Gokulraj raj criminal appeal- MSRJ-NAVJ bench directed the investigation officer to produce PW.4 Swathy tomorrow. The Investigation Officer shall produce P.W-4 before this Court tomorrow (25.11.2022). W-4 shall be brought with sufficient police protection and she shall be directly brought to the Judges’ Chamber. Thereafter, P.W-4 will be brought directly to the Court from the Judges’ Chamber. P.W-4 is recalled for examination on 25.11.2022.                                                                             (M.S.R.,J.)  &    (N.A.V.,J.)                                                                                                24.11.2022 Index     : Yes/No Internet : Yes PJL/SM   M.S.RAMESH,J. and N. ANAND VENKATESH,J. PJL/SM    Crl.A(MD)Nos.228, 230, 232, 233, 515, 536 and 747 of 2022 24.11.2022

Crl.A(MD)Nos.228, 230, 232, 233, 515, 536 and 747 of 2022

  • RAMESH, J.



[Order of the Court was made by N.ANAND VENKATESH, J.]

Having gone through the record of the trial court we find that PW-4, had initially played an active role in assisting the prosecution at the stage of investigation. Being a star witness, the investigation had her statement recorded by the Magistrate under Section 164 Cr.P.C. However, it appears that something had transpired between the date of recording of the 164 Cr.P.C statement and time she was called to depose in her examinationin-chief before the trial court. PW-4 appears to have completely turned turtle andresiled from her previous statements. The trial court, without exercising power under Section 165 Cr.P.C and eliciting the cause for this sudden somersault, simply declared PW-4 as hostile and discarded her evidence.

  1. The scourge of witnesses turning hostile is now a regular

feature particularly in sensitive cases. Way back in Zahira Habibullah Sheikh (5) v. State of Gujarat, (2006) 3 SCC 374, the Supreme Court emphasized the duty of the State in protecting the witnesses so as to ensure that during a trial the witness could safely depose the truth without any fear of being haunted by those against whom he had deposed. The Court added that if ultimately the truth is to be arrived at, the eyes and ears of justice have to be protected so that the interests of justice do not get incapacitated in the sense of making the proceedings before the courts mere mock trials as are usually seen in movies.

  1. There exists a duty on the trial court to play a participatory

role in the trial particularly in cases where star witnesses turn hostile and flagrant contradictions are noticed in the evidence. It is for this reason that the trial court has been invested with powers under Section 165 of the Evidence Act. In Mina Lalita Baruwa v. State of Orissa, (2013) 16 SCC

173, the Supreme Court observed:

“As has been held by this Court in Zahira Habibulla H.

Sheikh [Zahira Habibulla H. Sheikh v. State of Gujarat, (2004) 4 SCC 158 : 2004 SCC (Cri) 999] , a criminal court cannot remain a silent spectator. It has got a participatory role to play and having been invested with enormous powers under Section 311 CrPC, as well as Section 165 of the Evidence Act, a trial court in a situation like the present one where it was brought to the notice of the court that a flagrant contradiction in the evidence of PW 18 who was a statutory authority and in whose presence the test identification parade was held, who is also a Judicial Magistrate, ought to have risen to the occasion in public interest and remedied the situation by invoking Section 311 CrPC, by recalling the said witness with further direction to the Public Prosecutor for putting across the appropriate question or court question to the said witness and thereby set right the glaring error accordingly. It is unfortunate to state that the trial court miserably failed to come alive to the realities as to the nature of evidence that was being recorded and miserably failed in its duty to note the serious flaw and error in the recording of evidence of PW 18. In this context, it must be stated that the prosecutor also unfortunately failed in his duty in not noting the deficiency in the evidence. The observation of the High Court while disposing of the revision by making a casual statement that the appellant can always file the written argument equally in our considered opinion, was not the proper approach to a situation like the present one. What this Court wishes to ultimately convey to the courts below is that while dealing with a litigation, in particular, while conducting a criminal proceeding, maintain a belligerent approach instead of a wooden one.”

