# Shailesh Kumar v. State of U.P. (Now State of Uttarakhand)

- **Citation:** 2024 INSC 143
- **Court:** Supreme Court of India
- **Decided:** 2024-02-26
- **Case number:** Criminal Appeal No. 684 of 2012
- **Bench:** M. M. Sundresh, S.V.N. Bhatti
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/shailesh-kumar-v-state-of-u-p-now-state-of-uttarakhand-37642
- **Pages:** 36

## Headnote

What is the goal of investigation and what is the role of investigating
officer; Are s.172 CrPC and ss. 145 & 161 of the Evidence Act
to be read in consonance with each other; Can a General Diary
entry precede the registration of FIR.
Headnotes
Code of Criminal Procedure, 1973 - Goal of investigation and
the role of investigating officer:
Held: An investigation of a crime is a lawful search of men
and materials relevant in reconstructing and recreating the
circumstances of an offence said to have been committed -
With the evidence in possession, an Investigating Officer shall
travel back in time and, therefore tick off the time zone to reach
the exact time and date of the occurrence of the incident under
investigation - The goal of investigation is to determine the
truth which would help the Investigating Officer to form a correct
opinion on the culpability of the named accused or suspect - Once
such an opinion is formed on a fair assessment of the evidence
collected in the investigation, the role of the court comes into
play when the evidence i.e. oral, documentary, circumstantial,
scientific, electronic, etc. is presented for and on behalf of the
prosecution - 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. [Para 17]
[2024] 2 S.C.R.
777
Shailesh Kumar v. State of U.P. (Now State of Uttarakhand)
Code of Criminal Procedure, 1973 - Evidence Act, 1872 -
Maintenance of case diary u/s. 172 CrPC and application of
s. 145 and s. 161 of the Evidence Act - S.172 CrPC and ss.
145 & 161 of the Evidence Act are to be read in consonance
with each other subject to the limited right conferred under
sub-section (3) of s.172 of CrPC:
Held: A case diary is maintained by an Investigating Officer
during his investigation for the purpose of entering the day-to-day
proceedings of the investigation - While doing so, 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 s.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 u/s. 161 of CrPC
is not expected to be signed as mandated by s.162 of CrPC -
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 s.145 or s.161, as the case may be, of the Evidence
Act - S.172(3) of CrPC makes a specific reference to s.145 and
s.161 of the Evidence Act - Therefore, whenever a case is made
out either u/s.145 or u/s. 161 of the Evidence Act, the benefit
conferred thereunder along with the benefit of s.172(3) of CrPC
has to be extended to an accused - 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 s.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 - What is relevant in such a case is
the process of using it for the purpose of contradiction and not the
conclu

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* Author
[2024] 2 S.C.R. 776 : 2024 INSC 143
Shailesh Kumar
v.
State of U.P. (Now State of Uttarakhand)
(Criminal Appeal No. 684 of 2012)
26 February 2024
[M. M. Sundresh* and S.V.N. Bhatti, JJ.]
Issue for Consideration
What is the goal of investigation and what is the role of investigating
officer; Are s.172 CrPC and ss. 145 & 161 of the Evidence Act
to be read in consonance with each other; Can a General Diary
entry precede the registration of FIR.
Headnotes
Code of Criminal Procedure, 1973 - Goal of investigation and
the role of investigating officer:
Held: An investigation of a crime is a lawful search of men
and materials relevant in reconstructing and recreating the
circumstances of an offence said to have been committed -
With the evidence in possession, an Investigating Officer shall
travel back in time and, therefore tick off the time zone to reach
the exact time and date of the occurrence of the incident under
investigation - The goal of investigation is to determine the
truth which would help the Investigating Officer to form a correct
opinion on the culpability of the named accused or suspect - Once
such an opinion is formed on a fair assessment of the evidence
collected in the investigation, the role of the court comes into
play when the evidence i.e. oral, documentary, circumstantial,
scientific, electronic, etc. is presented for and on behalf of the
prosecution - 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. [Para 17]
[2024] 2 S.C.R.
