Saturday, 9 January 2016

Landmark Judgment on use of Case diary maintained by investigating officer during criminal trial

The investigating officer plays a very pivotal role in
the dispensation of criminal justice and error in the investigation
may result in miscarriage of justice. The police officers have
been given great latitude under Code of Criminal Procedure to
exercise their power to make a successful investigation. They
have been given free liberty to collect necessary evidence in
order to assist the Court to arrive at a just decision of the case.
The duty of the investigating officer is to ascertain the correct
set of facts and present truth before the Court of law. It is
equally the responsibility of the investigating officer while
deposing in Court, to the questions put by either the public
prosecutor or the defence counsel or even by the Court, to make
correct statement with reference to the case diary. A misleading
statement or a false statement by the investigating officer just
out of sheer over anxiety for the success of the prosecution is 
unwarranted and it is not only playing fraud on the temple of
justice but would also be detrimental to the interest of justice.
We are conscious of our power of use of the case
diary. There is no dearth of power on the part of a Criminal Court
to call for and use the case diary in the aid of an enquiry or trial.
Court can certainly peruse the case diary if any doubt creeps in
regarding the sanctity of the investigation or bonafide conduct of
investigating officer in investigating the case. However it does
not give unfettered power to place reliance on the case diary as
a piece of evidence directly or indirectly.
In case of Khatri and Ors. -Vs.- State of Bihar
and Ors. reported in AIR 1981 SC 1068, it is held as
follows:-
“5……The Criminal Court holding an inquiry or
trial of a case is therefore empowered by subsection
(2) of Section 172 to send for the police
diary of the case and the Criminal Court can use
such diary, not as evidence in the case, but to
aid it in such inquiry or trial. But, by reason of
sub-section (3) of Section 172, merely because
the case diary is referred to by the criminal
Court, neither the accused nor his agents are
entitled to call for such diary nor are they
entitled to see it. If however the case diary is
used by the police officer who has made it to
refresh his memory or if the Criminal Court uses
it for the purpose of contradicting such police
officer in the inquiry or trial, the provisions of
Section 161 of the Code or Section 145, as the
case may be, of the Indian Evidence Act would 17
apply and the accused would be entitled to see
the particular entry in the case diary which has
been referred to for either of these purposes and
so much of the diary as in the opinion of the
Court is necessary to a full understanding of the
particular entry so used. It will thus be seen that
the bar against production and use of case diary
enacted in Section 172 is intended to operate
only in an inquiry or trial for an offence and even
this bar is a limited bar, because in an inquiry or
trial, the bar does not operate if the case diary is
used by the police officer for refreshing his
memory or the Criminal Court uses it for the
purpose of contradicting such police officer.”
In case of Mukund Lal -Vs.- Union of India (UOI)
reported in AIR 1989 SC 144, it is held as follows:-
“3……Under Sub-section (2) of Section 172
Cr.P.C. the Court itself has the unfettered power
to examine the entries in the diaries. This is a
very important safeguard. The Legislature has
reposed complete trust in the Court which is
conducting the inquiry or the trial. It has
empowered the Court to call for any such
relevant case diary, if there is any inconsistency
or contradiction arising in the context of the case
dairy, the Court can use the entries for the
purpose of contradicting the Police Officer as
provided in Sub-section (3) of Section 172 of the
Cr.P.C. Ultimately there can be no better
custodian or guardian of the interest of justice
than the Court trying the case. No Court will
deny to itself the power to make use of the
entries in the diary to the advantage of the
accused by contradicting the police officer with
reference to the contents of the diaries.”18
In case of Md. Ankoos -Vs.- The Public
Prosecutor reported in AIR 2010 SC 566, it is held as
follows:-
“24. A Criminal Court can use the case diary in
the aid of any inquiry or trial but not as an
evidence.This position is made clear by Section
172(2) of the Code. Section 172(3) places
restrictions upon the use of case diary by
providing that accused has no right to call for
the case diary but if it is used by the police
officer who made the entries for refreshing his
memory or if the Court uses it for the purpose of
contradicting such police officer, it will be so
done in the manner provided in Section 161 of
the Code and Section 145 of the Evidence Act.
Court's power to consider the case diary is not
unfettered. In light of the inhibitions contained
in Section 172(2), it is not open to the Court to
place reliance on the case diary as a piece of
evidence directly or indirectly.”
