Holding

Section 165 of the Evidence Act confers on the trial judge the power to ask any question, even during cross‑examination, to discover truth, and the other evidentiary objections raised by the defence are untenable.

Summary

The Supreme Court examined an appeal by the State of Rajasthan against the acquittal of six accused in a double murder case. The trial judge had interjected during the cross‑examination of an injured eyewitness (PW‑3) to clarify a confusion, which the High Court held improper. The Supreme Court held that under Section 165 of the Evidence Act the trial judge has unrestricted power to ask any question, even during cross‑examination, to elicit truth. It further ruled that a discrepancy in the time of recording the FIR does not invalidate the eyewitness’s testimony, and that an injured witness’s evidence cannot be rejected merely because his name was omitted from the FIR. The Court restored the conviction and sentence of four respondents who were positively identified, while the two not identified by the witness continued to benefit from doubt. The appeal was allowed and the High Court’s order of acquittal set aside for the four convicted.

Issues considered

Whether a trial judge may interject and ask questions during the cross‑examination of a witness under Section 165 of the Evidence Act, 1872.
Whether a discrepancy in the time of recording the First Information Report affects the credibility of an eyewitness.
Whether the testimony of an injured witness can be rejected because his name was not mentioned in the FIR.
Whether identification of accused not named in the FIR but identified by a witness is sufficient for conviction, and the applicability of the benefit of doubt to un‑identified accused.

Legislation cited

Code of Criminal Procedure, 1973s. 154
Indian Evidence Act, 1872s. 165, s. 9
Indian Penal Code, 1860s. 149, s. 302, s. 307, s. 326

Subjects

Trial judge powersSection 165 Evidence ActCross‑examinationEyewitness testimonyFIR discrepancyInjured witnessIdentification of accusedBenefit of doubtConviction restorationCriminal evidence

Judgment

)

STATE OF RAIASTHAN A
. v.
-I ANI @ HANIF AND ORS.
1
I JANUARY 13, 1997

(DR. A.S. ANAND AND K.T. THOMAS, JJ.] B
··<!'

Criminal Law: Evidence Act, 1872 : Section 165 :

Trial Judge-Powers and duty of-:-:Tlial Judge interjected dwing cross-
examination of a witness to get a confusion in his mind cleare~Held: the
tlial Judge was within his powers in so inte1jectin15The trial Judge had vast
c
and unrestlicted powers to put any question in any f omi at any stage, to any
witness, to elicit the trntlt-Judge remaining mute dwing t1ial was not an ideal
situation-He was expected to actively participate in the trial.
,y Oiminal Procedure Code, 1973 _: Section f54. D
Oiminal Trial-Appreciation of evidence-!11jured eye witness stated in
FIR that it was recorded in the evening-Whereas police version was that it
was recorded i11 the moming-He/d: this discrepancy, 011 the facts of the case,
was 1101 enough to cascade the testimony of an important eye witness, whlse
presence at the spot could not be doubte~The maximum consequence was E
that the First lnfonnation Statement could not be used to corroborate tile
evidence of tile maker of it.
~
Criminal Trial-Appreciation of evidence - FIR - name of injured eye
witness not mentioned in FIR as one of those present duri11g tile incident -
Held: Evidence of such injured eye witness could not be rejected merely F
because of no11-mention of his name i11 FIR-77te conditio11 of the maker of
the FIR and whether he was in a positio11 to reproduce the vivid details of
the occu1Tence, should be bome in mind.

Penal Code, 1860: Sections 302, 307 and 326.
G
-~ Crimi11al Trial-Appreciation of evide11ce--Murde1~PW-3, a11 injured
eye witness, ide11tified all six accused in court as assailants-But in FIR filed
by him only names offour accused were me11tio11ed but not the n,antes of the
remaining two accuse~PW-3 not involved in test identification
parade--Held the two accused were entitled to benefit of doubt and were H
199
~
\.