777
Shailesh Kumar v. State of U.P. (Now State of Uttarakhand)
Code of Criminal Procedure, 1973 - Evidence Act, 1872 -
Maintenance of case diary u/s. 172 CrPC and application of
s. 145 and s. 161 of the Evidence Act - S.172 CrPC and ss.
145 & 161 of the Evidence Act are to be read in consonance
with each other subject to the limited right conferred under
sub-section (3) of s.172 of CrPC:
Held: A case diary is maintained by an Investigating Officer
during his investigation for the purpose of entering the day-to-day
proceedings of the investigation - While doing so, 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 s.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 u/s. 161 of CrPC
is not expected to be signed as mandated by s.162 of CrPC -
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 s.145 or s.161, as the case may be, of the Evidence
Act - S.172(3) of CrPC makes a specific reference to s.145 and
s.161 of the Evidence Act - Therefore, whenever a case is made
out either u/s.145 or u/s. 161 of the Evidence Act, the benefit
conferred thereunder along with the benefit of s.172(3) of CrPC
has to be extended to an accused - 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 s.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 - What is relevant in such a case is
the process of using it for the purpose of contradiction and not the
conclusion - To make the position clear, though s.145 r/w. s.161
of the Evidence Act deals with the right of a party including an
accused, such a right is limited and restrictive when it is applied
to s.172 of CrPC - Suffice it is to state,that the said right cannot
be declined when the author of a case diary uses it to refresh
778
[2024] 2 S.C.R.
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his memory or the court uses it for the purpose of contradiction -
Therefore, there is no hesitation in holding that s.145 and s.161
of the Evidence Act on the one hand and s.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 s.172 of
CrPC. [Paras 20, 26, 27]
Code of Criminal Procedure, 1973 - First Information Report
vis-a-vis Case Diary:
Held: In Lalita Kumari v. Government of Uttar Pradesh & Others,
the Supreme Court held that an Information disclosing commission
of a cognizable offence shall first be entered in a book kept by the
officer in charge of police station and not in the General Diary - A
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. [Para 28]
Evidence Act, 1872 - s. 165 - Judge's power to put questions
or order production:
Held: S.165 of the Evidence Act speaks of the power of the court
to put questions and order production of documents in the course
of trial - This is a general and omnibus power given to the court
when in search of the truth - Such a power is to be exercised
against any witness before it, both in a civil as well as a criminal
case - The object is to discover adequate proof of a relevant
fact and, therefore, for that purpose, the Judge is authorised and
empowered to ask any question of his choice - When such a
power is exercised by the court, there is no corresponding right
that can be extended to a party to cross-examine any witness on
an answer given in reply to a question put forth by it, except with
its leave. [Para 29]
Penal Code, 1860 - s. 302 - Prosecution case that victimdeceased went to picnic along with PW-2 and PW-3 - On their
return, they were intercepted by appellant with a knife, who
inflicted two fatal blows on the chest and stomach of the
victim - Prosecution sought to bring home the guilt of the
appellant primarily in the form of: (a) dying declaration, (b) eye
witnesses, (c) recovery and (d) alleged arrest of the appellant
nearer to the scene of the offence - Trial Court convicted
[2024] 2 S.C.R.