Emphasizing that it was the duty of the Court to clear the record where a witness had made a wrong statement contrary to the record, the Supreme Court went on to observe as under:

“In criminal jurisprudence, while the offence is against the society, it is the unfortunate victim who is the actual sufferer and therefore, it is imperative for the State and the prosecution to ensure that no stone is left unturned. It is also the equal, if not more, duty and responsibility of the court to be alive and alert in the course of trial of a criminal case and ensure that the evidence recorded in accordance with law reflect upon every bit of vital information placed before it. It can also be said that in that process the court should be conscious of its responsibility and at times when the prosecution either deliberately or inadvertently omit to bring forth a notable piece of evidence or a conspicuous statement of any witness with a view to either support or prejudice the case of any party, should not hesitate to interject and prompt the prosecution side to clarify the position or act on its own and get the record of proceedings straight. Neither the prosecution nor the court should remain a silent spectator in such situations  . Like in the present  case where there is a wrong statement made by a witness contrary to his own record and the prosecution failed to note the situation at that moment or later when it was brought to light and whereafter also the prosecution remained silent, the court should have acted promptly and taken necessary steps to rectify the situation  appropriately  . The whole scheme of the Code of Criminal Procedure envisages foolproof system in dealing with a crime alleged against the accused and thereby ensure that the guilty does not escape and the innocent is not punished. It is with the above background, we feel that the present issue involved in the case on hand should be dealt with.”

  1. 4. Having noticed this serious lapse on the part of the trial court

it is now necessary to examine whether this Court should exercise its power to take additional evidence under Section 391 Cr.P.C to recall PW-4. Section

391 Cr.P.C reads as follows:

391. Appellate court may take further evidence or direct it to be taken.—(1) In dealing with any appeal under this Chapter, the appellate court, if it thinks additional evidence to be necessary, shall record its reasons and may either take such evidence itself, or direct it to be taken by a Magistrate, or when the appellate court is a High Court, by a Court of Session or a Magistrate.

  • When the additional evidence is taken by the Court of Session or the Magistrate, it or he shall certify such evidence to the appellate court, and such court shall thereupon proceed to dispose of the appeal.
  • The accused or his pleader shall have the right to be present when the additional evidence is taken.
  • The taking of evidence under this section shall be subject to the provisions of Chapter XXIII, as if it were an inquiry.”

The key words in Section 391(1) are “if it thinks additional evidence to be necessary”. The test for exercising power to take additional evidence was explained by Hidayatullah, J in Rajeswar Prasad

Misra v. State of W.B.,: AIR 1965 SC 1887, in the following way:

“Additional evidence may be necessary for a variety of reasons which it is hardly proper to construe one section with the aid of observations made to do what the legislature has refrained from doing, namely, to control discretion of the appellate court to certain stated circumstances. It may, however, be said that additional evidence must be necessary not because it would be impossible to pronounce judgment but because there would be failure of justice without it.”

Thus, the key question is not whether it would be impossible for the appellate court to pronounce judgment without taking additional evidence, but whether a failure of justice would result if such additional evidence is not taken.

  1. The power under Section 391 Cr.P.C is not confined to

recalling a witness for further examination in the light of his previous statement (See Sudevanand v. State, (2012) 3 SCC 387). In Sukhjeet Singh v. State of U.P., (2019) 16 SCC 712, the Supreme Court observed that the power of the appellate court under Section 391 Cr.P.C is not hedged with any fetters and ultimately rests on the need to secure the ends of justice. The

Supreme Court observed:

“From the law laid down by this Court as noted above, it is clear that there are no fetters on the power under Section 391 CrPC of the appellate court. All powers are conferred on the court to secure ends of justice. The ultimate object of judicial administration is to secure ends of justice. Court exists for rendering justice to the people.”

  1. There could be no greater affront to the system of

administration of justice if Courts are to remain mute spectators when star witnesses turn hostile in front of it. We have no hesitation in saying that there exists a duty on the Court, in such cases, to exercise powers under Section 165 Cr.P.C to put necessary questions to the witness to satisfy itself as to whether the witness is answering questions truthfully. The object and purpose of Section 165 of the Evidence Act was outlined by Sir James Fritz Stephen, in his speech on 31.03.1871, presenting the report of the Select Committee on the Bill to define and amend the law of Evidence. Stephen observes:

“Passing over certain matters which are explained at length in the Bill and report, I come to two matters to which the Committee attach the greatest importance as having peculiar reference to the administration of justice in India. The first of these rules refers to the part taken by the judge in the examination of witnesses; the second, to the effect of the improper admission or rejection of evidence upon the proceedings in case of appeal.