200 SUPREME COURT REPORTS [1997) 1 S.C.R.

A rightly acquitted by High Court-But High Court erred in setting aside convic- +
tion recorded by tlial court against these four accused, overlooking the·
evidence of PW-3 and other important witnesses examined by the •prosecu-
tio11_:_Accordingly, the conviction and sentence passed by trial court against
these four accused restored--Evidence Act, 1872, S.9.
""
B The respondents-accused were convicted by the Sessions Court
under Sections 302, 307 and 326 read with Section 149 of the Indian Penal
)i·
Code, 1860. But the High Court, on appeal by the respondents, acquitted
them all. Hence this appeal.

c travelling
..According to the prosecution, the deceased along with PW-3 were
in a bus for reaching the Court where they had to appear as
accused in a case. Their uncle, PW~ is, was also travelling with them. When
the bus halted at a stop, the respondents variously armed with swords and
hatchets boarded the bus and shot at the deceased and PW-3. The respon-
dents dragged the deceased and PW-3 out of the bus and showered blows
D on t~em. The deceased died at the spot, but PW-3 was saved by prompt '(,
·medical attention. The DIG and his staff Officer, PW-11, who were going
by that way in a car saw the respondents armed witb swords and hatchets
and PW-11 identified them. A First Information Report (FIR) was lodged
and a_ post-mortem was held. The respondents were arrested and in-
E criminating articles were recovered from them.
On behalf of the appellants It was contended that the High Court
had overlooked the evidence of PW·3 and other important witnesses ex·
amined by the prosecution.
~

F .On behalf of the respondents it was contended that it was improper
for the Trial Judge to have interjected during the cross-ex:aminatio" of
PW-3; that PW-3 stated that the FIR was recorded in the eveniag whlle the
police version was that it was recorded in the morning and there was a
discrepancy in his evidence; and that the evidence of the injured witness,
PW-18, must be rejected since his name was not mentioned in the FIR as
G
one of those present during the incident.

~
Allowing the appeal, this Court

HELD: 1.1. Section 165 of the Evidence Act, 1872 confers vast and
H unrestricted powers on the trial court to put "any question he pleases, in any
)

STATE v. ANI@ HANIF 201

torm, at any time, of any witness, or of the parties, about ally fact relevant or ·A ·
irrelevant" in .order to discover relevant facts. The said section was framed
by lavishly studding it with the word "any" which could only" have been
inspired by the legislative intent to confer unbridled power on the trial court
to use the po~i' whenever he deems it Inecessary .
to elicit trnth. Even
'
if any
such question crosses into irrelevance the same would not transgress B
beyond the contours of powers of the court. This is clear from the words
"relevant or irrelevant" in Section 165. Neither of th~ parties has any right
to raise ob,jection to any such question. [205-G-H, 206-A]

1.2. Reticence may be good in many circumstances, but. a judge
remaining mute during trial is not an ideafsituation. A ta~iturn. Ju4ge ,.C . :
may be the moilel caricatured in public mind~ But th~re is nothing wr~ng
in his becoming active or dynamic during trial so th.at ~riminal just.ice
being the end could be achieved. Criminal trial should not turn out to be
a bout or combat between two rival sides. with the judge perfon,ning the
role only of a spectator or even an umpire to pronounce finally who won ·D · 1
the race. A judge is expected to actively participate in the trial, elicit ·
necessary materials from witnesses at the appropriate context, which he ..
feels necessary for reaching the correct conclusion. There is nothing, which
inhibits his power to put questions to the witnesses, either dlll'ing chief
examina~ion or. cross-examination or even during re-i!xamination to elicit ·.
truth. The coroiiiiry of it is that If a judge felt that a witness has committed. E
an error or a slip it ls the duty of the judge to ascertain whether it was so,
for, to err ls human and the chances of erring may accelerate under stress
of nervousness during cross-examination. Criminal justice is not to be
founded on erroneous answers spelled out by witnesses during evidence
collecting process. It is a useful exercise for trial judge to remain active F
and alert so that errors can be minimised. [206-B·E]

Ram Chander v. State of Haryana, AIR (1981) sc'to36, relied on. '

