Amar Nath Mahto & Anr vs The State Of Bihar on 1 August, 2017

Patna High Court CR. APP (SJ) No.936 of 2016 1

IN THE HIGH COURT OF JUDICATURE AT PATNA

Criminal Appeal (SJ) No.936 of 2016
Arising Out of PS.Case No. -57 Year- 2010 Thana -DIGHA District- PATNA

1. Amar Nath Mahto, S/o Late Sita Ram Mahto,

2. Usha Devi, W/o Mahadeo Mahto, both resident of village-Dighaghat Patlipul,
P.S. Digha, District-Patna.

…. …. Appellant/s
Versus
The State of Bihar
…. …. Respondent/s

Appearance :

For the Appellant/s : Mr. Pramod Kumar-Advocate
For the Respondent/s : Mr. Sujit Kumar Singh-A.P.P.

CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI
CAV JUDGMENT
Date: 1-08-2017

Both the appellants namely Amar Nath Mahto and Usha

Devi have been found guilty for an offence punishable under Section

304B/34 of the I.P.C. vide judgment of conviction dated 09.09.2016

and each one has been sentenced to undergo rigorous imprisonment

for 10 years with a further direction to set off in terms of Section 428

of the Cr.P.C. with regard to custodial period spent during course of

trial vide order of sentence dated 16.09.2016 passed by the Additional

Sessions Judge-4th, Patna in Sessions Trial No.1459 of 2013.

2. The factual matrix of the case as is evident on the basis

of the fard-bayan of Saroj Devi (PW-9) on 02.03.2010 at P.M.C.H.

before police officials of Pirbahore P.S. is that her daughter Aarti

Devi was married with Dharmendra Mahto, son of Amar Nath Mahto.

On 19.02.2010 at about 6.00 p.m. father in-law Amar Nath Mahto,
Patna High Court CR. APP (SJ) No.936 of 2016 2

Usha Devi, Fufia Sas and Chachia Sas lit fire over her body after

sprinkling kerosene oil for the dowry. After coming to know about the

same, she rushed and found her daughter badly burnt. Till then, her

son-in-law, who happens to be driver also arrived and then, all of

them admitted her at P.M.C.H. where she succumbed on 02.03.2010

during course of treatment. It has also been divulged that statement of

her daughter had already been recorded by the Pirbahore P.S. at an

earlier occasion at P.M.C.H. itself. It has also been disclosed that for

the last three days her son-in-law had also left her daughter.

3. The aforesaid fard-bayan was forwarded to Digha P.S.

on the basis of which, Digha P.S. Case No.57 of 2010 was registered

on 08.03.2010, followed with an investigation as well as submission

of chargesheet paving the way of trial, which ultimately concluded

with finding of guilt and sentence against appellants, put under

challenge.

4. The defence case as is evident from mode of cross-

examination as well as statement recorded under Section 313 of the

Cr.P.C. is that of complete denial of the occurrence in a way as

narrated by the prosecution. Furthermore, it has also been pleaded that

deceased set ablaze herself after locking the door under suicidal

approach out of reason best known to her whereupon was rescued

after breaking the door, shifted to hospital immediately for treatment
Patna High Court CR. APP (SJ) No.936 of 2016 3

during course of which, unfortunately she died. However, neither oral

nor documentary evidence has been adduced in support thereof.

5. In order to substantiate its case, prosecution had

examined altogether ten PWs, out of whom, PW-1 Shankar Mahto,

PW-2 Rajendra Prasad Mehta, PW-3 Kashi Mahto, PW-4 Sanjay

Kumar @ Sanju, PW-5 Ranjit Mahto @ Ranju, PW-6 Madan Mishra,

PW-7 Kumari Kanchan Sinha, PW-8 Dr. Arvind Kumar, PW-9 Saroj

Devi and PW-10 Dharmendra Mahto. Side by side, had also exhibited

the documents as Exhibit-1 statement of deceased, Aarti Devi, (dying

declaration), Exhibit-2 and 2/1 post mortem report.

6. Though, as per roster appeal of the Year 2015 is being

taken up for hearing, but considering the legal intricacies involved in

this appeal so perceived during course of argument having made on

behalf of appellants over their plea of bail, this appeal has been

directed to be listed out of turn and accordingly, been heard.

7. From the record, it is evident that in the written report,

there happens to be insertion in different pen concerning dowry

which, keeping away for a moment, being confronted to the appellant

on the score that having absence of date of marriage, demand of

dowry, torture or cruelty meted out to the deceased since before her

death by husband or relative of the husband, would not have justified

in sailing of the trial under Section 304B/34 of the I.P.C. and in
Patna High Court CR. APP (SJ) No.936 of 2016 4

likewise manner, the statement of the victim which, on account of her

death became dying declaration suggesting that on account of

opposing the lascivious demand of her father-in-law to indulge in

illicit relationship, she has been put on fire by the accused persons

coupled with direction of the Hon’ble Apex Court to frame charge in

an alternative under Section 302 of the I.P.C., whenever there happens

to be case of dowry death and for that, the judgment was to be

circulated to trial Court all over in India in Rajvir @ Raju and

another vs. State of Haryana reported in (2010) 15 SCC 116, which

has also been reaffirmed in a case reported in Jasvinder Saini v. State

(Govt. of NCT of Delhi) reported in (2013) 7 SCC 256, the learned

counsel for the appellants has been requested to assist the Court in

order to just decision of the appeal apart from arguing the appeal on

its merit, how far non-obedience of the direction of the Hon’ble Apex

Court by the trial Court failing to frame alternative charge which, in

the facts and circumstances of the case mentioned above, was more

appropriate followed with remedial steps to be taken thereupon, the

learned counsel for the appellants as well as learned Additional Public

Prosecutor lucidly argued the matter.

8. Learned counsel for the appellants firstly submitted

that the judgment impugned on its face suggest that the learned lower

Court had acted in a mechanical way than judicious manner and that
Patna High Court CR. APP (SJ) No.936 of 2016 5

happens to be reason behind that he failed to appreciate that case of

the prosecution was deficient relating to the dowry death. To

substantiate the same, it has been submitted that save and except

informant, PW-9, none had deposed on that very score. Furthermore,

other family members of the informant, PW-9 did not oblige her by

way of their presence during trial. It has also been submitted that her

evidence (PW-9) suffers from exaggeration, contradiction,

development so much so failed to substantiate the mandatory

requirement of law in order to constitute a case of dowry death. That

being so, the conviction and sentence recorded by the learned lower

Court relating thereto is absurd and fit to be set aside.

9. Though the learned counsel for the appellants did not

opt to enlighten the issue in the light of aforesaid finding of the

Hon’ble Apex Court. Contrary to it, tried to full advancing alternative

argument magnifying the deficiencies persisting in the prosecution

case. It has also been argued that at the present moment, appellate

Court should not indulge in futile exercise in tracing out the impact

over trial by non-observance of direction of the Apex Court as such,

exercise will tantamount to crippling interest of the appellants,

illegally against the settled principle of law.

10. The learned counsel intelligently drew attention

towards Section 386 of the Cr.P.C. and submitted that the Appellate
Patna High Court CR. APP (SJ) No.936 of 2016 6

Court during course of exercising such power should firstly consider

the evidence on record whereupon either acquit or discharge, in case

the evidence happens to be deficient one. This happens to be intention

of the legislature, and that happens to be reason behind keeping the

same at first ladder of exercising the appellate power and if not, then

other options have been prescribed including that of the re-trial. In toe

thereof, the learned counsel for the appellants has submitted that

because of the fact that from the evidence available on the record, no

case under Section 304B/34 of the I.P.C. is found duly substantiated,

on account thereof, the judgment impugned should be set aside

instead of peeping for other option. The other rudimentary issue

which the Court has perceived on its own after going through the

record should not be taken as a hurdle in due discharge of appellate

jurisdiction during course of allowing the appeal. To substantiate such

plea, relied upon State of Karnataka vs. Dattaraj and others reported

in A.I.R. 2016 SCW 882.

11. It has also been submitted that Appellate Court

should not make a futile exercise as, such exercise is going to

jeopardize the interest of the appellants, who happen to be under

custody for such long period. The situation so visualized is an out

come of inefficiency of the trial judge, who failed to obey the

direction of the Hon’ble Apex Court in Rajvir @ Raju and another
Patna High Court CR. APP (SJ) No.936 of 2016 7

vs. State of Haryana reported in (2010) 15 SCC 116, wherein

appellants have no role to play and so, while considering the event of

re-trial, the interest of the appellants is also to be seen coupled with

whether on account of such lapses, miscarriage of justice has really

occurred.

12. The learned counsel for the appellants has drew

attention over the principle laid down by the Hon’ble Apex Court in

State of U.P. vs. Kapil Deo Shukla reported in (1972) 3 SCC 504,

…Ramanlal Rathi vs. the State reported in A.I.R. 1951 Calcutta

305, …Machander vs. the State of Hyderabad reported in A.I.R.

1955 SC 792 and submitted that Court neither should act in partial

manner nor should allow an opportunity to the prosecution to fill up

lacuna, so persisting. Court has to maintain balance. In likewise

manner, the learned counsel also urged that accused should not be

penalized for the lapses having at the end of the Court as well as by

the prosecution.

13. Now, coming to miscarriage of justice, the learned

counsel for the appellants led much stress over the principle decided

by the Apex Court reported in Ajay Kumar Ghoshal Etc. vs. State of

Bihar and another reported in 2017(1) P.L.J.R 458 (SC) and

submitted that mere omission at the end of trial court would not, in

ordinary course of nature, suggests miscarriage of justice nor it could
Patna High Court CR. APP (SJ) No.936 of 2016 8

be subject of abhorrence. Miscarriage of justice is an event

whereunder the whole proceeding is found coloured with some sort of

illegality adversely affecting upon the mode of trial and in likewise

manner, its ultimate result. Mere perceiving some sort of deficiency

while conducting the trial will not cover nor will come within the

ambit of miscarriage of justice. Apart from this, the learned counsel

for the appellants also drew attention towards case of Zahira

Habibulla H. Sheikh and another vs. State of Gujarat and others

reported in (2004) 4 SCC 158 and submitted that though a caution

has been given by the Apex Court to the effect that in ordinary course

of nature, it should not be referred as, the same has been passed

perceiving extra-ordinary situation persisting, justifying the same

directing retrial which, in the present facts and circumstances of the

case, did not find favour. Consequent thereupon, the same could not

be ordered. So, concluding the submission, has submitted that this

appeal be allowed after setting aside the judgment of conviction and

sentence impugned by way of acquitting the appellants.

