Accused has a right to cross-examine Police Officer as to the recording made in case diary whenever the Officer uses it to refresh his memory, rules Apex Court
Justices M.M. Sundresh & S.V.N. Bhatti [26-02-2024]

Read Order: SHAILESH KUMAR v. STATE OF U.P. (NOW STATE OF UTTARAKHAND) [SC- CRIMINAL APPEAL NO(s). 684 OF 2012]

Tulip Kanth

New Delhi, February 29, 2024: While placing reliance upon its judgment in Lalita Kumari v. Government of Uttar Pradesh & Others [LQ/SC/2013/1244], the Supreme Court has asserted that General Diary Entry cannot precede the registration of FIR, except in cases where preliminary inquiry is needed. While an FIR is to be registered on an information disclosing the commission of a cognizable offence, so also a recording is thereafter required to be made in the case diary.

The facts of the case suggested that the deceased, Gajendra Singh went to a picnic along with two friends, Suresh (PW-2) and Sunil Mandal (PW-3) on the fateful day – 21.06.1992. On their return, they were intercepted by the appellant riding on a motorcycle. The appellant attacked the deceased Gajendra Singh with a knife inflicting two fatal blows on the chest and stomach respectively. The motive of the attack appeared to be the failure of the appellant in completing the work for which the deceased gave a sum of Rs 500.

PW-2 and PW-3 took the deceased, who was bleeding profusely to the hospital. 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. Before PW-1 could reach the police station, the report from the hospital had reached and, therefore, investigation was triggered. However, neither FIR had been registered nor noting had been made in the general diary.  The appellant was found and arrested. The knife that was said to have been used for committing the offence was also recovered. No arrest memo had been prepared though an entry was made in the general diary.

The post-mortem 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. During the course of trial, on a request made on behalf of the appellant, the general diary was summoned and perused by the trial court. While convicting the appellant, the trial court placed heavy reliance upon the evidence of PW-1 to PW-3. The High Court concurred with the decision of the trial court. Aggrieved thereby, the appellant approached the Top Court.

At the outset, the Division Bench of Justice M.M. Sundresh and Justice S.V. N Bhatti opined that, “In its journey towards determining the truth, a court shall play an active role while acknowledging the respective roles meant to be played by the prosecution and the defence. During the entire play, the rules of evidence ought to be honoured, sprinkled with the element of fairness through due procedure. Adequate opportunities would have to be given to challenge every assumption. Administration of criminal justice lies in determining the guilt of the accused beyond reasonable doubt. The power of the State to prosecute an accused commences with investigation, collection of evidence and presentation before the Court for acceptance.”

“The investigating agency, the prosecutor and the defence are expected to lend ample assistance to the court in order to decipher the truth. 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”, it further added.

Highlighting the importance of a case diary, the Top Court observed that the Investigating Officer should mandatorily record the necessary particulars gathered in the course of investigation with the relevant date, time and place. Under sub-section (1-A) and (1-B) of Section 172 of CrPC, the Investigating Officer has to mention, in his case diary, the statement of witnesses recorded during investigation with due pagination. The object of these sub-sections is to facilitate a fair investigation since a statement made under Section 161 of CrPC is not expected to be signed as mandated by Section 162 of CrPC.

“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 Bench asserted while also noting, “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.”

The Bench further clarified, “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…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, the Bench held that Sections 145 & 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.

On the facts of the case, the Bench observed 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. The Bench found that at several places in the case diary, various corrections had 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 Bench opined.

As per the Top Court, the evidence of PW-13 clearly showed that no date, time and proper recording had 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. The Trial Court failed to discharge its duty enshrined under Section 172(3) of CrPC read with Section 145 or Section 161 of the Evidence Act as it was brought on a request made by the appellant and the court was using it for the purpose of contradiction.

Thus, noting that the appellant had certainly made out a case for acquittal, the Bench allowed the appeal.