In Sidharth and Ors. -Vrs.- State of Bihar 2005
Criminal Law Journal 4499, it was held as follows:
“27. Lastly, we may point out that in the present
case, we have noticed that the entire case diary
maintained by the police was made available to
the accused. Under Section 172 of the Criminal
Procedure Code, every police officer making an
investigation has to record his proceedings in a
diary setting forth the time at which the
information reached him, the time at which he
began and closed his investigation, the place or
places visited by him and a statement of the
circumstances ascertained through his
investigation. It is specifically provided in Subclause
(3) of Section 172 that neither the 19
accused nor his agents shall be entitled to call
for such diaries nor shall he or they be entitled
to see them merely because they are referred to
by the Court, but if they are used by the police
officer who made them to refresh his memory,
or if the Court uses them for the purpose of
contradicting such police officer, the provisions
of Section 161 of the Cr.P.C. or the provisions of
Section 145 of the Evidence Act shall be
complied with. The Court is empowered to call
for such diaries not to use it as evidence but to
use it as aid to find out anything that happened
during the investigation of the crime. These
provisions have been incorporated in the Code of
Criminal Procedure to achieve certain specific
objectives. The police officer who is conducting
the investigation may come across series of
information which cannot be divulged to the
accused. He is bound to record such facts in the
case diary. But if the entire case diary is made
available to the accused, it may cause serious
prejudice to others and even affect the safety
and security of those who may have given
statements to the police. The confidentiality is
always kept in the matter of criminal
investigation and it is not desirable to make
available the entire case diary to the accused. In
the instant case, we have noticed that the entire
case diary was given to the accused and the
investigating officer was extensively crossexamined
on many facts which were not very
much relevant for the purpose of the case. The
learned Sessions Judge should have been careful
in seeing that the trial of the case was
conducted in accordance with the provisions of
Cr.P.C.”20
In case of Mahabir Singh –Vrs.- State of
Haryana reported in AIR 2001 SC 2503, it is held as
follows:-
“14. A reading of the said sub-sections makes
the position clear that the discretion given to the
Court to use such diaries is only for aiding the
Court to decide on a point. It is made
abundantly clear in Sub-section (2) itself that
the Court is forbidden from using the entries of
such diaries as evidence. What cannot be used
as evidence against the accused cannot be used
in any other manner against him. If the Court
uses the entries in a case diary for contradicting
a police officer, it should be done only in the
manner provided in Section 145 of the Evidence
Act i.e. by giving the author of the statement an
opportunity to explain the contradiction, after his
attention is called to that part of the statement
which is intended to be so used for
contradiction. In other words, the power
conferred on the Court for perusal of the diary
under Section 172 of the Code is not intended
for explaining a contradiction which the defence
has winched to the fore through the channel
permitted by law. The interdict contained in
Section 162 of the Code, debars the Court from
using the power under Section 172 of the Code
for the purpose of explaining the contradiction.”
In case of Malkiat Singh -Vs.- State of Punjab
(1991) 4 SCC 341, it is held as follows:-
“ 11. It is manifest from its bare reading without
subjecting to detailed and critical analysis that
the case diary is only a record of day to day
investigation of the Investigating Officer to 21
ascertain the statement of circumstances
ascertained through the investigation. Under
sub-section (2) the Court is entitled at the trial
or enquiry to use the diary not as evidence in
the case, but as aid to it in the inquiry or trial.
Neither the accused, nor his agent, by operation
of sub-section (3), shall be entitled to call for the
diary, nor shall he be entitled to use it as
evidence merely because the Court referred to
it. Only right given thereunder is that if the
police officer who made the entries in the diary
uses it to refresh his memory or if the Court
uses it for the purpose of contradicting such
witness, by operation of Section 161 of the Code
and Section 145 of the Evidence Act, it shall be
used for the purpose of contradicting the
witness, i.e. Investigation Officer or to explain it
in re-examination by the prosecution, with
permission of the Court. It is, therefore, clear
that unless the investigating officer or the Court
uses it either to refresh the memory or
contradicting the investigating officer as
previous statement under Section 161 that too
after drawing his attention thereto as is enjoined
under Section 145 of the evidence Act, the
entries cannot be used by the accused as
evidence.”
IN THE HIGH COURT OF ORISSA, CUTTACK
JCRLA NO. 92 Of 2012

 Panda @ Maheswar Sanangi .…..… Appellant
-Versus-
 State of Orissa .…….. Respondent

P R E S E N T:-
 THE HONOURABLE MR. JUSTICE VINOD PRASAD
AND
 THE HONOURABLE MR. JUSTICE S. K. SAHOO
 Date of Judgment- 05.01.2016

 The appellant Panda @ Maheswar Sanangi along with
one Bisu Sanangi were charged under section 302/34 of Indian
Penal Code by the learned Adhoc Addl. Sessions Judge, Fast
Track Court, Keonjhar in S.T. Case No.32/43 of 2012 for
committing murder of one Sukura Danayak (hereafter ‘the 2
deceased’) on 14.08.2011 at about 6.00 p.m. in village Rangadihi
in furtherance of their common intention. They were also charged
under section 201/34 of Indian Penal Code for causing
disappearance of certain evidences connected with the crime in
furtherance of their common intention.
During course of trial, on enquiry, the co-accused
Bisu Sanangi was found to be less than eighteen years as on the
date of the occurrence i.e. on 14.08.2011 and accordingly he was
held by the learned trial Court, vide order dated 31.07.2012, to
be a juvenile in conflict with law and his case was sent to
Juvenile Justice Board, Keonjhar. So far as the appellant is
concerned, though inquiry was conducted but in terms of
ossification test report, he was found not to be a juvenile in
terms of the provisions of Juvenile Justice (Care and Protection of
Children) Act, 2000 and Rule 12 of Juvenile Justice (Care and
Protection of Children) Rules, 2007.