14. On the other hand, the learned Additional Public

Prosecutor vehemently refuted the submissions having made on

behalf of appellants. It has been submitted that on account of

insincerity of the trial Court, the direction given by the Hon’ble Apex

Court has not been complied with and on account thereof, whole trial
Patna High Court CR. APP (SJ) No.936 of 2016 9

vitiates. The only option now available is to direct the trial Court to

proceed afresh (de novo trial) after framing alternative charge by

remitting the matter after setting aside the judgment of conviction and

sentence impugned. Furthermore, it has also been submitted that had

there been proper application of judicious mind at the end of the

learned trial Court at the stage of framing of charge and in likewise

manner, by conducting prosecutor such mistake would not have

occurred. That being so, the trial culminated to its logical end in

illegal manner, whereupon bound to face its ultimate result.

Furthermore, it has been submitted that present situation is same as

faced by the Hon’ble Apex Court in Zahira Habibulla H. Sheikh

and another vs. State of Gujarat and others reported in (2004) 4

SCC 158, so referred by the learned counsel for the appellants,

whereupon re-trial is only remedial recourse to be adopted. Learned

Additional Public Prosecutor further submits that Section 386 Cr.P.C.

amply empowers the appellate Court to set right the mistake

committed by the trial Court, specially Section 386(e) Cr.P.C.,

whereunder appellate Court may make any amendment or any

consequential or incidental order that may begust and proper apart

from having been entrusted with directing retrial.

15. Giving a pause before coming to discuss the legal

question involved in this appeal, first of all, glimpse of factual aspect
Patna High Court CR. APP (SJ) No.936 of 2016 10

is to be taken. Apart from evidence of PW-8, Dr. Arbind Kumar, all

the witnesses including husband (PW-10) have had substantiated the

cause of death due to ante-mortem burn injury. Furthermore, from the

evidence of PW-8, it is evident that no cross-examination has been

made on behalf of appellants in order to challenge the Exhibit-1,

statement of deceased Aarti Devi (dying declaration) whereupon

L.T.I. of her husband was by way of suggesting that due to severe

burn injuries, she might not be in a position to make any statement.

16. So far ocular evidence is concerned, it is evident

that none of them including informant had claimed to be an eye

witness to occurrence. PW-1, PW-2 have been declared hostile. PW-3

had stated that after hearing alarm, he rushed to the place of Shankar

Mahto and seen, there was fire inside house. Door was closed from

inside. Door was broken whereupon he saw daughter-in-law of

Shankar Mahto under fire. Some persons extinguished fire, taken to

doctor. At that very time, she was shouting, but voice was not clear.

He returned back to his place. This case has been instituted by the

mother of the deceased. During cross-examination at Para-3, he had

stated that he does not know how fire was broken.

17. PW-4, PW-5 are hearsay witness as they came to

know about the same after the occurrence. PW-10 is the husband of

deceased, who had deposed that Aarti Devi was married with him
Patna High Court CR. APP (SJ) No.936 of 2016 11

about 7-8 years ago. Since then, she was residing with him.

Occurrence is of month of February, 2010. At about 7.00 p.m., he

received information that his wife burnt while cooking. When he

reached at his house, he found his wife in burnt condition. She was

uttering slowly that during course of cooking, she caught fire.

Thereafter, she was taken to hospital. After admitting her at P.M.C.H.,

he had gone to Orissa. When he returned back, found all the

eventualities completed. When he admitted his wife, at that very time,

police had come, but returned back. This case has been registered by

his mother-in-law. He further stated that he had put his L.T.I. on blank

paper. During cross-examination, he had stated that all the family

members were living jointly. No quarrel had ever taken place. He had

further deposed that whenever dispute arose with his father, he got it

calm down. He had further stated that when he reached at his house

after being informed regarding occurrence, door was opened and she

was cooking food. He after admitting her, remained there. His mother-

in-law took his L.T.I. on the pretext of purchasing of medicine. Police

did not record statement of his wife in his presence. His wife was not

in a position to speak while she was admitted. His Fua never remained

with them. In Para-9, he had stated that when he reached at his house,

his wife had disclosed that during course of cooking, she caught fire.

Who done ‘Shradh’, he is unable to say. His father also resides in one
Patna High Court CR. APP (SJ) No.936 of 2016 12

of the rooms of same building.

18. PW-9 is informant. She had deposed that her

daughter Aarti was married 7-8 years ago with Dharmendra, S/o

Amarnath. When Aarti gone to her sasural, her father-in-law, mother-

in-law and Mausia mother-in-law began to torture her for dowry. Her

daughter begotten two children. Occurrence is 5-6 years ago. She got

information that her daughter is admitted at P.M.C.H. She went there.

All the members of her sasural were absent. Aarti had disclosed that

after pouring kerosene oil over her, father-in-law, mother-in-law and

Mausia mother-in-law lit fire. For the last three days, she was not

provided food. Aarti died at P.M.C.H. during course of treatment.

Police came and took her fard-bayan. Post mortem was conducted,

she conducted rituals. During cross-examination, she had stated that

after coming to know about occurrence, first of all, she had gone to

the place of her daughter where house was closed. She came to know

that daughter is admitted at P.M.C.H. She came to P.M.C.H. and

found her daughter completely burnt. None of accused was present. In

Para-9, she had stated that police had recorded statement of his

daughter in her presence as well as in presence of his son-in-law.

Same police had recorded her statement. In Para-10, she had deposed

that accused persons used to treat her daughter badly. At all occasions,

she used to send her daughter after getting her consoled. No complaint
Patna High Court CR. APP (SJ) No.936 of 2016 13

was made for the same. At Para-11, she had stated that accused

persons have informed her that as she fell down, therefore, she has

been admitted at P.M.C.H. Accused persons fled away from hospital.

When she reached at P.M.C.H., at that very time, her son-in-law was

present. Her son-in-law lives jointly with his father. She denied the

suggestion on that very score.

19. So from the evidences, it is abundantly clear that

the statement having been made by the deceased in presence of

husband (PW-10) has duly found substantiated. Though PW-10

wanted to explain that his L.T.I. was taken by his mother-in-law,

which is found completely ruled out from Para-9 of PW-1.

Furthermore, the theme of accidental fire has itself been tutored by the

PW-10. Furthermore, PW-10 also showed presence of accused

Amarnath in the same building, though being tenant of other room.

Furthermore, from Para-10 of PW-9, she on her own disclosed that the

the occurrence took place after 7-8 years of marriage.

20. All the Courts within the Indian Territory is bound

to obey the order of the Hon’ble Apex Court as laid down under

Article 141 of the Constitution of India. Furthermore, non-obedience

of the order will be subject to contempt under Article 129 of the

Constitution of India. In the aforesaid background, first of all, the

relevant direction of the Hon’ble Apex Court is to be seen. In Rajvir
Patna High Court CR. APP (SJ) No.936 of 2016 14

@ Raju and another vs. State of Haryana reported in (2010)15 SCC

116, the same has been directed in following way:-

“7. We further direct all trial Courts in India to

ordinarily add Section 302 to the charge of section

304B, so that death sentences can be imposed in

such heinous and barbaric crimes against women.

Copy of this order be sent to Registrar

Generals/Registrars of all High Courts, which will

circulate it to all trial Courts.”

21. The aforesaid view has further been subject to

close scrutiny before the Hon’ble Apex Court in Jasvinder Saini

others v. State (Government of NCT of Delhi) reported in (2013) 7

SCC 256, wherein it has been observed:-

“14. Be that as it may the common thread running

through both the orders is that this Court had in

Rajbir‟s case (supra) directed the addition of a

charge under Section 302 IPC to every case in

which the accused are charged with Section 304-B.

That was not, in our opinion, the true purport of

the order passed by this Court. The direction was

not meant to be followed mechanically and without

due regard to the nature of the evidence available

in the case. All that this Court meant to say was

that in a case where a charge alleging dowry death

is framed, a charge under Section 302 can also be
Patna High Court CR. APP (SJ) No.936 of 2016 15

framed if the evidence otherwise permits. No other

meaning could be deduced from the order of this

Court.

15. It is common ground that a charge under

Section 304B IPC is not a substitute for a charge of

murder punishable under Section 302. As in the

case of murder in every case under Section 304B

also there is a death involved. The question

whether it is murder punishable under Section 302

IPC or a dowry death punishable under Section

304B IPC depends upon the fact situation and the

evidence in the case. If there is evidence whether

direct or circumstantial to prima facie support a

charge under Section 302 IPC the trial Court can

and indeed ought to frame a charge of murder

punishable under Section 302 IPC, which would

then be the main charge and not an alternative

charge as is erroneously assumed in some

quarters. If the main charge of murder is not

proved against the accused at the trial, the Court

can look into the evidence to determine whether the

alternative charge of dowry death punishable

under Section 304B is established. The ingredients

constituting the two offences are different, thereby

demanding appreciation of evidence from the
Patna High Court CR. APP (SJ) No.936 of 2016 16

perspective relevant to such ingredients. The trial

Court in that view of the matter acted mechanically

for it framed an additional charge under Section

302 IPC without adverting to the evidence adduced

in the case and simply on the basis of the direction

issued in Rajbir‟s case (supra). The High Court no

doubt made a half hearted attempt to justify the

framing of the charge independent of the directions

in Rajbir‟s case (supra), but it would have been

more appropriate to remit the matter back to the

trial Court for fresh orders rather than lending

support to it in the manner done by the High Court.

16. In the light of what we have said above, the

order passed by the trial Court and so also that

passed by the High Court are clearly untenable

and shall have to be set aside. That would not,

however, prevent the trial Court from re-examining

the question of framing a charge under Section 302

IPC against the appellant and passing an

appropriate order if upon a prima facie appraisal

of the evidence adduced before it, the trial Court

comes to the conclusion that there is any room for

doing so. The trial Court would in that regard keep

in view the decision of this Court in Hasanbhai

Valibhai Qureshi v. State of Gujarat and Ors.
Patna High Court CR. APP (SJ) No.936 of 2016 17

(2004) 5 SCC 347 where this Court has recognized

the principle that in cases where the trial Court

upon a consideration of broad probabilities of the

case based upon total effect of the evidence and

documents produced, is satisfied that any addition

or alteration of the charge is necessary, it is free to

do so.

17. Reference may also be made to the decisions of

this Court in Ishwarchand Amichand Govadia and

Ors. v. State of Maharashtra and Anr. (2006) 10

SCC 322 and the decision of the Calcutta High

Court in Rajendra Singh Sethia v. State and Ors.

1989 Cri.L.J. 255 and that delivered by the

Allahabad High Court in Shiv Nandan and Ors. v.