1.3. When the trial judge noticed that PW-3 was in a bit of confusion
G ..
during cross-examination he put a question to get the confusion clarified.
If the witness has corrected an error slipped out of his tongue there is no
justification terming his evidence as "not believable", particularly since the
High Court has found that presence of PW-3 at the scene of occurrence
during the relevant time is indisputable. In the instant case, th~re was'
nothing wrong in the trial court interjecting during cross-examination of H
' '
202 SUPREME COURT REPORTS [1997) 1 S.C.R.
,,._
A PW-3 with a view to ascertain the correct position. [205-E, 207·A]
2.1. The discrepancy regarding the time of recording First Informa-
tion Statement, on the facts of this case, is not enough to castigate the
testimony of an important eyewitness, whose presence at the spot cannot in
any way be doubted. The maximum consequence, which such discrepancy
B may visit on the facts of this case, is that the First Information Statement
cannot be used to corroborate the evidence of the maker of it. [207-C-D]

2.2. The evidence of the injured witness PW-18 cannot be rejected
merely because PW-3 did not name him in the FIR. The condition of the
maker of the First Information Statement should be borne in mind •
c whether he was in a position to reproduce the vivid details of the occur·
rence including making reference to all the persons who would have
witnessed the occurrence. [207-G-H; 208-A]

2.3. The injured witness, PW-3, correctly identified all the six accused
D in court as the assailants. But in the FIR filed by him only the names of
-.' -
four accus.ed were mentioned but not the names of the remaining two
accused. The Police did not involve PW-3 in the test identification parade.
Hence, the two accused were entitled to benefit of doubt and were rightly
acquitted by the High Court. But the High Court erred In setting aside the
conviction recorded by tllte trial court against these four acc11s,.J overlook·
E Ing the evidence of PW·3 and other important witnesses examined by the
prosecution. Accordingly, the conviction and sente!lce passed by the trial
court against these four accused Is restored. [208-G·H, 209·A·B]

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 'r--
F 1533 of 1995.
1
. From the Judgment and Order dated 13.3.92 of the Rajasthan High
Courtin D.B. Crl.A. No. 447 of 1987.

K.S. Bhati for the Appellant.
G
Sushi! Kumar and Shakil Amhed Syed for the Respondents.
j
)· j
The Judgment of the Court was delivered by

THOMAS, J. It was a jmxed bus journey for Phool Chand and ·I
H Dwarkalal as both of them were murdered by armed assailants and also
I

-~
I
I'
)

STATEv.ANI@HANIF (TIIOMAS,J.) 203

4'. for Badri Lal (PW-3) who too was travelling in the same bus. However, A
Badri Lal survived despite being badly managed by the assailants. The case
was registered on his complaint and the present six respondents were
challanned by the police for various offences. Sessions Court convicted
them under Sections 302, 307 and 326 read with Section 149 of the Indian
Penal Code besides other lesser .offences relating to unlawful assembly.
But High Court of Rajasthan, on appeal by the respondents, acquitted
B
them all. This appeal by special leave has been filed by the State of
Rajasthan challenging the said order of acquittal.

The double murder happened around 8.00 a.m. on 23.12.1983 at
Simalia (Kota District). Prosecution case is, shortly, this : Badrilal (PW3) c
along with brother Phool Chand and Dwarkalal were travelling in a bus for
reaching the court where they had to appear as accused in the case. His
uncle Gopal (PW18) was also travelling with them. When the bus reached
Simala some passengers went out for tea break. Respondents variously
armed with swords and hatchets etc. boarded the bus at that stop and
unleashed a blitz on Phool Chand, Dwarkalal and Badri Lal with the D
-Ii-
weapons. They dragged Phool Chand and Dwarkalal out of the bus and
continued to shower blows on them. As the victims became motionless they
turned to Badri Lal and dragged him also out of the bus and showered him
with blows, Respondents left the place when Badri Lal became motionless.
Phool Chand and Dwarkalal died at the spot, but since Badri Lal was not E
destined to die he was escorted to the hospital where his life was saved by
prompt medical attention.

