Points to be kept in mind while deciding sessions trial

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1. There are certain points which more often than not create trouble to the

prosecution, accused and even courts. In such situation it becomes difficult for

all of above as to decide what to do next. To deal with such issues of law, a little

attempt is made to cover all such issues, with it's solutions, based on the ratios

laid down by the Hon'ble Apex Court and Hon'ble High Courts.

2. Depending on the gravity of the offences and the punishment prescribed

therefor, criminal trial under the Code of Criminal Procedure, 1973 (hereinafter

referred as 'the Code') has been classified into two parts viz., Magisterial trial

and Sessions trial. The first schedule to the the Code is divided into two parts

namely, Part I and Part II. Column I of the first part of the first schedule

enumerates the list of offences punishable under the Indian Penal Code and

Column 6 thereof indicates the court by which those offences are triable. Those

courts are either the Magistrate’s courts or the courts of Session. The second part

of the first schedule deals with offences punishable under other laws. In the

absence of any specific provision under such other laws regarding investigation,

inquiry or trial, the procedure prescribed under the Code for the same shall be

applicable by virtue of Section 4(2) of the Code. If under the special law the

offence is punishable with imprisonment for life or imprisonment for more than

7 years, then by virtue of the second part of the first schedule to the Code the

offence shall be triable by a Court of Session.

3. Relevant provisions as to Sessions Trial:

3.1. Chapter XVIII of the Code starting with Section 225 and ending with

Section 237 and same deal with provisions governing the trial before a Court

of Session. Section 225 of the Code enjoins that in every trial before a Court

of Session the prosecution shall be conducted by a Public Prosecutor

(hereinafter referred as 'P.P.') Section 193 of the Code provides that except as

Points to be kept in mind while trying Session cases. Prepared by H.S. Mulia

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otherwise expressly provided by the the Code or any other law, no Court of

Session shall take cognizance of any offence as a court of original jurisdiction

unless the case has been committed to it by a Magistrate under the the Code

There are statutes like the N.D.P.S. Act, 1985 {Section 36A(1)(d)}, Prevention

of Corruption Act, 1988 (Section 5), Protection of Children from Sexual

Offences Act, 2012 {Section 33(1)} and offence of Defamation against the

president, VicePresident, Governor of the State, Sate Administrator of UT etc

(as provided u/s 199(2) of the Code), wherein it is provided that the special

Court (Sessions Judge) shall take cognizance of an offence under the said

Acts without the case being committed to it. In such cases it is permissible for

the Sessions Court to take cognizance of the offence without a committal of

the case by the Magistrate concerned. But there are other enactments, for

example The Scheduled Castes and Scheduled Tribes (Prevention of

atrocities) Act, 1989 which is silent regarding commitment. Trial under this

statutes is also to be conducted by a Court of Session. In Gangula Ashok v.

State of A.P. – AIR 2000 SC 740. Hon'ble Supreme Court held that the

mandate under Section 193 the Code is applicable to the special courts

manned by Sessions Judges trying offences under the SC/ST (Prevention of

atrocities) Act, 1989 and that those courts cannot take cognizance of the

offences under the said Act without the case being committed to them by the

Magistrates concerned. Said view is followed and approved by Hon'ble

Supreme Court in the case of Rattiram v. State of M. P. , reported in AIR 2012

SC 1485 (Three Judges).

3.2. When the accused appears or is brought before court pursuant to the

commitment of the case, the P.P. should open the case by describing the charge

brought against the accused and stating by what evidence he proposes to

prove the guilt of the accused. After considering the record of the case and the


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documents submitted along with such record and after hearing the

submissions of the accused and the prosecution, if the Sessions Judge

considers that there are no sufficient grounds for proceeding against the

accused, Sessions Judge shall discharge the accused giving reasons for doing

so. If, however, the judge is of the opinion that there is ground for presuming

that the accused has committed the offence he may frame the charge against

the accused in writing. At this stage the Sessions Judge is entitled to consider

only the documents produced by the prosecution along with the charge sheet.

The accused is not entitled to produce or cause production of any document

at this stage for the consideration of the Sessions Judge. (But he can produce

documents in support of his case, as and when such stage comes i.e. to say

u/s 294, 233 and 315 of the Code). The charges shall be read over to the

accused and explained to him and he shall be asked as to whether he pleads

guilty of the offence charged or whether he claims to be tried for the charge.

If the judge is of opinion that notwithstanding the conclusions of the police,

the offence that is actually made out is not one exclusively triable by a court

of Sessions then he shall frame a charge against the accused and transfer the

case for trial to the Chief Judicial Magistrate who shall try the case as if it

were a warrant case instituted on a police report. Even though Section 229 of

the Code gives discretion to the judge to convict the accused, in case if he

pleads guilty, the charge in a sessions case being for grave offences, it is

desirable that the accused is not straightaway convicted. The proper course

would be to call upon the prosecution to prove its case by adducing evidence.

Where the accused does not plead guilty the court shall call upon the

prosecution to adduce evidence in support of its case. Evidence for the

prosecution shall be taken on a daytoday basis (Section 309 of the Code).

After the conclusion of the prosecution evidence, the accused is to be


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examined under Section 313(1)(b) of the Code with regard to the

incriminating circumstances appearing against him in the evidence for the

prosecution. After the examination of the accused the court has to post the

case for hearing under Section 232 of the Code. If after hearing the

prosecution and the defence the judge considers that there is no evidence to

indicate that the accused committed the offence with which he is charged the

judge can record an order of acquittal under Section 232 of the Code. This is

a very vital stage of the sessions trial and observance of Section 232 of the

Code and Section 233 of the Code at the appropriate stage is mandatory. K.

Moidu Mammoo v. State of Kerala, reported in 2009 Cr.L.J. 4045 (Full

Bench).

3.3. After hearing under Section 232 of the Code, if the accused is not acquitted

thereunder, the accused shall be called upon to enter on his defence and to

adduce any evidence which he might have in support thereof. After the

conclusion of the defence evidence, if any, the case has to be taken up for

arguments. After hearing the arguments, the court has to pass the judgment

in accordance with Sections 353 and 354 of the Code. If the judgment is one

of conviction and the judge does not proceed to invoke the benevolent

provision of the Probation of Offenders Act, 1958, Judge shall hear the

accused on the question of sentence and then pass a sentence in accordance

with law. This in short is the procedure to be followed in the ordinary murder

trials before a Court of Session.