State of U.P. 2005 Cri. L.J 3047 which too are to

the same effect. In any such fresh exercise which

the trial Court may undertake, it shall remain

uninfluenced by the observations made by the High

Court on merits of the case including those

touching the probative value of the autopsy

surgeon‟s opinion.”

22. Again the issue came up for consideration in Vijay

Pal Singh and others vs. State of Uttarakhand reported in (2014) 15

SCC 163 and the same has been dealt with in following way:-

“18. However, it is generally seen that in cases where
Patna High Court CR. APP (SJ) No.936 of 2016 18

a married woman dies within seven years of

marriage, otherwise than under normal

circumstances, no inquiry is usually conducted to see

whether there is evidence, direct or circumstantial, as

to whether the offence falls under Section 302 of IPC.

Sometimes, Section 302 of IPC is put as an alternate

charge. In cases where there is evidence, direct or

circumstantial, to show that the offence falls under

Section 302 of IPC, the trial court should frame the

charge under Section 302 of IPC even if the police

has not expressed any opinion in that regard in the

report under Section 173(2) of the Cr.PC. Section

304B of IPC can be put as an alternate charge if the

trial court so feels. In the course of trial, if the court

finds that there is no evidence, direct or

circumstantial, and proof beyond reasonable doubt is

not available to establish that the same is not

homicide, in such a situation, if the ingredients under

Section 304B of IPC are available, the trial court

should proceed under the said provision. In Muthu

Kutty and another v. State (2005) 9 SCC 113 by

Inspector of Police, T.N.1, this Court addressed the

issue and held as follows:

“20. A reading of Section 304-B IPC and Section

113-B, Evidence Act together makes it clear that law

authorises a presumption that the husband or any

other relative of the husband has caused the death of
Patna High Court CR. APP (SJ) No.936 of 2016 19

a woman if she happens to die in circumstances not

normal and that there was evidence to show that she

was treated with cruelty or harassed before her death

in connection with any demand for dowry. It,

therefore, follows that the husband or the relative, as

the case may be, need not be the actual or direct

participant in the commission of the offence of death.

For those that are direct participants in the

commission of the offence of death there are already

provisions incorporated in Sections 300, 302 and

304. The provisions contained in Section 304-B IPC

and Section 113-B of the Evidence Act were

incorporated on the anvil of the Dowry Prohibition

(Amendment) Act, 1984, the main object of which is

to curb the evil of dowry in the society and to make it

severely punitive in nature and not to extricate

husbands or their relatives from the clutches of

Section 302 IPC if they directly cause death. This

conceptual difference was not kept in view by the

courts below. But that cannot bring any relief if the

conviction is altered to Section 304 Part II. No

prejudice is caused to the accused-appellants as they

were originally charged for offence punishable under

Section 302 IPC along with Section 304-B IPC.”

19. In a recent decision, this Court in Jasvinder

Saini and others v. State (Government of NCT of

Delhi) (2013) 7 SCC 256, observed thus:
Patna High Court CR. APP (SJ) No.936 of 2016 20

“15. It is common ground that a charge under

Section 304-B IPC is not a substitute for a charge of

murder punishable under Section 302. As in the case

of murder in every case under Section 304-B also

there is a death involved. The question whether it is

murder punishable under Section 302 IPC or a dowry

death punishable under Section 304-B IPC depends

upon the fact situation and the evidence in the case. If

there is evidence whether direct or circumstantial to

prima facie support a charge under Section 302 IPC

the trial court can and indeed ought to frame a

charge of murder punishable under Section 302 IPC,

which would then be the main charge and not an

alternative charge as is erroneously assumed in some

quarters. If the main charge of murder is not proved

against the accused at the trial, the court can look

into the evidence to determine whether the alternative

charge of dowry death punishable under Section 304-

B is established. The ingredients constituting the two

offences are different, thereby demanding

appreciation of evidence from the perspective

relevant to such ingredients. The trial court in that

view of the matter acted mechanically for it framed

an additional charge under Section 302 IPC without

adverting to the evidence adduced in the case and

simply on the basis of the direction issued in Rajbir

case. The High Court no doubt made a halfhearted
Patna High Court CR. APP (SJ) No.936 of 2016 21

attempt to justify the framing of the charge

independent of the directions in Rajbir case, but it

would have been more appropriate to remit the

matter back to the trial court for fresh orders rather

than lending support to it in the manner done by the

High Court.”

20. Though in the instant case the accused were

charged by the Sessions Court under Section 302 of

IPC, it is seen that the trial court has not made any

serious attempt to make an inquiry in that regard. If

there is evidence available on homicide in a case of

dowry death, it is the duty of the investigating officer

to investigate the case under Section 302 of IPC and

the prosecution to proceed in that regard and the

court to approach the case in that perspective.

Merely because the victim is a married woman

suffering an unnatural death within seven years of

marriage and there is evidence that she was

subjected to cruelty or harassment on account of

demand for dowry, the prosecution and the court

cannot close its eyes on the culpable homicide and

refrain from punishing its author, if there is evidence

in that regard, direct or circumstantial.

21. In the instant case, the prosecution has not made

any attempt to explain the ante-mortem injuries

which conclusively point to the cause of death as

asphyxia caused by strangulation. Yet, no serious
Patna High Court CR. APP (SJ) No.936 of 2016 22

attempt, it is disturbing to note, was done to connect

the murder to its author(s).

22. No doubt, nothing prevents this Court from

putting the appellants on notice as to why the

punishment should not be appropriately enhanced but

why we reluctantly decline to do so, we shall explain

in the later part of the judgment.

23. In two of the early decisions of this Court, after

the introduction of Section 304B of IPC, the

ingredients of the offence and the interplay of Section

304B of IPC with Sections 498A, 302, 306 of IPC

have also been discussed. In State of Punjab v. Iqbal

Singh and others (1991) 3 SCC 1, the Court in

paragraph-8 stated that:

“8. … The legislative intent is clear to curb the

menace of dowry deaths, etc., with a firm hand. We

must keep in mind this legislative intent. It must be

remembered that since crimes are generally

committed in the privacy of residential homes and in

secrecy, independent and direct evidence is not easy

to get. That is why the legislature has by introducing

Sections 113-A and 113-B in the Evidence Act tried

to strengthen the prosecution hands by permitting a

presumption to be raised if certain foundational facts

are established and the unfortunate event has taken

place within seven years of marriage. This period of

seven years is considered to be the turbulent one
Patna High Court CR. APP (SJ) No.936 of 2016 23

after which the legislature assumes that the couple

would have settled down in life. If a married women

is subjected to cruelty or harassment by her husband

or his family members Section 498-A, IPC would be

attracted. If such cruelty or harassment was inflicted

by the husband or his relative for, or in connection

with, any demand for dowry immediately preceding

death by burns and bodily injury or in abnormal

circumstances within seven years of marriage, such

husband or relative is deemed to have caused her

death and is liable to be punished under Section 304-

B, IPC. When the question at issue is whether a

person is guilty of dowry death of a woman and the

evidence discloses that immediately before her death

she was subjected by such person to cruelty and/or

harassment for, or in connection with, any demand

for dowry, Section 113-B, Evidence Act provides that

the court shall presume that such person had caused

the dowry death. Of course if there is proof of the

person having intentionally caused her death that

would attract Section 302, IPC. Then we have a

situation where the husband or his relative by his

willful conduct creates a situation which he knows

will drive the woman to commit suicide and she

actually does so, the case would squarely fall within

the ambit of Section 306, IPC. In such a case the

conduct of the person would tantamount to inciting or
Patna High Court CR. APP (SJ) No.936 of 2016 24

provoking or virtually pushing the woman into a

desperate situation of no return which would compel

her to put an end to her miseries by committing

suicide. …”

23. Section 221 of the Cr.P.C. permits the Court to

convict a person even in case of absence of charge in case of presence

of sufficient material available on the record and such finding would

not be subject to challenge as laid down under Section 464 of the

Cr.P.C. For better appreciation, the same is quoted below:-

“221. Where it is doubtful what offence has been

committed.

(1) If a single act or series of acts is of such a

nature that it is doubtful which of several offences

the facts which can be proved will constitute, the

accused may be charged with having committed all

or any of such offences, and any number of such

charges may be tried at once; or he may be charged

in the alternative with having committed some one

of the said offences.

(2) If in such a case the accused is charged with one

offence, and it appears in evidence that he

committed a different offence for which he might

have been charged under the provisions of sub-

section (1), he may be convicted of the offence

which he is shown to have committed, although he
Patna High Court CR. APP (SJ) No.936 of 2016 25

was not charged with it. Illustrations

(a) A is accused of an act which may amount to

theft, or receiving stolen property, or criminal

breach of trust or cheating. He may be charged

with theft, receiving stolen property, criminal

breach of trust and cheating, or he may be charged

with having committed theft, or receiving stolen

property, or criminal breach of trust or cheating.

(b) In the case mentioned, A is only charged with

theft. It appears that he committed the offence of

criminal breach of trust, or that of receiving stolen

goods. He may be convicted of criminal breach of

trust or of receiving stolen goods (as the case may

be), though he was not charged with such offence.

(c) A states on oath before the Magistrate that he

saw B hit C with a club. Before the Sessions Court

A states on oath that B never hit C. A may be

charged in the alternative and convicted of

intentionally giving false evidence, although it

cannot be proved which of these contradictory

statements was false.

464. Effect of omission to frame, or absence of, or

error in, charge.

(1) No finding, sentence or order by a Court of

competent jurisdiction shall be deemed invalid

merely on the ground that no charge was framed or
Patna High Court CR. APP (SJ) No.936 of 2016 26

on the ground of any error, omission or irregularity

in the charge including any misjoinder of charges,

unless, in the opinion of the Court of appeal,

confirmation or revision, a failure of justice has in

fact been occasioned thereby.

(2) If the Court of appeal, confirmation or revision

is of opinion that a failure of justice has in fact been

occasioned, it may-

(a) in the case of an omission to frame a charge,

order that a charge be framed and that the trial be

recommended from the point immediately after the

framing of the charge;

(b) in the case of an error, omission or irregularity

in the charge, direct a new trial to be had upon a

charge framed in whatever manner it thinks fit:

Provided that if the Court is of opinion that the

facts of the case are such that no valid charge could

be preferred against the accused in respect of the

facts proved, it shall quash the conviction.”