779
Shailesh Kumar v. State of U.P. (Now State of Uttarakhand)
appellant u/s. 302 IPC and sentenced him to imprisonment
for life - High Court confirmed the conviction - Propriety:
Held: The victim-deceased was first examined by the PW-5 (who
was working in the hospital) - The presence of PW-1 (father of
deceased) before PW-5 is extremely doubtful - His presence
was not spoken to at all by PW-5 - The evidence of PW-1 is
quite unnatural as he has neither spoken about the motive in his
statement recorded u/s. 161 of CrPC, nor about the so-called dying
declaration which was not even witnessed by PW-5 - PW-5 has
clearly stated that the deceased was in a very serious condition,
blood was oozing out and, therefore, he could not give adequate
treatment - The deceased was immediately referred to the second
hospital - The testimony of PW-1 is also contradictory to PW-3
and PW-8 (doctor who examined deceased in the second hospital)
- Similarly, evidences of PW-2 and PW-3 cannot be relied upon,
PW-2 admittedly was not examined by PW-11 (investigating officer)
for over 2 weeks, for which no explanation was given - This
witness also stated that he was not the friend of the deceased,
therefore, his presence at the place of occurrence creates a serious
doubt as to how he happened to accompany the deceased to
the picnic spot - PW-3, though accompanied the deceased, was
not present thereafter, as deposed by PW-5 and did not admit
the deceased to the second hospital as deposed by PW-8 - The
prosecution has not chosen to examine the driver of the vehicle
i.e the tempo in which the deceased was taken to the hospital
- There is no explanation as to how PW-9-another police officer
from different jurisdiction authored the inquest report - Also, it is
totally unbelievable for PW-6 to reach the place of occurrence out
of inquisitiveness - The arrest of the accused at the instance of
PW-7 is yet another instance of the prosecution trying to make
out a case - It is incomprehensible that the appellant would be
present at the place of the occurrence when he is attempting to
flee - Similar logic goes to the recovery of the knife, it was found
in an open place - On perusal of the case diary, it was found
various corrections had been made, while some pages were even
missing - A clear attempt is made to correct the dates - 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 - It has failed to discharge its duty enshrined
u/s. 172(3) of CrPC r/w. s. 145 or s.161, as the case may be, of
the Evidence Act - These aspects as discussed were not looked
780
[2024] 2 S.C.R.
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into in a proper perspective - Thus, the appellant has made out
a case for acquittal. [Paras 32-39]
Case Law Cited
Lalita Kumari v. Government of Uttar Pradesh & Others,
[2013] 14 SCR 713 : (2014) 2 SCC 1 - followed.
Arvind Kumar @ Nemichand & Ors. v. State of
Rajasthan, [2021] 11 SCR 237; Common Cause and
Others v. Union of India, [2015] 6 SCR 731 : (2015) 6
SCC 332; Bhagwant Singh v. Commissioner of Police,
[1983] 3 SCR 109 : (1983) 3 SCC 344; Baleshwar
Mandal v. State of Bihar, (1997) 7 SCC 219; Balakram
v. State of Uttarakhand and Others, [2017] 5 SCR 367 :
(2017) 7 SCC 668; Ram Chander v. State of Haryana,
[1981] 3 SCR 12 : (1981) 3 SCC 191 - relied on.
Manoj and Others v. State of Madhya Pradesh, [2022]
9 SCR 452 : (2023) 2 SCC 353 - referred to.
Books and Periodicals Cited
Law Commission of India's One Hundred and Fifty
Fourth Report (154th).
List of Acts
Penal Code, 1860, Code of Criminal Procedure, 1973.
List of Keywords
Investigation; Goal of investigation; Role of investigating officer;
Case Diary; Maintenance of case diary; Cross-examination as
to previous statements in writing; Right of the accused to crossexamine as to case diary used to refresh memory; Refreshing
of memory perusing case diary; Contradiction of police officer
using case diary; FIR vis-à-vis case diary; Power of Judge to put
questions.
Case Arising From
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.684
of 2012.
From the Judgment and Order dated 15.11.2010 of the High Court of
Uttarakhand at Nainital in CRLA No.888 of 2001
[2024] 2 S.C.R.
781
Shailesh Kumar v. State of U.P. (Now State of Uttarakhand)
Appearances for Parties
D. P. Singh, Vikram Singh, Amit Gupta, Archit Singh, Manu Mishra,
Ms. Shreya Dutt for M/s. Mitter & Mitter Co., Advs. for the Appellant.
Saurabh Trivedi, Ashutosh Kumar Sharma, Advs. for the Respondent.
Judgment / Order of the Supreme Court
Judgment
M. M. Sundresh, J.
1.
The appellant convicted by the Additional Sessions Judge/Special
Judge, Anti-Corruption U.P (East) Dehradun in ST 166/1992 under
Section 302 of the Indian Penal Code, 1860 (hereinafter referred to
as "IPC") for life imprisonment, as confirmed by the Division Bench
of the High Court of Uttarakhand at Nainital in Criminal Appeal No.
888 of 2001 seeks acquittal.
2.