The learned trial Court found the appellant guilty
under sections 302/34 and 201/34 of Indian Penal Code and
sentenced him to undergo imprisonment for life and to pay a fine
of Rs.5,000/-, in default, to undergo rigorous imprisonment for
six months for the offence under section 302/34 IPC. The
appellant was sentenced to undergo rigorous imprisonment for
five years and to pay a fine of Rs.5,000/-, in default, to undergo 3
rigorous imprisonment for six months for offence punishable
under section 201/34 of Indian Penal Code and both the
substantive sentences were directed to run concurrently.
2. The prosecution case, as per the First information
report (Ext.1) presented by Routa Sanangi (P.W.1) on
18.08.2011 before the Officer in-charge, Kanjipani Police Station,
in the district of Keonjhar is that the deceased was his father-inlaw
and on 14.08.2011 at about 3.00 p.m. the deceased had a
quarrel with the appellant and co-accused Bisu Sanangi as he
was suspected to be practicing witchcraft and both the accused
threatened the deceased with dire consequence. When the
informant and some of the co-villagers prevented the accused
persons, they left the spot but again during evening hours at
about 6.00 p.m., there was quarrel between the parties and the
deceased was dragged by the accused persons towards the river
which was seen by others and since then the deceased was not
traceable. In that connection, the informant presented a missing
report on 16.08.2011 in Kanjipani Police Station and the
deceased was also searched. On 17.08.2011 evening, the
cadaver of the deceased was found lying inside river Kakharua.
The informant and other villagers guarded the dead body
throughout the night and the First Information Report was
presented in the morning. The informant suspected that on 4
14.08.2011 during the evening hours, the accused persons after
killing the deceased might have thrown the dead body in
Kakharua river. The dhoti which was worn by the deceased was
found lying on the river embankment.
On the basis of the First Information Report, Abhaya
Prasad Kar (P.W.12), who was attached to Kanjipani Police
Station as officer-in-charge registered Kanjipani P.S. Case No. 27
dated 18.08.2011 under sections 302/201/34 of Indian Penal
Code against the appellant and Bisu Sanangi and himself took up
investigation of the case.
3. During course of investigation, P.W.12 examined the
informant, visited the spot and prepared spot map Ext.11. He
seized dhoti of the deceased lying at the spot along with blood
stained earth and sample earth and prepared seizure list Ext.7.
He also conducted inquest over the dead body and prepared
inquest report Ext.2. He sent the dead body to District
Headquarters Hospital, Keonjhar for post-mortem examination.
P.W.8 Dr. Padma Lochan Mahanta who was attached to District
Headquarters Hospital, Keonjhar as O & G Specialist conducted
post-mortem examination and opined the cause of death due to
ante mortem asphyxia.
The Investigating Officer (P.W.12) seized the wearing
apparels of the deceased along with command certificate on 5
production by Constable G. Naik and prepared seizure list Ext.6.
He arrested the accused persons on 18.08.2011 and seized their
wearing apparels. The appellant while in custody confessed his
guilt and accordingly his confessional statement was recorded
vide Ext.4. The accused persons were sent to District
Headquarters Hospital, Keonjhar for collection of their nail
clippings and blood samples and after collection, the same were
seized under seizure list Ext.5. The appellant was forwarded to
the Court of learned S.D.J.M., Keonjhar on the next day of his
arrest. On 28.09.2011 the I.O. received the post-mortem
examination report which revealed the cause of death to be
homicidal. On 20.10.2011 the I.O. sent the seized material
objects to SFSL, Rasulgarh, Bhubaneswar through the Court of
S.D.J.M., Keonjhar for chemical analysis. On 8.12.2011 the I.O.
submitted charge sheet against the accused persons under
section 302/201/34 IPC.
4. After submission of charge sheet, the case was
committed to the Court of Session for trial after observing due
committal procedure where the learned Trial Court charged the
appellant under section 302/34 and 201/34 of Indian Penal Code
on 03.05.2012 and since the appellant refuted the charges,
pleaded not guilty and claimed to be tried, the sessions trial
procedure was resorted to prosecute him and establish his guilt.6
5. During course of trial, in order to prove its case, the
prosecution examined twelve witnesses.
P.W.1 Rout Sanangi is the informant in the case and
he is the son-in-law of the deceased and he has stated about the
threatening given by the accused persons to the deceased on the
date of occurrence.
P.W. 2 Arjuna Parihala stated about dragging of the
deceased by the accused persons towards river Kakharua from
Mandaghara of the village suspecting the deceased to be
practicing witchcrafts. He is a witness to the inquest vide inquest
report Ext.2.
P.W.3 Anadi Barik is a witness to the inquest over the
dead body of the deceased
P.W.4 Choudhury Sanangi stated about disclosure
made by the accused persons before him to commit the murder
of the deceased as he was practicing witchcrafts. He further
stated that the accused persons dragged the deceased towards
the lower level of village Talapada.
P.W.5 Manas Ranjan Khanari was the home guard
attached to Kanjipani Police Station who is also a witness to the
seizure. He proved seizure lists Ext.5 and Ext.6.
P.W.6 Hrudananda Sanangi stated about the dragging
of the deceased by the accused persons and telling that the 7
deceased would not be seen alive after passing of the night. He is
also witness to the inquest. He proved the seizure list Ext.7.
P.W.7 Bandhal Danayak is witness to the seizure who
proved seizure lists Ext.8 and Ext.9.