24. In Mohan Singh vs. State of Bihar reported in

(2011) 9 SCC 272, where no charge under Section 302 I.P.C. was

framed, was taken into consideration and has been decided as:-

“27. In view of such consistent opinion of this

Court, we are of the view that no prejudice has been

caused to the appellant for non-mentioning of
Patna High Court CR. APP (SJ) No.936 of 2016 27

Section 302 I.P.C. in the charge since all the

ingredients of the offence were disclosed. The

appellant had full notice and had ample opportunity

to defend himself against the same and at no earlier

stage of the proceedings, the appellant had raised

any grievance. Apart from that, on overall

consideration of the facts and circumstances of this

case we do not find that the appellant suffered any

prejudice nor has there been any failure of justice.

28. In the instant case, in the charge it has been

clearly mentioned that the accused-appellant has

committed the murder of Anil Jha. By mentioning

that the accused has committed the murder of Anil

Jha all the ingredients of the charge have been

mentioned and the requirement of Section 211, sub-

section (2) has been complied with. Therefore, we

do not find any substance in the aforesaid grievance

of the appellant.”

25. The Constitution Bench of the Apex Court in Willie

(William) Slaney vs. State of Madhya Pradesh reported in A.I.R.

1956 SC 116, has held:-

“44. Now, as we have said, sections 225, 232, 535

and 537(a) between them, cover every conceivable

typo, of error and irregularity referable to a charge
Patna High Court CR. APP (SJ) No.936 of 2016 28

that can possibly arise, ranging from cases in

which there is a conviction with no charge at all

from start to finish down to cases in which there is a

charge but with errors, irregularities and omissions

in it. The Code is emphatic that whatever the

irregularity it is not to be regarded as fatal unless

there is prejudice.

It is the substance that we must seek. Courts have to

administer justice and justice includes the

punishment of guilt just as much as the protection of

innocence. Neither can be done if the shadow is

mistaken for the substance and the goal is lost in a

labyrinth of unsubstantial technicalities. Broad

vision is required, a nice balancing of the rights of

the State and the protection of society in general

against protection from harassment to the

individual and the risks of unjust conviction.

Every reasonable presumption must be made

infavour of an accused person; he must be given the

benefit of every reasonable doubt. The same broad

principles of justice and fair play must be brought

to bear when determining a matter of prejudice as

in adjudging guilt. But when all is said and done,

what we are concerned to see is whether the

accused bad a fair trial, whether he knew what be
Patna High Court CR. APP (SJ) No.936 of 2016 29

was being tried for, whether the main facts sought

to be established against him were explained to him

fairly and clearly and whether he was given a full

and fair chance to defend himself.

If all these elements are there and no prejudice is

shown the conviction must stand whatever the

irregularities whether traceable to the charge or to

a want of one.”

26. In Darbara Singh vs. State of Punjab reported in

(2012) 10 SCC 476, it has been held:-

“20. The defect in framing of the charges must be

so serious that it cannot be covered under Sections

464/465 Cr.P.C., which provide that, an order of

sentence or conviction shall not be deemed to be

invalid only on the ground that no charge was

framed, or that there was some irregularity or

omission or misjoinder of charges, unless the court

comes to the conclusion that there was also, as a

consequence, a failure of justice. In determining

whether any error, omission or irregularity in

framing the relevant charges, has led to a failure of

justice, the court must have regard to whether an

objection could have been raised at an earlier

stage, during the proceedings or not. While judging

the question of prejudice or guilt, the court must
Patna High Court CR. APP (SJ) No.936 of 2016 30

bear in mind that every accused has a right to a fair

trial, where he is aware of what he is being tried for

and where the facts sought to be established against

him, are explained to him fairly and clearly, and

further, where he is given a full and fair chance to

defend himself against the said charge(s).

21. The „failure of justice‟ is an extremely pliable or

facile expression, which can be made to fit into any

situation in any case. The court must endeavour to

find the truth. There would be „failure of justice‟;

not only by unjust conviction, but also by acquittal

of the guilty, as a result of unjust failure to produce

requisite evidence. Of course, the rights of the

accused have to be kept in mind and also

safeguarded, but they should not be over

emphasised to the extent of forgetting that the

victims also have rights. It has to be shown that the

accused has suffered some disability or detriment in

respect of the protections available to him under

Indian Criminal Jurisprudence. „Prejudice‟, is

incapable of being interpreted in its generic sense

and applied to criminal jurisprudence. The plea of

prejudice has to be in relation to investigation or

trial, and not with respect to matters falling outside

their scope. Once the accused is able to show that
Patna High Court CR. APP (SJ) No.936 of 2016 31

there has been serious prejudice caused to him,

with respect to either of these aspects, and that the

same has defeated the rights available to him under

jurisprudence, then the accused can seek benefit

under the orders of the Court. (Vide: Rafiq Ahmed

@ Rafi v. State of U.P., AIR 2011 SC 3114;

Rattiram Ors. v. State of M.P. through Inspector

of Police, AIR 2012 SC 1485; and Criminal Appeal

No.46 of 2005 (Bhimanna v. State of Karnataka)

decided on 4th September, 2012).”

27. In Begu and others vs. King Emperor reported in

A.I.R. 1925 Privy Council 130, wherein accused was charged and

convicted at an initial stage under Section 302 I.P.C., but in appeal,

conviction was altered under Section 201 I.P.C. though no charge was

existing thereunder, it has been held:-

“A man may be convicted of an offence,

although there has been no charge in respect of it, if the

evidence is such as to establish a charge that might have

been made.”

28. In Kamalanantha and others vs. State of Tamil

Nadu reported in (2005) 5 SCC 194, it has been observed:-

“50. It is clear from the aforesaid decisions that

misjoinder of charges is not an illegality but an

irregularity curable under Section 464 or Section
Patna High Court CR. APP (SJ) No.936 of 2016 32

465 Cr.P.C. provided no failure of justice had

occasioned thereby. Whether or not the failure of

justice had occasioned thereby, it is the duty of the

Court to see, whether an accused had a fair trial,

whether he knew what he was being tried for,

whether the main facts sought to be established

against him were explained to him fairly and

clearly and whether he was given a full and fair

chance to defend himself.”

29. In Annareddy Sambasiva Reddy and others vs. State

of Andhra Pradesh reported in (2009) 12 SCC 546, it has been held:-

“55. In unmistakable terms, Section 464 specifies

that a finding or sentence of a court shall not be set

aside merely on the ground that a charge was not

framed or that charge was defective unless it has

occasioned in prejudice. Because of a mere defect

in language or in the narration or in form of the

charge, the conviction would not be rendered bad if

accused has not been adversely affected thereby. If

the ingredients of the section are obvious or

implicit, conviction in regard thereto can be

sustained irrespective of the fact that the said

section has not been mentioned.”

30. In K. Prema S. Rao and another vs. Yadala

Srinivasa Rao and others reported in (2003) 1 SCC 217, it has been
Patna High Court CR. APP (SJ) No.936 of 2016 33

held:-

“22. Mere omission or defect in framing charge

does not disable the Criminal Court from convicting

the accused for the offence which is found to have

been proved on the evidence on record. The Code of

Criminal procedure has ample provisions to meet a

situation like the one before us. From the Statement

of Charge framed under Section 304B and in the

alternative Section 498A, IPC (as quoted above) it

is clear that all facts and ingredients for framing

charge for offence under Section 306, IPC existed

in the case. The mere omission on the part of the

trial Judge to mention of Section 306, IPC with

498A, IPC does not preclude the Court from

convicting the accused for the said offence when

found proved. In the alternate charge framed under

Section 498A of IPC, it has been clearly mentioned

that the accused subjected the deceased to such

cruelty and harassment as to drive her to commit

suicide. The provisions of Section 221 of Cr.P.C.

take care of such a situation and safeguard the

powers of the criminal court to convict an accused

for an offence with which he is not charged

although on facts found in evidence, he could have

been charged for such offence. Section 221 of Cr.
Patna High Court CR. APP (SJ) No.936 of 2016 34

P.C. needs reproduction:-

“221. Where it is doubtful what offence has been

committed-(l) If a single act or series of acts is of

such a nature that it is doubtful which of several

offences the facts which can be proved will

constitute, the accused may be charged with having

committed all or any of such offences, and any

number of such charges may be tried at once; or he

may be charged. In the alternative with having

committed some one of the said offences.

(2) If in such a case the accused is charged with one

offence, and it appears in evidence that he

committed a different offence for which he might

have been charged under the provisions of sub-

section (12), he may be convicted of the offence

which he is shown to have committed, although he

was not charged with it.

23. The provision of sub-section (2) of Section 221

read with sub-section (1) of the said Section can be

taken aid of in convicting and sentencing the

accused No. 1 of offence of abetment of suicide

under Section 306 of IPC along with or instead of

Section 498A of IPC.

24. Section 215 allows criminal court to ignore any
Patna High Court CR. APP (SJ) No.936 of 2016 35

error in stating either the offence or the particulars

required to be stated in the charge, if the accused

was not, in fact, misled by such error or omission in

framing the charge and it has not occasioned a

failure of justice. See Section 215 of Cr. P.C. which

reads:-

“215. Effect of errors – No error in stating, either

the offence or the particulars required to be stated

in the charge, and no commission to state the

offence or those particulars, shall be regarded any

stage of the case as material, unless the accused

was in fact misled by such error or omission, and it

has occasioned a failure of justice.

25. As provided in Section 215 of Cr.P.C.

commission to frame charge under Section 306 IPC

has not resulted in any failure of justice. We find no

necessity to remit the matter to the trial court for

framing charge under Section 306 IPC and direct a

retrial for that charge. The accused cannot

legitimately complain of any want of opportunity to

defend the charge under Section 306, IPC and a

consequent failure of justice. The same facts found

in evidence, which justify conviction of the

appellant under Section 498A for cruel treatment of

his wife, make out a case against him under Section
Patna High Court CR. APP (SJ) No.936 of 2016 36

306 IPC of having abetted commission of suicide by

the wife. The appellant was charged for an offence

of higher degree causing “dowry death” under

Section 304B which is punishable with minimum

sentence of seven years rigorous imprisonment and

maximum for life. Presumption under Section 113A

of the Evidence Act could also be raised against

him on same facts constituting offence of cruelty

under Section 498A, IPC. No further opportunity of

defence is required to be granted to the appellant

when he had ample opportunity to meet the charge

under Section 498A, IPC.”

31. In Dinesh Seth vs. State of NCT of Delhi reported in

(2008) 14 SCC 94, it has been held:-

“11. A reading of the plain language of Section

221(1) and (2) shows that if a single act or series of

acts constitute several offences and the prosecution

is not certain about the particular offence then the

accused can be charged with the allegation of

having committed all, some or any of the offences.