Heard learned counsel Mr. D.P Singh appearing for the appellant
and the learned counsel Mr. Saurabh Trivedi appearing for the
respondent. We have perused the entire records placed before us,
and taken due note of the synopsis notes submitted.
BRIEF FACTS
3.
The deceased, Gajendra Singh went to a picnic along with two
friends, Suresh (PW-2) and Sunil Mandal (PW-3) at about 11 a.m. on
the fateful day - 21.06.1992. On their return, they were intercepted
by the appellant riding on a motorcycle. The appellant by uttering
the words "Today I shall pay all your dues", attacked the deceased
Gajendra Singh with a knife inflicting two fatal blows on the chest
and stomach respectively. The motive of the attack appears to be
the failure of the appellant in completing the work for which the
deceased gave a sum of Rs.500/-.
4.
PW-2 and PW-3 took the deceased, who was bleeding profusely
on a tempo whose driver has not been examined, to the hospital
in which PW-5 was working. After admitting the deceased in the
hospital, PW-2 went to the house of the deceased by travelling,
which took him 15 minutes, and passed on the information of
attack on deceased, to his father, PW-1. 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
782
[2024] 2 S.C.R.
Digital Supreme Court Reports
Dehradun. After reaching the hospital, PW-1 made an enquiry
with the deceased who gave a dying declaration narrating the
incident. PW-5 did not speak about the presence of any of the
witnesses except the fact that the deceased was admitted by PW-3
and, therefore, did not refer to the said dying declaration given to
PW-1. PW-1 dictated the complaint to one Mr. Inder Singh (not
examined) and went to the police station situated just opposite
to the hospital. Prior to the aforesaid action on the part of PW-1,
PW-5 has made an entry in the emergency medical register which
was subsequently filled up by another person named Dr. B.V.
Sharma (not examined). Dr. B.V. Sharma sent report immediately
to the police station.
5.
Before PW-1 could reach the police station, the report from the
hospital had reached and, therefore, investigation was triggered.
However, neither First Information Report (FIR) had been registered
nor noting had been made in the general diary. In fact, the available
noting on the general diary did not disclose any offence committed
on 21.06.1992, as per the statement of PW-13, who produced the
same before the court.
6.
PW-2 and PW-3 took the deceased to the nearby hospital at
Dehradun as per the version of PW-1 and PW-2, while PW-3 said
it was himself and PW-1 who undertook the said exercise. As per
the version of PW-8, the doctor who attended the deceased at the
Dehradun hospital, the deceased was brought to the hospital by his
brother Mr. Bhupender Singh (not examined).
7.
PW-11 took up the investigation. He went to the place of occurrence,
drew the sketch and prepared the site plan. While returning, he was
informed by PW-7, another brother of the deceased that he received
information that the appellant was trying to escape to Dehradun. PW6, who heard about the occurrence, went to the place of occurrence
out of curiosity. The appellant was found and arrested at about 5060 yards from the place of occurrence by PW-11 in the presence of
PW-6, PW-7 and one Mr. Sanjeev Saini (not examined). The knife
that was said to have been used for committing the offence was
recovered from an open place at about 50 steps near the place of
occurrence. No arrest memo has been prepared though an entry
was made in the general diary. Recovery memo was signed by PW-6
and PW-7 alone.
[2024] 2 S.C.R.
783
Shailesh Kumar v. State of U.P. (Now State of Uttarakhand)
8.
The post-mortem was conducted by PW-4, Dr. Jaideep Dutta, which
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.
9.
After the initial investigation by PW-11, PW-12 took over the further
investigation, but did not take adequate care to check and verify the
earlier statements given by the witnesses. Some of the witnesses
have been examined at the earliest while the others like PW-2, PW-6
and PW-7 were examined 2 weeks thereafter. The FIR was curiously
sent by post and, therefore, reached the jurisdictional magistrate
days thereafter.
