trial to elicit the truth and to protect the weak and the innocent
It must of course not assume the role of a prosecutor in putting questions
The functions of the counsel particularly those of the Public Prosecutor are not to be usurped by the judge by descending into the arena as it were
Any questions put by the judge must be so as not to frighten coerce confuse or intimidate the witnesses
The danger inherent in a judge adopting a much too stern an attitude towards witnesses has been explained by Lord Justice Birkett People accustomed to the procedure of the Court are likely to be over awed or frightened or confused or distressed when under the ordeal of prolonged questioning from the presiding Judge
Moreover when the questioning takes on a sarcastic or ironic tone as it is apt to do or when it takes on a hostile note as is sometimes almost inevitable the danger is 15 not only that witnesses will be unable to present the evidence they may wish but the parties may begin to think quite wrongly it may be that the judge is not holding the scales of justice quite eventually1 In Jones vs National Coal Board Lord Justice Denning observed The Judge s part in all this is to hearken to the evidence only himself asking questions of witnesses when it is necessary to clear up any point that has been over looked or left obscure to see that the advocates behave themselves seemly and keep to the rules laid down by law to exclude irrelevancies and discourage repetition to make sure by wise intervention that he follows the points that the advocates are making and can assess their worth and at the end to make up his mind where the truth lies
If he goes beyond this he drops the mantle of the judge and assumes the role of an advocate and the change does not become him well
 We may go further than Lord Denning and say that it is the duty of a judge to discover the truth and for that purpose he may ask any question in any form at any time of any witness or of the parties about any fact relevant or irrelevant Sec
165 Evidence Act
But this he must do without unduly trespassing upon the functions of the public prosecutor and the defence counsel without any hint of partisanship and without appearing to frighten or bully witnesses
He must take the prosecution and the defence with him
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 old 
Let us now take a look at the facts of the case before us
Ram Chander and Mange were tried by the learned Additional Sessions Judge Jind for the murder of Dunni
Both were convicted under Sec
302 read with Sec
34 Indian Penal Code and sentenced to imprisonment for life
On appeal the High Court acquitted Mange but confirmed the conviction of Ram Chander
The prosecution case was that on February 14 1974 at about 11 am Dunni was proceeding from his field towards the village Sucha Khera and was 16 passing near the field of Ram Chander and Mange when he was attacked by them with Jatus wooden pegs fixed to a cart
They inflicted several injuries on Dunni
Mewa PW9 who was working in his field tried to rescue Ram Chander
He was given a lathi blow on his head
On hearing the alarm raised by Dunni Hari Chand PW8 and Jiwana PW2 and others came there and witnessed the occurrence
The assailants ran away
Jiwana the Lambardar proceeded to the village to inform the relatives of Dunni
On the way he met Dhan Singh PW 10 and told him about the occurrence
Jiwana thereafter went to the Police Station at Narwana and lodged the First Information Report at about 515 pm
The Sub Inspector of Police went to the village
He held the inquest and sent the dead body for post mortem examination
He looked for Mewa and Hari Chand
Both of them were not available in the village
A constable was sent to fetch them from Sucha Khera
Neither of them was brought that night
Next morning he was able to examine Mewa but Hari Chand was not to be found
Hari Chand was finally examined on 16th
The Doctor who conducted the autopsy found thirteen injuries on the body of Dunni
There were fractures of the left partial frontal and occipital bones
According to the Doctor that was due to compression of brain with multiple fractures of skull
On February 15 1974 at about 4 PM the Doctor also examined Mewa and found on the right side of his head an abrasion 1 x 14
In support of its case the prosecution examined PWs 2 8 and 9 as eye witnesses to the occurrence
PW 10 was examined to speak to the information alleged to have been given to him by PWs 2 and 8 that the deceased had been beaten by the two accused persons
PW 2 did not support the prosecution case and was declared hostile
PWs 8 and 9 the remaining eyewitnesses seemingly supported the prosecution case in varying degrees in the examination in chief but they made some damaging admissions in cross examination
PW 9 even in examination in chief stated that Mange was not armed with any weapon though he was present alongwith Ram Chander
The learned Sessions Judge convicted both Ram Chander and Mange but having regard to the evidence of PW 9 the High Court acquitted Mange and confirmed the conviction of Ram Chander
It was argued by Shri Kapil Sibal learned Counsel for the appellant that in view of the several statements made by PWs 8 and 9 in their cross examination their evidence should not have been 17 accepted by the Courts below
Shri Sibal also submitted that the accused did not have a fair trial as the learned Sessions Judge particularly assumed the role of a Prosecutor
Hari Chand PW 8 said in his examination in chief that when he was working in his field he heard a noise from the side of the field of Mange
He and Jiwana PW 2 went in that direction
From a distance they saw Mange and Ram Chander giving blows to Dunni with dandas
By the time they went near Ram Chander and Mange ran away
They saw Mange tying a piece of cloth round the head of Dunni
Dunni was bleeding and was hardly able to breathe
They went to the village to inform the people about the occurrence
On the way they met PW 10 and told him about Dunni
having been beaten by the two accused
Later that day he went to Sucha Khera for official work
The police examined him on 16274
We have already referred to the circumstance that he was not available for examination by the Police on 14th and 15th
He sought to explain his absence from the village by stating that he went to Sucha Khera in connection with his official work
In cross examination he admitted that he did not mention this fact in the Roznamcha daily diary
He also admitted that the village Sucha Khera was not within his jurisdiction