In such a case the accused can be convicted of the

offence with which he may not have been

specifically charged but evidence produced by the

prosecution proves that such an offence has, in fact,

been committed.

Patna High Court CR. APP (SJ) No.936 of 2016 37

12. Section 222(1) lays down that when a person is

charged with an offence consisting of several

particulars and combination of only some of the

particulars constituting a minor offence is proved

then he can be convicted of the minor offence with

which he may not have been charged. Section

222(2) lays down that when a person is charged

with an offence but the facts proved constitute a

minor offence then he can be convicted of the minor

offence despite the fact that he may not have been

charged with that offence. Sub-section (3) of

Section 222 lays down that a person charged with

an offence, can be convicted of an attempt to

commit such offence even though a separate charge

may not have been framed on that account.

13. Section 464(1) lays down that any error,

omission or irregularity in the framing of charge

including any misjoinder of charges, will not

invalidate a finding, sentence or order by a court of

competent jurisdiction unless the higher court

comes to a conclusion that failure of justice has

been occasioned. Sub-section (2) of Section 464

specifies the modes which can be adopted by the

Court of appeal, confirmation or revision, if such

court is of the opinion that a failure of the justice
Patna High Court CR. APP (SJ) No.936 of 2016 38

has been occasioned on account of non framing of

charge or any error, omission or irregularity in the

framing of charge.

14. The question whether omission to frame a

charge or any error or irregularity in the charge, is

by itself, sufficient for quashing the conviction of

the accused was considered in Willie (William)

Slaney vs. State of M.P. [AIR 1956 SC 116]. After

examining the issue in detail, the Constitution

Bench of this Court observed:-

“6. Before we proceed to set out our answer

and examine the provisions of the Code, we will

pause to observe that the Code is a code of

procedure and, like all procedural laws, is designed

to further the ends of justice and not to frustrate

them by the introduction of endless technicalities.

The object of the Code is to ensure that an accused

person gets a full and fair trial along certain well-

established and well-understood lines that accord

with our notions of natural justice.

If he does, if he is tried by a competent court, if he

is told and clearly understands the nature of the

offence for which he is being tried, if the case

against him is fully and fairly explained to him and

he is afforded a full and fair opportunity of
Patna High Court CR. APP (SJ) No.936 of 2016 39

defending himself, then, provided there is

`substantial’ compliance with the outward forms of

the law, mere mistakes in procedure, mere

inconsequential errors and omissions in the trial

are regarded as venal by the Code and the trial is

not vitiated unless the accused can show substantial

prejudice. That, broadly speaking, is the basic

principle on which the Code is based.

7. Now here, as in all procedural laws,

certain things are regarded as vital. Disregard of a

provision of that nature is fatal to the trial and at

once invalidates the conviction. Others are not vital

and whatever the irregularity they can be cured;

and in that event the conviction must stand unless

the Court is satisfied that there was prejudice. Some

of these matters are dealt with by the Code and

wherever that is the case full effect must be given to

its provisions.”

15. The Constitution Bench then referred to the

provisions of Sections 225, 232, 535 and 537 of the

Code of Criminal Procedure, 1898, which are

analogous to Section 215, 464 and 465 of the Code

and held (AIR 1956 SC 116.:

“44. “Now, as we have said, Sections 225,

232, 535 and 537(a) between them, cover every
Patna High Court CR. APP (SJ) No.936 of 2016 40

conceivable type of error and irregularity referable

to a charge that can possibly arise, ranging from

cases in which there is a conviction with no charge

at all from start to finish down to cases in which

there is a charge but with errors, irregularities and

omissions in it. The Code is emphatic that

`whatever’ the irregularity it is not to be regarded

as fatal unless there is prejudice.

It is the substance that we must seek. Courts

have to administer justice and justice includes the

punishment of guilt just as much as the protection of

innocence. Neither can be done if the shadow is

mistaken for the substance and the goal is lost in a

labyrinth of unsubstantial technicalities. Broad

vision is required, a nice balancing of the rights of

the State and the protection of society in general

against protection from harassment to the

individual and the risks of unjust conviction.

Every reasonable presumption must be

made in favour of an accused person; he must be

given the benefit of every reasonable doubt. The

same broad principles of justice and fair play must

be brought to bear when determining a matter of

prejudice as in adjudging guilt. But when all is said

and done what we are concerned to see is whether
Patna High Court CR. APP (SJ) No.936 of 2016 41

the accused had a fair trial, whether he knew what

he was being tried for, whether the main facts

sought to be established against him were explained

to him fairly and clearly and whether he was given

a full and fair chance to defend himself.

If all these elements are there and no prejudice is

shown the conviction must stand whatever the

irregularities whether traceable to the charge or to

a want of one.”

16. In Gurbachan Singh vs. State of Punjab [AIR

1957 SC 623], a three Judges’ Bench considered the

question of prejudice and observed:

“7. In judging a question of prejudice, as of guilt,

courts must act with a broad vision and look to the

substance and not to technicalities, and their main

concern should be to see whether the accused had a

fair trial, whether he knew what he was being tried

for, whether the main facts sought to be established

against him were explained to him fairly and

clearly and whether he was given a full and fair

chance to defend himself.”

17. In Lakhjit Singh vs. State of Punjab [1994 Supp.

(1) SCC 173], the accused were charged and

convicted of offence under Section 302 IPC. The

High Court upheld their conviction. A two Judges’
Patna High Court CR. APP (SJ) No.936 of 2016 42

Bench of this Court held that charge under Section

302 IPC is not established but convicted the

appellants under Section 306 IPC. While rejecting

the argument that in the absence of a specific

charge under Section 306 IPC, the appellants

cannot be convicted under that section, the Court

observed:-

“9. The learned counsel, however, submits that

since the charge was for the offence punishable

under Section 302 Indian Penal Code, the accused

were not put to notice to meet a charge also made

against them under Section 306 IPC and, therefore,

they are prejudiced by not framing a charge under

Section 306 Indian Penal Code and; therefore,

presumption under Section 113-A of Indian

Evidence Act cannot be drawn and consequently a

conviction under Section 306 cannot be awarded.

We are unable to agree. The facts and

circumstances of the case have been put forward

against the accused under Section 313 CrPC and

when there was a demand for dowry it cannot be

said that the accused are prejudiced because the

cross-examination of the witnesses, as well as the

answers given under Section 313 CrPC would show

that they had enough of notice of the allegations

which attract Section 306 Indian Penal Code also.”
Patna High Court CR. APP (SJ) No.936 of 2016 43

18. In Sangaraboina Sreenu vs. State of A.P. [1997

(5) SCC 348], another Bench of two Judges’

expressed a contrary view. The facts of that case

were that the accused was convicted by the trial

court under Section 302 IPC. The High Court

converted the conviction to one under Section 306

IPC. While reversing the judgment of the High

Court, this Court held:

“2. This appeal must succeed for the simple reason

that having acquitted the appellant of the charge

under Section 302 IPC — which was the only charge

framed against him — the High Court could not

have convicted him of the offence under Section 306

IPC. It is true that Section 222 CrPC entitles a

court to convict a person of an offence which is

minor in comparison to the one for which he is tried

but Section 306 IPC cannot be said to be a minor

offence in relation to an offence under Section 302

IPC within the meaning of Section 222 CrPC for the

two offences are of distinct and different categories.

While the basic constituent of an offence under

Section 302 IPC is homicidal death, those of

Section 306 IPC are suicidal death and abetment

thereof.”

19. In view of the apparently conflicting judgments
Patna High Court CR. APP (SJ) No.936 of 2016 44

of the coordinate Benches, the issue was referred to

a larger Bench. In Dalbir Singh vs. State of U.P.

[2004 (5) SCC 334], a three Judges’ Bench

considered the provisions of Section 222 and 464 of

the Code and observed:-

“14…..Sub-section (1) of Section 222 lays down that

when a person is charged with an offence consisting

of several particulars, a combination of some only

of which constitutes a complete minor offence, and

such combination is proved, but the remaining

particulars are not proved, he may be convicted of

the minor offence, though he was not charged with

it. Sub- section (2) of the same section lays down

that when a person is charged with an offence and

facts are proved which reduce it to a minor offence,

he may be convicted of the minor offence, although

he is not charged with it. Section 222 CrPC is in the

nature of a general provision which empowers the

court to convict for a minor offence even though

charge has been framed for a major offence.

Illustrations (a) and (b) to the said section also

make the position clear. However, there is a

separate chapter in the Code of Criminal

Procedure, namely, Chapter XXXV which deals

with irregular proceedings and their effect. This

chapter enumerates various kinds of irregularities
Patna High Court CR. APP (SJ) No.936 of 2016 45

which have the effect of either vitiating or not

vitiating the proceedings. Section 464 of the Code

deals with the effect of omission to frame, or

absence of, or error in, charge. Sub-section (1) of

this section provides that no finding, sentence or

order by a court of competent jurisdiction shall be

deemed invalid merely on the ground that no

charge was framed or on the ground of any error,

omission or irregularity in the charge including any

misjoinder of charges, unless, in the opinion of the

court of appeal, confirmation or revision, a failure

of justice has in fact been occasioned thereby. This

clearly shows that any error, omission or

irregularity in the charge including any misjoinder

of charges shall not result in invalidating the

conviction or order of a competent court unless the

appellate or revisional court comes to the

conclusion that a failure of justice has in fact been

occasioned thereby.” (emphasis in original)

20. The three Judges’ Bench then referred to the

earlier judgments in Willie (William) Slaney vs.

State of M.P. (A.I.R. 1956 SC 116), Gurbachan

Singh vs. State of Punjab (supra) and observed:-

“17. There is a catena of decisions of this Court on

the same lines and it is not necessary to burden this
Patna High Court CR. APP (SJ) No.936 of 2016 46

judgment by making reference to each one of them.

Therefore, in view of Section 464 CrPC, it is

possible for the appellate or revisional court to

convict an accused for an offence for which no

charge was framed unless the court is of the opinion

that a failure of justice would in fact occasion. In

order to judge whether a failure of justice has been

occasioned, it will be relevant to examine whether

the accused was aware of the basic ingredients of

the offence for which he is being convicted and

whether the main facts sought to be established

against him were explained to him clearly and

whether he got a fair chance to defend himself. We

are, therefore, of the opinion that Sangaraboina

Sreenu was not correctly decided as it purports to

lay down as a principle of law that where the

accused is charged under Section 302 IPC, he

cannot be convicted for the offence under Section

306 IPC.”

21. The ratio of the above noted judgments is that in

certain situations an accused can be convicted of an

offence with which he may not have been

specifically charged and that an error, omission or

irregularity in the framing of charge is, by itself not

sufficient for upsetting the conviction. The

appellate, confirming or revisional Court can
Patna High Court CR. APP (SJ) No.936 of 2016 47

interfere in such matters only if it is shown that

error, omission or irregularity in the framing of

charge has caused prejudice to the accused and

failure of justice has been occasioned.”