P.W.8 Dr. Padmalochan Mahanta conducted postmortem
examination over the dead body of the deceased and
proved his report vide Ext.10.
P.W.9 Jagabandhu Dehury did not support the
prosecution case for which he declared hostile.
P.W.10 Mohan Sanangi stated that the dead body of
the deceased was found lying at forest area of Kakharua river
which is locally known as Putulipani.
P.W.11 Makuban Sanangi stated about dragging of
the deceased by the accused persons and about noticing the
dead body of the deceased in Kakharua river.
P.W.12 Abhaya Prasad Kar is the Investigating
Officer.
The prosecution exhibited thirteen documents. Exts.1
is the FIR, Ext.2 is the inquest report, Ext.3 is the confessional
statement of co-accused Bisu Sanangi, Ext.4 is the confessional
statement of the appellant, Exts.5, 6, 7, 8 and 9 are the seizure
lists, Ext.10 is the post-mortem report, Ext.11 is the spot map,
Ext.12 is the dead body challan and Ext.13 is the forwarding 8
report of the material objects to S.F.S.L., Rasulgarh,
Bhubaneswar.
6. The defence plea of the appellant was one of denial
and it was pleaded that he has been falsely entangled in the
case.
7. The learned trial Court has been pleased to held that
the death of the deceased was homicidal and the deceased and
the accused were last seen together in an unusual manner when
the deceased was forcibly dragged by the accused persons and
the accused persons were in warring mood. The learned trial
Court further held that the possibility of any other person or
persons other than the accused persons being the perpetrators of
the crime is not at all possible.
8. Adverting over the nature and cause of death of the
deceased, we find that apart from the inquest report Ext.2, the
prosecution has also relied upon the evidence of P.W.8 Dr.
Padmalochan Mahanta who was attached to District Headquarters
Hospital, Keonjhar as O & G Specialist and he conducted post
mortem examination over the dead body of the deceased on
18.08.2011 and found ante mortem injury marks over both the
hands which were opined to be pressure mark. No ligature mark
was found. Petechial haemorrhage was found below the anterior
surface of neck and over trachea. The cause of death was opined 9
to be ante mortem asphyxia. The post-mortem report was
marked as Ext.10.
The learned trial Court has held that there was no
compelling reason to differ from the prosecution assertion of
homicidal cause of death of the deceased.
Accordingly to the medical science, a petechial
hemorrhage is a tiny pinpoint red mark that is important sign of
asphyxia caused by some external means of obstructing the
airways. They are sometime also called petechiae. Their presence
often indicates a death by manual strangulation, hanging or
smothering. The hemorrhages occur when blood leaks from the
tiny capillaries in the eyes, which can rupture due to increased
pressure on the veins in the head when the airways are
obstructed. If petechial hemorrhages and facial congestion are
present, it is a strong indication of asphyxia by strangulation as
the cause of death. Petechial hemorrhage are seen in the
conjunctiva of the eyes and also on the eyelids, especially after
hanging. They may also be found elsewhere on the skin of the
head and face, such as in the mucous membrance inside the lips
and around or behind the ears. When found in a case of suspect
hanging, the presence of petechial hemorrhages strongly
suggests the victim was hung when still alive. This helps to
distinguish hangings staged to make a murder look like a suicidal 10
act. Petechial hemorrhages on the face are also found in other
conditions such as cardiac arrest. Petechial hemorrhage may also
occur post mortem as the capillaries start to break down, but
these lesions tend to be rather bigger than pinpoint size and may
blur into one another rather than occurring as distinct groups.
P.W.8 has stated into the cross examination that due
to drowning in the deep water, asphyxia is likely to occur.
After perusing the evidence on record, the postmortem
examination report Ext.10, the statement of P.W.8 Dr.
Padmalochan Mahanta and the medical science, we are of the
view that the findings of the learned trial Court regarding the
nature of death of the deceased to be homicidal is not based on
any clinching materials and therefore we cannot concur with
such findings rather we are of the view that prosecution has
failed to establish that cause of death of deceased is homicidal in
nature.
9. Mrs. Susamarani Sahoo, learned counsel for the
appellant adopted a short-cut method and without placing the
appeal on merit, she contended that since during pendency of
the appeal, as per the direction of this Court, an enquiry was
conducted by Chief Judicial Magistrate-cum-Principal Magistrate,
Juvenile Justice Board, Keonjhar and the appellant was found to
be fifteen years one month and twenty nine days as on the date 11
of occurrence and he was a Juvenile in conflict with law on the
date of occurrence as per the definition under section 2(l) of the
Juvenile Justice (Care and Protection of Children) Act, his
sentence of imprisonment should be quashed in view of ratio laid
down by the Hon’ble Supreme Court in case of Indradeo Sao –
Vrs- State of Bihar reported in 2015 (5) SCALE 600.
Mr. Janmejaya Katikia, learned Additional
Government Advocate did not challenge the contentions raised
on behalf of the appellant’s counsel in view of the settled position
of law.
Since it is an appeal against conviction of the
appellant under sections 302/34 and 201/34 of IPC and
imposition of sentence of life imprisonment, we think it proper to
adjudicate the matter on merit before considering the prayer for
sentence only on the basis of the decision of the Hon’ble
Supreme Court.