4. Points to be kept in mind while trying Sessions Cases:

4.1. Before the commencement of the trial, Sessions Judge has to ensure that

the police paper (charge sheet) along with the original 161(3) statements of

witnesses are before the court (Magistrate is required to comply with the

section 209 of the Code).


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4.2. At the outset, it should be ascertained from the defence lawyer whether he

has got copies of all the statements of the witnesses, documents including

chemical report, F.S.L. report etc. If there is any undesirable conduct on the

part of a defence lawyer complaining of nonreceipt of copies of statements of

witnesses etc. possibly with a view to get the matter adjourned and protract

the trial, judge should inform the lawyer of the accused that he had no

grievance when the committal Magistrate had complied with Section 207 or

208 of the Code.

4.3. Before the commencement of the prosecution evidence it is always

desirable for the judge to make a personal note of the following details

ascertained from the records of the case or from the public prosecutor and or

from the defence lawyer:

a) The date, time and place of occurrence

b) the date and time of reporting to the police

c) the date and time of the F.I.R. reaching the Magistrate concerned

d) The name of the deceased and his alias name, if any,

e) the names and alias name, if any, of each accused person

f) the date of arrest of each accused. This can be written against the

names of each accused persons.

• If Sessions Judge is fully informed in advance about the above details,

judge may not make mistakes during the course of the trial. Similarly, if

the 'P.P' or defence lawyer or a witness makes mistakes judge can

correct them or seek further clarification of the matter.

4.4. Framing of charge is an exercise which has to be performed with due care

and caution. The police invariably file their chargesheet in vernacular

language. The police charge will be in the form of a single complex sentence

without any separate counts of charge. There should be a separate count of


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charge for each penal Section. It will be useful to refer to the model charge

given after each penal provision of the I.P.C. in the “Law of Crimes” by

Rathanlal and Dheerajlal. If the Sessions Judge stating in the court charge

that the accused person caused the death of the deceased by stabbing on

specified parts of the human body, do not blindly follow the police charge but

ensure the location of the injuries on the body of the victim from the

postmortem certificate, injury/medical certificate, inquest report etc.

4.5. Even when the accused pleads guilty to the charge framed against him and

judge is convinced that his plea is voluntarily made, please don't proceed to

straightaway convict him. This is because the words used u/s 229 of the Code

are “If the accused pleads guilty, the judge shall record the plea and may, in

his discretion convict him thereon”. The Court should not act upon the plea of

guilty in serious offences but should proceed to take the evidence as if the

plea had been one of not guilty and should decide the case upon the whole

evidence including the accused plea. Ram Kumar v. State of U.P, reported in

1998 Cr.L.J. 1267; Manish Misra v. State of U.P., reported in 2003 Cr.L.J.

4085.

4.6. A disturbing trend noticed in various Sessions Courts is the adjournment of

the trial contrary to the daytoday rule enjoined by Section 309(1) of the

Code. Once the trial of a Sessions Case has begun, it should be proceeded

with from daytoday. Section 317 of the Code speaks about inquiries or trial

being held in the absence of accused. Said section provides that when accused

is represented by the pleader, Judge may proceed with such trail in absence of

the accused. But when the issue of identity of the accused is involved, Judge

may not proceed with the trial in absence of accused in such cases.

4.7. At what stage can a prosecution witness be declared hostile? It is enough if

the witness deviates from his previous statements made to the police or when


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the Court considers it necessary to grant the permission under Section 154 of

the Evidence Act,1872 from the witnesse's demeanour, temper, attitude,

bearing, tenor or tendency of his answers or otherwise. The discretion

conferred by the above provision should be liberally exercised. It is open to

the party who calls the witness to seek permission of the court under Section

154 of the Evidence Act,1872 at any stage of the examination. Please refer to

ratio laid down by Hon'ble Apex Court in the case of Dahyabhai Chhaganbhai

Thakker v. State of Gujarat AIR 1964 SC 1563. The P.P. can request the court

to declare such a witness as hostile. Merely because the Court gave

permission to the P.P. to crossexamine his own witness by declaring him

hostile, it does not mean that the evidence of such a witness is completely

effaced. Please refer to ratio laid down by Hon'ble Apex Court in the case of

Anil Rai v. State of Bihar AIR 2001 SC 3173. It will be inappropriate to write

in the deposition of a witness that he is declared hostile. Neither the Evidence

Act nor the the Code uses such an expression. When the P.P. makes a request

in this behalf, the court is actually granting permission under two separate

provisions of law. The first permission that is granted is under Section 154 of

the Evidence Act,1872 permitting the P.P. to put questions to his own witness

which might be put in crossexamination by the adverse party. The second

permission which is granted is one under the proviso to Section 162(1) of the

Code wherein the P.P. is permitted to confront the witness with his statements

made to the police. Hence the legal way of granting permission to the P.P.

would be by writing in the deposition, the following:

“P.P. Is granted permission under Section 154 of the Evidence

Act, 1872 and under the proviso to Section 162(1) of the

Code”. Thereafter also, it is chief examination and not cross

examination.”


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4.8. When a witness says that he did not make a particular statement to the

police and if his 161(3) statement is otherwise, then the attention of the

witness should be drawn to that part of his 161(3) statement and his

explanation for having made that statement, should be sought by the cross

examining counsel. Which may be:

“When you were questioned by the police you appear to have

made a statement as above. What have you got to say about

that?”

4.9. There may be, in a given case, more than one accused or one witness

having the same name. Ensure that no mistake is committed on account of

this. After the initial mention by a witness of the full name of an accused

person or a witness it is desirable to give in parenthesis the rank of the

accused or the witness as A2 or C.W.2 or P.W.3, as the case may be, so that

whenever the name of the same accused or witness is made mention of by a

witness, his full name need not be repeated. This can help you to avoid

needless confusion. Munney @ Rahat Jan Khan v. State of U.P, reported in

2006 Cr.L.J. 4064 (SC).

4.10. Very often the defence would elicit from the prosecution witnesses that

even before the lodging of the F.I.R, police had come to the scene of crime and

questioned the witnesses and had taken their statements. This is obviously to

offset such statements with a view to request the court to discard such

statements as one hit by Section 162 of the Code. But make sure as to

whether the visit of the police was only to ensure some unconfirmed report

which they might have received about the occurrence and their questioning of

persons was only towards that end or not. Satish Narayan Sawant v. State of

Goa, 2009 Cr.L.J. 4655 (SC).