He further admitted that the notice for serving which he went to Sucha Khera was with regard to water shoot No 14750 at Sucha Khera
In answer to a question whether he only saw the accused running away or doing something else he categorically stated that he did not see those persons causing injuries but only saw them running away
Thereupon the Sessions Judge told him that in his examination in chief he had said that he had seen Mange and Ram Chander causing injuries and that if he made inconsistent statements on material points he could be prosecuted for perjury
The Sessions Judge has made a note to this effect in the deposition itself
In answer to a further question PW 8 stated that when they were running away their backs were towards him
The Sessions Judge once again repeated the warning which he had given earlier
The Sessions note with regard to the first warning is in the following words The witness has been explained right here his statement which has gone on record and he has been told that in examination in chief he has said that he had seen Mange and Ram Chander causing injuries
He had also been informed that 18 a person can be prosecuted for perjury if on material points in consistent statements are made
 The second warning which was given by the learned Sessions Judge has been recorded by the learned Sessions Judge in the following words As was pointed out to you yesterday also it is once more pointed out to you that in examination in chief yesterday you clearly stated before the Court that you saw Ram Chander and Mange causing injuries to Dunni
Later on in cross examination by Shri Shamsher Singh you said that you saw the accused persons running away
You have already been warned about the consequences of inconsistent replies
Without fear or favour tell the Court which of the two statements is correct and whether you saw Mange and Ram Chander causing injuries to Dunni or not
 To this question the answer of the witness was that when he was at some distance he saw them causing injuries but by the time he went near they had run away
P W 9 stated even in his chief examination that when he saw Mange and Ram Chander they were running in the direction of Denuda
Ram Chander had a danda
Mange was empty handed
They started beating a person who was coming from Denuda side
He tried to rescue the person
He was given a blow on his head with a stick
He felt giddy and sat down
He did not know what happened afterwards because he was feeling faint
He came to his senses when Lambardar and Patwari came there
Then he went to his village
He stated in cross examination that on 15th he was called by the Police and taken to the field and from the field he was taken to Narwana where he was kept in the Police Station upto 16th
He was allowed to go away after his statement was recorded by the Magistrate under section 164 Cr
Procedure Code
Jiwana was also there at that time
When he was asked whether the statement which he made to the Magistrate was tutored his reply was Yes the statement was told
Later again he said I gave the statement as told by the police He stated that he was not beaten but only threatened
He further stated that the day before he gave evidence in Court he was threatened by the Police that if he did not give the statement he would himself be involved in a case
He also said that he wanted to say whatever he actually saw but the police did not agree and said that he must give the entire statement as mentioned by them
During the course of the cross examination of 19 the witness the learned Sessions Judge made two notes which may be extracted here
The first note runs This time the witness says that the police said that the police will make a case against him
Previously the witness was not prepared to go to that extent
I wonder whether the witness understands the difference between two things namely that the Police will make a case against him and between this that if he changed his statement he will involve himself in a case
The matter to be appreciated at appropriate stage
The second note is as follows I will examine the witness through Court questions as to which part of the statement he admits to be correct without fear of the police
The learned defence counsel may proceed further to build up his defence
 Thereafter the learned Sessions Judge himself put some questions to the witness
The witness said that he did not tell the Magistrate that he was making the statement under the pressure of the Police
The learned Sessions Judge then put him the following question You have said that even before me you are making a statement under the pressure of the police
Please state whether you mean it
and you were giving the statement under pressure of the police
 The answer was that I am giving the statement freely
 The learned Sessions Judge put him a few more questions one of which was whether he was honestly stating that Mange was bare headed and Ram Chander had a dunda
The witness answered that he said so honestly
The questions put by the learned Sessions Judge particularly the threats held out to the witnesses that if they changed their statements they would involve themselves in prosecutions for perjury were certainly intimidating coming as they did from the presiding judge
The learned Sessions Judge appeared to have become irate that the witnesses were not sticking to the statements made by them under sections 161 and 164 and were probably giving false evidence before him
In an effort to compel them to speak what he thought must be the truth the learned Sessions Judge very wrongly in our opinion firmly rebuked them and virtually threatened them with prosecutions for perjury
He left his seat and entered the ring we may say
The principle of fair trial  was abandoned
We find it impossible to justify the attitude adopted by the Sessions Judge and we also find it 20 impossible to accept any portion of the evidence of PWs 8 and 9 the two alleged eye witnesses
Shri Bhagat very ingeniously argued that the evidence of PWs 8 and 9 could yet be acted upon to the extent their evidence was substantiated by the first information report given by PW2
When we pointed out that neither PW 8 nor PW9 was the author of the first information report and therefore the report could not be used to corroborate their evidence Shri Bhagat suggested that we could do so by invoking the provisions of Section 11 of the Evidence Act
He relied upon the following observations of Beg J in Ram Kumar Pande vs The State of Madhya Pradesh 1 No doubt an FIR is a previous statement which can strictly speaking be only used to corroborate or contradict the maker of it