10. Admittedly there is no direct evidence in the case and
the case is based on circumstantial evidence. The circumstances
against the appellant are that he and the co-accused Bisu
Sanangi quarreled with the deceased and threatened him with
dire consequence on the date of occurrence suspecting that the
deceased was practicing witchcraft. The further circumstances
are that both the accused persons dragged the deceased from 12
Mandaghara of the village towards Kuakhia river on 14.08.2011
whereafter the deceased was seen alive.
P.W. 1 who is informant in the case has stated that
on the date of occurrence the accused persons threatened the
deceased suspecting him to be practising witchcrafts and when a
quarrel ensued between the deceased and the accused persons,
he separated them and left the house. P.W.1 has further stated
in the evidence that in the evening hours, the accused persons
forcibly took the deceased to Mandaghara which is a place in the
village used for seating of the villagers and from there, the
accused persons took the deceased towards Kuakhia river and
since then the deceased did not return.
P.W. 1 is none else than the son-in-law of the
deceased and he is the person who lodged the missing report
before Kanjipani Police Station on 16.08.2011 wherein he has
stated that on 14.08.2011 (Sunday) afternoon, the appellant and
co-accused Bisu Sanangi assaulted the deceased during course
of quarrel and threw the body into Kakharua river. On the basis
of such missing report, Kanjipani police Station Diary No.309
dated 16.08.2011 was registered. P.W.1 has stated in his
evidence that he guessed his father-in-law might have been
murdered by the accused persons. Forcible taking of the
deceased as has been stated by P.W.1 in Court is not reflected in 13
the station diary entry. The same has also not been stated
before the Investigating Officer in the statement recorded under
section 161 Cr.P.C. as has been proved by the defence after
confrontation to P.W.1. P.W. 1 has not stated about any assault
by any of the accused persons to the deceased in his presence in
the evidence in Court. Therefore the only evidence of P.W.1 left
behind which is consistent with the facts narrated in the missing
report as well as the previous statement before police is that he
was a witness to the quarrel between the accused persons and
the deceased. The quarrel took place on 14.08.2011 and the
dead body was recovered on 17.08.2011 in river Kakharua.
In case of Sunil Ray –Vrs- Union Territory
reported in AIR 2011 Supreme Court 2545, it is held that
the vacillations in the deposition of the prosecution witness
relating to evidence of last seen cannot be brushed aside as
‘minor discrepancies’ especially when it is to form the basis for
life sentence.
Specific questions were put by the defence to the
Investigating Officer relating to contents of missing report
presented by the informant (P.W.1) on 16.08.2011 as well as the
Station Diary entry made on the basis of such missing report.
The Investigating Officer has stated that he has not seized the
Station Diary Entry but the missing report was incorporated in 14
the Station Diary and he has mentioned it in the case diary. He
further submits that in the missing report although the
complicity of the accused persons about the commission of
murder was not mentioned but in the missing report, the
informant had mentioned that the accused persons assaulted the
deceased, dragged him and threw him in Kakharua Nala. Since
the missing report as such was not proved in the case nor the
Station Diary Entry, therefore in order to ascertain the
correctness of the statement made by the Investigating Officer
regarding the contents of the missing report, we verified the
case diary in the interest of justice and found that in the case
diary while extracting the contents of the missing report, the
Investigating Officer has not mentioned that the accused persons
dragged the deceased though he has mentioned about the
quarrel, assault (which he has not stated in the Court) and
throwing of the body into Kakharua river (to which he had no
personal knowledge).
When questions were asked by the defence counsel
on the vital aspects of the prosecution case relating to the
missing report of the deceased and its reflection in the Station
Diary Entry which has got nexus with the last seen theory, in all
fairness it was expected of the investigating officer to speak
truth that P.W.1 has not mentioned about the dragging part in15
the missing report. When the I.O. had neither seized the missing
report nor the station diary entry but only mentioned the
contents of the missing report in the case diary, he should have
been careful enough to answer correctly about the same. The
false statement given by the investigating officer that the
dragging part of the deceased is also mentioned in the missing
report is contrary to the noting in the case diary. Such a conduct
is deplorable.
The investigating officer plays a very pivotal role in
the dispensation of criminal justice and error in the investigation
may result in miscarriage of justice. The police officers have
been given great latitude under Code of Criminal Procedure to
exercise their power to make a successful investigation. They
have been given free liberty to collect necessary evidence in
order to assist the Court to arrive at a just decision of the case.
The duty of the investigating officer is to ascertain the correct
set of facts and present truth before the Court of law. It is
equally the responsibility of the investigating officer while
deposing in Court, to the questions put by either the public
prosecutor or the defence counsel or even by the Court, to make
correct statement with reference to the case diary. A misleading
statement or a false statement by the investigating officer just
out of sheer over anxiety for the success of the prosecution is 16
unwarranted and it is not only playing fraud on the temple of
justice but would also be detrimental to the interest of justice.
We are conscious of our power of use of the case
diary. There is no dearth of power on the part of a Criminal Court
to call for and use the case diary in the aid of an enquiry or trial.
