TMI Blog1981 (2) TMI 256X X X X Extracts X X X X X X X X Extracts X X X X ..... rselves in this appeal on account of the manner in which the judge who tried the case put questions to some of the witnesses. 2. 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n advocate; and the change does not become him well. 4. 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 (Section 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'. 5. 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 Section 302 read with Section 34 Indian Penal Code and sentenced to imprisonment for life. On appeal t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... udge convicted both Ram Chander and Mange but having regard to the evidence of P.W. 9 the High Court acquitted Mange and confirmed the conviction of Ram Chander. 7. It was argued by Shri Kapil Sibal, learned Counsel for the appellant that in view of the several statements made by P.Ws. 8 and 9 in their cross examination, their evidence should not have been RAM chander v. HARYANA Chinnappa Reddy, 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. 8. Hari Chand, P.W. 8 said in his examination-in-chief that when he was working in his field he heard a noise from the side of the -w field of Mange. He and Jiwana (P.W. 2) went in that direction. From 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 v, occurrence. On the way they met P.W. 10 and told him about Dunni having been beaten by the two accused. Later that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m Chander causing injuries to Dunni or not. 10. 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 it 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 up to 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 impossible to accept any portion of the evidence of P.Ws 8 and 9, the two alleged eye witnesses. 13. Shri Bhagat very ingeniously argued that the evidence of P.Ws 8 and 9 could yet be acted upon to the extent their evidence was substantiated by the first information report given by P.W. 2. When we pointed out that neither PW 8 nor PW. 9 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 invoicing the provisions of Section 11 of the Evidence Act. He relied upon the following observations of Beg J. in Ram Kumar Pande v. The State of Madhya Pradesh 1975CriLJ870 No doubt, an F.I.R. is a previous statement which can, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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