4.11.Barring the statutorily exempted category, hearsay evidence is not


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acceptable as legal evidence in view of the implied prohibition under Section

60 of the Evidence Act, 1872. Very often nonoccurrence witnesses may testify

before court that other persons told them that the accused had stabbed the

deceased and so on. Such statements as such, need not be recorded unless

they constitute res gestae evidence, extra judicial confession or any other

exempted category.

4.12. Where during the course of the trial if one or more accused are found

absconding then their bail should be cancelled immediately and his surety

shall be summoned to produced such absconding accused or payup amount

of surety. There are then two options available to the court. One is to merely

issue arrest warrant against them and continue with the trial with the accused

present by segregating trail of absconding accused with the present accused.

The other alternative is to stop the trial and issue arrest warrant and initiate

steps under Sections 82 and 83 of the Code. By following the second course,

trial of the case gets disrupted. Use your discretion after evaluating the

situation.

4.13. Supposing an accused who is lunatic is committed to the court of Session,

without there being any inquiry, such committal is illegal because it is for the

committal Magistrate himself to conduct an inquiry under Section 328 of the

Code. But when accused person who is of unsound mind is committed to the

court of Session, Sessions Judge has to follow procedure as provided u/s 329

of the Code.

4.14. Section 10 of Evidence Act,1872 renders anything said, done or written by

anyone of the conspirators in reference to their common intention as a

relevant fact, not only as against each of the conspirators but for proving the

existence of the conspiracy itself. Further, the said fact can be used for

showing that a particular person was a party to the conspiracy. The only


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condition for application of the rule in S. 10 is that there must be "reasonable

ground to believe that two or more persons have conspired together to

commit an offence.

a) The basic principle which underlies in S.10 of the Evidence Act, 1872 is

the theory of agency and hence every conspirator is an agent of his

associate in carrying out the object of the conspiracy. There can be no

doubt, relying on the confession by one of the accused that, there are

reasonable grounds to believe that all the four accused have conspired

together to commit the offence. So what these accused have spoken to

each other in reference to their common intention as could be gathered

from said confession can be regarded as relevant facts falling within the

purview of the S.10 of the Evidence Act, 1872. It is not necessary that a

witness should have deposed to the fact so transpired between the

conspirators. A dialogue between them could be proved through any other

legally permitted mode. When confession is legally proved and found

admissible in evidence, the same can be used to ascertain what was said,

done or written between the conspirators. All the things reported in that

confession referring to what accused 'A' and accused 'B' have said and done

in reference to the common intention of the conspirators are thus usable

under S.10 of the Evidence Act, as against those two accused as well, in

the same manner in which they are usable against confessor himself.

Please refer to ratio laid down in the case of Mohammed Ajmal

Mohammad Amir Kasab alias ABU Mujahid v. State of Maharashtra,

reported in AIR 2012 SC 3565 and State of Maharashtra v. Damu

Gopinath Shinde, reported in AIR 2000 SC 1691.

b) Statements made by the conspirators after they are arrested cannot be

brought within the ambit of S.10 of the Evidence Act, because by that time


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the conspiracy would have ended. If so, the statement forming part of the

confessional statement made to the police officer cannot be pressed into

service by the prosecution against the other coaccused. Thus, the

endeavour to bring the confessional statement of coaccused into the

gamut of evidence through the route of S.10 of the Evidence Act is

frustrated by a series of decisions of Apex Court. Please refer to ratio laid

down in the case of State (N. C. T. of Delhi) v. Navjot Sandhu (Afzal

Guru's), reported in AIR 2005 SC 3820

4.15. The ordinary presumption about a witness is that every witness testifying

on oath before a court of law is a truthful witness unless he is shown to be

unreliable or untruthful on any particular aspect. Witnesses solemnly

deposing on oath in the witness box during a trial upon a grave charge of

murder must be presumed to act with a full sense of responsibility of the

consequence of what they state. Please refer to ratio laid down by Hon'ble

Apex Court in the case of State of Punjab v. Hari Singh AIR 1974 SC 1168;

State of W.B. , Appellant v. Kailash Chandra Pandey – AIR 2005 SC 119.

Generally speaking a witness may be classified into three categories, namely:

i) wholly reliable

ii) wholly unreliable

iii) Neither wholly reliable nor wholly unreliable.

In the case of categories (i) and (ii) the court should have no difficulty in

coming to the conclusion about the credibility or otherwise of the witness. It

is with regard to the 3rd category of witnesses that the court will have to be

circumspect and will have to look for corroboration in material particulars by

way of direct or circumstantial evidence. Please refer to ratio laid down by

Hon'ble Apex Court in the case of Vadivelu Thevar v. State of Madras AIR

1957 SC 614; State of Punjab v Tarlok Singh AIR 1971 SC 121; Phool Chand


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v. State of Rajasthan AIR 1977 SC 315. In Bharwada Bhoginbhai Hirjibhai v.

State of Gujarat AIR 1983 SC 753 (said judgment is recently followed in the

case of Abdul Nawaz v. State of W.B – AIR 2012 SC 1951) Hon'ble Apex court

observed certain characteristics about an ordinary witness, they are as

follows:

1) By and large a witness cannot be expected to possess a photographic

memory and to recall the details of an incident. It is not as if a video tape is

replayed on the mental screen.

2) Ordinarily it so happens that a witness is overtaken by events. The

witness could not have anticipated the occurrence which so often has an

element of surprise. The mental faculties, therefore, cannot be expected to

be attuned to absorb the details.

3) The powers of observation differ from person to person. What one may

notice, another may not. An object, or movement might emboss its image

on one person's mind whereas it might go unnoticed on the part of another.

4) By and large people cannot accurately recall a conversation and

reproduce the very words used by them or heard by them. They can only

recall the main purport of the conversation. It is unrealistic to expect a

witness to be a human tape recorder.