Court can certainly peruse the case diary if any doubt creeps in
regarding the sanctity of the investigation or bonafide conduct of
investigating officer in investigating the case. However it does
not give unfettered power to place reliance on the case diary as
a piece of evidence directly or indirectly.
In case of Khatri and Ors. -Vs.- State of Bihar
and Ors. reported in AIR 1981 SC 1068, it is held as
follows:-
“5……The Criminal Court holding an inquiry or
trial of a case is therefore empowered by subsection
(2) of Section 172 to send for the police
diary of the case and the Criminal Court can use
such diary, not as evidence in the case, but to
aid it in such inquiry or trial. But, by reason of
sub-section (3) of Section 172, merely because
the case diary is referred to by the criminal
Court, neither the accused nor his agents are
entitled to call for such diary nor are they
entitled to see it. If however the case diary is
used by the police officer who has made it to
refresh his memory or if the Criminal Court uses
it for the purpose of contradicting such police
officer in the inquiry or trial, the provisions of
Section 161 of the Code or Section 145, as the
case may be, of the Indian Evidence Act would 17
apply and the accused would be entitled to see
the particular entry in the case diary which has
been referred to for either of these purposes and
so much of the diary as in the opinion of the
Court is necessary to a full understanding of the
particular entry so used. It will thus be seen that
the bar against production and use of case diary
enacted in Section 172 is intended to operate
only in an inquiry or trial for an offence and even
this bar is a limited bar, because in an inquiry or
trial, the bar does not operate if the case diary is
used by the police officer for refreshing his
memory or the Criminal Court uses it for the
purpose of contradicting such police officer.”
In case of Mukund Lal -Vs.- Union of India (UOI)
reported in AIR 1989 SC 144, it is held as follows:-
“3……Under Sub-section (2) of Section 172
Cr.P.C. the Court itself has the unfettered power
to examine the entries in the diaries. This is a
very important safeguard. The Legislature has
reposed complete trust in the Court which is
conducting the inquiry or the trial. It has
empowered the Court to call for any such
relevant case diary, if there is any inconsistency
or contradiction arising in the context of the case
dairy, the Court can use the entries for the
purpose of contradicting the Police Officer as
provided in Sub-section (3) of Section 172 of the
Cr.P.C. Ultimately there can be no better
custodian or guardian of the interest of justice
than the Court trying the case. No Court will
deny to itself the power to make use of the
entries in the diary to the advantage of the
accused by contradicting the police officer with
reference to the contents of the diaries.”18
In case of Md. Ankoos -Vs.- The Public
Prosecutor reported in AIR 2010 SC 566, it is held as
follows:-
“24. A Criminal Court can use the case diary in
the aid of any inquiry or trial but not as an
evidence.This position is made clear by Section
172(2) of the Code. Section 172(3) places
restrictions upon the use of case diary by
providing that accused has no right to call for
the case diary but if it is used by the police
officer who made the entries for refreshing his
memory or if the Court uses it for the purpose of
contradicting such police officer, it will be so
done in the manner provided in Section 161 of
the Code and Section 145 of the Evidence Act.
Court's power to consider the case diary is not
unfettered. In light of the inhibitions contained
in Section 172(2), it is not open to the Court to
place reliance on the case diary as a piece of
evidence directly or indirectly.”
In Sidharth and Ors. -Vrs.- State of Bihar 2005
Criminal Law Journal 4499, it was held as follows:
“27. Lastly, we may point out that in the present
case, we have noticed that the entire case diary
maintained by the police was made available to
the accused. Under Section 172 of the Criminal
Procedure Code, every police officer making an
investigation has to record his proceedings in a
diary setting forth the time at which the
information reached him, the time at which he
began and closed his investigation, the place or
places visited by him and a statement of the
circumstances ascertained through his
investigation. It is specifically provided in Subclause
(3) of Section 172 that neither the 19
accused nor his agents shall be entitled to call
for such diaries nor shall he or they be entitled
to see them merely because they are referred to
by the Court, but if they are used by the police
officer who made them to refresh his memory,
or if the Court uses them for the purpose of
contradicting such police officer, the provisions
of Section 161 of the Cr.P.C. or the provisions of
Section 145 of the Evidence Act shall be
complied with. The Court is empowered to call
for such diaries not to use it as evidence but to
use it as aid to find out anything that happened
during the investigation of the crime. These
provisions have been incorporated in the Code of
Criminal Procedure to achieve certain specific
objectives. The police officer who is conducting
the investigation may come across series of
information which cannot be divulged to the
accused. He is bound to record such facts in the
case diary. But if the entire case diary is made
available to the accused, it may cause serious
prejudice to others and even affect the safety
and security of those who may have given
statements to the police. The confidentiality is
always kept in the matter of criminal
investigation and it is not desirable to make
available the entire case diary to the accused. In
the instant case, we have noticed that the entire
case diary was given to the accused and the
investigating officer was extensively crossexamined
on many facts which were not very
much relevant for the purpose of the case. The
learned Sessions Judge should have been careful
in seeing that the trial of the case was
conducted in accordance with the provisions of
Cr.P.C.”20
In case of Mahabir Singh –Vrs.- State of
Haryana reported in AIR 2001 SC 2503, it is held as
follows:-
“14. A reading of the said sub-sections makes
the position clear that the discretion given to the
Court to use such diaries is only for aiding the
Court to decide on a point. It is made
abundantly clear in Sub-section (2) itself that
the Court is forbidden from using the entries of
such diaries as evidence. What cannot be used
as evidence against the accused cannot be used
in any other manner against him. If the Court
uses the entries in a case diary for contradicting
a police officer, it should be done only in the
manner provided in Section 145 of the Evidence
Act i.e. by giving the author of the statement an
opportunity to explain the contradiction, after his
attention is called to that part of the statement
which is intended to be so used for
contradiction. In other words, the power
conferred on the Court for perusal of the diary
under Section 172 of the Code is not intended
for explaining a contradiction which the defence
has winched to the fore through the channel
permitted by law. The interdict contained in
Section 162 of the Code, debars the Court from
using the power under Section 172 of the Code
for the purpose of explaining the contradiction.”