DIG of Kota region Shri Shankar Sharan was going by that way in a
--.; car with a constable Ram Kumar (PW-11). As they reached the spot where
the incident took place they heard from the people of a blurred account F
of what happened. So the DIG made arrangement for immediate am-
bulancing of Badrilal to the hospital. He sent a wireless message to
Sultanpur Police Station and pursuant to it SHO PW-22 (Aasu Singh)
reached the spot. He recorded the statement of PW-25 at .9.25 A.M. which
was used for preparing FIR in this case; G
Respondents were arrested on 26.12.1983 and the police recovered
~1 incriminating articles on the strength of informations elicited from them.

Dr. Shivachandra Misra (PW-9) who conducted the autops}> on the
~ dead bodies of the two deceased has described the injuries found on them. H
204 SUPREME COURT REPORTS [1997] 1 S.C.R.

A Among the injuries perforation on the carotid artery on both the deceased
became the cause for their instantaneous death. Dr. Chander Mohan
Sriyastava (PW-13) examined Badri Lal on the same day and found six
inci~ed injuries besides some fractures.

' There is no dispute that. Phool Chand md Dwarkalal as also. Badri
B Lal (PW-3) were subject to a violent attack at the bus stop of Samalia on
the n1orning hours on 23.12.1983. Respondents only disputed about their
involvement in the incident. So the crucial question which High Court had
to consider was whether appellants were the assailants who launched attack
on. the deceased and injured. Learned Judges found that it was not possible
. C to attach credence to the testimony of Gopal (PW-18) and Badrilal (PW-3).
Learned counsel who argued for the State of Rajasthan contended that the
said finding was the result of misreading the evidence and a consequence
of oyer-looking the testimony of an important witness Ram Kumar (PW-
11).

D .. PW-3 (Badri Lal) has stated in his evidence that all the six respon-
dents went to the bus armed with swords and hatchets and he mentioned
the different roks played by each respondent it this gory incident. But in
the first information statement he named first resp9ndent Hanifa, third
respondent Gani Mohd., fifth respondent Abdul Kayam @ Babu and sixth
E respondent Guddu @ .Guddi, and not the names of second respondent
(Abdul Salim)· and fourth respondent (Ishak Mohd.) though he said that
there were two other assailants also whose names he did not know. He was
not subject to any test identification parade and therefore, we do not have
the advantage of Badri Lal's earliest version identifying second and fourth
respondent.
F
The motive alleged PW-3 (Badri Lal) for this planned onslaught was
the murder of Hameed - the eldest brother of the respondents. It is not \
disputed that Phool Chand and.Dwarka Lal (the deceased) and Badri Lal
were the accused in that murder case.
'
G The High Court, having found that presence of PW-3 at lhe place of
occurrence has been indisputably established, sidelined his testimony with (
a sweeping remark that it is "full of contradictions, inconsistencies and
impr~babilities". Learned Judges did not cite a single material from PW-3's
nar~ation of the occurrence as proof of inconsistency. Of course it is
H poi~ted from the evidence of PW-3 that appellants had covered their faces
)

STATEv.ANl@HANIF [THOMAS,J.] 205

and subsequently PW-3 has corrected it when the court put a question on A
that aspect. In the deposition of PW-3 the following questions and answers
have been recovered as part of cross- examination :

Question : The correct thing is that those assaulters covered their faces
and hence you could not recognise who had beaten whom?
B
Answer: This is correct that the persons who came with the intention
of killing had covered their faces.

The trial Judge then put a question as this :

Question : Once you have stated that the accused persons had covered C
their faces and then you have stated that they were not
covering their faces. Which is the correct statement qut of
those two?