10. During the course of trial, the prosecution examined 13 witnesses.
In the questioning made under Section 313 of the Code of Criminal
Procedure, 1973 (hereinafter referred to as "CrPC"), the appellant
clearly denied all the charges levelled against him. On a request
made on behalf of the appellant, the general diary was summoned
and perused by the trial court. This was done as a question was
raised on the story propounded by the prosecution which goes to
the date and time of the occurrence. On perusal, the trial court found
out that there were certain interpolations with specific reference to
the dates and certain pages were missing and jumbled. While giving
a finding that the noting of the date as 22.06.1992 and thereafter
striking it off to 21.06.1992 as a clerical mistake, the trial court went
on to put the blame on the appellant that he maneuvered to do so
in connivance with somebody, though the said correction could only
help the case of the prosecution.
11. While convicting the appellant, the trial court placed heavy reliance
upon the evidence of PW-1 to PW-3. The discrepancies qua the
emergency medical register and amongst the statements of PW-1,
PW-2 and PW-3 were brushed aside as minor and natural or ignorable
discrepancies due to the passage of time. Much reliance has been
placed on the recovery of the two-wheeler, though not mentioned in
the site plan. The delay in recording the statement of the witnesses
were also taken lightly. The so-called dying declaration given before
PW-1 was accepted, despite a clear statement made by PW-5 that
none was present during the stay of the deceased with him till he
was sent to the other hospital.
784
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12. The High Court concurred with the decision of the trial court by
placing reliance upon the post-mortem report and the testimony of
PW-1 to PW-3.
SUBMISSION OF THE APPELLANT
13. Learned counsel for the appellant submitted that the evidence of PW-1
ought not to have been accepted by both the courts. The report from
the hospital had reached the police station much before. The person
to whom PW-1 dictated the complaint has not been examined. There
is no material for motive and the testimony of PW-1 is contrary to
the one given by PW-3, PW-5 and PW-8. Similarly, the presence
of PW-2 is extremely doubtful as his evidence was recorded weeks
thereafter. He was also not found to be present by PW-3 in the second
hospital, though PW-3 deposed otherwise. Therefore, evidence of
PW-2 also ought to have been eschewed. His statement that it is
PW-1 and himself who took the deceased to the second hospital is
found to be incorrect in view of the testimony of PW-8. The courts
below ought to have placed adequate reliance upon the evidence
of PW-5 and PW-8, the doctors, who were admittedly working in the
hospital at the relevant point of time. The fact that the FIR was not
registered immediately after the information was received clearly
indicates that it was ante-dated. This contention is also strengthened
by the inquest report prepared by the police officer of a different
police station i.e. by PW-9.
14. Learned counsel vehemently contended that the trial court has
committed grave error in not noting the fact that no time, date and
adequate particulars were mentioned in the case diary. The object
and rationale behind Section 172 of CrPC coupled with Sections
145, 161 and 165 of the Indian Evidence Act, 1872 (hereinafter
referred to as "Evidence Act") have been clearly overlooked by both
the courts. The motive has not been proved as witnesses have not
spoken about it in their statements under Section 161 of CrPC. It
is a case of completely botched up investigation and, therefore, the
appellant deserves acquittal.
SUBMISSION OF THE RESPONDENT
15. Learned counsel for the State placed substantial reliance upon
the recovery of the vehicle. It is stated that admittedly the vehicle
belonged to the father of the appellant. That is the reason why
[2024] 2 S.C.R.
785
Shailesh Kumar v. State of U.P. (Now State of Uttarakhand)
an application was filed seeking its custody, which came to be
allowed. Both the courts have rightly held that the discrepancies
are bound to happen in view of the passage of time from the date
of incident till the deposition is recorded in the Court. PW-2 and
PW-3 did not have any ulterior motive or reason to implicate the
appellant. PW-3's statement has been recorded at the earliest.
There is nothing wrong in the inquest report submitted by PW-9.
As there is no perversity, appreciation by both the courts of the
evidence available on record for coming to their conclusion does
not warrant any interference.
DISCUSSION
16. Before considering the factual submissions of both sides, we shall
first deal with the position of law which is relevant for deciding the
appeal.