5) In regard to the exact time of an incident or the time duration of an

occurrence, usually people make their estimates by guess work on spur of

the moment at the time of interrogation and one cannot expect people to

make very precise or reliable estimates in such matters. Again it depends

on the time sense of individuals which varies from person to person.

6) Ordinarily a witness cannot be expected to recall accurately the

sequence of events which take place in rapid succession or in a short time

span. A witness is liable to get confused or mixed up when interrogated


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later on.

7) A witness though wholly truthful, is liable to be overawed by the court

atmosphere and piercing crossexamination made by counsel and out of

nervousness mixes up facts, gets confused regarding sequence of events, or

fills up details from imagination on the spur of moment. The subconscious

mind of the witness sometimes so operates on account of the fear of

looking foolish or being disbelieved though the witness is giving a truthful

and honest account of the occurrence witnessed by him. Perhaps it is a sort

of psychological defence mechanism activated on the spur of the moment.

4.16. Section 313 examination Complex sentences should not be put to the

accused. Questions corelating the material objects and the result of their

chemical examination, if incriminating, are to be put to the accused.

Sometimes incriminating circumstances are elicited during the cross

examination of witnesses. If those circumstances are sought to be relied on,

the court can do so. But if a conviction is being based on such circumstances

then they should be put to the accused. It is also worthy to note that If an

accused admits any incriminating circumstances appearing in evidence

against him there is no warrant that those admissions should altogether be

ignored merely on the ground that such admissions were advanced as a

defence strategy. State of U.P. , Appellant v. Lakhmi, reported in AIR 1998

SC 1007 (Three judges). In Laliya B. Nyak, reported in 2013 (1) GLR 331, it

is held that admission and/or statement made by accused u/s 313 of the Code

can be relied upon as an incriminatory circumstances.

4.17.Very often the material objects (muddamaal articles) and the result of

chemical examination are not properly corelated. Make sure that the

investigating officer is asked to identify each item (muddamaal article) in the

F.S.L report with reference to the material objects produced before court.


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4.18. The court cannot insist that the accused shall keep on standing during the

trial particularly when the trial is long and arduous. Please refer to ratio laid

down by Hon'ble Apex Court in the case of Avatar Singh v. M.P. reported in

1982 SC 1260. Hon'ble Supreme Court directed all High Courts to make

provision in this regard in their criminal manuals. Please refer to para No.141

of the Criminal Manual.

4.19. The court has, under the proviso to Section 327(1) of the Code, the power

to order that any particular person, witness or police officer not under

examination shall not remain in the court room. A general direction can be

given to the Public Prosecutor that occurrence witnesses to be examined are

not allowed to remain in the court hall till their turn arrives. When the

accused objects to the presence of a police officer or other person inside the

court hall, the trial judge has to consider his objections, having regard to the

intelligence and the susceptibilities of the class to which he belongs and such

other relevant circumstances Please refer to ratio laid down by Hon'ble Apex

Court in the case of State v. Charulata Joshi AIR 1999 SC 1373. In Shylendra

Kumar v. State of Bihar AIR 2002 SC 270, Hon'ble Apex Court has directed

that the investigating officer must be present at the time of trial of murder

cases and if he fails to be present, the Sessions Judge must issue summons to

him.

4.20. Courts should make deprecatory remarks about serious lacuna or

irregularity in the investigation by an investigating officer only when it is

absolutely necessary. Courts should bear in mind the time constraints of the

police officer in the present system, the illequipped machinery they have to

cope with, the traditional apathy of respectable persons to come forward for

giving evidence in criminal cases etc. which are realities which the police

force has to encounter with while conducting investigation. Please refer to


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ratio laid down by Hon'ble Apex Court in the case of State of West Bengal v.

Mir Muhammed Omar AIR 2000 SC 2988; Shyamal Ghosh v. State of W. B –

AIR 2012 SC 3539; Babu v. Chennai – AIR 2013 SC 1769; Dayal Singh and

Ors. v. State of Uttaranchal – AIR 2012 SC 3046; Kishanbhai v. State of

Gujarat, reported in Manu/SC/0004/2014 .

4.21. Criminal justice should not be allowed to become a causality for the

wrongs committed by the investigating officers. The conclusion of the court in

a criminal trial cannot be allowed to depend solely on the probity of

investigation. Even if the investigation is illegal or even suspicious, the court

can independently scrutinize the rest of the evidence uninfluenced by ill

motivated investigation. Otherwise, criminal trial will plummet to the level of

investigating officers ruling to roost. Please refer to ratio laid down by

Hon'ble Apex Court in the case of State of Karnataka v. Yarappa Reddy JT

1999 (8) SC 10 = AIR 2000 SC 185; Shyamal Ghosh v. State of W. B – AIR

2012 SC 3539; Babu v. Chennai – AIR 2013 SC 1769; Dayal Singh and Ors. v.

State of Uttaranchal – AIR 2012 SC 3046; Kishanbhai v. State of Gujarat,

reported in Manu/SC/0004/2014.

4.22. During the examination of the investigating officer before the court, no

objection can be taken to his referring to the case diary files while answering

questions. He is expected to answer questions only with reference to what he

has recorded during investigation. Please refer to Section 172 of the Code.

4.23. When a witness makes mention of the name of the another witness during

his testimony before court, ascertain whether the other witness is named in

charge sheet or not and if he is a chargesheet witness, after writing his name,

indicate his rank as chargesheet witness. (For example CW3). If that charge

sheet witness has already been examined as a prosecution witness then give

the rank assigned to him when he was examined before court.


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4.24. The evidence of witnesses shall ordinarily be taken down in the form of a

narrative. (please refer to Section 276(2) of the Code). After recording the

evidence of each witness it has to be read over to the witness in the presence

of the accused as enjoined by Section 278(1) of the Code. If the witness

denies the correctness of any part of the evidence then the correction should

not be carried out in the deposition but instead the judge has to make a

memorandum incorporating the objection raised by the witness and the

remarks of the judge. (please refer to Section 278(2) of the Code). Section

280 of the Code enables a court to record remarks regarding the demeanour

of the witness.