Answer: Nizam met me on the way and his face was covered. But the
persons who boarded the bus had never covered their face. D
Learned Judges of the High Court have observed that the said explanation
offered by PW-3 is not believable at.all. When the trial judge noticed that
PW-3 Badri Lal was in a bit of confusion during cross-examination he.put
a question to get the confusion clarified. If the witness has corrected an E
error slipped out of his tongue there is no jurisdiction terming his evidence
as "not at all believable", particularly since the High Court has found that
presence of PW-3 at the scene of occurrence during the relevant time is
indisputable.

Shri Sushi! Kumar, learned senior counsel criticised the manner in F
which the trial judge had put the question. Counsel snbmitted that when
the cross-examiner has successfully elicited a pivotal answer from PW-3 it
was improper for the court to have interjected to upset the trend.

We are unable to appreciate the abO'le criticiml. Section 165 of the
Evidence Act confers vast and umestricted powers on the trial court to put G
"any question he please$, in any fOt"IB, at any time, of any witness, or of the ·
parties, about any fact relevant or irrelevant" in order to discover relevant
facts. The said section was framed by lavishly studding it with the word·
"any" which could only have been inspired by the legislative intent to confer
unbridled power on the trial court t~ use the power whenever he deems it H
206 SUPREME COURT REPORTS [1997) 1 S.C.R.

A necessary to elicit truth. Even if any such question crosses into irrelevancy
the same would not transgress beyond the contours of powers of the court.
This. is clear from
. the words "relevant or irrelevant" in Section 165. Neither
of the parties has any right to raise objection to any such question.

Reticence may be good in many circumstances, but a judge remaining
B mute during trial is not an ideal situation. A taciturn Judge may be the
model caricatured in public mind. But there is nothing wrong in his
becoming active or dynamic during trial so that criminal justice being the
end could be achieved. Criminal trial should not turn out to be a bout or
combat between two rival sides with the judge performing the role only of
C a spectator or even an umpire to pronounce finally who won the race. A
judge is expected to actively participate in the trial, elicit necessary
materials from witnesses at the appropriate context which he feels neces-
sary for reaching the correct conclusion. There is nothing which inhibits
his power to put questions to the witnesses, either during chief examination
or cross-examination or even during re-examination to elicit trnth. The
D corrollary of it is that if a judge felt that a witness has committed an error
or aslip it is the duty of the judge to ascertain whether it was so, for, to
err is human and the chances of erring may accelerate under stress of
nervousness during cross-examination. Criminal justice is not to be founded
on ~rroneous answers spelled out by witnesses during evidence collecting
E process. It is a useful exercise for trial judge to remain active and alert so
that errors can be minimised.

In this context it is apposite to quote the observations of Chinnappa
Reddy, J. in Ram Chander v. The State of Haryana, AIR (1981) SC 1036 :

F "The adversary system of trial being what is is, there is an unfor-
tunate 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 elements enter-
ing the trial procedure. If a Criminal Court is to be an effective
G
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 question to witnesses in order to ascertain the truth."

H We respectfully concur with the aforesaid observations. We find no wrong
STATE v. ANI@ HANIF (THOMAS, J.) '207.

in the trial court interjecting during cross-examination of PW-3 with a view A
to ascertain the correct position.

Another reason advanced by the High Court for jettisoning the
evidence of PW-3 - Badri Lal - is that he did not concur with the police
version that the First Information Statement was recorded at 9.55 AM.
True PW-3 said that his statement was recorded by the police during B
evening. Learned counsel who argued for the State of Rajasthan submitted
that PW-3 (Badri Lal) would have lost his sense of time in the agony of
excruciating pain suffered· by him on account of serious injuries sustained.
We are of the view that the discrepancy regarding the time of recording
First Information Statement, on the facts of this case, is not enough to C
castigate the testimony of an important eye witness, whose presence at the
spot cannot in any way be doubted. The maximum consequence which such
discrepancy may visit, on the facts of this case, is that the first Information
Statement cannot be used to corroborate the evidence of the maker of it.

In this context we may refer to the testimony of PW-18 Gopal. That D
witness had identified the appellants as the 1155ailants in the incident in a
test identification parade conducted by a Judicial Magistrate of 1st Class
(PW-12). But the High Court did not accept his evidence for the main
reason that his name was absent in the First Information Statement and
further that the appellants after arrest, were paraded openly which would E
have impaired the value of the test identification parade considerably.