Investigation and the Role of Investigating Officer
17. An investigation of a crime is a lawful search of men and materials
relevant in reconstructing and recreating the circumstances of
an offence said to have been committed. With the evidence in
possession, an Investigating Officer shall travel back in time and,
therefore tick off the time zone to reach the exact time and date
of the occurrence of the incident under investigation. The goal
of investigation is to determine the truth which would help the
Investigating Officer to form a correct opinion on the culpability of
the named accused or suspect. Once such an opinion is formed
on a fair assessment of the evidence collected in the investigation,
the role of the court comes into play when the evidence i.e. oral,
documentary, circumstantial, scientific, electronic, etc. is presented for
and on behalf of the prosecution. 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.
786
[2024] 2 S.C.R.
Digital Supreme Court Reports
18. 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. Arvind Kumar @ Nemichand & Ors. v.
State of Rajasthan, [2021] 11 SCR 237,
"Fair, Defective, Colourable Investigation
40. An Investigating Officer being a public servant
is expected to conduct the investigation fairly. While
doing so, he is expected to look for materials available
for coming to a correct conclusion. He is concerned
with the offense as against an offender. It is the offense
that he investigates. Whenever a homicide happens, an
investigating officer is expected to cover all the aspects and,
in the process, shall always keep in mind as to whether
the offence would come under Section 299 IPC sans
Section 300 IPC. In other words, it is his primary duty to
satisfy that a case would fall under culpable homicide not
amounting to murder and then a murder. When there are
adequate materials available, he shall not be overzealous
in preparing a case for an offense punishable under Section
302 IPC. We believe that a pliable change is required
in the mind of the Investigating Officer. After all, such
an officer is an officer of the court also and his duty
is to find out the truth and help the court in coming
to the correct conclusion. He does not know sides,
either of the victim or the accused but shall only be
guided by law and be an epitome of fairness in his
investigation.
41. There is a subtle difference between a defective
investigation, and one brought forth by a calculated and
deliberate action or inaction. A defective investigation
per se would not enure to the benefit of the accused,
unless it goes into the root of the very case of the
[2024] 2 S.C.R.
787
Shailesh Kumar v. State of U.P. (Now State of Uttarakhand)
prosecution being fundamental in nature. While
dealing with a defective investigation, a court of law
is expected to sift the evidence available and find out
the truth on the principle that every case involves a
journey towards truth. There shall not be any pedantic
approach either by the prosecution or by the court as
a case involves an element of law rather than morality.
xxx
xxx
xxx
44. We would only reiterate the aforesaid principle qua a
fair investigation through the following judgment of Kumar
v. State, (2018) 7 SCC 536:
"27. The action of investigating authority in
pursuing the case in the manner in which they
have done must be rebuked. The High Court
on this aspect, correctly notices that the police
authorities have botched up the arrest for
reasons best known to them. Although we are
aware of the ratio laid down in Parbhu v. King
Emperor [Parbhu v. King Emperor, AIR 1944 PC
73], wherein the Court had ruled that irregularity
and illegality of arrest would not affect the
culpability of the offence if the same is proved
by cogent evidence, yet in this case at hand,
such irregularity should be shown deference as
the investigating authorities are responsible for
suppression of facts.
28. The criminal justice must be above
reproach. It is irrelevant whether the falsity lie
in the statement of witnesses or the guilt of
the accused. The investigative authority has
a responsibility to investigate in a fair manner
and elicit truth. At the cost of repetition, I
must remind the authorities concerned to
take up the investigation in a neutral manner,
without having regard to the ultimate result.
In this case at hand, we cannot close our eyes
to what has happened; regardless of guilt or the
asserted persuasiveness of the evidence, the
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aspect wherein the police has actively connived
to suppress the facts, cannot be ignored or
overlooked."
45. A fair investigation would become a colourable
one when there involves a suppression. Suppressing
the motive, injuries and other existing factors which
will have the effect of modifying or altering the charge
would amount to a perfunctory investigation and,
therefore, become a false narrative. If the courts find
that the foundation of the prosecution case is false
and would not conform to the doctrine of fairness as
against a conscious suppression, then the very case
of the prosecution falls to the ground unless there are
unimpeachable evidence to come to a conclusion for
awarding a punishment on a different charge."