4.25. Examination of Child Witness: Section 118 of the Evidence Act,1872 states

that all persons are competent to testify unless, the court considers that they

are prevented from understanding the questions put to them or giving

rational answers to those questions by reason of tender age, extreme old age

or disease whether of body or mind, or any other cause of the same kind. As

per the provisions of the Oaths Act, 1969, oath or affirmation has to be made

by all witnesses who may be lawfully examined or who may give or be

required to give evidence before a court of law. However, the proviso to

Section 4(1) of the Oaths Act says that where the witness is a child under 12

years of age and the court is of opinion that though the witness understands

the duty of speaking the truth, he does not understand the nature of oath or

affirmation, then such witness need not make any oath or affirmation and the

absence of such oath or affirmation shall not render inadmissible any

evidence given by such witness nor affect the obligation of such witness to

state the truth. Thus if the child witness is above 12 years of age, oath or

affirmation, as the case may be, is a must. But if the child witness is below 12

years of age then the court has to ascertain whether the witness understands


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the nature of the oath or affirmation. In order to evaluate the testimonial

competence of the child witness in this behalf, the court has to conduct a voir

dire (preliminary examination of child witness) examination of the child

witness. The record of such examination also should be part of the deposition

of such child witness. To understand the real problem, the proviso to Section

4 of the Oaths Act, 1969 must be read along with Section 118 of the Indian

Evidence Act and Section 7 of the Oaths Act. An omission to administer an

oath, even to an adult, goes only to the credibility of the witness and not his

competency. The question of competency is dealt with in Section 118 of the

Indian Evidence Act. Every witness is competent unless the Court considers he

is prevented from understanding the questions put to him, or from giving

rational answers, by reason of tender years, extreme old age, disease, whether

of body or mind or any other cause of the same kind. It should be observed

that there is always competency in fact unless the Court considers otherwise.

No other ground of incompetency is given. Therefore, unless the Oaths Act

adds additional grounds of incompetency, it is evident that Section 118 of the

Indian Evidence Act must prevail. The Oaths Act does not deal with

competency. Therefore, an omission to take the oath does not affect the

admissibility of the evidence, unless the Judge considers otherwise the

witness is competent.

4.26. Evidence of Accomplice u/s 133 of the Evidence Act,1872 read with

Section 114(b) of the Act: Section 133 of the Act provides that an

Accomplice shall be a competent witness against an accused person and

conviction is not illegal merely because it proceeds upon the uncorroborated

testimony of an Accomplice. Whereas, Section 114(b) of the Act provides that

an Accomplice is unworthy of credit, unless he is corroborated in material

particulars. Conjoint reading of both these sections some times misguide the


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Sessions Judges. Therefore, intricacies of both these sections are required to

be kept in mind by the Sessions Judges.

a) Hon'ble Apex Court in the case of Suresh Chandra Bahri v. State of Bihar,

reported in AIR 1994 SC 2420 has held in para Nos. 43 to 45 that: Section

133 deal with the testimony of an accomplice. It contemplates that and

accomplice shall be a competent witness against an accused person, and a

conviction is not illegal merely because it proceeds upon the

uncorroborated testimony of an accomplice, The first part envisages that

an accomplice in other words a guilty companion in crime shall be a

competent witness while the second part states that conviction is not

illegal merely because it is based on the uncorroborated testimony of an

accomplice. But if one read S. 133 with illustration (b) of S.114 it may

lead to certain amount of confusion and misunderstanding as to the real

and true intention of the Legislature because quite contrary to what is

contained in S.133 illustration (b) to S.114 lays down "that an accomplice

is unworthy of credit, unless he is corroborated in material particulars." A

combined reading of the two provisions that is S.133 and illustration (b) of

S.114 go to show that it was considered necessary to place the law of

accomplice evidence on a better footing by stating in unambiguous terms

that according to S.133 a conviction is "not illegal or in other words not

unlawful" merely because it is founded on the uncorroborated testimony of

an accomplice while accepting that an accomplice is a competent witness.

But at the same time the Legislature intended to invite attention in the

illustration (b) of S.114 with a view to emphasise that the rule contained

therein as well as in S.133 are parts of one and the same subject and

neither can be ignored in the exercise of judicial discretion except in cases

of very exceptional nature. However, the difficulty in understanding the


19

combined effect of the aforementioned two provisions arises largely due to

their placement at two different places of the same Act. It may be noticed

that illustration(b) attached to S.114 is placed in Chap VII of Evidence Act

while S.133 is inserted in Chap. IX of the Act. The better course was to

insert the illustration (b) to S.114 as an explanation or in any case as

proviso to S.133 of the Act instead of their insertion at two different places

and that too in different chapters of Evidence Act. In any case since an

approver is guilty companion in crime and, therefore, illustration (b) to

S.114 provides a rule of caution to which the Courts should have regard. It

is now well settled that except in circumstances of special nature it is the

duty of the Court to raise the presumption in S.114 illustration (b) and the

Legislature requires that the Courts should make the natural presumption

in that section. Though a conviction can be based on uncorroborated

evidence of an accomplice u/s 133 of the Act but as a rule of prudence it is

unsafe to place reliance on the uncorroborated testimony of an approver

as required by illustration (b) of S.114 of the Act.

b) Ratio laid down in the case of Suresh Chandra Bahri (supra) is followed

by Hon'ble Apex Court in the case of Francis Stanly alias Stalin v.

Intelligence Officer, Narcotic Control Bureau, Thiruvananthapuram,

reported in AIR 2007 SC 794 and same is relied upon in the case of Jarnail

Singh v. State of Punjab, reported in AIR 2010 SC 3699.

4.27.Section 30 of the Evidence Act provides that when more persons than one

are being tried jointly for the same offence or offences, and a confession

made, before the commencement of trial, by one of such persons affecting

himself and some other of such persons in respect of same offence or all the

offences affecting himself and some other of such persons is proved, the Court

may, where there is other relevant evidence against such other person or


20

persons, take into consideration such confession as lending credence against

such other person or persons as well as against the person who makes such

confession. To understand said provision illustrations are given which read as

under:

(a) A and B are jointly tried for murder of C. It is proved that A said "B

and I murdered C". The court may consider the effect of this confession

as against B.

