Decided on August 23,1979



A.M.AHMADI, D.H.SHUKLA - (1.) * * * *
(2.) The learned trial Judge has taken a very strong objection to the conduct of the police in tutoring Minakshi and in reading over the police statements to the witnesses. He has sought support from two decisions Kathi Moti Lakha and two others v. The State of Gujarat Criminal Appeal No. 543 of 1962 decided on November 21/22 1963 and Zahi ruddin v. King Emperor 49 B.L.R. 521 (PC) in coming to the conclusion that the witnesses can no more be relied upon if their statements have been read over to them by the police before the recording of the evidence commenced. The learned trial Judge has observed that the conclusion is inevitable that no value whatever could be attached to the testimony of the prosecutrix Minakshi Sukhlal. It appears that the attention of the learned trial Judge was not drawn to the Full Bench decision reported in the case of Nathu Manchhu v. State of Gujarat 18 G. L. R. 1041. The entire question is fully considered in the judgment by D. P. Desai J. speaking for the Full Bench and he has examined the question in the light of the different eventualities. It was held in the judgment that the evidence of a witness to whom his statement recorded in the course of the investigation under Chapter XII of the Criminal Procedure Code is read over before be steps into the witness box does not become inadmissible. Its probative value has to be judged in the circumstances of each case. No hard and fast rule can be laid down that in all such cases the evidence of such witness will be of no value whatsoever. This clear observation is a reply to the observation of the learned trial Judge that inevitable conclusion which could be reached in Minakshis case was that her testimony was of no value at all. It is further observed that reading over the statement recorded in the course of the investigation to a witness before he enters the witness box does not amount to its use being made contrary to sec. 162(1) of the Criminal Procedure Code. We do not propose to refer at length the different aspects of this question discussed in this ruling but suffice it for us to observe that if this ruling was brought to the notice of the learned trial Judge he might have probably weighed and appreciated the evidence on the record of the present case in a different way.
(3.) Even when we take a different view in appreciating the oral evidence of Minakshi and other three witnesses we do strongly feel that the tutoring of witnesses by police must be condemned. It may be that the evidence of the witnesses who are read over their earlier statement is not inadmissible and may be even relied upon but that legal position does not detract the blemish of doing social disservice on the part of the investigation which indulges in such a practice. The function of the police is to maintain law and order and to investigate the crime to bring the offender to face a legal trial. The police function is no more than this so far as the investigation is concerned. Honest and efficient investigation of crime is its own reward irrespective of the result in the trial. An endeavour to bring about successful result by manipulating evidence or indulging in a malpractice of tutoring a witness and the like must be condemned. It is high time that the investigating authority and the officer in charge of the prosecution realise that such an endeavour does not enhance social image of the investigation even when it is successful in bringing about a conviction but it is an act of social disservice. It is no credit to them to obtain a conviction of an accused who is likely to have the benefit of a reasonable doubt or who is or is known to be an innocent person by such and other dubious methods. An efficient and clean investigation shall command public and judicial esteem. It is this malpractice which has come to light in this case which led the learned Additional Sessions Judge to discard the evidence of the prosecution witnesses out right and acquit the accused. This is obvious social disservice which the investigating agency did in this case by resorting to a malpractice. This practice resorted to by the investigators put us on guard and we looked for the convincing corroborative evidence before accepting any part of the evidence of the prosecution witnesses. ... ... ... ..;

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