(emphasis supplied)
19. Common Cause and Others v. Union of India, (2015) 6 SCC 332,
"31. There is a very high degree of responsibility placed on
an investigating agency to ensure that an innocent person
is not subjected to a criminal trial. This responsibility is
coupled with an equally high degree of ethical rectitude
required of an investigating officer or an investigating
agency to ensure that the investigations are carried out
without any bias and are conducted in all fairness not only
to the accused person but also to the victim of any crime,
whether the victim is an individual or the State."
Case Diary
Section 172 of CrPC
"172. Diary of proceedings in investigation.-(1) Every
police officer making an investigation under this Chapter
shall day by day enter his proceedings in the investigation
in a dairy, 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.
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789
Shailesh Kumar v. State of U.P. (Now State of Uttarakhand)
(1-A) The statements of witnesses recorded during the
course of investigation under section 161 shall be inserted
in the case diary.
(1-B) The diary referred to in sub-section (1) shall be a
volume and duly paginated.
(2) Any Criminal Court may send for the police diaries of
a case under inquiry or trial in such Court, and may use
such diaries, not as evidence in the case, but to aid it in
such inquiry or trial.
(3) Neither the 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 or section 145, as the case may be, of the
Indian Evidence Act, 1872 (1 of 1872), shall apply."
Section 145 of the Evidence Act
"145. Cross-examination as to previous statements in
writing.-A witness may be cross-examined as to previous
statements made by him in writing or reduced into writing,
and relevant to matters in question, without such writing
being shown to him, or being proved; but, if it is intended
to contradict him by the writing, his attention must, before
the writing can be proved, be called to those parts of it
which are to be used for the purpose of contradicting him."
Section 161 of the Evidence Act
"161. Right of adverse party as to writing used to
refresh memory.-Any writing referred to under the
provisions of the two last preceding sections must be
produced and shown to the adverse party if he requires it;
such party may, if he pleases, cross-examine the witness
thereupon."
20. A case diary is maintained by an Investigating Officer during his
investigation for the purpose of entering the day-to-day proceedings
of the investigation. While doing so, the Investigating Officer should
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mandatorily record the necessary particulars gathered in the course
of investigation with the relevant date, time and place. Under subsection (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. Sub-section (1-A)
and (1-B) were inserted by Act 5 of 2009 with effect from 31/12/2009.
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. To highlight the
importance of adhering to the requirements of these sub-sections,
we rely upon the Law Commission of India's One Hundred and
Fifty Fourth Report (154th) on Code of Criminal Procedure, 1973,
Chapter IX,
"7. After giving our earnest consideration and in view of
the fact that there is unanimity in respect of the need for
making substantial changes in the law, we propose that
there should be changes on the following lines :
...The signature of the witness on the statement thus
recorded need not be obtained. But, if the witness so
examined desires a copy of such statement so recorded
shall be handed over to him under acknowledgement.
To reflect the shift in emphasis, a corresponding
amendment to Section 172 should also be made to
the effect that the Investigating Officer maintaining
the case diary should mention about the statement of
the circumstances thus ascertained, and also attach
to the diary for each day, copies of the statement
of facts thus recorded under Section 161 CrPC.
Neither the accused nor his agent shall be entitled
to call for such diaries which can be put to a limited
use as provided under Section 172 CrPC. Under the
existing provisions of the Code, the preparation of
the earliest record of the statement of witness is
left in the hands of Investigating Officer and as the
mode of recording as provided in section 162 does
not ensure the accuracy of the record (It is well
known that many good cases are spoiled by insidious
incorrect entries at the instance of the accused and
it is also well known that many innocent persons
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791
Shailesh Kumar v. State of U.P. (Now State of Uttarakhand)
are sent up along with the guilty at the instance of
informant's party),..."
(emphasis supplied)
21. In furtherance of the above suggestion, the Law Commission of India
accordingly provided a draft amendment to Section 172 of CrPC for
the consideration of the Parliament,
"... On the above mentioned lines, the relevant Sections
can be amended as follows:
xxxx
172(1) Every police officer making an investigation under
this chapter shall day by day enter his proceedings in
the investigation 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 if the circumstances ascertained
through his investigation; and also attach to the diary for
each day copies of statement of facts, if any, recorded
under Section 161 in respect of the person or persons
whose examination was completed that day.