In case of Malkiat Singh -Vs.- State of Punjab
(1991) 4 SCC 341, it is held as follows:-
“ 11. It is manifest from its bare reading without
subjecting to detailed and critical analysis that
the case diary is only a record of day to day
investigation of the Investigating Officer to 21
ascertain the statement of circumstances
ascertained through the investigation. Under
sub-section (2) the Court is entitled at the trial
or enquiry to use the diary not as evidence in
the case, but as aid to it in the inquiry or trial.
Neither the accused, nor his agent, by operation
of sub-section (3), shall be entitled to call for the
diary, nor shall he be entitled to use it as
evidence merely because the Court referred to
it. Only right given thereunder is that if the
police officer who made the entries in the diary
uses it to refresh his memory or if the Court
uses it for the purpose of contradicting such
witness, by operation of Section 161 of the Code
and Section 145 of the Evidence Act, it shall be
used for the purpose of contradicting the
witness, i.e. Investigation Officer or to explain it
in re-examination by the prosecution, with
permission of the Court. It is, therefore, clear
that unless the investigating officer or the Court
uses it either to refresh the memory or
contradicting the investigating officer as
previous statement under Section 161 that too
after drawing his attention thereto as is enjoined
under Section 145 of the evidence Act, the
entries cannot be used by the accused as
evidence.”
Assessing the evidence of P.W.1, his previous
statement before police as well as the facts which he has
narrated in the missing report, we are of the view that P.W.1 has
only seen the quarrel between the accused persons and the
deceased on the date of occurrence and he is neither a witness
to the assault part nor dragging part nor throwing of the dead
body of the deceased in the Kakharua river. 22
Coming to the evidence of P.W.2, he has stated that
on the date of occurrence the accused persons dragged the
deceased from Mandaghara of the village towards river
Kakharua. He has further stated that the accused persons
quarreled with the deceased suspecting that he was practising
witchcraft and three days after such dragging and taking away of
the deceased, the dead body was found in the Putulipani river.
P.W.2 has stated in the cross-examination that when the quarrel
was going on, he was present in his house but when he came to
the spot of quarrel, nobody was present there. This statement of
P.W.2 creates doubt regarding he being a witness to the
dragging part of the deceased from Mandaghara of the village
towards river Kakharua.
P.W.3 stated to have got information from the wife
and daughter of the deceased about the quarrel between the
parties and accused persons taking away the deceased. Neither
the wife nor the daughter of the deceased has been examined in
this case. Thus the evidence of P.W.3 is inadmissible being hearsay
in nature.
P.W.4 though stated in his examination-in-chief that
the accused persons dragged the deceased and took away
towards lower level at the village (Talapada) but in the cross-23
examination, he has stated that he has not seen the accused
persons taking away the deceased but only heard about it.
P.W.6 though stated that the accused persons
dragged the deceased from Mandaghara and took away outside
of the village and committed murder of the deceased and thrown
the dead body in Kukhuria Nala but it has been proved by the
defence in cross-examination that he has stated before the police
that the deceased absconded from the village on 14.08.2011 and
on hearing about the absconding of the deceased, he came to
the house of the deceased and heard that the deceased and the
accused persons quarreled with each other. Thus the evidence of
P.W.6 was no way helpful to the prosecution.
P.W.11 has stated that the accused persons
quarreled with the deceased on the date of occurrence at about
4 p.m. and thereafter they dragged the deceased towards forest
area and committed murder of the deceased. In the crossexamination
he admits that he has not seen accused persons
dragging the deceased from Mandaghara and he has only heard
about the same.
Scanning the evidence of the aforesaid witnesses,
one thing becomes very clear that except some evidence relating
to threatening by the accused persons to the deceased and
quarrel between them on the date of occurrence, there are no 24
other clinching materials against the accused persons. There is
no acceptable evidence that the accused persons dragged the
deceased from the Mandaghara of the village towards Kuakhia
river. Nobody has stated that the accused persons were armed
with any weapon or they were hardened criminals for which
nobody could dare courage to protest their activities of dragging
the deceased. There is also no evidence of any of witnesses
followed the accused persons and the deceased towards the
river. All these aspects create doubt about the prosecution case
that after the quarrel, the accused persons dragged the
deceased towards Kakharua river. There is no direct evidence
that the accused persons threw the deceased after committing
his murder inside the river. The investigating officer has stated
that the distance of the village to Kakharua river is about 4
kilometers. The dead body was recovered three days after the
occurrence. In view of such materials available on record, it
cannot be said that the last seen theory which was presented by
the prosecution in the form of quarrel between the parties is so
clinching that it proves the guilt of the appellant. The learned
trial Court observed that the deceased and the accused persons
were last seen together in an unusual manner when the
deceased was forcibly dragged by the appellant and another coaccused
and that the accused persons were in warring mood and 25
so possibility that any other person or persons other than the
accused persons being the perpetrator of the crime is not at all
possible. We are afraid to say such a conclusion is based on no
evidence and smacks of improper appreciation of the evidence
on record.