(b) A is on his trial for the murder of C. There is evidence to show that

C was murdered by A and B, and that B said "A and I murdered C."

This statement may not be taken into consideration by the court against

A, as B is not being jointly tried.

a) Meaning thereby, to make such confessional statement admissible, there

has to be a joint trail of accused and person making confessional

statement, such confessional statement is made before the commencement

of trial, such statement must be affecting himself and other accused of

same offence and such statement should be proved as admissible.

4.28.Article 20(2) of the Constitution provides that: No person shall be

prosecuted and punished for the same offence more than once. Section

300(1) of the Code provides that: (1) A person who has once been tried by a

Court of competent jurisdiction for an offence and convicted or acquitted of

such offence shall, while such conviction or acquittal remains in force, not be

liable to be tried again for the same offence, nor on the same facts for any

other offence for which a different charge from the one made against him

might have been made under subsection (1) of section 221, or for which he

might have been convicted under subsection (2) thereof. But Section 300(2)

of the Code provides that: (2) A person acquitted or convicted of any offence

may be afterwards tried, with the consent of the State Government, for any


21

distinct offence for which a separate charge might have been made against

him at the former trial under subsection (1) of section 220 and Explanation

to Section 300 of the provides that the dismissal of a complaint, or the

discharge of the accused, is not an acquittal for the purposes of this section.

The conjoint reading all these provisions sometime creates confusion amongst

judges. To understand the intricacies of the said provision, illustration given

under Section 300 of the Code is required to seen. Illustrations read as

under:

(a) A is tried upon a charge of theft as a servant and acquitted. He

cannot afterwards, while the acquittal remains in force, be charged

with theft as a servant, or, upon the same facts, with theft simply, or

with criminal breach of trust.

(b) A is tried for causing grievous hurt and convicted. The person

injured afterwards dies. A may be tried again for culpable homicide.

(c) A is charged before the Court of Session and convicted of the

culpable homicide of B. A may not afterwards be tried on the same

facts for the murder of B.

(d) A is charged by a Magistrate of the first class with, and convicted by

him of, voluntarily causing hurt to B. A may not afterwards be tried for

voluntarily causing grievous hurt to B on the same facts, unless the case

comes within subsection (3) of the section.

(e) A is charged by a Magistrate of the second class with, and convicted

by him of, theft of property from the person of B. A may subsequently

be charged with, and tried for, robbery on the same facts.

(f) A, B and C are charged by a Magistrate of the first class with, and

convicted by him of, robbing D. A, B and C may afterwards be charged

with, and tried for, dacoity on the same facts.


22

4.29. Evidence of Accomplice once his has been granted pardon u/s 306 of the

Code: Though the conviction of an accused on the testimony of an

accomplice cannot be said to be illegal, yet the Courts will, as a matter of

practice, not accept the evidence of such a witness without corroboration in

material particulars. For corroborative evidence the Court must look at the

broad spectrum of the Accomplice's/Approver's version and then find out

whether there is other evidence to corroborate and lend assurance to that

version. The nature and extent of such corroboration may depend upon the

facts of different cases. Corroboration need not be in the form of ocular

testimony of witnesses and may be even in the form of circumstantial

evidence. Corroborative evidence must be independent and not vague or

unreliable. Where the statement of accomplice was vivid in explanation and

inspired full confidence of the Court to pass the conviction of the accused for

the offences with which they were charged and the corroborative evidence to

the aforesaid statement left no doubt in the mind of the Court regarding the

involvement of the accused in the commission of the crime for which they had

been convicted and sentenced. Such conviction on basis of testimony of

accomplice would not be termed as bad and liable.

a) In Suresh Chandra Bahri v. State of Bihar, (supra) this Court while dealing

with the case where the Approver was granted pardon by the committal

Court observed that every person accepting the tender of pardon made

under subsection (1) of Section 306 has to be examined as a witness in

the Court of the Magistrate taking cognizance of the offence and in the

subsequent trial, if any. The examination of the accomplice in such a

situation was held to be mandatory which could not be dispensed with.

Referring to a Full Bench Judgment of the Gujarat High Court in Kalu

Khoda v. State, AIR 1962 Guj 283:


23

"If the said defect of not examining the approver at the committal stage

by the committing Magistrate is recitified later, no prejudice can be said

to be caused to an accused person and therefore the trial cannot be said

to be vitiated on that account."

b) There is no legal obligation on the trial Court or a right in favour of the

accused to insist for the compliance with the requirement of Section

306(4) of the Code Section 307 of the Code provides a complete

procedure for recording the statement of an accomplice subject only to the

compliance of conditions specified in subsection (1) of Section 306 of the

Code. The law mandates the satisfaction of the Court granting pardon,

that the accused would make a full and true disclosure of the

circumstances within his knowledge relative to the offence and to every

other person concerned, whether as principal or abettor, in the commission

thereof. It is not necessary to comply with the requirement of Section 306

(4) of the Code when the pardon is tendered by the trial Court. Please

refer to Narayan Chetanram Chaudhary v. State of Maharashtra, reported

in AIR 2000 SC 4640.

4.30. The Sessions Judge can take cognizance of the offence only against those

accused persons who are committed to him by the Magistrate concerned

(section 193 of the Code). If he has to add a new accused person whose

complicity is discernible from the prosecution records, then the Sessions

Judge will have to wait until the stage for exercise of his power under Section

319 of the Code is reached. Please refer to ratio laid down by Hon'ble Apex

Court in the case of Ranjit Singh v. State of Punjab, reported in AIR 1998 SC

3148; Sarabjit Singh v. State of Punjab – AIR 2009 SC 2792; Rakesh v. State

of Haryana – AIR 2001 SC 2521. But in the cases of an accused who are

public servants, before passing an order u/s 319 of the Code, sanction is


24

required (for example offences punishable under the provisions of Prevention

of Corruption Act) but such sanction is not required when offences are

punishable u/s 409, 420, 467, 468, 471 etc. of IPC).