(2) Any criminal Court may send for the police diaries of
a case under inquiry or trial in such court, and may use
such diaries, not as evidence in the case, but to aid it in
such inquiry or trial.
(3) Neither the 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 this Court."
(emphasis supplied)
22. While it is the responsibility and duty of the Investigating Officer to
make a due recording in his case diary, there is no corresponding
right under sub-section (3) of Section 172 of CrPC for accused to
seek production of such diaries, or to peruse them, except in a case
where they are used by a police officer maintaining them to refresh
his memory, or in a case where the court uses them for the purpose
of contradicting the police officer. In such a case, the provision of
Section 145 or Section 161, as the case may be, of the Evidence
Act, shall apply.
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23. 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 right of the accused is, therefore, very restrictive
and limited. Bhagwant Singh v. Commissioner of Police, (1983)
3 SCC 344,
"17. The other inference which disturbs us is that the
entries in the police case diary (set forth in the annexure
to the counter-affidavit on the record) do not appear to
have been entered with the scrupulous completeness and
efficiency which the law requires of such a document.
The haphazard maintenance of a document of that
status not only does no credit to those responsible for
maintaining it but defeats the very purpose for which
it is required to be maintained. We think it to be of the
utmost importance that the entries in a police case
diary should be made with promptness, in sufficient
detail, mentioning all significant facts, in careful
chronological order and with complete objectivity."
(emphasis supplied)
24. Baleshwar Mandal v. State of Bihar, (1997) 7 SCC 219,
"5. Under Section 172 CrPC read with Rule 164 of
Bihar Police Manual dealing with the investigation,
an Investigating Officer investigating a crime is under
obligation to record all the day-to-day proceedings and
information in his case diary, and also record the time
at which the information was received and the place
visited by him, besides the preparation of site plan
and other documents. The Investigating Officer is also
required to send bloodstained clothes and earth seized
from the place of occurrence for chemical examination.
Failure on the part of the Investigating Officer to comply
with the provisions of Section 172 CrPC is a serious
lapse on his part resulting in diminishing the value
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793
Shailesh Kumar v. State of U.P. (Now State of Uttarakhand)
and credibility of his investigation. In this case the
Investigating Officer neither entered the time of recording
of the statements of the witnesses in the diary nor did he
send the bloodstained clothes and earth seized from the
place of occurrence for examination by a serologist. The
High Court also adversely commented upon the lapses on
the part of the Investigating Officer in not complying with
the provisions of the Code of Criminal Procedure. We,
therefore, take it that, in fact, there was serious lapse
on the part of the Investigation Officer in not observing
the mandate of Section 172 CrPC while investigating
the case which has given rise to this appeal. But the
question that arises for consideration is, has any
prejudice been caused to the accused in the trial by
non-observance of rules by the Investigating Officer?
The evidence on record before the Sessions Court and
the appellate court does not show that due to the lapses
on the part of the Investigating Officer in not sending the
bloodstained clothes and earth seized from the place of
occurrence for chemical examination and further not noting
down the time of recording the statement of the witnesses
in the diary has resulted in any prejudice to the defence of
the accused. In the present case, the place of occurrence
and the identity of the deceased are not disputed. Further,
the testimony of the eyewitnesses which is consistent and
does not suffer from infirmity, was believed by both the
courts below. Once the eyewitnesses are believed and
the courts come to the conclusion that the testimony
of the eyewitnesses is trustworthy, the lapse on the
part of the Investigating Officer in not observing the
provisions of Section 172 CrPC unless some prejudice
is shown to have been caused to the accused, will
not affect the finding of guilt recorded by the Court.
Neither before the High Court nor before this Court, it was
pointed out in what manner the accused were prejudiced
by non-observance of the provisions of Section 172 CrPC
and the rules framed in this regard. We are, therefore, of
opinion that judgments of the courts below do not suffer
on account of omission on the part of the Investigating
Officer in not sending the earth seized from the place of
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occurrence for chemical examination or in not entering
the time of recording of the statements of witnesses in
the diary."
(emphasis supplied)
25. Manoj and Others v. State of Madhya Pradesh, (2023) 2 SCC 353,
"203.