32. In Sanichar Sahni vs. State of Bihar reported in

(2009) 7 SCC 198, it has been held:-

21. It is also not the case where the appellant can

take the plea that he was not aware as what was the

charge against him and what defence he could lead.

There had been evidence of hatching the conspiracy

of impeccable character. On the point of conspiracy

the courts below have recorded the finding against

the appellant.

22. In State of A.P. v. Thakkidiram Reddy, (1998) 6

SCC 554, this Court considered the issue of not

framing the proper charges. In that case averment

had been raised that charges have not been framed

against the accused persons in accordance with

Section 211 Cr.P.C.. In that case the charge had

been framed under Section 148 IPC, though it was

alleged that they were the members of an unlawful

assembly, it was not mentioned what its common

object was. Besides, it was contended, a charge

under Section 302 IPC simpliciter was framed

against all the accused persons and not with the aid
Patna High Court CR. APP (SJ) No.936 of 2016 48

of Section 149 IPC for which they were convicted

by the trial court.

23. This Court repealed the contention observing as

under: (1998) 6 SCC 554).

“10. Sub-section (1) of Section 464 of the Code of

Criminal Procedure 1973 (“Code” for short)

expressly provides that no finding, sentence or

order by; a court of competent jurisdiction shall be

deemed invalid merely on the ground that no

charge was framed or on the ground of any error,

omission or irregularity in the charge including any

misjoinder of charges, unless in the opinion of the

court of appeal, confirmation or revision, a failure

of justice has in fact (emphasis supplied) been

occasioned thereby. Sub-section (2) of the said

section lays down the procedure that the court of

appeal, confirmation or revision has to follow in

case it is of the opinion that a failure of justice has

in fact been occasioned. The other section relevant

for our purposes is Section 465 of the Code; and it

lays down that no finding, sentence or order passed

by a court of competent jurisdiction shall be

reversed or altered by a court of appeal,

confirmation or revision on account of any error,

omission or irregularity in the proceedings, unless
Patna High Court CR. APP (SJ) No.936 of 2016 49

in the opinion of that court, a failure of justice has

in fact been occasioned. It further provides, inter

alia, that in determining whether any error,

omission or irregularity in any proceeding under

this Code has occasioned a failure of justice, the

Court shall have regard to the fact whether the

objection could and should have been raised at an

earlier stage in the proceedings.” (emphasis in

original)

24. The Court in Thakkidiram case 1998) 6 SCC

554 further held that in judging a question of

prejudice, as of guilt, court must act with a broad

vision and look to the substance and not to

technicalities, and its main concern should be to see

whether the accused had a fair trial, whether he

knew what he was being tried for, whether the main

facts sought to be established against him were

explained to him fairly and clearly and whether he

was given a full and fair chance to defend himself.

In the said case this Court ultimately came to the

conclusion that in spite of defect in framing of

charge, as no prejudice had been caused to the

convicts, no interference was required.

25. A Constitution Bench of this Court in Willie

(William) Slaney, v. State of M.P., AIR 1956 SC
Patna High Court CR. APP (SJ) No.936 of 2016 50

116, considered the issue of non- framing of

charges properly and conviction of an accused for

the offences for which he has not been charged and

reached the conclusion as under:-

“86. …In such a situation, the absence of a charge

under one or other of the various heads of criminal

liability for the offence cannot be said to be fatal by

itself, and before a conviction for the substantive

offence, without a charge, can be set aside,

prejudice will have to be made out. …. …..

87 …. If it is so grave that prejudice will necessarily

be implied or imported, it may be described as an

illegality. If the seriousness of the omission is of a

lesser degree, it will be an irregularity and

prejudice by way of failure of justice will have to be

established”.

26. This Court in Gurpreet Singh v. State of Punjab,

(2005) 12 SCC 615 referred to and relied upon its

earlier judgments in Willie (William) Slaney, (AIR

1956 SC 116) and State of A.P. v. Thakkidiram

Reddy, (1998) 6 SCC 554) and held that unless

there is failure of justice and thereby the cause of

the accused has been prejudiced, no interference is

required if the conviction can be upheld on the

evidence led against the accused. The Court should
Patna High Court CR. APP (SJ) No.936 of 2016 51

not interfere unless it is established that the accused

persons were in any way prejudiced due to the

errors and omissions in framing the charges against

him. A similar view has been reiterated by this

Court in Ramji Singh v. State of Bihar (2001) 9

SCC 528.

29. On this very issue of conspiracy, the

prosecution led evidence of impeccable character of

two witnesses, namely, Ashok Paswan PW.2 and

Ashok Kumar Verma PW.5. The appellant was

given full opportunity to defend himself only on this

very point of conspiracy as there was no other

allegation against him. He was asked specific

question by the trial court on the point of

conspiracy while recording his statement under

Section 313 Cr.P.C. Therefore, it cannot be held

even by any stretch of imagination that any

prejudice has been caused to the appellant on this

very issue.”

33. At the present moment, one should not lost sight of

obligation having entrusted on the part of the Court as well as

prosecutor in case being sessions triable, as Section 226 Cr.P.C.

prescribes an obligation upon the prosecutor to open his case by

stating that under what penal provisions, charge is to be framed and
Patna High Court CR. APP (SJ) No.936 of 2016 52

by what evidence the aforesaid charge is going to be proved which, in

terms of Section 227 as well as Section 228 of the Cr.P.C. the Court

has to perceive whether the materials having placed before the Court

is to justify trial and if so, under what relevant provision Court

attracts discharge on account of paucity of prima facie material.

34. At the present moment, one more aspect is to be seen

as is visualizing from the record itself. From the L.C. Record, it is

evident that fard-bayan of informant does contain disclosure that fard-

bayan of deceased was already recorded by Pirbahore P.S. at an

earlier occasion which, the reason best known to the concerned

authorities did not find favour as that version was the initial version

which ought to have been the basis of the registration of the case and

further, the aforesaid statement which later on became dying

declaration was kept away and remained away conspiracy though duly

certified photo copy has been brought up on record by PW-6 and PW-

7, Investigating Officer during course of trial Exhibit-1, which

completely rules out the theme of dowry death rather as deceased did

not accede to lecherous desire of the accused/ appellant on account

thereof, she was caught hold, kerosene oil was sprinkled and then, lit

fire over her body by the appellants.

35. Whether it happens to be a miscarriage of justice or

not, is a theme to be perceived whereupon de novo trial be directed
Patna High Court CR. APP (SJ) No.936 of 2016 53

while exercising appellate power in terms of Section 386 of the

Cr.P.C. Though, such eventualities have not been defined under

Section 386 of the Cr.P.C. At the other end, it has been left out within

the arena of appellate Court to pass such order in a case so

appreciated, warranting the same.

36. At the present juncture, it looks pertinent to perceive

the submission made on behalf of learned counsel for the appellant,

who has stressed over Clause-b(1) of Section 386 of the Cr.P.C. and

submitted that first obligation which, the appellate Court is to

discharge, to acquit the appellant by way of reversing the finding and

if not, then may order for retrial in appropriate cases. That being so,

retrial should not be the proper step taken by the appellate Court even

finding lapses at the part of the lower Court which, on due

consideration, be considered as a ground for acquittal of the accused

and not for retrial. Lapses were at the end of learned lower Court and

so, the same could not be allowed to be corrected, filled up in order to

sustain conviction against an accused causing prejudice to their

interest.

37. There happens to be obligation on the part of the

Court to see that it is not only protection of the interest of the accused

rather it is also for protection of the victim. A crime is not always

against an individual rather it happens to be against the State and so,
Patna High Court CR. APP (SJ) No.936 of 2016 54

its impact has also to been seen, more particularly allowing a

perception against the system that on account of wrong having been

committed by the Court, the culprit has been allowed to go escort free.

Furthermore, the Court should not be a mere silent expectator rather it

has to be active during course of trial to ward off any kind of lapses

affecting the trial on account of undue steps. That being so, an

obligation having attributed upon a Court by the statute is to be duly

discharged in legal way so that no one could found aggrieved thereby.

38. Miscarriage of justice is not at all defined rather it

happens to be an eventuality perceived by the Court, committed by

the Court which ultimately cost upon proprietary of the judgment

Court. As has been referred by learned counsel for the appellant in

Ajay Kumar Ghoshal Etc. vs. State of Bihar and another reported in

2017(1) P.L.J.R. 458 (SC), it has been held by the Hon’ble Apex

Court as follows:-

“10. Section 386 Cr.P.C. deals with the powers

of the appellate court. As per Section 386 (b)

Cr.P.C, in an appeal from a conviction, the

appellate court may:- (i) reverse the finding and

sentence and acquit or discharge the accused, or

order him to be re-tried by a Court of competent

jurisdiction subordinate to such Appellate Court

or committed for trial, or
Patna High Court CR. APP (SJ) No.936 of 2016 55

(ii) alter the finding, maintaining the sentence, or

(iii) with or without altering the finding, alter the

nature or the extent, or the nature and extent, of

the sentence, but not so as to enhance the same.

11. Though the word “retrial” is used under

Section 386(b)(i) Cr.P.C., the powers conferred

by this clause is to be exercised only in

exceptional cases, where the appellate court is

satisfied that the omission or irregularity has

occasioned in failure of justice. The

circumstances that should exist for warranting a

retrial must be such that where the trial was

undertaken by the Court having no jurisdiction,

or trial was vitiated by serious illegality or

irregularity on account of the misconception of

nature of proceedings. An order for retrial may

be passed in cases where the original trial has

not been satisfactory for some particular reasons

such as wrong admission or wrong rejection of

evidences or the Court refused to hear certain

witnesses who were supposed to be heard.