4.31. Procedure to be followed by the trial Court in the event of cross cases:

Hon'ble Apex Court in the case of Nathilal v. State of U. P., reported in 1990

(Supp) SCC 145 has pointed out the procedure to be followed by the trial

Court in the event of cross cases. It was observed thus:

"We think that the fair procedure to adopt in a matter like the present

where there are cross cases, is to direct that the same learned Judge

must try both the cross cases one after the other. After the recording of

evidence in one case is completed, he must hear the arguments but he

must reserve the judgment. Thereafter, he must proceed to hear the

cross case and after recording all the evidence he must hear the

arguments but reserve the judgment in that case. The same learned

Judge must thereafter dispose of the matters by two separate

judgments. In deciding each of the cases, he can rely only on the

evidence recorded in that particular case. The evidence recorded in the

cross case cannot be looked into. Nor can the Judge be influenced by

whatever is argued in the cross case. Each case must be decided on the

basis of the evidence which has been placed on record in that particular

case without being influenced in any manner by the evidence or

arguments urged in the cross case. But both the judgments must be

pronounced by the same learned Judge one after the other."

4.32. If after full trail and on proper appreciation of oral and documentary

evidence, Sessions Judge comes to the conclusion, he may acquit/convict the

accuse for the charges leveled against him. And if, accused is convicted and is

ordered to under imprisonment for the term of three years or less, Sessions


25

Judge may release the accused on bail, certainly after imposing certain

conditions. Sessions judge should normally suspend the sentence and not the

conviction, as suspension of the order of conviction should be exercised in

exceptional case. Please refer to ratio laid down in the case of K.C. Sareen v.

CBI, Chandigarh, AIR 2001 SC 3320. For suspending conviction, Sessions

Judge may take support of the ratio laid down by Hon'ble Apex Court in the

case of Navjot Singh Sidhu v. State of Punjab, reported in AIR 2007 SC 1003.

4.33. If accused is acquitted after the trial, Sessions Judge should direct the

accused to execute bail bond with sureties to appear before the appellate

court, as and when such court issues notice in respect of any appeal or

petition filed against the judgment of acquittal and such bail bond should be

in force for six months. (Please refer to Section 437A of the Code).

5. Common mistakes committed by the Judges:

a) In many cases neither the judgment nor the record & proceedings show

compliance of Section 232 of the Code. Very often the accused are called

upon to enter on their defence before reaching the stage under Section 233

of the Code Compliance of Sections 232 and 233 of the Code by the

Sessions Judges is mandatory. K. Moidu Mammoo v. State of Kerala,

reported in 2009 Cr.L.J. 4045 (Full Bench).

b) The specific version of the defence as stated during examination of the

accused under Section 313 of the Code or as stated in the separate written

statement filed under Section 233(2) of the Code very often do not find a

reference in the judgment. This has to be done.

c) The law does not envisage a person being convicted for an offence

without a sentence being imposed. Every conviction should be followed by a

sentence. Please refer to ratio laid down by Hon'ble Apex Court in the case

of T.K. Musaliar v. Venkatachalam AIR 1956 SC 246.


26

d) The judgment: Section 354 of the Code inter alia stipulates the

contents of the judgment that is to be pronounced by a criminal court. It

should contain the points for determination and the decision on each point

and the reasons for the decision. The judgment should also specify the

Section of the Indian Penal Code or any other law under which the accused

is convicted or acquitted. In case, the accused is acquitted, apart from

stating the offence of which he is acquitted the judgment should direct that

he shall be set at liberty. If he is in custody the judgment shall state that he

shall be released from prison forthwith unless his continued detention is

necessary in connection with any other case. When a person is sentenced to

death, the sentence should direct that he be hanged by the neck till he is

dead. A death sentence shall be imposed subject to confirmation by the

Hon'ble High Court for which purpose the proceedings shall be submitted to

the Hon'ble High Court as provided under Section 366 of the Code.

e) Even when an accused person is acquitted on the ground of unsoundness

of mind, the judgment should, as enjoined by Section 334 of the Code,

record a finding whether such accused committed the acts (such as causing

the death by stabbing or other means) attributed to him. In such a case the

court shall not forthwith set him at liberty or release him from custody. He

will have to be directed to be detained in a Government mental health

center or ordered to be delivered to any relative or friend upon an

application by such relative or friend and on his furnishing security to the

satisfaction of the court as provided under Section 335 of the Code. This is

because of the homicidal or dangerous propensities already exhibited by the

accused. Such accused ordered to be detained in the mental health center

will be subject to further orders of the State Government under Section 339

of the Code.


27

f) Very often inadmissible statements made by investigating officers are

blindly recorded by Sessions Judges. The defence lawyer might ask the

investigating officer whether a particular witness made a particular

statement before him when he questioned the said witness. The

investigating officer may readily answer the question. The defence lawyer is

not entitled to ask such a question, as the answer to which would be in clear

violation of the bar under Section 162 of the Code. Instances are not rare

when statements of investigating officers from the witness box that when

the accused was asked regarding the manner of perpetrating the crime he

explained the same and the alleged version of the accused as given by the

investigating officer is recorded by the Sessions Judge. This is not

permissible, hence cannot be allowed. It is also required to be remembered

that when investigating officer writes a letter to any person and such person

responses by reply letter, such reply letter is hit by Section 162 of the Code.

Kali Ram v. State of H.P., reported in AIR 1973 SC 2773 (Three Judge).

g) Suppose, in a murder case a Postmortem report is admitted by the

defence lawyer and its genuineness and authenticity is not disputed,

whether in such a situation, can it be read as substantive evidence to prove

its contents without doctor concerned being examined? Held Yes. Please

refer to the ratio laid down by the Three Judges of Hon'ble Apex Court in

the case of Akhtar v. State of Uttaranchal – AIR 2009 SC (Supp) 1676

(Three Judges).

h) When recovery is effected pursuant to any statement made by the

accused and document/panchnama prepared by the Investigating Officer,

must necessarily be attested by independent witnesses? Held No. Please

refer to ratio laidodwn in the case of State Govt. of NCT of Delhi v. Sunil,

reported in AIR 2000 SCW 4398; Satbir alias Lakha v. State of Haryana,


28

reported in AIR 2012 SCW 5780 and Musir Mubark v. State of Haryana,

reported in AIR 2013 SC 992.

i) Most of the time advocates for the accused raise a defence that though

accused and witnesses/victim are knowing each other since long, names of

the assailants were not given to the doctor who treated the victim. Whether

injured witness is required to give details/names of the assailants, before

the Doctor? Held No. Please refer to ratio laidodwn in the case of P. Babu v.