But in this case it had been made by the father of the murdered boy to whom all the important facts of the occurrence so far as they were known up to 915 pm on 23 3 1970 were bound to have been communicated
If his daughters had seen the appellant inflicting a blow of Harbinder Singh the father would certainly have mentioned it in the FIR We think that omissions of such important facts affecting the probabilities of the case are relevant under Section 11 of the Evidence Act in judging the veracity of the prosecution case
Beg J apparently had the first part of Section 11 in mind and thought that the presence of the daughters at the scene was inconsistent with the failure of the father to refer to their presence in the first information report having regard to the circumstances under which the report must have been made
Even assuming that under certain circumstances it is permissible to use the first information report under the first part of Section 11 we say nothing about the correctness of the view there is in the present case no question of invoking the first part of Section 11 which is inapplicable since the first information report is now not sought to be used as being inconsistent with the prosecution case
Nor do we think that the first information report can be used by resort to the second part of section 11 The Evidence Act contains detailed provisions dealing with statements of persons who cannot be called as witnesses and former statements of persons who are called as witnesses
These 21 provisions would appear to become redundant if the evidence of a witness is to be tested and accepted or rejected with reference to the former statement of another witness on the ground that such former statement renders the evidence highly probable or improbable
We can do no better than to refer to Stephen the framer of the Section who said It may possibly be argued that the effect of the second paragraph of Section 11 would be to admit proof of such facts as these viz statements as to facts by persons not called as witness transactions similar to but unconnected with the facts in issue opinions formed by persons as to facts in issue or relevant facts
It may for instance be said A not called as a witness was heard to declare that he had seen B commit a crime
This makes highly probable that B did commit that crime
Therefore A s declaration is a relevant fact under Section 11 this was not the intention of the section as is shown by the elaborate provision contained in the following part of Chapter 11 Sections 31 to 39 as the particular classes of statements which are regarded as relevant facts either because the circumstances under which they are made invest them with importance or because no better evidence can be got
The sort of facts which the section was intended to include are facts which either exclude or imply more or less distinctly the existence of the facts sought to be proved
We therefore do not think that section 11 may be invoked in the present case in the manner suggested by the learned counsel
In the result we accept the appeal set aside the conviction and sentence and direct the appellant to be set at liberty forthwith
VDK Appeal allowed


Summary:
The appellant Ram Chander and Mange were tried by the learned Additional Sessions Judge Jind for the murder of Dunni
Both were convicted under section 302 read with section 34 Indian Penal Code and sentenced to imprisonment for life
On appeal the High Court acquitted Mange but confirmed the conviction and sentence of Ram Chander
In appeal by special leave it was contended that the conviction and sentence were vitiated as the principle of fair trial was abandoned by the Sessions Judge who rebuked the witnesses and threatened them with prosecution for perjury and based his conviction on such extorted evidence
Allowing the appeal the Court  HELD 1 1
If a Criminal Court is to be an effective instrument in dispensing justice the presiding judge must cease to be a spectator and a mere recording machine
He must become a participant in the trial by evincing intelligent active interest by putting questions to witnesses in order to ascertain the truth
The Court has wide powers and must actively participate in the trial to elicit the truth and to protect the weak and the innocent
It is the duty of a judge to discover the truth and for that purpose he may ask any question in any form at any time of any witness or of the parties about any fact relevant or irrelevant
But this he must do without unduly trespassing upon the functions of the public prosecutor and the defence counsel without any hint of partisanship and without appearing to frighten coerce confuse intimidate or bully witnesses
He must take the prosecution and the defence with him
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 old
 F Sessions Judge Nellore vs Intna Ramana Reddy and Anr
 ILR  approved
Jones vs National Coal Board   quoted with approval
In the instant case the questions put by the learned Sessions Judge particularly the threats held out to the witnesses that if they changed their statements they would involve themselves in prosecution for perjury were certainly intimidating coming as they did from the presiding judge
In an effort to compel 13 the witnesses to speak what he thought must be truth the learned Sessions Judge very wrongly firmly rebuked them and virtually threatened them with prosecutions for perjury
He left his seat and entered the ring
The principle of fair trial was abandoned
19 F H 2
The Evidence Act contains detailed provisions dealing with statements of persons who cannot be called as witnesses and former statements of persons who are called as witnesses
These provisions would appear to become redundant if the evidence of a witness is to be tested and accepted or rejected with reference to the former statement of another witness on the ground that such former statement renders the evidence highly probable or improbable
Even assuming that under certain circumstances it is permissible to use the first information report under the first part of section 11 there is in the present case no question of invoking the first part of section 11 which is inapplicable since the first information report is now not sought to be used as being inconsistent with the prosecution case
Nor can first information report be used by resort to the second part of section 11
20 H 21 A 20 F G Ram Kumar Pande vs The State of Madhya Pradesh   522 discussed