Chhattisgarh High Court: a judge's Section 165 questioning can't be used to fill gaps in the prosecution case

The Chhattisgarh High Court acquitted a man convicted in 2011 under Section 304 Part I IPC for a death in Bilaspur district, holding that the trial court had used its questioning power under Section 165 of the Indian Evidence Act, 1872 improperly. Section 165 allows a judge, to discover or obtain proper proof of relevant facts, to ask any witness any question in any form at any time. The High Court accepted that the power is wide. But it held that the trial judge cannot use it to put leading questions about whether the accused directly committed the alleged offence, since these may prompt a witness to answer yes.

In this case the deceased's wife, the prosecution's star witness, said in her examination-in-chief that she came out of the house only on hearing the sound of a lathi and saw her husband fall, which showed she had not seen who struck him. Other witnesses turned hostile, and the doctor could not link the injuries to a lathi. The answers the trial judge elicited through his own questions were meant to fill the lacuna in the prosecution case and went beyond Section 165. With no other evidence against the appellant, the Court held that the prosecution had not proved its case beyond reasonable doubt, gave him the benefit of doubt and set aside the conviction.