State of Andhra Pradesh (1994 (1) SCC 388) = AIR 1993 SCW 3174 para

6 to 8, it was observed as follows :

"Ex.P6 is the injury certificate. It appears that it was noted in Ex.P6 against an

entry that the injured was said to have been stabbed by somebody. Placing

much reliance on this entry PW10 was asked in the cross examination as to

how it was made. PW10 stated that the deceased stated so in the first

instance. The learned counsel relying on this admission sought to contend that

the deceased was not aware as to who stabbed him. We see no force in this

submission. It is a matter of common knowledge that such entry in the injury

certificate does not necessarily amount to a statement. At that stage the doctor

was required to fill up that column in a normal manner and it was not the

duty of the doctor to enquire from the injured patient about the actual

assailants and that the inquiry would be confined as to how he received the

injuries namely the weapons used etc."

Said ratio is followed in the following cases:

a) Valson and Anr. v. State of Kerala, reported in AIR 2008 SCW 5203,

para 40.

b) Mulla and Anr. v. State of U. P., reported in 2010 Cr.L.J. 1440.

c) Kilakkatha Parambath Sasi and Ors. v. State of Kerala, reported in

AIR 2011 SC 1064, para 11.


29

d) Dalwadi Govind Amarsing v. State of Gujarat, reported in 2004 GLR

1258, para 22.

j) An accused member of an unlawful assembly not armed with deadly

weapon can also convicted under Section 149 of IPC with the aid of other

Sections of IPC? Held Yes. Please refer to ratio laid down by Four Judges

of Hon'ble Apex Court in the case of Masalti v. State of U.P. AIR 1965 SC

202 (Four Judges).

k) Imprisonment of life means imprisonment for the remainder of the

biological life of the convict unless the sentence is commuted or remitted by

the appropriate authority. Hence the life imprisonment does not expire at

the end of 14 years or 20 years. (AIR 1961 SC 600; AIR 1980 SC 2147;

1976 (3) SCC 470; 1991 SCC (Crl) 845 and AIR 1991 SC 2296).

Consequently, the question of setting off under Section 428 of the Code, the

period of detention undergone by an accused as an undertrial prisoner

against a sentence for life imprisonment can arise only if an order is passed

by the appropriate government either under Section 432 of the Code or

under Section 55 of I.P.C. read with Section 433(b) of the Code. Please also

refer to Resolution No.JLK/822012/1859/J, dated 23rd January, 2014 issued

by Government of Gujarat, wherein guidelines are issued for granting of

remission as provided u/s 432 of the Code. Please also refer to ratio laid

down in the case of Sangeet v. State of Haryana, reported in AIR 2013 SC

447.

l) Life imprisonment is necessarily rigorous. Ranjit Singh v. Union Territory

of Chandigarh and another AIR 1991 SC 2296. Hence, by virtue of Section

66 I.P.C., the imprisonment which the Court can impose in default of

payment of fine to which an accused is sentenced under Section 302 I.P.C.,

can only be rigorous.


30

m) When a recovery falling under Section 27 of the Evidence Act is sought

to be proved through the investigating officer, the necessary word or words

indicating authorship of concealment are not seen elicited in many cases.

Please refer to ratio laid down by Hon'ble Division Bench of Hon'ble Gujarat

High Court in the case of Rameshbhai Hajabhai Chachiya v. State of Gujarat,

reported in 2012 (3) GLR 2250.

n) There is an unwholesome practice of administering oath to a prosecution

witness and thereafter giving up the witness. This has been deprecated by

the various Hon'ble High Courts. Tendering a witness for crossexamination

only without he being examined in chief is a procedure not sanctioned by

law. Such a course may amount to giving up of the witness. Sukhwant

Singh v. State of Punjab, reported in AIR 1995 SC 1601.

o) It is always desirable to serially number each of the questions put to the

accused during his examination under Section 313 the Code. This will not

only help the trial court to advert to any particular answer given by the

accused in reply to a specific question, it will also help the appellate court to

ascertain the answer, if any, given by the accused to any specified question.

The questions which cover the incriminating circumstances should be

couched in simple sentences. They should not be complicated or compound

sentences dealing with more than one circumstance. State of Punjab v.

Swaran Singh – AIR 2005 SC 3114.

p) The investigating officer should depose to the exact words of the accused

which distinctly led to the fact discovered. The words attributed to the

accused must find a place in the deposition of the investigating officer.

Please refer to ratio laid down by Hon'ble Division Bench of Hon'ble Gujarat

High Court in the case of Rameshbhai Hajabhai Chachiya v. State of Gujarat,

reported in 2012 (3) GLR 2250.


31

q) It has come to the notice that where death penalty is awarded for a

conviction under Section 302 I.P.C., no separate sentence is seen awarded

for the conviction for other offences. This is illegal. Separate sentences

should be imposed for each of the other offences and it should be

mentioned in the judgment that upon execution of the death sentence, the

other sentences shall lapse.

r) The accused is convicted of murder punishable under Section 302 I.P.C. If

death penalty is not proposed to be imposed on the accused, then the only

other alternative is imprisonment for life. Since the Sessions Judge does not

propose to impose capital punishment on the accused, the Judge does not

hear him under Section 235(2) the Code on the proposed sentence. Is there

any illegality in the above procedure?

Ans. Hon'ble Apex Court observed that if a Sessions Judge who convicts the

accused under Section 302 I.P.C. (with or without the aid of other Sections)

does not propose to award death penalty the court need not waste time on

hearing the accused on the question of sentence. The court also held that in

cases where the Judge feels or if the accused demands more time for

hearing on the question of sentence (especially when the judge proposes to

impose death penalty) the proviso to Section 309(2) of the Code is not a bar

for affording such time. Ram Deo Chauhan v. State of Assam – AIR 2001

SC 2231 (Three Judges).

s) Under Section 354(3) the Code, if the sentence imposed is imprisonment

for life, the judgment has to state the reasons for the sentence and if the

sentence imposed is one of death, the judgment has to state special reasons.


Education

Points to be kept in mind while deciding sessions trial