That part of the law of evidence which relates to the manner in which witnesses are to be examined assumes the existence of a well-educated Bar, co-operating with the Judge and relieving him practically of every other duty than that of deciding questions which may arise between them. I need hardly say that this state of things does not exist in India, and that it would be a great mistake to legislate as if it did. In a great number of cases – probably the vast numerical majority – the Judge has to conduct the whole trial himself. In all cases, he has to represent the interests of the public much more distinctly then he does in England. In many cases, he has to get at the truth, or as near to it as he can by the aid of collateral inquiries, which may incidentally tend to something relevant; and it is most unlikely that he should ever wish to push an inquiry needlessly, or to go into matters not really connected with it. We have accordingly thought it right to arm Judges with a general power to ask any questions upon any facts, of any witnesses, at any stage of theproceedings, irrespectively of the rules of evidence binding on theparties and their agents, and we have inserted in the Bill a distinctdeclaration that it is the duty of the Judge, especially in criminal cases, not merely to listen to the evidence put before him but to inquire to the utmost into the truth of the matter.”

It is trite that an appeal is a continuation of the original proceeding and the appellate Court is not denuded of the power under Section 165 of the Evidence Act to clarify certain aspects of the case, if the need arises.

  1. 7. As was pointed out in Zahira Habibulla H. Sheikh v. State

of Gujarat, (2004) 4 SCC 158:

“In the case of a defective investigation the court has to be circumspect in evaluating the evidence and may have to adopt an active and analytical role to ensure that truth is found by having recourse to Section 311 or at a later stage also resorting to Section 391 instead of throwing hands in the air in despair. It would not be right in acquitting an accused person solely on account of the defect; to do so would tantamount to playing into the hands of the investigating officer if the investigation is designedly defective. (See Karnel Singh v. State of M.P. [(1995) 5 SCC 518 : 1995 SCC (Cri) 977] )”

Unlike the trial court which was rest content with playing the role of an umpire in a criminal trial, this Court cannot remain a mute spectator to what, prima facie, appears to be an attempt to derail and subvert the course of justice. The appellate court cannot sit like


monks in a cell balancing right against wrong. To satisfy our judicial conscience, particularly in the light of the fact that this case is loaded with communal overtones, we have found it necessary to exercise our powers under Section 391 Cr.P.C suo motu to recall PW-4 to the witness box. We find that this course is absolutely imperative without which a clear failure of justice would be occasioned.

  1. We enquired the Investigation Officer in order to ascertain

the whereabouts of P.W-4.  On enquiry, it was informed to us that P.W-4 has now settled at Namakkal District in her matrimonial home.

  1. On going through the entire materials placed before us, we

found that there was lack of protection for P.W-4 before she came before the trial Court to depose as a witness.  We do not want to repeat that mistake and hence, there shall be a direction to the Superintendent of Police, Namakkal District to forthwith provide police protection to Swathi (P.W-4) and her family members.  The Police shall ensure that no one is allowed to meet P.W-4 or make any phone calls to her and her family members.  There shall be a further direction to the Police to also provide police protection to the parents of PW4 and their family members.  These safeguards must be taken to ensure that P.W-4 comes before this Court without any fear in her mind, when she is questioned by this Court.

  1. The Investigation Officer shall produce P.W-4 before this Court tomorrow (25.11.2022). W-4 shall be brought with sufficient police protection and she shall be directly brought to the Judges’ Chamber.

Thereafter, P.W-4 will be brought directly to the Court from the Judges’


P.W-4 is recalled for examination on 25.11.2022.

                                   (M.S.R.,J.)  &    (N.A.V.,J.)


Index     : Yes/No

Internet : Yes PJL/SM







Crl.A(MD)Nos.228, 230, 232,

233, 515, 536 and 747 of 2022


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