P-18 - Gopal is none other than the uncle of Phool Chand and was
staying with his nephew and he stated that on the date of occurrence he
too accompanied his nephew who was proceeding to appear in the court
for the case. PW-18 said that when the incident stated he tried to protect F
the injured by catching hold on one of the weapons used by the assailants
and that resulted in an injury on his palm. Dr. Shivchandra Mishra (PW-9)
had examined PW-18 on 24.12.1983 and found a skin deep incised wound
of lxl/18 inches on his left thumb.· Learned Sessions Judge found the
evidence of PW-18 quite believable.
G
We are of the view that the evidence of PW-18 Gopal should never
have been rejected merely because Badri Lal did not name him in the first
Information Statement. The condition of the maker of the First Information
Statement should have been borne in mind - whether he was in a position
to reproduce the vivid details of the occurrence including making reference H
208 SUPREME COURT REPORTS (1997] 1 S.C.R.

A to all the persons who would have witnessed th<" occurrence. Similarly the.
defence contention that accused were openly pai ctded by the police is not ·
supported by any reliable material on evidence.

We cannot overlook the evidence of yet another important witness
in this case,- PW-11 - Ram Kumar. He was the staff officer on duty
B attached to the DIG of Police. He reached the place of occurrence along
with the DIG soon after the occurrence as they were proceeding to some
other place on this route. They saw the two deceased and the injured
~PW-3) lying near the bus and got an account from the people crowded
there as to what had happened. After sending a wireless message to Kota
C Central Control Room the DIG and PW-11 proceeded towards Bhonsa
village and found a bullock-cart on the way in which respondents were
travelling. As they were armed with swords and hatchets, DIG advisedly
chose for re-inforcement of police personnel for nabbing the armed men
and hence they went to the nearest police station and with a posse of police
D proceeded to village Bhonsa. But unfortunately during this interval the
assailants escaped. This is the substance of the evidence of PW-11.

No doubt there is scope for criticism that if the DIG had been more
discreet he could have succeeded in nabbing the miscreants on the same
day. But that is a different matter altogether. The fact remains that DIG
E. and PW-11 cc:J!d see the armed persons and PW-:i.1 identified the respon-
dents in this case as those armed persons. Unfortunately the High Court
has overlooked this very important piece of evidence.

About the evidence relating to recovery of blood-stained swords,
hatchets and shoes ·pursuant to the information elicited from the respon-
F dents after the arrest the High Court observed that the same could be used
only for corroborative purpose. However, the High Court did not dissent
from the trial court's view regarding its reliability.

In the light of the above reasoning we have absolutely no doubt that
G PW-3 (Badrilal) has correctly identifiedA-1 the first respondent - Hanif,
3rd respondent Gani Mohammed, 5th respondent Abdul Duayum @ Babu
and 6th respondent Guddu @ Guddi, whose names he mentioned in the
First Information Statement. H-0wever, we find Weight for the COJ1tentioo
of learned counsel that PW-3's evidence is not sufficient te establish the
case against second and fourth respondents (Abdul Salim and Ishaq
H Mohammad) who were not named by him in the First Information State-
STATE v. ANI @ HANIF [THOMAS, J.) 209

· ment. Police did not involve PW-3 in the test identification parade. We are, A
therefore, persuaded to _give benefit of the said doubt to those respondents.

Resultantly, we set aside the order of acquittal passed by the High
Court as for first respondent - Hanif, 3rd respondent - Gani Mohammad,
5th respondent - Abdul Duayum @ Babu and 6th respondent - Guddu @
Guddi a~e concerned. The conviction and sentence passed by the sessions . B
court on those respondents are hereby restored. We direct the Sessions
Judge, Kota to take immediate steps to put those respondents back in jail
for undergoing the sentence passed on, them.

\r.s.s. Appeal allowed.