39. In Ukha Kolhe-appellant v. the State of

Maharashtra-respondent reported in A.I.R. 1963 (SC) 1531, the

majority view of the Constitution Bench held as follows:-
Patna High Court CR. APP (SJ) No.936 of 2016 56

“11. An order for retrial of a criminal case is

made in exceptional cases, and not unless the

appellate Court is satisfied that the Court trying

the proceeding had no jurisdiction to try it or

that the trial was vitiated by serious illegalities

or irregularities or on account of misconception

of the nature of the proceedings and on that

account in substance there had been no real trial

or that the Prosecutor or an accused was, for

reasons over which he had no control, prevented

from leading or tendering evidence material to

the charge, and in the interests of justice the

appellate Court deems it appropriate, having

regard to the circumstances of the case, that the

accused should be put on his trial again. An

order of re-trial wipes out from the record the

earlier proceeding, and exposes the person

accused to another trial which affords the

prosecutor an opportunity to rectify the

infirmities disclosed in the earlier trial, and will

not ordinarily be countenanced when it is made

merely to enable the prosecutor to lead evidence

which he could but has not cared to lead either

on account of insufficient appreciation of the

nature of the case or for other reasons. Harries,

C. J.,in Ramanlal Rathi v. The State AIR 1951
Patna High Court CR. APP (SJ) No.936 of 2016 57

Cal 305 observed :

“If at the end of a criminal prosecution the

evidence leaves the Court in doubt as to the guilt

of the accused the latter is entitled to a. verdict of

not guilty. A retrial may be ordered when the

original trial has not been satisfactory for

particular reasons, for example, if evidence had

been wrongly rejected which should have been

admitted, or admitted when it should have been

rejected, or the Court had refused to hear certain

witness who should have been heard. But retrial

cannot be ordered on the ground that, the

prosecution did not produce the proper evidence

and did not know how to prove their case.”

In the present case, undoubtedly the trial before

the Magistrate suffered from irregularities which

we have already set out. The evidence, such as

was led, was deficient in important respects; but

that could not be a sufficient ground for directing

a retrial. If the Sessions judge thought that in the

interests of justice and for a just and proper

decision of the case it was necessary that

additional evidence should be brought on the

record he should have, instead of directing a

retrial and reopening the entire proceedings
Patna High Court CR. APP (SJ) No.936 of 2016 58

resorted to the procedure prescribed by s. 428 (i)

or the Code of Criminal Procedure. There is no

doubt that if the ends of justice require, the

appellate Court should exercise its power under

the said section.

40. In Rajeshwar Prasad Mishra, Appellant v. the State

of West Bengal and another, Respondents reported in A.I.R. 1965

SC 1887, wherein it has been held:-

“8. These arguments disclose a tendency to read

the observations of this Court as statutory

enactments. No doubt, the law declared by this

Court binds Courts in India but it should always be

remembered that this Court does not enact. The

two cases of this Court point out that in criminal

jurisdiction the guiding principle is that a person

must not be vexed twice for the same offence. That

principle is embodied in S. 403 of the Code and is

now included as a Fundamental Right in Art. 20(2)

of the Constitution. The protection, however, is

only as long as the conviction or acquittal stands.

But the Code contemplates that a retrial may be

ordered after setting aside the conviction or

acquittal (as the case may be) if the trial already

held is found to be unsatisfactory or leads to a

failure of justice. In the same way, the Code gives a
Patna High Court CR. APP (SJ) No.936 of 2016 59

power to the appellate Court to take additional

evidence, which, for reasons to be recorded, it

considers necessary. The Code thus gives power to

the appellate Court to order one or the other as the

circumstances may require leaving a wide

discretion to it to deal appropriately with different

cases. The two cases of this Court deal with

situations in which a retrial was considered

necessary by the appellate Court. In the case of

Abinash Chandra Bose, AIR 1963 SC 316, this

Court held that the order for retrial was not

justified. In Ukha Kolhe’s case, AIR 1963 SC 1531,

too the order for retrial was considered

unnecessary because the end could have been

achieved equally well by taking additional

evidence. This Court mentioned, by way of

illustration, some of the circumstances which

frequently occur and in which retrial may properly

be ordered. It is not to be imagined that the list

there given was exhaustive or that this Court was

making a clean cut between those cases where

retrial rather than the taking of additional evidence

was the proper course. It is easy to contemplate

other circumstances where retrial may be

necessary as for example where a conviction or an

acquittal was obtained by fraud, or a trial for a
Patna High Court CR. APP (SJ) No.936 of 2016 60

wrong offence was held or abettors were tried as

principal offenders and vice versa. Many other

instances can be imagined. The Legislature has not

chosen to indicate the limits of the power and this

Court must not be understood to have laid them

down. Cases may arise where either of the two

courses may appear equally appropriate. Since a

wide discretion is conferred on appellate Courts,

the limits of that Court’s jurisdiction must+

obviously be dictated by the exigency of the

situation and fair play and good sense appear to be

the only safe guides. There is, no doubt some

analogy between the power to order a retrial ind

the power to take additional evidence. The former

is an extreme step approximately taken if

additional evidence will not suffice. Both actions

subsume failure of justice as a condition precedent.

There the resemblance ends and it is hardly proper

to construe one section with the aid of observations

made by this Court in the interpretation of the

other section.”

41. In ShamSaheb M. Multtani vs. State of Karnataka

reported in (2001) 2 SCC 577, it has been held:-

“24. One of the cardinal principles of natural

justice is that no man should be condemned without
Patna High Court CR. APP (SJ) No.936 of 2016 61

being heard, (Audi alterum partem). But the law

reports are replete with instances of courts

hesitating to approve the contention that failure of

justice had occasioned merely because a person

was not heard on a particular aspect. However, if

the aspect is of such a nature that non-explanation

of it has contributed to penalising an individual, the

court should say that since he was not given the

opportunity to explain that aspect there was failure

of justice on account of non-compliance with the

principle of natural justice.

32. The serious consequence which may ensue to

the accused in such a situation can be limned

through an illustration:- If a bride was murdered

within seven years of her marriage and there was

evidence to show that either on the previous day or

a couple of days earlier she was subjected to

harassment by her husband with demand for dowry,

such husband would be guilty of the offence on the

language of Section 304-B IPC read with Section

113-B of the Evidence Act. But if the murder of his

wife was actually committed either by a decoit or by

a militant in a terrorist act the husband can lead

evidence to show that he had no hand in her death

at all. If he succeeds in discharging the burden of
Patna High Court CR. APP (SJ) No.936 of 2016 62

proof he is not liable to be convicted under Section

304B, IPC. But if the husband is charged only

under Section 302 IPC he has no burden to prove

that his wife was murdered like that as he can have

his traditional defence that the prosecution has

failed to prove the charge of murder against him

and claim an order of acquittal.

33. The above illustration would amplify the gravity

of the consequence befalling an accused if he was

only asked to defend a charge under Section 302

IPC and was alternatively convicted under Section

304B IPC without any notice to him, because he is

deprived of the opportunity to disprove the burden

cast on him by law.

34. In such a situation, if the trial court finds that

the prosecution has failed to make out the case

under Section 302 IPC, but the offence under

Section 304-B IPC has been made out, the court has

to call upon the accused to enter on his defence in

respect of the said offence. Without affording such

an opportunity to the accused, a conviction under

Section 304-B IPC would lead to real and serious

miscarriage of justice. Even if no such count was

included in the charge, when the court affords him

an opportunity to discharge his burden by putting
Patna High Court CR. APP (SJ) No.936 of 2016 63

him to notice regarding the prima facie view of the

court that he is liable to be convicted under Section

304B IPC, unless he succeeds in disproving the

presumption, it is possible for the court to enter

upon a conviction of the said offence in the event of

his failure to disprove the presumption.

35. As the appellant was convicted by the High

Court under Section 304-B IPC, without such

opportunity being granted to him, we deem it

necessary in the interest of justice to afford him that

opportunity. The case in the trial court should

proceed against the appellant (not against the other

two accused whose acquittal remains unchallenged

now) from the stage of defence evidence. He is put

to notice that unless he disproves the presumption,

he is liable to be convicted under section 304-B

IPC.”

42. In Vinod Kumar vs. State of Punjab reported in

(2015) 3 SCC 220, it has been held:-

“3. The narration of the sad chronology shocks the

judicial conscience and gravitates the mind to pose

a question, is it justified for any conscientious trial

Judge to ignore the statutory command, not

recognize “the felt necessities of time” and remain

impervious to the cry of the collective asking for
Patna High Court CR. APP (SJ) No.936 of 2016 64

justice or give an indecent and uncalled for burial

to the conception of trial, totally ostracizing the

concept that a civilized and orderly society thrives

on rule of law which includes “fair trial” for the

accused as well as the prosecution.;

43. In Rattiram and others vs. State of Madhya Pradesh

with Satyanarayan and others vs. State of Madhya Pradesh reported

in (2012) 4 SCC 516, it has been held:-

“39. The question posed by us fundamentally

relates to the non-compliance of such interdict. The

crux of the matter is whether it is such a substantial

interdict which impinges upon the fate of the trial

beyond any redemption or, for that matter it is such

an omission or it is such an act that defeats the

basic conception of fair trial. Fundamentally, a fair

and impartial trial has a sacrosanct purpose. It has

a demonstrable object that the accused should not

be prejudiced. A fair trial is required to be

conducted in such a manner which would totally

ostracise injustice, prejudice, dishonesty and

favouritism.”

44. In Pooja Pal vs. Union of India and others reported

in (2016) 3 SCC 135, it has been held:-

“53. This Court in the above disquieting backdrop
Patna High Court CR. APP (SJ) No.936 of 2016 65

in Zahira Habibulla Sheikh case (2004) 4 SCC 158,

did underline that discovery, vindication and

establishment of truth were the avowed purposes

underlying the existence of the courts of justice.

Apart from indicating that the principles of a fair

trial permeate the common law in both civil and

criminal contexts, this Court underscored the

necessity of a delicate judicial balancing of the

competing interests in a criminal trial – the interests

of the accused and the public and to a great extent

that too of the victim, at the same time not losing

the sight of public interest involved in the

prosecution of persons who commit offences.

54. It was propounded in Zahira Habibulla Sheikh

case (2004) 4 SCC 158 that in a criminal case, the

fate of the proceedings cannot always be left

entirely in the hands of the parties, crimes being

public wrongs in breach and violation of public

rights and duties, which affect the whole community

and are harmful to the society in general. That the

concept of fair trial entails the triangulation of the

interest of the accused, the victim, society and that

the community acts through the state and the

prosecuting agency was authoritatively stated. This

Court observed that the interests of the society are
Patna High Court CR. APP (SJ) No.936 of 2016 66

not to be treated completely with disdain and as

persona non grata. It was remarked as well that due

administration of justice is always viewed as a

continuous process, not confined to the

determination of a particular case so much so that a

court must cease to be a mute spectator and a mere

recording machine but become a participant in the

trial evincing intelligence and active interest and

elicit all relevant materials necessary for reaching

the correct conclusion, to find out the truth and

administer justice with fairness and impartiality

both to the parties and to the community.