11. Though the investigating officer recorded the
confessional statement of the appellant which was marked as
Ext.4 but in view of the bar under section 25 of the Evidence Act,
we are not inclined to place any reliance on the same.
12. Even though the wearing apparels of the appellant
were seized and sent for chemical examination but the chemical
examination report has not been proved during trial.
13. Even if there are some materials that on the date of
occurrence the accused persons had threatened the deceased for
practising witchcraft and also quarreled with him but these two
circumstances are not sufficient in itself to make a complete
chain in order to arrive at an irresistible conclusion that it is the
appellant who has committed the murder of the deceased. There
may be some suspicion against the appellant but as is often said,
suspicion, howsoever strong, cannot take the place of proof. We
therefore, find and hold that the conviction of the appellant is
based on completely insufficient evidence and is wholly
unsustainable.26
14. During pendency of the appeal, an application was
filed by the appellant under section 49 of the Juvenile Justice
(Care and Protection of Children) Act, 2000 read with section 12
(3)(1)(c) of Juvenile Justice Rules with a prayer to make an
enquiry for determining the age of the appellant as on the date
of occurrence. It was contended that the appellant was a juvenile
as on the date of occurrence and in support of his contention, a
school leaving certificate was filed. Vide order dated 08.04.2015,
we sent the copy of the application along with the school leaving
certificate and the copy of the impugned judgment for an enquiry
by the Juvenile Justice Board, Keonjhar to determine the age of
the appellant as on the date of the commission of the offence.
The report was submitted wherein it is indicated that the age of
the convict as on the date of the occurrence was fifteen years
one month and twenty-nine days and therefore he was a juvenile
in conflict law as on the date of occurrence as per the definition
under section 2(l) of Juvenile Justice Act. Basing on such report,
we granted bail to the appellant on 27.07.2015.
The learned counsel for the appellant did not argue
the case on merit but relied on the decision of the Hon’ble
Supreme Court in case of Indradeo Sao –Vrs- State of Bihar
reported in 2015 (5) SCALE 600, in which in the concluding
paragraph it is held as follows:-27
“In view of the above report, it is evident that on
the date of death of Susila Devi, her brother-inlaw
(Devar) Nand Kuamr Sahoo (appellant no.2
before us) was aged fifteen years nine months
and twenty-six days, as such, on further
considering the law laid down by this Court in
Vijay Singh –Vrs- State of Delhi (2012) 8
SCC 763, Vaneet Kumar Gupta @
Dharminder –Vrs- State of Punjab (2009)
17 SCC 587 and Upendra Kumar –Vrs- State
of Bihar (2005) 3 Supreme Court Cases 592,
we are of the view that the sentence recorded by
the Courts below against the Juvenile accused is
liable to be quashed. As to the other appellants,
in the facts and circumstance of the case, we do
not find any reason to reduce the sentence,
awarded against them.
Accordingly, the appeal of the appellants
Indradev Sao and Raj Kumar Sao is dismissed
but that of Nanda Kumar Sao is allowed partly.
We affirm the conviction recorded against him
but considering that he was juvenile on the date
of incident, sentence of imprisonment is
quashed. Appellant no.2 Nanda Kishore Sao shall
be set at liberty, if not required in connection
with any other crime”.
If we would have considered the prayer made by the
learned counsel for the appellant, in view of the cited decision of
the Hon’ble Supreme Court in case of Indradeo Sao (supra), in
view of the age of the appellant, we would have affirmed the
conviction recorded against him while quashing the sentence of
imprisonment. But since we have considered the appeal on merit
and after scanning the evidence on record, we found that the
prosecution has miserably failed to establish its case against the 28
appellant beyond all reasonable doubt, we are inclined to allow
the appeal.
Accordingly, the impugned judgment and order of
conviction is set aside. If the accused has already been released
from jail custody in pursuance of our orders dated 27.07.2015 in
Misc. Case No.28 of 2015 and 09.10.2015 in Misc. Case No.74 of
2015, he is discharged from the liability of his bail bonds. His
personal bonds and the surety bonds, if any, stand cancelled. If
he has not been released from jail custody, he should be released
forthwith if his detention is not required in connection with any
other crime.
Lower Court Records with a copy of this judgment be
sent down to the learned trial Court forthwith for information and
necessary action.
 ……………………………
 S.K. Sahoo, J.
VINOD PRASAD, J. I agree.

…………………………….
Orissa High Court, Cuttack Vinod Prasad, J.
The 5th January, 2016/Sisir
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