55. In Zahira Habibulla Sheikh case (2004) 4 SCC

158, While highlighting the courts‟ overriding duty

to maintain public confidence in the administration

of justice, it was enunciated as well, that they

cannot turn a blind eye to vexatious and oppressive

conduct, discernable in relation to the proceedings.

That the principles of rule of law and due process

are closely linked with human rights protection,

guaranteeing a fair trial, primarily aimed at

ascertaining the truth, was stated. It was held as

well, that the society at large and the victims or

their family members and relatives have an inbuilt

right to be dealt fairly in a criminal trial and the
Patna High Court CR. APP (SJ) No.936 of 2016 67

denial thereof is as much injustice to the accused as

to the victim and the society.

56. Dwelling upon the uncompromising significance

and the worth of witnesses in the perspective of a

fair trial, the following revealing comments of

Bentham were extracted in paragraph 41:

“41. “Witnesses”, as Bentham said: are the eyes

and ears of justice. Hence, the importance and

primacy of the quality of trial process. If the witness

himself is incapacitated from acting as eyes and

ears of justice, the trial gets putrefied and

paralysed, and it no longer can constitute a fair

trial. The incapacitation may be due to several

factors like the witness being not in a position for

reasons beyond control to speak the truth in the

court or due to negligence or ignorance or some

corrupt collusion. Time has become ripe to act on

account of numerous experiences faced by courts on

account of frequent turning of witnesses as hostile,

either due to threats, coercion, lures and monetary

considerations at the instance of those in power,

their henchmen and hirelings, political count and

patronage and innumerable other corrupt practices

ingeniously adopted to smother and stifle truth and

realities coming out to surface rendering truth and
Patna High Court CR. APP (SJ) No.936 of 2016 68

justice to become ultimate causalities. Broader

public and societal interests require that the victims

of the crime who are not ordinarily parties to

prosecution and the interests of State represented

by their prosecuting agencies do not suffer even in

slot process but irreversibly and irretrievably,

which if allowed would undermine and destroy

public confidence in the administration of justice,

which may ultimately pave way for anarchy,

oppression and injustice resulting in complete

breakdown and collapse of the edifice of rule of

law, enshrined and jealously guarded and protected

by the Constitution. There comes the need for

protecting the witness. Time has come when serious

and undiluted thoughts are to be bestowed for

protecting witnesses so that ultimate truth is

presented before the court and justice triumphs and

that the trial is not reduced to a mockery. The State

has a definite role to play in protecting the

witnesses, to start with at least in sensitive cases

involving those in power, who have political

patronage and could wield muscle and money

power, to avert the trial getting tainted and derailed

and truth becoming a causality. As a protector of its

citizens it has to ensure that during a trial in court

the witness could safely depose the truth without
Patna High Court CR. APP (SJ) No.936 of 2016 69

any fear of being haunted by those against whom he

has deposed.”

57. It was underlined in Zahira Habibulla Sheikh

case (2004) 4 SCC 158 that if ultimately the truth is

to be arrived at, the eyes and ears of justice have to

be protected so that the interest of justice do not get

incapacitated in the sense of making the

proceedings before the courts, mere mock trials.

While elucidating that a court ought to exercise its

powers under Section 311 of the Code and Section

165 of the Evidence Act judicially and with

circumspection, it was held that such invocation

ought to be only to subserve the cause of justice and

the public interest by eliciting evidence in aid of a

just decision and to uphold the truth. It was

proclaimed that though justice is depicted to be

blindfolded, it is only a veil not to see who the party

before it is, while pronouncing judgment on the

cause brought before it by enforcing the law and

administer justice and not to ignore or turn the

attention away from the truth of the cause or the lis

before it, in disregard of its duty to prevent

miscarriage of justice. That any indifference,

inaction or lethargy displayed in protecting the

right of an ordinary citizen, more particularly when
Patna High Court CR. APP (SJ) No.936 of 2016 70

a grievance is expressed against the mighty

administration, would erode the public faith in the

judicial system was underlined. It was highlighted

that the courts exist to do justice to the persons who

are affected and therefore they cannot afford to get

swayed by the abstract technicalities and close their

eyes to the factors which need to be positively

probed and noticed. The following statement in

Jennison vs. Baker, (1972) 1 All ER 997 was

recalled:

“The law should not be seen to sit by limply, while

those who defy it go free, and those who seek its

protection lose hope.”

58. It was declared in Zahira Habibulla Sheikh case

(2004) 4 SCC 158 that the courts have to ensure

that the accused persons are punished and that the

might or the authority of the state is not used to

shield themselves and their men and it should be

ensured that they do not wield such powers, which

under the Constitution has to be held only in trust

for the public and society at large. That if any

deficiency in investigation or prosecution is visible

or can be perceived by lifting the veil covering such

deficiency, the courts have to deal with the same

with an iron hand appropriately within the
Patna High Court CR. APP (SJ) No.936 of 2016 71

framework of law was underlined.

59. Referring to its earlier decision in Karnel Singh

vs. State of M.P. (1995) 5 SCC 518, it was

reiterated that in a 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 of the Code or at a

later stage also resorting to Section 391 instead of

throwing hands in the air in despair. It recalled as

well its observations in Ram Bihari Yadav v. State

of Bihar others, (1998) 4 SCC 517 that the courts

are installed for justice oriented mission and thus if

a negligent investigation or omissions or lapses due

to perfunctory investigation are not effectively

rectified, the faith and confidence of the people

would be shaken in the law enforcing agency and

also in the institution devised for administration of

justice.

60. Though, as referred to hereinabove, trial was

completed and the accused persons were acquitted,

in the textual facts, this Court did direct retrial as

prayed for, to avoid subversion of the justice

delivery system and ordered the investigating

agency or those supervising the investigation to act
Patna High Court CR. APP (SJ) No.936 of 2016 72

in terms of Section 173(8) of the Code as the

circumstances would so warrant.

61. The observations and the propositions, though

made in the backdrop of a request for retrial, those

pertaining to the essentiality of a fair and complete

investigation and trial as well as the solemn duty of

the courts to ensure the discernment of truth to

administer even handed justice as institutions of

trust of public faith and confidence, are in our

estimate, of universal application and binding

effect, transcending the factual settings of a case.

An adverse deduction vis-à-vis the quality of

investigation and/a trial trivializing the cause of

justice, is however the essential pre-requisite, for

such remedial intervention by way of further

investigation, reinvestigation, additional evidence,

retrial etc. to be made objectively but assuredly for

the furtherance of the salutary objectives of the

justice dispensing system as contemplated in law, it

being of paramount pre-eminence.

62. This Court in Mohd. Hussain @ Julifikar Ali

(2012)9 SCC 408 was also seized of a situation

imploring for a retrial following the termination of

the prosecution principally on account of delay,

when juxtaposed to the demand for justice in cases
Patna High Court CR. APP (SJ) No.936 of 2016 73

involving grave crimes affecting the society at

large. The offence involved was under Sections

302/307/120B IPC and Sections 3 and 4 of the

Explosive Substances Act, 1908 and had

perpetrated an explosion in a passenger carrying

bus. This Court amongst others recalled its

observations in Kartar Singh vs. State of Punjab

(1994) 3 SCC 569 that while dispensing justice, the

courts should keep in mind not only the liberty of

the accused but also the interest of the victim and

their near and dear ones and above all the

collective interest of the community and the safety

of the nation, so that the public, may not lose faith

in the system of judicial administration and indulge

in private retribution. It however also took note of

its ruling in State of M.P. vs. Bhooraji and others

(2001) 7 SCC 679 that a de novo trial should be the

last resort and that too only when such a course

becomes desperately indispensable and should be

limited to the extreme exigency to avert a failure of

justice. It noted with approval the observation in P.

Ramachandra Rao (supra) that it is neither

advisable nor feasible nor judicially permissible to

draw or prescribe an outer limit for conclusion of

all criminal proceedings and that the criminal

courts are not obliged to terminate the trial or
Patna High Court CR. APP (SJ) No.936 of 2016 74

criminal proceedings merely on account of lapse of

time. That such time limits cannot and will not by

themselves be treated by any court as a bar to

further continuance of the trial or proceedings or to

terminate the same and acquit or discharge the

accused, was emphatically underlined. Reference

too was made of the decision in Zahira Habibulla

H. Sheikh (2004) 4 SCC 158.”

45. After scrutiny of the materials available on the record

as well as the principle decided by the Apex Court, the following facts

emerge out:-

I) There happens to be violation of direction of the Hon‟ble

Apex Court given under Rajvir @ Raju Case.

II) There happens to be non-appreciation of the material

available on the record to search out by the learned lower

Court whether charge under Section 302 I.P.C. is alterable

or not.

III) No step has been taken by the Court even during evidence

of PW-6 and PW-7, who had exhibited the certified photo

copy of fard-bayan of deceased, Aarti Devi which, on

account of her death became dying declaration, to procure

the original.

IV) There should have been proper step at the end of the Court

to procure original dying declaration.
Patna High Court CR. APP (SJ) No.936 of 2016 75

V) In spite of presence of Exhibit-1, the Court failed to

confront the same to appellant during course of statement

recorded under Section 313 Cr.P.C.

VI) The learned lower Court failed to consider that in the fard-

bayan the word dowry has been inserted in different pen

and in likewise manner, lacks discloser over time elapsed

since marriage.

VII) The learned lower Court failed to consider the evidence of

PW-9, informant as well as PW-10, husband of informant

with regard to solemnization of marriage about 7-8 years

ago since the death of deceased.

The aforesaid eventualities fell within the ambit of

miscarriage of justice whereupon de novo trial is

warranted.

46. Because of the fact that on account of grave

illegality having been committed by the learned lower Court during

conduction of trial leading to miscarriage of justice as held

hereinabove. Though, Section 221 of the Cr.P.C. does permit to

convict an accused even if he is not charged and is found legally

permissible in terms of Section 464 Cr.P.C., but considering the fact

that Section 304B I.P.C. as well as Section 302 I.P.C. lie on different

pedestal, prescribing two distinct criterion for consideration and

further, considering the principle decided by the Apex Court in
Patna High Court CR. APP (SJ) No.936 of 2016 76

ShamSaheb M. Multtani vs. State of Karnataka reported in (2001) 2

SCC 577, it has become abundantly clear that the appellants have to

be given an opportunity to defend themselves. That being so, the same

is set aside. Appeal is allowed. Matter is remitted back to the learned

lower Court to proceed afresh in light of finding recorded

hereinabove. Appellants are directed to be produced before the

learned lower Court.

(Aditya Kumar Trivedi, J)
Vikash/-

AFR/NAFR A.F.R.
CAV DATE 30.06.2017
Uploading Date 01.08.2017
Transmission 01.08.2017
Date

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